R v Tawhai
[2023] NZHC 311
•27 February 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-096-856
[2023] NZHC 311
THE KING v
TEIMANA TAWHAI
Hearing: 27 February 2023 Appearances:
M E Page for the Crown
C L Parkin for the defendant
Judgment:
27 February 2023
SENTENCING OF COOKE J
[1] Teimana Tawhai you are now to be sentenced as a result of your guilty pleas to one charge of aggravated burglary;1 and one charge of aggravated wounding.2
[2] Your guilty pleas follow an earlier sentencing indication. In order to determine your sentence I will address three matters:
(a)First I will describe the facts of the offending.
(b)Secondly I will outline the approach that is taken in assessing a starting point for offending of this kind. That is an assessment I have already undertaken in the sentencing indication.
1 Crimes Act 1961, s 232(1) and 66; maximum penalty of 14 years’ imprisonment.
2 Section 191(1)(a) and 66; maximum penalty of 14 years’ imprisonment.
R v TAWHAI [2023] NZHC 311 [27 February 2023]
(c)Finally I will address discounts from that starting point arising from your guilty plea and other matters personal to you given further information now available.
The offending
[3]I start by describing the offending.
[4] In accordance with the summary of facts the alleged offending took place on 10 January 2022. You and three co-offenders drove a Toyota motor vehicle to an address on Norana Road in Upper Hutt. You and two others armed yourselves with a 12-gauge shotgun and approached the address so armed, intending to settle a dispute with one of the occupants of the address.
[5] There was a party happening at the address with a number of people present. Your group approached the door. An altercation took place at the door and the victim fled down a short hallway. As he fled the shotgun was fired three times down the hallway by one of your associates. The victim was struck by a number of pellets on the left side of his abdomen, resulting in numerous wounds although it is not said that they were serious wounds. You and your co-defendants then ran back to the vehicle, which fled the scene back towards Lower Hutt.
[6] The vehicle was stopped by the police after a short but erratic pursuit, and a search was conducted, revealing the 12-gauge pump action shotgun.
The starting point
[7] The Crown has suggested a starting point of nine years taking aggravating burglary as the lead charge and applying an uplift for the aggravated wounding charge. Your counsel has said that this is too high given factors relating to your involvement.
[8] I do not consider that I should set a starting point using the aggravated burglary charge, and then further uplift for the aggravated wounding charge. That would be artificial. The facts for each of those charges are the same, and when sentencing for aggravated burglary the aggravating factors include the fact that a firearm used in the burglary was discharged wounding another person. The sentence for this conduct
should not be higher simply because a further charge for the same conduct is added. So I think it more appropriate to set a starting point using the aggravated burglary charge, taking into account the wounding as one of the aggravating factors. The total sentence I will impose will be one relevant to both charges, however. The sentence will accordingly be entered for each of those charges, but imposed concurrently so that you effectively serve a single sentence of the length I will determine.
[9] There is no tariff decision for aggravated burglary. But it is accepted that the Court of Appeal’s guideline decision for aggravated robbery in R v Mako applies,3 notwithstanding that this is an aggravated burglary.4 I consider the following factors as aggravating as referred to in R v Mako arise in the present offending:
(a)there was planning and premeditation given that the offending was part of a gang-related dispute resolution exercise, and that you and your co- defendants armed yourselves beforehand;5
(b)there was use of a weapon and a person was wounded by its discharge;6
(c)there were a number of participants;7 and
(d)it involved a home invasion at night.8
[10] I have considered the comparable cases and consider the following provide the most assistance.
(a)In Hay v R9 the appellant and his co-offender went to the property of the victims to collect a debt. The victims and their three children were asleep at the time. The appellant and his co-offender broke through the back of the house, the co-offender armed with a loaded firearm and the appellant with a crowbar. The victims were threatened and drugs,
3 R v Mako [2000] NZLR 170 (CA).
4 See R v Watson CA 224/03, 24 October 2003; the Court of Appeal held that the principles expressed in Mako are applicable to aggravated burglary.
5 R v Mako, above n 3, at [36].
6 R v Mako, above n 3, at [39].
7 At [37].
8 At [58].
9 Hay v R [2015] NZCA 329.
money and vehicles were taken. The Court adopted a starting point of eight years’ and three months imprisonment for the co-offender who carried the gun, and seven years and nine months for the appellant which was upheld on appeal.10
(b)In R v Poole, Perry and Murphy11 the victim failed to repay a loan to Mr Poole. Tensions mounted over this, heightened when the victim formed a relationship with Mr Poole’s ex-girlfriend. Mr Poole then procured two associates to undertake the attack. The two associates entered the victim’s home disguised in baklavas and armed with a wooden pole and an imitation pistol. They attacked the victim and his neighbour who happened to be at the address at the time. The defendants also obtained the victim’s wallet and cash and some cannabis. The High Court considered all three defendants were equally culpable for the offending and adopted a starting point of eight years and six months’ imprisonment.12
(c)R v Stade which was a Crown sentence appeal.13 Three men who had been consuming drugs decided to steal drugs from another house. They took a .22 calibre rifle with them in the car. Mr Stade then remained in the car while the other two entered the property. The gun was pointed at the victims and drugs and money were demanded. Mr O’Connell struck one of the victims in the face with the gun barrel, and Mr Jackson grabbed the victim by the chest and struggled with him. The Court adopted a starting point of eight years for Mr O’Connell, and seven years for Mr Jackson. The appeal related to Mr Stade whose role was as a look out and getaway driver. The Court held that a starting point of eight years for the principle offender who had the gun was unimpeachable, and that Mr Stade’s starting point should have been six years. The Court also noted that there were a range of cases that established that a discount of one to two years from the lead offender’s
