R v Te Kiri
[2022] NZHC 217
•18 February 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-2105
[2022] NZHC 217
THE QUEEN v
SHAUN TE KIRI
Hearing: 18 February 2022 Appearances:
A McConachy for Crown
N Tahana and T Afoa for Defendant
Judgment:
18 February 2022
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
R v TE KIRI [2022] NZHC 217 [18 February 2022]
[1] Mr Te Kiri you appear for sentence today having pleaded guilty to charges of kidnapping and participating in an organised criminal group. The kidnapping charge carries a maximum penalty of 14 years imprisonment, whilst the charge of participating in an organised criminal group carries a maximum sentence of ten years imprisonment.
[2] You pleaded guilty after I gave you a sentence indication on 14 October 2021.1 You will therefore understand how the structure of the bulk of the sentence is composed. I will attach the sentence indication to my sentencing remarks and it is to form part of them.
Background
[3] You pleaded guilty on the basis of an agreed summary of facts. This revealed that you became involved in the activities of a group of persons who decided to kidnap the victim, whom it was believed had stolen methamphetamine from the leader of the group. This resulted in the victim being kidnapped on two separate occasions. On each of these she was severely assaulted.
[4] The Crown accepts that you were not involved in the first incident, and that you were only involved in the early stages of the second incident. This incident occurred on the afternoon of 21 October 2020. On that date, you accompanied two others to a shopping mall to which the victim had been taken on a false pretext. The victim was then made to get into the vehicle in which you were travelling. At this stage you were armed with a knife and a long sword. After the vehicle drove away from the shopping centre, you were a party to a conversation in which it was said that the victim was being held as a hostage and that your associates would obtain money as a result.
[5] A message was then sent to the victim’s father telling him that the group were coming to get money from him. As the vehicle approached the father’s address, you placed a blue bandanna over your face. You then got out of the vehicle and adopted an intimidatory pose as others in the group confronted the victim’s father. You were
1 R v Te Kiri [2021] NZHC 2750.
present as he handed over a few thousand dollars in cash. Your role was therefore to provide support for those who were demanding money from the victim’s father.
[6] You then remained with the group for the balance of the day as they travelled around Rotorua with the victim in the vehicle. At one stage the vehicle stopped at a bar and some of the money was spent there. The victim was required to remain in the car whilst the group was in the bar. At the end of the episode the victim was taken to a motel where she spent the night. Your involvement in events ended at that point.
The sentence indication
[7] I found that your culpability lay in the fact that you participated fully in the events that occurred on the afternoon of 21 October. Your offending was aggravated by the fact that you were carrying two weapons whilst in the vehicle. These were clearly designed to intimidate the victim. You then adopted an intimidatory pose after the vehicle arrived at the victim’s father’s address and thereby supported the demands that he hand over money. I considered your involvement in these events warranted a starting point of five years imprisonment.
[8] I did not add any uplift to reflect the fact that you had previous convictions because I did not consider them to be relevant for present purposes. The only mitigating factor for which I gave you credit was that for guilty pleas. I allocated a discount of 20 per cent, or 12 months, to reflect pleas if they were entered in the near future. This meant that there was an indicated sentence of four years imprisonment before taking into account other mitigating factors that might be revealed by information provided to the Court at sentencing.
Additional mitigating factors
[9] I now need to determine the extent to which I should reduce your sentence further to reflect other mitigating factors. A wealth of material has been provided, both in the form of a pre-sentence report and material from your counsel.
Section 27 reports
[10] The most significant of these are two detailed reports prepared under s 27 of the Sentencing Act 2002. These outline in considerable detail your upbringing and the circumstances that led to the present offending.
[11] The s 27 reports make it clear that you were raised in difficult circumstances. You lived in an impoverished area. You were initially cared for by your mother and stepfather. However, by the time you were 13 years of age they were unable to control you and you were sent to live with your father. This proved to be problematic because he had no real interest in your oversight and effectively left you free to roam the streets at will. You had begun smoking cigarettes and consuming alcohol at about the age of 10 years. This was not discouraged by members of the family who were looking after you. You were then introduced to cannabis, which you smoked on a regular basis during your teenage years. This led to you becoming involved in criminal activity, such as burglaries, to support yourself.
[12] You had a period living in the South Island with your grandparents, during which it seems you were gainfully employed. Unfortunately when you returned to Rotorua matters took up where they had left off two years earlier. You have held down a variety of jobs, but none for any length of time. At one point you worked with your father in the bush. You said you did not particularly enjoy this work but that it gave you money to fund your lifestyle.
[13] You were not introduced to methamphetamine until you were 29 years of age. Prior to this, your consumption of both alcohol and cannabis had clearly been problematic. You were a prolific drinker of both beer and spirits. The consumption of cannabis and alcohol tailed off when you began consuming methamphetamine on a regular basis. This habit required you to fund your activities. It is clear that the consumption of methamphetamine had a major impact on your life during the six years leading up to the present offending.
