R v Te Pou
[2022] NZHC 1004
•10 May 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 1004
THE QUEEN v
KAIORA TE POU
Hearing: 10 May 2022 Appearances:
D A McGivern for Crown J Verry for Defendant
Sentence:
10 May 2022
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Auckland
R v KAIORA TE POU [2022] NZHC 1004 [10 May 2022]
Introduction
[1] Kaiora Te Pou, you appear before the Court this morning for sentence on one charge of causing intentional damage1 and one charge of assault with a weapon.2 The intentional damage charge relates to your offending at an address in Massey, West Auckland, on 27 October 2019, and the assault with a weapon charge relates to your offending the same day and shortly after the first offending when a vehicle in which you were travelling followed another vehicle and was driven into the back of it when it stopped.
The offending
[2]I shall commence by summarising your offending.
[3] At around 3.30 pm on 27 October 2019 you and Manawanui Te Pou arrived together at a residential address in Don Buck Road in Massey where a Mr Josh Tana was living. That afternoon his sister, his sister’s partner, and her two young children were visiting Mr Tana at that address.
[4] When you and Manawanui arrived at the address you walked up the driveway and said to the occupant that you were looking for someone named “Rangi”. The occupant told you that there was no one with that name living at the address and he then walked you back down the driveway where you both got into a red Ford Falcon motor car and drove away.
[5] However around seven minutes later, you and Manawanui arrived back at the address in the red Ford Falcon, and drove the vehicle into the property and on to the front yard of the residence. You then both got [out] of the vehicle and you both appeared to be in a heightened and agitated state. You, Mr Te Pou, were brandishing two machete knives.
[6] The two of you then moved towards Mr Tana in a threatening manner before turning your attention to a black Honda motor car which was parked on the property
1 Crimes Act 1961, s 269(2)(a): carrying a maximum penalty of seven years’ imprisonment.
2 Section 202C(1)(a): carrying a maximum penalty of five years’ imprisonment.
beside the driveway or on it. It belonged to Mr Tana’s sister who was visiting, as I have said. Manawanui then tried to get into the black Honda but was unable to, and so you and he then proceeded to smash the windows of the vehicle using the machete weapons that each of you had in your possession. Your actions and involvement in the smashing of the Honda’s windows is the basis of the intentional damage charge.
[7] While this was taking place, some other vehicles also arrived at the address, and the drivers of those vehicles appeared to be associated with the two of you. Frightened for his safety and that of his family, Mr [Tana] went back inside the house and exited through the back to go and telephone the Police. However, before the Police arrived you and Manawanui and your associates, who had arrived in the other vehicles, all left. You and Manawanui left the property driving away in the red Ford Falcon.
[8] Another and second complainant, a Mr Tavita, was at an adjoining property when these events took place and when he saw you and Manawanui smashing the Honda, he left his property in his car. When you and Manawanui left Mr [Tana]’s address in the red Ford Falcon, your Ford Falcon was driven away at speed and it pursued Mr Tavita in an apparent attempt to catch up to him. Mr Tavita saw the red Ford Falcon coming up behind him and he stopped his vehicle behind a parked car in order to give way to some oncoming traffic. However as he stopped his vehicle the red Ford Falcon in which you were travelling was driven into the back of his vehicle. He then looked in his rear-view mirror and saw you, Mr Te Pou, holding a machete knife out of the window of the Ford Falcon and pointing it towards him in what appeared to be a threatening manner. Mr Tavita feared for his safety and he continued driving and went on to the Henderson Police Station to report the matter.
Purposes of sentencing and matters to be taken into account
[9] The purposes of sentencing you include holding you accountable for the harm your offending has caused the victim in each case and the community, and to promote in you a sense of responsibility for and acknowledgement of that harm. Other purposes and objectives of the sentencing are to denounce your offending, and to deter you and anyone else minded to commit the same or a similar offence from doing so in the future. The sentence to be imposed on you is also for the purposes of protecting the
community from you, and assisting in your rehabilitation and reintegration back into the community upon your release at the completion of your sentence.
