R v Shadrock HC Auckland CRI 2009-092-3881
[2010] NZHC 1080
•2 July 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-092-3881
THE QUEEN
v
CHRISTOPHER SHADROCK VILA LEMANU
LIONEL TEKANAWA TERENCE TERE
MAKA TUIKOLOVATU MATENI LYNCH
Hearing: 2 July 2010
Counsel: JC Gordon SC and RS Reed for the Crown
CB Wilkinson-Smith and MM Wilkinson-Smith for the prisoner
Shadrock
S Tait and J Hudson for the prisoner Lemanu
RM Mansfield for the prisoner Tekanawa
LO Smith for the prisoner Tere
JM Northwood for the prisoner Tuikolovatu
DL O'Connor for the prisoner Lynch
Judgment: 2 July 2010
SENTENCING NOTES OF RODNEY HANSEN J
Solicitors: Meredith Connell, P O Box 2213, Shortland Street, Auckland 1140 for the Crown
Mr CB Wilkinson-Smith, Level 1, General Building, 29 Shortland Street, Auckland
1010 for the Accused Shadrock
Mr S Tait, P O Box 76538, Manukau City, Manukau 2241 for the Accused Lemanu Mr RM Mansfield, P O Box 2674, Shortland Street, Auckland 1140 for Accused Tekanawa
Ms L Smith, P O Box 47089, Ponsonby, Auckland 1144 for the Accused Tere
Ms JM Northwood, P O Box 38438, Howick, Manukau 2145 for AccusedTuikolovatu
Mr DL O’Connor, P O Box 2283, Shortland Street, Auckland 1140 for Accused
Lynch
R V SHADROCK And Ors HC AK CRI-2009-092-3881 [2 July 2010]
Introduction
[1] Mr Shadrock, you appear for sentence having been found guilty of the murder of Jian (Joanne) Wang and on a charge of theft. Mr Lemanu, you were also found guilty of theft and of being an accessory after the fact to Mrs Wang’s murder. Messrs Tuikolovatu, Tekanawa, Lynch and Tere also appear for sentence on the charge of being an accessory after the fact to murder.
[2] What I propose to do is to set out the facts as they emerged in the course of the trial. I will make brief reference to the impact of the offending on the victims and then I will sentence each of you separately. For the reasons that have been discussed, Mr Lemanu and Mr Tere, your formal sentencing will be postponed until home detention reports are available. I propose to deal with Mr Tuikolovatu, Mr Lemanu and Mr Tekanawa first as, Mr Shadrock, the issues raised by your sentence are much more complex and difficult.
Facts
[3] The facts as they emerged at trial are that on the morning of Monday, 16 June
2008 you, Mr Shadrock, stole a Nissan Regulus from a carpark in Glen Innes. It was stolen for the specific purpose of being used in a bag snatch. It was targeted because it was well known in the criminal fraternity that a Nissan is easily stolen.
[4] Later that day Mr Shadrock linked up with Dalton Harris and three others. One of those three was Mr Lemanu. Mr Tekanawa and Mr Tuikolovatu were accused of being the other two but were found not guilty at trial. Dalton Harris was driving a Mitsubishi Delica which he had borrowed that morning from a friend. All agreed to join with Mr Shadrock to carry out a bag snatch.
[5] The group was following a popular modus operandi in the criminal fraternity in South Auckland in which two cars are used to execute a bag snatch in shopping mall carparks. The stolen car carries the thief who is usually the passenger. The
legitimate car waits close by to provide support if required and to help the thief escape later. The Court was told that women of Chinese and Indian ethnicity are commonly targeted as they are seen as more likely to be carrying significant sums of money and are less likely to resist.
[6] The plan is that after a bag has been stolen, both vehicles leave the carpark. The stolen vehicle is abandoned and its occupants are picked up by the following legitimate car. If they are separated, text messages are used to link up.
[7] On 16 June 2008, the plan went badly wrong with tragic consequences.
[8] Mr Shadrock did not wait to be joined by a passenger from the Delica. Perhaps it was because they hesitated; Mr Lemanu told the police that they had “a bad feeling”. Or perhaps Mr Shadrock simply saw an opportunity and jumped the gun. For whatever reason, he did it alone.
