R v Talakai
[2023] NZHC 331
•28 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-092-4751
[2023] NZHC 331
THE KING v
TALIKAVILI SEMISE-TO’A TALAKAI
Hearing: 28 February 2023 Appearances:
A Devathasan and J Tausi for the Crown M Ryan for the Defendant
Sentencing:
28 February 2023
SENTENCING NOTES OF WOOLFORD J
Solicitors: Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau Counsel: M Ryan, Barrister, Auckland
R v TALAKAI [2023] NZHC 331 [28 February 2023]
Introduction
[1]Mr Talakai, you appear for sentence today having pleaded guilty to:
(a)one charge of reckless driving causing death;1 and
(b)one charge of failing to stop to ascertain injury (where death ensued).2
[2] The Crown submits that a starting point of five to six years’ imprisonment is appropriate and also seeks an order disqualifying you from holding or obtaining a driver’s licence for three years. They propose adjustments to the starting point as follows:
(a)a 20 per cent discount for your guilty pleas; and
(b)an unspecified discount for youth and other factors.
[3] Your counsel submits that a starting point in the range of three years and six months to four years’ imprisonment is appropriate. Apart from a 25 per cent discount for your guilty pleas, counsel submits that a further discount of 20 to 30 per cent is appropriate for matters raised in a cultural report under s 27 of the Sentencing Act 2002, remorse, willingness to engage in rehabilitation and youth. This would lead to a sentence of home detention rather than imprisonment.
Summary of facts
[4] The deceased, Abraham Kauri, had one daughter and nine sons. His wife, Aroha Uruamo, resided in Thomas Road, Mangere, with some of the younger children and their son, Boysie Uruamo, aged 25. The deceased and other sons came and went from the address. On the date of Mr Kauri’s death, two of his cousins were also at the address as well as his nephew.
1 Land Transport Act 1998, ss 7, 36AA(1)(a) & (2). Maximum penalty of 10 years' imprisonment or a fine not exceeding $20,000 and disqualification from holding or obtaining a driver's licence for at least one year.
2 Land Transport Act 1998, ss 36(1)(c) & (2). Maximum penalty of five years' imprisonment or a
$20,000 fine and a mandatory minimum disqualification of one year.
[5] On the morning of Mr Kauri’s death, a series of events unfolded (largely unconnected to the deceased) that involved you, Mr Talakai, and associates of yours from a gang called “the 28s”, as well as some of the deceased’s children.
[6] It all started when the deceased’s nephew, Tauira Uruamo, took a motorcycle into the Mangere Town Centre to get petrol for it. At the Town Centre a man called Gordon Semesi took the motorcycle off him. There were then a series of events which involved car chases, retrieval of the motorcycle and confrontations, including one at the Town Centre, which the Police dispersed. Another confrontation occurred outside the Uruamo residence in Thomas Road. It involved members of the 28s gang.
[7] You, Mr Talakai, were then at the gang pad for the 28s in Pukaki Road. One of the men involved in the confrontation outside the Uruamo residence contacted those at the gang pad. You then left Pukaki Road with gang members and headed for Thomas Road. You were driving your partner’s white Subaru Impreza. In the meantime, the group which was outside the Uruamo residence had left when members of the Uruamo family had come out of the residence with various makeshift weapons.
[8] The Uruamo family then got into a Ford Echo van on the property and chased the group that had come to their residence. Boysie Uruamo was driving with the deceased (his father) in the front passenger seat. Tukiaki Uruamo, Dylan Uruamo and Russell Tahitahi were in the back of the vehicle.
[9] While driving, the Uruamos noticed two vehicles following them, a blue Volkswagen Golf and the white Subaru Impreza, driven by you.
[10] The Uruamos did a U-turn and stopped on the left side of Thomas Road, by the Samoan Church and Thomas Road Park, and across from Jordan Road. Shortly after they stopped, the Uruamos saw the blue Volkswagen Golf drive past and then turn at the end of the road to drive back towards them from the direction of Māngere Town Centre. The deceased, Tukiaki Uruamo and Russell Tahitahi got out of the Ford Echo van.
[11] The blue Volkswagen Golf continued past the Uruamos. A number of members of the Uruamo family, including the deceased, picked up rocks or other items and threw them at the blue Volkswagen as it passed.
[12] It was then that the deceased stepped out a little into the road, so that he was standing close to the front corner of the Ford Echo. He was yelling after the blue Volkswagen Golf, facing in the direction it was going.
[13] You were driving the white Subaru Impreza and were some three car lengths behind the blue Volkswagen Golf. You deviated from your path and accelerated in on an angle towards the deceased, who was facing away from you, and hit him in the back, near his right hip. This took place at 11:38 am, within three minutes of you leaving Pukaki Road.
[14] The deceased went flying through the air and landed several metres further down the road. He sustained significant head trauma, including an open skull fracture, and died at the scene at 11:59 am in the ambulance which had been called.
