R v Rewha-Te Wara HC Hamilton CRI 2010-019-005681

[2011] NZHC 2069

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-019-005681

THE QUEEN

v

CONNOR REWHA-TE WARA BEN PURUA

WILLIAM FREDRICK IZETT

Hearing:         30 September 2011

Appearances: R G Douch for Crown

M J Robb for Prisoner Rewha-Te Wara
G Boot for Prisoner Purua
R J Laybourn for Prisoner Izett

Judgment:      30 September 2011

SENTENCE OF KEANE J

Counsel:     M J Robb: [email protected]

R J Laybourn: [email protected]

Solicitors:    Almao Douch: [email protected]

Gavin Boot Law: [email protected]

R V CONNOR REWHA-TE WARA HC HAM CRI 2010-019-005681 30 September 2011

[1]      Connor Rewha-Te Wara, you appear for sentence for the murder of Donald Stewart, aged 74, here in the centre of Hamilton on 27 June 2010. Ben Purua and William Izett, you appear for sentence for the manslaughter of Mr Stewart. You too were complicit, if only as parties, in the assault that caused his death, intent on the ensuing theft of his car.

[2]      On the morning of 27 June 2010 Mr Stewart was found in an alleyway in London Street, near a toilet block close to the intersection with Victoria Street. He had died, it was discovered, when he was examined by a pathologist, as a result of a sustained and brutal assault.

[3]      Mr Stewart died, the pathologist concluded, as a result of bleeding within his brain after his left vertebral artery had ruptured; a rupture caused by a blow to the left side of his head that caused it to swivel violently. Other injuries to his head and face showed that this was a far from isolated blow. Mr Stewart was also found to have suffered bruising to other parts of his body, and bleeding near his pancreas was consistent with a forceful blow to his abdomen.

[4]      The three of you were not apprehended until 8 July 2010. Then you, Connor Rewha-Te Wara, declined, as was your right, to make any statement. You, Ben Purua and you, William Izett, did however give the police consistent accounts as to how Mr Stewart came to be assaulted and his car taken.

[5]      As all three of you now accept, you saw Mr Stewart's car, parked close to the toilet block, with its lights still on. You decided to steal it but it proved to be locked. So, when Mr Stewart returned from the toilet you, Connor Rewha-Te Wara, in the close presence of you, Ben Purua and you William Izett, demanded that he had over his keys.

[6]      When  he  refused  to  do  that,  as  you,  Connor  Rewha-Te  Wara,  told acquaintances of yours in the days afterwards, you punched him to the ground. Then you kicked him. That appears to have happened both at the side of the car and then to have been completed once you dragged him into an alleyway near the toilet block. When he became unconscious you took his keys.

[7]      All three of you then decamped in Mr Stewart's car, leaving him lying where he was. You, Ben Purua and you William Izett, shared the driving. Later you sorted through Mr Stewart's possessions. Later still you abandoned the car, after it ended in a ditch on the outskirts of Hamilton. You caught a ride back into town. In the days following you, Ben Purua, arranged to have the car pulled from the ditch and taken to a wrecker.

Victim impact statements

[8]      This morning we have heard Mr Stewart's two daughters, and one of his brothers read their victim impact statements, and I have also statements from his sister and two other brothers. The three who did read their statements, as you will have heard, did so with great difficulty.

[9]      I can only hope that, if only this morning, you will begin to understand that in taking Mr Stewart's life so  heedlessly,  you took a life, like any other,  that had inestimable value and you blighted the lives of those closest to him. I hope also that you appreciated as well how generously forgiving Mr Stewart's daughters, his sister and his three brothers have been to you in what they say.

[10]     The effect on them of Mr Stewart's death has been profound, as you heard, and will continue to be. Yet they hope that one day you will be able to lead more normal and useful lives in the community, once you have completed the sentence I am obliged to impose on you.

Sentencing principles and purposes

[11]     In sentencing you I must hold you accountable for the harm you have done. I must promote in you, if I can, some sense of responsibility. I must denounce what you have done and impose a sentence that deters you and others. In that I must take account of the sentences that are imposed in other cases of this seriousness.

[12]     The gravity of your offences is such that I cannot begin to assist you with your rehabilitation and reintegration. Nor, more especially, can I begin to address the

harm you have done, not merely in taking Mr Stewart's life, but in the loss you have caused his family. That harm and their loss, very sadly, is irreversible. On sentence I must focus on what the law requires of me and I begin with this.

[13]     The taking of a person's life is the most serious offence in our criminal code; and that must be reflected in the sentences that I impose on each of you, recognising always that you are responsible only for the individual part that each of you played. I begin with your individual circumstances.

Pre sentence reports

[14]     Connor Rewha- Te Wara, at the time of this offence you were, as your pre- sentence report confirms, aged just 14 and your life has from an early age become increasingly fractured.

