R v Tua

[2023] NZHC 2834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2022-091-1925

[2023] NZHC 2834

THE KING

v

BO-DEAN JONATHON TUA

Hearing:	10 October 2023
Appearances:	G J Burston for the Crown L C Ord for Mr Tua
Date:	10 October 2023

SENTENCING OF COOKE J

[1]                 Bo-Dean Tua you are now to be sentenced as a result of your guilty plea in respect of one charge of being an accessory after the fact to attempted murder.1

The offending

[2]                 On 31 October 2021, you dropped a car at your sister’s house on the Kа̄ piti Coast. You had your bichon frise dog with you and arranged a lift home with your associates.

[3]                 You and your associates drove from the Kapiti Coast towards Wellington, and at Plimmerton turned off to go to the Camborne Jet Ski Club where you stopped. One of your associates then exited the car with a firearm and approached and shot the

1      Crimes Act 1961, ss 71(1) and 312; maximum penalty five years’ imprisonment.

R v TUA [2023] NZHC 2834 [10 October 2023]

victim, seriously wounding him. You remained in the car and witnessed the shooting. You and your associates then left the area at speed, travelling towards Whitby.

[4]                 You directed your associates to drive to your friend’s home when they arrived in Whitby. You spoke with your friend on arrival and asked him to allow the vehicle to be put in the garage to conceal it from detection. Your friend refused. You and your associates then removed some items from the vehicle. You also removed the vehicle’s number plates while it was stopped on the driveway at the address. You then arranged for your friend to follow you in the vehicle so it could be dumped and so you could get a lift to return home. They duly did so. The Police have not been able to recover the vehicle.

[5]                 In explanation you stated that you did not know your associates were going to shoot anyone on the way home. You just wanted a ride and ended up getting involved in the offending.

Approach to starting point

[6]                 There is no sentencing guideline or tariff judgment for charges of accessory after the fact to attempted murder. The nature of the charge is such that it may arise in a variety of circumstances. I must consider the general purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002. As noted by Justice Gendall in the case of R v Boskell:2

In any case involving assistance given to a principal offender after a homicide has been committed, the purposes of deterrence and denunciation are of particular importance. In a case called Duff, Lang J said “[people] must know that if they harbour or assist fugitives they are likely to be dealt with severely if they are caught.”

…

There is no tariff for offending of this kind. There is, however, a judicially- endorsed continuum of [accessory after the fact to murder] offending, which as the case of Duff accepts is that:

“ … the top end of the range is conduct that involves destruction of evidence so that a successful prosecution may be thwarted. At the

2      R v  Boskell  [2015] NZHC 286 at [101] citing R v  Duff  HC  Rotorua  CRI-2009-063-6473,  9 December 2010 at [8].

other end of the scale is an isolated one-off incident in which some form of assistance is given to a fugitive.”

[7]                 I note that the offence here is accessory after the fact to attempted murder, which is less serious than accessory after the fact to murder or manslaughter.

[8]                 The Court should still consider the seriousness of the principal offending, the nature and extent of the assistance provided by you, and the effectiveness of the outcome of that assistance.3 In terms of comparable cases I consider the following are most relevant:

(a)In Boskell itself the defendant was sentenced for one charge of accessory after the fact to murder.4 The defendant drove a group to the victim’s property, where her co-defendants murdered the victim, and provided comparatively limited and short-lived assistance to the principal offenders, to enable them to evade Police capture for a period sufficient to assist them in the destruction and discardment of a significant amount of incriminating evidence. The Court adopted a starting point of 10 months’ imprisonment subsequently leading to a sentence of eight months’ home detention.

(b)In R v Afamasaga, one of the defendants was sentenced for a drug offence, and one charge of accessory after the fact to murder. The defendant had pre-arranged to pick up the principal offender, unaware of the principal committing a fatal shooting until the principal was in the defendant’s car.5 The defendant tried to tamper with or suppress evidence, participating in arranging false alibis, and snapped his SIM card in self-preservation as well as supressing evidence against co- offenders, somewhat related to his own cannabis offending. A starting point of nine-months’ imprisonment was adopted ultimately leading to a sentence of 12 months’ home detention.

3      R v Sweeney [2013] NZHC 1413 at [11].

4      R v Boskell, above n 2.

5      R v Afamasaga [2014] NZHC 2142.

(c)In R v McKenzie the defendant was sentenced for one charge of accessory after the fact to wounding with intent. The defendant’s brother stabbed another man who later died.6 The defendant later took his brother on “a reasonably lengthy car journey” to enable him to avoid arrest. The Court adopted a starting point of 10 months’ imprisonment, reduced to seven and a half months’ imprisonment after applying a guilty plea discount.

[9]                 Here your counsel submits here that your assistance with the offending was at the lower end of the scale because you became involved in the matter accidentally, and your assistance was ‘spur of the moment’ driven by in part shock and panic. You sought to disassociate yourself from what had occurred as well as assist your co- defendants in avoiding apprehension. She submits a starting point of nine months’ imprisonment is appropriate.

