R v Te Tomo - [2012] NZHC 71

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-6473 [2012] NZHC 71

THE QUEEN

v

SHASHANA LEE TE TOMO

Appearances: L H Maynard for the Crown
M M Dorset for the Prisoner

Judgment: 2 February 2012

SENTENCING NOTES OF PRIESTLEY J

Counsel:
L H Maynard, Crown Solicitor, Rotorua. Email: Leighvi.maynard@gordonpilditch.co.nz
M M Dorset, Barrister, Rotorua. Email: mo.dorset@xtra.co.nz

R V TE TOMO HC ROT CRI-2009-063-6473 [2 February 2012]

[1] Ms Te Tomo, I am sentencing you today on one charge to which you have pleaded guilty. That is a charge laid under ss 71 and 98A of the Crimes Act 1961, being an accessory after the fact to participating in an organised criminal group. You pleaded guilty to that charge on 17 November last year. It carries a maximum of five years imprisonment.

[2] Initially you faced a more serious charge of being an accessory after the fact to murder. The person who was the prime offender, in respect of which you were an accessory, is Mr Neville Duff who was at that stage your partner. However, with Mr Duff’s acquittal of murder at a trial in this Court last year the Crown sensibly amended the indictment against you. As a result you pleaded guilty to one of the two alternative charges proffered.

[3] You know what your offending was. Effectively you assisted Mr Duff evade the police between 4 October and 30 October 2009, a period of just short of 4 weeks. Mr Duff was on the run. You knew he was on the run. His offending involved the beating to death of a young man in the street in Murupara on the night of 3 October
2009. Mr Duff was, however, convicted on one of the counts he faced under s 98A.

[4] An analysis of text messages received on Mr Duff’s cellphone indicates that over the period involved you provided Mr Duff with a degree of assistance including accommodation, money, clothing, and encouraging him to remain at large and avoid arrest. I note that you told the probation officer who interviewed you recently that towards the end of that four week period you were trying to encourage Mr Duff to give himself up to the police.

[5] This sort of offending as you well know is serious. I can understand a sense of whanau loyalty perhaps which you had to Mr Duff. Nonetheless any offending which involves harbouring or shielding offenders on the run and not disclosing their whereabouts to the police has to be met with sentences which contain a degree of deterrence.

[6] That said, Ms Te Tomo, it is clear to me that you have a number of positive features in your life. You are the mother of two young children aged four years and
11 months. I note that Mr Duff is not the father of either of those two children. You are also, as we speak, approximately seven months pregnant. The pre-sentence report refers to you having lost an infant child some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Te Tomo

Details

AGLC: R v Te Tomo [2012] NZHC 71
Case: [2012] NZHC 71
Decision Date: 2 February 2012

CaseChat Overview and Summary

The case of R v Te Tomo involves the defendant, Shashana Lee Te Tomo, who pleaded guilty to being an accessory after the fact to participating in an organised criminal group under sections 71 and 98A of the Crimes Act 1961. The court initially considered a more serious charge of accessory after the fact to murder, but following the acquittal of the prime offender, Mr Neville Duff, on murder charges, the charge against Te Tomo was amended. Te Tomo provided assistance to Duff, who was on the run after committing a fatal beating, for nearly four weeks, offering him accommodation, money, clothing, and encouragement to evade capture.

The central legal issues before the court were the appropriate sentencing for Te Tomo's actions, considering her culpability and mitigating factors such as her role as a mother and her lack of prior criminal history. The court had to balance the need for deterrence with the personal circumstances of Te Tomo, particularly her family responsibilities and her efforts to persuade Duff to surrender to the police.

The High Court, in delivering its judgment, acknowledged the seriousness of Te Tomo's actions in aiding a criminal on the run, but also recognised the mitigating factors present in her case. The court determined that while a custodial sentence was necessary to deter such behaviour, the specific circumstances warranted a non-custodial alternative. Consequently, the court sentenced Te Tomo to four months of home detention and 100 hours of community work, with specific conditions regarding alcohol and drug consumption and participation in counselling programmes. The court also recommended that Te Tomo's community work be structured to avoid contact with gang members.

Orders