R v Taiapa

[2018] NZHC 1815

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-016-1092

[2018] NZHC 1815

THE QUEEN

v

ANDRE ROBERT TAIAPA

Hearing:

20 July 2018

(Heard at ROTORUA)

Appearances:

A J Pollett for Crown E A Hall for Defendant

Judgment:

20 July 2018

SENTENCING REMARKS OF LANG J

R v TAIAPA [2018] NZHC 1815 [20 July 2018]

[1]                  Mr Taiapa, you appear for sentence today having pleaded guilty to a charge of manslaughter. The maximum sentence for that charge is one of life imprisonment.

[2]                  You pleaded guilty on the basis of a summary of facts with which you agreed at the time you entered your guilty plea. As I will shortly outline, you now resile from aspects of the summary, but the summary forms the basis on which I am required to impose sentence.

The facts

[3]                  The charge was laid as a result of an incident that occurred on the afternoon of 26 November 2016. You have long been a member of the Porirua Mongrel Mob. In November 2016, you were visiting the East Cape region because of an event that was occurring involving the Mongrel Mob in that region. You were therefore a visitor to the area.

[4]                  On that day there was a wedding in the area involving members and associates of the Tribesmen gang. Clearly that gang is a rival to the Mongrel Mob as the events of that day demonstrate. These people were in the area for a wedding. The service was to be held in a church not far from the Mongrel Mob headquarters. The function after the service was to be held at the Waihau Bay Fishing Lodge.

[5]                  The summary records that members of the Mongrel Mob took exception to the presence of the patched Tribesmen members in their area. There was a series of incidents during the afternoon in which the Mongrel Mob stood on the roadway in the vicinity of their headquarters harassing passing motorists. They also sought to harass members of the Tribesmen group who were attending the wedding at the church up the road. I place no significance on that fact for present purposes because there is no suggestion in the summary that you were part of that group.

[6]                  During the course of the afternoon it appears that some form of agreement was reached between the two groups. The Tribesmen apparently agreed they would not wear their patches whilst in the area. The summary does not record whether you were party to, or knew of, that agreement.

[7]                  The critical events for present purposes occurred at about 2.30 pm. At that time Mr Don Turei and his brother arrived in the area of the Mongrel Mob headquarters on their way to the reception at the Waihau Bay Fishing Lodge. Other members of their group had passed through the area at about 1 pm, and had been generally harassed by the Mongrel Mob who were on the road. Members of the Mongrel Mob, including you, were still on the road at 2.30 pm.

[8]                  I infer from the summary that members of the Mongrel Mob harassed Mr Turei and his brother. Eventually, however, they were able to make their way through the Mongrel Mob members and resume their journey down the road.

[9]                  You and others at that point decided to pursue the two Tribesmen members. You got into your Honda Odyssey motor vehicle accompanied by other members of the Mongrel Mob. You then drove down the road after Mr Turei. It took some time for you to catch him up, and it is not clear from the summary whether he was aware you were pursuing him. What is clear, however, is that you deliberately steered your motor vehicle into the rear of Mr Turei’s motorcycle. You did so with sufficient force to jam the rear wheel of the motorcycle under the front of your car. This caused the rear wheel of the motorcycle to jam, and your vehicle pushed the motorcycle along the road for some 70 metres. This is established by a skid mark that was left on the roadway. Eventually, the motorcycle and Mr Turei ended up in a ditch outside a marae where persons were attending an unveiling.

[10]              You and your associates did not stop to provide aid to Mr Turei. Instead, you turned your vehicle around and stopped in the area where he was lying in the ditch. The summary records that people in your car were then yelling gang slogans and making barking noises directed towards Mr Turei, who was lying severely injured in the ditch. You and your associates then drove away from the scene without ascertaining whether he was injured and whether you might be able to render him assistance.

[11]              Those who were present must have been mortified by what they found. They did what they could to save Mr Turei, but, sadly, he succumbed to his injuries at the scene.

[12]              The summary records that you and your associates returned to the Mongrel Mob headquarters and there you boasted about what you had done. Arrangements were then made to remove identifying features from your vehicle and other persons then tended to its partial destruction.

