R v Tauroa

[2020] NZHC 376

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-225-000004

[2020] NZHC 376

THE QUEEN

v

PIHAMA JOHN TAUROA

Hearing:	28 February 2020
Appearances:	S N McKenzie and W T Chapman for the Crown S A Saunderson-Warner for the Defendant
Judgment:	4 March 2020

SENTENCING REMARKS OF NATION J

Introduction

[1]    Pihama Tauroa you pleaded guilty to being a party to a wounding with intent to cause grievous bodily harm. Your counsel has said everything that could be said for you. I have also had very full submissions from the Crown and everyone in Court should know that I have considered what was presented to me in writing carefully. I have also had the benefit of the three victim impact reports and they assist me in also just explaining what impact your offending has had on other people. Mr Tauroa, with your background and what you know happened within your own family, it has probably been good for you to hear read to you this morning the victim impact report of [  ] mother.

R v TAUROA [2020] NZHC 376 [4 March 2020]

Factual background

[2]    I sentence you with reference to the summary of facts. It was the basis on which you pleaded guilty.

[3]    At approximately 5.15 pm on 16 February 2018, the victim and three other young people were walking together on a street in South Invercargill. The victim, a 23 year old man, was wearing a Mangu Kaha t-shirt.

[4]    Three vehicles occupied by approximately 10 Mongrel Mob members or associates intercepted the group. One vehicle parked directly next to the victim. The front passenger was seen to point a firearm out of the window at the victim and pull the trigger twice, but the firearm failed to fire.

[5]    The occupants got out of their vehicles and several approached the victim. A witness reported a second person as carrying a firearm and presenting it at the witness. Indications were that two firearms were presented by people within the group. Your counsel, in her submissions, referred to the fact that a number of the group were there, a number had weapons with them. That is also consistent with the evidence I heard at trial. That is, weapons other than the rifles and the knife.

[6]    The group seriously assaulted the victim, punching and kicking him while he was on the ground. Clothing, including his Mangu Kaha t-shirt, cell phone and cap were taken. During the assault, one person produced a knife and stabbed the victim five times in the lower back.

[7]    After the assault, the three vehicles left the scene in different directions. One occupant pointed something at a witness that may have been a firearm. As that vehicle drove away, the victim’s cap was thrown out of a window.

[8]    The victim was hospitalised with what the summary of facts described as “potentially life-threatening injuries”, including lacerations to his liver, kidney and spleen.

[9]    The attack was unprovoked. During the attack, people within the attacking group chanted obscenities linking them to the Mongrel Mob.

[10]   One of the vehicles that was at the scene of the attack was a brown van. Another vehicle was the BMW which your co-offender Lawson, who pleaded guilty, was travelling in. Lawson was then subject to GPS monitoring while on pre-release conditions. GPS data established he visited your address several times before the incident, including a five minute visit from 4.53 pm to 4.58 pm. The BMW and van were seen travelling in convoy through the city centre towards the scene of the incident at six different locations between 5.00 pm and 6.00 pm. Both the van and the BMW were identified at the scene during the attack. After leaving the area of the attack, Lawson travelled to your house at 5.32 pm.

[11]   On the evening of Saturday 17 February 2018, you were travelling in the van at Mataura. You told the Police the van was your vehicle and you were the only person to have used the van since the evening of Thursday 15 February 2018. You were then the president of the Invercargill chapter of the Mongrel Mob. At that time, on 17 February, you were wearing a Mongrel Mob patch.

[12]   You pleaded guilty to a charge that, jointly, with intent to cause grievous bodily harm to the victim, you wounded the victim. You must thus be sentenced on the basis you assisted in the attack, knowing that a wounding of the sort that happened would occur. If you were not present at the attack as you claim, you must be sentenced on the basis you assisted in setting up the attack.

[13]   You told the Probation Officer you were not present during the attack. You told the Probation Officer that you were having a sleep with your boy at home at the time and someone had borrowed your van. The Probation Officer suggested your counsel might like to elaborate about this at your sentencing. Ms Saunderson-Warner has not done so although she submits there is no evidence of your being present, and she made some submissions in relation to that. I do not accept that submission. Your van was identified at the scene. You told the Police you were the only person to have driven that van at the relevant time.

