R v Tolefoa

[2012] NZHC 3059

NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF POLICE OFFICER PROHIBITED BY S 140 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-011046 [2012] NZHC 3059

THE QUEEN

v

MURRAY TOLEAFOA

Hearing:         16 November 2012

Counsel:         K Raftery for Crown

R Mansfield and H Stuart for Prisoner

Judgment:      16 November 2012

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel:

Crown Solicitor, Auckland

R Mansfield, Auckland

R V TOLEAFOA HC AK CRI-2012-004-011046 [16 November 2012]

[1]      Mr Toleafoa, you are for sentence today on a charge of discharging a firearm at a police officer to which you pleaded guilty on 10 October 2012.  The maximum penalty for that offending is a sentence of imprisonment of 14 years.1

Facts

[2]      On Friday 8 June 2012, you were the front seat passenger in a car being driven by your de facto partner.  You were in the parked car when five uniformed members of the Auckland City District Police drove past you in a marked vehicle.  I am going to refer to three of the officers in the car as Constables A, B and C.

[3]      When the officers observed your vehicle, they followed you to an intersection and activated their lights and sirens.  When the cars were stopped, officers including Constable A and Constable B approached your vehicle.   Constable B spoke with your partner, while Constable C spoke with you through a small gap in the passenger window.

[4]      You were agitated and began to fidget in your seat while talking to the officer. During the conversation, you became increasingly uncooperative and argumentative.

[5]      Constable A returned to the Police vehicle to complete checks on you and your partner. After completing these checks, Constable A spoke to your partner, who had wound the driver’s window all the way down.  She had her right hand on the ignition  key  in  the  ignition  and  her  left  hand  on  the  handbrake.    Constable A instructed her not to turn the engine on.  She became nervous and whispered with you.  When Constable A repeated his request, he heard you tell your partner to drive away.  Your partner started the engine, and you continued to encourage her to drive

away.

1 Crimes Act 1961, s 198A.

[6]      Constable A reached into the vehicle and attempted to remove the keys from the ignition.  He was unable to turn the key off as there was an ignition lock system in place.  He was standing with his head positioned low and immediately adjacent to the open driver’s window.

[7]      You reached behind the front seats and retrieved a loaded semi-automatic pistol.   This pistol is magazine-fed and chambered for a nine millimetre calibre bullet.   With the pistol you kept a shoulder holster and a smell belt pouch that contained an additional magazine, which was loaded with 14 nine millimetre bullets.

[8]      Your partner leaned forward in her seat. You brought the pistol across the top of her back and out of the driver’s window.  Constable A saw the barrel of the pistol lined directly with his left eye.  He immediately pulled his head back and away from the window. You pulled the trigger and fired one round, being reckless as to whether or not the bullet struck Constable A.  Constable A believes that the barrel of the gun was near his head when it was discharged.

[9]      The bullet travelled across the right side of Constable A’s head and over his right  arm.     It  struck  the  exterior  wall  of  a  nearby  building  at  a  height  of approximately three metres.

[10]     The other officers took evasive action when your vehicle rolled backwards and collided with the Police vehicle.  Your partner then drove off at speed and you were followed for approximately 100 metres before the Police returned to the scene of the shooting.

[11]     Constable A sustained minor speckled burns to the inside of his right forearm and soreness to his eardrums.

[12]     You were arrested a few days later on the 12th  of June in a downtown car park.

[13]     I have received a statement from Constable A, the victim of your offending. Constable A has been a member of the Police for nine and a half years.

[14]     He recalls stopping you and, noticing that you were jumpy, he tried to discern where your hands were within the vehicle.   Officers are not normally armed and Constable A was not armed on the evening of the offending.

[15]     Constable A vividly remembers the moment when you brought your arm up and the gun became visible with the gun being pointed at his head.  Unsurprisingly, this is something he says he will never forget.  He strongly believes that had he not reacted the way he did the outcome that evening would have been very different.

[16]     In the aftermath of the incident he felt dazed and anxious.   He repeatedly thought about what might have happened had he not moved when he did.  He was also worried for himself and his family,  given  your gang connections, and was greatly relieved when you were arrested.   When Constable A returned to work he found that he was initially tense, jumpy and defensive.   Over time his work has returned to normal, though he is now extremely vigilant and worried in situations involving gang members or firearms.

