R v Tamihana

[2014] NZHC 89

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-044-2640 [2014] NZHC 89

THE QUEEN

v

IHAKA TAMIHANA

Hearing:	7 February 2014
Counsel:	D J Dufty for the Crown G N E Bradford for the Prisoner
Judgment:	7 February 2014

SENTENCE INDICATION OF BROWN J

Solicitors:      Crown Solicitors, Auckland

Counsel:       GNE Bradford, Auckland

R v TAMIHANA [2014] NZHC 89 [7 February 2014]

[1]      Mr Tamihana you appear for a sentencing indication today on the charge of accessory after the fact to attempted murder under s 71 of the Crimes Act 1961. The maximum penalty for this offence is five years imprisonment.

[2]      For the purposes of this hearing I have received an agreed summary of facts. I  have  considered  that  summary  in  accordance  with  s  61(3)  of  the  Criminal Procedure Act 2011.  I have considered the indictment and the detailed submissions of counsel and their oral submissions this morning.  I am satisfied the information available to me is sufficient for the purposes of giving a sentencing indication.  As required by the Criminal Procedure Act I have conducted the hearing in open Court and I am giving this sentencing indication orally but I reiterate it is an offence to publish any information about a request for a sentence indication and any indication that is given.

Background facts

[3]      You were a resident at Auckland’s Paremoremo prison at the time of the offending.    On Tuesday 14  May 2013,  your two  co-defendants  Mr Wereta and Mr Isaaka  walked  into  cell  number  five  where  the  victims  Mr  Nikoi  and Mr Makimare were sitting down.  Mr Wereta was armed with improvised stabbing weapons known as “shanks” and he punched Mr Makimare in the head while the shank was in his hand.  Mr Makimare suffered a minor laceration to the left side of his cheek and did not require hospitalisation.

[4]      Mr Wereta began to stab Mr Nikoia, inflicting wounds all over his face and body.  When Mr Nikoia fled from the cell, Mr Isaaka punched him and he fell back onto the floor.   Mr Wereta then continued to stab Mr Nikoia repeatedly with the shanks.  He only ceased when he was interrupted by a correctional officer and the victim sustained 18 stab wounds, including a life threatening punctured lung and was hospitalised.

[5]      Once Mr Wereta was placed on “lock down” you threw an object attached with string into cell six and Mr Wereta pulled the string into his cell.  He then tied the shirt he was wearing and the material he had wrapped his hands in during the attack onto the string.  You then used the string to pull those items back into your

own cell.  You tried to dispose of the shanks and the shirt by flushing them down your toilet.  You hid the material that was used to wrap Mr Wereta’s hands in the rubbish bin in your cell and these objects were discovered over the course of the next two days after a scene examination and cell inspection.

Personal circumstances

[6]      As this is a sentencing indication I have not received a Pre-Sentence Report.

Prior Convictions

[7]      You have a criminal history dating back to 1999 although none of  your previous convictions are overwhelmingly relevant to this offending.   You were serving a prison sentence of four years nine months for aggravated robbery at the time of this offending and you have now completed that sentence.

Purposes and Principles of Sentencing

[8]      In giving this sentencing indication I have taken into account a number of sentencing purposes and principles as set out in the Sentencing Act 2002.   The relevant purposes I have taken into account are:

(a)       holding you accountable for the harm done to  the victim and the community by the offending;

(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;

(c)       denouncing your conduct;

(d)      deterring you and other persons from such offending; (e)       protecting the community from you; and

(f)       assisting in your rehabilitation and reintegration.

[9]      I have also taken into account the principles of sentencing set out in s 8 of the

Sentencing Act.

Crown submissions

[10]   The Crown submits the aggravating features of your offending are premeditation,  use  of  violence,  vulnerability  and  impact  upon  the  victim.    The Crown notes that there are no tariff cases for accessory after the fact.  The Crown cites four comparable cases.   In three of these a starting point of 18 months was adopted and in one a starting point of nine months.   The Crown submits that a starting point of 15 months imprisonment is appropriate and submits a 15 to 20 per cent guilty plea discount is appropriate and it not being a case where a sentence of imprisonment should be replaced by one of home detention.

