R v Tucker
[2021] NZHC 3510
•16 December 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-2105
[2021] NZHC 3510
THE QUEEN v
THORNE TUCKER
Hearing: 16 December 2021 Appearances:
A McConachy for Crown B Foote for Defendant
Judgment:
16 December 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
R v TUCKER [2021] NZHC 3510 [16 December 2021]
[1] Mr Tucker, at 18 years of age you appear for sentence today having pleaded guilty to a charge of kidnapping. The Crown offers no evidence on the remaining charges that you currently face and I make an order under s 147 of the Criminal Procedure Act 2011 discharging you on those charges.
[2] You entered your guilty plea after a sentence indication given by Katz J on 24 June 2021.1 In that indication the Judge adopted a starting point for your offending of three years two months imprisonment. She made an allowance of 25 per cent, or
9.5 months, for your guilty pleas. She left remaining mitigating factors to be assessed in the event that you entered guilty pleas.
The facts
[3] Your offending arose as a result of your relationship with your then partner, Ms Daisy Dixon. Her mother is Ms Rickylee Dixon. In 2020 Ms Rickylee Dixon became angry when she believed that the female victim had stolen methamphetamine from her. She devised a scheme by which the victim would be kidnapped using force and then beaten up. She hoped this would result in the victim’s father paying her money as compensation for the stolen methamphetamine.
[4] This resulted in two separate incidents in which Ms Rickylee Dixon, your partner Daisy and other associates kidnapped the victim. On each occasion she was detained for some hours and subjected to a severe beating. The Crown does not contend you were involved in the first incident, which occurred in September 2020. However, you were involved in the second incident which began on the afternoon and evening of 21 October 2020 and continued the following day.
[5] Your involvement began when you arrived at a motel where Ms Rickylee Dixon was staying. The victim had been taken to the motel the previous evening and kept overnight. She was then subjected to a severe beating by several members of Ms Dixon’s group at the motel. The Crown does not contend you were involved in any of
1 R v Tucker [2021] NZHC 1548.
the physical violence inflicted on the victim. However, you had been present earlier in the day when the victim had been placed in a vehicle and driven to a place where the group had arranged to meet the victim’s father to obtain more money from him. For whatever reason the meeting never took place and the group returned to the motel unit.
[6] You are seen on CCTV returning to the motel unit at 9.57 am. You then left a few minutes later at 10 am. It is not known when you arrived back at the unit, but you were certainly there by the time the group had wrapped the victim in a sheet at the end of the incident and placed her on the rear tray of a utility motor vehicle. By that stage the police had arrived at the motel and you distracted their attention by approaching the patrol vehicle and sitting on the bonnet. The utility vehicle then left the motel and the police subsequently left as well. Thereafter you were involved in cleaning up the motel unit to disguise the fact that the victim had been assaulted and injured in that location.
[7] As I have already observed, your involvement in these events led Katz J to select a starting point of three years two months imprisonment.
Aggravating factors
[8] You have a large number of notations for dishonesty and other offending including some offending involving violence in the Youth Court. However, Katz J applied no uplift to reflect any aggravating factors personal to you and I take the same approach.
Mitigating factors
[9] It is now necessary for me to assess the extent by which the sentence should be further reduced to reflect other mitigating factors personal to you.
[10] The most significant of these is the fact that you were just 17 years of age at the time of the offending. As Mr Foote submits, the courts invariably recognise a discount for youth because they recognise that persons of a very young age cannot foresee or contemplate the consequences of their actions. Mr Foote is also correct in
saying that the courts will give upwards of 20 to 30 per cent to reflect this factor depending on the circumstances of the offender.
[11] In your case I propose to adopt a more conservative approach simply to recognise the fact that, although you were just 17 years of age, you had had many previous interactions with the criminal justice system. I take you to have been relatively experienced in criminal matters at the time of this offending. I therefore propose to apply a discount of six months, or 15 per cent, to reflect your youth.
[12] You have spent approximately six and a half months in either a youth justice facility or in prison on remand. It is not necessary for me to take these factors into account at this stage because they will be taken into account when your release date is fixed. However, I am entitled to apply a discount to reflect the fact that you spent six months subject to restrictive EM bail conditions whilst on remand. You will not be given credit for this when your release date is calculated. I therefore deduct two and a half months to reflect this factor.
