R v Te Pou
[2022] NZHC 3320
•9 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-090-5558
[2022] NZHC 3320
THE KING v
MANAWANUI TE POU
Counsel: D M A Wiseman and M P Blakeley for Crown N T Tupou for Defendant Sentenced:
9 December 2022
Charges:
Aggravated robbery, kidnapping, intentional damage
Plea:
Guilty
SENTENCING NOTES OF BREWER J
Solicitors
Meredith Connell (Auckland) for Crown Sinisa Law Ltd (Otahuhu) for Defendant
R v TE POU [2022] NZHC 3320 [9 December 2022]
Introduction
[1] Mr Te Pou, you appear today for sentence having pleaded guilty to charges of aggravated robbery,1 kidnapping2 and intentional damage.3
[2] Last night, I found out that a week after the aggravated robbery and the kidnapping, and while the police were looking for you, you drove a vehicle running away from the police, and in the course of that you struck and killed a cyclist. You were sentenced, as I found out yesterday, by Judge A-M Skellern for that offending on 22 December 2021.4 You were sentenced to five years and one month’s imprisonment. You are serving that sentence now.
[3] That changes the way in which I have to sentence you today. Instead of sentencing you on the current charges on a standalone basis, I have to take into account the fact that you are serving already a sentence of five years and one month imprisonment. So, at the end of the sentencing process, I will have to decide to what extent the sentence of five years and one month imprisonment is to be added to.
[4] What I am going to do is identify the standalone sentence and once I have done that I will step back and look at the totality of your offending to see by how much the sentence you are currently serving should be increased.
Background
The aggravated robbery and kidnapping charges
[5] On 18 November 2019, you were travelling through West Auckland in a stolen vehicle with your co-defendant, Mr Gemmell, who has already been sentenced for his involvement in the offending.
1 Crimes Act 1961, s 235(b): carrying a maximum penalty of 14 years’ imprisonment.
2 Section 209: carrying a maximum penalty of 14 years’ imprisonment.
3 Section 269(2)(a): carrying a maximum penalty of seven years’ imprisonment.
4 R v Te Pou [2021] NZDC 25431.
[6] Mr Kumar, a courier driver, was at work on a delivery run. He stopped his van in the driveway of a house to deliver a package. You and Mr Gemmell drove the stolen vehicle up behind Mr Kumar’s van and stopped, blocking the van from leaving.
[7] Mr Gemmell got out of the car and approached Mr Kumar, attempting to take the keys to the van. Mr Kumar feared for his safety and locked himself in the van.
[8] You then approached the van armed with a screwdriver. You smashed the passenger window of the van. You said to Mr Kumar, “don’t do anything, I have a gun”.
[9] Mr Kumar got out of the van and you tackled him to the ground. You then pushed him into the stolen vehicle and began driving down the road. Mr Gemmell followed behind, driving the courier van.
[10] The vehicles soon stopped on the side of the road. You and Mr Gemmell started taking packages out of the courier van, before identifying a particular package and saying that was what you were looking for. You thought it contained drugs.
[11] You and Mr Gemmell then grabbed Mr Kumar’s wallet from the van and you both got back into the stolen vehicle. Mr Kumar was in the back seat. Together you drove Mr Kumar to a number of locations in an attempt to obtain money from his bank card. You were to a local dairy, a bank, a fast food restaurant and a branch of the TAB.
[12] You then drove Mr Kumar back to where the courier van was parked. Mr Gemmell got out of the stolen vehicle and into the van. He drove in convoy behind you and Mr Kumar in the stolen vehicle.
[13] The vehicles stopped on a street in Massey. You let Mr Kumar out of the vehicle and returned his keys and wallet. You kept Mr Kumar’s phone. Mr Kumar drove his van back to the post depot before calling police.
[14]This offending gave rise to the charges of aggravated robbery and kidnapping.
The intentional damage charge
[15] The charge of intentional damage arose from a separate incident on 27 October 2019. You and your brother, Mr Kaiora Te Pou, arrived at an address in Massey. The occupant of the address was Mr Tana, who was being visited by his sister and her two small children at the time.
[16] You and your brother spoke with Mr Tana. You said you were looking for a person named “Rangi”. Mr Tana told you both there was no person named “Rangi” living at the address.
