R v Tipuia HC Auckland CRI 2005-092-2219

[2005] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-092-002219

THE QUEEN

v

RICHARD RONGO TIPUIA

Hearing:         22 March 2005 Appearances: Ms D A Bell for the Crown

Mrs I F West for the Prisoner Judgment:  22 March 2005

SENTENCE OF FRATER J

Solicitors:    Meredith Connell P O Box 2213 Auckland for the Crown Mrs I F West P O Box 76049 Manukau City for the Prisoner

R V R R TIPUIA HC AK CRI-2005-092-002219 22 March 2005

[1]                 Richard Rongo Tipuia, you appear for sentence today, aged 24 years, on one charge of attempted murder, having entered a guilty plea to that charge on the day of the depositions hearing.

[2]                 The victim in this matter was known to you. The facts giving rise to the charge are that on 18 November last year, you were sentenced in the District Court at Manukau on various charges. You then went to see the probation officer about the sentence of community work which was imposed, and ended up meeting some friends and associates in the Mangere shopping centre. You bought some beer, went across to the park, and consumed it. Some time later some other friends and associates turned up and you bought some more beer.

[3]                 You were coming back from purchasing that when you met up with the victim, who, at the time, was 13 years of age. Some time afterwards you got into an argument with him you became very angry and decided that you needed to get even with him. In fact, you became so angry that you told one of your associates that you wanted to kill him. A couple of them then became involved in planning what to do and you worked out a scheme whereby you would lure him to go with you to a spot, some two kilometres away, underneath the south-western motorway.  By that  stage, it was the early hours of the morning of 19 November.

[4]                 The victim came with you because you suggested that you would play some games and drink some more alcohol.

[5]                 To get to the spot where you ended up, you had to cross the park, get through holes in a couple of fences, cross the south-western motorway, and go behind the rugby grounds, to an area under a motorway bridge. It was a rock covered stormwater drain.

[6]                 You found some pieces of cloth there and started playing some sort of blind man’s buff. The victim took his turn and the blindfold was put on him. However, before he took it off, or just as he was doing so, you came up behind  him and grabbed him around his neck in a choker hold. The summary of facts says that witnesses described your actions and the grip that you had on his throat as being as

though you were trying to break his neck. You threw him violently on to the rocky ground and then you and some of your other associates began punching and kicking him. You kicked him with steel-capped boots. You and others also threw rocks at him, which struck him on the head. Eventually, the force of the various blows inflicted on the victim caused him to lapse into unconsciousness. But notwithstanding that, it seems that you continued to beat him, in one way or another.

[7]                 Eventually, however, the attack did stop and you enquired of one of your associates whether you should “finish him off”. He agreed and handed you a Stanley craft knife. With the encouragement of your friends, you leaned over  the unconscious victim, pulled his head back and ran the knife across his throat, practically from ear to ear. When you found that it did not bring any blood, you ran the blade across his throat a second time, and obviously that was successful, insofar as your attempt to severely injure him was concerned. And then, having done that, you and your associates left him to die, walking back to the park where you played basketball and generally hung out for the rest of the night.

[8]In the course of that time, you disposed of the knife.

[9]                 Fortunately, however, you were not entirely successful in your endeavours. The victim woke up and somehow, amazingly, managed to stagger on to the motorway where he was found bleeding and in a distressed state by a passing motorist. He was admitted to Middlemore Hospital intensive care unit suffering  from a deep 20 centimetre long cut to his throat, two skull fractures, a broken nose and severe swelling to his face.

[10]             When you were interviewed, you admitted your involvement in the offending, and you are to be commended for that, at least.

[11]             As a result of the injuries inflicted on him, the victim’s schooling has been interrupted.  He says that he has been left  with a 20 centimetre scar across his neck,  it is still swollen, and it causes him acute embarrassment. As a result of the fractures he received to his head, he suffers extremely bad headaches and, despite consuming  a large number of pills, they will not go away. He has also been warned by his

doctor that he might suffer epileptic seizures in the future, as a result of those injuries to his head. He says that the broken nose does not worry him, but what does is the general tiredness that he feels pretty well all the time. This affects not only him but also his mother, who sits with him as he tries to get to sleep, and is generally so concerned about his wellbeing that she is cautious about where he goes at night and restricts who he goes with and what he does. And that is an issue that she will have and he will have for a long time to come. He is having real problems facing up to his friends, to the community and generally getting on with his life.

[12]             This is not the first time that you have appeared before the Court. As I have said, on the morning of the day leading up to the offence, you appeared in Court and were sentenced on a number of charges, including male assaults female and breaching a protection order, and were sentenced to community work and supervision. You have previously been convicted on a charge of threatening to kill and numerous charges of breach of both Police and Court bail. You also have convictions for offences of dishonesty. These offences date back to 2000 and it seems that you have been offending on a reasonably regular basis over the period since then. You have not, however, previously been sentenced to a term of imprisonment.

[13]             Your personal circumstances are that you were born in the Cook Islands, your family background is violent – you used to watch your father assaulting your mother

– and your education has been pretty limited. Whether that is as a result of your family background or the move from the Cook Islands, I am not sure. But it seems that during your schooling you were truant quite a lot of the time and you have been left with limited literacy skills.

[14]             Despite all that, and to your credit, you have been employed since you were 19, and you held one job for three years. You also completed a course in food preparation, and were employed unloading containers up until your offending last year.

[15]             You have not had any involvement with gangs, and at the time of your offending you were living with your partner and your young son. I assume that it is your partner who is the subject of the conviction for breach of the protection order and male assaults female.

