R v Te Poono
[2022] NZHC 3416
•14 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2018-092-012562
[2022] NZHC 3416
THE KING v
KIRIA TE POONO
Defendant
Hearing: 14 December 2022 Appearances:
D B Stevens for the Crown
S Gray and M P Hislop for the Defendant
Sentencing Notes:
14 December 2022
SENTENCING NOTES OF TAHANA J
This judgment was delivered by me on 14 December 2022
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Kayes Fetcher Walker Limited, Manukau D B Stevens, Barrister, Auckland
Blackstone Chambers, Auckland S Gray, Barrister, Auckland
M P Hislop, Barrister, Auckland
R v TE POONO [Sentencing Notes] [2022] NZHC 3416 [14 December 2022]
Acknowledgement (at commencement of hearing)
[1] I first want to acknowledge the deceased, Mr Tusi and his aiga and his mother who joins us via VMR. Talofa lava. Ka tika, ka mihi atu ki a rātou kua wehe atu ki te pō. Ko toū whānaunga tēnā. Moe mai, moe mai, moe mai ra. Ki a koutou i te whānau pani ka mihi aroha, ka mihi maioha ki a koutou katoa. I acknowledge the passing of Mr Tusi. I acknowledge the pain and grief of the aiga of Mr Tusi. I acknowledge the importance of aroha (love) and manaaki (care) to you – the aiga (family) at this time.
Introduction
[2] Kiria Te Poono, following a jury re-trial, you were found guilty of manslaughter for fatally shooting Mr Tusi. You are now to be sentenced.1
[3] I turn now to you, Mr Te Poono. Before sentencing, I will outline my assessment of the facts based on the evidence I heard at the retrial. This summary reflects that assessment, subject always to consistency with the jury’s verdict. I will then acknowledge the statements from the aiga of Mr Tusi. I then outline the sentencing regime for manslaughter and the approach I will take in determining your sentence. I will explain the starting point I have adopted and why, and any adjustment I have made to this starting point to reflect your personal circumstances.
Offending
[4] On 13 November 2018 you were at home in Otara. At the back of the property is a garage where you slept with your partner and tamariki. Members of your partners’ whānau lived in the house at the front. There was also a shed or cabin at the back of the property and a gazebo was erected between the garage and the shed. You and your cousin ran a cannabis operation from the shed.
[5] That evening, your cousin arrived at the property with the deceased. The deceased was your cousin’s friend and you had not met him before. You were not happy that your cousin had brought a stranger to the house and you told them to leave.
1 Crimes Act 1961, s 177; maximum penalty life imprisonment.
[6] After conducting some business in the shed, you remained in the shed and played on the Playstation. A short time later you heard the deceased yelling and using gang slogans and saying “I’m a killer.” From the shed, you told your cousin and the deceased to leave multiple times. They did not. You did a short haka to try to get them to leave.
[7] You then went to get the gun – a 12-gauge semi-automatic shotgun. It was hidden in the wall of the shed. You told your partner’s uncle to remove it for you when you could not get it out. Your cousin in the shed told you that you didn’t need to use the gun but you continued anyway. You loaded the gun with three cartridges and took the safety latch off and then went outside.
[8] When you walked outside the shed, Mr Tusi was throwing things at you. You said one of these things hit your face, which I accept. You said you grabbed the trigger, pointed it towards the ground to the side and fired the shot. The end of the muzzle was less than 1.5 metres from Mr Tusi.
[9] The shot hit Mr Tusi in his upper right thigh. Mr Tusi bled profusely from the wound. The shot severed Mr Tusi’s femoral artery and vein and exited through the back of his thigh. The hole left in Mr Tusi’s leg was large enough to fit a roll of bandage.
[10] You yelled at your cousin to get Mr Tusi off the property. You went back into the shed.
[11] When you went back outside, you helped your cousin carry Mr Tusi to the boundary of the property. You were heard that night telling others to take Mr Tusi to the park. Your cousin called the ambulance. He took Mr Tusi to the side of the road outside the house next door and stayed with Mr Tusi. The ambulance service arrived, but could not save Mr Tusi’s life.
