R v Te Rupe
[2021] NZHC 788
•14 April 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-063-001032
[2021] NZHC 788
THE QUEEN v
MARE TE RUPE
Hearing: 14 April 2021 Appearances:
D McWilliam for the Crown
R O Gowing for the Defendant
Date of Minute:
14 April 2021
SENTENCING NOTES OF JUSTICE POWELL
R v TE RUPE [2021] NZHC 788 [14 April 2021]
[1] Mare Te Rupe, you come up for sentence today on one charge of manslaughter,1 eight charges of attempting to wilfully pervert the course of justice;2 two charges of driving while disqualified (3rd or subsequent),3 and one charge of dangerous driving causing injury.4
[2] You pleaded guilty to these charges after accepting the sentence indication that I gave on 2 December 2020.5
[3] At the sentence indication hearing the focus was very much on the manslaughter and attempting to pervert the course of justice charges. As Ms Pollett explained to the Court this morning, I indicated starting points of seven and a half years’ imprisonment on the manslaughter charge and four years for the charges of attempting to pervert the course of justice. This amounted to 11 and a half years’ imprisonment, which I reduced to 10 and half years in line with the principle of totality. I noted that I would consider whether there were any personal mitigating factors warranting lowering this starting point when I received the information needed to make that analysis. Finally, I indicated I would reduce your sentence by 25 per cent if you pleaded guilty because it would mean that your guilty plea had been made at the first available opportunity.
[4] Although I provided a rationale for you on that day as regards each of those matters, because sentencing is a public function it is necessary to go back over the reasons for each of those conclusions, as well as going on to consider the additional matters that you have heard me discuss with counsel today.
The offending
[5] Apart from one of the driving while disqualified charges for which you have pleaded guilty, you are here today because of the events that occurred on 6 June 2020.
1 Crimes Act 1961, ss 158, 160(2), 171 and 177. Maximum penalty life imprisonment.
2 Crimes Act 1961, s 117(e). Maximum penalty seven years’ imprisonment.
3 Land Transport Act 1998, ss 31(1)(a) and 32(4). Maximum penalty two years’ imprisonment or a fine not exceeding $6000 and disqualification from holding or obtaining a driver licence for one year or more.
4 Land Transport Act 1998, s 36(1)(b). Maximum penalty five years’ imprisonment or a fine not exceeding $20,000 and disqualification from holding or obtaining a driver licence for one year or more.
5 R v Te Rupe [2020] NZHC 3171.
On that day you attended a memorial service near Whakatāne for your father who had passed away a year earlier. While at the service, you consumed alcohol and cannabis. After the service ended, you left with three acquaintances in your vehicle, heading towards Murupara. Importantly, you were a passenger in the vehicle. You did however choose to take over driving after complaining that the previous driver “drove like a slug”. You immediately began driving erratically and this led to the left rear tyre of your vehicle bursting. After stopping to fit the spare and put air in the tyre, you continued to drive at speed, cutting corners and causing the passengers to request that the previous driver take over again.
[6] When you came to Pekatahi bridge, you pushed in front of a line of traffic, failed to obey the red signal and drove across the bridge until stopped by oncoming traffic. You were then forced to hastily reverse back off the bridge. After crossing the bridge you continued to drive erratically and at speed. As you were travelling around a corner you crossed the centre line directly into the path of an oncoming motorbike. The rider, Grant Wilson, had no chance to avoid you and was killed instantly.
[7] As you will be aware the death of Mr Wilson in such circumstances has utterly devastated his family. It is clear from the victim impact statements that you have heard today, from both his mother and his sister, that nothing can ever make right what happened.
[8] Following the accident you were remanded in custody. The charges of attempting to wilfully pervert the course of justice arise out of your conduct while you were in custody. On no less than seven occasions you made phone calls from prison to Billie Taoho, your partner and the sister of Chosen Mulder, one of the Crown witnesses who had been a passenger in the vehicle. On another occasion you called an unknown associate. During these conversations, you made comments to the effect that the passengers of the vehicle would be questioned by Police and that they had to shut their mouths and get their story straight; that “the bike came out of nowhere”.
[9] You grew concerned that one of the passengers had opened “his fat mouth”. You arranged for high-ranking members of the gang you were affiliated with to “visit” him to get him to “shut his f**cking mouth”. Later, you asked that the passenger be
visited but “with aggression this time”. You suggested he “might need a punch in the face, real talk”.
