R v Taipari

[2014] NZHC 1014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-019-002264 [2014] NZHC 1014

THE QUEEN

v

ARLEYE TAIPARI

Hearing:	15 May 2014
Appearances:	R G Douch for Crown R Weir for A Taipari
Sentence:	15 May 2014

SENTENCING REMARKS OF LANG J

R v TAIPARI A [2014] NZHC 1014 [15 May 2014]

[1]      Mr Taipari, you appear for sentence today after pleading guilty during your trial to a charge of wounding with intent to injure.  You were originally due to be sentenced on 25 March 2014, but on that date you dispensed with the services of your counsel and indicated that you wished to vacate your guilty plea. At that point I made directions to enable that process to be undertaken, but you have now elected to maintain your guilty plea.

[2]      You took issue prior to today’s hearing with two matters in the summary of facts.  Following a telephone conference yesterday, that issue has now been resolved. Accordingly, there is now no impediment to me proceeding to sentence you. As you have heard, the maximum sentence available to the Court is one of seven years imprisonment.

[3]      I record  that  you  also  faced  additional  charges,  but  the Crown  has  now elected not to adduce any evidence in respect of those charges.   I therefore now discharge you on them pursuant to s 347 of the Crimes Act 1961.

The facts

[4]      The charge to which you have pleaded guilty arises out of an incident that occurred on the evening of Monday 28 January 2013.  At that stage, you were 21 years of age.

[5]      On that date the victim of your offending, who was well known to you, was at his home address with his partner and friend.  They were outdoors working on a motor vehicle.   For some unknown reason, the victim’s friend began texting you indicating that the victim wished to have a fight with you.  This prompted you to travel to the victim’s address in a motor vehicle with your 16 year old brother.  You took with you two samurai swords.

[6]      When you arrived at the address, your brother advanced towards the victim brandishing the two swords.   The victim did not back away, and challenged your

brother to  fight  “one on  one”.   Your  brother then  approached  the victim  in an aggressive manner brandishing the two swords.  He struck the victim a blow with the flat surface of one of the swords with sufficient force to fracture his left upper jaw. At that point, the victim’s partner began screaming and telling you and your brother to leave the property.  Rather than leaving, however, your brother effectively chased the victim inside the house where he continued to lunch at him with the two swords. This resulted in the victim receiving a severe cut to the side of his face.  There is some dispute, or doubt, as to whether or not this was as a result of a blow or the sword flying out of your brother’s hand.  Either way, however, the sword struck the victim  with  sufficient  force  to  partially  sever  his  ear,  and  the  sword  became embedded in the side of his head.  At this point, your brother ran out of the house and the two of you left the property.

[7]      The wound required surgery and was ultimately repaired, but the victim has suffered permanent loss of facial nerves.  This means that he has lost feeling on one side of his face and will never regain it.  He therefore suffers a permanent disability as a result of your brother’s attack.

Sentencing Act 2002

[8]      As I indicated when I sentenced your brother on 25 March 2014,1 in any case involving this level of violence the sentencing principles of deterrence, denunciation and the need to hold the offenders accountable for their actions are to the forefront. Not surprisingly, perhaps, I do not have a victim impact statement from the victim, but I am able to gauge from the summary of facts the level of impact that this offending has had on him.

Starting point

[9]      When I sentenced your brother, I recorded that the starting point for his offending fell to be determined having regard to the principles contained in a judgment of the Court of Appeal called R v Taueki.2   That was because your brother

faced a more serious charge, that of wounding with intent to cause grievous bodily

1      R v Taipari [2014] NZHC 577.

2      R v Taueki [2005] 3 NZLR 372.

harm.  I took a starting point of ten years imprisonment in his case, although I said that a starting point of 12 years imprisonment was not outside the range.

[10]     I need to adopt a different approach in your case because, of course, you were not the person who struck the blows and the Crown recognises that you did not have any idea that your brother was going to resort to the kind of violence that occurred. The Crown’s approach is reflected by the fact that it agreed to accept a guilty plea to the lesser charge of wounding with intent to injure.  Nevertheless, your culpability arises as a result of the fact that you were the person who arranged for you and your brother to go to the victim’s premises.  You must also have known that there were weapons in the vehicle. Although you could not have known the level of violence to which your brother would resort, nevertheless you must have known that he was a violent person and that violence was the inevitable consequence of travelling to the victim’s house.   Indeed, there could really be no other reason for you going there having the knowledge that you did.

[11]     In those circumstances, I take the view that a starting point of three years nine months imprisonment is appropriate.

Aggravating factors

[12]     The offending occurred at a time when you were on parole having been sentenced in October 2009 to three years eight months imprisonment on a charge of aggravated burglary.  That must have been a serious incident to have attracted that length of sentence.  I understand that you were recalled from parole as a result of the present offending.

[13]     In addition, you have a number of earlier convictions for violent offending. These include common assault, behaving in a threatening manner and the charge of aggravated  burglary  to  which  I  have  already  referred.    These  factors  and,  in particular the fact that this offending occurred whilst you were on parole, lead me to apply an uplift of six months to the starting point that I have selected.

Mitigating factors

[14]     This   leaves   me   with   an   end   sentence   of   four   years   three   months imprisonment before taking into account mitigating factors.   Today, you have provided me with a letter in which you express your remorse for this incident.  You also tell me that the imprisonment to which you are presently subject has very difficult consequences for you because of your separation from your partner and young child.   I am concerned, however, that the pre-sentence report indicates that you are at high risk of reoffending and that you have a tendency to resort to violence when you encounter problems.  You appear to acknowledge that to some extent, but nevertheless deny much of the culpability for the present offending.

[15]     I consider that your history of offending is now such that I am not prepared to make a discrete allowance in respect of your remorse.   You can best demonstrate your remorse by ensuring that you remain free from violent offending in the future.

[16]     I  am,  however,  required  to  acknowledge  your  guilty  plea,  although  this occurred at a late stage.  Nevertheless, it was the first opportunity that you had to enter a guilty plea to the charge in its present form.  I therefore propose to make an allowance of eight months to reflect your guilty plea.  This produces an end sentence of three years seven months imprisonment.

Minimum term of imprisonment

[17]     The only issue that has given me cause for concern in your case is whether or not I should impose a minimum term of imprisonment.  The Court has the power under s 86 of the Sentencing Act 2002 to impose a minimum term in any case where it sentences an offender to two years imprisonment or more.  The Court may do that when it is satisfied that the usual parole provisions would not be sufficient to adequately recognise principles of deterrence, denunciation, accountability and the need to protect the public.

[18]     In your brother’s case, I imposed the maximum minimum term available namely, two thirds of the sentence.  I did that because a psychological report that I had obtained in respect of your brother indicated that he presents as an extremely

high risk of future violent offending.  I am satisfied that you do not present a future risk at that level, but nevertheless I consider that the circumstances in which the present offending occurred demonstrate that  you do present some future risk of violent offending.   In addition, I am satisfied that being eligible for parole after serving just one year two months imprisonment would not be sufficient to recognise principles of deterrence, denunciation and the need to hold the offender accountable. I therefore propose to impose a minimum term of approximately one-half of your sentence, namely one year nine months imprisonment.

Sentence

[19]     On the charge to which you have pleaded guilty you are sentenced to three years seven months imprisonment.   You are directed to serve a minimum term of imprisonment of one year nine months.

[20]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

R Weir