[17]     Constable A attributes his recovery from this incident to his family, his faith and the support he has received from other members of the Police.  He is proud to be a serving officer.

Personal circumstances

[18]     Your pre-sentence report records that you are 31 years old.  You were born in Samoa and immigrated to New Zealand with your family when you were two years old.  Prior to your remand in custody, you were living with your partner in Auckland. You have said that you did not finish secondary school because you were “sidetracked” by criminal associates.  You have not held any formal employment, aside from working while you were incarcerated.

[19]     You have been addicted to methamphetamine since you were around 16 years old and have acknowledged the role that your methamphetamine use played in your current offending.  You felt “bulletproof... angry and out of control” so you say on the night of the offending and know that you would not have felt that way if you had not been high at the time.

[20]     You have a considerable number of previous convictions dating from 1996 onwards.  Of those, the convictions most relevant to sentencing today are:

(a)       A conviction for threatening to kill using a firearm from 2001 for which you were imprisoned for six months;

(b)Wounding  with  intent  to  do  grievous  bodily harm  from  2003  for which you were imprisoned for two and a half years;

(c)       An aggravated assault conviction from 2007;

(d)      Two convictions for assaulting members of the Police force also in

2007;

(e)       Unlawfully carrying an imitation firearm for which you were also convicted in 2007; and

(f)       Aggravated robbery using a firearm for which you were convicted and sentenced to five years six months imprisonment in 2008.

[21]     Because of this history, you are assessed as posing a high risk of reoffending and of causing harm in the future.

[22]     You have expressed remorse for your actions in a letter, which I have read. You are willing to engage with rehabilitative intervention and acknowledge that you have not seriously attempted this before.  Eventually, you wish to settle down with your current partner, have a family, and complete a certificate in Civil Engineering, which you began many years ago.   You have contacted Odyssey House, but understand that it may be some time before you are able to seek such assistance.

[23]     The primary purposes of sentencing in this case are to ensure that you are held accountable for the harm done to Constable A and to the wider community;2 and to denounce and deter your offending.3     While all firearm offending is serious, unprovoked  armed  offending  against  unarmed  police  officers  is  of  particular concern. The Court of Appeal has previously emphasised the seriousness of this type

of offending in the case of R v Samuels:4

[14]      We think that the conduct of Mr Samuels is the very sort of conduct in  respect  of  which  Parliament  intended  there  to be  severe  punishment. Police officers on patrol are routinely unarmed, and vulnerable to attacks of this sort. Presenting firearms against law enforcement officers is intended by Parliament to be dealt with severely. In our view there is little assistance to be gained by arguing this was lesser offending than an attempt to murder, also having a maximum penalty of 14 years. ... There are different policy reasons why these charges have the same maximum period of imprisonment. The correct exercise is to focus on the obvious reason for the high maximum penalty for using firearms against law enforcement officers...

[24]     Accordingly, the sentence must seek to promote a sense of responsibility for, and acknowledgement of, the harm that you have caused,5 and provide for Constable A’s interests.6    I must seek to protect the community from you,7 which may require me to consider your prospects of rehabilitation and reintegration.8

[25]     In terms of the principles of sentencing, I must consider the gravity of your offending,  including the  seriousness  of  the type of offence,  and  your  particular culpability.9   This will include consideration of the impact on Constable A.10   I must impose a sentence that is consistent with appropriate sentencing levels and is the

least restrictive outcome that is appropriate.11

2 Sentencing Act 2002, s 7(1)(a).

3 Ibid, s 7(1)(e) and (f), respectively.
4 R v Samuels [2009] NZCA 153.

5 Sentencing Act 2002, s 7(1)(b).
6 Ibid, s 7(1)(c).
7 Ibid, s 7(1)(g).
8 Ibid, s 7(1)(h).

9 Ibid, s 8(a) and (b).

10 Ibid, s 8(f).

11 Ibid, s 8(e) and (g).

Crown Submissions

[26]     The Crown lists the aggravating features of the use of a weapon,12 the attack on a police officer,13  the psychological harm caused,14  a degree of premeditation in that  the pistol  was  loaded  and  within  easy  reach,15   and  that  the offending was committed while on bail for breaching release conditions and subject to a sentence of

community work for common assault.