[11]     The Crown starting point of 15 months from its original submission of 18-20 months reflects the recognition that the charge here is accessory after the fact to attempted murder not to murder.

Defence submissions

[12]     Mr Bradford has submitted that an appropriate starting point in accordance with Winkelmann J’s decision in Reddy is one of nine months imprisonment. He agrees with the Crown  assessment of 15 to 20 per cent for  a guilty plea.   He recommends  an   end  sentence  of  seven  months  imprisonment   which  would effectively become a sentence of time served as you have been on remand for this charge since the end of May 2013.

Sentencing approach

[13]     I come to fix a sentence.  The approach I intend to follow in arriving at the sentence is that established by the Court of Appeal in several well-known cases.1   In brief it involves considering the circumstances and seriousness of the offending you

committed and setting what is known as the starting point with the aid of any

1        R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

guideline decisions or comparable cases.  I then need to consider whether there are any mitigating features relevant to you which might reduce that starting point.

Tariff case

[14]     There is no tariff case for the offence of accessory after the fact.   This is partly due to the different levels of assistance that can be offered and the varying seriousness of the principal offences to which an accused can be an accessory.

Setting the starting point

[15]     The Crown have provided me with some comparable cases.  In R v Graham,2

Mr Graham put various items linking his friend to the murder in his own car and intended to bury them at his workplace.   He was stopped by the Police shortly afterwards.  Chisholm J considered the level of premeditation was low.  At [8] his Honour noted that imprisonment will generally be the outcome for being accessory to the fact of a serious crime and applied a starting point of 18 months imprisonment.

[16]     In R v Ovalau and Sheck3  both men witnessed the murder and assisted with taking the accused away from the scene.   Mr Ovalau had the murder weapon, a firearm, in his vehicle and Mr Sheck took it and concealed it for ten days until it was discovered by Police. A starting point of 18 months was applied to each of them.

[17]     Like the above cases you attempted to conceal the property by flushing it down the toilet and hiding it in your rubbish bin.  I also accept there was an element of pre-meditation to your actions evidenced by the fact that you arranged to throw an object tied by string into Mr Wereta's cell so that Mr Wereta was able to dispose of the clothing used in perpetrating the offence.

[18]     Mr Bradford has relied on R v Reddy4  in which a starting point of nine months imprisonment was chosen.  In R v Reddy the offender was highly educated

with a successful career, no previous convictions and he was assessed as being at a

2      R v Graham HC Christchurch CRI 2004-00, 2224, 14 September 2004.

3      R v Ovalau and Sheck HC Auckland CRI 2006-092-10484, 13 March 2007.

4      R v Reddy HC Auckland CRI 2008-044-9035, 4 February 2011.

very low risk of reoffending.  I do not find that case is especially analogous for our purposes today.

[19]     In  view  of  the  authorities  I consider  that  a  starting  point  of  15  months imprisonment is warranted for your offending.

Adjusting the starting point

[20]     You have previous convictions including one for aggravated burglary but they are not sufficiently relevant as to justify any uplift to the starting point.

[21]     I turn to  consider whether there are any mitigating factors which  would reduce the starting point.   I have no evidence before me as to whether you have genuine remorse but Mr Bradford has made the point to me this morning that you have not reoffended since 2008 and even though you have been in prison in that period I consider that there should be some discount for that and I will take a month off for that.

[22]     If you plead guilty you will be entitled to a R v Hessell discount of up to

25 per cent.5    Given that you did not seek a sentencing indication at the very first opportunity I could not give you the full 25 per cent but I would be minded to give a

20 per cent discount for a guilty plea on this charge.

[23]     That  would  result  in  an  end  sentence of  11  months  imprisonment.  Both defence and Crown are in agreement that this is not a case in which leave for home detention should be granted.

[24]     So the sentencing indication I would give you would be an end sentence of

11 months imprisonment.

Brown J

5      R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [75].