R v Timoti

[2022] NZHC 2667

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-070-1899

[2022] NZHC 2667

THE KING

v

DAVID TIMOTI

Hearing:	14 October 2022
Appearances:	S Teki-Clark for Crown D Goodlet for Defendant
Judgment:	14 October 2022

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Rotorua

R v TIMOTI [2022] NZHC 2667 [14 October 2022]

[1]                 Mr Timoti, you appear for sentence today having pleaded guilty to a charge of aggravated burglary.1 The maximum penalty for that offence is 14 years imprisonment.

[2]                 You pleaded guilty after I gave you a sentence indication on 18 May 2022.2 The sentence indication will be annexed to these sentencing remarks and will form part of them.

Background

[3]                 The factual basis on which I provided the sentence indication was contained in an agreed summary of facts. This recorded that the genesis of your offending was the fact that the complainant, to whom I shall refer as “A”, had allowed another person to store a caravan and bus on his rural property. The owner of the bus and caravan had been attempting to regain possession of the items, but his attempts were unsuccessful. That person then contactedpersons associated with the Rangitikei chapter of the Rebels Motorcycle Club. He asked them to assist him to recover his bus and caravan from A’s property. You became involved at this point because you were a senior member of that chapter of the gang.

[4]                 On 25 January 2021 you and four others travelled from Hunterville to the Tauranga area in a black BMW motor vehicle. At around 9 am on that date your vehicle was captured on CCTV footage at a service station in Rotorua. The vehicle then carried on to Tauranga, where you made contact with two females who had travelled down from Auckland. The two vehicles were then captured on CCTV film footage travelling towards A’s property in convoy.

[5]                 The vehicles arrived at A’s address at about 10.30 am. You and your associates entered the property by opening a gate. The two females remained near the gate whilst you and your associates drove up to the accommodation block on the property. You got out of the vehicle and went into the accommodation block, where you asked A’s partner for a glass of water. You then grabbed her by the hair and began punching her

1      Crimes Act 1961, s 232(1)(a).

2      R v Timoti [2022] NZHC 1092.

in the face and body. You repeatedly demanded that she hand over cash and you began looking through drawers in the accommodation block. You also took her cellphone and put it in your pocket.

[6]                 You removed a CCTV recording device from the accommodation block and smashed it to pieces in the shed with a golf club. At or about this point A’s partner managed to escape to a toilet, where she telephoned the police using A’s cellphone.

[7]                 Whilst this was going on your associates got out of the vehicle and approached A, who was splitting firewood with his nephew. One of the associates was armed with a baseball bat. They began saying to A, “You owe us. You owe us”. He replied that he did not owe them anything and told them to leave the property. The group then surrounded A and began punching and hitting him in the face, head and chest. This caused A to fall to the ground, where the assaults continued. When A called out for help, the group of men began hitting him even harder.

[8]                 Two of the group then turned their attention to A’s nephew. They struck him with golf clubs, pans and other objects. He attempted to defend himself by grabbing an axe from the floor of the shed, but this was taken from him. Once he was on the ground, the group kicked him and told him to stay down.

[9]                 Eventually A told his attackers to take the bus. They responded by telling him to get into the bus and start the engine. When he refused to do so, they began hitting him with a baseball bat and with his own golf clubs. At this point he was hit in the head about nine times with weapons. Orchard workers from a neighbouring property heard the commotion and came over to investigate but were scared off by the antics of your group.

[10]              The incident ended when one of the females left the address in a Toyota Hi- Ace van that had been parked there. You and your associates then got into the black BMW and returned to Hunterville. The other female returned to Auckland

[11]              As a result of this incident A suffered significant wounds, abrasions and contusions throughout his entire body. He also suffered deep lacerations to the scalp as a result of being struck by the golf club. He had multiple facial fractures about the nose and eyes, as well as fractures to two ribs and to his vertebrae. In addition, he suffered a puncture wound to the left trapezius, a muscle at the base of the neck.

[12]              A’s partner suffered significant swelling and bruising about the left side of her face, as well as a loose tooth, abrasions and bruising about her body. A’s nephew also suffered abrasions and bruising about his body.