[16]             You were obviously open with the pre-sentence report writer and readily acknowledged your leading role in this offending, which the probation officer identified as being attributable to your willingness to use violence and your alcohol consumption. You told the probation officer that you wanted to change. You said  that you were willing to address your alcohol problem and your problem with violence. The only trouble is that you have already completed an anger management programme in 2000, and, on the community-based sentences that you have been serving, you have had ample opportunity to address the problems which you obviously have in coping in general society. Notwithstanding your expressed willingness to change, the probation officer believes that you have limited insight into your offending and that your motivation to change is really only low to moderate. Accordingly, you were assessed as being at a high risk of re-offending. Because of all that and the nature of your offending, the probation officer recommended that a sentence of imprisonment be imposed, and indeed there is no suggestion that any other sentence is appropriate or should be imposed.

[17]             For the Crown, Ms Bell submitted that the facts giving rise to this offence were such that a sentence of imprisonment near the maximum sentence of 14 years was justifiable, and she submitted that I should take a figure of somewhere in that vicinity of 13 to 14 years as my starting point. Against that, she acknowledged that you should be given a reduction in recognition of your guilty plea.

[18]             In fixing the appropriate term of imprisonment, she asked that I take into account the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002. They include the need to hold you accountable for the harm that you have done to the victim and the community, the need to promote in you a sense of responsibility and acknowledgement of the harm caused, the need to  provide for the interests of the victim, to denounce your conduct and to deter you

from  further  offending  of this  nature.     She also emphasised the gravity of the offending involved here and the maximum available penalty.

[19]             She then went through the list of aggravating factors which the Court is required to take into account in accordance with s 9 of the Sentencing Act, and submitted that many of them applied in your case. For example, the fact that you used a weapon – in this case a knife and also rocks – the extent of the harm caused to the victim, which, as I have already said, was significant, and the abuse of trust involved. The victim was but a boy. You were 24 years old at the time,  and he  would have seen you in a leadership role by virtue of your age, if nothing else. And, because of his age, he was particularly vulnerable. He was also vulnerable  because of the number of people who you brought in to assist you. So effectively he was alone, unsupported by the large group who were there, supporting you in  carrying out your plan.

[20]             Then there is the premeditation and planning. There is no doubt, and you do not dispute, that although it was not planned a long time previously, this was not something that happened on the spur of the moment. You actively involved your associates in the planning. You worked it through. You deceived the victim into going with you and took him along under the motorway to the place where you eventually carried out your plan.

[21]             Ms Bell also urged me to take into account your previous convictions and the brutal nature of the attack, including the fact that you went back a second time and cut the victim.

[22]             She then took me through a series of decisions where the crime involved was that of attempted murder. She mentioned R v Steeman (CA 105/03 5 June 2003) and R v Tuuta (CA 296/00 21 September 2000), in both of which the Court of Appeal noted that there is no fixed range of sentences for this type of offending; that there is no tariff for this offence. Each case has to be determined on its own facts. She submitted that the facts of this case would bring it into the range of the 10 year sentence imposed in Tuuta. In that case the Court of Appeal upheld a 10 year sentence imposed upon a 20 year old offender for the attempted murder of his former

girlfriend. As in the present case, the offending in that case involved a significant degree of premeditation, an abuse of trust element, and the offence involved the use of a knife and culminated in the slashing of the victim’s throat.

[23]             She also referred me to R v Finau (CA 422/02 30 June 2003) where the Court of Appeal upheld an 11 year sentence imposed for the attempted murder of a taxi driver.

[24]             Finally, she submitted that this was an appropriate case to impose a minimum non parole term.

[25]             Your counsel, Mrs West, acknowledged that there was not much that she could say in opposition to the submissions made on behalf of the Crown. She accepted that a term of imprisonment is appropriate and that it would be towards the higher end of the scale. In that regard, she referred me to the case of R v Riddiford (CA 105/86 17 June 1987) where the Court of Appeal dismissed an appeal against a sentence of eight years imprisonment imposed on a charge of attempted murder. That case, of course, was determined in 1986 and, if anything, sentences for this type of offending have increased since then.

[26]             I accept the submissions made on behalf of the Crown. This was a particularly brutal and callous attack on a vulnerable young boy. You are nine years older than him.  Your co-offenders, it seems, were somewhat younger than you also.  I understand that one of them has entered a not guilty plea and appears for callover on 6 April.  The other is facing a disability hearing in the Manukau District Court on 5 May. I take you to be the ringleader in this offending,  although obviously you  were assisted in what you did by your associates.

[27]             I accept that a starting point near the top end of the allowable sentence is appropriate. In my view, a starting point between 12 and 13 years is appropriate.

[28]             The only mitigating factors are your very early guilty plea and the co- operation that you showed with the Police.

[29]             Allowing for those factors, I consider that a sentence of nine and a half years imprisonment is appropriate, and impose that accordingly.

[30]             I also accept the Crown’s submission that a minimum non parole period should be imposed. I agree that the factors set out in the Sentencing  Act  in relation to minimum non parole periods apply to you. I need to hold you accountable for the harm done to the victim, I need to denounce the conduct in which you were  involved, I need to deter you and others from committing the same or a similar offence, and the need to protect the community from you.

[31]             Given your past history, and your lack of understanding of your offending, I do not think it appropriate that you be released at the one-third point in your sentence, which would be just over three years. I will impose a minimum non parole period of five years imprisonment. That is less than I could impose, but I am doing that to give you the opportunity to address the very real issues which you have while you are in prison. In that regard, I would draw to the attention of the prison authorities the need for you to have assistance in obtaining literacy skills. You also need to really address and take responsibility for your violent tendencies and your consumption of alcohol.

[32]Stand down.

M A Frater J