[10] In deciding the sentence to be imposed on you I must take into account the gravity of your offending and your degree of culpability. I must also take into account the seriousness of the type of offences you committed in comparison to other types of offences as indicated by the maximum penalties prescribed for them. I must also take account of the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of [similar offenders committing offences], and offenders committing similar offences in similar circumstances. I must take into account any information regarding the effect of your offending on the victims. And finally, I must impose a sentence that is the least restrictive outcome that is appropriate in the circumstances of this case and which is consistent with appropriate sentencing levels for offending of this kind.
[11] Mr Kaiora Te Pou, my sentencing you today involves a two-stage process.3 I shall begin by deciding the appropriate sentencing starting point in respect of the charge of intentional damage which I shall treat as being the lead offence of the two offences you are to be sentenced for. To do so, I will have regard to several cases where the offence and circumstances of the offending was similar to yours, for the purposes of comparison and in order to select a starting point for your sentencing which is consistent with the sentences imposed on other offenders who have offended in a manner similar to you. As part of the process of deciding the starting point I shall identify and consider any aggravating and mitigating features of your offending,4 I will then adjust the starting point either up or down, to take account of any other relevant circumstances relating to you and your offending which will include taking account of the second offence of assault with a weapon and your personal circumstances. That process will also include making a reduction or discount in recognition of your guilty pleas and any other appropriate discounts which will reduce the final sentence to be imposed on you.5
3 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
4 R v Taueki [2005] 3 NZLR 372 (CA) at [8].
5 Moses v R, above n 3, at [46].
Submissions
Crown submissions
[12] The Crown says that the Court should adopt a starting point of between eight and 10 months’ imprisonment to cover both charges. The Crown says that an uplift of no more than two months (or 20 per cent) should be applied to take your previous convictions into account. That would take the starting point to around 10 to 12 months’ imprisonment. Turning to the appropriate discounts, the Crown acknowledges that you should receive a discount of around 10 per cent in recognition of your guilty pleas entered on 12 July 2021. The Crown also says that the starting point could possibly be reduced by another two months to take account of the time you spent subject to restrictive bail conditions. Finally the Crown says that a further discount to recognise your disadvantaged background might also be appropriate.
Defence submissions
[13] Ms Verry on your behalf submits that the appropriate starting point for both the intentional damage and assault with a weapon charges is around 12 months’ imprisonment, to which she submits should be added a six month uplift to take account of your previous convictions for similar offending to arrive at an adjusted starting point of 18 months’ imprisonment. Regarding the appropriate starting point, Ms Verry submits that the adoption of an adjusted starting point of 18 months’ imprisonment would be consistent with the cases of Stone v R6 and Sudol v R7, both of which I will refer to in more detail shortly.
[14] Ms Verry says that discounts totalling 50 per cent of the adjusted starting point should then be allowed to reach a final sentence of nine month’s imprisonment. She submits that the Court should impose the sentence together with the standard and special conditions of release as set out in the Department of Corrections pre-sentence report, including a further condition requiring you to submit to drug testing as required by your probation officer.
6 Stone v R [2011] NZCA 558.
7 Sudol v R [2011] NZCA 189.
[15] Turning to the appropriate discounts to be allowed, Ms Verry submits that you should be allowed a discount of 15 per cent of the adjusted starting point in recognition of your guilty pleas which you entered when you were arraigned on 12 July 2021. She submits that you should also receive a discount in recognition of the influence and contribution that your personal and cultural background has had on you which has led you to your offending. For that factor Ms Verry submits the Court should allow you a discount of 20 per cent of the adjusted starting point.
[16] Finally, Ms Verry submits that you should receive a discount to recognise and take account of the fact that you were on restrictive EM bail while attending the Grace Foundation residential rehabilitation programme for approximately seven months. For that factor she submits that you be allowed a further discount of 15 per cent.
[17] Those three discounts add up to the total of 50 per cent that Ms Verry has calculated and she accordingly submits that the final sentence should be one of nine months’ imprisonment.
