R v Tae

[2020] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-4493

[2020] NZHC 1119

THE QUEEN

v

AKUSTINO TAE

Hearing:	26 May 2020
Appearances:	D Muratbegovic for the Crown L O Smith for the Defendant
Sentencing:	26 May 2020

SENTENCING BY PALMER J

Counsel/Solicitors:

L O Smith, Barrister, Auckland

Kayes Fletcher Walker, Crown Solicitor, Manukau

R v TAE [2020] NZHC 1119 [26 May 2020]

Introduction

[1]                  Mr Okusitino Tae, aged 40, is sergeant-at-arms of the Tribesman Motorcycle gang. Mr Joshua Masters is the president of the Killer Beez gang. Mr Tae has pleaded guilty to one charge of wounding with  intent  to  cause  grievous  bodily harm  to  Mr Masters on Friday 26 April 2019. The offence carries  a maximum sentence of  14 years’ imprisonment. I sentence him today.

Approach to sentencing

[2]                  Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002 (the Act). In this case, I have particular regard to the purposes of holding Mr Tae accountable for the harm done to the victim and community; promoting in Mr Tae a sense of responsibility for, and acknowledgement of, that harm; denouncing Mr Tae’s conduct; deterring similar future offending; protecting the community from him; and assisting in his rehabilitation and reintegration.

[3]                  In terms of principles I take into account, in particular: the gravity of the offending and the degree of Mr Tae’s culpability; the desirability of consistency of sentences for similar offending; the information I have about the effect of the offending on the victim; Mr Tae’s personal and cultural background; and I impose the least restrictive outcome that is appropriate in the circumstances.

What happened?

[4]                  Mr Tae and Mr Masters have known each other for a long time. But tensions developed between the Killer Beez and the Tribesmen after Mr Masters was released from prison in October 2018. On the afternoon of Friday 26 April 2019, Mr Masters, wearing a distinctive white leather vest, took a motorbike for a test run at the Auckland Harley Davidson dealership. After he left, Mr Tae arrived and stood in the service area. Mr Masters then returned.

[5]                  Mr Tae recognised Mr Masters, moved towards the service entrance and produced a black semi-automatic 9 mm pistol from his pocket. Mr Masters stopped

outside the entrance on his motorbike. Mr Tae fired one shot at Mr Masters which travelled through his left arm, into his side, and became lodged in his spinal canal. Mr Masters fell to the ground and his motorbike landed on top of him.

[6]                  A second bullet was automatically reloaded into the pistol’s chamber after the first shot. However, Mr Tae failed to notice this and attempted to manually reload by pulling the slide back, which ejected the chambered round into the breech and caused the pistol to jam. Mr Tae then moved towards Mr Masters and pulled the trigger twice more, but the pistol failed to fire. He continued walking, and again pulled the pistol slide back, which ejected the only remaining bullet in the pistol. Mr Tae then stood over Mr Masters and pointed the pistol at his head. He pulled the trigger again, but the pistol did not fire as there were no remaining bullets in it. Mr Tae said something to Mr Masters, possibly “I told you not to come around here”, then walked to his car and left the scene.

[7]                  Mr Tae has told Corrections that he shot Mr Masters out of impulse and a fear that he himself would be shot, that he did not intend to hurt him and did not consider the consequences of his actions when he fired the gun. Mr Tae told a psychologist he believed Mr Masters was coming after him and thought he was reaching for a gun. Mr Masters lived. But he is now a paraplegic and will require caregiver assistance for the rest of his life. He declined to make a victim impact statement. But it is fair to presume that the impact of the offending has been severe, irreparably worsening his quality of life.

[8]                  Within an hour of the shooting, Mr Tae notified the Police through counsel that he would be handing himself in. Late that evening, he presented himself at the Manukau Police Station and handed over the pistol used in the incident, as the Police requested. He was initially charged with attempted murder but I gave leave today for the Crown to withdraw that charge. Mr Tae has pleaded guilty to wounding with intent to cause grievous bodily harm.

