R v Tararo
[2024] NZHC 415
•1 March 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-085-149
[2024] NZHC 415
THE KING v
TAIN TARARO
Hearing: 1 March 2024 Counsel:
S C Carter for Crown M Smith for Defendant
Sentence:
1 March 2024
SENTENCING REMARKS OF ISAC J
Introduction
[1] Tain Tararo, you appear for sentence having pleaded guilty to unlawful possession of a firearm.1 The maximum penalty is four years’ imprisonment.
The offending
[2]The facts of the offending are these.
[3] In the early hours of 20 December 2020, Mr Rau Tongia was shot and killed with a firearm. There are five people awaiting trial for his murder.
1 Arms Act 1983, s 45(1)(b).
R v TARARO [2024] NZHC 415 [1 March 2024]
[4] Later the same day, you received the firearm used in Mr Tongia’s homicide from your girlfriend. You then kept the weapon for up to two weeks. You did so in order to frustrate Police efforts to locate the murder weapon. You also thoroughly cleaned it, no doubt to remove fingerprints and other evidence that might tie the weapon to your partner or her associates. You subsequently returned the firearm to her.
[5] You were originally charged as an accessory after the fact to murder but following an alternative charge—the one for which you are for sentence today—you immediately pleaded guilty.
[6] It’s clear Mr Tongia’s family love him very much. Some are here today and I wish to acknowledge their presence and their grief.
[7] The victim impact statements I have read reveal the impact of Mr Tongia’s loss on his whānau. Mr Tongia is described as cheeky and down to earth. Some family members recall looking forward to seeing him at a family gathering on the day of his murder, but he never showed up. They did not find out why until much later that day.
[8] Mr Tongia’s father says his son’s death has ruined his whole life. Every day he feels Mr Tongia’s loss and it makes him cry. Christmas will never be the same for him again. He cannot look forward to it, even with his mokopuna. Mr Tongia also left behind three sons, and the many members of his family who still grieve for his loss.
Personal Circumstances
[9] You were 19 years old at the time of the offending and had no previous convictions. By your own admission, you were heavily influenced by your partner at the time. You believed the relationship was at risk. You agreed to hide the firearm when she asked you to in an effort to preserve the relationship.
[10] You successfully completed your high school education and achieved level 3 NCEA certification. You are in steady employment. You live with your mother and younger sister and work six days a week as a labourer. Your income is important support for your whole family. Your father died after a long illness in 2018, when you
were 17 years of age. You told the pre-sentence report writer that was a tough time for you family. So you will have some idea of what Mr Tongia’s family are going through.
[11] The pre-sentence report indicates you are a patched member of the Mongrel Mob. Even so, you appear for sentence today with only one minor prior conviction, which is irrelevant to my assessment. I am told that being a member of a gang is not really a priority for you. I sincerely hope for your sake and that of your family that continues to be the case.
[12] You are assessed by the pre-sentence report writer as having a low risk of re-offending and present a low risk for potential harm.
Starting point
[13] I turn then to the starting point sentence for the offending. That is the sentence that should be imposed on you before I take into account personal aggravating and mitigating factors.
[14] There is no tariff case for offending under s 45 of the Arms Act due to the wide range of offending covered by the offence.2 Crown counsel have submitted a starting point of 18 to 20 months imprisonment is called for. Defence counsel submit a starting point of 12 to 15 months is appropriate. Both counsel agree that a sentence of community detention and intensive supervision would be the appropriate end sentence.
[15] The Court of Appeal has expressed its concern about the risks inherent in the unlawful possession of firearms.3 Unless there are special circumstances, possession of firearms will normally lead to imprisonment, especially if there is evidence to suggest that their use might have been contemplated in relation to other offending.4
2 Torea v R [2011] NZCA 96 at [11].
3 At [11].
4 Karetu v Police [2012] NZHC 2370 at [21].
[16] Crown counsel have referred me to a number of authorities which have adopted differing starting points.5 The charge of possession of a firearm necessarily has varying degrees of seriousness. Evaluation requires consideration of all of the relevant circumstances,6 and in particular:7
(a)the type and nature of the firearm;
(b)the circumstances of possession; and
(c)the reason for possession.