[14]   However, for reasons I will discuss, it matters little whether you were actually at the scene or materially assisted in the planning of it and helping to make it happen.

Law

[15]   The offence of wounding with intent to cause grievous bodily harm carries a maximum penalty of 14 years’ imprisonment. The guideline judgment, as you have heard, is a judgment from the Court of Appeal in a case R v Taueki.1

[16]   In sentencing an offender, the Court must bear in mind the purposes and principles of the Sentencing Act 2002.2 The sentencing principles relevant to you are:

(a)        to hold you accountable and responsible for the harm done to the victim and the community;

(b)       to denounce the conduct in which you were involved;

(c)        to provide for the interests of the victim of the offence;

(d)       to deter you and other persons from committing the same or a similar offence;

(e)        to protect the community from you; and

(f)         to assist in your rehabilitation.

[17]   The Court must bear in mind the need for consistency, and compare this case to similar decisions in respect of gravity and seriousness of offending.

Starting point

Submissions

[18]The Crown submits the following aggravating features are present:

(a)        premeditation;

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

2      Sections 7 and 8.

(b)       use of weapons;

(c)        extreme violence;

(d)       multiple attackers;

(e)        gang warfare; and

(f)         serious injury.

[19]   Ms Saunderson-Warner, for you Mr Tauroa, accepts the features of premeditation, use of weapons, multiple attackers and gang warfare. She submits that the assault was of relatively short duration, and that the seriousness of the violence was due to the number of attackers and use of weapons, so should not be double- counted. She argues the injuries were not overly serious given, what she submitted, was no evidence of permanent disability or life-threatening injury. The summary of facts did refer to potentially life-threatening injuries.

[20]   Regardless, both counsel accept the aggravating features mean the principal offender would be placed in band three of Taueki, which provides for a starting point between nine and 14 years’ imprisonment. The offending fits squarely into one of the examples given by the Court of Appeal of band three offending, being a serious concerted street attack.3 Ms Saunderson-Warner however submitted that relates to the person who did the stabbing. She puts your involvement in a different category that, she submits, indicates that a significantly lesser starting point should be adopted.

[21]   The Crown refers to Simeon v R, where the Court of Appeal upheld a starting point of seven years’ imprisonment for two appellants convicted of wounding with intent to cause grievous bodily harm.4 In that case, approximately 15-20 associates of the Mongrel Mob gathered on a Black Power street, armed with bats and sticks. The victim, a resident of the street, walked onto his driveway and was assaulted by six Mob associates. He was punched twice on the head and hit on the head with a hockey stick and a Jim Beam bottle. The appellants were convicted as parties to the assault. In sentencing them, the District Court noted:

3      R v Taueki, above n 1, at [41].

4      Simeon v R [2010] NZCA 559.

[9] When a group of people involve themselves collectively in violence against somebody else, they must all take responsibility for the actions of the group. It may be that the particular injuries inflicted with the bottle or the hockey stick might have been blows struck by somebody else. What was perfectly clear from the evidence was that both of you were identified as people who were involved from the beginning and were there until the end.

[22]   The Court of Appeal approved of the District Court Judge approaching sentencing on the basis of collective responsibility.5 But, as was mentioned by counsel for the Crown, they found that the decision to adopt a starting point in the middle of band two was “merciful”.6 Your counsel, Ms Saunderson-Warner, said that, nevertheless, in that case, people being sentenced had been involved in the attack from start until finish and she suggests that you should be sentenced on the basis that does not apply to you.

[23]   The Crown submits the present offending is more serious than in Simeon, given the weapons were more serious and the victim received potentially life-threatening injuries. The Crown suggests a starting point of 10 years’ imprisonment would be appropriate.

[24]   Ms Saunderson-Warner submits that, had you been the principal in the stabbing, a starting point of nine years would have been appropriate. However, she contends, as you heard, that you should receive a lower starting point in recognition of your role as a party. She refers to the Court of Appeal’s statement in Taueki that: “[w]here there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed”.7 She says this is supported by s 9(2)(d) Sentencing Act, which provides that limited involvement in an offence is a mitigating factor.