[9] At about 3.30 p.m., Mrs Wang and her 8-year-old son, Edmund, emerged from the shopping mall. Mrs Wang was carrying a handbag containing the takings from one of the bakeries she and her husband operated. They returned to the van Mrs Wang had parked in the carpark. She got into the driver’s seat. Edmund got into the front passenger’s seat. Mrs Wang placed her handbag on the console in between the front seats.
[10] Before the front passenger door closed, Mr Shadrock reached inside the car across in front of Edmond, seized the handbag and ran back to the Nissan that he had left in the adjoining aisle.
[11] At this point the second unexpected event occurred. Instead of acquiescing in her loss and perhaps calling for help, Mrs Wang made the fateful decision to pursue the thief. She pursued Mr Shadrock to where his vehicle was parked. On the closed-circuit surveillance film she could be seen running to the front driver’s side of his vehicle. As it reversed at speed, she could be seen (and was seen by witnesses) in front of the vehicle, possibly with her hands on the bonnet, until the Nissan disappeared from view behind a tree.
[12] Precisely what happened after that was the subject of extensive evidence and analysis at trial. It is clear that as the vehicle reversed, Mrs Wang moved towards the other side of the bonnet. The vehicle slowed rapidly and stopped when its exit onto an accessway which would have permitted egress from the carpark was blocked by a vehicle, a Rav 4, entering the carpark. The driver of that vehicle sounded her horn and the Regulus came to a sudden halt.
[13] By this time Mrs Wang had moved towards the passenger’s side of the vehicle. Some witnesses said that at one stage she was on the left hand side. One placed her close to the passenger’s door. By the time the Nissan moved forward, the preponderance of evidence indicates that she was level with the front of the vehicle and towards the left of the bonnet. She may well have been holding on to the mirror (which was mounted on the front passenger mudguard) as Edmund’s evidence suggests.
[14] Mrs Brown, the driver of the vehicle that had blocked the exit and who had a good view of what happened next, said that as the vehicle accelerated forward she saw Mrs Wang take four rapid steps backwards before the left front of the vehicle passed over her foot. It appears probable that this caused a leverage effect which resulted in an accelerated fall. Mrs Wang’s head hit the ground. She sustained non- survivable brain injuries from which she died early in the morning of the following day.
[15] The Nissan Regulus continued to accelerate and left the carpark at speed, colliding with another vehicle which was backing out of a car space. It was followed closely by the Mitsubishi Delica which had been parked nearby and whose occupants had seen what happened. The participants rendezvoused and divided up the cash found in Mrs Wang’s handbag.
[16] The following day, after news that Mrs Wang had died got out, Mr Shadrock took steps to cover his tracks. On the evening of Tuesday, 17 June, he went to the house where Mr Tuikolovatu was staying and asked him if he could hide the handbag there. Mr Tuikolovatu agreed. It was found concealed in a bedroom when a search warrant was executed on the morning of 19 June.
[17] Later, on the Tuesday evening, Mr Shadrock went to the home of Mr Tere and offered him $300 to destroy the Regulus which had been abandoned at Rochas Place in Manukau. Mr Tere enlisted the help of Messrs Lynch, Tekanawa and Lemanu. Mr Tekanawa borrowed a car from a friend. He and Mr Lemanu, I find, purchased petrol that was later used to burn the Regulus. The four went to Rochas Place. Mr Tere and Mr Lynch drove it to a carpark at the Manukau Velodrome where, after pouring petrol in and on the vehicle, they set it alight. Mr Lemanu and Mr Tekanawa drove the borrowed vehicle to a location nearby to assist them in the getaway. The vehicle was completely destroyed. It is likely that important forensic evidence was destroyed with it.
Victims
[18] I acknowledge the presence here in Court today of Mrs Wang’s husband and her mother and father who, might I add, were a quiet and dignified presence throughout the trial.
[19] The victim impact statements, as all will have heard, are heart-rending. Mrs Wang was a deeply loved mother, wife and daughter. She was hugely talented and resourceful, warm-hearted and devoted to her family. The loss to the family and the pain of her death are clear from the passages that were read to the Court by Ms Gordon. They speak for themselves. I need say no more.
Maka Tuikolovatu
[20] Mr Tuikolovatu, I will deal with your sentence first. You were found guilty of being an accessory after the fact to murder, having allowed Mr Shadrock to conceal the stolen handbag at your house. You were found not guilty of involvement in the theft.
