R v Tiori

[2023] NZHC 1868

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-035-419

[2023] NZHC 1868

THE KING

v

TYRONE TIORI

Hearing:

18 July 2023

Appearances:

R H De Silva for Crown

I R Murray for Defendant

Judgment:

18 July 2023

SENTENCING REMARKS OF McQUEEN J

[1]                Mr Tiori, you appear for sentence today having pleaded guilty to the following charges:

(a)assault on a person in a family relationship;1

(b)causing grievous bodily harm with intent to injure;2

(c)threatening to kill;3 and

(d)injuring with intent to injure.4

1      Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.

2      Section 188(2); maximum penalty seven years’ imprisonment.

3      Section 306; maximum penalty seven years’ imprisonment.

4      Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.

THE KING v TIORI [2023] NZHC 1868 [18 July 2023]

[2]In explaining the sentence I intend to impose on you I will:

(a)First, outline the facts of the offending and the information I have from one of the victims of the offending.

(b)Second, I will refer to the starting point for the offending, and as you accepted the sentence indication I gave earlier this year, that discussion will be brief.5

(c)Finally, I will address all the circumstances that are personal to you and arrive at the final sentence.

The offending

[3]                I turn now to describe the facts of the offending. The offending occurred in three distinct episodes. Because sentencing is a public function which is required to be undertaken in open court, it is important that I set these out.

[4]                On 22 March 2022, you and your partner spent the night at a motel in Petone. At this time your partner was approximately eight months’ pregnant. The following morning, your partner noticed messages on your phone to another woman and confronted you about this. You became enraged, breaking a window, and tipping over furniture. Your partner asked to be taken home. Instead, you pushed her onto the bed, causing her waters to break. She was in pain, and so you both went to the hospital. Your partner however did not suffer any injuries, and the next day gave birth to a healthy baby boy. It is this episode that gives rise to the charge of assault on a person in a family relationship.

[5]                By June 2022, you and your partner had ended your relationship, and she was the fulltime carer of your son. On 16 June 2022, you asked your now ex-partner if you could have your son at home for an afternoon. At that time, the baby had not been alone with you before. At around 1:00 pm, your ex-partner dropped your son off to

5      R v Tiori HC Wellington CRI-2022-035-419, 3 February 2023 (Sentencing Indication).

your home. During the time in which you were alone with your son you inflicted threatening injuries on him. It is not known how this occurred.

[6]                When your ex-partner returned at approximately 7:00 pm, she found you and the baby lying on a bed, and knew that something was wrong. The baby’s eyes were half-closed, with his eyes rolled back, and he was also making unusual groaning noises. An argument ensued where your ex-partner confronted you as to what had happened with the baby, and you refused to hand over the baby. She was forced to leave and return with support. Eventually, you handed the baby over, revealing bruising on his face. The emergency services were called.

[7]                The baby suffered an extremely serious brain injury, ruptured retinas, a haemorrhaged eye, and significant ligament damage in his neck. The initial view was that he would not survive. He was taken off life support on 23 June 2022, but to date is alive and breathing on his own, but unable to move, see, or feed without support. It is this episode that gives rise to the charge of causing grievous bodily harm with intent to injure.

[8]                On 19 May 2022, you were at your family home in Masterton. At approximately 7:45 pm your brother’s ex-partner arrived with her two young children, and went inside, carrying one of her children. There was an argument, during which you said to his brother’s ex-partner, “If you think [my brother] is evil, I will bury you in the backyard”. Your father took the child from your brother’s ex-partner. After this, you grabbed her and threw her to the ground, kicking her multiple times. You then left. As a result, the victim received a fractured clavicle, as well as bruising and grazing. This episode gives rise to the charges of threatening to kill and injuring with intent to injure.

Medical report

[9]                The Crown has provided a medical report written by Dr Edwards, a paediatrician from Hutt Valley DHB, on the extent of the injuries suffered by your son. The report was prepared by Dr Edwards for the purpose of the sentencing indication. Dr Edwards confirms that the baby suffered a non-accidental and severe brain injury, causing haemorrhages, and ligament damages.

[10]Dr Edwards states:

…[his] injuries are severe and he is now showing signs of developmental delay where previously this was not a concern prior to his injuries. … Overall his prognosis from these injuries is likely to be poor with increased risk for cerebral palsy, intellectual disability, epilepsy, visual impairment and long term morbidity arising from his unsafe swallow, particularly around his risk of aspiration and subsequent risk of pneumonia and chronic lung disease.