[25]   Ms Saunderson-Warner submits that you can be seen as a “third tier” offender given that you did not inflict the stab wounds and have not been identified as being in the group who assaulted the victim (as the appellants in Simeon were). She accepted that the evidence suggests your vehicle was at the scene but she submits there is no evidence of your being present. In those circumstances, she argued that you were

5 At [41].

6 At [43].

7      R v Taueki, above n 1, at [42].

“truly less than a full participant” and should receive a lesser sentence.8 She suggests six years would be an appropriate starting point.

Discussion

[26]   I agree that the aggravating features are as outlined by the Crown, but accept Ms Saunderson-Warner’s point about not double-counting extreme violence. This factor is already somewhat covered by the use of weapons and the seriousness of the injuries.

[27]   This case clearly falls within band three of Taueki, justifying a starting point in the range of nine to 14 years’ imprisonment.

[28]   It must be determined whether a lower starting point should be adopted to recognise that you have pleaded guilty as a party to the offending. The Court of Appeal recently discussed the variability in approach to culpability as between principals and secondary parties in Howard v R.9 What they said was:

Although there have been cases in which the person actually firing the shot has been treated as more culpable,10 it is not invariably the case. In R v Huata, for example, Collins J treated the principal and party as equally culpable and took the same starting point for both the principal offender, who shot the victim, and the party, who drove the getaway car.11 There is no reason, in principle, that the starting point for a principal offender and a party should not be the same, if the circumstances of the offending warrant that.12

[29]   There are clear examples of gang warfare where secondary parties have been given the same starting point as the principal offenders. In R v Huata, one defendant remained in the getaway vehicle while the other went to the victim’s car and shot him twice through the window.13 A starting point of 11 years was taken for both offenders. In R v Waa, Mr Waa told two co-defendants to “get” a member of a rival gang.14 The

8      Citing R v Mako [2000] 2 NZLR 170 (CA) at [64].

9      Howard v R [2018] NZCA 633 at [25].
10 See for example R v Raroa [2012] NZHC 1280.

11     R v Huata [2012] NZHC 2735. See also Huata v R [2013] NZCA 470, where one of the grounds of appeal raised by the party to the offending was that the starting point of 11 years’ imprisonment for wounding with intent to cause grievous bodily harm was too high. [The Court of Appeal] concluded that the starting point was available to the Judge and appropriate (at [22]).

12 R v Mako, above n 8, at [64]; and R v Smart CA57/94, 24 May 1994.

13 R v Huata, above n 11.

14 R v Waa HC Napier CRI-2007-020-1518, 7 May 2008; R v Hone HC Napier CRI-2007-020-1518; and R v Nathan HC Napier CRI-2008-020-4688. The Court of Appeal approved those starting

co-defendants drove after the victim and one shot him in the back. A starting point of 10 years was taken for all three defendants.

[30]   I find the case R v Tupu-Ngahere to be helpful.15 The defendant in that case was the last of five co-defendants to be sentenced for a joint charge of wounding with intent to cause grievous bodily harm. The assault was carried out because the victim wanted to leave Mangu Kaha. The defendant participated in the first phase of the assault, which involved a group attack in which he administered punches and kicks to the victim. The defendant was present and provided encouragement for the second phase of the assault, in which the victim was restrained while a co-defendant hit him with a hammer. The Judge adopted a starting point of nine and a half years for all five co-defendants.

[31]   I do not consider you should be given a significantly different starting point than if you were the person wielding the knife.

[32]   This was a clear act of premeditated gang violence, and you must take responsibility for being part of such a group attack. Furthermore Mr Tauroa, as the president of the Invercargill chapter of the Mongrel Mob, you must have had some influence over the rest of the group that day. The attack was brief, but that was because of the way it had been organised and coordinated. It was targeted and intense. The victim was vulnerable in that he was taken by surprise. He was blocked in by a vehicle and could not escape.

[33]So, I adopt a starting point of 10 years’ imprisonment.