[21] You are aged 22. You were just under 20 at the time of the offending. You are of Tongan descent, born in New Zealand and the middle child of two sisters and four brothers. You describe your relationship with your family as “quite good”.
[22] You have been in a relationship which has now come to an end. You and your former partner have a daughter, now aged three. You maintain contact with them.
[23] You report that you have rarely been employed and have no career aspirations. It appears that you have been involved with the Killer Beez gang, according to the pre-sentence report, since the inception of the gang.
[24] You were before the Youth Court as a 15-year-old and have offended regularly since then. You have 26 convictions, most for dishonesty offences. You have received four short sentences of imprisonment, preceded by three community work sentences and one of three months supervision.
[25] You are assessed as at high risk of reoffending. The probation officer reports that you lack insight into your offending and its impact on others. You did not convey any remorse to the probation officer who observes that until you gain victim empathy and insight into your offending, and cease your gang associations, you are destined to continue the current pattern of offending. I note, however, Mrs Northwood’s submission that you now express regret for your involvement in the offending.
[26] The Crown and the your counsel agree that a starting point for your sentence of 18 months imprisonment is appropriate. It seems to be generally within the range of sentences imposed where someone has assisted in disposing of or concealing an incriminating article following a murder. See, for example, the cases of R v Tavita,[1]
[1] R v Tavita HC Auckland CRI-2009-092-5263.
R v Moala[2] and R v Ovalau.[3]
[2] R v Moala HC Auckland CRI-2006-092-000461.
[3] R v Ovalau HC Auckland CRI-2006-092-10484.
[27] I tend to the view that a slightly lower starting point could be warranted to take account of the fact that, unlike the prisoners in the cases I have referred to, you took no active steps to conceal the handbag. Yours was a passive role. However,
having regard to your previous offending and the fact that the offending occurred
while you were on bail, I consider than an uplift to a final sentence of 18 months is warranted.
[28] As you have heard, the probation officer has recommended the imposition of special conditions to extend past your sentence end-date. One of those is that you do not approach, enter or remain around the premises of specified shopping centres without the prior written approval of a probation officer. That recommendation is based on police advice that you are a notorious “handbag grab” thief. I cannot, however, accede to the suggestion that that condition be imposed and I note that it is not supported by the Crown. I can only sentence you for offences of which you have been convicted. I cannot impose conditions based on rumour, no matter how well informed they may be.
[29] Accordingly, the sentence that I will impose on you is one of 18 months imprisonment, associated with all of the conditions recommended by the probation officer, except for the first.
Lionel Tekanawa
[30] Mr Tekanawa, you appear for sentence having been convicted of being an accessory after the fact to murder. You were found not guilty of being a party to the theft. Your role in the burning of the Regulus was to borrow and drive the vehicle that was used as transport and, with Mr Lemanu, to buy the petrol and provide support to those who actually set fire to the Regulus. Mr Mansfield points out that the evidence does not establish conclusively that you and Lemanu bought the petrol but I consider it to be an available, indeed the obvious, inference from the evidence.
[31] You are 24 years of age, 22 at the time of the offending. You are of Maori descent. You grew up in Christchurch as the third eldest in a family of seven children. It was an unhappy home and you told the probation officer that “crime was all around” while you were growing up. You said it was “just a way of life”.
[32] At the age of 12 you were removed from the home and placed in the care of a welfare agency. You left school at the age of 15 with no qualifications. You have
since obtained a qualification in computing through a community education course and you are currently engaged in a Maori language course. You have been motivated to attend that because your daughter, now aged four years, is attending a kohanga school. Your partner, with whom you were living at the time of the offending, describes you as an “excellent father”, actively involved in your daughter’s life.
[33] You seem to have had limited work experience – short periods of temporary work only. You deny gang affiliations, although you accept that your co-offenders had affiliations with the Killer Beez and Tribesmen gangs. Screening indicates that you have a harmful pattern of alcohol abuse. You say you have abused drugs in the past but no longer. You were convicted for injuring with intent to injure in 2006. Since then, you have accumulated some twelve further convictions, most of them for offences of dishonesty. You were on bail when the current offending took place. I am told that there are currently outstanding charges against you.
