R v Te Tomo

[2017] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2015-476-000005 [2017] NZHC 1628

THE QUEEN

v

KOOLY MANGAKI TE TOMO

Hearing:	14 July 2017
Appearances:	A McRae for the Crown J Rapley and P Bradford for the Defendant
Date:	14 July 2017

SENTENCING REMARKS OF NATION J

[1]      Mr Te Tomo, you must now be sentenced for manslaughter and assault with intent to rob.

[2]      You have two young children.  You have parents.  I have been told that you knew Arran Gairns’ partner from when you were children.  I have been told today how you knew the family and the people who read their victim impact reports.  You have heard about the profound grief and distress Arran Gairns’ death has brought to his immediate family and partner.

[3]      But, for your actions, and the actions of Ms Lucas, Mr Marshall and Mr Perry, Mr Gairns would still be alive.  However, everything that happened resulted from the way all of you, including sadly Mr Gairns, were using methamphetamine.

[4]      I have received letters from people who have supported you while you have been on remand.   They offer some hope that you may be able to turn your life

R v TE TOMO [2017] NZHC 1628 [14 July 2017]

around.  You need to.  Here you are facing a significant prison sentence.  Your use of methamphetamine and the associations you kept as part of that have led to you being responsible for the death of someone not much older than you.

[5]      I again need to acknowledge the victims of your offending, those of you who have come to Court to read your victim impact reports and those of you who wanted to honour Mr Gairns through being present during the particularly long ordeal of the Court proceedings involving the different defendants.

[6]      On the night of Friday 30 May 2014, Mr Gairns travelled to Christchurch and obtained a modest quantity of methamphetamine, mainly for his own use.   In the early hours of the next morning, he met with Ms Lucas, your former partner and the mother of your children.   They shared some of that methamphetamine and then agreed to work together to sell some of what remained.  Through texts, Ms Lucas told her friend Stacey Curtis and you of what was in prospect.  On her way back to Stacey Curtis’ house, Ms Lucas texted you and told you to come out onto the road and not to say anything to other people about what was happening.  You went out to meet with Ms Lucas.  I am satisfied that it was after you had met with Ms Lucas that she sent the text message to Stacey Curtis saying that she was going to rip-off Mr Gairns and that she had an easy way to set him up.

[7]      It was after this that you got a knife from a drawer.  I cannot be sure that you took the knife with you but I am sure that you were, from early on, part of the plan to rob Mr Gairns of methamphetamine and you arranged to do that with the help of a Mr Marshall.   Mr Marshall is an older man  with a criminal record  for violent offending.  You also knew you had the support of Mr Perry who was to drive you and Mr Marshall back to the workshop area.  You were to hide there, waiting for Ms Lucas to deliver Mr Gairns to you.

[8]      This was all part of a plan to rob Mr Gairns of methamphetamine.  I am far from satisfied that Mr Gairns ever treated Ms Lucas as a “crack whore”, as she put it in a text, or that it was your intention to just frighten Mr Gairns because of the way he had supposedly treated Ms Lucas.  I am satisfied that you told the truth to Bianca Green when you said you were all going to roll Mr Gairns for his drugs.   Your counsel has also told me that you indicated at an early stage you were willing to

plead guilty to the charge of assault with intent to rob, but Mr McRae has confirmed this was only on the basis the manslaughter charge was dropped.  Unlike Ms Lucas, you did not plead guilty to that charge at trial.

[9]      You waited at the workshop area for Ms Lucas to bring Mr Gairns there.  Ms Lucas was texting you, telling you what she was doing and where Mr Gairns was. She also told you he was “paranoid” and told you to be “sneaky”.  Her texting you was all consistent with the planned robbery.

[10]     Mr Gairns did however become aware that people were nearby and went off and hid, initially in Mill Stream.  It was a freezing cold night.  Ms Lucas drove off but you, Mr Marshall and Mr Perry searched for Mr Gairns in a determined way until you were on the embankment on the other side of Mill Stream and Mr Gairns emerged from the stream with a gesture of surrender.  You were close by and in full support of Mr Marshall as he demanded methamphetamine from Mr Gairns and made him search his pockets, had him on the ground and held a machete to his throat and then punched him, causing Mr Gairns to fall back towards the creek.

