R v Taunga

[2017] NZHC 1680

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-8634 [2017] NZHC 1680

THE QUEEN

v

TEINA TAUNGA

Hearing:	20 July 2017
Appearances:	Y V Yelavich and A F Devathasan for Crown P K Hamlin for Defendant
Sentence:	20 July 2017

SENTENCING REMARKS OF PETERS J

Solicitors:           Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

Counsel:            P K Hamlin, Auckland

R v TAUNGA [2017] NZHC 1680 [20 July 2017]

[1]      Mr Taunga, today I am sentencing you for the manslaughter of Gary Moore on 31 July 2016.  The maximum penalty for manslaughter is life imprisonment.  I gave you a first strike warning when you were convicted last month.

[2]      I shall start by setting out the events leading to Mr Moore’s death.

[3]      Then I shall turn to the first step in the sentencing process which is to set a

“starting point” that reflects the wrongdoing in your offending.

[4]      The second step is to take account of matters that are personal to you and which may require me to increase or reduce the sentence otherwise established by the starting point. That includes your offer to plead guilty at an early stage.

[5]      So what this means, Mr Taunga, is that you will not know your sentence until

I get to the very end.

Background

[6]      You and Mr Moore worked together and were good friends, even though he was at least 25 years older than you.

[7]      On Saturday, 30 July 2016, Mr Moore asked you over to the house he shared with his partner, Ms Stills.   You and your partner, Ms Christian, arrived there at about 10 pm. You, Mr Moore and Ms Christian went into Mr Moore’s garage to play pool, and started drinking alcohol.

[8]      Ms Christian’s evidence was that you and Mr Moore were getting on well, having a “bromance” but became louder and more boisterous the more you had to drink.  She said that there was some pushing and shoving and swearing as the night progressed and, at about 4 am, she went to her car to sleep.

[9]      After this, you and Mr Moore had some cannabis and methamphetamine.  It appears Mr Moore was the one who supplied that methamphetamine.

[10]     You told the police that Mr Moore was pushing and teasing you, he being a better pool player and that there was a scuffle between you, after which you carried on playing pool.  Then there was a second, far more serious altercation or fight, the upshot of which was that you put Mr Moore on the ground, punched him several times, hard, to the head, you had Mr Moore pinned him down and you then strangled him around the neck, with your bare hands.

[11]     You said to the police that you had your hands around Mr Moore’s neck for

“two minutes, five minutes”.

[12]     Dr Glengarry’s evidence was that you must have applied “significant” force to Mr Moore’s neck to do what you did.  She could not be exact about timing, but expected it would be in the vicinity of your estimate.

[13]     As Dr Glengarry said, a victim who is being strangled will fight back so you would have had to overcome Mr Moore trying to get you off him.  Dr Glengarry also said that you caused damage to muscles deep in the neck, and caused fractures in the voice box and in the hyoid bone.  The gist of Dr Glengarry’s evidence was that you must have used considerable force to do both.  As she indicated, bone is bone, and not easily broken by someone’s bare hands.

[14]     I accept that Mr Moore may have been coughing and moving when you stopped strangling him, as you told the police, and that you did not know he was dead.  In fact, because of those things you thought he was alive.  You left Mr Moore on the garage floor, in a pool of blood, got into his car thinking it was your own – which is indicative of the level of intoxication you were under – and you went backwards and forwards to the garage, telling him to wake up.

[15]   Quite aside from strangling Mr Moore, at some point you inflicted a considerable beating on him.  Mr Moore had extensive bruising to his face, possibly from the punches that I have mentioned, and numerous bruises and lacerations to his arms, legs and back.  Dr Glengarry thought these might have been caused by a pool cue, that is you hitting Mr Moore with the pool cue, and some may be evidence of

restraint, caused when you pinned Mr Moore to the floor.  There were at least two broken ribs.

[16]     I  accept  that  Mr  Moore  teased  you.    The  manner  in  which  one  of  the witnesses described Mr Moore was consistent with your account of his behaviour that night.   But this cannot in any way justify your behaviour.   At 26 you are expected to walk away from such things.

[17]     The evidence at trial was that you and Mr Moore would both have been intoxicated at the time of death, assuming that was at about 6 am on the Sunday morning.   Dr Glengarry said that Mr Moore’s level of intoxication would have contributed to his death, because of the effects that alcohol and methamphetamine have on the heart when it is under stress.

[18]     The police tested the level of alcohol and methamphetamine in your blood later that morning, from which it was possible to say that you were moderately to severely intoxicated at the time of death, if that were about 6 am.

[19]     Ultimately it was Mr Moore’s partner who called the police the next morning when she discovered Mr Moore in the garage.  You cooperated with the police and accepted that your actions had caused Mr Moore’s death from the outset.