[10] During the phone calls with Ms Taoho, you spoke to Mr Mulder and reiterated that he was to say he did not know anything or he had been asleep. You also directed Ms Taoho and her mother to lie to your lawyer to help with your bail application.
Approach to sentencing
[11] As I explained to you in December calculating an appropriate sentence is a two-stage process.6 First, I must fix the starting point this type of offending would attract. This involves identifying the aggravating and mitigating features of your offending to enable me to arrive at an appropriate term of imprisonment. I must decide whether this starting point should be adjusted for totality considerations so that the overall offending is proportionate to the term of imprisonment. I must then at the second stage take into account any of your personal circumstances that are relevant, including your guilty pleas. I must determine whether the starting point should be adjusted through any uplifts or discounts as a result of those personal circumstances.
[12] In sentencing you today, I must have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act. This Court must impose a sentence that holds you accountable for the harm that you have done, promotes in you a sense of responsibility for and acknowledgement of that harm, denounces your conduct, deters you and others from committing similar offences and protects the community from you as an offender. I must further consider the gravity of your offending and your degree of culpability, and the seriousness of that offending. In addition, your sentence must be consistent with other similar cases and I should impose the least restrictive sentence appropriate in the circumstances.
Setting the starting point - manslaughter
[13] At the sentence indication the Crown submitted that the appropriate starting point for the manslaughter charge was between seven and eight years’ imprisonment.
6 Moses v R [2020] NZCA 296.
Your counsel at the time, Mr Tomlinson, argued that the starting point should not be higher than seven years.
[14] I concluded that your offending justified a starting point of seven and a half years’ imprisonment. I referred to a decision of the Court of Appeal in Gacitua v R, which identified four broad categories of aggravating factors.7 I also found the cases of R v Atkinson8 and R v Mika helpful in assessing how serious your offending was compared to other similar cases, and decided that your offending was more serious than Atkinson but less serious than Mika.9 Your offending had no mitigating factors. However, as Ms Pollett noted this morning, there were several aggravating factors, specifically:
(a)your greatly excessive speed;
(b)your disregard for warnings from passengers;
(c)your prolonged, persistent and deliberate course of very bad driving;
(d)your aggressive driving;
(e)the fact you were driving while disqualified;
7 Gacitua v R [2013] NZCA 234. At [28] The Court of Appeal noted that “there may be a case for establishing in New Zealand a tariff for categories of offending at different levels of culpability” but declined to do so, leaving the matter for “the Permanent Court in an appropriate case”. At [25] and [26]. The Court effectively endorsed the factors outlined in R v Cooksley [2003] 3 All ER 40 (Crim App).
8 R v Atkinson [2020] NZHC 1567: In this case the defendant consumed alcohol, drove at excess speed weaving in and out of traffic with a passenger. At an intersection the defendant collided with a scooter and drove away. The defendant ignored requests from the passenger to stop and check on the victim. The driver of the scooter died at the scene. A starting point of seven years’ imprisonment was adopted. This starting point excluded consideration of prior convictions which were taken account of in a separate uplift. Your offending is more serious than Atkinson given that I am considering your prior convictions as an aggravating factor atop of many of the factors already present in Atkinson.
9 R v Mika [2013] NZHC 2357: In this case the defendant consumed alcohol and cannabis and then drove a car with three other passengers. He drove at speeds of 100 km in a 50 km zone and drove on the wrong side of the road. He ignored passenger requests to stop, hit an oncoming car and lost control, rolling the vehicle. The defendant then ran from the vehicle failing to check on the passengers. One of the passengers was killed and another seriously injured. The defendant had more than 10 convictions for driving related offences. Your offending is less serious than Mika as you did not flee the scene.
(f)your eight previous driving convictions; and
(g)the resulting death of Mr Wilson and the injury to one of your passengers.
[15] The Crown proposed that I uplift the starting point by one year to reflect your history of driving-related offending. However, I declined to do so because I considered this would be double counting since I had already considered your previous driving convictions as an aggravating factor in the offending. The starting point thus remained at seven and a half years for the manslaughter charge.
