R v Takamore

[2019] NZHC 2315

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-035-1361

[2019] NZHC 2315

THE QUEEN

v

AARON TAKAMORE

Hearing:

13 September 2019

Counsel:

M Shaw for Crown

H F Croft for Defendant

Sentencing:

13 September 2019

SENTENCING NOTES OF THOMAS J

[1]    Mr Takamore, you pleaded guilty, following a sentence indication, to one charge of aggravated burglary.1

[2]    I indicated an end sentence of three years’ imprisonment, with consideration yet to be given to a number of matters including victim impact statements, a cultural report,2 a pre-sentence report and remorse. You pleaded guilty on 21 March 2019 to this indication and were given your second strike warning.3 This means you will serve any sentence of imprisonment without parole.4

1      Crimes Act 1961, ss 232(1)(a) and s 66(1), maximum penalty of 14 years’ imprisonment.

2      Sentencing Act 2002, s 27.

3      Sections 86A(36) and 86C.

4      Section 86C(4).

R v TAKAMORE [2019] NZHC 2315 [13 September 2019]

[3]    Your lawyer, Ms Croft, has obtained a cultural report from Mr Harry Walker, two letters of support for you and a letter from you outlining your own history in your own words. These matters will be of great help to me in sentencing you today.

[4]    Although an indication has already been given, I need to repeat many of the comments I made to explain the sentence I am going to impose.

Offending

[5]    The  other  defendants  involved  in   this   matter   were   known   to   you. Ms Walker-Dahlberg is your cousin and Mr Daley is her partner. At the time, you all lived together in Masterton.

[6]    You also knew the two victims in this matter. One of the victims (the first victim) was related to the former partner of Ms Walker-Dahlberg with whom she shared a child. The other victim (the second victim) was the first victim’s partner. In the weeks leading up to the events, hostilities related to a child custody dispute between Ms Walker-Dahlberg and her former partner were intensifying. You knew about these issues and told the pre-sentence report writer you were not surprised it was reaching boiling point.

[7]    At around 9.00 pm on  2 December 2018,  you, Ms Walker-Dahlberg and   Mr Daley travelled to the first victim’s mother’s address. You were driving. All three of you had covered your faces with bandanas. You and Mr Daley were both wearing your respective gang patches. You parked some distance from the address and turned off the lights.

[8]    Mr Daley got out of the car carrying a loaded shotgun and walked toward the victims and their family. The first victim, assuming Mr Daley was carrying a bat, walked onto the road to challenge Mr Daley to a fight. Once Mr Daley was within a few metres of the first victim, he raised his shotgun and loaded it into an active state. The first victim ran into his mother’s yard and tried to hide behind the cars parked in the driveway.

[9]    Mr Daley entered the enclosed yard while stalking the first victim. He tried to point  the shotgun at him while  yelling, “I’m going to kill  you  mother fucker”.    Mr Daley also pointed the shotgun at the first victim’s other family members who feared for their safety.

[10]   You meanwhile drove the car closer to the address and parked across the road. Ms Walker-Dahlberg was still in the car with you.

[11]   Ms Walker-Dahlberg got out of the car and yelled abuse at the victims and their family.  The  second  victim,   with   two   other   family  members,   ran   towards Ms Walker-Dahlberg, who got back into the car, locking the door.

[12]   The second victim and her family members pounded on the window of the car. Mr Daley ran back to the car with the loaded shotgun. He used the butt of the shotgun to hit one of the family. The second victim tried to protect the others. Mr Daley turned the shotgun on her and fired into her left thigh. She dropped, bleeding, to the ground.

[13]   Mr Daley got into the car and you all  fled the  scene,  you still  the driver.  Mr Daley fired another round at the family from the rear passenger window. He hit a bedroom window, causing it to shatter.

[14]   The second victim sustained life threatening injuries. She was hospitalised for several months. Her leg was amputated above the knee. She still requires medical treatment. In her victim impact statement, she talks about how her life has been permanently affected. She is reliant on other people, she lives in constant fear and has vivid nightmares.

[15]   You were located two days later and initially denied any involvement. You have subsequently accepted responsibility as party to an aggravated burglary by aiding and abetting it as the driver of the car. Despite it being acknowledged for the purpose of the sentence indication, you told the pre-sentence report writer you did not know of the presence of the shotgun before driving to the victims’ mother’s home. You did say, however, you knew your co-defendants intended to confront the victims.

Starting point

[16]   I need briefly to discuss the starting point. You are being sentenced on one count of aggravated burglary. The burglary was complete when your co-defendant entered into the enclosed yard with the intention of threatening and committing violence.5 What makes it an aggravated burglary is the presence of the loaded sawn-off shotgun.