[15]     You come from a very large and, it seems, dispersed family. You have six brothers  and  four  sisters.  You  were  brought  up,  it  seems,  largely  by  your grandmother in Huntly, who remembers you as a good child, if easily led. That you were easily led may well have been a decisive factor. Your parents, the report says, were then, and may still be, affiliated with the Mongrel Mob and Black Power. You were exposed to gangs from an early age.

[16]     When you were 12 you were expelled from school, as you said to your assessor, for assaulting a teacher aide and, when you were 13, you were taken into care and protection. First, you were placed at Weymouth Boys Home. Then you spent a year in respite care with a family in Rotorua, where you became involved in the kapa haka program; an experience that you described as the best of your life. You are an accomplished artist, it seems. You can play the guitar simply by listening and playing from the sound.

[17]     Unfortunately you were then sent back to Hamilton and you resumed living a chaotic unsupervised life, taking drugs, drinking alcohol to excess, and fighting, in the company of those like you, involved with youth gangs. At the time of your offence you were a member of a youth gang, the Bloods.

[18]     The day before you were responsible for the death of Mr Stewart, your pre- sentence report says, and your counsel confirms, you recall drinking all day and resuming that in the early evening. You went to a succession of parties. You smoked methamphetamine. You went to the centre of the city and at a local club, it appears, you met your co-offenders. It was not so very long after that, that you encountered Mr Stewart with fatal effect.

[19]     You told your assessor that all you wanted to do was to take Mr Stewart's car, and that you did not intend to take his life. You wanted to say, you said, how sorry you were. Your assessor accepted that and also assessed you as highly motivated to change. A long term of imprisonment is recommended simply because your offence was so very serious.

Child Youth and Family assessment

[20]     The  assessment  that  I  have  received  from  the  Child, Youth  and  Family Service, however, is not as positive. It says that since 1 November 2010, when you entered the Youth Justice facility in which you have been since, you have frequently been abusive, disruptive, and violent. You have had to be kept in secure care much of the time because you have proved so unpredictable and you have put other young people and staff at risk. You have continued to say, it seems, that you will only behave if you get what you want.

[21]     As the mental health assessments attached to that report also say, however, your behaviour may be attributable to anxiety, depression and post traumatic stress disorder.  You  have  certainly  exhibited  an  inability  to  sleep,  you  have  suffered changes in appetite and increased irritability. However, your misconduct cannot be ignored.  Nor can the fact that there have been  instances  inconsistent with  your expression of remorse.

Ben Purua

[22]     Ben Purua, your pre-sentence report discloses that you were 15 at the date of your offence. You are, it seems, already the father of a two year old child and you are

in a new relationship. You described your upbringing as 'confused' and that appears to be an understatement.

[23]     You are the third of nine children and from an early age you did not know your father.   You were brought up by your mother and uncles and your mother's partner, a member of Black Power, was, it seems, violent to you. Alcohol and drug abuse figured in your home.

[24]     The best time of your life, you recall, was when, at the age of nine or ten you went to Australia to live with an uncle. But when you returned to New Zealand, aged

13, you began to truant and, though you took part in a life skills course which you seemed to have benefited from, you did not otherwise make great headway.

[25]     You report that when you were 13 you became a patched member of the Outlaws gang. You say you had become affiliated to Black Power and also other gangs. You have a series of previous convictions for offences in a youth context but none that begin to compare, of course, with the offence for which  you are for sentence today.

[26]     You admitted to your assessor to using cannabis daily before this offending, and methamphetamine weekly, and alcohol frequently. Your sister has confirmed that this was simply a feature of your unstructured life. You told your assessor that you played no part in the assault on Mr Stewart but you agreed that you did not attempt to help him either. You said that you would be willing to attend a restorative justice conference, if only to apologise.

[27]     While in care, since you were apprehended, you have you have presented a mixed picture. You have been, on occasions, non-compliant, disruptive, and threatening to other young people and had to be placed in secure care. Yet at other times  you  have  helped  to  protect  staff  from  attacks  and  you  have  returned contraband. You have obtained credits in a range of educational subjects and to that extent benefited from a more structured life.

[28]     The sentence recommended in your case also, imprisonment, is inevitably

conditioned by the offence for which you appear.

William Izett

[29]     William Izett, as your pre-sentence report confirms, you were 17 at the age of your offence and you have, in contrast to your co-offenders, because of your age, been remanded in custody since.

[30]     Until your offence you lived, it seemed with your adoptive parents here in Hamilton as their only child, though it appears also that you spent time with your natural mother when you were perhaps 13, an experiment unable to be sustained.

[31]     You agree that your adoptive parents have supported you as parents should, both materially and emotionally. But you have also at various times been placed in foster homes and received counselling. Your behaviour was such that at the age of 13 you were diagnosed with conduct disorder by a psychiatrist and you have been medicated since.

