R v Rewiri

[2023] NZHC 2954

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-4281

[2023] NZHC 2954

THE KING

v

ADRIAN REWIRI

Hearing:	20 October 2023
Appearances:	R W Jenson for Crown Q Duff for Defendant
Sentence:	20 October 2023

SENTENCING REMARKS OF LANG J

Solicitors/counsel:

Pollett Legal Ltd, Tauranga Q Duff, Auckland

R v REWIRI [2023] NZHC 2954 [20 October 2023]

[1]                 Mr Rewiri, you appear for sentence having been found guilty by a jury of being an accessory after the fact to murder.1 The maximum penalty for that charge is seven years imprisonment.

Factual background

[2]                 The facts on which you are to be sentenced are to be drawn from the evidence given at trial. This will require me to make one finding of fact that influences the starting point to be adopted for the sentence to be imposed on you. As trial Judge, I am entitled to make my own factual findings provided they are not inconsistent with the jury’s verdict.

[3]                 At approximately 10 pm on the evening of 11 February 2018, Mr David Kuka was shot and killed at the address at which he lived in Tauranga. The person who has pleaded guilty to murdering Mr Kuka, Mr Dane Pukepuke, had travelled to Tauranga from Rotorua earlier in the day. Approximately two hours before the shooting took place Mr Pukepuke obtained a Ford motor vehicle that he used to travel to the address where he shot Mr Kuka.

[4]                 The Crown alleged at trial  that  you  were  the  person  who  arranged  for  Mr Pukepuke to be provided with this motor vehicle. I accept that this is the case based on the evidence given at trial but nothing turns on it for present purposes because the jury concluded that you were not a party to Mr Kuka’s murder. The jury’s verdict on this charge reflects their conclusion that they could not be sure that you knew what Mr Pukepuke was going to do at the time you arranged for him to be provided with the vehicle. The acts for which you are to be sentenced commenced after the shooting had occurred when the vehicle was returned to the rural address at which you were living at that time.

[5]                 The Crown case at trial was that shortly after the shooting occurred, the Ford vehicle was returned to your address. You then gave instructions to other persons at the address to immediately begin sanitising the vehicle by wiping down surfaces to

1      Crimes Act 1961, s 176.

remove any fingerprints.    You then told them to begin stripping the vehicle and removing any incriminating items from it.

[6]                 Your counsel contended that the vehicle was not returned to your address until 1 pm the next day. I do not accept that this is the case. One of the Crown witnesses was [REDACTED]. He was a Mongrel Mob prospect at that time and was present at your address on the evening of 11 February 2018. He gave evidence that after the Ford vehicle returned to the address, he and others were directed to commence stripping it and searching for any ammunition that might be in the vehicle. His evidence was subject to significant criticism at trial and it is clear that he was mistaken regarding several issues, including the timing of relevant events. Nevertheless, I am satisfied beyond reasonable doubt that he was telling the truth when he said that the Ford motor vehicle returned to your address and that you and others then began directing those present at the address, including [REDACTED], to take steps to strip clean and strip down the vehicle. I am satisfied this occurred shortly after the shooting had taken place.

[7]                 On the afternoon of 12 February 2018 you arranged for the vehicle to be taken to a farm property, where it was left for several days. This was no doubt to ensure the police would not find the vehicle if they visited your address. The vehicle was subsequently returned to your address and further steps were taken to remove the engine and other body parts. You subsequently took the vehicle to a scrap yard where it was crushed. Your culpability lies in the fact that your actions prevented the police from obtaining access to the vehicle involved in the shooting. It may well have contained important forensic evidence such as fingerprints, DNA and other evidence relevant to the shooting.