[13]              It seems that you returned to Wellington, and it took an extremely lengthy police investigation to establish that you had been responsible for Mr Turei’s death. The prosecutor advised me today that, when you were first asked about the matter by the police, you gave them a false version of events.

[14]Those are the background facts on which I am required to sentence you.

Sentencing Act 2002

[15]              In sentencing you I must take into account the purposes and principles of sentencing set out in the Sentencing Act 2002. In the case of offending that has caused the loss of a life in circumstances such as this, issues of deterrence, denunciation and the need to hold the offender accountable are to the forefront. Importantly, however, I am also required to impose a sentence that is broadly consistent with those imposed in other similar cases. I use the words “broadly” and “similar” advisedly because in this area no two cases are ever the same.

Victim impact statements

[16]              One of the factors I am required to take into account is the interests of the victims of the offending. Obviously, the primary victim here was Mr Turei. He lost his life at a young age. He will never be able to enjoy the company and pleasures to be obtained from his mokopuna. He will not be able to hold them in his arms or to give them presents. But the consequences of the offending go so much wider than that.

[17]              Prior to sentencing today I received measured yet heartfelt victim impact statements from members of Mr Turei’s family. Today, you have heard two of those read in open Court. They tell of the heartbreak and loss this family has suffered as a result of their loved one being snatched away from them needlessly in the prime of his

life. This offending has been catastrophic for Mr Turei’s family. It will be many years before they can get over it, indeed if they are ever able to.

Starting point

[18]              The first step in the sentencing process is to set what is called a starting point for the sentence to be imposed on you. This is the sentence that reflects all of the aggravating factors of the offending, but puts to one side characteristics personal to you.

[19]              In their submissions counsel have referred to several sentencing principles. One of the most important of these is that there is no tariff or guideline judgment of our Court of Appeal setting starting points for manslaughter. That is for the obvious reason that this crime can be committed in so very many ways. What the Court is required to do is to assess all of the characteristics of the offending and then compare that with sentences imposed in other cases.

[20]              The starting point of course is that the offending has had terrible consequences. It has resulted in Mr Turei’s death and the loss to his family. That is the most serious consequence that can occur to any victim of a crime. Secondly, there can be no dispute that what you did was deliberate. You took your motor vehicle and you deliberately rammed it into the rear of Mr Turei’s motorcycle. In doing so you must have known the potential to cause him very serious injury was present. The fact that the Crown has been prepared to reduce the charge from one of murder to manslaughter reflects an acceptance by the Crown that you did not know, or know that there was a risk, that Mr Turei might die. Nevertheless, I am satisfied that you must have known there was a substantial risk he would suffer serious injury.

[21]              Secondly, your act continued for some time. It started when you left the Mongrel Mob headquarters and began pursuing Mr Turei. It then continued for 70 metres as you pushed his motorcycle down the road and eventually into the ditch. I accept that the offending was not premeditated in the sense that there was a predetermined plan to run Mr Turei off the road. Any plan, such as it was, was hatched at the Mongrel Mob headquarters after he had driven through. So it was a determined effort, but I accept it had very limited premeditation.

[22]              One of the most serious aggravating factors about the offending here was that it occurred solely as a result of gang tensions. There is nothing in the material before me to suggest that you knew Mr Turei, or even knew who he was. It would be surprising if you did given the fact that you come from Porirua. The only reason you pursued him was because he was wearing a Tribesmen patch. You and your associates believed he had no right to be on the road in your area but, Mr Taiapa, he had every right to be on that road. He was a member of the public just like any other member of the public. What he was wearing on his back detracted in no way from that. So you selected him as a target solely as a result of the fact that he was a member of a rival gang regardless of the fact that he had done nothing whatsoever to provoke you or to show disrespect to you. All he was doing was riding a motorcycle along a country road as he and his brother were quite entitled to do.

[23]              The involvement of gangs is a serious aggravating factor because it means that incidents like this can occur. Incidents that, in the case of any other person, would be unthinkable. Acts of serious violence committed solely because a person is a member of an opposing gang. I take that to be one of the most serious aggravating factors in this case and one that distinguishes this case from many others.