The Sentence
The starting point
[18] As both counsel have said in their submissions, there is no guideline judgment for the sentences to be imposed for the offences of intentional damage and assault with a weapon. The Crown says however that the two cases referred to by your counsel, being the cases of Stone and Sudol, provide only limited assistance as they involved much more serious offending than your offending. In Stone the weapon used by the defendant to assault the victim was a wooden fence paling which had a nail protruding from it. The defendant in that case used the fence paling to strike the victim in the head, causing bruising and wounds. When the victim’s girlfriend drove towards the roadside to collect him, the defendant threw an empty glass bottle at the car and smashed its front windscreen. He later threw another glass bottle which smashed a side window of the vehicle. The sentencing Judge in that case adopted a starting point of 13 months’ imprisonment for the assault with a weapon charge and uplifted it to take account of the intentional damage charge and the defendant’s previous
convictions, leading to an end sentence of 18 months’ imprisonment which was upheld on appeal.
[19] However, I agree with the Crown submission that the offending in that case was significantly more serious than your offending Mr Te Pou. Stone’s offending involved the use of a weapon to the head of the victim of the assault and it resulted in injuries to the victim. Those aggravating features are not present in your offending.
[20] The other case referred to by Ms Verry is that of Sudol. In that case the defendant pleaded guilty to charges of assault with a weapon, intentional damage, two breaches of intensive supervision, and attempting to escape from custody. The circumstances of the assault with a weapon offending were that the defendant first punched the victim on the side of her face and then used a pocket knife with its blade extended and waved it towards her. The intentional damage charge related [to] the defendant interfering with an EM bail bracelet. The Court of Appeal found that the sentence imposed of 13 months’ imprisonment was manifestly excessive and substituted a sentence of 10 months’ imprisonment. That case also involves relatively more serious offending than yours Mr Te Pou, because in Sudol the victim was actually struck in the face and the weapon, namely a knife, was used to threaten the victim in circumstances where the defendant was in close proximity to the victim. Moreover, as the Crown have pointed out the Court of Appeal merely adjusted and reduced the end sentence and did not provide a detailed description of the methodology used to reach the sentence it imposed on appeal.
[21] The Crown also refer me to the case of Finiki v New Zealand Police.8 In Finiki the defendant pleaded guilty to charges of assault with a weapon, assault with intent to injure and intentional damage. The charges arose from two separate incidents and acts of offending. The defendant and the victim were previously in a domestic relationship. On the day that the relationship ended the defendant asked the victim to leave the residence where they had been living together. She did. The following day however the victim returned to the property accompanied by another man. The defendant armed himself with a baseball bat and told the victim and her male associate
8 Finiki v New Zealand Police HC Christchurch CRI 2011-409-38, 3 June 2011.
to leave the property. He then struck her lightly on her shoulder with the baseball bat. The victim did not sustain any lasting injury but was left feeing sore where she had been struck. The defendant then used the baseball bat to smash all but one of the windows of the victim’s car as well as smashing one of the headlights. For that offending the defendant was charged with assault with a weapon and intentional damage. A second incident occurred just over a month later when the victim asked the defendant to accompany her to a relative’s funeral. While in the car the defendant assaulted the victim by punching her several times in the face and head. She suffered injuries including chipped and broken teeth, black eyes, a broken nose and a fractured eye socket.
[22] Obviously the assault offending and injuries that resulted from that assault and from which the assault with intent to injure charge arose in the second incident of offending is quite different from and quite unrelated to your offending Mr Te Pou. However in the course of his decision allowing an appeal against the sentence imposed in the District Court, Venning J addressed the offending that took place during the first incident where the baseball bat had been used to lightly strike the victim and then used to smash the car windows and headlight. Justice Venning said that given the nature of that offending and the fact that the assault involved a light touch on the shoulder of the victim with the bat, a sentence of no more than eight months’ imprisonment was appropriate for the offending, including the damage to the car.9
[23] I consider that your offending Mr Te Pou is more closely comparable to that in the case of Finiki than it is to the cases of Stone and Sudol. The assault with a weapon offending was in my view more serious in Finiki than your offending, as in your case you were seen by Mr Tavita to be holding a machete out of the window of the Red Ford Falcon and pointing it towards him. He was at a distance from you in his own car at the time and so he was not in close proximity to you as the offender as was the case with the defendant in Finiki. Nevertheless, the weapon that you were holding, being a machete knife is obviously one capable of inflicting serious and indeed fatal injuries and by pointing it at Mr Tavita in a threatening manner you were obviously intending to intimidate and frighten him. The smashing of the car windows and
9 At [11].
headlight in the Finiki case is closely comparable with the smashing of the Honda windows that you and Manawanui undertook, and so in that regard your case and that one are quite similar.