[17]   While there is no tariff case for aggravated burglary, the principles in the tariff case for aggravated robbery, R v Mako,6 can apply equally to aggravated burglary.7

[18]   The Court of Appeal outlined various factors to take into account when assessing the seriousness of the offending. In the present case, I identify the following factors as relevant:

(a)There was a degree of planning and preparation to the aggravated burglary in the context of a build-up of tensions earlier that day. You were aware of them. You drove, with the two other defendants to the first victim’s mother’s address,8 in circumstances where you must have known Mr Daley was seeking a confrontation with the first victim.

(b)Including yourself, there were three participants in the aggravated burglary, although only Mr Daley actually entered the enclosed yard.9 You remained in the car throughout the events.

(c)Attempts were made to disguise your appearance through the use of bandanas.10

5      Or another imprisonable offence, Crimes Act, s 231.

6      R v Mako [2000] 2 NZLR 170 (CA).

7      R v Watson CA224/03, 24 October 2003 at [27]; R v Drewett [2007] NZCA 48 at [15];

Archbold v R [2015] NZCA 493 at [9].

8      R v Mako, above n 6, at [36].

9 At [37].

10 At [38].

(d)Threats  of  violence  occurred  during  the  aggravated  burglary.11  Mr Daley faces a separate charge of threatening to kill. Even putting that aside, the aggravated burglary involved threats of violence when he raised and activated the shotgun within a few metres of the first victim and pointed it at other family members.

(e)The presence of the loaded shotgun, using it to stalk the first victim, and pointing it at a number of people to instil fear in them.12

(f)The offending occurred at night, although I accept, at 9.00 pm in December, it may well not have been dark.13

[19]   I have considered the cases referred to by the Crown where the starting points for principal offenders in an aggravated burglary have ranged between eight years, and five years, nine months’ imprisonment.14 All the cases referred to involve entry into a dwelling house, a material difference in my assessment.

[20]   In all the circumstances, a starting point of five years’ imprisonment is appropriate.

[21]   The next issue is whether there should be a reduction to reflect your culpability as driver of the car. The Crown agrees that your culpability is “far less serious” than that of Mr Daley. Mr Burston at the sentence indication conceded that you were drawn into events at short notice. While you acted as the driver, Mr Burston accepted you were caught up in a heated family dispute which escalated quickly and violently. However, you knew Mr Daley had a shotgun. The Crown accepted that, although you went to the address with the common intention of confronting, assaulting and threatening the first victim, you did not consciously appreciate the risk that Mr Daley would shoot anybody. In the circumstances, the Crown had submitted a significant discount to the starting point should be taken, of around two years.

11 At [43].

12 At [39].

13 At [58].

14     R v Stade [2015] NZHC 2611; Morrison v Crown Law Office [2016] NZHC 534; Hay v R [2015] NZCA 329, [2015] NZAR 1426 at [60]–[61]; and R v Schuster [2015] NZHC 2833.

[22]   Ms Croft stressed you were the least culpable of all three defendants, at all times remained in the car, were not heard to say anything and were not involved in the incidents leading up to the main incident. In respect of the latter point, you were of course aware of the escalating tensions.

[23]   Ms Croft also suggested you should not be taken as having anticipated or acquiesced in Mr Daley’s decision to use the firearm. As against that, you knew he had a sawn-off shotgun and ammunition and the prospect it would be used, potentially with fatal consequences, cannot be ignored.15 I acknowledge, as Mr Burston previously pointed out, that this was not a case involving simmering gang tensions and retribution.

[24]   The Crown previously cited the case of R v Stade, which was a Solicitor- General sentence appeal to the High Court from a District Court decision, as a case with similar facts to the present.16 Mr Stade was one of three defendants. He drove the car and was a lookout. He was neither armed nor disguised. His co-defendants robbed a home at night using rifles and violence, including hitting a victim in the face with the barrel of a rifle. They stole several phones, tobacco and a cap. A starting point of eight years’ imprisonment was held to be unimpeachable.17 The Court did, however, accept Mr Stade was a lesser participant. As it was a Solicitor-General appeal, the Court decided the most lenient approach would be to allow a two-year discount based on diminished involvement,18 resulting in a six-year starting point.19

[25]   The Court of Appeal in R v Moko expressly said a getaway driver should not be treated as less culpable than those confronting the victims unless they are truly less than a full participant.20 Karaitiana v R is a more recent authority for this point.21

[26]   You were told of the escalating situation that day, you drove the other two defendants to the premises, you knew Mr Daley had a shotgun, you moved the car

15     R v Mako, above n 6, at [39].

16     R v Stade, above n 14.

17 At [31].

18 At [33].

19 At [34].

20 At [64].

21     Karaitiana v R [2014] NZCA 126.

during the event to allow an easier getaway, and you backed up to ensure Mr Daley could escape the scene. You also, like the others, covered your face when the burglary was undertaken.