[12] After the shooting you went into the house and washed your hands and face. You removed your bloody clothes and placed them in another bedroom before going to bed. You pretended you had been asleep when the police arrived.
[13] The jury accepted you did not intend to kill Mr Tusi or that you had any murderous intent. They did so by returning a not guilty verdict for the murder charge. The jury however found you guilty of manslaughter, as a consequence of your unlawful act of carelessly using a firearm. I accept your evidence that you intended the shot to be a warning shot. You however, were extremely reckless in using the firearm in such close proximity to Mr Tusi and that had deadly consequences.
Victim impact statements
[14] I refer to the statement that you heard today from Mr Tusi’s mother. The victim impact statements speak of the deep grief and hurt felt by Mr Tusi’s aiga. Mr Tusi’s mother, speaks of the sentence her family is having to endure without a loved son. She feels overwhelmed, anxious, angry and about to break down again because she is having to return to the trauma, disbelief, horror and tragedy of losing her son. She speaks about Mr Tusi’s children. Mr Tusi is not here to see them grow and contribute positively to society. She questions the fairness of the justice system and the lack of voice for her aiga within it. Her deep pain is very evident from her words.
Approach to sentencing
[15] I will now turn to your sentence. The relevant purposes of sentencing which the Court may take into account are:
(a)holding you accountable for the harm done to the victim and to the community by your offending;
(b)promoting a sense of responsibility for, and acknowledgment of that harm; and
(c)denouncing and deterring your conduct.
[16] The principles of sentencing must be taken into account. Those of particular relevance to this case are:
(a)the need to take into account the gravity of your offending;
(b)the seriousness of manslaughter in relation to other offences;
(c)the desirability of consistency with appropriate sentencing levels; and
(d)the need to take into account your personal, whānau, community and cultural background.
Starting point
[17] There is no tariff or guideline judgment for manslaughter. This reflects the fact that manslaughter can occur in a wide range of circumstances.2 In those circumstances, it is necessary to consider the comparative cases.
[18] Mr Stevens, for the Crown submits that a starting point of 8 years’ imprisonment is appropriate and your counsel proposes a starting point of 5 years.
Aggravating and mitigating factors
[19] Mr Stevens, for the Crown, submits the following aggravating factors are present:
(a)actual violence and use of a lethal weapon;
(b)pre-meditation;
(c)deliberately firing the shotgun at close range;
(d)failure to render assistance after the shooting; and
(e)the extent of the loss.
[20] Your counsel argue that the primary aggravating feature is the use of the firearm.
2 Everett v R [2019] NZCA 68, at [24].
[21]I consider each of these factors.
- use of a lethal weapon
[22] Mr Stevens submits that the use of a firearm in this offending requires greater denunciation and deterrence than other cases where firearms are not present.3 I agree with that submission and it is consistent with the cases, which I will refer to shortly. It is not only the fact of the use of the firearm but also the manner in which it was used that may be considered as aggravating.
- premeditation
[23] Your counsel do not accept there was any premeditation and argued that you only retrieved the firearm as a last resort to scare the deceased away after your requests to leave were ignored. You however, asked for the shotgun to be removed from the wall when you could not get it out, you loaded it with three cartridges and you removed the safety latch before you went outside of the shed. You did this despite your cousin telling you the gun was not required. Those factors do indicate a degree of premeditation.
- firing shotgun in close range
[24] The end of the muzzle of the shot gun was no more than 1.5 metres from the deceased. There was a foreseeable risk of very serious injury in discharging a loaded firearm in such close range to the deceased. That was extremely reckless. The cases also consider the proximity of the firearm to the deceased as a relevant aggravating feature and I will refer to those cases shortly.
- failing to render assistance
[25] Your counsel sought to downplay your failure to help Mr Tusi after you fired the shot and submits that this is because you did not realise he had been shot. Your counsel referred to your evidence that you would have tried to cover the wound if you knew Mr Tusi had been shot.