[11]     When Mr Gairns said he did not have any drugs but that he would give you all a gram you may have said you did not want his drugs and for him to just stay away from your Mrs, but I am sure that at that stage you were convinced he did have some methamphetamine and what you said was part of everything that you were all doing to get that methamphetamine.

[12]     When Mr Gairns came up the embankment again, you threatened him with a “boot ride” and moved towards Mr Perry’s vehicle as if you were going to take him somewhere in the vehicle.  It is clear that Mr Gairns was deeply afraid of what was going to happen and he ran off to get away from the three of you.  You chased after him.

[13]     Mr Gairns hid in the levee area.  Consistent with your determination to get his methamphetamine, you and the other men continued to search for him for a significant time but did not find him.  At one point, you were on the bank above where his body was found.  Some 36 hours later, Mr Gairns’ body was found in the

levee  in  shallow  water.    His  body was  found  in  a  position  close  to  the  bank, consistent with him trying to hide from you all. Tragically he had drowned.

[14]     At 6.32 am on 31 May, Ms Lucas sent you a text saying that the only reason she asked you to come was so that you could “rax it” and that “we should never have done it” and she did not know what she was thinking.  You responded with a text saying “yeah, I know babe, me too.  I should never have put you in that position”.

[15]     In  arriving  at  the  appropriate  sentence,  I  must  first  of  all  assess  the appropriate starting point for the actual offending.

[16]     The Sentencing Act 2002 requires me to have regard to the purposes of sentencing, as set out in the Act.  Those purposes require me to hold you accountable for the harm you have done, that harm involves the death of Mr Gairns.   I must promote in you a sense of responsibility and acknowledgement for that harm, to denounce your conduct and to deter you or others from committing the same or a similar offence.   I must also have regard to the purpose of assisting in your rehabilitation and reintegration into the community once your sentence is complete.

[17]     I have regard to relevant principles of sentencing, as set out in the Sentencing Act, particularly the gravity of the offending in this case and your degree of culpability.  I must have particular regard to, and ensure there is, some consistency with the sentence the Court has already imposed on Mr Marshall, Mr Perry and Ms Lucas.

[18]     The  circumstances  of  the  assault  with  intent  to  rob  charge  and  the manslaughter charge are so closely related that, although the offence of manslaughter is the lead offence, it is appropriate to adopt a starting point for both offences on a combined basis.

[19]     I  take  into  account  the  following  aggravating  factors  in  assessing  the seriousness of your offending.

[20]     Both the manslaughter and the assault with intent to rob involved actual or threatened violence. The offending was premeditated, planned back at Stacey Curtis’ house.  As I said, you Mr Te Tomo and Ms Lucas were at the forefront of what was

going to happen.  Your plan involved Mr Gairns being lured to an isolated location by cover of night, under the pretence of an agreed transaction.  He was going to be out-numbered by three men to one.  You knew from what Ms Lucas had told you that, with Mr Gairns under the influence of methamphetamine, he was likely to be afraid and “paranoid”, as she put it.

[21]     As I said when sentencing Ms Lucas and Mr Perry, the Court of Appeal have talked of the unique sentencing difficulties with crimes of manslaughter because death is the unintended consequence of unlawful actions and because of the infinite variety of circumstances which may constitute unlawfulness and combine to cause

death.1   The Court of Appeal’s comments are also applicable to your situation where

you and others caused the death of Mr Gairns by causing him, with threats or fear of violence, to run away and/or hide, which caused his death.

[22]     Again, as I said when sentencing Ms Lucas and Mr Perry, I have to assess your culpability within the particular context of what happened.  I need to consider if,  and  the extent  to  which,  your  actions  may have  been  relatively remote and indirect from Mr Gairns’ death.  As with the others, you did not intend Mr Gairns to die but I am quite satisfied that you planned to threaten Mr Gairns with violence, were ready to be violent and you intended for him to be afraid as a way of robbing him of methamphetamine.  With all of that, it was quite foreseeable that he would try to run away, fearing for his life.   You could not, however, have anticipated that, through hiding where he did, he would drown.

[23]     The Crown submitted the starting point sentence for you should be between four and  a half and  five  years’ imprisonment.   Your counsel has  submitted the starting point should be between four and four and a half years’ imprisonment.  The starting point sentence adopted for Mr Marshall was five years.   He was directly involved in more serious violence than you on the embankment but you were close by, supporting him and then participated more actively than Mr Perry in threatening him with the “boot ride”.   It was after that threat, following on from what Mr

Marshall had done, that Mr Gairns ran away, fearing for his life, and you chased him.