[15] After hitting the deceased, you sped up and drove away at speed. You and your associates returned to Pukaki Road where efforts were made to hide the now heavily damaged white Subaru Impreza under a tarpaulin and coloured mats. The vehicle was wiped down for fingerprints, although your fingerprints were found on a drugs container in the back of the vehicle. You also lied to your partner about how the damage had been caused to her car. You claimed you had been parked on Thomas Road and that someone had come and smashed it up.
Sentencing Approach
[16] The Sentencing Act sets out the purposes and principles of sentencing that must be considered by the Court. A starting point is based on the offending and adjusted to reflect aggravating or mitigating features personal to the offender.
[17] There is no tariff or guideline case for reckless or dangerous driving causing death. A relevant list of aggravating and mitigating factors is set out in Gacitua v R.3 The Court of Appeal recently stressed that sentencing is very fact specific and that a sentencing Judge should not simply tick off these factors but use them as a guide.
Submissions
[18] The Crown submits that the primary aggravating feature in this case is the manner of driving, which they characterise as highly reckless. They note that the offending took place as part of a group conflict between your gang and the Uruamo children, where vehicles were driven dangerously for an extended period.
[19]They submit that the following aggravating factors also apply:
(a)Previous convictions for motoring offences (two previous convictions for dangerous driving and driving with excess breath alcohol);
(b)The vulnerability of the deceased (being hit from behind as a pedestrian);
(c)Your post-impact conduct (speeding away after hitting the deceased, making efforts to conceal your vehicle and wiping away fingerprints, and lying to your partner about the cause of damage to the vehicle);
(d)The impact upon the deceased’s whanau (the deceased died in front of a number of his children).
[20] The Crown provide several cases to assist with determining an appropriate starting point. The Crown refers to the following authorities — Gacitua v R and R v Richards4 — both of which deal with reckless driving causing death. In addition, they refer to three vehicular manslaughter cases: R v Purcell,5 R v Tauira,6 and R v
3 Gacitua v R [2013] NZCA 234.
4 Richards v R [2017] NZCA 232.
5 R v Purcell HC Auckland CRI-2008-092-007177, 21 October 2010.
6 R v Tauira HC Auckland CRI-2006-092-11737, 19 June 2009.
Haufano.7 They submit your offending most closely aligns with that in Purcell and Haufano which each involved reckless and aggressive driving, and a failure to stop after impact.
[21] They acknowledge that your previous convictions for driving offences would ordinarily attract an uplift; however, they do not seek one in this case as they consider reckless driving to be an aggravating factor to be applied to the starting point rather than as a discrete uplift.
[22] The Crown submit that a 20 per cent discount may be applied with respect to your guilty pleas. They further submit that a further discount may be appropriate to reflect your age, though they note you have previous convictions and thus should not be treated as a first-time offender.
[23] Your counsel acknowledges that uplifts may be applied for the aggravating factors including the vulnerability of the deceased, post-impact conduct and your previous convictions for motoring offences, dangerous driving and excess breath alcohol.
[24] Your counsel referred me to the cases of Kinita v R,8 R v Reynolds,9 and R v Tanawhea.10 They all had starting points of between three-and-a-half to five years’ imprisonment, although I would note that they all had significantly different fact scenarios to the present case.
[25] Your counsel submits that a 25 per cent discount is available for your guilty pleas, and submits that a further 20 to 30 per cent discount is available in respect of the factors in your s 27 report including remorse, willingness to engage in rehabilitation and youth. He submits that an end sentence of home detention would be fair in the circumstances, with reference to the Court of Appeal’s statement in R v
7 R v Haufano [2014] NZHC 1201.
8 Kinita v R [2020] NZHC 1008.
9 R v Reynolds [2017] NZDC 6390.
10 R v Tanawhea [2022] NZHC 180.
Iosefa that short term sentences of less than two years’ imprisonment may be better served by way of home detention.11
PAC Report
[26] Your pre-sentence report advises that you show a capacity to lead a “pro-social life”, that you are willing to engage in rehabilitation programmes, and that your offending was an isolated incident which you are unlikely to repeat. However, given your previous convictions for dangerous driving you are assessed as presenting a high risk to others.
[27]The report, nonetheless, recommends a sentence of home detention.
Section 27 Report
[28] Your s 27 report describes a mostly happy childhood with strong family and community support, but also financial difficulty and deprivation. You told the report writer that having enough to eat was often a problem, and that you began stealing lunches at school because of hunger. You sometimes had trouble engaging in academic work as a result.
[29] The report also notes that you suffered the loss of your mother, with whom you were very close, at the age of 16. You describe entering a period of extended grief which lasted four years, ending just before the events of your offending. The report emphasises the impact your mother’s death had on you as a young man, and the anger you felt when she was diagnosed with cancer when you were 13. You describe this anger, and later grief, as being overwhelming and say that you began to get into fights and use alcohol and cannabis to “just not think about mum.”
[30] Despite these difficulties, the report describes you as being motivated to improve your circumstances by working to complete your school studies and later by getting a job on the docks to bring more income into the family home. You told the report writer that you enjoyed the stability and purpose that came with employment and are eager to return to working life.