[20]     The only issue at trial was whether this was a case of manslaughter as you said or murder.  The difference between the two came down to your state of mind at the time of death.   Plainly by their verdict the jury were not persuaded beyond reasonable doubt that you had the necessary intent, hence the not guilty verdict on the murder charge.

Victim impact statements

[21]     Everyone in the Court this morning has had the benefit of hearing the victim impact statements from Ms Stills, her sister and brother in law, Ms Rangi Stills and Mr Carl Page and Mr Moore’s sister and brother, Ms Marama Moore and Mr Joseph Moore.

[22]     Each   was   honest   and   heartfelt   and   surprisingly   measured   in   the circumstances.    Mr Taunga,  you  have killed  Mr Moore,  you  have deprived his partner and family of their relationship with him and the many, many good times that were still to come for them.  You have instilled great fear and anxiety in Ms Stills, such that her lifestyle has been affected considerably and for the worse.  She is now permanently concerned and worried about what will happen next.

[23]     And without in any way detracting from the effect on Mr Moore’s family, there are consequences for your own.  You have five children, the responsibility for whom now falls wholly on their mothers.

Starting point

[24]     I turn now to the actual sentencing process and the setting of the starting point.  The only sentence that I can impose is imprisonment, and the only questions are for how long and whether I should impose a minimum period of imprisonment.

[25]     As for how long, as I have said the first stage of the sentencing exercise is to determine the “starting point” – that is where does offending of this kind, with these features sit against similar offending, and in this way treat you on the same basis as others who have offended in a similar way.

[26]     That starting point needs to be sufficient to deter you and others from acting in this way, to denounce your violence and to hold you accountable for the many consequences of your actions.

[27]     Both Ms Yelavich and Mr Hamlin have suggested that in setting the starting point I should have regard to guidelines that apply when sentencing for serious violent offending, and then increase it for the fact that you have caused death.1

[28]     These guidelines establish ranges of starting points, depending on the features

of the offending, such as whether the victim’s head was attacked, the extent of the

1      R v Taueki [2005] 3 NZLR 372 (CA).

violence,  the  use  of  a  weapon  and  if  so  what  type,  whether  the  victim  was vulnerable, whether the victim was subject to attack by a group and so on.

[29]     On that approach, the Crown submits that the starting point should be 10 years imprisonment because the offending included an attack to the head and neck; a considerable  disparity  between  your  strength  and  Mr  Moore’s,  he  being  much smaller at 66 kilograms and you weighing about 120 to 130 kilograms; and of course he is almost twice your age, possibly more than twice your age; and because of the extensive assault on him including with a weapon, even though this was not the

cause of death.2

[30]     On the other hand, Mr Hamlin submits that I should adopt a starting point at the lower end of what is referred to as band 2 and, in particular, that I should adopt a starting point of six years.  He submits that two features of the offending stand out – the attack to the head and the degree of violence and injuries inflicted.

[31]     For myself, I am not persuaded that it is appropriate to apply the Taueki guidelines in this case, given that the cause of death was a single act.   The other assault was serious but peripheral to the main act, namely strangulation.

[32]     For that reason, I think the better course is to consider the features of your offending against other cases where the Court has sentenced for manslaughter where the cause of death has been strangulation.  Counsel have referred me to several such cases.3

[33]     In R v Davis, the defendant and the victim had an arranged fight.   The defendant put the victim in a headlock twice and briefly.  The victim died, although his many health conditions contributed to his death.  The Judge adopted a starting

point of four and a half years by comparison to “one punch” cases.

2 At [40].

3      Te Pana v R [2014] NZCA 55; R v Poata [2014] NZHC 1028; Turi v R [2014] NZCA 254; R v Rangi [2015] NZHC 1879; R v Davis [2015] NZHC 3267; R v Hunt [2016] NZHC 881; R v Ormsby [2016] NZHC 2220 and R v Dunn [2016] NZHC 2552.

[34]     In R v Fernyhough, the defendant and the victim got into a scuffle.4    The defendant put the victim in a headlock for up to 40 seconds and the victim died.  The Judge adopted a starting point of six years.

[35]     In R v Harrington, the victim kicked the defendant’s bicycle causing him to fall off.5   In the fight that followed, the defendant placed the victim in a “choke” hold for 20 seconds, until the victim collapsed.  The defendant then punched and kicked the victim several times in the head, as well as kicking him in the back.  The Judge adopted a starting point of seven years.

[36]     Higher starting points were adopted in R v C, R v Keogan and R v Samson.6

[37]     In C, the defendant strangled his girlfriend to death – a prolonged exercise, and one that would have been terrifying to her.  The Judge adopted a starting point of eight years.

[38]     In Keogan, the defendant made several threats to kill his estranged wife and then strangled her when she arrived at his house.   The Court of Appeal upheld a starting point of nine years, taking into account the degree of premeditation – not present in your case.

