R v Teo
[2023] NZHC 700
•27 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-092-5866
[2023] NZHC 700
THE KING v
MESI TEO
Hearing: 27 March 2023 Appearances:
A Devathasan and R McDonald for the Crown Mr Teo as self-represented defendant
T A Simmonds, standby counsel Mr Le’au’anae, co-standby counsel
Sentence:
27 March 2023
SENTENCING NOTES OF ROBINSON J
[Redacted]
Solicitors/counsel:
KFW, Auckland
T Simmonds, Auckland P Le’au’anae, Auckland
R v MESI TEO [2023] NZHC 700 [27 March 2023]
Introduction
[1] Mesi Moleli (Mesi) Teo, you appear before the Court today for sentence having been found guilty after a trial by jury of manslaughter1 in relation to the death of Kimleang Youn, and of the related charge of failing to stop to ascertain whether he was injured.2
[2] I acknowledge that Kimleang Youn’s family are present here today in Court through the CCTV. I acknowledge in particular his mother Mrs Youn who has as we have all heard prepared a victim impact statement, which has been read today.
[3] Mrs Youn, in your victim impact statement you express your heartfelt grief at the loss of your son. There are of course no words that I can say that will relieve you of the pain of your loss, and the tragedy of your son’s death. He was 28 years old when he died. He was your much-loved son, a brother to your other children, a nephew and a cousin. He was a good friend to others.
[4] Today’s sentencing and the penalties that I will impose in relation to Kimleang’s death will hopefully at least enable you to put this legal process behind you. But of course, you and your family will have to live with the enduring grief of Kimleang’s tragic death for the remainder of your lives and the Court extends its sincere sympathy to you.
[5] Mrs Youn, you said at the end of your victim impact statement that your life will be filled with regret and guilt for not having been able to protect your son. Having presided in the trial for a number of weeks I did not see anything that I would have thought required you to feel in the slightest bit guilty. The Court wishes you all the very best as you move into the future.
1 Crimes Act 1961, ss 160(2)(d), 171 and 177. Maximum penalty life imprisonment.
2 Land Transport Act 1998, ss 36(1)(c) and (2). Maximum penalty five years’ imprisonment or a
$20,000 fine; and a mandatory disqualification from holding or obtaining a driver licence for one year or more.
Background
[6] Mr Teo, I will begin by briefly setting out the factual basis upon which I will sentence you today. I am required to accept as proven all the facts that are essential to your guilt.3 I may also reach my own view, based on the evidence, of those facts relevant to the sentencing so long as they are consistent with the jury’s verdict.4 Where I do so Mr Teo, I find that those facts have been proven beyond reasonable doubt.
[7] I will then outline the sentencing regime for manslaughter and the approach that I will take in determining your sentence. I will explain the starting point for the term of imprisonment that I have adopted and why. I will then consider your personal circumstances and explain any increases or reductions that I will make to your sentence to reflect those matters that are personal to you.
Offending
[8] The offending occurred in Mangere on 28 April 2021. That evening you met Mr Youn for the first time at the home of your mutual friend, [redacted]. You had gone to [redacted] place looking for methamphetamine. [Redacted] arrived home around 8:00 in the evening and found you sitting in a silver Toyota van parked in his driveway. You asked [redacted] for methamphetamine but he said he did not have any. Mr Teo, there may also have been a discussion about a drug debt and mag wheels and other things but in my view, nothing turns on that.
[9] Mr Youn turned up while you were speaking with [redacted]. He and [redacted] were friends. You were looking for methamphetamine, he was looking for a pipe. You smoked some methamphetamine together, but you were looking for more.
[10] You also needed money for petrol. Mr Youn offered to lend you some money. He got into your van, and you drove to a petrol station on Walmsley Road. CCTV footage shows Mr Youn paying for your petrol and then getting back into your van with you. You drove off.
3 Sentencing Act 2002, s 24(1)(b).
4 Edwardson v R [2017] NZCA 618 at [105] – [107].
[11] It is not entirely clear exactly where you went next but very soon after that the van that you were driving was seen heading up and then back down Gadsby Road, before turning left onto Robertson Road. [Redacted] evidence (which the jury must have accepted) is that you told him Mr Youn wanted to go to a shop, you drove past the shops, as you turned left off Gadsby Road on to Robertson Road, away from [redacted] place.
