R v Taki

[2022] NZHC 1801

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-025-1396

[2022] NZHC 1801

THE QUEEN

v

MANAIA MICHAEL TAKI

Hearing:	26 July 2022
Appearances:	W T Chapman for the Crown H T Young for Defendant
Judgment:	26 July 2022

ORAL SENTENCING REMARKS OF OSBORNE J

[1]    Mr Taki, I am going to ask you to stand, please, for a moment. I will ask you shortly to be seated again while I explain my sentence to you. Towards the end, I will then ask you to stand again when I deliver the sentence, when I tell you what the sentence will be.

[2]So, for now, please sit down.

Introduction

[3]    Manaia Michael Taki, you appear for sentence on one charge of wounding with intent to cause grievous bodily harm, to which you pleaded guilty and were convicted

R v TAKI [2022] NZHC 1801 [26 July 2022]

on 7 June 2022.1 You have also been issued with a first strike warning under the three strikes regime.

The offending

[4]You have agreed with the summary of facts which I will now refer to.

[5]The victim in this matter is the brother of your partner.

[6]    Your offending occurred at the address of your victim’s mother in Winton, Southland, at about 1 pm on 6 December 2021. At that address were your partner, your two-month-old baby, the victim, the victim’s partner and the victim’s mother.

[7]    The victim told his sister (that is, your partner) that you had been saying she was a bad mother. Your partner confronted you about that accusation. As a result, you confronted the victim about it. Heated words were exchanged. The victim challenged you to a fight.

[8]    You left the house and went to your car, which was parked across the road. You took out a .22 firearm. It is a ten-shot semi-automatic rifle that had been cut down to approximately 55 centimetres in length and had a pistol grip. You were not a current holder of a firearms licence. You returned to the property and you fired either two or three rounds in the air. You then went back to your car and took off.

[9]    You revved your engine and did a number of skids in the neighbouring area. You then returned to the address and drove backwards and forwards in the victim’s driveway while revving your engine. You later told police you were intending to crash into the rear of the victim’s vehicle but had decided against it. You then reversed your vehicle out and parked it on the footpath by the driveway.

[10]   The victim came out of the house. Further heated words were again exchanged between the two of you. Both of you were challenging each other to approach.

1      Crimes Act 1961, s 188(1) – maximum penalty of 14 years’ imprisonment.

[11]   As the victim came towards your vehicle, you pointed the .22 through the front passenger seat window which was wound down. You then fired between four and eight shots in the victim’s direction from a distance of about five to eight metres. The first shot hit the victim in the hand, which was held up in front of his chest.

[12]   The victim turned to run away. You then shot him twice in the back. The victim continued to run back to the house but you fired further shots. Three ricochet marks were left on a car which was parked in the driveway and one bullet struck the house. The other people at the address remained inside.

[13]   You then took off in your car to Invercargill. You hid the firearm at an associate’s house. You hid the car in a remote location just out of town.

[14]   The victim underwent emergency surgery for a gunshot wound to his hand and two rounds in his back. One round came within one centimetre of his heart. However, none of the rounds penetrated his chest cavity or abdomen.

[15]   When you were spoken to by police, you told them where the gun was and where the car was. You admitted firing a number of shots from the .22, including some that were aimed at the victim’s stomach. You were aware you had hit the victim. In explanation, you said that you “just went to [your] crazy place”. You said you were scared. But you acknowledged you had the option to just drive away from the conflict before it escalated.

Victim impact

[16]   In his victim impact statement, the victim detailed how he spent two and a half weeks in hospital after the incident and required surgery to remove the bullets. It was three months before he was able to return to some form of work. He continues to struggle to use his injured hand. The muscles in his back do not function as they used to as a result of his wounds. He says the offending had a significant financial impact on him. He has three young daughters. He and his family have since moved to another city. He says he continues to relive the day he was shot.

Personal circumstances

Your history

[17]   You have no criminal convictions. You have a number of Youth Court notations but those are not convictions.

Pre-sentence report

[18]   A pre-sentence report was completed by your probation officer. With no criminal history, you are assessed as presenting a low risk of reoffending. That said, you are assessed as posing a medium risk of harm because of the violent nature of the current offending.

[19]   You told the report writer you accept responsibility for your offending. You told the writer you were struggling at the time with finding suitable accommodation for your family. That is detailed in much more detail in the reports. You explained, and I accept, that you had been sleeping in your car as your partner’s family did not like you.

[20]You told the report writer you had the .22 for protection. You said you got the

.22 from the car to stop the victim advancing towards you. You said you initially only intended to scare the victim but then returned with the intention of ramming his car. You said when it looked like the victim had bent down to pick up a brick to throw at you, you “went to my [your] crazy place” and shot the victim.

Information and reports about your background

[21]   I have had the benefit of detailed information about your background. It was contained in a number of reports. First, your probation officer gave me reasonably detailed background. Secondly, I have received a very full psychological assessment from a consultant clinical and forensic psychologist, Ghazi Metoui. Thirdly, I have had the benefit of a report under s 27 Sentencing Act 2002 from Ms Keri Kereru.