Victim impact statement

[11]            Your ex-partner has provided a victim impact statement in which she describes the impact of your offending on her and your son. She talks about her relationship with you, particularly how you “made [her] feel like a dog”, and that she doesn’t “have any trust in men anymore”. She says that her son has been diagnosed with cerebral palsy following the attack by you, and that he may never walk. She notes the expense of travelling and living in Auckland while the baby was being treated at Starship Hospital, and the stress that involved.

[12]            She discusses how traumatising it was preparing for her son to die noting the clinician’s view that he would never be able to breathe on his own. She says that once he was taken off life support, he ceased breathing for a short time and then managed to come back on his own. She says that she still blames herself for what happened to her son and she is angry with you for not taking responsibility for your actions. Nonetheless she is thankful to have her son alive.

First stage of sentencing process

[13]            As I have mentioned, the first stage of the sentencing process is to set a starting point for the offending, taking into account the aggravating and mitigating factors.

The starting point

[14]            Because you accepted the sentence indication I gave earlier in the year, it is not necessary for me to set out in detail the matters addressed by counsel when you appeared at the hearing nor the detailed reasons for my decision in relation to the appropriate starting point. I therefore only briefly summarise those matters now.

[15]            At your sentence indication hearing, counsel were agreed that a cumulative approach to sentencing was appropriate in the circumstances, and each signalled that as a result the totality principle may require a reduction in sentence. I agreed that a cumulative approach is appropriate in the circumstances, and proceeded on that basis.

[16]            Ms De Silva, for the Crown, relied on two cases, Nuku v R and R v Taueki, for assistance in assessing an appropriate starting point for the offending against your son.6 She submitted that the Court should adopt a starting point of six years’ imprisonment.7 Your counsel, Mr Murray, accepted that Nuku is the leading authority, and did not take issue with the aggravating factors noted by Ms De Silva, which were that:

(a)the baby suffered serious life-threatening injuries which have permanently altered his quality of life;

(b)it can be inferred that the baby’s head was attacked, from the nature of the injuries he suffered;

(c)the baby was both vulnerable and entirely defenceless; and

(d)the offending was against your own son, after you had been left alone to care for him for the first time, constituting a significant breach of trust.

[17]            I accept that those were the aggravating factors and there are no mitigating factors in the offending. I took into account s 9A of the Sentencing Act which requires that when the Court is sentencing an offender in a case involving violence against a child under the age of 14 years, the Court must take into account certain aggravating factors where applicable.

[18]            Counsel were agreed that your case falls squarely within band three of the guidance provided by the Court of Appeal in Nuku in respect of offences involving

6      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).

7      See also R v Moran [2014] NZHC 966; R v Sisley [2014] NZHC 396, [2014] NZHC 300; and

Waiotahi v R [2014] NZCA 614.

intent to injure, although they differed on where within that band the starting point should fall.

[19]            Mr Murray said that a similar starting point should be adopted as in R v Moran and that therefore an appropriate starting point would be five and a half-years imprisonment. As I have already mentioned, Ms De Silva adopted the view that six years’ imprisonment would be more appropriate.

[20]            This was serious violence, involving injuries of a nature which were concluded to be likely to cause the baby’s death. I consider that the offending in the present case is more serious than in Moran, more in the nature of Waiotahi v R, and that the s 9A factors were key to the process of setting the starting point.

[21]            Accordingly, I adopted a starting point of six years’ imprisonment in respect of the offending by you against your son.

[22]            The Crown submitted that the Court should approach the assault charge on the same basis of a charge of male assaults female, and consider the key aggravating factor to be the fact that your ex-partner was eight months pregnant at the time. Ms De Silva said the appropriate starting point is six to nine months’ imprisonment.

[23]            As to charge of threatening to kill and the remaining injuring with intent charge, Ms De Silva submitted that a starting point of 20 to 24 months’ imprisonment was appropriate.

[24]            Taking into account totality, she submitted that an appropriate overall starting point would be eight years’ imprisonment.

[25]            Your counsel, Mr Murray, accepted a starting point for the assault on your ex- partner should be no more than six months imprisonment, and that for the remaining offending, a starting point of 18 months’ imprisonment would be appropriate. He said then that a proper overall starting point would be seven and a half years’ imprisonment, and that for totality purposes that should be reduced to six years’ imprisonment.

[26]            I accepted that a starting point of six months’ imprisonment was appropriate for the assault on your ex-partner, and that the key aggravating factor was that she was eight months pregnant. Given that she suffered no lasting injuries and the birth was not affected in any way, I did not consider that a starting point of eight months’ imprisonment was necessary.

