R v Takao

[2015] NZHC 1657

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-063-002055 [2015] NZHC 1657

THE QUEEN

v

TAMAIKOHA RUAMEKE TAKAO

Hearing:	16 July 2015
Appearances:	G C Hollister-Jones for Crown R O Gowing for Prisoner
Judgment:	16 July 2015

SENTENCING NOTES OF GILBERT J

R v TAKAO [2015] NZHC 1657 [16 July 2015]

Introduction

[1]      Mr  Takao,   you  appear  for  sentence  today  having  pleaded   guilty  to manslaughter following acceptance of a sentence indication given on the morning your  trial  for  murder  was  due  to  commence.     The  maximum  penalty  for manslaughter is life imprisonment.

The facts

[2]      The deceased and his associates, who were associated with the Mongrel Mob gang, spent the afternoon of 13 July 2014 celebrating a 30th birthday at an address in Opotiki.   At about 6.00 pm they went to another address in Opotiki where they continued to drink and socialise together.  This address shared a common driveway with the adjoining property that was occupied by associates of the Black Power gang, a young female and her baby, her partner and two others.  The female occupant

of that property feared for her safety and that of her baby because of the behaviour of the group next door which included people doing wheelies in the driveway and drinking.  Her partner rang an uncle and asked him to come to the address to assist his partner and her baby to leave.

[3]      The uncle lived next door to you and sought your assistance along with two other associates.  The four of you went to the address in the uncle’s car.  Your arrival was seen by members of the group next door who were outside drinking.  A number of them tried to provoke your group with gang slurs.  One of them asked one of the members of your group for a fight.   The confrontation quickly escalated into a violent fight in the driveway between the two properties with a number of people being involved, including you and the deceased.

[4]      Members of both groups armed themselves with various weapons, including baseball bats, metal poles, pieces of wood, garden tools, rocks and bottles.  Seeing that the men in the opposing group were armed, you armed yourself with a bone handled “buck” knife that your uncle had brought to the address in his car.  You also grabbed a metal pole before returning to the confrontation.

[5]      Bottles and rocks were thrown back and forth by both groups. Weapons were used by members of both groups to assault each other.  Windows of both properties were smashed with rocks or weapons.  When one of the members of your group was on the ground in the common driveway being attacked by a group of men, including the deceased, Mr Joe Collier, you ran in holding the pole in both hands with the knife in your left hand and the blade extending beyond your clenched fist.  Using the pole, you pushed Mr Collier in the chest area, knocking him backwards.  As you pushed him, the knife penetrated the right side of his chest at the base of his neck to a depth of approximately four centimetres.

[6]      Mr Collier scaled a fence and walked through open land to an adjoining street where he was found.  He was taken to hospital but did not survive his injury.  The post mortem examination found that the vein leading to his heart was severed and the tip of the knife had pierced the pericardial sack.  The severed vein bled into the pericardial sack and stopped his heart from pumping.

[7]      After you left the address, you went to see your partner and children.   You told them that you had been involved in a fight and had stabbed someone.   The following morning, you were confronted by the local president of the Mangu Kahu, Black Power gang.  You admitted stabbing Mr Collier and arrangements were made for you to hand yourself into the police.   When interviewed by the police, you admitted your involvement in the stabbing and explained how this had occurred.

Victim impact statement

[8]      I  have  read  the  heart  rending  victim  impact  statements  prepared  by Mr Collier’s partner, father, mother, brothers and sisters.   They all speak of the emptiness in their lives as a result of him being brutally taken from them.  He was only 22 years of age and had his whole life ahead of him.   The harm you have inflicted on his family is immense.  This was a senseless tragedy that should never have occurred.

Pre-sentence report

[9]      I have read the pre-sentence report.  You are 35 years of age.  You have two children aged seven and five.  You have known your partner for the past 17 years. You  told  the  probation  officer  that  you  terminated  your  association  with  the Black Power gang years ago.  The probation officer assesses you as having a high risk of re-offending, having regard to your history of convictions for offences involving violence.

Purposes and principles of sentencing

[10]     In sentencing you today, I have regard to the relevant purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.  These include the need to hold you accountable for the harm you have caused, the need to denounce your offending and to deter you and others from offending in a similar manner. I take into account the gravity of your offending, the degree of your culpability, the fact that you have taken a man’s life and the effect this has had on his family.  Your sentence should be consistent with other comparable cases as far as possible.