[13] The final mitigating factor for which I can provide a discount is to be found in a psychiatric report dated 18 December 2020. This was prepared to assist the Court in determining whether you were fit to instruct counsel and stand trial. It was not prepared for the same purpose as a report tendered under s 27 of the Sentencing Act 2002. Nevertheless the report contains a great deal of background material about your upbringing and it assists me in reaching some conclusions about the circumstances that led to your current offending.
[14] It is clear that you had a difficult upbringing. You have never had any relationship with your father. As a result, your principal paternal influence has been your stepfather. That has provided its own difficulties because he has been involved in the manufacture of drugs and you became involved in that endeavour as well. In 2018 this resulted in an explosion whilst you and your stepfather were manufacturing cannabis oil. You were injured as a result of that, although not as seriously as your stepfather.
[15] This has not been your only involvement with drugs. It is clear from the psychiatric report that you began taking drugs at an early age and were not discouraged at all by your caregivers from doing so. You have tried a variety of drugs during your youth and adolescence.
[16] You had virtually no meaningful education. You moved from school to school being expelled or excluded from most, either for fighting or non-attendance. When you were finally excluded from your last educational institute you say that your drug use escalated and became more problematic. In addition, you became a patched gang member of the Black Power gang. You said you “love the gang” because it provided a family when your family did not want you.
[17] The use of drugs, along with possible traumatic responses to earlier events, appears to have contributed to some mental health issues. This has resulted in you engaging with mental health services over the last two years. It does not appear, however, that you suffer from any recognised form of mental impairment.
[18] I am satisfied that the fact that you became involved with a person like Daisy Dixon, and hence the present offending, follows as a direct result of the difficult issues you were required to confront during your childhood and youth. I consider it warrants a further discount of eight months, or around 15 per cent.
[19] This means that, from the starting point of three years two months imprisonment, I have identified mitigating factors totalling two years two months. This means the end result is one of 12 months imprisonment.
Sentence
[20] I now impose a sentence of 12 months imprisonment on the charge to which you have pleaded guilty. As I understand the position this is likely to lead to your immediate release.
[21] When you are released you will be subject to standard release conditions together with the special release conditions set out in the pre-sentence report dated 2 December 2021. I acknowledge that this is likely to provide you with some
difficulties given the fact that these require you not to associate with any member of the Black Power gang and that organisation is obviously important to you. Nevertheless, the release conditions are only for a period of six months. If you are to have a prospect of remaining offence-free in the future, I consider it essential that you endeavour to abide by that particular condition.
Lang J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2020-063-2105 [2021] NZHC 1548
THE QUEEN
v
THORNE TUCKER
Hearing: 24 June 2021
Counsel: A McConachy for Crown
A Hill (on instructions from B Foote) for defendant
Judgment: 24 June 2021
SENTENCE INDICATION OF KATZ J
Solicitors: Gordon Pilditch, Office of the Crown Solicitor, Rotorua Counsel: A Hill, Barrister, Rotorua
Brian Foote Law, Rotorua
Introduction
[22]Thorne Tucker faces charges of:
(a)kidnapping for ransom (as a party);2
(b)participation in an organised criminal group;3 and
(c)being found in an enclosed yard without reasonable excuse.4
[23] Mr Tucker seeks a sentence indication in respect of the kidnapping charge. Should he plead guilty to that charge, the Crown has agreed to offer no evidence on the charge of participation in an organised criminal group.
The alleged offending
[24] I will first briefly outline the alleged offending (as it relates to Mr Tucker), based largely on the Crown Summary of Facts.
[25] The genesis of the alleged kidnapping is that one of Mr Tucker’s co-defendants, Rickylee Dixon, believed that the complainant had stolen some methamphetamine from her vehicle. She decided to seek retribution. It is alleged that Rickylee organised and participated in the kidnapping and violent assault of the complainant, and the extortion (and attempted extortion) of money from the complainant’s father.