[22]   In addition, Mr Young on your behalf has not only made submissions in relation to those reports but has provided me with a very supportive reference from

your employers for whom you had been working from mid-2021 in what was clearly a promising employment up until your offending occurred.

Approach to sentencing

[23]   In sentencing you, I am required to have regard to the purposes of sentencing under s 7 Sentencing Act and to the principles of sentencing under s 8 of the Act.

[24]   What I am now about to say to you will involve identifying a starting point of imprisonment based on how bad your offending was before then turning to adjust that for the things about you personally that add to or detract from that seriousness.2

Starting point

[25]   I start with the fact that you have been convicted of wounding with intent to cause grievous bodily harm.

[26]   Sentencing for grievous bodily harm offending is governed by the Court of Appeal’s guideline decision in R v Taueki.3 In Taueki, the Court of Appeal identified aggravating features of grievous bodily harm offending,4 and then the Court set out three sentencing bands with a range of starting points for each.5 This Court is required to identify features of the offending that contributed to the seriousness of the conduct and reflect the criminality of what you did.6 Which band any particular case falls into was held by the Court of Appeal to depend on a number of aggravating factors. The aggravating factors include matters like extreme violence, premeditation, serious injury, use of a weapon, attacking a head, and the vulnerability of the victim.7

[27]   Band two of Taueki, which has a starting point of five to 10 years’ imprisonment, is for offending that has two or three of the listed aggravating factors.8 Band three, which has a starting point of nine to 14 years’ imprisonment, was held to

2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

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

4 At [31].

5      At [34]–[41].

6 At [31].

7 At [31].

8 At [38].

encompass serious offending which has three or more aggravating factors, where their combination is particularly grave.9

[28]   As you have heard in the submissions for both the Crown and by Mr Young on your behalf, there is a recognition that your offending sits towards the top of what the Court of Appeal in Taueki call Band 2 offending, attracting a starting point of five to ten years’ imprisonment. I find the aggravating factors of your offending include:

(a)premeditation — because you chose to fetch and arm yourself with a firearm and, when armed, to deliberately drive back to confront the victim;

(b)use of a weapon — you were using a .22 rifle which was capable of killing another person with a single round;

(c)extreme violence — you fired a number of shots including at a victim who was attempting to flee; and

(d)serious injury — your victim suffered injuries of a serious, likely permanent nature, although not life-threatening. But as Mr Young has fairly stated, it was through luck the outcome was not more serious still, with one bullet lodging one centimetre from the victim’s heart.

[29]   Mr Chapman has suggested a starting point of between nine and ten years’ imprisonment. Mr Young has accepted the lowest available starting point would be in the region of eight years, but you have heard he has responsibly accepted that nine years may be within range.

[30]   On my assessment of the aggravating factors to which I have referred, the figure of nine years’ imprisonment is the appropriate starting point.

9 At [40].

[31]   I have had regard to a number of sentencing decisions in reaching this assessment.10

[32]   In setting a starting point of nine years I have regard to the fact that two of the four aggravating factors are present in your case to a limited extent. That said, your conduct was highly reckless and dangerous — you fired your gun at the victim from close range as a disproportionate response to a domestic disagreement. Your offending occurred in the presence of a number of family members, including your baby son. The shots you fired could easily have been fatal. The situation was clearly alarming for neighbours in the residential area.

Good record

[33]   You do not have a criminal record to be taken into account in relation to the starting point for your sentence. Your earlier proceedings in the Youth Court should impact only in relation to any credit I give you for your previous good character.11

Personal mitigating factors

Guilty plea

[34]   It is common ground that you should receive a full credit of 25 per cent for your guilty plea. You promptly pleaded guilty when the present charge was added at the case review stage.

Youth and rehabilitative prospects

[35]   You were 19 years old at the time of this offence. You are now 20 years of age. The courts have recognised, in relation to young people generally, that you are more vulnerable to negative influences and will be more impulsive in your behaviour. Recognition is also given to the fact that young people have a greater potential to

10     R v Duncan [2012] NZHC 1814; Fukofuka v R [2019] NZCA 290; R v Daley [2020] NZHC 1560 and R v Amohanga [2021] NZHC 1121.

11     Waikato-Tuhega v R [2021] NZCA 503 at [32]–[33].

rehabilitate.     A sentence of imprisonment for a young offender may be disproportionately severe when compared to that for an older offender.12

[36]   In considering your particular circumstances, Mr Taki, I have been very helpfully informed by Mr Metoui. He had not only extensive police records available to him but also the benefit of nine hours’ interviewing of you, combined with cognitive testing of you. Additionally, he has spoken in detail with your mother who with your partner has been present in Court today to support you. He identifies the impact your young age and temperament has had over and above the problems that stem from your family background and upbringing. He understandably concluded that your “relative youth is undoubtedly not helpful to the degree of [your] present decision-making, problem-solving abilities, and impulsivity”.