[17] In your case Mr Tararo, the firearm was an unloaded and unmodified shotgun. This is less serious when compared to cases involving military-style semi-automatic weapons,8 concealable firearms such as pistols,9 or firearms found with a substantial quantity of ammunition.10
[18] The second and third factors are the circumstances of possession and the reason for it. Here the overall extent of any related offending such as threats to public safety, use of violence, or gang or drug related activity will be relevant.11
[19] In your case, the threat to public safety was low given the weapon was unloaded and you did not have any ammunition.12 There is also no suggestion you possessed the firearm to use it or that you intended to provide the weapon to another person for their use.
[20] However, you knew the weapon had been used to commit a homicide. You then cleaned it to assist those involved in the shooting to evade arrest. This is a the most significant aggravating factor in my view.
5 Torea v R, above n 2; Gunning v Police [2019] NZHC 309; R v Taylor [2020] NZHC 3333; Burns v Police [2021] NZHC 1589; and Taranaki v Police [2021] NZHC 2746.
6 Rimene v R [2021] NZCA 42 at [69].
7 R v Gardner [2022] NZHC 1258 at [39].
8 Smith v Police [2019] NZHC 2371 at [89](d).
9 Rimene v R, above n 6.
10 Burns v Police [2021] NZHC 1589.
11 R v Gardener, above n 6, at [39](b).
12 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [135]; R v Le [2019] 2 SCR 692.
[21] Finally, the Crown submits your offending was also premeditated because you knew the firearm was connected to a murder and still took possession of it. I accept your actions were deliberate, but I am not persuaded there is any basis to conclude your actions—apart from cleaning the gun—were premediated in a way that warrants a higher starting point.
[22] Overall, having regard to other cases and the identified aggravating factor, a starting point of 18 months is appropriate.
Personal aggravating and mitigating factors
[23] I now turn to consider your personal circumstances and related mitigating factors.
Guilty Plea
[24] The Crown accepts that a 25 per cent reduction is available for your guilty plea and I agree. You pleaded guilty as soon as the current charge was proffered.
Youth and Prospect of Rehabilitation
[25] Both Crown and defence counsel also agree your sentence should be reduced given your youth. However, they disagree on the extent of the reduction. The Crown submits a 10 per cent deduction is warranted, whereas defence counsel say that a greater reduction could be made.
[26] With respect to a youth discount, the Court of Appeal has observed that a defendant’s age will sometimes be a mitigating factor of high or even decisive significance not to be circumscribed by any fixed upper limit.13 This reflects the fact that young people are more at risk of poor and impulsive decision making and more vulnerable to negative influences.14
13 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83].
14 R v Slade [2005] 2 NZLR 526, (2005) 21 CRNZ 600 (CA); Dickey v R [2023] NZCA 2, [2023] 2
NZLR 405 at [76]-[86], citing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
[27] Of particular relevance here is the influence on your offending of your then girlfriend, who was somewhat older than you at the time. While you cannot pass responsibility for your offending to her, I accept your attachment to your girlfriend and your insecurity about the future of the relationship played a significant part in your decision to offend.
[28] I also have regard to the prospect of rehabilitation and your desire to focus on work and your family rather than gang membership or lifestyle. You are in full time employment working up to sixty hours a week. Your counsel suggests you take great pride in your employment and ability to support your mother and younger siblings. Those things are to your credit.
[29] Together, accounting for discounts for guilty plea, youth and prospects of rehabilitation, a reduction of 50 per cent from the starting point is required.
[30]That results in an end sentence of 9 months’ imprisonment.
Community Detention
[31] As I have arrived at an end sentence of less than two years, I must consider whether a non-custodial sentence is appropriate.15
[32] I have regard to your employment. I accept that you are a hardworking employee who helps supplement your family’s income.
[33] Both the Crown and your counsel agree that a period of community detention and intensive supervision would be appropriate. I am also satisfied that is the least restrictive outcome that is appropriate in the circumstances.16
Result
[34]Would you please stand now Mr Tararo.
15 Sentencing Act 2002, s 15A(1).
16 Sentencing Act, s 8(g).
[35] On the charge of possession of a firearm, you are sentenced to four and a half months’ community detention. The sentence is to be served at the address identified in the pre-sentence report. Your curfew hours are 8pm to 5.30am, seven days a week.
[36] You are also sentenced to intensive supervision for 12 months, on the special condition recommended by the pre-sentence report writer.
[37]You may stand down.
Isac J
Solicitors:
Crown Law, Wellington
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