11 R v Iosefa [2008] NZCA 453 at [41].
[31] The report writer says that you feel remorse about the death of Mr Kauri and that you pray for him and his family. It also emphasises your commitment to rehabilitation through compliance with electronically monitored bail as well as your openness to attending skills programmes and counselling.
Other resources provided to the Court
Victim impact statement
[32] I acknowledge the distressing account told by Ms Aroha Uruamo, Mr Kauri’s widow, of the circumstances of her husband’s death and its deep impact. She goes into some detail about the effects on her and her family. These effects have been significant.
Letters
[33] I have also been provided with letters of support from your father, your sister and your partner, which describe you in good terms as being usually responsible, involved in community sporting activity and family life. I note that you have, since being remanded on EM bail, resided with your sister and that has been a supportive environment.
[34] I have also received a letter from you expressing your remorse, which I take as genuine, and which expresses an understanding of how your actions have irrevocably changed the lives of the Uruamo family.
Analysis
Setting the starting point
[35] I must now set a starting point for the offending. Having considered the submissions from your counsel and the Crown, I note the relevant aggravating factors as follows:
(a)The offending was part of an extended group conflict between the deceased’s children and other relatives and members of the gang with which you identified.
(b)Your use of a motor vehicle as a weapon by deviating from your path in Thomas Road and accelerating in on an angle towards the deceased, who was facing away from you, hitting him in the back near his right hip with sufficient force to send him flying through the air before landing several metres down the road and sustaining significant head trauma, including an open skull fracture.
(c)The deceased was a pedestrian on Thomas Road and was standing with his back to your approaching vehicle. He did not have any opportunity to identify the danger and jump out of the way. He was hit from behind and vulnerable to a degree as a result of where he was standing in the road.
(d)After hitting the deceased, you sped off and drove away. You made significant attempts to conceal the vehicle. You also lied to your partner about the cause of the damage to her car. Your failure to stop and ascertain the extent of the deceased’s injuries caused by the collision is a significant aggravating feature.
(e)And the deceased died in front of four of his children – aged 25, 20, 16 and 14. While the death of a loved one will always be a tragedy, I consider the impact on the Uruamo family goes beyond the ordinary case
[36] For these reasons, I am of the view that your culpability is ‘high’ with respect to the sentencing bands discussed in Gacitua v R.12 That band attracts a starting point of between four and five years’ imprisonment.
[37] Of the cases referred to me, I consider your offending to be most similar to that of R v Haufano,13 which involved the defendant using his vehicle as a weapon against a victim who was vulnerable and had his back turned at the time of impact. The defendant failed to stop and check for injury, and he attempted to avoid arrest by co-
12 Gacitua v R, above n 3 at [22].
13 R v Haufano, above n 7.
ordinating with his friends as to what they would disclose to Police. A starting point of six years’ imprisonment was adopted with respect to Mr Haufano’s offending, which I consider was very similar to yours.
[38] There is a distinction, however, between your case and that of Mr Haufano. You pleaded guilty to reckless driving causing death, whereas Mr Haufano was found guilty of manslaughter, which has a maximum sentence of life imprisonment compared to 10 years for reckless driving causing death. For that reason, I set the starting point for your offending at five years’ imprisonment. I think it necessary in this case to give priority to addressing the harm to the community, as well as the need to deter others and to hold you accountable for your actions.
[39] From a starting point of five years’ imprisonment, I give you a 20 per cent discount for your guilty pleas. I also give you a further 10 per cent discount because of your youth and some evidence of remorse. The factors disclosed in the s 27 report of socio-economic deprivation and loss of your mother as a teenager had, however, no causative relationship to this offending.
[40] The total discount of 30 per cent brings your starting point down to three years and six months’ imprisonment. I also acknowledge that you were remanded on electronically monitored bail on 19 July 2021 on strict conditions, which should be reflected in your end sentence. I will therefore deduct a further 10 months from your sentence, which brings the final sentence down to two years and eight months’ imprisonment. Home detention is not available for sentences of this length.
[41] As to disqualification from driving, s 36AA(2)(b) of the Land Transport Act provides that the Court must disqualify a person convicted of reckless driving causing death from holding or obtaining a driver licence for at least one year. The same period of disqualification applies to s 36(2)(b) in relation to failing to stop to ascertain injury.
[42] The principal purpose of disqualification orders is to promote public safety, and as such they must be concerned primarily with the risk posed by dangerous drivers. However, long periods of disqualification may inadvertently incentivise further driving offences and risk public safety further. The Crown has suggested a
disqualification period of three years, which I consider reasonable in the circumstances of the jail term I am about to impose.
[43]Mr Talakai, would you please stand.
[44] On the charge of reckless driving causing death, I sentence you to two years and eight months’ imprisonment. On the charge of failing to stop to ascertain injury (where death ensued), I sentence you to 18 months’ imprisonment to be served concurrently with the sentence of two years and eight months’ imprisonment.
[45] On both charges you are also disqualified from holding or obtaining a driver’s licence for a period of three years.
[46]Please stand down.
Woolford J
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