[27]     There is no tariff decision for offences under s 198A.  However, the Crown relies on the cases of R v Samuels, R v McDonald, and R v Murray (which I will discuss later) to support a starting point of 12 years imprisonment.   In a supplementary memorandum, the Crown advises that, by a narrow margin, they have decided not to pursue a sentence of preventive detention. As such, this starting point is put forward in light of the principle that where an offender narrowly misses out on

preventive detention, a longer than normal finite sentence may be imposed.16

[28]     The Crown  submits  that  a “stern  uplift” to  this  starting point  should  be imposed to reflect your previous convictions; but accepts that a 25 per cent discount for your guilty plea is appropriate.

[29]    Finally, the Crown submits that I should impose a minimum period of imprisonment of two-thirds of the end sentence.  The Crown note that your previous convictions,  particularly  the  assaults  on  Police,  disclose  a  “consistent  theme  of disdain for the criminal justice system”; and that you have not successfully availed yourself of the rehabilitative opportunities that were available.   The Crown is particularly  concerned  that  your  pattern  of  offending  includes  an  escalation  of

violence.

12 Ibid, s 9(1)(a).

13 Citing R v Taylor CA407/88, 9 May 1989 at 6 and the Sentencing Act 2002, s 9(1)(d).
14 Sentencing Act 2002, s 9(1)(d).
15 Ibid, s 9(1)(i).

16 Citing R v Leitch [1998] 1 NZLR 420 at 430.

[30]     Your counsel, Mr Mansfield, submits that the fact that the offending involved a Police Officer is inherent in the charge.  The reckless and thoughtless nature of this offending, committed while under the influence of methamphetamine, is emphasised. It is submitted that a starting point of no more than eight years imprisonment is appropriate in the circumstances.

[31]     Your  counsel  accepts  that  an  uplift  for  your  previous  convictions  is inevitable.   However, it is submitted that a modest uplift of no more than nine months would be appropriate.

[32]   Your counsel emphasises your increasing awareness of the influence of methamphetamine on your actions and reports that your partner has provided you with significant support and continues to do so.  A three month reduction in sentence is sought to reflect your intention to treat your addiction.

[33]     It is submitted that your early guilty plea should be reflected in a 25 per cent discount which, your counsel informs, has been accepted by the Crown.

[34]     Finally, it is submitted on your behalf that this is not an appropriate case for the imposition of a minimum term, as you seek to address your addiction and should be given the opportunity to do so.

Sentencing approach

[35]     The sentencing approach adopted in this case will be familiar to counsel and

follows the Court of Appeal’s decision in R v Taueki17 as reaffirmed in R v Clifford.18

What that means for you, Mr Toleafoa, is that I begin by considering the seriousness of the facts of the offence and arrive at a starting point.   Then there are various matters relating to you personally which may lead me to increase or decrease that

starting point in order to arrive at a final sentence.

17 R v Taueki [2005] 3 NZLR 372 (CA).

18 R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23.

[36]     I accept that the factors listed by the Crown are key to addressing your culpability, but would not characterise them, necessarily, as “aggravating features”. In particular, the fact that the victim is a member of the Police is inherent in the charge and responsible for the high maximum penalty.  This is evident from the fact that the offence of discharging a firearm with reckless disregard at a person who is not a police officer carries a significantly lower maximum penalty of seven years

imprisonment.19     To treat this as an aggravating feature would double-count this

factor.  Similarly, the use of a weapon and the infliction of psychological harm that is not extraordinary for offending of this nature are also inherent in the offending. Finally, I cannot infer from the presence of an accessible loaded pistol that you foresaw   events   unfolding   in   the   way   that   would   suggest   “premeditation” (particularly given your methamphetamine-addled state of mind).  However, I will treat this as an aggravating feature to the extent that it demonstrates a readiness to be involved in firearm-related violence if the situation arose.