Starting point

[8]                 Counsel for the Crown has provided several cases to support the submission that the starting point for your offending should be one of 21 months imprisonment.2 Of the authorities cited, I consider R v Te Moana to be the most relevant because it

2      R v Audain [2021] NZHC 2367; R v Te Moana [2018] NZHC 1480; and R v Hayward-Dodd [2019] NZHC 1612.

involved very similar offending to yours. A starting point of 21 months imprisonment was adopted in that case.3 Your counsel does not quarrel with the starting point suggested by the Crown. I therefore adopt a starting point of 21 months imprisonment.

Aggravating factors

[9]                 You have a relatively lengthy list of criminal convictions and are currently serving an effective sentence of eight years imprisonment. However, I accept that none of your previous convictions are relevant for present purposes.

[10]             One conviction that may have been relevant is a conviction for obstructing the course of justice for which you received a sentence of two years nine months imprisonment on 22 June 2021. However, that offending post-dated the present offending so has no relevance for present purposes. I therefore apply no uplift to reflect your previous convictions.

Mitigating factors

[11]             On 22 June 2021, you were sentenced to five years imprisonment on numerous charges involving the sale and supply of Class A and Class B drugs.4 The sentence on the charge of obstructing the course of justice was imposed cumulatively on that sentence. You have been in custody since being sentenced on those charges so your circumstances have not changed since that time. At your sentencing, your counsel tendered a cultural report under s 27 of the Sentencing Act 2002. The Judge who sentenced you at that time gave you a discount of just under 10 per cent to reflect mitigating factors identified in that report.5 I accept your counsel’s submission that it would be appropriate to apply the same discount given the fact that the present offending occurred shortly before the offending for which you were sentenced on   22 June 2021. The Crown agrees. The sentence will therefore be reduced by two months to reflect the mitigating factors identified in the s 27 report.

3      R v Te Moana, above n 2, at [6]. 4 R v Rewiri [2021] NZDC 12360. 5 At [28].

[12]             Your counsel seeks a further reduction of 10 per cent to reflect the fact that you offered to plead guilty to the present charge shortly after the commencement of the trial. I was not privy to this fact, although your counsel sought an adjournment early in the trial to enable you to provide him with instructions regarding that possibility. I declined to grant the adjournment because I considered you would have ample time during the course of the trial to decide whether or not to plead to the charge. I then heard nothing further about the issue, so I presumed you had decided to leave the matter with the jury.

[13]             It now transpires that your counsel made an offer to the Crown that involved the Crown accepting that the vehicle did not return to your address until approximately 1 pm on 12 February 2018. I have rejected that version of events so it is not appropriate to provide you with any credit for this factor. This means that the end sentence is one of 19 months imprisonment.

Totality

[14]             It is, however, necessary for me to determine whether the sentence should be reduced to reflect totality principles. The Court is required to consider these principles in any case where it is considering the imposition of a cumulative sentence. The Court must ensure that the sentence to be imposed is not wholly out of proportion with the gravity of the overall offending.6

[15]             You committed the present offence shortly before committing the offences for which you were sentenced to an effective term of seven years nine months imprisonment on 22 June 2021. On 2 March 2022, you received a further cumulative sentence of three months imprisonment on charges of supplying methamphetamine, cannabis and cannabis oil. That offending occurred on 5 May 2021. It is therefore necessary to consider what sentence would have been imposed on you on the present charge if you had been sentenced on all charges at the same time.7

6      Sentencing Act 2002, s 85(2).

7      Ryan v R [2018] NZCA 586 at [24].

[16]             The Crown considers a cumulative sentence of nine months imprisonment is appropriate whist your counsel suggests a cumulative sentence of eight months imprisonment. I side with the Crown on this issue. The present offending was obviously serious. Having regard to totality principles, I consider a cumulative sentence of nine months imprisonment is appropriate.

Sentence

[17]             On the charge of being an accessary after the fact to murder, you are sentenced to nine months imprisonment. You are to serve that sentence cumulatively on the sentence imposed on the charge of supplying methamphetamine on which you were sentenced on 2 March 2022.

Lang J