[13]              The physical injuries tell but part of the story. This morning you have heard A’s partner read a measured, thoughtful and comprehensive statement setting out the effects that the offending by you and your group has had for her and her partner. In short, their lives have been destroyed. Not only did they suffer very significant physical injuries, but they also had the trauma of having a large group of armed men attack them in the sanctity of their own property. It is clear that the wounds and injuries suffered as a result of the incident will have lasting, if not lifelong, consequences for them. It will undoubtedly have severe psychological effects for them both for many years to come.

The sentence indication

[14]              Counsel agree that your offending had many aggravating features. These included premeditation in the form of careful planning and taking at least one weapon to the scene. It also involved the engagement of gang members in what amounted to vigilante action taken to enforce property rights. Those who went to the address clearly knew that violence would be used against the occupants to obtain the property that they sought. Furthermore, the offending involved uninvited entry onto private property and the confrontation of the victims by a group of persons. This group then proceeded to use weapons, fists and their feet to strike the victims to the head, face and body. It resulted in significant injuries to one victim and moderate injuries to the other two. It also resulted in the theft of property from the address.

[15]              These factors persuaded me that a starting point of nine years imprisonment was appropriate.3 I then added an uplift of six months to reflect the fact that you now have a lengthy criminal history, including convictions for offending involving kidnapping and being in possession of an offensive weapon.4 You also received a sentence of six years imprisonment in 2003 for wounding with intent to injure.

[16]              The only mitigating factor for which I was prepared to give you credit at the sentence indication stage was that for guilty plea. I considered a reduction of 20 months, or approximately 17.5 per cent, was appropriate to reflect a guilty plea entered at a relatively late stage.5

[17]              This resulted in an indicated sentence of seven years ten months imprisonment. I also indicated, however, that the sentence could be reduced further on the basis of other mitigating factors identified at sentencing.6

Other mitigating factors

[18]              I am now in receipt of a pre-sentence report, a report tendered under s 27 of the Sentencing Act 2002, an alcohol and drug assessment report and a psychological report.

[19]              You are 48 years of age. The reports confirm that you suffered from an extremely disadvantaged upbringing. You have little memory of your early years. You were adopted at birth and have never known your birth parents. Your adoptive mother died when you were just five years of age and you then lived with your adoptive father for a brief period before being placed in state care. For the next nine years you lived in a series of foster homes and institutions. This resulted in you being the subject of differing forms of abuse at every home or institution in which you were placed. You also witnessed several traumatic events during this period. These experiences have had a lasting effect on you, and you received a payment of compensation from the Government as a result. Unfortunately, however, you used this money to buy drugs.

3      R v Timoti, above n 2, at [15].

4 At [16].

5 At [17].

6 At [18].

[20]              Not surprisingly, you began to abuse drugs and alcohol at a very early age. You attained no educational achievements and this has contributed to the fact that you have never held down meaningful employment. You also became involved in gangs at the age of 16 years because they provided the only environment in which you felt you were wanted and accepted. This led inevitably to significant criminal offending, including convictions for offending involving violence. Sentences of imprisonment became a regular feature of your life.

[21]              You say you smoked methamphetamine and cocaine for 20 years and only stopped when you were remanded in custody on the present charges. The present offending occurred whilst you were under the influence of drugs.

[22]              You say you have now had enough of violence and drugs. You have ceased your association with the Rebels Motorcycle gang. You also say the period you have spent in prison has enabled you to become drug free and you enjoy the fact that you are now able to think clearly. You say you are determined to maintain this status on your release, and that you have fresh insight into the factors that led to your offending.

[23]              One of the real issues you face is that you have virtually nobody you can turn to for support outside the prison environment. You have never known or experienced a normal family life. The s 27 report concludes that you are a profoundly hurt and traumatised person who has never experienced the stability and security that comes from feeling wanted, or from belonging to anyone or anywhere.

[24]              I consider the factors identified in the report provide a link between your highly disadvantaged upbringing and the events that brought you before the Court today. I am also satisfied the report provides a basis for me to conclude that you are now determined to rehabilitate yourself. You have also demonstrated a degree of remorse because you have written a letter of apology to the victims and offered to attend a restorative justice conference.

