R v Taoho

[2021] NZHC 1552

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-063-1032

[2021] NZHC 1552

THE QUEEN

v

BILLIE MAHINGA RANGI TAOHO

Hearing:

25 June 2021

Counsel:

R Jenson for Crown

C Harold for defendant

Judgment:

25 June 2021

SENTENCING NOTES OF KATZ J

Solicitors:Pollett Legal Limited, Office of the Crown Solicitor, Tauranga Public Defence Service, Tauranga

R v TAOHO [2021] NZHC 1552 [25 June 2021]

Introduction

[1]    Billie Taoho, you have pleaded guilty to one representative charge of perverting the course of justice. You appear today for sentence. The maximum penalty for wilfully attempting to pervert the course of justice is seven years’ imprisonment.1

Facts

[2]I will begin by briefly setting out the facts of your offending.

[3]    You and your then partner, Mr Te Rupe, spent the day at a memorial service for Mr Te Rupe’s father, who had passed away a year earlier. Mr Te Rupe consumed alcohol and cannabis  throughout  the  day.  Once  the  function  had  ended,  you,  Mr Te Rupe, Compton Hiko, and your brother,  Chosen  Mulder,  left  together  in Mr Te Rupe’s car. Initially, Compton Hiko was driving. Mr Te Rupe, however, complained that Mr Hiko “drove like a slug”, and insisted that he drive instead.

[4]    Mr Te Rupe drove dangerously and erratically. He crossed the centre line while turning a corner and crashed into a motorcyclist who was travelling in the opposite direction. Tragically, the motorcyclist was killed instantly.

[5]    Mr Te Rupe was charged and remanded in custody. While in prison, he made several phone calls to you in an attempt to influence Mr Hiko’s evidence.

[6]    On 12 June 2020, Mr Te  Rupe instructed you to tell Mr Hiko to say that    “he knows nothing, the bike came out of nowhere, all he has to say is the bike came out of nowhere”. You responded “yeah,” but there is no evidence whether you actually did as Mr Te Rupe had asked.

[7]    Subsequently, on 1 July 2020, Mr Te Rupe asked you to contact his brother and ask him to contact Mr Hiko’s captain and tell him to tell Mr Hiko to keep quiet. You did not immediately do as requested. After a follow up phone call from Mr Te Rupe, however, you did. You later reported back to Mr Te Rupe that you had asked “Black” to go and tell Mr Hiko to “shut his mouth”.

1      Crimes Act 1961, s 117(e).

[8]    Finally, on 9 July 2020, Mr Te Rupe called and told you to “tell Peter to go and see [Mr Hiko], with aggression this time”. You said that you would send Peter a message from Mr Te Rupe’s Facebook account. Mr Te Rupe requested that: “yeah, tell him ASAP, needs to be done, might need a punch in the face, real talk”. The following day Mr Te Rupe called and said to you “did you ask Peter to do it with aggression?” You responded, “oh no, I just asked him to re-do it”.

[9]    There were also two occasions when Mr Te Rupe phoned you and asked to speak to your brother, Mr Mulder. You put Mr Mulder on the phone and the two men discussed issues relating to witness interference. There is no evidence, however, that you knew what was discussed or participated in those discussions. You simply handed the phone to your brother when Mr Te Rupe asked to speak to him.

What is the appropriate starting point?

[10]Ms Taoho, the first stage in the sentencing process is to set a starting point.

[11]   As previously indicated to you, I consider that a starting point of 20 months’ imprisonment is appropriate for your offending. In reaching that starting point, I have considered the principle of parity with Mr Te Rupe’s sentence (as relied upon by the Crown), the cases cited by your counsel,2 and other cases similar to yours.3

[12]   The starting point of 20 months’ imprisonment reflects that your culpability is significantly less than that of Mr Te Rupe. You were a conduit or messenger that he used to communicate with others; you were under his influence (as he was your partner, is 12 or 13 years older than you and is a patched member of the Tribesmen MC Gang); and you appear to have been a less than enthusiastic participant in his schemes.

2      Coombs v Crown Law [2015] NZHC 584; R v Sharma [2017] NZHC 2925; and Judson v Police

[2018] NZHC 110.

3      Maney v R [2018] NZCA 193; R v Churchward CA439/05, 2 March 2006; and R v Yates [2018] NZHC 1341.

Discounts for personal mitigating factors

[13]   I now turn to consider what adjustments need to be made to that starting point to reflect your personal circumstances.

Guilty plea discount

[14]   As previously indicated to you, a discount of 25 per cent is available to you for entering a guilty plea at an early stage.

Remorse and personal circumstances

[15]   Your counsel submitted that you should receive a further discount for your remorse,4 previous good character,5 and relative youth.6 You are now aged 23. You were aged 22 at the time of the offending. The Crown accepted that you might be entitled to credit for your lack of previous convictions.

[16]   You say that you did what Mr Te Rupe asked because you were influenced by your relationship with him. You have since expressed regret for your offending and have ended your relationship with Mr Te Rupe. You have no prior convictions. Further, as I have noted, you were only 22 years old at the time of the offending. In my view therefore, a discount of 15 per cent is appropriate to recognise these factors.

[17]   Applying the discounts for your guilty plea and your personal mitigating factors brings your sentence down to 12 months’ imprisonment.

Should the sentence of imprisonment be commuted to a non-custodial sentence?

[18]   Your sentence is within the range where a sentence of home detention may be imposed.7 I previously indicated that a sentence of home detention would likely be appropriate if you had a suitable address and no further information came to light that indicated you were not a suitable candidate for home detention. No further

4      Sentencing Act 2002, s 9(2)(f).

5      Section 9(2)(g).

6      Section 9(2)(a).

7      Section 15A.

information has come to my attention to indicate that you would not be a suitable candidate for home detention.

[19]   You have proposed a home detention address in Murupara. The occupants of the address are your parents and two sisters. Your parents are supportive of you. Your mother, in particular, appears to be a strong pro-social influence on you. The address has been assessed as technically suitable for home detention.

[20]   You are currently in employment and work night shift, six nights a week. You are keen to continue your employment if possible, although ultimately this would be a matter for Corrections.

Sentence

[21]   Ms Taoho, please stand. For wilfully attempting to pervert the course of justice you are sentenced to six months’ home detention at the address specified in the PAC Report. I also impose the special condition recommended in the PAC Report, which is that, if required, you are to attend and complete an appropriate programme, counselling, or treatment to the satisfaction of a probation officer. The specific details of any appropriate programme shall be determined by a probation officer.

[22]   Finally, the Crown has offered no evidence on charges 6, 7, 8, 9, 10 and 11 in the Amended Crown Charge Notice dated 2 October 2020. Those charges are accordingly dismissed under s 147 of the Criminal Procedure Act 2011.

[23]You may stand down.

Katz J