[17] The two of you left the address, before returning some minutes later. Your brother was now brandishing two machetes. You moved together towards Mr Tana in a threatening manner. You then attempted to gain access to a car which had been parked on the driveway, but were unable to do so. You and your brother then proceeded to smash the windows of the vehicle using the machetes.
[18] Other vehicles, carrying your associates, then arrived at the address. Mr Tana returned to the house and fled out the back of the property. He called the police, but you left before they arrived.
Victim impact statements
[19] Mr Kumar has exercised his right not to provide a victim impact statement. But the trauma he undoubtedly suffered is obvious from the facts I have just gone through with you.
Sentencing approach
[20] To decide what your sentence would have been on a standalone basis, I will first set a starting point which is based on what you actually did. I will then consider your personal circumstances to assess whether that starting point should be adjusted upwards or downwards.
Starting point
[21] The Crown submits that a starting point of around six years’ imprisonment is appropriate for the aggravated robbery and kidnapping offending. It submits that an uplift of two months is warranted for the charge of intentional damage. Mr Tupou, on your behalf, submits that a starting point of five-and-a-half to six years’ imprisonment is appropriate.
[22] I note that a starting point of six years was adopted by Davison J in sentencing your co-defendant, Mr Gemmell, for his role in the aggravated robbery and kidnapping offending.5 That figure was reached by adopting a starting point of four years and six months for the aggravated robbery, and then uplifting that starting point by 18 months to account for the kidnapping.6
[23]I will follow a similar approach in assessing your sentence today, Mr Te Pou.
[24]The aggravating features of your offending are:
(a)You were working with Mr Gemmell and the two of you co-ordinated your actions.
(b)Your use of a screwdriver as a weapon, and telling Mr Kumar that you had a gun.
(c)Your use of violence in subduing Mr Kumar and dragging him out of the van, before pushing him into the stolen vehicle.
(d)The taking of the van itself and the detention of Mr Kumar over an extended period while you made attempts to obtain money from his bank card.
(e)You stole Mr Kumar’s cellphone and approximately $100.
5 R v Gemmell [2022] NZHC 1014.
6 A similar approach was adopted by the Court of Appeal in Hoko v R [2017] NZCA 484 at [15]–[17].
(f)There was also an element of premeditation to your offending, at least in the sense that you must have formed a basic plan as to who was to do what before accosting Mr Kumar.
[25] I acknowledge that your offending was mitigated to a limited extent by the fact that you eventually returned Mr Kumar to his van and gave back his wallet and keys.
[26] I have considered the cases to which I have been referred by the lawyers, and I will list them in the written record of this sentencing.7
[27] I consider that your offending was somewhat less serious than the offending described in two of the cases, Hoko and Hewitt. I will take a starting point of four years and six months for the aggravated robbery. I will uplift that figure by 18 months for the charge of kidnapping. I will also apply an uplift of two months to reflect the charge of intentional damage.8
[28]This produces an overall starting point of six years and two months.
Personal circumstances
[29]I turn now to your personal circumstances, Mr Te Pou.
[30] You are 28 years old. You have an extensive criminal history. You have been sentenced to many short periods of imprisonment and now you are serving the sentence of five years and one month imprisonment for your driving which ended up taking the life of an innocent cyclist.
[31] Many of your previous convictions within the last 10 years relate to property. But you have one conviction for aggravated robbery in 2014, three convictions for burglary in 2012, 2014 and 2019, and a 2016 conviction for wounding with intent to cause grievous bodily harm for which you were sentenced to three years and two months’ imprisonment. This nearly uninterrupted pattern of similar offending
7 R v Mako [2000] 2 NZLR 170 (CA); R v Hewitt [2017] NZHC 1220; Hoko v R [2017] NZCA 484.
8 I note in R v Te Pou [2022] NZHC 1004 Davison J adopted a starting point of 10 months’ imprisonment in sentencing Mr Te Pou’s co-defendant, Mr Kaiora Pou, on charges of intentional damage and assault with a weapon.
demonstrates the need for a deterrent response in sentencing. I consider an uplift of six months’ imprisonment is appropriate, taking into account the principle of totality.
[32]With respect to mitigating factors, there are two matters I need to discuss.