Setting the starting point – attempting to pervert the course of justice
[16] I then turned to the starting point for the multiple charges of attempting to pervert the course of justice. Mr McWilliam for the Crown submitted that three and a half to four years was appropriate. In his submission you had used your gang connections in an attempt to intimidate and/or interfere with a key Crown witness, and that those actions strike at the heart of the criminal justice system. Mr Tomlinson submitted that the right starting point was two to three years’ imprisonment. He submitted that the attempts to pervert the course of justice were not as significant in this case for two reasons: first, because the bulk of the Crown case lay in the expert evidence and independent reports relating to the physical examination of the scene, rather than witness testimony, and secondly, because there was a certain amount of repetition involved in these charges which reduces the overall impact – as does the fact that some of your calls related to attempts to get bail rather than to interfere with witnesses.
[17] Ultimately, I set a starting point of four years. Looking at comparative cases, I considered that your offending was worse than a case called R v Miller, and less serious than R v Ledgerwood, being most similar to R v Kingi.10 I kept in mind that
10 Miller v R [2014] NZCA 382: In this case the defendant wrote a letter from prison overtly threatening two witnesses, both of whom were subsequently placed in witness protection. The starting point of three and a half years’ imprisonment was upheld on appeal. Your offending is much more serios than that in Miller as it involved a far greater number of attempts to influence witnesses and more serious threats.
R v Ledgerwood [2017] NZHC 822: Mr Ledgerwood communicated with the complainant to deter him from giving evidence against Mr Ledgerwood’s brother. He also made what were
the Court of Appeal has noted that “any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.”11 When assessing the starting point, the Court must focus on “the intention behind the attempt and on its potential effect.”12
[18] In this case, you intended, through verbal and physical threats, to prevent the passengers in the vehicle from giving their evidence about what had happened that night leading up to the crash. The passengers’ evidence was important. Although the Crown obtained various reports about the crash itself, it is only the evidence of the passengers you put at risk that fully illustrates the aggravating factors present in your driving and justifies the charge of manslaughter rather than a lesser charge. I therefore did not agree with Mr Tomlinson that the effects of your actions were likely to be minimal. Your actions displayed a wilful and serious interference with the administration of justice. The fact this occurred seven times increases the severity of the offending (noting the other time was the attempt to get bail).
[19] I agreed with counsel that any sentence for attempting to pervert the course of justice should be cumulative on the manslaughter sentence.13 This is because the offending is interconnected, with the attempts to pervert justice effectively aggravating the manslaughter.
[20] Adding together the starting points of the manslaughter charge and the attempting to pervert justice charges, the global starting point totalled 11 and a half
described as “veiled threats” if the complainant gave evidence. The High Court upheld the District Court Judge’s starting point of three years. Your conversations went beyond veiled threats and gave clear instructions for other parties to deliver those threats and physical violence to a key witness. You gave these instructions on numerous occasions. Thus, I see your offending as being more serious than that of Mr Ledgerwood.
R v Kingi [2017] NZHC 3020: Mr Kingi had fellow gang members visit the house of two key witnesses and threaten to kill them and do them violence. Mr Kingi also spoke with his partner on three occasions, expressing the view that someone should ‘sort out’ the witnesses. Justice Peters voiced that she would have adopted a starting point of four years but declined to do so as she did not want to go above the Crown’s suggested starting point of three years’ and six months’ imprisonment. I see your offending as being most similar to that of Mr Kingi, as he too gave his associates and fellow gang members instructions to threaten a key witness with violence. Thus, I am a of the view a starting point of around the four-year mark would be appropriate.
11 M (CA469/2013) v R [2013] NZCA 385.
12 At [11].
13 See Sentencing Act 2002, ss 83 and 84.
years. Counsel submitted that a one-year deduction should be applied at this stage for totality purposes.14 Having regard to a recent Court of Appeal decision Polaapu v R, I agreed that this was appropriate.15 I therefore reduced the adjusted starting point to 10 and a half years’ imprisonment.
Personal factors and guilty pleas
[21] As you have heard, the primary focus of the discussion today has been on whether there should be any discount for personal factors in the light of the comprehensive report prepared by Ms Cade and Ms Moodie under s 27 of the Sentencing Act 2002, as well as the matters set out in the Provision of Advice to the Court or PAC Report.
[22] Your counsel Mr Gowing has submitted that you should be given discounts to your sentence for your remorse, your upbringing in a family entrenched within a gang lifestyle, and your willingness to engage in rehabilitation. Mr Gowing has not however suggested any specific level of discounts I should give to any of these factors.