Starting point

[9]                  Mr Tae, in sentencing you, I first set a starting point to reflect the seriousness of the offending. There is a guideline judgment by the Court of Appeal about sentences

for grievous bodily harm, R v Taueki.1 The Court there identified a number of factors about the seriousness of this form of offending, and established three overlapping sentencing bands of starting points for imprisonment based on those factors:

(a)band one is three to six years, for violence at the lower end of the spectrum;

(b)band two is five to 10 years, for offending featuring two or three aggravating features;

(c)band three is nine to 14 years, for offending with three or more aggravating features, where the combination is particularly grave.

Submissions

[10]              Mr Muratbegovic, for the Crown, submits that there are four aggravating features to your offending: extreme violence; use of a weapon; serious injury; and gang warfare. He submits your offending is most similar to that in Huata v R, it falls in the centre of band three and I should adopt a starting point of 11 years’ imprisonment.2 Mrs Smith accepts, on your behalf, the aggravating features of the offending identified by the Crown. She submits the offending falls between the uppermost end of band two and the low to middle range of band three. She agrees a starting point of 11 years’ imprisonment is therefore appropriate. But she took me through some of the case law in case I disagree.

Decision on starting point

[11]              I accept your offending had at least three aggravating features. You used extreme violence, you used a lethal weapon and you caused serious injury. You tried to do much worse. I am not quite so sure about the extent to which your offending derived from gang warfare. You had known Mr Masters a long time. He recruited you into the Tribesmen at a young age. It appears he came to visit you before the offending and you were fearful for the safety of yourself and your family. It is not

1      R v Taueki [2005] 3 NZLR 372 (CA).

2      Huata v R [2013] NZCA 470.

entirely clear to me that your offending was only because of tensions between the gangs.

[12]              But three aggravating factors, the combination of which is particularly grave, are enough to take your offending into band three. It was clearly at the serious end of the scale of wounding with intent to cause grievous bodily harm. You are fortunate not to be facing a more serious charge. Your offending is not dissimilar from that in Huata v R where two members of one gang shot a member of another at a petrol station in Wairoa.3 The gang warfare element was perhaps not as strong with your offending and there was less pre-meditation, but the consequences here would have been more severe if you had not jammed your gun by mistake. I accept the appropriate starting point is 11 years’ imprisonment.

Adjustments

[13]              Now I consider what adjustments to make to the starting point. Mr Tae, you have a criminal history, including relating to drugs, violence, weapons, dishonesty and alcohol that dates back to 2000. But your last offence involving serious violence was in 2012. Corrections assesses you as at high risk of harm and medium risk of offending, given what happened. Against that, before you turned yourself in, you met with members of the Tribesmen and Killer Bees to agree there would be no trouble arising from the shooting and there would not be the usual gang presence at court hearings. The Police were kept  informed  throughout  of  what  was  happening.  You offered to engage in restorative justice but that was declined.

[14]              You have been in a relationship with your partner for eight years. She has a 12-year-old son who you help to care for as your own and you have a two-year-old together. Your partner says you are a very good partner and father. You were previously employed full-time with a window installation firm and I am told you can return to that work on release.

3      Huata v R, above n 2. And see R v Raroa [2012] NZHC 1280 and R v Duncan [2012] NZHC 1814, Tahuri v R [2013] NZCA 254.

[15]              I have been provided with two reports under s 27 of the Act, from Mr van Rensburg, a clinical psychologist, and Ms Nickel, a cultural report writer. I have found them both helpful to me in better understanding your circumstances. I note the following advice from these reports:

(a)You are the second oldest of four children, born in New Zealand to Tongan parents. Your mother died when you were a teenager which had a significant impact on you and your family. Your family foundation began to break into pieces. You are of Tongan descent, but Tongan cultural values and connections have eroded in your family. You turned to gangs, drugs and negative associates. Joining the Tribesmen gang has given you a sense of belonging you did not experience at school, in your family or at church.

(b)You have not used drugs much since 2011. After your release from prison then, you met your current partner and, according to her, “turned into a family man”. Mr van Rensburg urges that, on sentence, you should be placed in a prison in Auckland to enhance the prospect of maintaining these family ties. I strongly agree and ask the Department of Corrections to consider that.