10 At [55].
11 R v Poole, Perry and Murphy [2014] NZHC 1126.
12 At [17].
13 R v Stade [2015] NZHC 2611.
starting point would be justified on the basis of diminished involvement.14
[11] In the present case there is more seriousness from the above cases because the shotgun was actually discharged causing the wounding. The starting point for the principle offender who discharged the shotgun would accordingly be higher. But you did not hold or discharge the shotgun. You are sentenced on the basis that you were a participant. But it is nevertheless generally more serious offending because the shotgun was discharged and a person was wounded.
[12] In the circumstances I consider the appropriate starting point for your involvement in this offending is eight years’ imprisonment. It would have been higher if you had been the shooter, and lower but for the fact that the firearm was discharged causing the wounding.
Discounts
[13] From that starting point discounts are allowed for personal mitigating circumstances. No uplift for personal circumstances, or minimum period of imprisonment is sought by the Crown. I have had the benefit of a pre-sentence report, a cultural report and a drug and alcohol report.
[14] The first discount arises from your guilty plea. This discount is significant because by admitting your guilt you remove the need for the victims to give evidence at a trial or trials. That is important in this kind of case. There is agreement that there should be a 25 per cent discount here.
[15] You are then entitled to other discounts for personal circumstances. I will address each of the relevant factors, and then explain the total discount I will give for those factors.
[16] First you are entitled to a discount for your youth at the time of the offending. I note the Court of Appeal has previously indicated 22-year olds are at the upper end
14 At [33] citing Edwards v R [2013] NZCA 349, Jones v R [2015] NZCA 312; R v Royal [2009] NZCA 65.
of the range for youth.15 But in Churchward v R the Court of Appeal explained how youth is relevant to sentencing.16 The Court observed that age-related neurological differences that give rise to more vulnerability or susceptibility to negative influences and outside pressures and that such factors continue into the 20s. There is also the effect of imprisonment on young people, including that long sentences could be crushing. Further, young people have a greater capacity for rehabilitation. Discounts have been given for offenders in their 20s given such matters.17 You have a criminal history, although not of this more serious kind. I consider the probability of you being susceptible or pressured is lower than an impressionable youth who has not acquired such prior convictions. However I also accept that this more violent offending is out of character for you. In those circumstances I would consider a discount of approximately 5–10 per cent could be possible to appropriately to reflect the effect of your youth.
[17] You are also entitled to be considered for a discount for cultural reasons, and I have the benefit of a cultural report from Mr Harry Walker earlier prepared for you in 2018. Mr Walker has described your whakapapa although more is known about your mother’s side. Through that side you have connections with Ngāti Porou, Ngāti Uepohatu and Ngāti Kahungunu. You also have Ngāpuhi connections through your father. The lineage on your mother’s side is a very distinguished one, but one that appears that you know little about. The report writer explains how the movement away from traditional iwi land, particularly after World War II has led to the loss of social, cultural and economic stability and identity of your whānau. It is explained that your life has been fraught with confusion and inconsistent care, being raised by your mother in a hard to reach group environment. You have lacked a male role model in your life, although you had such a person who fulfilled that role for you, Mr Ngaro Nukunuku who the report writer knew who unfortunately died in 2018.
[18] I accept that this information provides the causal connection between social and cultural deprivation and offending in accordance with the principles set out in Solicitor-General v Heta.18 Having said that, unlike many offenders who have
15 Huata v R [2013] NZCA 470 at [34].
16 Churchward v R [2011] NZCA 531 at [77].
17 See R v Gacitua [2012] NZHC 2542; Su’e v R [2019] NZHC 2501; R v Maka [2020] NZHC 1161.
18 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
suffered the adverse effects of colonisation you have not had a life of extreme deprivation characterised by severe abuse and other offending against you. So a discount is warranted, but not at the higher end. Given I have assessed a discount of approximately 5–10 per cent for youth already I need to be cautious not to give too great additional allowance for cultural factors on top of that. But it contributes to the sense that a meaningful personal discount is appropriate.
[19] Finally there is information explained in the drug and alcohol report. The report writer describes your history of drug and alcohol use in the context of your family environment, indicating that you have severe alcohol and stimulant use disorders which have contributed to poor decision-making and participation in the events that have given rise to this offending. It is explained that you have expressed a willingness to participate in treatment, and programmes that may be utilised during your sentence of imprisonment have been suggested. I accept that the normalisation of drug and alcohol use, and your addiction, is relevant in understanding what has led you to this offending and that you struggle with addiction issues.
[20] Addressing all of these factors — youth, cultural factors, and drug and alcohol addiction I consider that there should be a discount of approximately 10 per cent for personal mitigating circumstances. That is on top of the discount for the guilty plea of 25 per cent. That is a total discount of approximately 35 per cent.
[21]That takes your sentence down to five years two months’ imprisonment.
Sentence
[22] Teimana Tawhai would you please stand. On the charges of aggravated burglary and aggravated wounding I sentence you to five years two months’ imprisonment on each charge, to be served concurrently, meaning that your effective sentence is five years two months’ imprisonment.
Cooke J
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