[12] Mr Youn asked where you were going. He unbuckled his seatbelt. You asked Mr Youn if he had more methamphetamine, but he said he did not. You asked him what you would find if you looked in his pocket and you reached across him while you were driving, and patted his left pocket, on which your DNA was later found.
[13] Mr Teo, the jury found that your actions in the van that night put Mr Youn in fear of violence. He opened the door of the moving van and rather than staying in the van with you he left the vehicle. He landed head-first on the road.
[14]You did not stop to check if Mr Youn was injured. Instead, you drove away.
[15]Tragically Mr Youn later died of his injuries.
Approach to sentencing
[16] In terms of sentencing you Mr Teo I am required to consider and apply the principles and the purposes of the Sentencing Act as set out in ss 7 and s 8. In your case in particular these include the need to hold you accountable for the harm that you have caused by your offending, particularly to Mr Youn and his family and to promote in you a sense of responsibility for and acknowledgment of the harm that you have caused. There is also a need to denounce your conduct and to deter you and others from similar conduct. I also bear in mind the important purpose of assisting your rehabilitation and your reintegration back into the community.
[17] The sentence I impose must also take into account the gravity of your offending and as much as possible achieve consistency with the sentences that this Court has imposed in other, similar, cases. I must impose the least restrictive outcome that is appropriate in the circumstances of this case.
[18] In determining your sentence, I will fix a “starting point” that will be based on the seriousness of your offending and my assessment of your culpability by reference to comparable cases. As I’ve said, I will then consider your personal circumstances as they relate to your offending, to determine whether the starting point should be adjusted upwards or downwards.
Starting point
[19] You have heard Mr Simmonds quite rightly point out that there is no guideline judgment for manslaughter. This reflects the fact that the circumstances of manslaughter vary greatly, and to some extent each case must turn of course on its own facts.5 I also note there are relatively few cases dealing with fright-response manslaughter, which is the category of manslaughter of which you have been convicted.
[20] In light of that I thank counsel for referring me to the cases that they have, which have assisted me in setting the starting point. And I will refer to those in a bit more detail in the footnotes to these sentencing notes.
[21] Mr Teo, counsel for the Crown submit that an appropriate starting point is a term of imprisonment of between five to five-and-a-half years. Mr Simmonds as standby counsel has assisted you by suggesting a starting point of around four years and nine months. Both have referred me to this Court’s sentencing decisions in Marshall,6 Lucas7 and Te Tomo.8
[22] In those cases the defendants planned to ambush the victim and to rob him. The victim was confronted by three offenders, one of whom had a machete. The victim was assaulted and pursued when he ran away. He fell in a stream, where he hid and later drowned. The starting point for the lead offender in that case, Mr Marshall, was five years. He was the primary assailant. The starting point for Mr Lucas as a secondary offender was four-and-a-half years.
5 Everett v R [2019] NZCA 68 at [24].
6 R v Marshall [2015] NZHC 2016.
7 R v Lucas [2017] NZHC 651.
8 R v Te Tomo [2017] NZHC 1628.
[23] Counsel for the Crown have also referred me to the sentencing of Mr Liev.9 That case involved a planned and premediated operation by a large group of gang members. The victim was kidnapped, held for 19 hours, robbed and bound. She ended up in the boot of a car from which she threw herself. The starting point reflected that Mr Liev was charged with kidnapping as well as manslaughter, but the Court noted that if the charge had been only manslaughter a starting point of four to five years would have been appropriate.
[24] Counsel have also referred me to the so-called ‘one-punch’ or ‘king-hit’ manslaughter cases. The Court referred to those cases when sentencing Mr Marshall. However, I do not consider that they are of much assistance here. Those cases involve forceful assaults by the defendant, not a fright-response by the victim.10
[25] Mr Teo, I accept Mr Simmonds’ submission on your behalf that your offending was not premediated, it was unplanned, although opportunistic. As Mr Simmonds points out although the jury have found that you caused Mr Youn to fear violence, there is no evidence that you injured him or that you used weapons. The only evidence of any assault is that you patted his leg. I also take into account that your offending occurred over a relatively short period of time, whereas Mr Marshall and his co- offenders pursued the hiding victim for 30 minutes having previously assaulted him.