3 R v Paewhenua [2018] NZHC 301, at [36].
[26] I find it difficult to accept that you did not know that Mr Tusi had been hit in circumstances where Mr Tusi stopped speaking after the shot was fired and the only sound you could hear, is what you described as snoring. Rather than checking on Mr Tusi given he was quiet, you returned to the shed. You were also heard telling others to take Mr Tusi to the park and you helped your cousin carry Mr Tusi to the boundary of the property. This suggests you were more concerned with removing Mr Tusi than checking if he was o.k. I therefore consider that this is a relevant aggravating feature.
- Extent of loss
[27] I note that the fact of Mr Tusi’s death is inherent in the manslaughter charge and consistent with the case in R v Dodd I do not take this into account as an additional aggravating factor.4
[28] In terms of mitigating features, I have taken into account that you tried multiple times to get Mr Tusi to leave and he was becoming increasingly aggressive. He called you out for a fight and was throwing things at you. I accept there was a link between that behaviour and what you did that night.
[29] I consider now the comparator cases to determine a starting point given these aggravating and mitigating factors.
Case law
[30] I have read the cases referred to by counsel. The manslaughter cases involving firearms range in seriousness and I have considered your offending against the offending in those cases.
[31] First, I do not accept Mr Hislop’s submission that this case is most comparable to R v Dodd5 which adopted a starting point of 5 years and 9 months. That case did not involve the firearm been shot at close range. Rather, the gun was fired
4 R v Dodd [2018] NZHC 3432.
5 R v Dodd [2018] NZHC 3432
approximately 100 metres from the victim. That is considerably further than here, where the muzzle of the shotgun was no more than 1.5 metres from the deceased.
[32] The offending in this case is most analogous to the offending in the cases of R v Pira,6 R v McKee7 and R v Flavell8 where the Court adopted starting points of six years in Pira and seven years, six months in McKee and Flavell.
[33] In Pira the defendant had driven to the deceased’s house with a shotgun. There was a fistfight with the deceased and then wrestling for the firearm. The firearm went off and shot the deceased. In Pira the defendant was considered to have been reckless by not checking whether the firearm was loaded or the safety catch on. The Court adopted a starting point of 6 years’ imprisonment.
[34] Your offending can be contrasted in that you loaded the firearm with three cartridges and took the safety catch off before you stepped outside. You therefore knew it was loaded. This indicates premeditation. Further, Mr Pira fired the gun during a struggle, whereas you intentionally discharged the firearm when Mr Tusi was on the other side of the table from you. In my view, your offending is more serious than the case in Pira.
[35] In R v McKee9 Mr McKee and the deceased knew each other and there was some bad blood. The deceased was sleeping in his car at his friend’s place. Mr McKee visited the address and had a pistol in his bag. When Mr McKee realised the deceased was there, he woke him up by yelling. He was holding the gun. The deceased jumped up and challenged Mr McKee to a fight. The deceased told Mr McKee to put the gun down and started taunting him.10
[36] Mr McKee drew the weapon up as the deceased swung at him. Mr McKee fired the gun, hitting the deceased in the lower abdomen. Justice Muir did not accept that Mr McKee deliberately discharged the weapon with the intention of shooting the
6 R v Pira HC Rotorua CRI-2006-063-329, 13 December 2006.
7 R v McKee [2017] NZHC 2286.
8 R v Flavell [2014] NZHC 3373.
9 [2017] NZHC 2286
10 At [10]
deceased in the chest or abdomen, rather he considered that he intended to inflict a non-fatal injury.
[37] I consider your offending is less serious than in McKee as you were taunted by the deceased when he came to your home, you did not go to him, and the injury was to the leg and not to the torso. You deliberately pulled the trigger and the muzzle was only 1.5 metres from the deceased so you were extremely reckless.
[38] In Flavell, similar to the present offending, the deceased confronted the offender and the offender fired the weapon at close-range. However the more aggravating feature of Flavell is that Mr Flavell discharged the shotgun at the deceased’s chest. I consider your offending is therefore less serious than in Flavell which adopted a starting point of 7.5 years’ imprisonment.
[39] I also consider that the offending can be distinguished from the offending in the cases of Christie and Johnson relied on by the Crown because in those cases, the offender confronted the victim or instigated the offending. In Christie, the offender approached the house where the victim was, pointed the loaded gun and fired. Comparatively here, the deceased came to your home. The deceased called you out for a fight, was yelling gang slogans and throwing objects. The Court adopted a starting point of 8 years in Christie.