[24]              Of all the cases referred to me I have found two of particular relevance because they relate to the use of a motor vehicle effectively as a weapon against other persons. In the first of these, R v Haufano, the offender had driven his motor vehicle in pursuit of a pedestrian walking or running along the road.1 It seems that the vehicle did not reach great speeds, but nevertheless the offender drove the vehicle deliberately into the pedestrian and thereby killed him. The starting point selected by the sentencing Judge in that case was six years imprisonment.

[25]              I take your offending to be significantly more serious than that for two reasons. First, the offending in Haufano followed some kind of altercation involving the victim and the offender. Secondly, Haufano had no element of gang involvement.  By way of contrast, Mr Turei did nothing, as I have said, to provoke you. Your reaction to him being on the road flowed solely from your perception that he was flouting the authority

1      R v Haufano [2014] NZHC 1201.

of your gang by being there. So I consider the seriousness of your offending to be much greater than that of the offender in Haufano.

[26]              The other case is called R v Johnson.2 In that case a drunken offender deliberately drove her vehicle into a large mass of people. In doing so she killed one of those people and injured 15 others, four of them seriously. The sheer scale of the damage caused in that case takes it in my view into a different league from your offending. The starting point selected in that case was ten years imprisonment.

[27]              The Crown suggests that the starting point for your offending should be between 12 and 14 years imprisonment. It supports that submission by referring me to cases where several members of gangs have set upon a lone individual. I consider those cases to be of relatively little assistance in the present context because they are so factually dissimilar.

[28]             Your counsel suggests a starting point of no greater than eight years imprisonment should be selected having regard to where your offending sits compared to that of the offenders involved in Haufano and Johnson.

[29]              The aggravating factors of your offending are such that in my view they require a starting point of nine years imprisonment. This takes into account not only the aggravating features of the offending itself, but also the callous way in which you left Mr Turei to his fate lying in that ditch.

Aggravating factors

[30]              You have numerous previous convictions. They run to several pages. They contain what has been suggested as the usual type of convictions to be found in the case of a long-term member of a gang such as the Mongrel Mob. They run the whole gamut from burglary and dishonesty offences to wilful damage and driving offences. The most serious is a charge of wounding with intent to injure for which you received a sentence of two years seven months imprisonment in May 2009.

2      R v Johnson HC Whangarei T031987, 9 June 2004.

[31]              The Court has the ability to increase a starting point to reflect previous convictions, but only where they are relevant to the present offending. This is because the Court does not seek to punish an offender twice for earlier offending. Rather, it must be satisfied that the present offending is made that much more serious by the fact that the offender has failed to learn the lesson from previous sentences.

[32]              I have no details of the circumstances that gave rise to the charge of wounding with intent to injure. I note from your criminal summary, however, that it appears to have arisen in a domestic or family context. For that reason it is sufficiently dissimilar to your present offending that I consider it irrelevant for present purposes. I therefore apply no uplift to reflect your previous convictions.

Mitigating factors

[33]              I am now required to determine the extent to which I should reduce the starting point to reflect mitigating factors personal to you. The first of these is remorse and the fact that you have offered to undertake a restorative justice process with Mr Turei’s family. Not surprisingly, they declined to be involved in that process but, nevertheless, I accept you are entitled to some credit for the fact that you have offered to expose yourself to that process because I can tell you it would not have been pleasant for you.

[34]              There is an issue in relation to remorse because you now do not accept important aspects of the summary of facts. You told the writers of two reports that the collision between your vehicle and the motorcycle occurred as a result of an accident that occurred when you were overtaking the motorcycle. As I have said, I must sentence you on the summary of facts and your version of events seems highly improbable in any event. It is difficult to see how this kind of incident could occur in the course of an overtaking manoeuvre.

[35]              The problem that it raises, however, is that it suggests you do not have insight into your offending and you have not fully accepted responsibility for it. Both of those factors are relevant to the issue of whether, and to what extent, an offender should receive a credit for remorse. On the other hand, I accept without reservation that you have expressed your remorse to Mr Turei’s whanau for their loss and you have written

a letter confirming that fact to them. So I can give you credit for remorse, but only to a limited extent.

[36]              I am also prepared to make some allowance for the fact that in recent years you seem to have got your life back into some form of order. I have a reference from the employer for whom you were working prior to your arrest and this speaks of you in glowing terms. There are other indications, also, that your life had turned around to some extent before the incident giving rise to the present charge. I am prepared to make a global allowance of six months to reflect all these factors.