Personal factors

[34]   Now, coming to you personally. You have some 31 convictions over a 23 year period. Your most recent serious conviction was committing burglary with a weapon, for which you were sentenced to three years and two months’ imprisonment in 2009. Your only other conviction for violence is common assault, for which you received a

points in Pekepo v R [2011] NZCA 305.

1. R v Tupu-Ngahere [2017] NZDC 21813.

$400 fine. The Crown does not seek an uplift for your previous convictions and I agree it is not necessary to apply one.

[35]   A s 27 cultural report has been obtained for your sentencing. And I am going to spend some time dealing with that. It outlines how you were raised by your grandparents until the age of nine, when you went to live with your parents. Your father was a patched gang member and you were given early exposure to gang life and violence. You witnessed and experienced “horrific” physical and emotional abuse throughout your childhood and adolescence. The pre-sentence report confirms that exposure to violence has been a significant factor in your gang affiliation and offending.

[36]   The report outlines how you have had limited access to positive Māori role models. It states:

Mr Tauroa does not possess, nor has he ever been taught appropriate life skills to confront challenging situations that would otherwise find positive solutions. Mr Tauroa’s early negative experiences with school, home life and the gang have caused him to learn survival skills, the intergenerational loss of identity and land have ultimately influenced the lifestyle choices and experiences of Mr Tauroa [sic] parents and himself.

[37]   Ms Saunderson-Warner submits that the deprivation and personal trauma suffered by you helps to provide context for the offending. She refers to Solicitor- General v Heta, where the Court considered the use of cultural reports to be “critical” to the sentencing assessment.16 In R v Cuthbert, the Court allowed a discount of nine months or approximately 13 per cent for cultural reasons.17 The defendant in that case had been raised in an environment of family violence and gang culture, and had been introduced to offending at an early age. Judge Taumaunu believed that background contributed to the offending.

[38]   It is clear you have been greatly affected by the violent and abusive environment in which you were raised. Your loyalty to the Mongrel Mob and associated offending is logically linked to your exposure to gangs and violence from

16     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [49].

17     R v Cuthbert [2019] NZDC 16558.

a young age. Your offending must be viewed in light of the background provided by the cultural report and pre-sentence report.

[39]   Mr Tauroa, you would do well to think about what has resulted from your family’s involvement with the Mongrel Mob over several generations. You assisted in an attack which could have killed a 23 year old who was doing neither you nor anyone else any harm. You assisted in an attack carried out in broad daylight in a residential area. The reports from the victims, the one who was injured and his mother, tell me how he is now unable to do the physical work and play the sports he used to. Understandably, he suffers from anxiety, stress and is at times depressed. You should now know that he was not a patched up member of a rival gang. Violence, that you helped happen, has scarred this young man for life, not as badly but in a similar way to your father’s violence left one of your family paralysed and now in a wheelchair.

[40]   Local residents did not hesitate in going to the assistance of the victim but, in doing so, they feared for their safety, not just at the time but for the future, because they had been witnesses to what had happened. I also acknowledge the distress that other witnesses have suffered and the courage they had to show in having to give evidence in the trial that was the result of all that happened in this attack. But, I acknowledge that, with your plea of guilty, you did what you could to avoid the need for that trial.

[41]   One of the people who was with you travelling in the van on the day of the stabbing and who was with you on 17 February 2018, was a 16 year old with no previous criminal history. As president, you were allowing him to be associated with the Mongrel Mob in ways that had the potential to seriously damage his life in the way yours has been damaged.

[42]   You have a supportive partner, and I do acknowledge her presence in Court today, and two young children. Your involvement with the Mongrel Mob has led to them being victims of your offending. You have not been present in their lives for some two years since you were arrested for this offending. You will not be available as a partner and father to support your family while you are in prison serving the inevitable prison sentence.

[43]   You have been described as an honest and reliable person in your work. Your employer wishes to support you in the future. That is going to be of huge benefit to you. I also have seen the reference that he provided. Having that employment available to you is going to make it easier, somewhat, for you to live a life independently of the Mongrel Mob in the future.