[10]             The Crown accepts that your assistance was at the lower end of the scale. It was not prolonged, and after the fact without knowledge of the associates’ plan to shoot the victim, for principal offending of attempted murder only. The Crown submits, however that a starting point of at least 12 months’ imprisonment would be appropriate, and that following credit for a guilty plea, the end sentence would be in the range where an electronically monitored sentence was appropriate.

[11]             I accept that your assistance was not pre-meditated in the sense that you did not set out to assist your associates to carry out the offending. Your involvement after the fact was not accidental, however. Having been confronted with your unintended presence at the scene of your associates’ offending, you undertook positive actions to attempt to conceal your involvement and that of your co-defendants. That action included directing your associates to drive to your friend’s address, requesting your assistance in concealing the vehicle, removing items from the car, removing the number plate and making logistical arrangements for the vehicle to be dumped.

[12]             This active assistance, while short-lived in duration involved the concealment of evidence, the vehicle used, which the Police have not been able to recover. In my

6      R v McKenzie HC Christchurch CRI-2005-009-6159, 10 March 2006.

view, the level of assistance here, being ‘spur of the moment’ is of a similar nature to that described in Afamasaga, Boskell, and McKenzie.7 However, a starting point here should recognise the less serious nature of the charge of attempted murder.

[13]             For these reasons I consider that a starting point of nine months’ imprisonment is appropriate.

Personal circumstances

[14]             I now consider your personal circumstances. You have a moderate history of criminal convictions but none involving violence or matters relevant to the current charge. You have never been sentenced to imprisonment. The Crown does not seek an uplift for previous convictions.

[15]             You live with your partner and 11 year old daughter. Your partner is due to be induced with your second child today and your counsel submits that you wish to remain a committed partner and father. Your mother has also been diagnosed with terminal cancer and you have been closely involved in her care and treatment, accompanying her to medical appointments. The impact on dependents of the imposition of a sentence of imprisonment can be a significant factor.8 I consider a 10 per cent reduction of the sentence would be appropriate for such personal circumstances.

[16]             Your counsel has submitted that you should be entitled to 25 per cent discount for an early guilty plea as this sentencing indication was sought promptly after the lesser charge became available. The Crown has submitted that you did not plead guilty at the earliest opportunity and therefore, a guilty plea credit of around 20 per cent would be available. Whether you entered the guilty plea at the first reasonable opportunity so that a full sentencing discount is available is dependent on the circumstances.9 Here there have been negotiations in relation to the relevant charges associated with this sentencing decision. In the circumstances I consider that a 20 per cent discount is appropriate.

7      Afamasaga, above n 5; Boskell, above n 2; McKenzie, above n 6.

8      Campbell v R [2020] NZCA 356 at [41].

9      See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [51], [62] and [65].

[17]             The remaining issue is whether you should be sentenced to home detention or community detention. Your counsel submits a sentence of community detention is appropriate. The Crown now accepts that a non-custodial sentence is appropriate and that community detention is the appropriate formulation of that sentence. It is important that steps are taken to avoid you being sent to prison in order to minimise your connections with gang members and to maximise the pro-social connections with your family. Indeed you now need to make some very important decisions about where you are going with your life.

[18]             The pre-sentence report suggests that there has been difficulty in obtaining your cooperation in the preparation of the report, and that you may not have a full appreciation of the impact of the offending on the victim (although you understand the impact on your family). There have been compliance issues with previous community based sentences. It also says there has been a pattern of family violence incidents, although that behaviour seems to be improving in more recent times. It is clear that you are committed to your mother and your family, and that you want to avoid imprisonment. It is important that any sentence that I impose reflects the family dynamics. A new child can be very rewarding but also a source of further stress. It is reported that you and your partner have an arrangement where one or other of you leave the house if tensions are increasing. It is partly for this reason that the pre- sentence report does not recommend home detention, but community detention. You are to discuss with your Probation Officer what protocols will apply to manage that situation. Under this sentence the Probation Officer also decides whether and how electronic monitoring will be required.

[19]             The pre-sentence report also recommends intensive supervision, including judicial supervision and I agree with that. So that will mean that you will have three months’ community detention and six months’ intensive supervision on the terms and conditions set out in page six of the pre-sentence report, including judicial monitoring. Your Probation Officer also monitors your community detention. The curfew address will be the address that has been identified, and the curfew period will be 8.00 pm to

6.00 am each night commencing this Friday 13 October. The conditions of your community detention are otherwise those arising under s 69E of the Sentencing Act 2002.

[20]             Mr Tua would you please stand. On the charge of being an accessory after the fact to attempted murder I sentence you to three months’ community detention at the address that has been identified, and with the curfew that I have described, and six months’ intensive supervision on the special conditions specified commencing at the same time as the community detention period, and otherwise on the standard conditions. Your Probation Officer will be able to advise you of the conditions, and you must report to your Probation Officer within the next 24 hours.

Cooke J

Solicitors:

Crown Law for the Crown Ord Legal for the Defendant