[37]              Your counsel submits you should also receive a discrete discount to reflect the fact that you came from an extremely difficult background. I have received a report submitted under s 27 of the Sentencing Act 2002. This explains the environment in which you grew up. It reveals that you grew up in a dysfunctional family where alcohol and abuse were an unfortunate feature.

[38]              Most importantly, for present purposes, it shows that from your childhood you were surrounded by persons in the Mongrel Mob. Members of your family, associates and persons who came to your house were all in the Mongrel Mob. It was, I accept, virtually inevitable that you were going to join the Mongrel Mob given the fact that this appears to have been the aim and aspiration of everybody in your family and social circle. And, of course, once you joined the Mongrel Mob the inevitable happened. You became involved in an endless round of offending, some of it serious, some of it not, but persistent. This has led you to serve several sentences of imprisonment.

[39]              I have found the report useful for the background information it contains. I also accept without reservation that in appropriate cases the link between a person’s cultural background and their offending can provide grounds on which a Court might reduce a sentence. The problem I have in your case, Mr Taiapa, is that next month you will be 40 years of age. You have been in the Mongrel Mob for a very long time and you know from the sentences you have served in the past what your involvement with that organisation is going to result in. It is clear you are an intelligent person, and you are now a mature adult. You need to take responsibility for your own actions. If you wish to cease this pattern of offending, then the answer is simple. You need to

disengage from involvement with the Mongrel Mob. Although I have found value in the report, I am not prepared to provide a discrete discount in relation to the cultural factors that may have contributed to your offending in this case.

[40]              This means I am left with a sentence of eight years six months imprisonment before taking into account your guilty plea. There is no dispute about this. The Crown accepts you are entitled to a full discount for your guilty plea because you entered it as soon as the opportunity to plead guilty to a charge of manslaughter was offered to you.

[41]              I therefore apply the maximum discount of two years two months to reflect your guilty plea. This means that the end sentence is one of six years four months imprisonment.

Minimum term of imprisonment

[42]              Before concluding my sentencing I am required to consider two further matters. The first of these is whether or not you should be required to serve a minimum term of imprisonment before being eligible to apply for parole.

[43]              The Court has the power to impose a minimum term of imprisonment in any case where it sentences an offender to two years imprisonment or more and it is satisfied that the usual parole provisions will not adequately recognise three sentencing purposes and principles.3 These are the need to deter the offender and others of like mind, the need to denounce the offending and the need to hold the offender accountable for the offending.

[44]              In the ordinary course of events you would be eligible to apply for parole after serving just over two years of your sentence. In my view that would be manifestly inadequate to reflect the sentencing purposes and principles to which I have referred. For that reason I accept the Crown’s submission that it is appropriate to set a minimum term of imprisonment of 50 per cent of your sentence.

3      Sentencing Act 2002, s 86.

[45]              In many ways and in practical terms, Mr Taiapa, that order may be academic. If you maintain your associations with the Mongrel Mob in prison it is highly likely you will serve two-thirds of your sentence or more. The only prospect you have of being eligible for parole after serving one-half of your term is if you sever those associations and make good on your promise to rehabilitate yourself whilst you are in prison.

Disqualification from driving

[46]              The final issue I am required to determine is the length of time for which you should be disqualified from driving as a result of this offending. I acknowledge that this is not a driving offence as that term is commonly understood. Rather, it involves the use of a motor vehicle as a weapon. Nevertheless, I am satisfied that the offending is of a type that should be reflected in a significant period of disqualification. You will therefore be disqualified from holding or obtaining a motor driver’s licence for a period of four years from the date on which you are released from prison. I make that order in reliance on s 85 of the Land Transport Act 1998.

Sentence

[47]              On the charge of manslaughter you are sentenced to six years four months imprisonment. You are directed to serve a minimum of three years two months before being eligible to apply for parole. You are disqualified from holding or obtaining a motor driver’s licence for a period of four years from the date of your release from prison.

[48]Stand down.

Lang J

Solicitors:

Crown Solicitor, Tauranga Counsel:

E A Hall, Barrister, Wellington