[44]   The Probation report says there was nothing in your home to indicate an association with the Mongrel Mob and the Probation Officer thought this could indicate you separated your involvement in the gang from your family life and associated responsibilities. That is also consistent with the very positive reference which I received this morning from someone associated with your Rugby League Club. It is clear that, through your association with that and the way you have involved your family in that, you are making, and are capable of making, a real positive contribution to the community. Mr Tauroa, the cultural report explains how your gang association is important to you, but you must now appreciate that your gang association cannot be separated from your family life. That gang association now means that, for a significant time, you will have no family life. Your children and partner will be the victims of that.

[45]   The Probation report and the cultural report suggest you have the potential to leave the Mongrel Mob. You are obviously a leader. Perhaps you will have the courage to do this. The cultural report tells me that your goal for your children is for them not to be like you. You do not want them to become gang members, continually in and out of prison. The cultural report also tells me of how you think you might be able to make changes in your life to help you achieve this. And, Ms Saunderson- Warner referred to the progress you have already made while in prison and matters that, quite rightly, you are proud of achieving there. I direct that the cultural report which was provided to the Court through your defence be forwarded to Corrections so the information in it can be used in your rehabilitation. In prison you will be able to participate in programmes that might help you to achieve what you want, but your history and what the report tells me of the gang environment indicates it will not be easy. I am sure all those who care for you would want you to be able to achieve what you actually want to achieve in this regard.

[46]   With the benefit of that cultural report, I am going to give you a discount of 15 per cent for personal mitigating factors. That brings a starting point of 10 years down to eight and a half years. You need to understand that is a merciful approach. You are of an age where you must be responsible for the choices you make in your life. The Probation report says you were capable of weighing up the pros and cons of maintaining an active association with the Mongrel Mob. If you remain actively involved with the gang and come before the courts for further offending, you should not expect to receive the same discount I am giving you.

[47]   I also make it clear that such a discount will not necessarily be given to your co-offender, a Mr Lawson, or other gang members who might offend in the future.

Guilty plea

[48]   You pleaded guilty to this offending approximately 21 months after it occurred, and two months before trial, but it was after an earlier trial had been scheduled. Your counsel and the Crown agree that a 20 per cent discount should be awarded for this plea. With a plea of guilty, you are taking responsibility for your actions in a way that was inevitably going to have serious consequences for you. You did originally face a more serious charge. I also acknowledge the way a guilty plea is of benefit to those who would otherwise have to be involved in giving evidence in a trial, and the savings it makes through not having to go to trial. It was not your fault in any way that there still had to be a trial. So, I do allow you a credit of 20 per cent. That brings the sentence down to a little over six years and nine months.

Minimum period of imprisonment

[49]   The Court may impose a minimum period of imprisonment if it is satisfied that the otherwise eligibility date for parole is insufficient for the purposes of holding an offender accountable, denouncing their conduct, deterring them and other persons or for protecting the community.18 The Crown submits that the usual non-parole period of one third of the sentence would be insufficient in this case. It suggests the Court should impose a minimum period of imprisonment of half your sentence.

18     Sentencing Act 2002, s 86.

[50]   Your counsel accepts that a minimum period of imprisonment might have been appropriate for the principal offender given the seriousness of the incident, but submitted it is not necessary for you given what she submitted was your limited involvement in the offence.

[51]   The seriousness of this offending is such that I agree a minimum period of imprisonment should be imposed. As discussed when reaching a starting point, the fact that you may not have wielded the knife itself does not lower your culpability in the circumstances of such violent group offending. The aggravating features apply equally to you. This means your sentence requires emphasis on accountability, denunciation, deterrence and community protection. I impose a minimum period of imprisonment of three years and five months.

Conclusion

[52]Mr Tauroa, please stand.

[53]   On your plea of guilty to a charge of wounding with intent to cause grievous bodily harm, you are sentenced to imprisonment for six years and nine months with a minimum period of imprisonment of three years and five months.

[54]You can stand down.

Solicitors:

Preston Russell Law, Invercargill

S A Saunderson-Warner, Barrister, Dunedin.