[34] You are assessed as at medium risk of reoffending.
[35] I agree with the Crown that a higher starting point is required for you and the other offenders involved in the destruction of the Nissan Regulus. I accept that it involves a higher level of culpability than cases where evidence is simply hidden, as was the case with Mr Tuikolovatu, and that difference is more than minor. In addition to the wanton destruction of property involved, there is the level of premeditation. I agree with the Crown also that there is no reason to distinguish between the culpability of those who actually set fire to the vehicle and those who played a support role.
[36] The Crown has proposed some uplift to take account of your previous convictions and the fact that the offending was committed while on bail. I accept that some uplift would be justified on that account. However, I propose to set-off against it the personal mitigating factors referred to by Mr Mansfield – your relative youth, your qualities as a parent and your expressions of remorse which I accept to be genuine.
Vila Lemanu
[38] Mr Lemanu, you were also found guilty of being a party to the theft of Mrs Wang’s handbag and being an accessory after the fact. Your role, as I have said, was to join with the three others to destroy the Nissan Regulus. You and Mr Tekanawa purchased the petrol and provided transport and support to Mr Lynch and Mr Tere while they took the vehicle to the Valedrome and set fire to it.
[39] You are 25 years of age. You were 23 at the time of the offending. You are of Samoan descent. You come from a family of seven children, most of whom are described as having “respectable careers”, to use your words. You allowed yourself to be influenced by others. You left school at 13 years of age relying you say “on your friends and your wits to survive”. You have never held a stable job. You joined the Killer Beez gang which, on your own account, has become your “way of life”.
[40] You have 64 convictions for a range of offences, including dishonesty and property offences, driving charges and some offences of violence. You have served a number of short terms of imprisonment. You have acknowledged that your criminal associations have contributed to your ongoing offending. There are also indications of a harmful pattern of alcohol and drug abuse. You expressed remorse for your actions to the probation officer but he doubted its sincerity, reporting that you have limited insight into your offending. Your risk of reoffending is assessed as high.
[41] I have discussed the appropriate starting point for your role in destroying the Nissan Regulus in the course of sentencing Mr Tekanawa. Mr Tait argues for a starting point of 18 months on the basis that the offending is on a par with that in the cases of R v Tavita[4], R v Moala[5]and R v Ovalau[6]that I have already referred to.
However, as I have already said, I accept the Crown’s submission that the act of
setting fire to the Nissan Regulus involved a higher level of culpability than cases where the evidence is simply hidden (as was the case with Mr Tuikolovatu). I also share the Crown’s view that there is no reason to make any distinction between the culpability of those who actually set fire to the vehicle and those who played a support role.
[4] R v Tavita HC Auckland CRI-2009-092-5263.
[5] R v Moala HC Auckland CRI-2006-092-000461.
[6] R v Ovalau HC Auckland CRI-2006-092-10484.
[42] An uplift is required to take account of your involvement in the theft. There is agreement that the appropriate starting point is nine months imprisonment adopted by the District Court when sentencing Mr Harris, although I note that in oral submissions this morning Mr Tait submitted that six months was appropriate. I consider nine months is the appropriate starting point for sentence. The six months referred to by Mr Tait was the end-point for Mr Harris who, of course, pleaded guilty to his involvement in this crime. I consider there should be a further modest uplift – I had in mind three months – to take account of your previous offending.
[43] There are no relevant mitigating factors that I can see. Mr Tait has referred to your prospects of rehabilitation and your expressions of remorse. I have to say that there is little in the information before me to encourage the hope that you will be changing your ways. Similarly, I have reservations about the sincerity of your expressions of remorse.
[44] Mr Tait has put to me that some discount should be available to take account of the fact that you were prepared to enter a plea of guilty to the charge and would have done so had a satisfactory basis been available. I have been told that a proposal was put to your counsel by the Crown which might have made that achievable. That was rejected. In the circumstances, I do not feel able to grant any discount on that account.
[45] The sentence that I propose to impose on you, being the aggregate of two years as the starting point in relation to the sentence of being an accessory after the fact to murder, the three month uplift I have referred to and nine months imprisonment in relation to theft, is one of three years imprisonment.
[46] Mr Lynch and Mr Tere, I propose to defer further comment in relation to your personal background until the reports are available in relation to home detention.