[32]     You attended school to the age of 14 years. You were then excluded from both intermediate and secondary schools because of your disruptive behaviour. In the years since you have offended persistently. You have appeared mainly in the Youth Court but in the last year you have appeared in the District Court in its general jurisdiction.  You  have  recently  been  sentenced  to  imprisonment  for  a  robbery attended by violence.

[33]     Since you have been in custody on remand for this offence you have been medication free, smoke free, drug free and alcohol free. You say you feel better and you are assessed to look better. You counsel says that you have matured. I hope that that is so.

[34]     On  the  night  of  this  offence,  you  told  your  assessor,  you  and  your co-offenders had been drinking cask wine and vodka. You said, as they do, that you only intended to take Mr Stewart's car. You maintained indeed that you were at some distance from the assault when it happened. You were across the road. You do accept

that once it was complete you got into it and you drove it, that you were extremely drunk and it was you who ultimately crashed the car.

[35]     Your assessor questions whether, though you said that Mr Stewart's death was unplanned, and you accepted that you did not attempt to stop it and said that you wished that you could have changed what transpired, you said also that afterwards you hoped it would simply go away if you said nothing. You fall short, in your assessor's estimate, of showing any real empathy or remorse.

[36]     Your report portrays you as a significant youth offender and says you have failed to respond to any sentence imposed on you. It rates your risk of re-offending as very high. You remain, it says, 'emotionally detached'. Again, because of the serious of the offence for which you are for sentence, it recommends imprisonment.

Connor Rewha-Te Wara

[37]     I begin with you, Connor Rewha-Te Wara, because you have accepted by your plea that you are culpable of murder. By your plea you have accepted that you were directly and finally responsible for the death of Mr Stewart. You have accepted that you assaulted him as grievously as you did in order to steal his car.

[38]     The Crown invites me to sentence you to life imprisonment. There is nothing about your offence, the Crown contends, that could make that manifestly unjust. Nor, the Crown contends, can the fact that you were then 14 make it unjust either. Your counsel responsibly accepts that in this the Crown is correct and I agree.

[39]     The Crown contends, secondly, that  your offence was aggravated in two ways, each of which individually requires me to impose on you a 17 year minimum non-parole period unless that is manifestly unjust. You murdered Mr Stewart in order to commit another serious offence, an aggravated robbery, the theft of his car, and you  did  so,  secondly,  with  a  high  level  of  brutality,  cruelty,  depravity  and callousness. Having brutally beaten him to the point where he was unconscious, you left him to die, taking his car.

[40]     The Crown accepts, however, that because you have accepted responsibility for your offence by entering a plea, it might well be manifestly unjust to impose that

17 year minimum term on you. The actual minimum term to which you ought to be subject, the Crown accepts, ought rather to be assessed having regard to your plea, your age, your personal circumstances and any remorse.

[41]     Again, your counsel responsibly agrees, and as a matter of law I accept, the Crown's submission. The fact that you were at the time of your offence 14 years of age does not by itself, if that were the only factor, make a 17 year minimum term manifestly unjust. You were, after all, the principal offender and that is even more material. But the fact that you have pleaded guilty does make such a term manifestly unjust if 17 years, and no more, is called for.

[42]     I must then assess what actual minimum is called for, taking into account when you entered your plea, your age and circumstances at the time of your offence, and the extent to which you have shown any remorse since. That said, I must do so ensuring that the minimum term that I impose adequately holds you accountable for

your offence, denounces it, is deterrent and protects the community.[1]

[1] Sentencing Act 2002, s 103 - 104; R v Williams [2005] 2 NZLR 506 (CA); R v Slade [2005] 2

NZLR 526 (CA); Hessell v R [2010] NZSC 135; R v Walsh (2005) 21 CRNZ 946.

[43]     Your young age, 14 years, at the time of this offence, I accept, has to be the most important factor finally. The Crown accepts that to be so and has pointed out, responsibly,  that  coupled  with  your  young  age  you  were  immature  in  critical respects, aggravated by your unfortunate life. Your counsel endorses that in the submission he makes. In assessing your culpability, I agree this must be given first place. I will reduce the 17 year minimum term on that account by five years.

[44]     You are entitled, if you qualify, also to a discount for any remorse that you may have expressed and you certainly expressed remorse to the assessor who prepared your pre-sentence report who took you literally. You have also written a letter today to Mr Stewart's family. It may be also that remorse did influence your

plea, not just the material strength of the Crown's case.

[45]     However, the admissions you made that were to be part of the Crown's case, had you gone to trial, and comments that you have made since in the Youth Justice facility, are inconsistent with any remorse worthy of credit. The factors, perhaps, that led me to give you as generous a discount as I have on account of your youth may explain why that is so. You are not entitled to an additional credit.