[26] However, I also agree with counsel for the Crown that your offending was more serious than that of Mr Lucas in that case. You were not merely a secondary offender. Despite your suggestion to the contrary, the evidence is clear that you were driving the van, and it was you who made Mr Youn feel so scared that he opened the door to get out of it. Counsel for the Crown quite rightly points out that Mr Youn was a lot smaller than you, no doubt weaker than you, and he was in a vulnerable position. Clearly, he was very afraid.
9 R v Liev [2017] NZHC 2253.
10 Gendall J’s reference to these cases when sentencing Mr Marshall perhaps reflects the absence of other fright-response cases at that time. Subsequent cases instead refer to Marshall and others that have followed it.
[27] In setting the starting point I also take into account your conviction for failing to stop to ascertain Mr Youn’s injuries, which in my view aggravates your overall culpability.
[28] Mr Teo, taking all of these matters into account I think an appropriate starting point for your sentence is one of four years and 10 months’ imprisonment.
Personal circumstances
[29] Turning now to your personal circumstances, I need to consider whether there are any aggravating or mitigating factors personal to you which mean that the starting point I have adopted should be adjusted upwards or downwards in deciding the final sentence to be imposed.
Uplifts
[30] First the uplift. You have over 77 previous convictions. A significant number of these are for violent or threatening behaviour. You have an extensive history of drug-related offending. And you have a long list of driving convictions including a previous conviction for failing to stop to ascertain injury – although as Mr Simmonds has pointed out in his written material that conviction is from 1 August 2008 and as such is relatively historic.
[31] I do take into account Mr Teo that that your offending occurred just seven days after you had been released from prison for violent offending, and while you were subject to release conditions for that offending.
[32] I am mindful of the need not to punish you twice, but in these circumstances I agree with the Crown that it is appropriate to uplift your sentence to reflect this history. I uplift your sentence by five months to take these matters into account.
Discounts
[33] Turning now to any mitigating factors that might justify a discount to your overall sentence. In this regard I am to take into account any background factors
personal to you that might explain in some rational way why it is you have come to offend in the way that you have.11
[34] I have before me a pre-sentence report and a s 27 cultural report. Both reports have been prepared on the basis of interviews that the authors held with you.
[35] Mr Teo, you were born in American Samoa. You told the author of the pre- sentence report that you were born to loving parents, and that you are one of 12 siblings with whom you have close relationships. You said that you came to New Zealand when you were eight years old to live with your grandfather and step-grandmother so that you could get an education and have a better life. However, you said that by the time you were ten you were mixing with the wrong crowd, getting into trouble at school, and that led you to be placed under the care of the Department of Social Welfare. You said you were placed with various family members. You went to many different primary schools.
[36] You told the author of the cultural report that you found schoolwork relatively easy but that because you moved schools so often you did not get time to settle down and do well. You said you had behavioural issues at every school you attended. You say you got into fights with other students, stole from teachers and students and were often truant from class. You told the author of the pre-sentence report that you were expelled from Mount Albert Grammar – although the author of the s 27 report says you withdrew from school when you were 16. You described feeling lost and displaced due to moving around a lot as a child.
[37] You told the author of the cultural report that you have been involved in the criminal justice system from a young age. You describe attending family group conferences since you were about ten, and that you feel as though you have been doing lags since then. You mention committing home invasions at this time, being wanted for ram raids and going to a secure unit at [redacted]. However, as counsel for the Crown point out your criminal history records no youth offences or youth charges that would lead to such outcomes. Police internal records record you receiving two warnings when you were 14, and two matters that resulted in alternative action.
11 R v Berkland [2022] NZSC 143 at [16(c)].
[38] You told the author of the s 27 report that your parents would physically discipline you when you misbehaved, but you did not appear to take issue with that. You also recall being physically disciplined by other members of your family, usually your uncles. You describe one uncle hitting you over the head with pool cues until they snapped. You say this caused you to have memory difficulties and made school difficult for you.