[27]            As to the remaining offending, the aggravating factors are the nature of the violence, involving a victim who appears to have been defenceless, and attacks to the head and body. The threat to kill also aggravates the overall character of that episode of offending, as do the injuries suffered by the victim. In those circumstances I concluded that a starting point of 18 months’ imprisonment was appropriate.8

[28]That resulted in a total starting point of eight years’ imprisonment.

[29]            I then considered the offending in its totality, as required when imposing sentences of imprisonment in a cumulative fashion. The offending in the present case in its totality demonstrates your willingness to use violence to injure, and is characterised by a disregard for the safety and wellbeing of vulnerable persons.

[30]            On that basis, I considered that an overall starting point of eight years’ imprisonment was proportionate to the overall gravity of the offending, and I did not make a reduction for totality.

[31]            Given the level of the starting point, I did not consider that an uplift for your previous convictions was necessary.

[32]            At your sentencing indication, I also indicated that you are entitled to a 25 per cent discount for your guilty pleas.

Second stage of sentencing process

[33]            This brings me to the second stage of the sentencing process, where I consider and take into account your personal circumstances to reach a final sentence. This

8      Alono v Police [2012] NZHC 1603.

requires me to consider the additional material that has been provided for your sentencing, including a cultural report, two reports from the Department of Corrections Probation Services, and a report from an alcohol and drug counsellor.

Section 27 report

[34]            The purpose of the cultural report, which we sometimes call a s 27 report, is to provide a sentencing court with information about an offender’s culture and background, in a way that might help to explain their offending. The report writer conducted an interview with you, and also spoke to your mother and sister.

[35]            The report writer gained the impression that you understated and minimised a number of adverse experiences in your life, which was confirmed when he spoke to your sister. He describes that your upbringing was volatile, involving family violence, substance abuse, parties in the family home, and frequent relocations around towns in the lower North Island. As a result, you spent a significant time living with other family members, and in the care of Child, Youth, and Family Services (now known as Oranga Tamariki). Throughout your childhood you were subjected to emotional and physical abuse, both in care, and by your father. Your family has connections with the Nomads Gang, and you, your father, and brothers have all served terms of imprisonment for violent offending.

[36]            You attended many various schools and were frequently in trouble, despite saying that you enjoyed school. You left school at age 14, but have no literacy issues and have subsequently completed NCEA Levels One and Two while in prison. Following leaving school you worked in the forestry industry, and report feeling pride at being good at your job.

[37]            Despite your upbringing, you describe being your father’s favourite child, and that your parents were very encouraging for you to play sport. You report enjoying staying physically fit. You had to ‘grow up quick’, assuming a parenting role for your younger siblings. You were at one stage a patched member of the Nomads Gang, but no longer associate with them, although your older brother remains a member.

[38]            Family violence has remained a significant feature of your personal intimate relationships, as well as substantial drug use. From these relationships you have two sons, one who is twelve years old, and the other being the one year old victim of the current offending.

[39]            Your whakapapa is to Ngāti Kahungunu on your father’s side and to Ngāti Porou on your mother’s side. You identify as Māori, participated in kapa haka as a child, and continue to engage in carving. You report attending your marae in Masterton for tangihanga, but otherwise not actively participating in marae life.

[40]            You report heavy alcohol and cannabis usage from a young age, but have also used magic mushrooms, LSD, and methamphetamine. Although having consumed alcohol and methamphetamine at the time of the present offending, you say that your substance use did not affect your actions, because you knew what you were doing.

[41]            However, despite this admission, you told the report writer that the summary of facts of your offending was incorrect, and that you pleaded guilty because you could not be bothered with going through the criminal process. Your views on this point, particularly regarding you promoting a different version of events than what the summary of facts says, are at odds with your guilty plea, admission of responsibility, and the fact that you report ‘blaming yourself’ for what happened to your son. It is also at odds with you reporting that you wish to grow, change, and mature. The report writer’s view that is that you were reluctant to admit the truth because you are ashamed of your actions.

[42]            Your sister and mother confirmed that your father was extremely violent and very controlling. They confirmed that your father had been imprisoned multiple times for inflicting violence on you, your siblings, and your mother. They agreed that your upbringing was like “Once Were Warriors”, and that you always wanted your mother to leave her relationship with your father. They confirmed that you spent significant time in the care, and that you attempted to protect your siblings.

[43]The report writer describes the factors that contribute to your offending as:

(a)violence and instability in personal and intimate relationships, as modelled by your parents’ relationship;

(b)the negative impacts of your upbringing;

(c)your victimisation through the use of violence against you; and

(d)your exposure to substance abuse by your parents, and the presence of gang life in your upbringing.