[14] Your upbringing was complicated further by the fact that you were subject to various forms of violence at the hands of your father and other members of your
family. This led to you becoming increasingly depressed and, in turn, you became more dependent on cannabis and, subsequently, methamphetamine.
[15] It is not clear whether or how the consumption of methamphetamine directly contributed to you participating in the present offending. It appears that you became involved with this group because of your family relationship with at least one other member. It seems that the group had been consuming methamphetamine prior to the incident that gave rise to the present charges.
[16] Viewing your participation overall, however, I have no hesitation in concluding that your background of deprivation and drug use contributed significantly to the fact that you were present and participated in the events that occurred on 21 October 2020. I also accept that, by this stage, you had an addiction to methamphetamine, although as I have said, I am not sure of the extent to which this is likely to have contributed to the index offending. I consider that the factors identified in the s 27 report justify a further discount of nine months, or 15 per cent.
[17] You have also expressed your remorse in a letter to the Court. You say the victim should not have been treated in the way that she was. You say you thought your group intended to extort money from the victim’s family and that physical violence was not a likely outcome. As the summary of facts demonstrates, you were not present when the physical violence occurred and I therefore accept your observations.
[18] You clearly have some prospects of rehabilitation, given the fact that you now have strong family support and have been able to hold down various forms of employment in the past. However, this will depend very much on you being able to deal with your addiction issues. These will obviously be under control whilst you are in prison but will need to be the subject of close attention on your release. You have expressed the desire to become involved in some form of residential rehabilitative therapy and this seems the best way to ensure you do not revert to drug and alcohol abuse on your release from prison.
[19] I am prepared to give a further discount of five months to reflect your expressions of remorse and your determination to rehabilitate yourself.
[20] This means that I have identified further mitigating factors that justify a total deduction of two years two months from your indicated sentence. It follows that the effective end sentence will be one of two years ten months imprisonment.
Sentence
[21] On the kidnapping charge you are sentenced to two years ten months imprisonment. On the charge of participating in an organised criminal group you are sentenced to two years imprisonment. Those sentences are to be served concurrently.
[22]Stand down.
Lang J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2020-063-2105 [2021] NZHC 2750
THE QUEEN
v
DAISY DIXON SHAUN TE KIRI
Hearing: 14 October 2021
Counsel:S J Bird (on behalf of A McConachy) for Crown R Raukawa for Ms Dixon
N Tahana for Mr Te Kiri
Judgment: 14 October 2021
SENTENCE INDICATION OF LANG J
Solicitors:
Crown Solicitor, Rotorua
[1] Ms Dixon and Mr Te Kiri face a variety of charges arising out of incidents that occurred on 12 September and 21-22 October 2020. The charges include kidnapping, participating in an organised criminal group, causing grievous bodily harm with intent to do so and wounding with intent to cause grievous bodily harm.
[2] The defendants now seek a sentence indication. This is an indication of the sentences they would receive if they were to enter guilty pleas to the charges that they face in the near future.
[3] If the defendants decline the indications and are found guilty at trial the sentence indications will have no further effect. In that event the trial Judge will impose a sentence that reflects the overall gravity of their offending as established by the evidence at trial.
The facts
[4] A summary of facts has been prepared for sentence indication purposes. These are summarised in a sentence indication that I gave for another defendant in this proceeding, Ms Rickylee Dixon.2 I take the reader of the present indication to be familiar with the facts set out in the sentence indication I gave Ms Dixon on 7 October 2021 and I do not repeat them here. Rather, I summarise the involvement of the present defendants having regard to the factual background set out in the sentence indication for Ms Dixon.
Ms Daisy Dixon
[5] Ms Daisy Dixon faces charges of kidnapping (x2), participating in an organised criminal group (x2), wounding with intent to cause grievous bodily harm (x4) and injuring with intent to cause grievous bodily harm (x3).
[6] Ms Dixon was involved in both incidents that have given rise to the charges. She was present at Ms Rickylee Dixon’s address when the victim was taken there in the early hours of 12 September 2020. She also continued to assault the victim with a baseball bat after Ms Rickylee Dixon had already struck her on several occasions with
2 R v Dixon [2021] NZHC 2679.
the bat. Encouraged by another associate, Ms Daisy Dixon continued to strike the victim until the bat broke in half.
[7] Ms Daisy Dixon was also fully involved in the events that began on the afternoon of 21 October 2020 and then continued during the morning of 22 October 2020. During the incident at the motel unit on the morning of 22 October 2020 she punched, elbowed and kicked the victim whilst she was lying on the ground. She also used a variety of weapons to inflict significant physical injury on her. Ms Dixon used a baseball bat to break the victim’s nose and split her scalp. She also assisted in gagging the victim by ramming a sock into her mouth and tying a blue bandanna around it. Furthermore, at one stage she used the flat end of a tomahawk to strike the victim in the head. During this she was telling the victim she was “dog shit” and a “bitch”. Ms Dixon also picked up a pair of hedge clippers and used these against the victim’s fingers. In addition, she shoved a sharp object into the victim’s mouth, causing a hole in her lip. At the end of the episode in the motel unit she and Ms Rickylee Dixon wrapped the victim in a sheet before placing her in the tray of the utility vehicle that was used to transport the victim away from the motel.