Aggravating features of offending

[11]     Your offending has two main aggravating features.   It involved the use of weapons and caused death.  The offending also occurred in the context of serious violence between rival gangs in which you fully participated.

Starting point

[12]     In R v Taueki, the Court of Appeal provided guidance on sentencing levels for offences involving serious violence.1   Counsel agree that your offending falls within band 2 Taueki for which sentences in the range of five to 10 years’ imprisonment are appropriate.

[13]     The Crown submits that the appropriate starting point would be a term of

between six and a half and seven years’ imprisonment.   At the time the sentence

1      R v Taueki [2005] 3 NZLR 372 (CA).

indication was given, Mr Gowing submitted that a starting point of five years and six months’ imprisonment should be adopted.    However, he has given further consideration to the matter and now submits that the appropriate starting point is five years’ imprisonment.   He has drawn my attention to a number of additional cases to support this submission.

[14]     In fixing the starting point, I take into account that you went to the address to assist the young female occupant and her baby to withdraw from what she perceived was a dangerous situation.  However, following provocation from the associates of the Mongrel Mob who were partying next door, you chose to become involved in the confrontation and ensuing fight. You armed yourself with a knife and a metal pole.  I take into account that at the time of the assault on the deceased, you were attempting to assist one of  your associates who was on the ground and being attacked by Mr Collier and others.  I also take into account that you were holding the pole with both hands and were attempting to use it to assault Mr Collier.  I accept that you did not intentionally stab him with the knife.  However, you deliberately armed yourself with the knife and the metal pole and knew that you had the knife in your hand in an outstretched position as you ran in to make the attack.

[15]     Taking all these matters into account, and after considering the authorities to which I have been referred, I consider that the appropriate starting point in this case is six years’ imprisonment.  Having reviewed the additional authorities Mr Gowing now relies on, I am not persuaded that I should depart from the assessment I made when giving the sentence indication.   These cases arose in quite different circumstances and are readily distinguishable from the present case.

Personal aggravating factors

[16]     You have a number of previous convictions for violent offending:

(a)       Two x male assaults female – 2 May 2014.  Sentenced on 14 January

2015 to 16 months’ imprisonment.

(b)      Male assaults female – 22 January 2011.  Sentenced on 9 June 2011 to

six months’ imprisonment.

(c)       Threatening to kill – 28 September 2010.  Sentenced on 9 June 2011 to ten months’ imprisonment.

(d)      Common assault – 28 September 2010.  Sentenced on 11 March 2011

to one and a half months’ imprisonment.

(e)       Injuring  with  intent  to  injure  –  9  June  2002.     Sentenced  on

9 October 2002 to one year three months’ imprisonment.

[17]     Counsel both agree that an uplift for these previous convictions is required. The Crown submits that the uplift should be six months whereas Mr Gowing submits that it should be three months.  I consider that an uplift of six months’ imprisonment is appropriate to take account of these previous convictions for violent offending.

Discount for guilty plea

[18]     Mr Gowing submits that you should be given a full 25 per cent discount for your guilty plea because the Crown did not indicate until shortly prior to the commencement of your trial that it would accept a guilty plea to manslaughter.  The Crown acknowledges that you are entitled to a discount for your guilty plea and submits that a 20 per cent discount should be allowed for this.

[19]     Although the Crown may not have indicated until a late stage that it would accept a guilty plea on a charge of manslaughter, you did not indicate that you would plead guilty to manslaughter until this was proposed.  I also take into account that the Crown had a strong case on manslaughter.   Given that the guilty plea was not entered until the morning the trial was due to commence, I consider that a discount of 12 months, approximately 15 per cent, should be allowed for your guilty plea, consistent with my sentence indication.

[20]     I note that although Mr Gowing has urged me to depart from my sentence indication on this issue as well, the Crown now supports all aspects of my sentence indication and submits that I should adhere to it.

Sentence

[21]     Mr  Takao,  would  you  please  stand.    On  the  charge  of  manslaughter,  I

sentence you to a term of five years and six months’ imprisonment.   Please stand

down.

M A Gilbert J