[23] There is no doubt that a discrete discount for genuine remorse is available to a defendant over and above the acceptance of responsibility inherent in a guilty plea.16 True remorse requires accepting responsibility for the offending, and a defendant claiming to be remorseful bears the onus of showing that this remorse is genuine.17 A Court may be sceptical that a defendant is remorseful if the circumstances suggest that it is not genuine.18
[24] Mr Gowing submits that your remorse is demonstrated by the letter of apology you filed in this Court on 4 March 2021, in which you apologised to the victim’s whānau and acknowledged the pain that you have caused. He points to the pre- sentence report, in which the writer states that you described your remorse throughout the interview. Mr Gowing also notes that you agreed to participate in a restorative justice conference with Mr Wilson’s family, though this conference did not proceed.
14 Sentencing Act 2002, s 85.
15 Polaapu v R [2020] NZCA 227.
16 Sentencing Act 2002, s 9(2)(f). Hessell v R [2010] NZSC 135 at [64].
17 Sentencing Act 2002, s 24(2)(d); Moses v R [2020] NZCA 296 at [24].
18 R v Lambert CA456/05, 4 April 2006 at [25].
Finally, Mr Gowing has referred me to the Cultural Report itself. The writers of that report express the view that you seemed “genuinely saddened that [you] took someone’s life” and you had reflected on your offending.
[25] As you have heard me discuss with Mr Gowing, I have some considerable difficulties in concluding that a discrete discount for remorse should be given in your case. In my view, any concern that you have shown for causing Mr Wilson’s death is undercut by your continued insistence that it was an accident. Although it is accepted that you did not intend to kill Mr Wilson that night, you are not being sentenced for an accidental outcome but for your actions that lead to the collision in which Mr Wilson suffered a horrific death and lead to injuries to at least one of your passengers.
[26] Make no mistake Mr Te Rupe, Mr Wilson’s death was directly caused by your actions: specifically by your decision to get behind the wheel of your car notwithstanding you did not have a license, after you had taken drugs and alcohol, and most importantly it was a direct result of your appalling driving that night.
[27] It is also important to bear in mind that any remorse appears to be limited to the death of Mr Wilson, and not with regard to your repeated attempts to prevent witnesses from giving evidence for the very purpose of avoiding responsibility for your actions that led to the collision.
[28] On the contrary it appears from the PAC report that while you accept that you should not have attempted to pervert the course of justice, you have nonetheless continued to attempt to justify your actions – and those references are throughout the Cultural Report and the PAC report. For example, by saying that you did not know what you were doing was illegal, that one of the passengers had broken the rules of the gang by speaking with authorities and that you hoped he was not part of “the club” anymore.
[29] The one aspect of the matters submitted by Mr Gowing that I do consider warrants a discrete discount was your offer to attend restorative justice. It is not surprising that Mr Wilson’s family did not take up the offer but the fact that the offer was made by you does demonstrate courage and a degree of genuine remorse over and
above the guilty plea discount. I consider a further 5 per cent discount is warranted for that offer.
[30] Turning to rehabilitation and your willingness to engage, I do not accept that a discrete discount is warranted. Mr Gowing has submitted that your sentence should be reduced to recognise that you have expressed a desire to make changes in your life. The Cultural Report has also noted that your faith has contributed to this desire. You have been recorded as saying in that report that you would like to learn the skills you need to move forward without using cannabis and that you want to “reshape” some aspects of your life. As I discussed with Mr Gowing though, nowhere however is there any indication that you intend to cease being a member of the Tribesman gang. This is significant. The PAC report is clear that the offending-related factors – lifestyle, friends and associates, and attitudes; are all closely related to your participation in the gang. It is unclear to me how there can be a genuine commitment to rehabilitation, how you can meaningfully change your life, if you continue to associate with the gang and, in those circumstances, I cannot and do not accept there is any genuine indication to change.
[31] On the contrary the Cultural Report makes it clear that you grew up experiencing a life of relative “privilege” in the gang context. As Ms Pollett submitted, in many ways you had a positive childhood with clear links to your whānau. You are recorded as describing yourself and your siblings as “fortunate kids” with certain rights others in your circle did not have. You were “untouchables” because of the respect your father commanded, which entitled you to do anything you wanted because your father’s reputation gave you security. If anyone gave you and your brothers trouble, they had to answer to him.
