R v Tafutu

[2014] NZHC 657

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-001678 [2014] NZHC 657

THE QUEEN

v

TREVOR TAFUTU AND

SIMONA LIATOA

Hearing:                   3 April 2014

Appearances:

Charges:

Plea:

S L McColgan for Crown

P Eastwood for Defendant Tafutu
M Kan for Defendant Liato

Manslaughter Aggravated Robbery Assault on Female

Gulity

Sentenced:               3 April 2014

SENTENCING NOTES OF VENNING J

Solicitors:      Crown Solicitor, Auckland

Copy To:       P Eastwood, Auckland

M Kan, Auckland

R v TAFUTU AND LIATOA [2014] NZHC 657 [3 April 2014]

[1]      Trevor Tafutu and Simona Liatoa, you are for sentence in this Court having pleaded guilty to manslaughter, aggravated robbery and assault on a female.  You killed Michael Rapata and in the course of the incident leading to his death assaulted his partner.   The offence of manslaughter carries a maximum term of life imprisonment.

[2]      Mr Tafutu you knew about the deceased’s address and the fact that cannabis might be dealt there and might be present.  On the afternoon of 11 February last year both of you were with a group of associates drinking alcohol.  At around 7 o’clock that night both of you, together with a third party, Jason Tafutu, left in a car intending to go to the deceased’s home to get some cannabis.  You jointly discussed this as going to be “an earn”.  You were ready to use violence on the occupants as part of your plan in going there.

[3]      You directed Jason Tafutu to drive to the address and Mr Tafutu, you also told Mr Liatoa what he was to do when you got there.   When you arrived outside the deceased’s home in Three Kings where he lived with his partner the two of you went to their house and knocked on the door.  Immediately the deceased’s partner opened the door the two of you forced the door further open and went in.  Mr Liatoa you grabbed the deceased’s partner by her shoulders but told her you did not want to hit her.  She pulled away and went towards the front door.  Mr Tafutu you then punched her on the chin which caused her to fall into the lounge area.  You then went on to attack the deceased in the lounge causing him to fall to the floor.  You repeatedly punched him about the head while he was on the floor.  You then motioned for Mr Liatoa to come and help you.  Mr Liatoa you went over and you joined in and you started to punch the deceased as well.   While you were doing this you identified yourselves as being associated with a criminal gang.

[4]      Fortunately the deceased’s partner managed to escape from the property and ran to a neighbouring address and alerted the police.  The two of you left but before you did you stole four tinnies of cannabis from the address, and then went off in the car that you had been brought in.

[5]      In the meantime the deceased made it to the rear of the house where he sat down on a seat.  However, he subsequently suffered a heart attack, collapsed, fell to the ground and died.  His partner was present with him when he died.  The deceased suffered from diabetes and heart disease.  The assault by the two of you on him was a contributing cause to the heart attack, which resulted in his death.

[6]      Later that evening you were both located by the police.  Mr Liatoa you said you had gone to the address over a gang related matter.  You said Mr Tafutu was a member of the King Cobras and described it as a ‘taxing’ incident.  Mr Tafutu you declined to comment.  The third member of your group has been dealt with by the

District Court.1   The Judge accepted in dealing with him rather leniently that he was

very much a third party and also a much younger man under the influence of the two of you and had remained in the car throughout.

[7]      In imposing sentence upon you I am directed to consider the purposes and principles of the Sentencing Act 2002.

[8]      In the present case the most relevant considerations are denunciation and deterrence.  This sort of behaviour is not to be tolerated in our society.  The Court is also directed to have regard to the interests of the victims and the need to protect the community from people such as you who are prepared to act in this way and carry out attacks of this sort.  I have read the victim impact report.  It makes it clear to the Court the significant impact that your offending has had on the deceased’s partner and his family.  You will have both seen and been through that victim impact report. You have both engaged in restorative justice meetings with the deceased’s family and the other victim.  I hope that that has given you some measure of insight into the effect of your offending on the victims in this case.

[9]      I consider the following aggravating features are relevant in this case:

(a)       the degree of planning and premeditation.   You intended to go the

deceased’s house and if necessary, to mete out violence there to get

cannabis from him;

1      R v Tafutu DC Auckland CRI-2013-004-001961, 12 September 2013.

(b)      there is an aspect of home invasion.    Your offending involved the

unlawful entry into the deceased’s and his partner’s home;

(c)       the use of violence and obviously the extent of the harm and that your actions had contributed to and caused the death of the deceased.

[10]     The Crown has also sought to make something of the gang references but on the information before the Court I do not place much weight on them.   In my assessment this was more basically a case of two thugs who had been drinking, looking to obtain drugs without paying for them.  It was no more sophisticated than that.

[11]     In charging you with manslaughter the Crown accepts that the assaults were not the sole or indeed primary cause of death given the deceased’s pre-existing health  conditions.    Nevertheless  your  unnecessary  assault  on  the  deceased  was clearly a significant and contributing factor to his death.

