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: [email protected]

M M Dorset, Barrister, Rotorua. Email: [email protected]

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 three years ago.  You were aged

21 at the date of this offending.  You are a young Maori female of Tuhoi descent.  It is notorious that the offending involving Mr Duff had a gang element to it, he being a member of the Mongrel Mob gang.  I note you say you are not affiliated to any gang. However, you have a brother and an ex-partner who are said to be patched-members. You told the probation officer, and I hope you were not just going through the motions when you said this Ms Te Tomo, that you could see that life would be much better for you outside the gang culture. You have a number of supportive friends and whanau members including your mother who is in Court today.  You agree that your offending was a one-off matter.  The risk of your re-offending is assessed to be low, unsurprisingly so because you have never appeared before a court before.  You have, until now, a clean criminal record.

[7]      I have discussed with counsel the type of sentence I have in mind.   Both counsel accept that the sentence I am going to impose on you is appropriate.  I am not going to send you to prison.  I agree with the Crown that a start point of 12 to 18 months imprisonment would normally be justified.  Although at his trial Mr Duff was acquitted, as I have said, of murder and manslaughter, you were not to know that in October 2009 when you offended. As far as you knew Mr Duff was wanted by the police in respect of a homicide and you helped him evade capture.  That was your culpability.  As Lang J rightly reflected when sentencing your co-offender Davinia Duff (Mr Duff ’s sister), whose culpability was greater than yours, courts must deter this sort of offending.

[8]      You were led astray, Ms Te Tomo, by a misguided sense of loyalty to your partner as whanau.   Whanau solidarity is commendable but cannot justify helping criminals evade the police and the law.

[9]      Had the accessory after the fact charge been murder then an 18 month start point would be justified.  I refer there to R v Duff[1] and R v Everitt.[2]   Your culpability, in my view, is not significantly changed by Mr Duff’s acquittal on homicide counts and the change of charge against you.  I intend to adopt, however, to reflect the lesser charge, a start point of 15 months imprisonment.

[1] R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010.

[2] R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007.

[10]     For  you there are, as  I have said, extenuating circumstances.   You have responsibilities as a mother.   Those responsibilities will increase in approximately two months time.   You had a sense of loyalty which drove your offending, albeit misguided.  You say you were trying to persuade Duff to surrender himself.  You did not harbour him continuously.  Although not properly a mitigating factor, you have no previous convictions.  At the time, aged 21, you were fairly young.  You have a low risk of re-offending, and in addition this charge has been hanging over you now for over two years.

[11]     Factoring in those aspects I reduce the 15 month start point to 11 months imprisonment.  I also give you a small 10-15% discount for your guilty plea which results in an end sentence of 9½ months imprisonment.  That being a short sentence, when you would have had parole eligibility at just over four months, I consider a sentence of home detention is both principled and justified.  It is also in accordance with the recommendation of the presentence report.  It is furthermore in accordance with Sentencing Act principles and purposes.  Home detention will not remove you from your children and you will have whanau support near the proposed address. However, I consider the deterrence purpose requires an additional sentence to be imposed on you of community work.

[12]     Stand up please.

[13]     The sentence I impose on you, Ms Te Tomo, is one of four months home detention and 100 hours community work.  On leaving court today you are to travel directly to 2 Kauri Crescent, Murupara and await the arrival of a probation officer

and security officer.  You will reside at 2 Kauri Crescent, Murupara for the duration

of the sentence.  During that four months you are not to possess or consume alcohol or illicit drugs.   You are additionally to attend and complete such counselling programmes or treatment to address any problems which might be identified in you as directed by your probation officer and to your probation officer’s satisfaction and the satisfaction of your service provider.

[14]     In  respect  of  the  sentence  of  100  hours  community  work,  I  strongly recommend that work is to be structured for you in such a way that you are not working alongside or with Mongrel Mob members or associates.

[15]     Stand down.

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Priestley J