[32] I consider that this element of your background is relevant to the charges that you are being sentenced on today. You say that you had always thought that you and your whānau were “above the law”. This attitude of entitlement clearly fed into your decision to take over the driving on 6 June 2020 and later for you to consider you are entitled to threaten witnesses and attempt to prevent them from giving evidence. As a result, while I accept there are some aspects of your upbringing that have clearly resulted in these displayed attitudes, it would be wrong, indeed abhorrent, to grant any
discount in the absence of any real indication that you wish to put your gang connections behind you.
[33] Finally, although it is clear you have used cannabis regularly and also occasionally used methamphetamine and other drugs, there is no medical evidence before the Court that would indicate that you struggle with addiction or that any addiction could have had any causal connection to your offending. Thus, I do not consider that there is any basis for a discount because you might have had a drug problem with a strong link to this offending.19
[34] As a result, I conclude the discount for personal circumstances available to you is your early guilty plea of 25 per cent20 and 5 per cent to reflect the remorse shown by your offer to attend restorative justice. That makes a combined discount of 30 per cent, leaving an end sentence of seven years and four months’ imprisonment.
Sentence
[35]Mr Te Rupe, will you please stand.
[36] On the charge of manslaughter, I sentence you to seven years and four months’ imprisonment. The schedule attached to these sentencing notes will set out the individual terms of imprisonment on each of the other charges to which you have pleaded guilty.
[37] The terms of imprisonment on the other charges are to be served concurrently with the term of imprisonment on the manslaughter charge.
[38]Mr Te Rupe, you may stand down.
Powell J
19 See Zhang v R [2019] NZCA 507.
20 See Hessell v R [2010] NZSC 135.
Schedule
Remaining Charges (All to be served concurrently)
Attempting to pervert the course of justice:21 2 years and 9 months’ imprisonment. Attempting to pervert the course of justice: 2 years and 9 months’ imprisonment. Attempting to pervert the course of justice: 2 years and 9 months’ imprisonment. Attempting to pervert the course of justice: 2 years and 9 months’ imprisonment. Attempting to pervert the course of justice: 2 years and 9 months’ imprisonment. Attempting to pervert the course of justice: 2 years and 9 months’ imprisonment. Attempting to pervert the course of justice: 2 years and 9 months’ imprisonment. Attempting to pervert the course of justice: 2 years and 9 months’ imprisonment. Driving while disqualified (3rd or subsequent):22 4 months’ imprisonment.23 Driving while disqualified (3rd or subsequent): 4 months’ imprisonment.
Driving dangerously causing injury:24 1 year and 9 months’ imprisonment.25
21 Crimes Act 1961, ss 115-117. Maximum penalty seven years’ imprisonment.
22 Land Transport Act 1998, ss 31(1)(a) and 32(4). Maximum penalty two years’ imprisonment or a fine not exceeding $6000 and disqualification from holding or obtaining a driver licence for one year or more.
23 See Bom v Police [2016] NZHC 2875 (four-month starting point for a third conviction for driving while disqualified) and Raman v Police [2016] NZHC 1368 (six months’ imprisonment for driving while disqualified, having previously been convicted of a similar offence at least twice). These are Mr Te Rupe’s third and fourth convictions for driving while disqualified; the offending is also aggravated on one occasion by his consumption of alcohol and very bad driving. A seven-month starting point is appropriate.
24 Land Transport Act 1998, s 36(1)(b). Maximum penalty five years’ imprisonment or a fine not exceeding $20,000 and disqualification from holding or obtaining a driver licence for one year or more.
25 See R v Skerrett CA236/86, 9 December 1986 listing aggravating factors applicable to sentencing for this offence (see also Gacitua v R [2013] NZCA 234); relevant factors are the consumption of alcohol, “showing off” through grossly excessive speed, disregarding passengers’ warnings, engaging in a persistent and deliberate course of very bad driving, driving while disqualified and with two previous dangerous driving convictions, and killing a motorcyclist (the victim of the manslaughter charge), causing the complainant to suffer facial abrasions requiring hospitalisation. These factors place Mr Te Rupe’s offending at the more serious end of the spectrum. A starting point of around three years’ imprisonment is warranted in cases of dangerous driving of the highest order (R v Fallowfield [1996] 3 NZLR 657 (CA)); that starting point was adopted in Pollard v R [2018] NZCA 244. The injury in this case was less significant than in Pollard and the driving less irresponsible (there, the defendant accelerated while driving through a crowd). A two and a half years’ starting point is appropriate.
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