[39]     In Samson, the defendant strangled the victim to death with a computer cable. The defendant and the victim were in a relationship.  Earlier in the day, the defendant had tied up the victim and assaulted him sporadically over a period of four hours. The Judge adopted a starting point of nine years.

[40]     In summary, there is a range of starting points in these cases from four and half years to nine.  In my view, your offending is closer to the upper end because of the size disparity, the degree of pressure you applied, the period of time for which you did so and the associated violent and extensive assault.  Accordingly, I adopt a

starting point of eight years.

4      R v Fernyhough [2014] NZHC 2298.

5      R v Harrington [2017] NZHC 170.

6      R v C HC Tauranga CRI-2005-070-765, 30 June 2006; R v Keogan CA266/93, 29 September

1993; and R v Samson [2017] NZHC 1632.

Aggravating factors

[41]     I turn now to the second stage and that is whether other matters personal to you require me to increase or reduce the sentence from the starting point.

[42]     You have four previous convictions for offending involving violence.   I do

not accept your counsel’s submission that these should be put to one side.

[43]     You were convicted of assaulting a female in each of 2008 and 2009.  I do not know the circumstances of that offending.

[44]     On 27 August 2013, you were convicted of assaulting a person with a blunt instrument.  I have the summary of facts for this offending.  It says that you assaulted your former partner – with whom you have four children – with a metal vacuum cleaner pipe and when she drove you home at your insistence, you struck her several times on the back of her head while she was driving.   On top of that to stop her communicating, you bent her phone with your bare hands.

[45]     Then just four months later, on 21 December 2013, you were again convicted of assaulting a female.  On this occasion Ms Christian, with whom you have another child, was the victim. The police were called to a disturbance and on arrival saw you grab Ms Christian by the throat and slam her onto the bonnet of a car.   It took police intervention to stop you.

[46]     The Crown has suggested an uplift of nine months.  For myself, I think an uplift of 12 months is required.   This is not to punish you twice for the same offending but because the sentences imposed on those occasions plainly did not bring home to you that your violence is totally unacceptable.

[47]     This brings the sentence to nine years.

Mitigating factors

[48]     I turn now to consider whether there are any factors which require me to reduce the sentence from that point.

[49]     A considerable amount of material has been put before me to demonstrate your remorse for your behaviour and its consequences; to demonstrate that you have developed insight into your problems of anger management and the like; and from your partner and former partner, Ms Christian and Ms MacShane, to indicate to me that, when you are sober, you have the capacity to be an excellent father and partner.

[50]     I also have references from your employer which indicate that you were marked out for higher things and indeed they were looking to promote and develop your skills.

[51]     The Provision of Advice to Courts report states you told the writer that you have an unaddressed anger management problem and that this time you went too far. But as I have indicated to you, you have gone too far on four prior occasions.  You have had ample opportunity to tackle these issues and you have either not done so or you have done so in a way that has not worked.

[52]     I have also read Dr Caleb Armstrong’s report which refers to you having gained insight into difficulties controlling your anger, your willingness to address those difficulties and also to address your alcohol and drug use.  I do not diminish the importance of you gaining these insights but I am not willing to discount your sentence for them or because of your remorse.   As I say,  you have  had ample opportunity before this incident to address these issues and you have not done so.

[53]     I am, however, going to reduce the sentence because of your offer to plead guilty  to  manslaughter  as  long  ago  as  10  November  2016.    The  Crown  have suggested a discount of 20 per cent, your counsel suggested 25 per cent.  Twenty per cent is more than fair, given that you were always guilty of manslaughter.

[54]     This 20 per cent reduction brings the end sentence to seven  years, three months.

Minimum period of imprisonment

[55]     Then I have to determine whether I should impose a minimum period of imprisonment, as the Crown has asked me to do.  I may impose a minimum period of imprisonment if satisfied that the period otherwise applicable under the Parole Act

2002 would be insufficient for the purposes of holding you accountable, for denunciation, deterrence, and protecting the community from you.7

[56]     An offender is usually eligible to apply for parole after serving one-third of his sentence.  In your case, that would mean you would be eligible for parole after serving, say, just two years, four or five months’ imprisonment.

[57]     I consider that period would be manifestly inadequate to meet all of the purposes to which I have referred and which are to the fore in your case.  I consider a minimum period of imprisonment of 50 per cent, which I calculate as being three years, six months, is required.

Sentence

[58]     Please stand.

[59]     Teina Taunga for the manslaughter of Gary Moore I sentence you to seven years, three months’ imprisonment, and impose a minimum period of imprisonment of three years, six months.

[60]     Please stand down.

Peters J

7      Sentencing Act 2002, s 86(2).