1      Turi v R CA690/2013 [2014] NZCA 254 at 11.

[24]     I adopted a starting point sentence for Mr Perry of four and a half years’ imprisonment.  Unlike Mr Perry, you were involved in the planning of this robbery from early on.

[25]     I adopted a starting point sentence for Ms Lucas of four years’ imprisonment. That was on the basis she had set up and orchestrated the whole situation but was not aware of the precise nature and extent of the way Mr Gairns was threatened and assaulted after she had left him at the workshop area.

[26]     The  starting  point  I  adopt  for  you  is  four  years  and  nine  months’

imprisonment.

[27]   I must then consider whether there are any mitigating or aggravating circumstances relating to you personally that require me to make an adjustment to that starting point.

[28]     The Crown has referred  me to your 20 previous convictions since 2006, including convictions for male assaulting female, common assault and assault with a weapon.   Mr Rapley pointed out that you have not previously been sentenced to imprisonment and suggested there should be no uplift from the starting point for your previous convictions.  He also suggests that there should be some reduction in the starting point because it took three years for these charges to go to trial and you have been living under strict bail conditions since June 2014.

[29]     You told Corrections that you were willing to participate in restorative justice and that you felt sorry for Mr Gairns’ family.  Mr Rapley, in submissions today, said to me that he understood why Mr Gairns’ family would not wish to participate in restorative justice at this stage but, Mr Te Tomo, if you use your prison sentence constructively in the way that you hopefully can, and if through that you can develop greater understanding and empathy for the loss that these people have spoken about most eloquently today, then perhaps there may be an opportunity at some stage, it might be quite a long way down the track, where you will have the opportunity, if they are willing to participate, in a restorative justice.  Hopefully you will be able to show what you have learnt from all of this and you will be able to demonstrate to them that, while you can never make up for the loss that they are having to live with,

that you have done something constructive and something significant to make sure that nothing like this could ever happen again.

[30]     As I said, you were willing to plead guilty at an early stage to the charge of assault with intent to rob.  However, in my view, you have not displayed any of the real remorse which Mr Perry exhibited through the way he wanted to tell the Police all that had happened.  You did not provide the sort of assistance which Ms Lucas gave to the Police through telling them anything of what happened on the night or convey remorse to the report writer in the way Ms Lucas did.  You have not yet been able to accept responsibility for what happened to Mr Gairns, having told the report writer that it was not your fault.

[31]     You are fortunate that you still have the support of your parents.  You have not been caught-up in a gang culture and you have usually been able to find normal and constructive employment.  Through what I have been told by people you lived with in Christchurch while you were on remand, as I said, there is some hope that you will realise just how your drug use, the associations you kept and your potential for violence, have all led to you being in the situation where not only have you caused the death of someone but it has led to you having to be separated from your children and your family through being subject to a sentence of imprisonment.  You also have a gambling problem.  It is to be hoped that, while you serve your sentence, you will be able to address those underlying problems as a way of trying to make up for what happened.

[32]     Taking your previous convictions into account, but also recognising the way in which your freedom has been restricted through being on bail and under a curfew for a lengthy period, and other matters which I have just mentioned, I adjust the sentence for you back to four and a half years’ imprisonment.

[33]     Obviously you are not entitled to the sort of discount which Mr Marshall received for his early guilty pleas or the credits which Mr Perry and Ms Lucas received for the remorse they had demonstrated in a practical way, for the assistance they provided to the Police initially and because of the anticipation that they would be providing assistance to the Crown through having to give evidence at your trial.

[34]     There can accordingly be no further adjustment to your sentence.

[35]     Mr Te Tomo, please stand.  On the charge of manslaughter, you are convicted and sentenced to imprisonment for four and a half years.  On the charge of assault with intent to rob, you are convicted and sentenced to imprisonment for two and a half years.  Those sentences are to be concurrent.  I make an order remitting your outstanding fines.

[36]     I must also give you a three strikes warning and now do so.  Your counsel will also talk to you about this afterwards but it is important you hear this warning and you understand it.

Addendum

[37]     I remitted fines on an application made by Mr Te Tomo’s counsel.   It has been brought to my attention that the High Court does not have jurisdiction to do this.

[38]     The issue of remission will have to be dealt with through the District Court.