R v Tito

[2015] NZHC 2969

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-055-002443 [2015] NZHC 2969

THE QUEEN

v

AILEEN CHRISANDRA TITO

Hearing:	26 November 2015
Appearances:	Jaspher Rhodes for the Crown Sharyn Green for the Defendant
Judgment:	26 November 2015

SENTENCING NOTES OF MOORE J

R v TITO [2015] NZHC 2969 [26 November 2015]

Introduction

[1]      Ms Tito you appear for sentence having pleaded guilty on the morning of your trial to one charge of being an accessory after the fact of the crime of wounding with intent to injure.  That charge carries a maximum sentence of three years and six months’ imprisonment.1

[2]      You  accept  the  summary  of  facts  and,  of  course,  having  presided  over Mr Herkt’s trial, I am familiar with your involvement in the events before, during and after the tragic killing of Matthew Greenslade.  However, because sentencing is a process which is required to be undertaken in public, it is necessary for me to set out what happened on the evening of 17 November 2014 and your involvement.

[3]      That evening you and Mr Herkt, who was your partner at the time, were drinking with friends in Papakura.

[4]      One of those friends, the occupier of the unit you were in, was the victim, Matthew Greenslade.

[5]      During the evening Matthew and Mr Herkt became involved in an argument. According to Mr Herkt it was because Matthew threw an empty carton at  your bottom and Mr Herkt took offence at that.  Whether that was actually the catalyst or not is unimportant.  What is not in dispute is that shortly after this Mr Herkt attacked Matthew.   You helped to break  the fight up.   Mr Herkt received minor injuries including a blood nose.

[6]      After this everyone moved outside.  Matthew then returned to his unit leaving you and Mr Herkt outside.

[7]      Obviously still simmering with rage, Mr Herkt went to a nearby unit and asked for a weapon.  He was given a knife.  He then returned to Matthew’s unit and tried to open the front door.  That was locked so he went around to the back.  After trying the door and finding it was also locked he kicked it open, ran inside and

attacked Matthew.  Matthew fought back but was fatally injured.

1      Crimes Act 1961, ss 71, 188(2) and 312.

[8]      You were not inside the house when this  attack took place and there  is nothing to suggest that you, in any way, encouraged or assisted Mr Herkt in the immediate lead up to the fatal attack.

[9]      While Matthew and the two others who were in the house beat a hasty retreat and Matthew was driven to the nearby A&E, where he later died, you went into the house and took Mr Herkt away.

[10]     After leaving the house you and Mr Herkt dumped various items of evidence which could link you to the attack.  The first item you discarded was the knife.  You threw this into a culvert near the railway lines across the road from the unit.  You also  threw  away  items  of  clothing.    You  helped  Mr Herkt  avoid  detection  by shepherding him around the local streets and keeping him effectively hidden.  You managed to obtain a ride to another part of Papakura some distance away from the scene and your own home. You stayed the night with Mr Herkt well away from your home.

[11]     The  following  day  you  went  back  to  your  home  and  disposed  of  more clothing.   But later that morning, as was inevitable, you were found by the Police with Mr Herkt in your car.

[12]     To your credit, after you were arrested you admitted what had happened and you co-operated with the Police.  Through your assistance the various items which you  had  discarded  were  recovered.    These  items  were  produced  as  exhibits  at Mr Herkt’s trial.

Personal circumstances

[13]     While this is not your first conviction by any means it is, by far, the most serious.  Your extensive previous offending has been mostly for property and minor drug offending.   None, in my view, bears any real relevance to the exercise I am required to undertake today.

[14]    What, however, your previous convictions do reveal is the continuing link between your offending and the abuse of alcohol and other drugs.  This is a matter

which  the  author  of  the  pre-sentence  report  has  also  mentioned.    Alcohol  has featured prominently in your previous offending and, plainly, alcohol played a significant part in the tragic events which lead to Matthew’s death that evening last year.  I also note that the author of the pre-sentence report makes reference to certain mental health issues for which you are receiving medication.  I will turn to that topic shortly.

[15]     As a result of these factors the pre-sentence report concludes that you present a moderate risk of re-offending although there is no suggestion you are likely to re- offend in such a serious way again.

[16]     It follows that in my view a sentence which will assist you in dealing with your problems around alcohol and drugs is necessary.

Submissions

[17]     Mr Rhodes, for the Crown, has helpfully provided me with a number of cases relating to the imposition of sentences for accessory after the fact of murder.2   From these cases the Crown submits a starting point of 12 months’ imprisonment is appropriate although the Crown accepts you are entitled to some discount for your plea of guilty and your personal circumstances.