[24] However in your case you offended together with a co-offender, namely Manawanui, and I consider that the fact that there were two of you acting together when the intentional damage offending and your use of the vehicle took place and therefore your ability to follow and pursue Mr Tavita, is a factor that makes your offending more culpable and which aggravates your offending. In my view your ability to move in a vehicle and pursue Mr Tavita in the circumstances when the assault with the weapon offending occurred, is a significantly aggravating factor which places your offending above the offending in Finiki in terms of gravity.
[25] For those reasons I consider that the appropriate starting point covering both the intentional damage charge and the assault with a weapon charge is 10 months’ imprisonment.
[26] I turn next to consider whether an uplift is necessary to take account of your previous offending in a similar manner as indicating your failure to modify your tendency towards violent offending notwithstanding the imposition of sentences for previous offending which were intended to deter you from further offending and protect the community from you and any further offending by you. I note that you have a lengthy list of previous convictions but notably they include convictions for: possession of an offensive weapon (2018); assault with intent to rob (2015) and aggravated robbery (2015). In all three of those matters weapons were involved. It therefore appears that you are prepared to use and employ weapons in the commission of criminal offending which is a feature of your offending that is of particular concern because of the risk that presents to any victims of your offending and to the community at large. Having regard to these considerations and your prior history of similar offending, I shall uplift the starting point by four months to reach an adjusted starting point of 14 months’ imprisonment.
Discounts
The guilty pleas
[27] In recognition of the guilty pleas that you entered to the charges on 12 July 2021 I shall allow a discount of 10 per cent. Although your guilty pleas were entered at a late stage and on the first day of your scheduled trial, they followed the Crown filing an amended Crown Charge Notice which led to you entering guilty pleas, and by pleading guilty to the charges the trial in relation to the charges you faced became unnecessary. Accordingly, I consider that a discount of 10 per cent is appropriate to recognise the saving of court and prosecution resources and the alleviation of the pressure on the victims of having to give evidence at your trial.
EM bail
[28] As I have said, your counsel submits that you should also be allowed a 15 per cent discount to take account of the approximate seven months you spent subject to restrictive EM bail conditions while attending the Grace Foundation rehabilitation programme between 15 October 2020 and 11 May 2021. A 15 per cent discount represents approximately two months of the adjusted starting point. In their submissions the Crown note that you breached the terms of your EM bail twice while you were at the Grace Foundation. On one occasion in January 2021 you were given an approved absence from the Foundation and failed to return by the time specified, and the EM bracelet that you were wearing was unable to be accessed to track your whereabouts. There is reference in the pre-sentence report to you allegedly foiling the EM bail bracelet to prevent it being traceable.
[29] Then on another occasion when you were given an approved absence from the Foundation to attend the Sylvia Park Shopping Centre you failed to return to the Foundation address as required and instead went to an address in Massey and therefore were logged attending a petrol station in Manukau. You initially denied your breach and your movements and provided a false explanation of where you had been. As a result of that you did not apply to be readmitted to bail following that second breach.
[30] The Court expects defendants released on bail to strictly comply with their terms of bail and any failure to do [so] will be taken into account when a discount is sought for the time spent by a defendant when subject to restrictive bail conditions. Because of your failure to strictly comply with the terms of your EM bail, I consider that you should not receive any discount in respect of this factor.
Efforts at rehabilitation and remorse
[31] I do however consider that the initiative and efforts that you showed by obtaining a place at the Grace Foundation to undergo a programme of rehabilitation indicates you wish to move forward with your life in a positive manner and consequently that your prospects of rehabilitation are better by reason of your own motivation. The Department of Corrections pre-sentence report contains a commentary prepared by a member of the Grace Foundation staff in which you are described as having been an exemplary resident while on EM bail and at the Grace Foundation. You are said to have engaged in all available programmes and approached these programmes with an open mind. You showed that you were eager to learn and very respectful of staff, your peers, and any members of the community that you became involved with while there. You completed the Foundation’s “Soulutionz” programme and you were offered the opportunity to engage in the initiative that gives some residents more responsibility. In that role you displayed qualities of leadership and took responsibility for organising and running a number of activities for the Foundation and your fellow residents.
