R v Tapine
[2019] NZHC 3134
•29 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-044-001823
[2019] NZHC 3134
THE QUEEN v
TAMA TAPINE
Hearing: 29 November 2019 Appearances:
D M A Wiseman for Crown
K Hamblin on instructions from A Cresswell for Defendant
Sentenced:
29 November 2019
SENTENCING NOTES OF VENNING J
Solicitors: Meredith Connell, Auckland Counsel: A Cresswell, Auckland
K Hamblin, Auckland
R v TAPINE [2019] NZHC 3134 [29 November 2019]
[1] Tama Tapine, you have pleaded guilty to assault with intent to injure and are for sentence this morning as a result. The maximum penalty for the offence is three years’ imprisonment.
[2] You faced trial in this Court in early October 2019. At the conclusion of the Crown case an application was made on your behalf pursuant to s 147 of the Criminal Procedure Act 2011 to dismiss the charge of wounding with intent to injure that you faced. The Court was minded to grant that application but also granted leave to the Crown to amend the charge. You then pleaded guilty to the amended lesser charge.
[3] You and your co-accused Mr Lisiate and Mr Poulgrain were all serving prisoners. You were in the maximum security unit at Auckland Prison at Paremoremo. Mr Burton, the victim of the assault, was also in that wing.
[4] The evidence at trial disclosed your co-accused Mr Lisiate, Mr Poulgrain and you were interacting together shortly before the attack on Mr Burton. You were in and out of each other’s cells and you were gathering down towards the end of the corridor. Ultimately you placed yourself to one side of the corridor waiting for Mr Burton, clearly waiting for him. Mr Poulgrain positioned himself beside Mr Burton as he was walking down the corridor to ensure Mr Burton would be close to you. Mr Lisiate was behind Mr Burton watching you and Mr Poulgrain.
[5] You initiated the assault on Mr Burton by hitting him. You hit him with what can be described as a roundhouse punch. The blow was a complete surprise to Mr Burton. It was obviously unprovoked. Mr Poulgrain then joined in and both of you hit Mr Burton. You hit him at least twice more. At that point Mr Burton fell to the ground and was attacked by Mr Lisiate who had two shanks and by Mr Poulgrain who also used a shank. You took no further part in the attack after Mr Burton fell to the ground. At that stage you walked away.
[6] However, you were involved in initiating the attack and it was a serious and concerted attack on Mr Burton. As a result of that attack he suffered a number of wounds to his right arm and hand, stab wounds to his left arm and upper left bicep, a large wound to his left-hand side collarbone, a large stab wound to his right eye that
resulted in a ruptured eye globe and a number of other smaller and more superficial stab wounds to his head and face. Mr Burton as a result has severely diminished vision from his right eye.
[7] The purposes and principles of the Sentencing Act 2002 that are particularly engaged in this sentence are the need to denounce such conduct and as far as possible deter others from engaging in such conduct, especially in the prison environment. Such attacks not only place other prisoners at risk but also put prison officers who have to respond to such incidents at risk. There is also a need to consider your personal circumstances and ultimate rehabilitation. The Court is directed to impose the least restrictive outcome which I bear in mind. But a further term of imprisonment is required in circumstances such as these.
[8] The general approach to offending in cases of violence is set out in the Court of Appeal authority in R v Taueki.1 In Tamihana v R the Court of Appeal confirmed it is appropriate to consider the principles discussed in Nuku v R for charges of assault with intent to injure.2 I also have regard to the cases of Green v Police and Rameka v Police that counsel have referred to.3
[9] There are a number of aggravating features in relation to the offending you were involved in.
The extent of the violence
[10] While, as I have said, I accept you were not involved in the worst of the attack on Mr Burton, nevertheless your punch initiated the attack that followed. The attack was premeditated. Counsel has submitted there was no proof of premeditation on your part at least. On the basis of the evidence I heard and saw, a large part of it which was captured by CCTV, I am sure there was premeditation and that this was a planned attack that you were a part of. While I accept the Crown could not prove you knew that shanks were going to be used by the other two, you knew Mr Burton was to be
1 R v Taueki [2005] 3 NZLR 372.
2 Tamhana v R [2015] NZCA 169, citing Nuku v R [2012] NZCA 584.
3 Green v Police [2017] NZHC 2378; and Rameka v Police HC Rotorua CRI-008-463-52, 16 October 2008.
attacked by the three of you and your role was to start the attack on him and to knock him down. It is apparent from the interaction between the three of you prior to the attack, and the way you and Mr Poulgrain positioned yourselves, that the attack was planned.