[33] The first is your personal background, and the extent to which that has causatively contributed to your offending.9 I have read the pre-sentence report prepared by the Department of Corrections and your cultural report. They describe your dysfunctional and traumatic upbringing, marred by drugs, violence (in and outside the home) and gangs. You spent much of your youth in State care. You are a victim of abuse and have long experienced mental health issues including anxiety and depression, as have both your parents and some of your siblings. You are addicted to methamphetamine and at the time of the reports you were described as being unable to read or write. You have little in the way of education or prosocial support. You were first sent to prison at the age of 20, but you were involved with police much earlier. Much of your background comes from your own description, but the Crown does not dispute it.
[34] I have no doubt that your cultural, economic and social deprivations have causatively contributed to your offending. Your enduring addiction to methamphetamine and tendency to act violently, both a product of your upbringing, alongside circumstances of material deprivation, particularly upon your release from prison, coupled with poor impulse control and behavioural management, a function of your bipolar disorder and other mental health issues, and a complete lack of prosocial support, provide the context for your criminal offending. You have few means to earn money legally, given your lack of education and your extensive criminal history. You yourself say: “I’ve never had a job in my life. The only money I know how to make is off the street; that’s all I know.”
[35] Judge Skellern, in sentencing you, described your background and circumstances as among the worst the Judge had seen. The Judge allowed a discount of 15 per cent to reflect those factors.
9 See Berkland v R [2022] NZSC 143 at [107]–[112].
[36] I had independently decided that a discount of 15 per cent to reflect those factors was appropriate. I did consider a higher discount. But, you have no real prospect of rehabilitation and on release you will pose a very high risk to the public because you will almost certainly reoffend. I do not like saying that. But I look at your record and I am driven to say it.
[37] The second matter to discuss is your guilty pleas. You pleaded guilty to the charges of aggravated robbery and kidnapping on the morning your trial was due to begin, 17 October 2022, having indicated you would do so the week prior. This followed an earlier trial on the same charges that commenced on 12 July 2021, but that trial was aborted after you terminated your counsel’s instructions on the first day. You pleaded guilty to the charge of intentional damage that same day, 12 July 2021.
[38] I am also going to take into account the submissions made to me today by Mr Tupou about the changes you have been making in prison while you have been awaiting sentencing. It appears from the many certificates you have been awarded while in prison that you have made impressive steps towards learning to read, write and do simple mathematics. I think that is probably a first for you, Mr Te Pou, and I hope very much that you continue.
[39] I also have letters from you expressing remorse and a letter directed to Mr Kumar.
[40] In all of these circumstances, I will further discount what would otherwise be your sentence by 10 per cent.
[41] From an adjusted starting point of six years and two months, these uplifts and discounts produce an end sentence of five years and one month’s imprisonment. By coincidence, the same sentence that you are already serving.
[42] If I added them together, that would be 10 years and two months’ imprisonment. I cannot do that. I have to stand back and look at the overall totality of your offending to see what an overall sentence should properly be.
[43] You heard me discuss that with the lawyers at the earlier part of this hearing. Mr Wiseman, for the Crown, submits that I should impose an uplift on your existing sentence of three to four years. Mr Tupou, for you, submits that a reasonable uplift would be in the range two years and six months to three years.
[44] I have considered the point independently and I have decided that your end sentence on the charges you are facing now will be three years’ imprisonment. That will be served on top of the existing sentence you have, so the Department of Corrections will regard you as having an overall sentence of eight years and one month’s imprisonment.
Minimum period of imprisonment
[45] The Crown had applied for a minimum period of imprisonment, but I do not think that is necessary given the overall length of the sentence you will now be serving.
[46] I am also of the view that the Parole Board is very familiar with you and your history and will be taking those matters into account when you first apply for parole, as the Parole Board will take into account the very impressive steps that you are making to rehabilitate yourself.
Sentence
[47] Mr Te Pou, on the charges of aggravated robbery and kidnapping, you are sentenced to three years’ imprisonment. On the charge of intentional damage, you are sentenced to one year’s imprisonment. Those sentences are to be served concurrently with each other and cumulatively on the sentence of five years and one month you are currently serving.
[48] There is an order giving you interim suppression of your name which was made in the District Court. I direct that that order now lapse.
[49]You may stand down.
Brewer J
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