[32] I also note that you have expressed to the author of the pre-sentence report your genuine remorse for your offending. Speaking to the author of the pre-sentence report, you said that you do regret going to the property where the offences were committed and regret damaging the vehicle and frightening the children who were there. You say that you are deeply sorry for what you did and you say that as you now have a child of your own, it has changed your life in ways that you never thought possible. You say that you have a vision for your own son and his life and you do not wish him to lead the life that you have lived. You want him to get an education and have a future and you want to get back to being the person that you were before you became engaged
with drugs and criminal offending. You say you want to finally be able to accept and heal from all of the bad things that happened to you during your childhood.
[33] Mr Te Pou, in recognition of your motivation to change and your efforts that you have already displayed in achieving rehabilitation, I will grant a discount for your sentence to encourage those efforts and to also reflect what I consider to be your genuine remorse for your offending. For those factors I will allow a further discount of 10 per cent of your sentence, to be deducted from the adjusted starting point.
Personal and cultural background
[34] You are Māori of Tūhoe and Ngāpuhi descent. The pre-sentence report prepared by the Department of Correction, and the Specialist Māori Cultural Assessment prepared by the Department of Corrections, together with your own affidavit which you filed in support of your application for EM bail, provide a detailed account of your personal background during your childhood and youth which was characterised by violence, criminality, poverty, neglect, and took place in an environment of drug and alcohol abuse where those practices were commonplace and where all of those factors and those environmental influences inevitably had a significant impact on you and your ability to develop as a child in a pro-social way and contributed to your subsequent educational underachievement, your unemployment and to you associating with others who found themselves in a similar situation to you and led to you, through your association with them, becoming increasing involved in criminal activity yourself.
[35] The pre-sentence report notes that you had an especially difficult childhood. You report that your mother was addicted to methamphetamine and that you yourself started using drugs from a young age. You have three sisters and two brothers. You report that your mother could not really look after you and your siblings. You were taken from your mother’s care by CYFS when you were aged nine at a time when your father was in prison. You then spent time in group and foster homes for around a year or so before being returned to your mother’s care when you were aged 10. You continued to live with her until you were 13 years old when you and your brother decided that you would leave home and go and live on the street.
[36] You report that you suffered considerable trauma and abuse while living in state care and you have filed a claim with the Royal Commission of Inquiry regarding those events. At 13 years old you joined the Crips gang and remained with them until you were 16. You then prospected for the Nomads gang for around four years and left the gang after your second term of imprisonment. You say you have been associating more recently with the Black Power gang since around 2019 although you are not a member of the gang. You say nevertheless that the gang associates are like a family to you. You now have a partner and with [her] you have a young son, I think yet to be two years old.
[37] I am satisfied Mr Te Pou that your personal family and cultural backgrounds do have a nexus and causative influence on you that has a connection to the occurrence of your offending. The circumstances in which you were raised and the exposure to drugs and criminal behaviours throughout your childhood and youth, leading you to adopt a life on the streets at age 13 and then associate with gangs, clearly put you on a pathway that led inevitably to an outcome of criminal offending.
[38] In recognition of the contribution that your personal and cultural background has played in being a causative factor of your offending, I shall apply a discount of 15 per cent of your sentence to be deducted from the adjusted starting point.
[39] So those discounts, 10 per cent, 10 percent and 15 per cent total 35 per cent which when deducted from the adjusted starting point of 14 months’ imprisonment produces an end sentence of nine months’ imprisonment.
Sentence
[40]Mr Te Pou, please stand.
[41] On each of the charges of intentional damage and assault with a weapon I sentence you to nine months’ imprisonment. The sentences are to be served concurrently, meaning that you serve one sentence of nine months’ imprisonment effectively.
[42] At the conclusion of your sentence you are to be released subject to the standard conditions and the further conditions set out in the Department of Corrections pre-sentence report, together with a further and additional condition requiring you to undergo a drug test in accordance with any directions given to you by your Probation Officer following your release from prison.
[43]You may stand down.
Paul Davison J