[27]   In all those circumstances, a discount of one year appropriately recognises your lesser participation, taking the starting point to four years.

Adjustments to the starting point

Aggravating factors

[28]   You have prior convictions for burglary as well as for violent offending. You were sentenced to imprisonment in 2015 on a charge of injuring with intent to injure. You were sentenced again to imprisonment in 2017 on a charge of wounding with intent to injure, in respect of which you received your first strike warning. I have received some information about this offending. While it does not excuse it, the information provides valuable context.  I note  you  were released  from  prison on  11 September 2018 and  this offending occurred less than three months later,  on      2 December. I can infer you were subject to release conditions at the time. Despite these factors, the Crown did not seek an uplift.

[29]   The Court of Appeal has indicated that, in sentencing an offender for a second strike offence, an uplift for previous convictions which include the first strike offence could contain an element of double counting.22 Adopting that approach, I do not uplift for previous offending.

Mitigating factors

Personal circumstances and cultural factors

[30]   Mr Takamore, your personal circumstances are inextricably linked with the issues raised in the cultural report. I therefore propose to address them together.

22     Wipa v R [2018] NZCA 219 at [4]; Paerau v R [2018] NZCA 139 at [43].

[31]   You are 29 years old. You were born in Wellington but raised in many different places in the North Island. Your father was Niuean but he died before you were born. You have never met any of his family.

[32]You are of Ngāi Tūhoe, Te Whakatōhea, Ngāti Porou and Niuean decent.

[33]   Your whānau suffered trauma in early colonial contact, land wars and confiscations. These harmful events suffered by your ancestors have had significant ramifications for the current generation. The history of alienation, dislocation, loss of language and culture has meant many have lost their way. You are clearly in that number. Others of your whānau have been more resilient and achieved well.

[34]   Your mother had connections to Black Power. You say she was physically violent to you throughout your childhood. Your step-father, from age six, was also from Black Power and also violent to you. You say that violence was the norm in your home. You were surrounded by the taking, selling and buying of drugs.

[35]   You describe being passed between various family members who looked after you. Violence was the norm in many of those homes as well and you suffered for that. In particular, some of this abuse took place in Ruatoki. Before being placed there, you say you had had little connection to te ao Māori. While there you learnt to speak some te reo, attended the local marae and learnt more about your culture. The abuse you suffered while you were there, however, simply served to alienate you further from your culture. Your mother said to Mr Walker that you often struggle with your identity as part of Tūhoe in light of the abuse you suffered there. You are torn, because you were raised within the boundaries of Tūhoe with little or no connection with your other iwi from whom you have become estranged.

[36]   You say you were never away from your mother for a long time and when you were returned to her, she had often moved, forcing you to go to another school. You were always bullied at these schools and often played truant as a consequence. The longest time you spent at any one school was one year. By the time you were 11, you had lived in seven different  places  and  by the  time  you  were  15,  had  attended 11 schools.

[37]   You say you were always going to be a Black Power member. By 11 or 12 you were already a prospect and by 14  you were  a full member with a crew of nearly  20 people. You say you had little choice in joining Black Power, having grown up around that culture. It was your life and you knew nothing else. You found comfort and community in Black Power. They provided you with a sense of belonging you so clearly lacked.

[38]   You had your first child when you were 19, in 2009. You were in a relationship and had a job. That fell apart in 2013 when your partner left.

[39]   There is no doubt you have led a life of hardship and disadvantage. Your personal history is clearly related to your offending and as such warrants a significant discount. Cultural factors must have some linkages to your offending to be relevant in sentencing.23 In your case, as I say, the s 27 report makes it clear your personal circumstances are inextricably linked to your cultural background. Violence, criminality and gang culture is all you have known from a very young age. You describe the inevitability of becoming a gang member and the very clear impact that has had on your life. Your negative experiences when growing up clearly contributed significantly to your later antisocial behaviour. You have been disadvantaged compared to your peers since day one and have clearly suffered for that. An overall discount of up to 20 per cent would be appropriate to recognise these factors.

Remorse

[40]   Separate recognition can be given for genuine remorse which I am satisfied was present in your case. You offered to attend restorative justice. You have continually expressed remorse to Ms Croft and Mr Walker. You have written a letter to be handed to the victim. It is eloquent and I believe genuine. You have also written a letter to the Court apologising. You say you have reflected during your incarceration on what has led you to the predicament you face today. You describe the decisions you have made as utterly appalling. You take full responsibility for your part in this horrendous tragedy. You understand the devastation you have caused to the victims’ life and you say you cannot express how ashamed you feel about yourself. You have

23     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 (footnotes omitted).

been thinking about your future. You know you have to step away from the gang and make positive changes. You do not wish to leave your family again.