[25]              This will obviously not be an easy task and will require considerable persistence on your part and support from others. Whether or not you are able to see through your rehabilitative efforts will not be an easy task and will require

considerable persistence on your part and support from others. Whether or not you can remain on this path is a matter that only you can control.

[26]              I am prepared to allow a further discount of 14 months, or approximately 13 per cent, to reflect these factors. When combined with the discount for guilty pleas, the total discount for mitigating factors will be 34 months, or two years ten months.

Sentence

[27]              On the charge of aggravated burglary, you are sentenced to six years eight months imprisonment.

[28]              I direct that the reports that have been made available to the Court at sentencing are to be provided to the prison and parole authorities so that they can take them into account in offering programmes to you in prison and upon your release on parole.

Lang J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS

PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE

THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-070-1899 [2022] NZHC 1092

THE QUEEN

v

DAVID TIMOTI

Hearing:  18 May 2022 Appearances:      D McWilliam for Crown

S J Burlace (on behalf of D Goodlet) for Defendant

Judgment:                  18 May 2022

SENTENCE INDICATION OF LANG J

Solicitors:

Crown Solicitor, Rotorua

[1]                 Mr Timoti faces a charge of aggravated burglary.7 The maximum penalty for that offence is 14 years imprisonment.

[2]                 Mr Timoti and six other defendants are scheduled to stand trial in this Court on 7 June 2022. Mr Timoti now seeks a sentence indication. This is an indication of the sentence he would receive if he enters a guilty plea to the charge in the near future. If he does not accept the indication and is found guilty at trial, he will be sentenced on the facts as the trial Judge determines them to be.

Background

[3]                 The factual basis on which I am to provide a sentence indication is contained in an agreed summary of facts. This records that the genesis of the offending was the fact that the complainant, to whom I shall refer as “A”, had allowed another person to store a caravan and bus on his rural property. The owner of the bus and caravan had been attempting to regain possession of his items, but his attempts were unsuccessful. That person then contacted persons associated with the Rangitikei chapter of the Rebels Motorcycle Club. He asked them to assist him to recover his bus and caravan from A’s property.

[4]                 On 25 January 2021 two females travelled from Auckland to Tauranga in a silver Holden Commodore motor vehicle. They were tasked with assisting in the recovery of the bus and caravan. On the same date Mr Timoti and four others travelled from Hunterville to the Tauranga area in a black BMW motor vehicle. At around 9 am on that date they were captured on CCTV footage at a service station in Rotorua. The vehicle then carried on to Tauranga, where the occupants met the two females who had travelled from Auckland in the silver Holden Commodore. Both vehicles were then captured on CCTV film footage travelling towards A’s property in convoy.

[5]                 The two vehicles arrived at A’s address at about 10.30 am. Mr Timoti and his associates entered the property by opening a gate. The two females in the Holden Commodore then remained in the vicinity of the gate whilst Mr Timoti and his associates drove up to the accommodation block on the property. Mr Timoti got out

7      Crimes Act 1961, s 232(1)(a).

of the vehicle and went into the accommodation block, where he asked A’s partner for a glass of water. He then grabbed her by the hair and began punching her in the face and body. He repeatedly demanded that she hand over cash and began looking through drawers in the accommodation block. He also took A’s partner’s iPhone and put it in his pocket.

[6]                 At the same time Mr Timoti’s associates got out of their vehicle and approached A, who was splitting firewood with his nephew. One of them was armed with a baseball bat. They began saying to A, “You owe us. You owe us”. He replied that he did not owe them anything and told them to leave the property. The group then surrounded A and began punching and hitting him in the face, head and chest. This caused A to fall to the ground, where the assaults continued. When A called out for help the group of men began hitting him even harder.

[7]                 Two of the group then turned their attention to A’s nephew. They struck him with golf clubs, pans and other objects. He attempted to defend himself by grabbing an axe from the floor of a shed, but this was taken from him. Once he was on the ground, the group kicked him and told him to stay down.

[8]                 Eventually A told his attackers to take the bus. They told him to get into the bus and start the engine. When he refused to do so, they began hitting him with a baseball bat and with his own golf clubs. At this point he was hit in the head about nine times with weapons. Orchard workers from a neighbouring property heard the commotion and came over to investigate but were scared off by the antics of Mr Timoti and his group.