[11] Next, while you were not directly responsible for the serious injuries caused to Mr Burton, and as I have said I accept it cannot be established you knew the shanks were to be used, you nevertheless attacked Mr Burton’s head. The punch you threw was a roundhouse punch with considerable force behind it. That is apparent from the immediate effect it had on Mr Burton. You and Mr Poulgrain both assaulted Mr Burton in such a way he was taken to the ground almost immediately and effectively set up for the ongoing attack by Mr Lisiate and Mr Poulgrain. Mr Burton was also vulnerable to the extent he was handicapped by his prosthetic leg.
[12] In the circumstances the Crown submit a starting point of two to two and a half years is required for such offending.
[13] Your counsel has submitted, in part on the basis that this was not premeditated, that a starting point of no more than nine months is warranted. She notes that in the prison environment if Mr Lisiate had told you to take part it would have been unwise for you to refuse.
[14] You also told the Probation Officer you had been told to throw the punch only 10 seconds before you did it. For the reasons I have discussed I do not accept that. It suggests to me you are seeking to minimise your involvement. I consider your involvement to have been more considered and deliberate than you suggest.
[15] This was a serious offence involving a planned attack on another prison. Your initial punch to Mr Burton’s head was deliberate and damaging as is apparent from the CCTV footage. I take as a start point for the offence two years’ imprisonment.
[16] The Crown submit an uplift is applicable for your offending whilst subject to a sentence and your previous convictions. You do have previous convictions for assault on Police and common assault and the offending did occur while you were
subject to a sentence. But your previous convictions for assault were some time ago and appear from the sentences imposed at least to have been relatively minor. I also consider the starting point I have adopted reflects the aggravating feature I have discussed including that the assault took place in a prison environment while you were serving a sentence. I am not going to uplift the starting point further for your previous offending or because the offending occurred whilst you were serving a sentence.
[17] I turn to your personal circumstances. You are 27. You were raised in Christchurch, the youngest of six children. Your childhood was apparently not a happy one. Your mother was imprisoned on more than one occasion for drug dealing when you were young. You were passed around family and friends’ homes and foster homes. You left school with little in the way of education or qualifications. You have however been able to obtain employment in various jobs from time to time. You have also completed certificates in a variety of matters: first aid, chainsaw work, forklift and other practical courses. This shows that you have the ability to engage in the community Mr Tapine if you are given the opportunity.
[18] But it has to be said that unfortunately your major contact and influence recently has been your association with the gangs, and currently the Cripps. It is a matter of concern to the Court for the future that the report says at present you do not have an address to go to upon your ultimate release from prison. That is a matter that the authorities need to consider when considering your pre-release conditions to provide the support that will be necessary.
[19] As noted at the time of the offending you were serving a sentence of three years for burglary and other miscellaneous offending.
[20] Counsel has suggested you are remorseful, noting your comment that you felt sorry for the guy when you saw the result of the attack. But that falls far short of what is required for genuine remorse. Your expression of remorse is personal and in the context that you otherwise might have expected to have been released by November.
[21] Your history suggests you are a violent recidivist offender. Your risk to others is assessed as high. You have breached sentences in the past. As I have said if you are
going to turn that around Mr Tapine you are going to require support and you are going to need to break the connection you have with the gangs.
[22] Taking account of your personal circumstances and disadvantaged background as much as I can I adjust the starting point down by four months. A further reduction in your sentence comes from your guilty plea to the charge. The guilty plea followed as soon as the reduced charge was available to you. I accept that plea as an acknowledgement of your responsibility for the offending. In the circumstance the full reduction of 25 per cent is appropriate as Crown properly concedes.
[23] Mr Tapine please stand. On the charge of assault with intent to injure you are sentenced to imprisonment for one year, three months. The sentence is cumulative on any existing sentence you may be currently serving. Stand down.
Venning J
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