[41]   As I say, Mr Takamore, your letters are extremely well written and you should be proud of them.

[42]A five per cent discount for remorse is appropriate in the circumstances.

Time in custody on remand

[43]   Consistent with the requirement to impose the least restrictive outcome, it is appropriate at this stage to take into account time you have spent in custody on remand.24 This is analogous to the requirement to take into account restrictive bail.25 You have been in custody from 12 June 2019 to 12 September 2019, three months. You were also in custody from 4 December 2018 to 28 January 2019 before being bailed, another one and a half months. The total time on remand is four and a half months, which equates to a sentence of nine months’ imprisonment. There should clearly be a reduction in this regard.

Guilty plea

[44]   As previously agreed, a discount of 25 per cent is available for your early guilty plea.

[45]   Overall, therefore, before considering home detention, I assess the appropriate sentence as 24 months’ imprisonment.

Home detention

[46]   From the outset, the Crown has responsibly and appropriately recognised your case is one in which home detention may be appropriate. A sentence of Home Detention has a significant punitive aspect to it but also allows rehabilitation to take

24   If sentenced to imprisonment, this factor would have been removed from the sentence calculation in accordance with s 82 of the Sentencing Act and s 90 of the Parole Act 2002. In this case, as will be discussed below, a sentence of imprisonment is not the final sentence and it is appropriate to consider this factor now. See Ropiha v R [2013] NZCA 60 for similar reasoning.

25 Sentencing Act 2002, s 9(2)(h).

place. You have spent much of your twenties in prison and are already institutionalised to a degree. Another prison sentence, with no hope of parole, given you are on your second strike, will only serve to entrench that institutionalisation. You are approaching 30 and need to turn your life around. Home detention will offer you motivation to do so. I have no doubt a sentence of home detention is in your best interests and is in the best interests of the community. Your successful rehabilitation is the best way to prevent future offending and keep the community safe.

[47]   The pre-sentence report confirms your suitability and that the address and occupier are also suitable.

[48]    I asked about what programmes would be available to you in the community. Mr Walker notes that you are outside the bounds of your iwi, meaning the programmes available through them cannot be offered to you at this time. Considering the abuse you suffered at the hands of members of Tūhoe, there are also concerns about receiving support from them.

[49]   The primary support and rehabilitation networks that have been identified for you are your mother and the person with whom you will reside while on home detention. They live in New Plymouth. An elder in that community, Mr Tai, has indicated his willingness to support you.

[50]   Mr Walker notes that the Tu Tama Men’s Anti-violence programme will be available to you. Similarly, there are a number of programmes run by the Salvation Army (of which your mother is an active member and volunteer) which you will be able to attend: an anti-violence programme; a one-on-one Positive Lifestyle Programme; a weekly alcohol and drug group and Kaupapa Māori worship service.

[51]   These programmes will be of help to you. Although they cannot be made a condition of your sentence, there will be a more general condition that you are to attend suitable programmes. You will work with your Probation officer to develop a plan of suitable programmes but these are the types of programmes I expect you to attend.

[52]   I will not impose the suggested condition that you are to have nothing to do with members or associates of Black Power. I recognise the unreality of that and am concerned not to set you up to fail. However, Mr Takamore, you say you want to hand back your gang patch and no longer want to belong to the gang. You want to be a father to your son. A sentence of home detention gives you an opportunity to begin to make these life changes that are necessary to reach that goal. The reason you appear before me today is related to your gang connections. You are at a crossroads now. You have the opportunity to change your life. I recognise the difficulties you will face in withdrawing from Black Power. I know you will be giving up one of the only communities you have relied upon your entire life. Mr Takamore, when those hard moments come to you I hope you remember why you want to do this. I remind you, that there are other groups that have indicated a strong willingness to provide you with the support you need.

[53]   Mr Takamore, would you please stand. On the charge of aggravated burglary, I sentence you to 12 months’ home detention at the address in the pre-sentence report. I impose special conditions and special post-detention conditions to expire 12 months after detention end date. I do so being satisfied that there is a significant risk of further offending; standard conditions alone would not adequately reduce that risk; and the special conditions would reduce the likelihood of further offending through your rehabilitation and reintegration. The special conditions are:

(a)To attend a psychological assessment and attend, participate in and complete any recommended treatment as directed by the Probation officer.

(b)If suitable, to undertake and complete any counselling, treatment or programme, deemed appropriate to the satisfaction of the service provider and the Probation officer.

(c)Not to associate with or contact the victim of your offending without the prior written permission of the Probation officer.

Thomas J

Solicitors:
Crown Solicitor’s Office, Wellington