R v Te Poono
[2020] NZHC 1188
•2 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-092-012562
[2020] NZHC 1188
THE QUEEN v
KIRIA TE POONO
Hearing: 2 June 2020 Counsel:
D B Stevens and M K Regan for the Crown M P Hislop and S J Gray for the Defendant
Sentence:
2 June 2020
SENTENCE OF EDWARDS J
Counsel: M P Hislop, Auckland
S J Gray, Auckland
Solicitors: Kayes Fletcher Walker Limited, Auckland
R v K TE POONO [2020] NZHC 1188 [2 June 2020]
[1] Kiria Te Poono, you are to be sentenced today for the murder of Mr Tusi. A jury found you guilty of that offence after a trial last year.
[2] Before I go any further, I do want to acknowledge the aiga of Mr Tusi who are here today. Ou te fa’atalofa atu i le aiga o Raille Tusi. I greet the family of Raille Tusi. Ou te fa’atalofa atu i le aiga o Raille Tusi. I greet the family of Raille Tusi. Fa’afetai tou afifio mai i lenei aso mā ōna fitā. Thank you for attending today, a day which has its challenges.
[3] Your frustration at the delays in sentencing are understandable. Please know that these delays were necessary to ensure the most just sentence is passed today. Nothing I will say today will respond adequately to the loss of a loved one, particularly in these circumstances. But I acknowledge your pain and your anger. It has a place in this sentencing and I will come back to it again shortly.
[4] Mr Te Poono, the sentence for murder is life imprisonment. I am required by the law to impose a minimum period of imprisonment of at least 10 years. There are two issues in your case. First, whether the imposition of life imprisonment would be manifestly unjust in your case. Second, how much more than the 10-year minimum period of imprisonment is required to hold you accountable, denounce your conduct, deter you and others, and protect the community from you.
Offending
[5] Sentencing follows a process, and the first step is to summarise your offending. This will be familiar to most who are attending here today. Some of what I say may be difficult to hear. But sentencing is a public process and so it is necessary that I go through again what happened.
[6] The murder took place at an address where you lived with your partner and children, and your partner’s family. You and your cousin were running a cannabis operation from a shed on that property.
[7] Another cousin arrived at the house that night and he brought Mr Tusi with him. You were not happy about that and it caused tension at the outset. After
conducting some business in the shed, you remained inside playing on the playstation. There were others in there with you. Mr Tusi was outside with your cousin. The conversation outside got louder, and Mr Tusi started yelling out gang slogans and “I’m a killer”.
[8] You told your cousin and Mr Tusi repeatedly to leave. They did not. You swore at them, and you broke out into a haka in the shed. The others present tried to get you to calm down, but you were becoming enraged at your cousin and Mr Tusi and their refusal to leave.
[9] Mr Tusi did not back down. He swore back at you and called you out for a one-on-one fight. In your evidence at trial, you said he was going nuts on the garage, where your partner and children were sleeping, and trying to smash through it. But the evidence on that was equivocal – if there was banging on the garage, then your partner did not hear it.
[10] It was then that you got the gun – a 12-gauge semi-automatic shotgun. It was hidden in the wall of the shed in which you were standing. You could not get it out at first, and you instructed a relative to remove it for you, which he did. Those in the shed with you told you that you didn’t need to use the gun. If only you had listened. You took the gun and loaded it with three cartridges. You walked from the shed outside and towards Mr Tusi who was standing on the other side of the table. Mr Tusi picked up some things from the table and threw them towards you. You said one of these things hit your face, and I accept that evidence.
[11] You held the shotgun with the muzzle pointing downwards. You were no more than one and a half metres from Mr Tusi. You pointed the gun in Mr Tusi’s direction and pulled the trigger. The shot penetrated Mr Tusi’s right thigh, severing his femoral artery and vein and exiting through the back of the thigh. The hole left in Mr Tusi’s leg was large enough to fit an entire roll of bandages.
[12] Mr Tusi was then taken from the property and left on the side of the road outside another house. This aspect of your offending has caused great pain to
Mr Tusi’s family and his mother in particular as we heard this morning. Emergency services were called but Mr Tusi died at the scene.
Victim impact statements
[13] The victim impact statements made for hard reading and listening. Mr Tusi’s mother described the emotional impact of the loss of their much-loved son as overwhelming. Her anger could be felt around this courtroom. She said meltdowns were the norm, and every-day events triggered tears, and feelings of hopelessness. She says your actions have traumatised their aiga for life.
[14] Ms Underhill, Mr Tusi’s partner, read out her statement also. That showed real courage. We could all see first-hand the deep trauma caused by the loss of a partner and a much-loved father, but also the hope for the future.