[44]            The report writer’s view is that given these interconnected issues, it was almost inevitable that you would commit crimes of violence as an adult, or at the least it was significantly more likely than for the average person. He considers that your upbringing has impacted you and is related to your offending, and that substance abuse has played a significant role in that. He considers that at the time you offended against your son, you were addicted to methamphetamine. He draws links between the adverse experiences in your childhood and factors which increase the likelihood of offending.

[45]The report writer concludes:

In summary, there is an abundance of evidence based research demonstrating how the interconnected strands of Mr Tiori’s very dysfunctional and traumatic upbringing have significantly predisposed him to violent criminal offending in adulthood. Clearly, his offending is abhorrent, but given his background can scarcely be a surprise to anyone.

Pre-sentence reports

[46]            You have spoken to a probation officer who has provided the Court with two reports, having spoken to you on two occasions.9 On the second occasion, you were in a better position to speak freely to the report writer and therefore share more information.

[47]            This report writer emphasised your criminal history, describing the current offending as a continuation of serious offending, and assessing you as posing a high risk of harm to others, and a high risk of reoffending. They noted that you have

9      See Sentencing Act 2002, s 26.

offended consistently since the age of 17. You acknowledged the use of cannabis and methamphetamine.

[48]            Based on other available information, the report writer considered that you have a long history of being a part of violent relationships, and that the violent offending against your partner is an aggravating factor in respect of your offending against your son. The report writer notes that you grew up in an environment of family violence, and that you resort to violence to manage conflict.

[49]            The report writer noted that while you did your best to answer questions during your interviews, you struggled at times to discuss the offending, and you were often “looking down in shame when discussing it”. You accepted your offending and that you caused your young son significant harm as a result.

[50]            The report writer noted that you discussed members of your whānau who are important to you, including your sister. You reported protecting your sister and brother from witnessing and experiencing violence in your home during your childhood. There was significant violence in your childhood, inflicted by your father. You expressed a desire for your children to grow up in a loving environment and recognised that you need to address your anger if you are to be able to engage in parental responsibilities in the future. The report writer contacted your mother who reported that your offending has “caused emotional trauma to her”. Unfortunately, the report writer was unable to contact your sister.

[51]            You recognise that you need to learn to manage your anger before you can be safe for your children and whānau. The report writer noted that even with rehabilitation, your anger will be something you need to be actively aware of and work on for the rest of your life, if you are going to be an active parent in the future. You reported that at the time of the offending, you were using both cannabis and methamphetamine. You are interested in receiving engaging in rehabilitation programmes in prison and having treatment for drug use.

Alcohol and drug report

[52]            The court has been provided with an Alcohol and Drug Report, which was prepared following an alcohol and drug counsellor undertaking a two-hour interview with you via AVL.

[53]            You reported that throughout your life you have used cannabis, tobacco, alcohol, magic mushrooms, LSD, MDMA and methamphetamine. You first smoked cannabis when you were 13 years old, and started using it regularly from the age of

14. At the same time you started smoking cigarettes and drinking heavily—although you no longer do either. Your use of mushrooms, LSD and MDMA was more sporadic.

[54]            You tried methamphetamine in your 20s, but didn’t like it and only really started using it your 30s. Your use accelerated quickly, and you stopped using other drugs because they “did not have the same effect”. You then began dealing to supply your own habit, which overrode everything else, including relationships. The negative effects included being around negative people, not eating or sleeping, becoming hyper- fixated on money and the risk of being caught. You described being always happy because you always had drugs—but that you were ‘fried’ at the time of your offending. You reported that at that time you were also compulsively gambling online—and losing large amounts of money, which you would make back dealing methamphetamine. You reported that your grandparents and parents were heavy drinkers and that in the case of your parents, the alcohol contributed to your violent upbringing.

[55]            The report writer considers that you have a genetic predisposition to substance use disorders—given that there are alcohol and other substance use disorders in the two preceding generations on both sides of your whānau. You very regularly witnessed your parents arguing, fighting, drinking, and taking drugs. Substance abuse was acceptable in your upbringing. The report writer links this to the escalation in your criminal behaviour—but says also that you appear to have genuinely decided to stop taking drugs. However, the report writer considers that this will only be possible if you undertake “profound personal work in a safe, structured, non-violent environment”.

[56]            The report writer recommends that you be discharged directly to an Alcohol and Drug treatment facility upon your release from prison.

Appropriate discounts

[57]            I now turn to consider and take into account your personal circumstances, in light of this additional information.

