R v Te Tomo
[2015] NZHC 2671
•30 October 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-019-001186 [2015] NZHC 2671
THE QUEEN
v
TYSON-TAINUI RUKUWAI TE TOMO
Hearing: 30 October 2015 Appearances:
R Douch for Crown
A Couchman for PrisonerJudgment:
30 October 2015
SENTENCING NOTES OF HINTON J
Solicitors/Counsel:
Crown Solicitors, Hamilton
A Couchman, Auckland
R v TE TOMO [2015] NZHC 2671 [30 October 2015]
You may remain seated until I come to pass sentence when I will ask you to stand up.
Offences
[1] Mr Te Tomo you were found guilty at trial on 24 September 2015 of the murder of Michael Thompson.
Facts
[2] At about 5 o’clock on 20 February 2015, you were at an address in Norrie Street, Hamilton with Mr Williams. Mr Thompson and his friend Mr Apanui drove to Norrie Street after finishing work for the day. You were 17 at the time. Mr Thompson was in his late 20’s. You are affiliated to the Mongrel Mob gang. Mr Thompson was affiliated with Black Power.
[3] Mr Thompson directed an inflammatory comment towards Mr Williams. Mr Williams then smashed the front passenger side window of Mr Apanui’s vehicle. The two men in the vehicle then got out. Mr Apanui threw a bottle at the back of Mr Williams’ head. Both sides were throwing bins and bricks at each other.
[4] Mr Thompson and Mr Apanui then chased Mr Williams who ran back into the house. Mr Williams came back shortly afterwards together with you, carrying ornamental swords. Mr Thompson and Mr Apanui took the swords from you.
[5] Mr Thompson and Mr Apanui chased you and Mr Williams back inside the property on a second occasion. This time, you came out of the house with a slug gun. You knew it was unloaded. Mr Thompson got hold of the slug gun and shot it in the air.
[6] You then ran back inside and came out with a .22 calibre rifle with a sawn off barrel. At this point, Mr Apanui and Mr Thompson were walking off the front lawn of the property towards the footpath. You fired one shot.
[7] Mr Thompson sought shelter behind a large steel power box located on the boundary of the address. You aimed the rifle at Mr Thompson from a distance of
about 10 feet. Someone told you not to shoot. You pulled the trigger. The shot hit Mr Thompson in the face, causing a fatal wound. Mr Thompson dropped to the footpath and died very shortly afterwards. You then ran from the scene.
[8] During the trial, you accepted that you were blameworthy for taking Mr Thompson’s life. However, you said you did not intend to do so and you did not act recklessly. You said you were intimidated by the two older men. You said you intended to scare the men off. You wanted to make them get in the car. You said you accidentally shot Mr Thompson.
[9] The jury’s verdict of murder means that it rejected the defence of an accidental shooting. The jury concluded that you had murderous intent, which means you either meant to cause Mr Thompson’s death or you were reckless as to whether death ensued or not.
[10] In a case like this, it makes no difference which it is. When you point a gun at someone’s head from a short distance away and then pull the trigger, you must know it is likely to cause an injury that is likely to cause death.
Victim impact statement
[11] The victim impact statements make for extremely sad reading and were even sadder to listen to this morning. It was very brave of the Thompson family to come to Court and explain how you they felt. They were extraordinary statements.
[12] I hope, Mr Te Tomo you have read the victim impact statements and that you continue to read them for a long time to come.
[13] Ms Diane Mano, the partner of Mr Thompson, speaks of the profound effect that his death has had on her and their three sons, aged six, five and three. The children had a great relationship with their father and they have lost the spark that was once in their lives.
[14] Ms Mano says her own life is now lonely and dark. She has lost her support person, her partner and a friend. A reason for living has been taken away from her. Financially, she is struggling.
[15] Mr David Thompson says 20 February 2015 is a day that they will never forget. It was a day that tore a hole in their lives and ripped their family apart. He has not been able to talk a lot about his son’s death, but it has hurt him deeply. He refers to you, Mr Te Tomo, as a callous and ruthless murderer. It is evident that the entire family suffers from extreme sadness, grief and unbearable pain.
[16] Mrs Esther Thompson refers to the close bond that Mr Thompson, who was the oldest of eight, had with his younger brother. She can see that her second eldest child has become distant and secluded. He now has hatred and anger in his heart. Mrs Thompson says that he and many of his other siblings feel like there is now something missing from their lives, and for good reason. Her only daughter also had a special relationship with him. Her daughter now struggles with depression and suicidal thoughts.
[17] It is clear that Mr Thompson was a person who had a big impact on the lives of others, a very hard worker and a person who always put his family and friends first. His life was taken away at a young age by you.
Personal circumstances
[18] I now refer to the pre-sentence report.
[19] You have prior convictions for wilful damage and escaping custody.