[12]     In assessing the appropriate sentence I have also had regard to the cases of R v Taueki;  R v Tai;  R v Mako;  R v RJN;  R v Neketai & Rawiri;  and R v Matautia & Langi.2

[13]     The Crown submits the appropriate starting point is in the region of eight to nine years’ imprisonment.

[14]     For you Mr Tafutu, Mr Eastwood argued for a starting point of around seven years with reductions for the guilty plea and for you Mr Liatoa, Mr Kan argued your were effectively a secondary party.  Your culpability was less than that of Mr Tafutu and that should be reflected in the end sentence.  He has also made the point that you have spent time on electronically monitored bail and has referred to the positive

report from the restorative justice meeting.

2      R v Taueki [2005] 3 NZLR 372 (CA); R v Tai [2010] NZCA 598; R v Mako [2002] 2 NZLR

170;  R v RJN HC Hamilton CRI-2009-019-9786, 30 September 2010;  R v Neketai & Rawiri
[2013] NZHC 2711; and R v Matautia & Langi HC Auckland CRI-2006-092-013486, 29
November 2007.

Mr Tafutu

[15]     Mr Tafutu, as I said at the earlier sentence indication hearing, I consider the appropriate starting point to reflect the totality of your offending and your culpability in this case to be eight years, three months.  An uplift is required for your personal aggravating features, namely your previous offending, which discloses a propensity for violence.   Prior to this offending you had eight assault convictions, two male assaults female convictions and one wounding with intent conviction.  Further you committed this offending while subject to standard release conditions imposed on a previous sentence.  You were also under a direction to come up for sentence if called upon on a charge of speaking in a threatening way.   An uplift of nine months is required. That takes the start point for you to nine years’ imprisonment.

[16]     I then turn to your personal circumstances.  The pre-sentence report is frankly a mixed one Mr Tafutu.  As the probation officer notes your persistent offending and disregard of authority suggests you hold little regard for the rights and feelings of others.  There is also a suggestion in the report that you are attempting to minimise your responsibility for the attack and assault on the deceased’s partner.  That does you no credit at all.  It also leads the Court to take the view that your expressions of remorse must be taken with a grain of salt.   However, against that there is the suggestion in the report that you finally appear to have gained some self insight and some shift in your entrenched and anti-social attitudes.   You have expressed willingness to take responsibility for your actions which caused the death of the deceased.  You also did willingly attend the restorative justice meeting although in your case it was not as successful as that of Mr Liatoa.

[17]     In the circumstances I consider that giving you credit for the positive features that I have identified but mainly for your guilty plea, which avoided the need for the victim in particular to give evidence at trial and to be put through the experience of reliving the incident again, leads to an end sentence for you of six years, 10 months’ imprisonment.

Mr Liatoa

[18]     Mr Liatoa in your case I accept you were a secondary party in this venture. Mr  Tafutu  took  the  lead,  you  followed.    However,  you  were  still  an  active participant.   In my judgment the appropriate start point to reflect your particular culpability is seven  years, six  months.   You also have previous offences which display a propensity for violence.  You have two convictions for assault, two of male assaults female, and a charge of conviction for injuring with intent.  I accept that the last of those violent offences occurred in 2000, and that you have not been before the Court on anything since 2008.   Unlike Mr Tafutu  you were not subject to any sentence or other Court orders at the time of the offending.  The uplift required in your case is six months.  The starting point is eight years before taking account of your personal mitigating factors.

[19]     In your case there are more positive features displayed in the pre-sentence report.   The probation officer notes you have expressed willingness to engage in appropriate interventions to address your issues with substance abuse and violence. You expressed genuine regret and remorse about your involvement in the current offending.  You acknowledged the effect your offending had on the victim’s partner. You told the probation officer you never saw yourself as someone who could take a life  and  for  that  fact  you  are  truly sorry.    The  probation  officer  considers  you expressed genuine remorse and a desire to take appropriate measures to deal with the issues that were significant contributing factors to your offending.  As noted in your case the report of the restorative justice meeting was a positive one.   In the circumstances, taking account of the positive report, the time you have spent on EM bail and the guilty plea I consider in your case an end sentence of five years, 10 months to be appropriate.

[20]     I do not consider that a minimum period of imprisonment other than the standard minimum non-parole period is required in the circumstances of this case, given the factors that I have discussed.

[21]     Please stand.   Mr Tafutu on the charges of manslaughter and aggravated robbery you are sentenced in each case to imprisonment for six years, 10 months.

For the assault on female you are sentenced to 18 months’ imprisonment.   The sentences are concurrent.

[22]     Mr Liatoa on the charge of manslaughter and aggravated robbery you are sentenced in each case to five years, 10 months’ imprisonment.   On the charge of assault on a female you are sentenced to imprisonment for 12 months. The sentences

are concurrent.  Stand down.

Venning J