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…

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 Tae

Details

AGLC: R v Tae [2020] NZHC 1119
Case: [2020] NZHC 1119
Decision Date: 26 May 2020

CaseChat Overview and Summary

The defendant, Mr Akutino Tae, a sergeant-at-arms of the Tribesman Motorcycle gang, pleaded guilty to one charge of wounding with intent to cause grievous bodily harm to Mr Joshua Masters, the president of the Killer Beez gang. The Crown submitted that there were four aggravating features to the offending: extreme violence, use of a weapon, serious injury, and gang warfare. The defendant's counsel agreed that a starting point of 11 years’ imprisonment was appropriate but submitted that the offending fell between the uppermost end of band two and the low to middle range of band three. The court accepted that the offending had at least three aggravating features and that the appropriate starting point was 11 years’ imprisonment.

The court considered the aggravating features of the offending, the defendant's criminal history, his remorse, his strong family support and young child, the trauma he suffered at a young age which appears to have got him off track in his life, his responsibility in calming potential gang tensions and turning himself in, as well as his willingness to engage in rehabilitative courses on remand and in a restorative justice process. The court also gave the defendant a discount of 25 per cent for turning himself in and offering to plead guilty to this charge at the earliest opportunity. The court sentenced the defendant to seven years’ imprisonment for the offence of wounding with intention to cause grievous bodily harm.

The court did not impose a minimum period of imprisonment as it considered that the period of imprisonment imposed would be sufficient for the purposes of sentencing. The court considered it important that the defendant engages in rehabilitation programmes in prison and, when appropriate, in the community. The court recognised that the defendant is now at an age where he should see the downsides of continued life as a gang member and the upsides of life as a family man. The court emphasised that release on parole is not guaranteed but that the Parole Board will consider reports it has about the defendant's circumstances when he is eligible for parole. If it considers, then, that parole is justified the court would not want its decision, now, to stand in the way of that.

Orders