[37]   While the starting point for your sentence must reflect in part the degree of premeditation involved in your use of a firearm, it is important that I recognise that your behaviour, particularly in relation to its impulsivity, bears the hallmarks of youth offending. That is particularly so when considered alongside the fact that you are a relatively young father and on the day of the attack were dealing with matters that impacted on your relationship with your partner and how you were not able to provide a home for the three of you.

[38]   Against this background, it is unsurprising that your probation officer assessed your risk of reoffending as low.

[39]   The reports I have received indicate that you have had the benefit of the continued support of your partner and of your mother. You have demonstrated to those who have interviewed you a willingness to engage in rehabilitation, in interventions to support that and in education programmes while you are in prison. Your history suggests to me that you not only have wanted to avoid the gang lifestyle that has swept up previous generations in your family. You have (with family assistance) taken big

12     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; Rolleston v R [2018] NZCA 611, [2019] NZAR 79.

steps, including your move to Southland, precisely to avoid becoming involved in the gang life.

[40]   The lawyers, as you have heard, recognise that for your youth and your prospects of rehabilitation a discount of between 20 and 25 per cent from the starting point sentence could be justified.

[41]   That said, Mr Chapman’s submission was that the total discount for both youth and for your cultural disadvantage should not be much greater than that. I accept Mr Chapman’s submission that in setting a discount for youth, the Court should have some regard to the fact that you have already developed some pattern of youthful offending, albeit some years ago, although it did not lead to any convictions as an adult.13

[42]   I have determined that a discount of 20 per cent is appropriate to recognise your youth and to recognise the importance of your prospects of rehabilitation.

[43]   I acknowledge, as I have already, the presence in Court today of your partner and your mother who are here to confirm their ongoing support for you, your mother having travelled from the North Island for that purpose today. Their commitment to you and the support of your rehabilitation will undoubtedly be fundamentally important as you go through the next few years.

[44]   In prison, you will have available to you excellent counselling and intensive intervention that will equip you to deal with the situations that life will throw at you. It will now be up to you to take advantage of those opportunities. You cannot allow the situation that surrounded you and led you into offending on the 6th of December to occur again.

Your cultural background

[45]   The circumstances of your upbringing, I find, have substantially contributed to your behaviour on the day of your offending.14 I have therefore decided that matters

13     Waikato-Tuhega v R, above n 11, at [51].

14     See Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].

relating to your upbringing should be brought into account alongside a discount for your youth.

[46]   I do not intend in this public sentencing to identify in unnecessary detail the extent to which your early childhood involved anti-social pressures and disadvantages. Mr Young has responsibly summarised some of those today. You experienced significant disadvantage in your upbringing despite the determined efforts of a limited number of your whānau to see you escape the pattern that had affected earlier generations of your family. The reports of both Mr Metoui and Ms Kereru explain how, raised in a setting with such gang connections and significant dysfunction, you developed a personality which lent itself to a fight or flight attitude. It seems very likely, as reported, that mental health issues, particularly relating to anger management which have affected some members of your whanau, have had an impact also on your own wellbeing. Your background certainly provides an explanation for your inability to deal with the pressured situation you found yourself in in December last year.

[47]   I am satisfied that the combination of cultural background and the psychological impact of that upon how you behaved contributed to the way you reacted in December.

The discounts for these factors

[48]   There is a close relationship between your youth and what I would call these factors — these cultural and psychological factors identified in the reports, but it is appropriate that I identify a separate discount for each. In addition to the 20 per cent discount appropriate for your youth, particularly to recognise the high prospects of rehabilitation, I find a discount of 20 per cent also appropriate to recognise the impact that your background had on your offending.

Remorse

[49]   Mr Young has raised the possibility of a further discount on account of remorse. I recognise that I have been provided with a copy of a letter you have written to your partner’s brother. While it expresses regret, however, it also explains that you wish the event had never happened because you are now suffering from being away from

your son and partner. That is the consequence of your actions. I recognise your preparedness to attend restorative justice however in a situation where I am allowing a 20 per cent discount for youth and a 20 per cent discount on account of your cultural background, I do not recognise in the expressions of remorse that you have made an appropriate scope for giving you an additional discount for remorse.

Outcome

[50]   I have explained to you at the start, Mr Taki, that my starting point is nine years’ imprisonment. With the discounts I have outlined, you will receive a total discount of 65 per cent — that is, 25 per cent for your guilty plea, 20 per cent for your youth and 20 per cent for the impact your cultural background has had on your offending.

[51]   That leads to a calculation close to 36 months’ imprisonment. In the circumstances, I find an end sentence of three years’ imprisonment to be the just sentence and that is what I will be imposing this morning.

Minimum period of imprisonment

[52]   I am required to consider whether there should be a minimum period of imprisonment. I agree with counsel that a minimum period is not required, particularly having regard to your age.

[53]Now, please stand.

Order

[54]   Manaia Michael Taki, on the charge of wounding with intent to cause grievous bodily harm, I sentence you to three years’ imprisonment.

[55]There is an order for the destruction of the firearm referred to herein.

[56]Please stand down.

Osborne J

Solicitors:

Crown Solicitor, Invercargill Hugo Young Law, Invercargill