R v Swinton - [2018] NZHC 2910

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-016-1092

[2018] NZHC 2910

THE QUEEN

v

HENARE RAUKOKORE SWINTON

Hearing: 9 November 2018 (Heard at Rotorua)

Appearances:

A J Pollett for the Crown

J P Temm for the defendant

Sentencing:

9 November 2018

SENTENCING NOTES OF JAGOSE J

Solicitors / Counsel:
A J Pollett, Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga J P Temm, Barrister, Rotorua

R v SWINTON [2018] NZHC 2910 [9 November 2018]

[1] Mr Swinton, you were found guilty by a jury of being an accessory after the fact of manslaughter. You now appear for sentencing. The maximum penalty for that charge is seven years’ imprisonment.

[2] I have listened to what counsel have had to say, both for you and for the Crown. For you, Mr Temm argues you should be sentenced to 12 to 15 months’ imprisonment. The Crown recommends a higher range: 21 to 24 months, and then perhaps with another six months on top to reflect your prior offending.

[3] However, I am not bound by counsels’ recommendation. I must satisfy myself of the appropriate sentence for the gravity or the seriousness of your offending, and including your culpability or responsibility for it.

[4] Your co-offender, Jared Te Moana, was sentenced by Justice Downs earlier this year to 15 months’ imprisonment.1 A key consideration in sentencing is the principle of ‘parity’; that is, making sure your sentence is consistent with his, given your respective levels of culpability. But he also pleaded guilty to his offending, which entitled him to a sizeable discount; you were found guilty by a jury, which does not.

Your offending

[5] As accessories, your and Mr Te Moana’s offending took place in the wake of a killing. Downs J described that background to the offending:2
On 26 November 2016, Mr Don Turei (junior) was killed by Mr Andre Taiapa. Mr Turei was driving a motorcycle; Mr Taiapa a van. Mr Taiapa ran Mr Turei down. Further detail is unnecessary, save the offending was gang-related. Mr Taiapa has pleaded guilty to manslaughter …

Mr Taiapa was sentenced to six years, four months’ imprisonment, with a minimum period of imprisonment of three years, two months.3

1 R v Te Moana [2018] NZHC 1480.
2 At [3].
3 R v Taiapa [2018] NZHC 1815.

[6] Downs J then went on to recount Mr Te Moana’s offending, and you have already heard that here today. Downs J said:4

You learnt what had happened. [This is him speaking to Mr Te Moana:] You and Mr Taiapa took the van elsewhere. You played a significant role in stripping it of its identifying features. At approximately 10 o’clock the same night, you and another drove the van to an isolated place on the banks of the Raukokore river. You and others set the van on fire to conceal any evidence or linkage to Mr Turei’s death.

[7] Mr Swinton, it is common ground…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Swinton

Details

AGLC: R v Swinton [2018] NZHC 2910
Case: [2018] NZHC 2910
Decision Date: 9 November 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the case of R v Swinton was heard and decided on 9 November 2018. Henare Raukokore Swinton, the defendant, was found guilty by a jury of being an accessory after the fact of manslaughter. The maximum penalty for this charge was seven years' imprisonment. The primary legal issue before the court was to determine the appropriate sentence for Swinton, considering the nature of his involvement in the crime and the principle of parity with his co-offender, Jared Te Moana.

The court examined the circumstances of the offence, which involved the concealment of evidence related to the gang-related killing of Don Turei by Andre Taiapa. Swinton's role included driving the van used in the crime to an isolated location on the banks of the Raukokore river, where it was set on fire to destroy evidence. The court noted that while Swinton was not present during the initial stripping of the van's identifying features, his participation in relocating and burning the van was significant. The judge rejected the defence's argument that Swinton's culpability was limited to driving the van, finding instead that his actions were part of a continuous course of conduct aimed at suppressing evidence.

The court established a starting point of 21 months' imprisonment, consistent with the sentence imposed on Te Moana and other similar cases involving the destruction of evidence in gang-related crimes. The judge then considered Swinton's personal circumstances, including his recent employment as a fitter and welder and his expressed desire to move away from his gang involvement. A global discount of ten percent was applied, reducing the sentence to 19 months' imprisonment. The court declined to uplift the sentence based on Swinton's criminal history, finding no sufficient nexus between his past offences and the current crime. Additionally, Swinton was not entitled to the discount for pleading guilty, as he was found guilty by a jury.

In conclusion, Swinton was sentenced to 19 months' imprisonment for being an accessory after the fact of manslaughter. The judge also imposed specific release conditions as outlined in the pre-sentence report.

Orders