[20] You told the report writer you were expelled from school at 13 years of age and started experimenting with drugs from around that age. You frequently moved around the North Island as a child. With the notable exception of your father, most of your family members are gang affiliated or patched. You say you grew up surrounded by a gang mentality. However, your father and even your patched uncles told you not to become involved in gangs. You told the pre-sentence report writer that in hindsight you wished you had listened to their advice but of course, you did
not. You told the pre-sentence report writer that you intended to distance yourself from your gang associations and want to get the tattoo on your face removed as soon as possible.
[21] Regarding the offending, you maintained your position that you did not intend to kill Mr Thompson but rather, you wanted to scare the older men off to protect your friend. At the time of the incident, you say you remember feeling fear and a sense of being overwhelmed. You confirmed you were under the influence of cannabis at the time. You were angry that the older men were “adults picking on
17 year olds”. The report writer considered that you showed some remorse for
where your choice to pursue a criminal pathway has led you. [22] I come back to these things.
Purposes and principles of sentencing
[23] In order to determine an appropriate sentence, the Court must take into account the relevant purposes provided for in s 7 of the Sentencing Act 2002. These include: the need to hold you accountable for the harm done to the community; to promote in you a sense of responsibility for the harm of your offending; to provide for the interests of the victims; to denounce and deter your conduct and to protect the community.
[24] In terms of the principles of sentencing I have to take into account the gravity of your offending and the seriousness of the type of offence, consistency with appropriate sentencing levels and similar offenders who have committed similar offences. I have also taken into account the need to impose the least restrictive outcome appropriate in the circumstances.
Relevant law
[25] When an offender is convicted of murder the Judge must impose a of life imprisonment unless to do so would be manifestly unjust.1 It is rare to impose a
lesser sentence and it is not suggested by either counsel that it would be appropriate
1 Sentencing Act, s 102.
to do so here. At the conclusion of these sentencing remarks I will therefore be imposing a sentence of imprisonment for life.
[26] In addition, I am obliged to consider what minimum period of imprisonment must be served. At this point I want to make it clear, to everyone present, that the minimum period of imprisonment that I ultimately impose will simply represent the period of time before which you will be entitled to be considered for parole. It does not in some way represent a cap on the sentence of the Court. That sentence is life imprisonment. Your ultimate release date will be determined by the Parole Board.
[27] Both counsel accept and I accept that s 103 of the Sentencing Act 2000 is the appropriate provision.
[28] Section 103 provides that the minimum term of imprisonment ordered may not be less than ten years, and it must be the term of imprisonment necessary to satisfy all or any of four purposes:
(a) First, there is the need to hold you accountable for the harm done to Mr Thompson, his family who loved him and still do, and the community, by your offending.
(b) Secondly, there is the need to denounce your conduct.
(c) Third, the minimum period imposed must be sufficient to deter you and others from committing the same or a similar offence.
(d)Finally, there is the need to protect the community from you in light of your offending.
[29] The focus of the inquiry in fixing a minimum term is how much more than the minimum ten years is required in order to achieve the purposes.
Submissions
Crown submissions
[30] Mr Douch submits that the relevant aggravating factors in this case are: (a) The use of actual violence and a gun.
(b)The extent of the loss, damage and harm that resulted, which was at the highest possible level.
(c) Your involvement with the Mongrel Mob which the Crown says is an organised criminal association.
(d)The nature of the offending, namely that you deliberately targeted the head of Mr Thompson (according to Mr Douch), who was unarmed at the time. The shot was fired from a close range. No assistance was rendered. Instead you fled the scene.
[31] Mr Douch cites Key v R and submits that any conduct on the part of Mr Thompson and Mr Apanui should not be viewed as a “triggering event” that in any way provoked or justified the level of response from you.2
[32] Mr Douch submits that the presumption in favour of life imprisonment in s 102 cannot be rebutted. He says, despite your actions displaying a level of brutality, cruelty, depravity and callousness, he accepts that this case does not engage s 104, which would require a minimum period of imprisonment of 17 years. Mr Douch submits that an appropriate starting point for a minimum period of imprisonment is 13 years.3
[33] Turning to personal mitigating factors, Mr Douch submits that the only applicable discounts that arise are because of youth and perhaps your background.
He says any remorse claimed should be rejected as not genuine. He suggests a
2 Key v R [2010] NZCA 115.
3 Citing R v Moala HC Auckland CRI-2006-092-461, 12 December 2007 and R v Taoho HC Rotorua CRI-2009-263-163, 12 December 2011.
deduction of one and a half years for youth and background,4 resulting in an end minimum period of imprisonment of 11.5 years.