[18]     Ms Green, on your behalf, does not take issue with the Crown’s starting point although she did indicate in the course of oral submissions before me that a slightly reduced starting point from that level was appropriate.  She does submit that a discount of the order of 20 per cent is deserved to recognise your plea of guilty and

the other personal factors.

2      R v Duff HC Rotorua Cri-2009-063-6473, 9 December 2010; R v Duncan [2013] NZCA 354; R v Graham HC Christchurch CRI-2004-009-2224, 15 September 2004; R v Tavita HC Auckland CRI-2009-092-5263, 15 September 2009; R v Granich [2013] NZHC 2657.

Starting point

[19]     There is no tariff case for this kind of offending.  That is hardly surprising. The circumstances in which this offence can be committed are wide.  Despite this, the cases I have been referred to reveal some common trends.3

[20]     Two factors predominate in determining the seriousness of the offending:

(a)       the  first  is  the  seriousness  of  the  crime  which  the  defendant  has assisted; and

(b)      the second is the level of assistance which has been provided.

[21]     As  for  the  first  I  am  of  the  view  that  a  starting  point  of  12  months’ imprisonment is slightly on the high side.  This is because the cases cited by the Crown all relate to accessories after the fact of murder.  While Mr Herkt has now been convicted of murder, the charge which you pleaded to incorporates a lesser offence. And, as the Crown accepts, it must attract a lesser sentence.  In my view the principled approach is to recognise this in setting the starting point.

[22]     The second relevant factor is the degree of assistance you provided.   You assisted   Mr Herkt   in   avoiding   detection   and   you   assisted   in   disposing   of incriminating evidence including the knife.  This sort of conduct is, unsurprisingly, common in cases of this kind.

[23]     On this basis, I intend to adopt a starting point of 10 months’ imprisonment.

Personal factors

[24]     There is a large measure of agreement between the Crown and your counsel as  to  the  approach  which  should  be  adopted  when  assessing  your  personal

3      In addition to the cases cited by the Crown, I have also been assisted by the following decisions:

Boyd v R [2015] NZHC 822; Ben-Kimi v Police [2014] NZHC 3157; R v Haufano [2014] NZHC
1201; R v Sweeney [2013] NZHC 1413; R v Reddy [2011] NZCA 184, [2011] 3 NZLR 22; R v
Bush HC Auckland CRI-2010-004-16484, 24 November 2011.

circumstances.  While your prior offending prevents you from obtaining a good character discount it is not, in my view, sufficiently serious to call for an uplift.

[25]     Conversely,  you  are  entitled  to  discounts  for  your  guilty  plea  and  the assistance which you gave to the Police which lead them to recover the incriminating evidence.  Even so, the discount must be fairly limited.  I also agree that your mental state will make a sentence of imprisonment more difficult for you and does warrant a further discount.

[26]     Putting aside the guilty plea which I will deal with in a moment I consider a discount of around 10 per cent to recognise these factors is appropriate.  I must then consider what discount should be given for your guilty plea.  It was late although I accept it was signalled some time before it was actually entered.  I also note your counsel’s submission that by pleading guilty some witnesses who would have been required to give evidence at the trial may not have been called although, given the way in which the trial was actually run, my sense is that this aspect deserves limited

credit.  I am prepared to give you a further discount in the order of 10 per cent.4

[27]     I thus reach a final sentence of eight months’ imprisonment.  In doing so I am satisfied that you are genuinely remorseful and I note particularly the comments to that effect which are recorded in the pre-sentence report as well as the comments of your counsel you wish to convey these feelings to Matthew’s family.

[28]     Having reached a final sentence of eight months’ imprisonment because this is a sentence of imprisonment of less than 12 months I am able to impose release conditions.   Given the comments made in the pre-sentence report, I consider it appropriate to impose conditions to deal with the issues which you plainly have around alcohol and drug abuse.

[29]     For this reason I also impose a condition that you are not to consume alcohol for six months following your release and you are also to be assessed for entry into an  alcohol  and  drug  counselling  course  and,  if  recommended,  to  complete  that

course to the satisfaction of the Department of Corrections.  Ms Green advises that

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [50] and [75]-[76].

you have been assessed at the Mason Clinic and it is suggested by her that a further assessment be made following your release.  I am prepared to do so and make such an order and I invite Ms Green to forward to the Court the detail of the order she seeks which I will consider and if appropriate make orders by way of a Minute as an addendum to these sentencing notes.

Sentence

[30]     Ms Tito please stand.

[31]     On the charge of being an accessory after the fact to wounding with intent to injure I sentence you to eight months’ imprisonment.  On your release you are not to consume alcohol for six months and you are to complete any alcohol and drug programme as recommended by the Probation Service.

[32]     Please stand down.

Moore J

Solicitors:
Crown Solicitor, Manukau
Ms Green, Auckland