Christopher Shadrock
[47] This takes me to you, Mr Shadrock.
[48] I have had the benefit of hearing about you, not just through the pre-sentence report but also from the letter written by your second cousin, Mr Daryl Watene. I have read carefully what he has written. It has provided an informed, sympathetic and sensitive perspective which I have found very helpful.
[49] You are now aged 23. You were 21 at the time of the offending. You are of
Maori ancestry.
[50] You had a disrupted and deprived childhood. You were born in Hamilton. Your parents separated when you were young and you were moved “back and forth” living in different households in different cities. Mr Watene says you were regularly under-nourished and, as a teenager, abused by your mother’s boyfriend. He describes it as a “Once Were Warriors” environment.
[51] You first appeared before the Court in 2002 at the age of 15. You were sentenced to supervision for multiple offences of dishonesty. You then moved from Hamilton to Otara to live with your mother. You admitted to the probation officer that there you mixed with the wrong crowd, abused alcohol and drugs, and supported yourself by stealing. You developed associations with the Killer Beez and Tribesmen gangs, although you deny being an active member of those organisations.
[52] Since 2005, you have been in what appears to be a stable and supportive relationship. You have a daughter aged two years. Your partner speaks highly of you. She and Mr Watene both say you have changed. She describes you as “more compassionate” and a “kind and caring and nurturing father”. Mr Watene speaks of
you as “gentle, loving, intelligent, caring, understanding, smart and kind-hearted”.
He says there is no doubting your determination to turn your life around.
[53] I have to say that you have a long way to go in order to achieve that. You have no significant employment history. You have a lengthy history of offending, mostly for dishonesty. You face a lengthy period of imprisonment that will test your resolve and your character.
[54] On the positive side and supporting the assessment of Mr Watene, you have no record of violence. You appear to have insight into your offending and genuine remorse. You hope to attend educational and work skill programmes whilst in custody to obtain some qualifications. You have previously responded well to conditions of sentence and the probation officer assesses the likelihood of your committing further offences of violence as low.
Minimum period of imprisonment
[55] There is, as you know, a presumption that a sentence of life imprisonment will be imposed for murder. It is accepted that there is no reason in this case to depart from that presumption and that is the sentence I will be imposing. I am also required to impose a minimum period of imprisonment. This is not, I emphasise, the term of imprisonment the prisoner will serve. It is the minimum sentence he must serve. Any decision on release after the minimum term of imprisonment has expired, will be made by the Parole Board.
[56] The minimum period of imprisonment cannot be less than ten years and must be the term which the Court considers necessary to satisfy the purposes set out in s 103 of the Sentencing Act and they are: first, to hold the offender accountable for the harm done to the victim and the community by the offending (s 103(2)(a)); second, to denounce the conduct in which the offender was involved (s 103(2)(b)); third, to deter the offender or other persons from committing the same or similar offences (s 103(2)(c)); and, fourth, to protect the community from the offender (s 103(2)(d).
[57] Under some conditions, a minimum period of 17 years or more must be imposed unless the Court is satisfied that it would be manifestly unjust to do so. Those conditions are set out in s 104 of the Sentencing Act, one of which the Crown submits is present in this case. The Crown submits that subpara 104(1)(a) applies because:
The murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice.
[58] It is submitted by the Crown that when you were hemmed in by the Rav 4 driven by Mrs Brown, you drove forward into Mrs Wang in order to escape. The Crown submits that the evidence establishes that Mrs Wang was in front of your vehicle and that you either intended to cause her bodily injury or drove forward into her knowing that death was likely to ensue. The Crown submits that, if the jury found you intended to cause bodily injury, you acted with the overall purpose of avoiding detection, prosecution or conviction for theft.
[59] Your counsel, as you have heard, submits that I should sentence you on the basis that you did not intend to cause bodily harm to Mrs Wang and that, for other reasons, s 104 is inapplicable.
[60] I need to explain that at trial the Crown presented its case on two alternative bases. The first, under s 167(b) of the Crimes Act, required a finding that you had deliberately hit Mrs Wang, intending to cause her bodily injury. Alternatively, the Crown said s 167(d) applied. That did not require a finding that you deliberately ran into Mrs Wang with the intention of causing her bodily injury.