[46]     You are, by contrast, entitled to a discount for plea. You did not enter your plea at the first opportunity. You did so relatively recently once the full extent of the Crown's case, to include evidence of a co-accused, became apparent to you. That late plea may in part be attributable, as your counsel says, to your age. But the fact is that it was late. The most credit I can allow you on this account is 12 months.

[47]     The effect is that in the sentence of life imprisonment I impose on you, the minimum term will be 11 years; a term, I should add, which I think consistent with what is called for as a matter of statutory purpose.

Ben Purua and William Izett

[48]     Ben Purua and William Izett, you are to be sentenced for manslaughter on the basis that you were complicit in Mr Stewart's death because you participated in an aggravated robbery intentionally, knowing that violence was to be inflicted.

[49]     The Crown does not contend that you were involved in the actual assault on Mr Stewart. The Crown accepts also that you cannot be said to have anticipated that Connor Rewha-Te Wara would be as violent as he was. You are still, the Crown contends, fixed with what you did intend, which did include a level of violence.

[50]     Further, the Crown says, you are fixed with the fact that, when Mr Stewart was assaulted, you made no effort to assist him during the assault or afterwards. You left in his car leaving him where he lay. You afforded him no dignity in death. You stole his personal property and ultimately you were party to destroying it.

[51]     Relying on a succession of cases, most especially R v Maxwell, [2] the Crown

contends for a starting point as to each of you of eight years imprisonment. Your counsel, Ben Purua, contends that such a starting point would stand too high, that in contrast to the Maxwell case, no weapon was used in the assault and that is a material distinguishing factor. He contends for a starting point of six years. Your counsel, William Izett, on the same basis contends for a starting point of five - six years imprisonment.

[2] R v Maxwell CA359/02, 31 March 2003.

[52]     Manslaughter is an offence which attracts no tariff. The circumstances in which death ensues as a result of manslaughter varies very widely. But I consider that in your two cases, putting aside the other authorities which I have considered, there are a number of factors to be taken into account in fixing the starting point.

[53]     You were complicit, intentionally, in an aggravated robbery. While you were not involved in the actual assault, you were there when it happened. Your presence was not neutral. In Mr Stewart's mind it would have been an assault by three on one. More to the point, it happened in two phases and you could have intervened and you did not. Yet you were older than Connor Rewha-Te Wara. He was 14 and you were

15 and 17. You saw Connor Rewha-Te Wara as carrying out what was essential. You certainly benefited afterwards. You took Mr Stewart's car. That you were so apparently passive, I consider, is to that extent, misleading.

[54]     Those factors combined lead me to conclude that the Crown's eight year starting point is right. I will now sentence each of you individually because different considerations come into play.

[55]     Ben Purua, in fixing your sentence, from a starting point of eight years, I first allow you a discount for the fact that you were at the time of this offence 15 years. That discount will be 18 months. I do not allow you any discount for remorse. There is no evidence of remorse that I have seen that compels such a discount. I do allow you a credit for your plea at a relatively late point. That credit will be one year. That results in a sentence of five and a half years imprisonment.

[56]     William Izett, in your case, again from a starting point of eight years, I first increase that by six months for your previous convictions. Much of your offending

resulted in you appearing in the Youth Court and I give that less weight, though its persistence is very troubling. I give especial weight to the fact that in April 2010 you were sentenced to seven months imprisonment for robbery by assault; and that in June 2010, for behaving threateningly, you were sentenced to come up if called upon. This offending occurred in very close proximity.

[57]     You are, I consider, entitled to a discount for youth. You were 17 years of age and decisively older than the others, but I will allow you one year on that account. I do not accept that you have shown any material remorse.  But you did earlier this year take a position for which you are entitled, as the Crown accepts, to a significant

discount on the Hadfield[3]  principle. For that I will discount your sentence by two

years. For your plea, which came materially earlier than anybody else's, I will allow you a further discount of 18 months. The result is that you will be sentenced to four years imprisonment.

[3] R v Hadfield CA 337/06, 14 December 2006.

[58]     There remains the issue of minimum term. A minimum term is called for where  the  actual  sentence  imposed  would  not  sufficiently hold  the  two  of  you accountable, denounce your offending, deter you and others and protect the community. I am satisfied that a minimum term is called for in your two cases, as the Crown says.

[59]     The two of you, with Connor Rewha-Te Wara, targeted Mr Stewart and his car in the early hours of the morning and you were party to the theft of his car and, in the result, his death. This form of offending has to be responded to emphatically and a minimum term of one half seems to me more than warranted. In your case, Ben Purua, your minimum term will be two years, nine months. Your minimum term,

William Izett, will be two years.

P.J. Keane J