[40] In Johnson the offender went to the victim’s house, had an altercation with the victim and randomly fired shots which hit the victim’s leg. While the judge accepted provocation was a mitigating feature, she considered it was more serious than in the case of Christie because the offender had entered the victim’s home. The Court adopted a starting point of 8 years, 6 months’ imprisonment.
[41] I have discussed these cases because I must consider the need to be consistent with other cases in generally similar circumstances. Taking those cases and the aggravating and mitigating factors present in your offending into consideration, I consider that a starting point of seven years’ imprisonment is appropriate.
Personal circumstances
[42] I will now consider circumstances personal to you. I have received a recent pre-sentence report and the pre-sentence report received prior to your previous sentencing. I have also received a copy of the s 27 report and the report of Dr Sakdalan provided to the Court prior to the previous sentencing. I will refer to those reports later in my sentencing.
[43] First, I acknowledge your whakapapa. He uri koe nō Ngāti Awa me Ngai Tuhoe. No Te Teko koe. Ko Te Māpou tou marae. You are a descendant of Ngāti Awa and Tuhoe. You are from Te Teko and the marae of Te Māpou. You have seven tamariki.
[44] While you have a criminal history stretching back to 1998, you have a limited number of convictions for violence-related offending. You have had periods of steady employment and long periods where you did not acquire any convictions.
[45] The previous pre-sentence report in 2020 records your regret and remorse about your actions and the impact on Mr Tusi’s aiga. You have expressed a desire to attend restorative justice but that offer has been declined.
[46] In the most recent pre-sentence report the report writer assesses you as at medium risk of reoffending and assesses the risk of harm to others at medium to high. The pre-sentence reports notes you have the whānau support here in Auckland of your mother and brother.
Aggravating features relevant to Mr Te Poono
[47] In terms of your conviction history, you have 38 previous convictions. Mr Stevens highlights the following previous convictions as particularly relevant:
(a)on 28 March 2019, you were sentenced to nine months’ imprisonment for unlawful possession of a firearm and unlawful possession of ammunition;
(b)on 14 March 2003, you were sentenced to three years’ imprisonment for aggravated robbery; and
(c)on 9 April 2002, you were sentenced to periodic detention and supervision for common assault and possession of an offensive weapon.
[48] Mr Stevens submits that an uplift of between six and nine months’ imprisonment would be appropriate to account for your relevant previous convictions and to reflect the fact that the shooting occurred while you were on EM bail.
[49] I consider that a six month uplift is appropriate to reflect the fact the offending occurred while you were on EM bail and for previous convictions of unlawful possession of a firearm and unlawful possession of ammunition.
Mitigating features relevant to Mr Te Poono
[50] Mr Hislop relies on the sentencing notes of Edwards J following your first trial where you were convicted of murder. He submits a 40 per cent overall discount for personal mitigating factors, including mental health, matters in the cultural report and remorse, is appropriate. I accept the submission of Mr Stevens that I need to assess whether any discounts are proportionate to the overall sentence rather than automatically accepting the level of discount Edwards J considered “could result.” Adopting a significant discount may not be sufficient to meet the sentencing purposes I have referred to above, so it is necessary to consider each factor before determining an appropriate discount.
Cultural report
[51] I previously acknowledged your whakapapa – you are from two strong tribes, Ngāti Awa and Tuhoe. The cultural report refers to the importance to you of karakia, whakapapa, and whaikōrero. Me mau koe ki ngā tikanga ā koro mā, a kuia mā. You appreciate the value in the teachings of our ancestors. I encourage you to continue those learnings.
[52] The report refers to positive whānau connections and your Dad growing up in te ao Māori with a big whānau, close to his marae and Ringatu faith in the heart of Ngāti Awa in Te Teko.
[53] You grew up away from your turangawaewae in Auckland. The report refers to positive aspects of your childhood in Auckland and in particular rugby league. You were in a top team and with your family were heavily involved with the Mt Wellington rugby league club.