[9]                 The two females from the Holden Commodore motor vehicle then approached the scene and began assaulting A’s partner. They threatened to drag her behind their car or to kidnap her. They then began punching her again and asking for keys to motor vehicles parked on the property. One of the females began ripping CCTV cameras from the building whilst the other went to try to start the cars. Mr Timoti removed a CCTV recording device from the accommodation block and smashed it to pieces in the shed with a golf club. At this stage A’s partner managed to escape to a toilet, where she telephoned the police using A’s cellphone.

[10]              The incident ended when one of the females left the address in a Toyota Hi- Ace van that had been parked there. Mr Timoti and his associates then got into their BMW motor vehicle and returned to Hunterville. The other female returned to Auckland in the Holden Commodore.

[11]              As a result of this incident A suffered significant wounds, abrasions and contusions throughout the entire body. He also suffered deep lacerations to the scalp as a result of being struck by the golf club. He had multiple facial fractures about the nose and eyes, as well as fractures to two ribs and to his vertebrae. In addition, he suffered a puncture wound to the left trapezius, a muscle at the base of the neck.

[12]              A’s partner suffered significant swelling and bruising about the left side of her face, as well as a loose tooth, abrasions and bruising about her body. A’s nephew also suffered abrasions and bruising about his body.

Starting point

[13]              Counsel are broadly in agreement regarding the aggravating features of Mr Timoti’s offending. These comprise:

(a)Premeditation in the form of careful planning and taking at least one weapon to the scene.

(b)The use of gang members in what amounted to vigilante action to enforce property rights.

(c)Prior knowledge that violence would be used against the occupants of the address.

(d)Entry onto private property.

(e)Confrontation of the complainants by a large group of persons.

(f)Use of weapons to strike the head.

(g)Sustained violence against three victims.

(h)Significant injuries to one victim (A) and moderate injuries to A’s partner and nephew.

(i)The theft of property from the address.

[14]              Counsel have referred me to several authorities in which broadly similar offending has attracted starting points of around nine to 11 years imprisonment.8 These lead the Crown to submit that a starting point of nine to ten years imprisonment is appropriate, whilst Mr Timoti’s counsel suggests a starting point of nine years imprisonment.

[15]              Mr Timoti played a full role in events from the outset although he was not involved in using weapons to strike any of the complainants. Nor did he attack A, who suffered the most significant injuries. He was nevertheless plainly a party to that offending. Taking these factors into account I agree with Mr Timoti’s counsel that his culpability is slightly less than that of his associates. I consider the appropriate starting point for his offending is a sentence of nine years imprisonment.

Aggravating factors

[16]              Mr Timoti’s lengthy criminal history includes convictions for offending involving violence, kidnapping and being in possession of an offensive weapon. I would add an uplift of six months to reflect these. This results in a sentence of nine years six months imprisonment before taking into account mitigating factors personal to him.

Mitigating factors

[17]              The only mitigating factor for which I give credit at this stage is that for guilty plea. Given the imminence of the trial I consider a discount of no more than 17.5 per

8      R v Mako [2000] 2 NZLR 170; Court-Clausen v R [2020] NZCA 488; Hemopo v R [2016] NZCA 242, R v Tregidga [2021] NZHC 3498, Kreegher v R [2021] NZCA 22, Bartlett v R [2021] NZCA 152, Royal v R [2009] NZCA 65; Manuel v R [2010] NZCA 285; Tiori v R [2011] NZCA 355.

cent is warranted and that may be regarded as generous. This results in a reduction of 20 months, or one year eight months, from the sentence.

Indicated sentence

[18]              It follows that the indicated sentence is one of seven years ten months imprisonment. This may be reduced further at sentencing depending on the information available at that time.

Time for acceptance

[19]              Counsel for Mr Timoti is to file and serve a memorandum no later than Wednesday 25 May 2022 advising whether Mr Timoti accepts the sentence indication. If so, he will be arraigned by AVL from prison in the criminal callover at Rotorua on Friday 27 May 2022 at 9 am. His counsel would have leave to appear by VMR at that time.

Lang J