[26] Rickylee’s daughter, Daisy Dixon, is Mr Tucker’s girlfriend. Mr Tucker is not alleged to have been involved in an initial kidnapping incident. It is alleged, however, that he was involved in a second kidnapping incident. In particular, Mr Tucker is alleged to have been present at about 9.00 pm on 21 October 2020, when the complainant was brought to the motel unit of Rickylee’s mother, Ms Rifle. Rickylee
2 Crimes Act 1961, ss 209(a) and 66(1). Maximum penalty of 14 years’ imprisonment.
3 Crimes Act 1961, s 98A. Maximum penalty of 10 years’ imprisonment.
4 Summary Offences Act 1981, s 29(1)(b). Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
told the group at the motel the complainant’s name and the reasons why she was being held. Rickylee told Ms Rifle to watch the complainant and that she need not worry about her running away. She also told the group not to harm the complainant, before leaving.
[27] Mr Tucker was also present at around 7.00 am the following morning, when Harete Ohlson arrived at the unit driving a four door ute with a covered canopy. Rickylee told the group that “we’re going to get more money” and “we’re not finished with her yet”. The group, including Mr Tucker, Harete, Rickylee and Daisy got into the vehicle. The complainant was told to get into the rear tray of the ute, which she did.
[28]The group contacted the complainant’s father and arranged to meet him at
9.30 am to try and extort more money from him in exchange for the complainant’s safe return. The complainant’s father went to the meeting point but did not see the group there.
[29] The group drove around with the complainant in the tray of the ute for some time before returning to the motel unit just before 10.00 am. Mr Tucker is seen on CCTV returning to the motel unit at 9.57 am before leaving three minutes later at
10.00 am. It is not clear exactly when he returned to the unit, but he was there at
10.40 am. Between 10.00 am and 10.40 am, Rickylee, Daisy and Harete violently assaulted the complainant. The Crown does not allege that Mr Tucker was present during that assault.
[30] At about 10.40 am, a decision was made to move the complainant, as the group were concerned that the police would be alerted and come to the unit. Harete moved the ute, reversing it towards the door of the unit. The group then covertly transferred the complainant, who had been badly beaten, into the tray of the ute.
[31] Police were apparently alerted by a member of the public that there had been noises coming from the unit. They arrived at the unit, but the complainant had already been hidden in the rear of the ute, which was covered by a canopy with heavily tinted
glass. The group used their bodies to try to cover the windows into the ute, so that police could not see the complainant.
[32] Mr Tucker allegedly approached police and spoke them, and then moved towards the police car and sat on it to distract them. The police did not notice that the complainant was hidden in the back of the ute.
[33] The complainant was petrified and remained quiet. She believed that she would be killed if she made any noises for help and was not in fact rescued.
[34] The complainant was then driven away by others in the group. Mr Tucker stayed at the motel unit with Korina Bennet to clean up the evidence of the offending. Ms Rifle directed them both to take bloodied items to the laundry. One of the two wiped up the blood on the window in the bedroom of the unit.
[35] The complainant was eventually rescued when the car she was in was stopped by Black Power gang members. The complainant’s family had requested their help in saving her.
[36] The complainant was taken to hospital, where she was admitted and remained for a number of nights. She suffered extensive injuries including significant bruising and swelling to her face; two black eyes; a broken nose; a broken elbow; ligature marks to her wrists; a wound to her lip; and numerous bruises and abrasions. She required urgent surgery for a broken elbow.
[37] When spoken to by police, Mr Tucker denied any involvement or knowledge of the kidnapping.
What is the appropriate starting point?
[38]The first issue I must consider is the appropriate starting point.
[39] There is no tariff case for kidnapping, given the wide variety of circumstances in which this offence can arise. The Crown submitted that a starting point of three years and six months’ imprisonment is appropriate. They consider that Mr Tucker
played an active role in the offending. The Crown acknowledged, however, that Mr Tucker was probably the least culpable of all eleven defendants, and that he was not present when the worst of the violence was inflicted.
[40] In terms of aggravating features, however, the Crown submitted that Mr Tucker’s offending was aggravated by the following factors:
(a)The actual violence inflicted on the complainant.5 While Mr Tucker did not personally engage in the violence, the Crown submitted that he assisted others by distracting the police and subsequently cleaning the unit. (I note that the distraction of the police took place, however, after the worst of the violence had already been meted out).
(b)That there were multiple people attacking the complainant.
(c)The vulnerability of the complainant.6 She was alone and outnumbered by the group and Mr Tucker was present for at least some of the time that the complainant was in the motel unit. At some stage she was bound and tied so that she could not defend herself or escape. She was terrified that she would be killed.