Defence submissions
[34] Mr Couchman accepts that there is nothing to displace the presumption of life imprisonment. He says that your position relative to Mr Thompson and the power box at the time of the shooting is the subject of debate. He suggests that the fact that Mr Thompson was shot was more to do with chance than good marksmanship. He says you did not approach Mr Thompson and shoot him in the face at point blank range. Further, Mr Couchman does not accept that Mr Thompson was particularly
vulnerable.5 He submits that the events which unfolded were spontaneous and not
premeditated. This case is not like Moala where the shooting was the culmination of a well-planned and organised retaliation.
[35] Mr Couchman says you were fearful for your safety. He accepts your actions were a gross overreaction but says that Mr Thompson and Mr Apanui’s actions contributed in some way to the escalation of events. He says as adults, they could have walked away. He suggests a starting minimum period of imprisonment of 11.5 years.
[36] In terms of personal mitigating factors, Mr Couchman points to R v Churchward in terms of a youth discount. He submits you have expressed remorse over your actions and you are seeking to remove yourself from the gang scene. He points out the absence of previous serious convictions in your case and asks for an end minimum period of ten years.
Analysis
[37] I agree with both counsel the appropriate sentence is one of life imprisonment. It is not manifestly unjust to impose that sentence.
4 Citing R v Churchis [2014] NZHC 2257.
5 Citing R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010 at [36].
[38] The issue to determine is the appropriate minimum term of imprisonment. I
have considered the cases referred to by Mr Douch.
[39] Both R v Moala and R v Taoho involved a fight between members of two different gangs. In Moala, the two gangs formed into lines facing each other. The victim advanced to within two or three metres of Mr Moala and invited a fight. Mr Moala then raised the shotgun and fired at close range into his face. In Taoho, the victim was beaten to death with rods, poles and a sharp weapon, possibly a knife. In both cases, there had been conflict between the two gangs prior to the fatalities. It was a planned and organised retaliation in Moala.
[40] Thirteen years was adopted as the starting minimum period for both cases.
[41] The aggravating features in this case are the actual use of a lethal weapon, resulting in a loss of life. That outcome is loss at the highest possible level. In addition, Mr Thompson was to a degree vulnerable. He had shielded himself behind a power box. I am not going to treat your involvement with the Mongrel Mob as an aggravating factor. I accept though that if it were not for your allegiance to the Mongrel Mob this situation would not have escalated in the way it did. I come back to this.
[42] I consider that the conduct of Mr Thompson and Mr Apanui does not mitigate or reduce the level of your offending in any way. Self-defence was not argued at trial. The Court of Appeal in Key v R did not consider the presence or absence of a “triggering event” was of fundamental importance when applying the statutory
criteria for a murder sentencing.6 In any event I am not prepared to treat an insult
called out from a car or the other actions of Mr Thompson and Mr Apanui, as a triggering event for murder, or as reducing the level of your offending. There was too major a disconnect between the actions of Mr Apanui and Mr Thompson and what you did when you shot Mr Thompson in the face.
[43] This case is less serious than others where the plan to shoot the victim is instigated two days in advance. I accept there was little premeditation and planning
6 Key v R, above n 2 at [64].
in this case. The offending here is similar but less culpable than Moala and Taoho. While the offending in those two cases was more gang-influenced, the cold-blooded and callous nature of your actions has to be recognised. I consider a starting minimum period of imprisonment of 12 years to be appropriate.
[44] I allow a 1.5 year discount for your youth and your background. You grew up surrounded by gang people and the lack of pro-social role models has no doubt led you in part to where you are now. However, I allow the discount primarily for your youth.
[45] As Mr Couchman said, the Court of Appeal confirmed that youth is relevant to sentencing in a number of ways. I must take it into account and hence the 1.5 year discount. Mr Douch agreed such a discount would be appropriate.
[46] I agree with Mr Douch that there should be no discount for remorse. I do not accept that you have genuine remorse in the sense of regret for what you have done to Mr Thompson and his family. You are sorry because of the consequences to you. You were given an opportunity at trial to address your feelings about killing another man and my impression was that your answer was directed primarily at the impact on your own life. I do not think you have had any real understanding of the enormous distress you have caused to Mr Thompson’s very small children, his wife, his parents, his brothers and sister or for that matter to the community as a whole. Perhaps you have learned something from listening to Michael Thompson’s family this morning.
[47] You said, Mr Tomo, you want to give up the gang association and get rid of your tattoo. I do not believe that at the moment. I think they are just words. I hope you come to the realisation that giving up the gang and living a different life is what you have to do if you are to have any worthwhile future or in any way make amends for taking Michael Thompson’s life.
[48] The end minimum period that I have reached is 10.5 years’ imprisonment.
Result
[49] Stand up now please Mr Te Tomo.
[50] On the charge of murder, you are sentenced to life imprisonment with a
minimum parole period of 10.5 years’ imprisonment.
[51] I record that the three-strike warning given at the time of your conviction is of no effect as you were under 18 at the time of the offending.
[52] Stand down.
Hinton J
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