[58]            As mentioned by your counsel, Mr Murray, the Supreme Court has recently clarified how s 27 reports (and background factors generally) are to be approached in the sentencing exercise.10

[59]            The Supreme Court concluded that the required degree of connection between background factors and their mitigatory effect on sentencing is a “causative contribution” approach. The Court held that circumstances of deprivation can have a powerful explanatory force in revealing how an offender has come to offend and in guiding the court’s assessment in sentencing.11 This is of particular importance in the context where offending can be linked to intergenerational depravation.12 The discount range for these factors is wide and largely fact dependent.13

[60]            Mr Tiori, I am satisfied on the basis of the information you have provided to the report writers, as confirmed by your mother and sister, that your offending is linked to intergenerational deprivation, as evidenced in your childhood experiences. You witnessed and experienced extensive family violence, as has now been replicated by your violence against your son and against your former partner. While I would not go so far as to say that your offending was inevitable, the material in the reports, especially the s 27 report, goes some way to explaining your offending, and clearly meets the causative contribution standard adopted by the Supreme Court.

10 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509. While the context of Berkland was commercial methamphetamine dealing, the comments made by the Supreme Court are very likely to be of general application.

11 At [120].
12 Berkland, above n 10, at [125].

13 The Court of Appeal has acknowledged that a discount of 30 per cent is at the upper end of the spectrum, see King v R [2020] NZCA 446 at [28].

[61]            Your counsel referred to several cases of assistance in his written submissions in determining the appropriate discount in your case.14 Ms De Silva for the Crown also accepts that the causative element is established in relation to both addiction and personal factors. In the end, as confirmed by the Supreme Court, the level of discount to be provided is a matter of judicial assessment.15

[62]            Having carefully considered the additional material available to me, especially the s 27 report, I adopt a 15 per cent discount for the personal factors described.

[63]            I accept that it is the case that you feel guilt and shame for the significant harm that you have caused, particularly to your son, and that your difficulty in dealing with these feelings, in part, explains why in some discussions with the report writers you have not completely accept responsibility for your actions.

[64]            However, I am satisfied that no additional discount for remorse is appropriate in the circumstances. In my view, any discount for remorse, were it available, is adequately accounted for in the discount I have already indicated for your personal factors.

[65]            However I consider that your addiction to methamphetamine is also relevant to your sentence, and has the effect of mitigating your culpability.16 I am satisfied that the material put before the Court, although based largely on your self-reporting, indicates that at the time of the offending against your son and partner, you were using methamphetamine heavily.17 I consider that your addiction contributed to the offending, and that you are genuine in your desire to overcome your addiction. It is clear in your case that your addiction is somewhat linked to your upbringing, in that substance abuse was normalised for you from childhood. As indicated in the Alcohol and Drug Report, there is a long road to rehabilitation. Nevertheless, I am satisfied that your addiction impacted upon your culpability.

14     See Heta v The Solicitor-General [2018] NZHC 2453, [2019] 2 NZLR 241; Williams v R [2021] NZCA 535; and Poi v R [2020] NZCA 312.

15     Berkland, above n 10, at [89].

16     See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].

17     See Berkland, above n 10, at [129].

[66]            I consider that it is difficult to separate consideration of your addiction from your rehabilitative prospects. All the reports reveal that you have some insight into your offending and that you understand that you will have to work very hard to change your life by dealing with your anger, your substance abuse and addiction, and your willingness to use violence to deal with issues.

[67]            Accordingly, I consider a discount of 5 per cent is appropriate in relation to addiction and rehabilitative prospects.

Conclusion

[68]I therefore calculate your sentence as follows:

(a)First, a total starting point of eight years’ imprisonment in relation to your offending;

(b)Second, a 25 per cent discount for your guilty plea;

(c)Third, a 15 per cent discount for personal factors; and

(d)Fourth, a 5 per cent discount for addiction and rehabilitative prospects.

Result

[69]Mr Tiori, please stand.

[70]Mr Tiori, I sentence you to four years and five months’ imprisonment.

[71]Please stand down.

Postscript

[72]            For clarity, and after having had regard to s 85(3) of the Sentencing Act 2002, I record that the sentence of four years and five months’ imprisonment is apportioned as follows:

(a)for the charge of causing grievous bodily harm with intent to injure, a sentence of four years and five months;

(b)for the charge of assault on a person in a family relationship, a sentence of six months; and

(c)for each of the charges of threatening to kill and injuring with intent to injure, a sentence of nine months.

[73]All sentences to be concurrent.

McQueen J

Solicitors:
Crown Solicitor, Wellington for Crown