[15] Mr Tusi’s sister also described being weighed down with feelings of depression, anger, guilt and hopelessness. At times, she has found herself sitting alone and filled with resentment towards you for taking her brother’s life.
[16]Thank you to all of those who have provided victim impact statements today.
Personal circumstances
[17] Turning now, Mr Te Poono, to your personal circumstances. You are 37 years old and you have eight children ranging from one to 20 years of age. You are of Ngāti Awa and Ngāi Tūhoe descent on your father’s side and your marae is Te Māpou. You are fortunate to have family support around you.
[18] You have a criminal history stretching back to 1998, but only 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.
[19] The pre-sentence report writer records your deep regret about what happened and the devastating impact of your actions on the victim’s aiga. You have expressed
a desire to attend restorative justice to convey that regret and remorse in person, but that offer has been declined.
[20] Mr Te Poono, the pre-sentence report writer has assessed you as having a moderate risk of re-offending, with a high risk of harm to others.
[21] I have received a s 27 report for you also, and also a report from Dr Sakdalan in respect of a bipolar disorder diagnosis. I am going to refer to both of these reports in more detail later on in this sentencing.
Aggravating and mitigating factors of the offending
[22]Turning now to an assessment of your culpability.
[23] I consider the lethal use of a shotgun and the close range at which the shot was fired are aggravating features in your case. Although this was not a planned killing, there was an element of premeditation. You had to persevere to retrieve the gun from the shed wall; you loaded it with three cartridges; ignored the pleas of those in the shed to put the gun down; walked outside towards Mr Tusi; pointed the gun in Mr Tusi’s direction; and pulled the trigger.
[24] Arranging for Mr Tusi to be removed from your property was cold-hearted. Leaving him alone on the side of the road has caused deep distress to Mr Tusi’s family. The callous way you left Mr Tusi to die is also an aggravating feature of your offending.
[25] In terms of mitigating features, I have carefully considered your counsel’s submission that Mr Tusi’s conduct that night reduces your culpability. I take into account that you tried many times to get Mr Tusi to leave and that he was becoming increasingly aggressive. He called you out for a fight and was throwing things at you, one of them hitting you on the side of the face. I accept there is a link between Mr Tusi’s conduct and what you did that night.
[26] But I do not consider that these factors materially reduce your responsibility for pulling the trigger and firing the shot that killed Mr Tusi. This was not just a case
of excessive self-defence. It was not just a question of the reasonableness of the force used. There was also an issue about whether you were in fact defending your family or yourself from the threat posed by Mr Tusi. I consider the evidence at trial indicates that you were shooting at Mr Tusi out of anger and frustration rather than in response to any perceived threat from Mr Tusi.
[27] Your counsel draws a distinction between the alternative forms of murderous intent relied on by the Crown. He suggests that the jury must have found that you had a reckless murderous intent, and that is less blameworthy than an intentional killing. I agree that the jury is more likely to have found that pointing the firearm in a downward trajectory, and hitting Mr Tusi on the top of his thigh, was reckless. But I do not consider that this warrants a separate discount, although it is a relevant factor when considering comparable cases.
[28] I have read all the cases referred to me by both counsel. They establish a range in the minimum period of imprisonment of between 10 and 12 years for comparable offending. I consider those cases in which a starting point of 11 years or more was adopted are more serious than yours. They either involved victims who were more vulnerable than Mr Tusi, a greater degree of pre-meditation, or involved shots to the head and face.1 The latter is stronger evidence of murderous intent than in your case which involved a shot to the leg.
[29] On the other hand, your offending is more serious than in R v Broughton.2 That involved a group surrounding the defendant in his car with one punching him through the driver’s window. The defendant in that case fired two shots at the group with one victim dying as a result. The defendant’s actions in that case were acknowledged to be excessive self-defence.
[30] Looking at all these cases in the round, I consider a starting point of 10 and a half years as a minimum period of imprisonment is appropriate.
1 R v Tetomo [2015] NZHC 2671; R v Mills HC Palmerston North CRI2009-054-3808, 16 June 2010; R v Paewhenua [2018] NZHC 301.
2 R v Broughton [2017] NZHC 671.
Personal aggravating and mitigating factors
[31] Turning now to factors that are personal to you, I consider an uplift for the fact that this offending took place while you were on electronically monitored bail for unlawful possession of a firearm and unlawful possession of ammunition is appropriate. That does need to be tempered by the fact that this altercation came to you uninvited and I apply a six-month uplift for this factor.