(d)The severity of the injuries caused to the complainant, including a broken nose and elbow.
(e)Participation in an organised criminal group.7 Although I note that if Mr Tucker pleads guilty to the kidnapping charge, no evidence will be offered on that charge.
[41] Mr Hill submitted that an appropriate starting point is two years and six months’ imprisonment. He submitted that Mr Tucker was a minor party to the offending. Mr Hill compared this case to R v Blom.8 I am not going to set out the
5 Sentencing Act 2002, s 9(1)(a).
6 Section 9(1)(g).
7 Section 9(1)(hb).
8 R v Blom [2017] NZHC 827.
details of that case, but I accept Mr Hill’s submission that Mr Tucker’s role here was less serious than Ms Blom’s in that case. In that case a starting point of three years and six months’ imprisonment was adopted.
[42] The Crown referred to the cases of R v Brown and R v Paleaaesina.9 Those cases concerned offenders who were both involved, in different ways, in the same gang-related kidnapping. A starting point of three years’ imprisonment was adopted for both offenders.
[43] The difficulty comparing this case with Brown and Paleaaesina is that Mr Tucker played a very different role to either of those offenders. Mr Brown’s role was to facilitate the kidnapping by transporting his associates. Mr Paleaaesina facilitated the kidnapping by acting as a lookout. Neither was physically involved in the detention of the victim in their case.
[44] Although Mr Tucker was not physically involved in the detention of the complainant, he was not simply an observer of the offending. When police came to the motel unit to investigate the kidnapping of the complainant, he deliberately distracted them to try and ensure that they did not locate and rescue the complainant from the ute. It is quite possible that this enabled Mr Tucker’s co-defendants to prolong the detention of the complainant and inflict further harm upon her. Mr Tucker then assisted in the cleaning of the motel unit. While this was at the direction of Ms Rifle, the aim was to destroy evidence of the offending.
[45] In my view, these factors make Mr Tucker’s offending slightly more serious than in R v Brown and R v Paleaaesina, but less serious than that in R v Blom. Accordingly, I consider that a starting point of three years and two months’ imprisonment is appropriate.
9 R v Brown [2017] NZHC 1241; and R v Paleaaesina [2017] NZHC 1038.
Personal mitigating factors
[46] I accept counsel’s submission that if Mr Tucker accepted this sentence indication, a full guilty plea discount of 25 per cent would be available. This would reduce his sentence down to two years and four and a half months’ imprisonment.
[47] Mr Tucker is currently 18 years old. He was only 17 years old at the time of the offending. A discount would therefore almost inevitably be available for his youth. The level of this discount would need to be determined at sentencing, however, when full information is available regarding all of his personal circumstances.
[48] I also note that I have read a psychiatric report on the Court file dated 18 December 2020. Based on the information contained in that report it is apparent that Mr Tucker has suffered very considerable deprivation and trauma in his young life. Further information regarding his personal circumstances may well be available at sentencing. Based on what I have read to date, however, I can indicate that it is extremely likely that an additional discount would be available for personal and cultural factors at sentencing. A discount may also be available for the time that Mr Tucker has spent on remand in a youth justice facility.
[49] At this stage it appears highly likely that once any further discounts to which Mr Tucker is entitled have been quantified, the end sentence will be less than two years’ imprisonment. That would bring the sentence within the range where home detention is an available sentencing option.
[50] Until a final sentence has been calculated and full information on Mr Tucker’s personal circumstances is available, it is obviously not possible to formally commit to such a sentence. It will also be dependent on a suitable home detention address being available. I do record, however, that if a suitable address is available, and no information comes to light that suggests that home detention would not be appropriate, it is my view that home detention would be the preferable sentencing outcome. I have particular regard in this context to Mr Tucker’s youth.
Sentence indication
[51] The indicated sentence is therefore two years and four and a half months’ imprisonment, with further reductions for personal mitigating circumstances to be assessed at sentencing.
[52] If the end sentence is a term of imprisonment of two years’ or less, a sentence of home detention will be seriously considered. Unless there are countervailing factors which strongly weigh against such a sentence it is my view that home detention would likely be the preferable sentencing outcome.
[53] This sentence indication is open for five working days. If Mr Tucker wishes to accept it, the Court is to be advised by 4.00 pm on Friday 2 July 2021.
Katz J