R v Te Poono - [2022] NZHC 3416

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Te Poono

Details

AGLC: R v Te Poono [2022] NZHC 3416
Case: [2022] NZHC 3416
Decision Date: 14 December 2022

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard the case of The King v Kiria Te Poono, where the defendant was found guilty of manslaughter for fatally shooting Mr Tusi. The primary legal issues involved determining the appropriate starting point for the defendant's sentence, considering both aggravating and mitigating factors, and applying relevant case law to ensure consistency with sentencing in similar circumstances. The court also needed to assess the defendant's personal circumstances, including cultural background, criminal history, mental health, and remorse, to determine an appropriate discount.

The court identified several aggravating factors: the use of a lethal weapon, premeditation, firing the shotgun at close range, and the defendant's failure to render assistance after the shooting. Mitigating factors included the defendant's attempts to get the victim to leave and the link between the victim's aggressive behaviour and the defendant's actions. The court compared the defendant's case with several previous cases involving firearms and manslaughter, concluding that a starting point of seven years' imprisonment was appropriate. The court also considered the defendant's personal circumstances, including his cultural background, criminal history, mental health, and remorse, leading to a total discount of 40%. The court ultimately sentenced the defendant to four years and eight months' imprisonment, ordered the destruction of the firearm, and made an order for the defendant to stand down.

Orders