[39] You described another particularly vicious incident when you were 12 or 13 where you were assaulted by an uncle after a fight with your cousin. You say he stomped on your head and punched you, after which you had to sleep in the garage.
[40] You moved to Samoa to live with your family when you were 15, but you continued to have behavioural issues and your parents brought you back to New Zealand when you were 17. You fell into bad patterns of behaviour, you got into trouble with the Police.
[41] You received your first prison sentence when you were 19. Since then you have received numerous sentences of imprisonment. You say that you have spent no more than two years out of prison since then. You tell me this morning that it may not have even been that long. During this time you fathered a child who is now being raised by [redacted] in Australia. You were later convicted of offending against the child’s mother, indeed she was a crown witness during your trial.
[42] Counsel for the crown submit that your self-reporting of these matters is unreliable, and that I should not place any weight on the reports that have been prepared. I accept that there are some inconsistencies in your reports and I also have concerns about the reliability of some of what has been reported. My concerns in that regard are the accuracy of what you told the report writers, certainly not the accuracy of what the report writers wrote. However, I do accept that there have been difficulties in your past, personal to you, that go some way to explaining why you are here today. I will give you a discount of five per cent for the matters that have been raised in those reports other than the issue of methamphetamine use, which I turn to now.
Methamphetamine
[43]Throughout this time you regularly used drugs, including methamphetamine.
[44] Both reports address your drug use. You say you first had methamphetamine while you were remanded in custody aged 20. You told the s 27 report writer that you have not had any extended periods of sobriety since then. The pre-sentence report accurately describes a “prolonged and harmful pattern of drug misuse” and your criminal history is consistent with that.
[45] Sadly, there can be no doubt that your methamphetamine addiction fuelled your offending against Mr Youn. As I have described, you met him when you were at [redacted] place looking for methamphetamine a week out of prison, and Mr Youn became frightened of you when you were patting him down looking for more methamphetamine. It’s quite clear that your addiction has contributed strongly to your offending and what brings you here today. Day in and day out this Court and other courts up and down the country have to deal with consequences of methamphetamine in our community and this case demonstrates just how disastrous those consequences can be.
[46] In light of that history Mr Teo, I am prepared to give another five per cent discount on your sentence to take into account your addiction. In doing so I record the Court’s hope that you will do everything you can whilst in prison to address that and to continue to do so when you are eventually released.
[47] No one has asked me to, but I record that I am not going to apply any discount for remorse. The author of the s 27 report says that you are sad about what happened. And I am sure that you are sad about what happened, however you continue to deny your involvement in the direct events causing Mr Youn’s death and in those circumstances I would not accept that you are remorseful about what you have done.12
12 Berkland v R [2022] NZSC 143.
Final sentence
[48] Applying a total discount of ten per cent to a starting point of four years and ten months gives a sentence of 52 months’ imprisonment. I uplift that by five months to reflect your previous convictions and the fact you were subject to release conditions at the time of your offending. That gives a final sentence Mr Teo of 57 months or four years and nine months’ imprisonment.
[49] In relation to the charge of failing to stop to ascertain injury, I accept the Crown’s submission that this is your second conviction on that charge. You have a long list of other traffic-related offending and driving-related offending and I take into account that your hazardous driving in this case and the fact that death ensued means that a significant disqualification period is appropriate. I disqualify you from driving for four years.
[50] When you addressed me Mr Teo you mentioned home detention which is not appropriate or available in this case. You mentioned bail which is not a matter for me to determine if you are facing other charges. Other matters that you raised you tell me you are doing well in prison and doing courses. I encourage you to continue with those and to continue to do well. If you are doing well that will of course be something that the Parole Board will take into account when the time comes.
Result
[51]Mr Teo, would you please stand.
[52] On the charge of manslaughter you are sentenced to a term of imprisonment of four years and nine months.
[53] On the charge of failing to stop to ascertain injury, you are disqualified from driving for four years.
[54] I have been asked to remit your fines and your outstanding community work and I am prepared to do that.
[55]Mr Teo, please stand down.
Robinson J
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