[61] We do not know which route the jury took to reach its verdict. I cannot assume a finding that you intended to injure Mrs Wang. What I can take from the jury’s verdict, however, is that when you drove forward you at least knew that your action was likely to cause death. You must have foreseen a risk of injury.
[62] The Crown contends that Mrs Wang was in front of the vehicle and that it was inevitable that you would hit her. But there is an alternative scenario. That is that she was not in front – at least not directly in front – but positioned level with the
bonnet on or close to the passenger’s side. That view was certainly open on the expert evidence. It is consistent, in my view, with the evidence of Mrs Brown who had the best view of this part of the incident. She said that she saw Mrs Wang run backwards for four paces before the left wheel ran over her foot. That account of what happened also fits with the forensic and medical evidence of an accelerated fall caused by the leverage effect produced when the wheel went over Mrs Wang’s foot.
[63] In my view, that is the most likely way in which the accident occurred. I reject altogether, as the jury must have, your claim that you were not aware that Mrs Wang had followed you and was in the vicinity of your vehicle. As you reversed, Mrs Wang was right in front of you, yelling out as she chased after you. Witnesses a hundred metres away could hear her cries. I am in no doubt that you were aware of her presence. You knew that in accelerating forward there was a risk that an injury would occur which could lead to Mrs Wang’s death. But the evidence does not, in my view, establish that you deliberately drove into her.
[64] Rather, it indicates to me that in the heat of the moment, when you unexpectedly found your escape route blocked, you made the fateful decision to accelerate forward. That decision was made in a split second. The incident itself was over in seconds. The evidence was that from the time your vehicle came to a halt to the likely time when Mrs Wang fell was two seconds.
[65] In the circumstances, I do not accept that you caused the death of Mrs Wang in an attempt to avoid detection, prosecution or conviction. It was always part of the plan that you would drive off with the bag. You did nothing as a result of Mrs Wang being present that you would not have done anyway. What happened was a consequence of the criminal endeavour, not an end in itself.
[66] This analysis of what occurred, consistent with the jury’s verdict and supported by the evidence, is in keeping also with what I know about you. I have already commented on the fact that, although you have been in constant trouble with the law, conspicuously absent are any convictions for crimes of violence. There is nothing to indicate that you have a propensity for violence. There is nothing in your past to suggest that you would have deliberately set out to cause injury.
[67] For the purpose of determining the minimum period of imprisonment which I should impose, I am required to take account of any aggravating features. As you will have heard, the Crown has identified five:
a) That the offending involved actual violence and the use of a weapon; b) The loss of life which followed and the effect on Mrs Wang’s family; c) There was particular cruelty in the commission of the offence;
d) Mrs Wang was particularly vulnerable; and finally e) The premeditation involved in the offending.
[68] The violence involved in the offending and the use of the vehicle as a weapon as well as, of course, the death of the victim, are essential elements of the offence. I accept that your knowledge of the presence of a child at the scene may appropriately be seen as an aggravating factor, but I do not accept that there was particular cruelty involved in the offending in the sense that you consciously and deliberately acted with an awareness of the likely effect on the child. Nor do I accept that Mrs Wang was particularly vulnerable in the sense contemplated by the Sentencing Act which, as pointed out by Mrs Wilkinson-Smith, refers to a person who by virtue of age, state of health, or some other factor was especially vulnerable. While there was undoubtedly premeditation involved in the planning and execution of the bag snatch, the murder itself was clearly the result of a spontaneous act.
[69] In my view, the relevant aggravating factors of your offending are to be found in the wider context in which it occurred and clearly warrant, as your counsel have conceded, an uplift in the ten-year minimum period of imprisonment. Mrs Wang ultimately was a victim of a criminal enterprise in which a gang of thieves embarked on a calculated plan to prey on law-abiding citizens going about their ordinary daily lives. What is even more reprehensible is the fact that the vulnerable, in the sense of women thought to be weak, were deliberately targeted on the assumption that they would not fight back. That, in my view, was a cowardly
and despicable element of the offending. The wider context, I accept also, appropriately includes the fact that when Mrs Wang did not simply accept the loss of her handbag, she was struck down in the sight of her son.
[70] These are aspects of the offending which engender alarm and understandable outrage in the community. They are factors which are of particular importance when giving effect to the need for a sentence that appropriately denounces the conduct and deters others from similar offending.