Starting point
[8] The Crown contends a starting point of 15 years is appropriate and Ms Raukawa does not strongly challenge this on Ms Dixon’s behalf. She contends a starting point of between 14 and 15 years would be appropriate.
[9] Taking the aggravating factors of the offending into account I consider that Ms Daisy Dixon’s culpability was only marginally less than that of Ms Rickylee Dixon, for whom I selected a starting point of 16 years imprisonment.3 Ms Daisy Dixon was significantly more involved in the physical assaults than Ms Rickylee Dixon during the second incident and she used a variety of weapons to injure the victim. This means an argument can easily be made that the starting point for her sentence should be at least as great as the starting point of 16 years imprisonment I selected for Ms Rickylee Dixon. However, I also need to take into account the fact
3 At [26].
that Ms Rickylee Dixon was the instigator of both incidents and she also received the financial benefits obtained from the kidnapping and detention of the victim.
[10] I consider Ms Daisy Dixon’s culpability is considerably greater than that of Ms Harete Ohlson, who was only involved in the second incident. I selected a starting point of ten and a half years imprisonment when giving her a sentence indication.4
[11] Taking these factors into account I consider a starting point of 15 years imprisonment appropriately reflects the overall culpability of Ms Daisy Dixon’s offending.
Aggravating factors
[12] Ms Dixon has no previous convictions so no uplift is required to reflect aggravating factors personal to her.
Mitigating factors
[13] The only mitigating factor for which I would give credit at this point would be guilty pleas. As in the case of Ms Rickylee Dixon and Ms Ohlson, I consider a discount of 20 per cent is appropriate. This amounts to 36 months and would reduce the starting point from 15 years imprisonment to 12 years imprisonment.
[14] The indicated sentence for Ms Daisy Dixon is therefore one of 12 years imprisonment before taking into account any further mitigating factors that may be identified in material provided at sentencing. These are likely to include a significant discount for her youth because she is just 19 years of age.
Mr Te Kiri
[15] Mr Te Kiri was only involved on the first day of the second incident. He was not present when the victim was badly beaten at the motel unit the following day.
4 R v Ohlson [2021] NZHC 2536 at [21].
[16] Mr Te Kiri was in the vehicle that drove the victim away from the shopping mall on the afternoon of 21 October 2021. Ms Rickylee Dixon was also in this vehicle. The summary of facts records that Mr Te Kiri was sitting in the front passenger seat of the vehicle and was holding a knife and a long sword. He was also party to a conversation to the effect that the victim was being held as a hostage and they would receive money as a result of this.
[17] A message was sent to the victim’s father telling him that the group were coming to get money from him. As the vehicle approached the victim’s father’s address Mr Te Kiri placed a blue bandanna over his face. He was present when the victim’s father paid the group a few thousand dollars in cash. Mr Te Kiri contributed to this episode by getting out of the vehicle and standing in an intimidatory pose. This was no doubt done to assist in persuading the victim’s father that he should hand over money to Ms Rickylee Dixon.
[18] Mr Te Kiri was later present with other defendants at a bar in Rotorua. The group spent several hours at the bar spending money they had obtained from the victim’s father.
[19] At about 9 pm Mr Te Kiri and several other defendants drove around the Rotorua area with the victim in their vehicle. They then returned to the bar, where the victim was required to remain in the vehicle and was guarded by a member of the group.
[20] When the group left the bar they forced the victim to travel in the boot of the vehicle so she could not be seen. They then drove the victim to the motel where Ms Daisy Dixon and Ms Rickylee Dixon were living at the time.
Starting point
[21] Mr Te Kiri’s culpability lies in the fact that he was a party to the kidnapping of the victim in the knowledge that this was being done to extort money from her father. He then actively participated as the money was handed over. He then travelled around Rotorua in the vehicle in which the victim was being held captive.
[22] He therefore participated fully in the events that occurred on the afternoon of 21 October. His offending is aggravated by the fact that he was carrying two weapons whilst in the vehicle. These were obviously designed to intimidate the victim. Similarly, he positioned himself in such a way as to intimidate the victim’s father and persuade him to hand over money. He was not, however, present when the victim was assaulted.
[23] Taking these factors into account I consider an appropriate starting point is one of five years imprisonment.
Aggravating factors
[24] Mr Te Kiri has previous convictions including convictions for offending involving violence. However, none of these are really relevant for present purposes. For that reason I add no uplift for previous convictions.
Mitigating factors
[25] The only mitigating factor for which I would give credit at this stage is guilty pleas. As in the case of the remaining defendants I propose to provide a discount of 20 per cent (or 12 months).
Indicated sentence
[26] This results in an indicated sentence of four years imprisonment before taking into account any further mitigating factors that might be contained in material provided at sentencing.
Time for acceptance
[27] The defendants have until 4 pm on Wednesday 20 October 2021 to advise the Crown and the Court whether they accept the sentence indications I have given.
Lang J
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