[54] The report notes that you came from economically deprived circumstances. You were exposed to pro criminal and drug influences. Many of your family members were involved in gangs and when you were a teenager you were made to testify against your uncle. This caused a rift in your family and you started to spend more time with your then-girlfriend and her family who introduced you to theft related offending. When you were 18 years’ old, your father was diagnosed with a brain tumour and died soon after. After this, you committed an aggravated robbery which led to you being imprisoned.
[55] In prison you re-connected with tikanga and te reo Māori. You met a new partner and found good work. You described this as positive time. However, when that relationship ended, you moved back to South Auckland and reconnected with negative influences.
[56] I accept, as did the Crown, that there is a nexus between your background and the offending and that it is appropriate to apply a discount given your background has featured gangs, drugs and criminal influences. I consider a discount of 10 per cent is appropriate.
Mental health
[57] There is a letter from Dr Sakdalan, a clinical psychologist. It was prepared for your first sentencing. You had not been diagnosed with a mental illness at the time,11 but Dr Sakdalan considered that you appear to have an undiagnosed and untreated
11 At [16] of the report.
mental illness specifically bipolar disorder. Members of your whānau had previously been diagnosed with bipolar disorder. Dr Sakdalan also considered that there may “possibly be a nexus” between your mental health issues and the offending. However, he also said that the offending may have been caused by situational factors “e.g. fear” and “feeling protective towards [your] family.”
[58] Mr Stevens refers to several authorities which discuss discounts at sentencing for mental impairment short of insanity. The Court of Appeal in Beazley found that mental health can affect sentencing.12
[59] The test for such a discount is whether the offender’s diminished intellectual capacity or understanding “materially contributed to the offending.”13 In R v M the Court of Appeal found that while the appellant was cognitively impaired, there was no nexus between his mental impairment and the offending.14
[60] In Beazley the Court rejected the submission that the appellant’s mental impairment “materially drove” the offending, rather the Court considered that situational factors were the prime drivers.15
[61] Mr Stevens submits that having regard to the cautious wording of the medical report, it is not clear that your previously undiagnosed bipolar disorder materially contributed to the offending when considering the various situational factors present.
[62] Dr Sakdalan cautiously states your mental state may “possibly” have contributed to the offending. This suggests a small but not material connection. I agree with the Crown that there is still the need to deter and denounce your conduct and this supports a small discount for this factor of no more than five per cent.
Remorse
[63] In a pre-sentence report dated 19 December 2020, you expressed deep regret about what happened and the devasting impact of your actions on the deceased’s
12 Beazley v R [2020] NZCA 65.
13 R v M [2008] NZCA 148.
14 At [33].
15 Beazley v R, above n 12, at [35].
family. Counsel read out an apology from you this morning. You also expressed a desire to engage in restorative justice with Mr Tusi’s family to convey your regret and remorse in person, but that was declined.
[64]I accept a discount of five per cent is appropriate for remorse.
Offer to plead guilty to manslaughter
[65] Your counsel say you offered to plead guilty to manslaughter shortly after you were charged. This offer was made again when the Court of Appeal quashed your conviction and ordered a retrial.
[66] In a minute of this Court dated 3 October 2019 prior to the first trial, it records that you indicated that you would plead guilty to a charge of manslaughter if the murder charge was withdrawn but you would not plead to the incorporated charge of manslaughter if the murder charge remained.
[67] The Courts have recognised that early offers of resolution can be deserving of significant discounts. In Dodd, the Court awarded a 20 per cent credit for Mr Dodd’s offer to plead guilty to manslaughter.16
[68] In Jamieson, the Court gave a 20 per cent discount for Mr Jamieson’s offers to plead guilty to manslaughter soon after being charged.17
[69] I accept that consistent with these cases, a discount of 20 per cent is appropriate.
[70] Applying the uplift of six months to the starting point and a total discount of 40 per cent leaves an end sentence of four years and 8 months.
Sentence
[71]Kiria Te Poono, e tu koa. Please stand.
16 R v Dodd, above n 5 at [89].
17 At [41]–[42] and [48].
[72] For the offence of manslaughter, I sentence you to four years and 8 months’ imprisonment.
[73]I make an order for the destruction of the firearm.
[74]You may stand down.
Tahana J
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