[37]     With that in mind, I turn to the cases cited by the Crown.  In the first case, R v Samuels,20 Mr Samuels fled Police from the scene of a burglary in a half hour high- speed car chase.  During the pursuit, he aimed a rifle at the Police vehicles behind his car and fired four shots.   After the pursuit had ended, he walked towards the officers with his rifle raised and aimed directly at one of the constables.   He only desisted after one of the officers shot him.  He was charged with a variety of offences

but, as has happened here, a count of attempted murder was withdrawn.  The Court of Appeal  upheld  a  starting point  of 12  years  imprisonment  for four  counts  of discharging a firearm at Police.

[38]     R v McDonald21 involved a very similar set of facts.  Mr McDonald pleaded guilty to 23 different charges, including nine counts of using a firearm against law enforcement officers.   Mr McDonald was involved in a high-speed Police chase,

during which he aimed a semi-automatic sawn-off rifle at the vehicles behind him.

19 Crimes Act 1961, s 198(2).

20 R v Samuels [2009] NZCA 153.

21 R v McDonald HC Auckland CRI-2009-004-16897, 22 September 2009.

After he and his associate abandoned their vehicle, he fired at the Police helicopter above them and down a residential street.  Mr McDonald then stole two cars in his effort to continue fleeing Police, waving his gun and eventually firing at their vehicles.   When he finally abandoned his car, he fired at the officers approaching him and took a bystander hostage.  He was eventually shot by one of the officers.  A bystander  was   killed   by  a  stray  Police   bullet.   Harrison   J   considered   that

Mr McDonald’s offending was “within the most serious of the cases”.22   His Honour

adopted a starting point of 14 years imprisonment.

[39]     In R v Murray,23  the final case on which the Crown relies, Mr Murray was charged with the attempted murder of a Police Officer.  He assisted in setting up a homemade car bomb in order to lure Police to the car in the hopes of killing them. The officers who approached the car managed to defuse the bomb.   The Court of Appeal  upheld  a sentence of 12  years imprisonment,  though  noting that  it  was severe.

[40]     Each of these cases are very different and, in most respects, more serious than your offending in that they involve multiple shots, high-speed car chases, premeditation,  danger  (and,  in  McDonald,  actual  harm)  to  the  public.     The seriousness of your offending is due to the fact that the close range at which you fired the pistol meant that you came closer to actually killing Constable A.  However, I cannot find any other cases that provide any assistance.  The following cases are cited as an example of offending under s 198A that incurred lower starting points:

(a)      In R v Wells,24 Mr Wells had refused to stop his car for the Police.  He fired two sets of two shots backwards towards a vehicle at a distance of approximately 100 metres.   For that offending alone, Harrison J

adopted a starting point of at least six years imprisonment.25

22 At [20].

23 R v Murray (1997) 14 CRNZ 524.
24 R v Wells HC Auckland CRI-2003-092-26964, 30 April 2004.

25 At [12].

(b)In  R  v  Shaw,26   a  young  couple  were  evading  the  Police  as  they believed that their children would be taken from them.   Eventually, the Police caught them driving a stolen Land Rover.   A chase commenced, which involved the use of road spikes.  At one point, the driver swerved to avoid road workers and lost control of the vehicle and crashed into a tree.   After the crash, the couple removed the children  from  the  rear  of  the  car  and  moved  away.    The  Police Officers shadowed them because one of the offenders was holding a

.22 rifle, which he aimed at the Police Officers.  Fogarty J adopted a starting point of 10 years for the use of the firearms.27

[41]     While your offending may not be as serious as the offending in the cases relied on by the Crown, it is significantly more serious than R v Wells, in which it was accepted that the shots were fired for the purpose of deterring the officer from his  pursuit.    Here,  you  fired  the  pistol  at  very  close  range  in  the  direction  of Constable A’s head.   This precludes the acceptance of your counsel’s suggested starting point of eight years imprisonment.

[42]     Similar difficulties are encountered in comparing your culpability with the offending in R v Shaw as with the offending in the cases cited by the Crown.  Both sets of offending are very serious, but in very different ways.  However, R v Shaw does demonstrate that a starting point of less than 12 years may be available for this type of offending.

[43]   Taking these cases into account, I adopt a starting point of 10 years imprisonment.  This reflects my impression that you are slightly less culpable than the offenders in R v Samuels and R v Murray in that your offending did not involve multiple shots and high-speed chases; but that your offending was still extremely serious and could well have resulted in the death of or serious injury to Constable A.