[32] Whilst you do have a lengthy criminal history including some convictions that could be considered relevant, the Crown does not seek a discrete uplift for those prior convictions and I do not apply one.
[33] In terms of mitigating factors, I turn now to the s 27 report into your background. That report notes that your family came from socially and economically deprived circumstances. Both the Mongrel Mob and Black Power were present in your life, and you described not knowing which colour to wear growing up. You were pressured at a young age to give evidence against a relative. That caused a rift in your family and drove you to reside with your girlfriend’s family. They were not a good influence on you and this period was marked by a spate of offending. The death of your father when you were 18 years of age was also a traumatic event for you.
[34] There is pain on your father’s side that is also relevant here. Your father was the eldest of the eldest (mataamua) bloodline and you describe him as raising his 21 other siblings. You consider your Nan was wrongly exiled when she was 13 years old and you are determined to right this wrong and reclaim her taonga which you say were wrongly taken.
[35] As to the linkage of this background to your offending, it is clear that alcohol, cannabis, violence and crime were a normalised part of your life. The intergenerational history of both social and economic deprivation diminished your opportunities and shaped the choices you made. That does not relieve you of personal responsibility for your actions that night. There is only one person who decided to pull the trigger. But it does help to understand how you got to that point, and to that extent it modifies your culpability.
[36] Your background is also relevant to your rehabilitation. Despite your challenged upbringing, you talk about the aroha that surrounded you and the strong values that were instilled in you and your siblings, in particular, by your mother’s side of the family. You are proud to be Māori, and you have a connection to Tikanga Māori. That connection, your spiritual beliefs and the support of your partner and family all give rise to positive prospects for rehabilitation and reintegration back into society.
[37] The deep remorse you have expressed for the hurt caused to the deceased’s family is also relevant here. Those are genuine feelings, and they are reflected in the offer to attend restorative justice. They are deserving of a separate discount.
[38] Finally, I have considered the opinion of Dr Sakdalan into your mental health. In his opinion, your background history, presentation and test results are consistent with bipolar disorder. In your case, this disorder manifests itself with problems with poor impulse control, reckless behaviour, being overconfident with your abilities, and an inability to regulate your emotions and anger. Dr Sakdalan is of the view that there might be some possible nexus between your mental health issues and the murder. Given the equivocation in the opinion, I consider any discount for your mental health condition must be moderate.
[39] Your counsel has argued that a sentence of imprisonment will be disproportionately more severe because there are concerns for your safety in prison, with the possibility of retaliation from Mr Tusi’s associates. There is no evidence before the Court to substantiate that. I will say this though. Any form of retribution will not ease the pain of loss – it will simply compound it. There is no courage in continuing the cycle of violence, but there is great bravery in bringing it to a close.
[40] These personal mitigating features could result in discounts totalling up to 40 per cent. The question is whether any of these factors make the sentence of life imprisonment manifestly unjust.
Manifestly unjust?
[41] I do not consider they do. The threshold for manifest injustice is particularly high. None of the factors I have mentioned reduce your culpability to such an extent
that life imprisonment would be manifestly unjust in your case. Indeed, some of these factors, such as your mental health condition, highlight the need to protect the public from you.
[42] This was not a case of excessive self-defence, and while there may have been an element of provocation, it is not significant enough to displace the presumption of life imprisonment. Similarly, while the limited nature of your previous violence offences may reduce concern around public safety, and strengthen your rehabilitative prospects, those factors do not make imposing a life-sentence for murder manifestly unjust either.
Minimum period of imprisonment
[43] That then leaves the question of the minimum period of imprisonment. There is no suggestion that s 104 of the Sentencing Act 2002 applies in your case, and I agree. I must therefore impose a minimum period of imprisonment of at least 10 years. The question is how much more is required in order to meet the statutory purposes of a minimum term.
[44] Considering the circumstances of your offending, and your personal circumstances, and with reference to all the cases cited to me, I consider the statutory minimum of 10 years is all that is required to hold you accountable for the harm done to Mr Tusi and the community by your offending; to denounce your conduct and to deter you and others from committing the same or similar offence and to protect the community from you.
[45] Can I stress to all those who are here that I am not imposing a 10-year sentence of imprisonment. The sentence is life. The 10 years means that you, Mr Te Poono, must serve at least 10 years before becoming eligible for parole. Your release date, whenever that may be, will be determined by the parole board.
Sentence
[46]Kiria Te Poono, please stand.
[47] For the offence of murder, I sentence you to life imprisonment with a minimum period of imprisonment of 10 years.
[48]I make an order for the destruction of the firearm.
[49]You may stand down.
Edwards J
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