[71] I have been referred to a number of cases in which death has occurred as a result of a car being used as a weapon. Each turns very much on its own facts and I have found them of limited assistance. Cases such as R v Worrell[7]and R v
Gardner,[8] involved deliberate dangerous driving intended to cause serious injury and
bear no comparison to the present case. At the other end of the sentencing scale and in circumstances which involved aggravating features not present in this case, minimum periods of imprisonment of ten years were imposed in R v Fairburn[9] and
Kai v R.[10]
[7] R v Worrell HC Auckland CRI-2008-092-9884.
[8] R v Gardner [2008] 3 CL 125.
[9] R v Fairburn HC New Plymouth CRI-2008-043-000931.
[10] Kai v R CA381/03, 15 December 2004.
[72] In the end, I must make my own assessment having regard to the findings I have made on culpability and giving such weight as is appropriate to aggravating and mitigating factors personal to you. Aggravating factors are your previous record of offending and, of course, the theft which preceded the murder. Against these factors, I balance your relative youth and immaturity and what I accept to be genuine expressions of remorse. I accept also that it is appropriate to give you some credit for the steps taken before the trial to avoid exposing Edmund to any further trauma.
[73] Having regard to all factors, I have concluded that a minimum period of imprisonment of 12 years is appropriate.
[74] For completeness, I should add that, if my view that s 104(1)(a) of the
Sentencing Act does not apply is incorrect, I would have found by a significant
margin and, for obvious reasons, that it would have been manifestly unjust to impose a minimum term of 17 years. The case clearly falls outside the scope of the legislative policy behind s 104. I am inclined to agree also with Mrs Wilkinson- Smith’s submission that the facts which might have triggered the application of s 104 are of peripheral significance to the case.
Final remarks
[75] At this stage, I invite all six of you to stand up.
[76] Although Mr Shadrock was directly responsible for Mrs Wang’s death, all of you must accept some of the blame. Mr Shadrock did not act alone. He was supported and encouraged by others among you. On another day it could have been any of you driving that car. As one of the probation officers said, the unpredictability of human behaviour being what it is, in criminal activity there is the potential for any number of negative outcomes. You get involved in crime; you associate with criminals; you lose control of the consequences.
[77] You can’t do anything about what has happened. You cannot replace Mrs Wang in the lives of her family. Edmund must live the rest of his life without a mother’s love. You cannot take away the pain in his heart and the pain in the hearts of his father and grandparents.
[78] But all of you can all do something about the future.
[79] It was depressing to hear throughout the trial of the culture of idleness that pervaded your lives. Loafing around – “kicking back” as it was described – days playing Playstation, watching DVDs, drinking – all of them fertile breeding conditions for crime. It is truly said that the devil makes work for idle hands.
[80] Some of you have experienced disadvantages amounting, in Mr Shadrock’s case and in yours too, I believe, Mr Tekanawa, to quite severe deprivation. But all of you made the choices that led you here. Different choices can be made and must be made in order for you to break the cycle of crime in which you have been engaged.
Reject the false friendship of the gangs. Look to the achievers in your community as your mentors and models. Embrace the opportunities for education and retraining. If you do those things and other things like them - and you are all capable of it - something positive at least will have come from Mrs Wang’s tragic and needless death.
Final sentences
[81] Mr Shadrock, on the count of murder you are sentenced to imprisonment for life. You are to serve a minimum period of imprisonment of 12 years. On the charge of theft, you are sentenced to one year’s imprisonment, to be served concurrently.
[82] Mr Tuikolovatu, on the charge of being an accessory after the fact to murder, you are sentenced to18 months imprisonment.
[83] Mr Tekanawa, on the charge of being an accessory after the fact to murder, you are sentenced to two years imprisonment.
[84] Mr Lemanu, on the charge of being an accessory after the fact to murder, you are sentenced to three years imprisonment. On the charge of theft you are sentenced to nine months imprisonment, to be served concurrently.
[85] In your case, Mr Tuikolovatu, there are to be the additional release conditions which I have already specified.
[86] Mr Lynch and Mr Tere, your sentence is adjourned to 9.00 a.m. on Thursday,
22 July to enable me to consider a possible sentence of home detention.
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