[44]     I note that I do not accept the Crown’s argument that a higher starting point should be adopted because you “narrowly” escaped being subject to an application

26 R v Shaw HC Timaru CRI-2009-045-631, 16 December 2009.

27 At [17].

for preventive detention.  In this respect, I am of the view that the Crown’s reliance on  R  v  Leitch  is  misplaced.    When  considering  an  application  for  preventive detention, the Court is concerned with the level of risk posed by the offender and how  to  best  manage  that  risk.    An  offender  who  narrowly  escapes  preventive detention is likely to pose a significant risk to the community upon release.  It may therefore be in the public interest to increase the sentence to ensure that the offender is kept out of the community for a long period of time.  Thus, while I may increase your sentence if I am satisfied that you will pose a serious risk to the community

upon release, this is part of the normal sentencing exercise28 and is not connected to

the Crown’s consideration of preventive detention.

Adjusting the Starting Point

[45]     The  fact  that  you  offended  while  on  bail  and  subject  to  a  sentence  of community work is a serious personal aggravating feature29  in addition to  your history of violent offending, including offending against Police Officers.   I agree with the Crown that a “stern uplift” is required for these factors.   I have taken an uplift of one years imprisonment.

[46]     These factors tend to undermine your stated willingness to address the issues underlying  your offending.   As pointed  out by the Crown,  at  your most recent sentencing, Judge Cunningham considered your self-reported efforts to rehabilitate yourself.30   The fact that you have almost immediately reoffended in such a serious way gives me very little confidence in your professed remorse and commitment to

rehabilitation.

28 Sentencing Act 2002, s 7(1)(g).

29 Coulson v R [2012] NZCA 420 at [31].

30 R v Toleafoa DC Auckland CRI-2006-004-1513, 20 February 2008 at [29], where this was taken to

“cancel out” the uplift that would otherwise be given for previous offending.

Guilty Plea

[47]     I consider that your early guilty plea entitles you to receive the full 25 per cent discount.   This gives you an end sentence of eight years three months imprisonment.

Minimum Period of Imprisonment (MPI)

[48]     As I have imposed a determinate sentence of imprisonment of more than two years, I may order that you serve a MPI under s 86(1) of the Sentencing Act 2002, which is a minimum period that is longer than one-third of the length of the sentence.31

[49]    I may impose a MPI if satisfied that the one-third default minimum is insufficient  to  either  hold  you  accountable  for  the  harm  done,  denounce  your conduct, deter you or others, or protect the community from you.32    The MPI must

not exceed two-thirds of the full term of the sentence.33

[50]     The purpose of the imposition of MPIs has been stated as follows:34

[Section] 86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk. It enables the courts to give a degree of reality to the sentence and the outcome.

[51]     In this case, I agree with the Crown that a MPI is warranted to reflect the gravity of firearms offending against police officers.  I agree that your offending was particularly grave and represents a worrying escalation in your pattern of offending; and  that  the community is  likely to  require protection  from  you.   Accordingly, although  your offending did not include factors of unusual callousness, extreme

violence,   vulnerable   or   multiple   victims   and   serious   actual   or   intended

31 Parole Act 2002, s 84(1) (the default period).

32 Sentencing Act 2002, s 86(2).
33 Ibid, s 86(4)(a).

34 R v Brown [2002] 3 NZLR 670 at [28].

consequences,35  I impose a MPI of five years, slightly less than two-thirds of your sentence.

Result

[52]     Accordingly, I sentence you to a period of imprisonment of eight years three months, of which you must serve a minimum term of five years imprisonment.

[53]     As your offending was committed after 1 June 2010 and involved a “serious violent offence”, I gave you a “first strike warning”36  when you entered a plea at callover on 10 October 2012.  You were subsequently provided with a written notice of the warning.   I remind you of the severe consequences if you are subsequently convicted of another serious violent offence.

[54]     Finally,  I  order  the  permanent  suppression  of  the  name  of  Constable A

without opposition.

……………………………….

Woolford J

35 Ibid at [32].

36 Sentencing Act 2002, ss 86A and 86B.