(c)You were once close friends with Mr Masters. But that relationship changed. You were worried about him posing a danger to you and your family and felt the need to protect them. You told Ms Nickel you “need to pay” for what you have done to Mr Masters. I accept you are remorseful about you leaving him wheelchair-bound. I am more sceptical about  you  contemplating  leaving  the  Tribesmen,  though  I have no doubt that that would be good for you and, importantly, for your family. Listen to your partner about that.

Submissions on adjustments

[16]              Mr Muratbegovic accepts no uplift to your sentence is necessary for your previous convictions, given their relative age. He submits no separate discount should be afforded for your handing in the pistol. He submits the s 27 reports are of limited

relevance and do not justify a discount on sentence. He acknowledges a small discount of perhaps five to 10 per cent may be available. That would reflect the trauma you suffered in losing your mother at a young age, which may have indirectly contributed to joining a gang, and to reflect your engagement in rehabilitative courses while on remand. However, he submits a degree of caution is required about your rehabilitation potential,  as   you   have   continued   to   offend   throughout   your   adult   life.   Mr Muratbegovic also submits that your remorse needs to be considered in light of your continued claim to have acted in pre-emptive self-defence and being reluctant to talk about what lay behind it. He says your patch is the most significant obstacle to rehabilitation. He acknowledges you are entitled to a full discount for turning yourself in and pleading guilty.

[17]              Mrs Smith, on your behalf, submits I should make a healthy discount to your sentence for you turning yourself in on the day of the shooting, for handing in the pistol, for meeting with the gangs to dampen down fallout from the shooting and for offering to participate in restorative justice. She submits the report of Ms Nickel, coupled with that of Mr van Rensburg, justify a discount to your sentence of 30 per cent. Mrs Smith emphasises your family history and isolation from positive influences early in life, your intention to rehabilitate yourself and your support from your partner. She submits you should have the full 25 per cent discount for an early guilty plea and there is no reason why you should not have it because your offer to plead guilty to this charge was made within five days of the shooting. She submits there was every reason for you to not give the pistol to the Police but, responsibly, you did.

Decisions on adjustments

[18]              I accept no uplifts are required for your previous convictions, which are relatively old now. I consider a discount of 19 months, or around 15 per cent, is warranted for: your remorse; your strong family support and young child; the trauma you suffered at a young age which appears to have got you off track in your life; your responsibility in calming potential gang tensions and turning yourself in; as well as for your willingness to engage in rehabilitative courses on remand and in a restorative justice process. I also give you a discount of 29 months, or around 25 per cent, for turning yourself in and offering to plead guilty to this charge at the earliest opportunity.

Minimum period of imprisonment.

[19]              Under s 86 of the Sentencing Act, I can impose a minimum period of imprisonment. That would be the period before you could apply for release on parole. Otherwise, you would be eligible to apply for release after one third of your sentence. I can only impose a longer minimum period of imprisonment if I am satisfied the period otherwise applying would be insufficient for the purposes of holding you accountable, denouncing your conduct, deterring others or protecting the community. The minimum period must not exceed two thirds of the full term of the sentence.

[20]              Mr Muratbegovic submits a minimum period of imprisonment of 50 per cent should be imposed, because a fair-minded member of the community would consider parole when otherwise eligible would be insufficient to achieve the purposes of sentencing. Mrs Smith submits a minimum period of imprisonment is not necessary because the letters written in support of you show you have the capacity to respond to rehabilitation programmes.

[21]              I consider the period of imprisonment I impose will be sufficient for the purposes of sentencing. I consider it is important that you engage in rehabilitation programmes in prison and, when appropriate, in the community. You are now at an age where you should see the downsides of continued life as a gang member and the upsides of life as a family man. Release on parole is not guaranteed. But the Parole Board will consider reports it has about your circumstances when you are eligible for parole. If it considers, then, that parole is justified I would not want my decision, now, to stand in the way of that. I do not impose a minimum period of imprisonment.

Sentence

[22]              Mr Tae, please stand. Mr Tae, I sentence you to seven years’ imprisonment for the offence of wounding with intention to cause grievous bodily harm. You may sit.

Palmer J