R v Tumata

[2012] NZHC 805

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-016134 [2012] NZHC 805

THE QUEEN

v

DANIEL BOBBY TUMATA

Hearing:         27 April 2012

Counsel:         K Raftery for Crown

P Broad for Prisoner

Judgment:      27 April 2012

SENTENCING REMARKS OF LANG J

R V DANIEL BOBBY TUMATA HC AK CRI-2011-092-016134 [27 April 2012]

[1]      Mr Tumata appears for sentence today having just pleaded guilty to a charge under s 117(e) of the Crimes Act 1961 of wilfully attempting to pervert the course of justice. The maximum sentence for that charge is seven years imprisonment.

[2]      I  record  that  Mr  Tumata  entered  his  guilty  plea  following  a  sentence indication  hearing that  I conducted in  accordance with  s  61(3) of the Criminal Procedure Act 2011 earlier this morning.  At the conclusion of that hearing, I gave a sentence indication of 12 months imprisonment to be served cumulatively on an existing sentence of nine years nine months imprisonment Mr Tumata is serving on a charge of manslaughter.  I now set out the reasoning process by which I arrived at that sentence.

[3]      Before undertaking the sentence indication, I had received a copy of the indictment together with an agreed summary of facts.  I had also received detailed written submissions from both the Crown and counsel for Mr Tumata.  In addition, I had  obtained  a  copy  of  a  pre-sentence  report  prepared  on  16  April  2010  in anticipation of the sentencing hearing at which Mr Tumata was sentenced on the charge of manslaughter.

Factual background

[4]      The facts that give rise to the offending flow from an incident that occurred on 12 August 2008.   On that evening a 14 year old boy was killed at his home address in Manurewa.  Mr Tumata and his co-accused, Mr Williams, were arrested and charged with assault with intent to rob and murder.  Both accused were found guilty  of  assault  with  intent  to  rob.     Mr  Tumata  was  also  found  guilty  of manslaughter and Mr Williams was found guilty of murder.   Mr Tumata was subsequently sentenced to nine years nine months imprisonment on the charge of manslaughter, and Mr Williams was sentenced to life imprisonment.  Mr Williams appealed against his conviction, and on May 2011 the Court of Appeal allowed his

appeal and directed a new trial.[1]

[1] Williams v R [2011] NZCA 245 (CA).

[5]      The offending for which Mr Tumata appears for sentence today occurred whilst he was serving his sentence of imprisonment and Mr Williams was on bail on the charge of murder awaiting his re-trial.

[6]      On 28 August 2011, Mr Tumata was in Rimutaka Prison.  During that day he rang a third party, who is a cousin of Mr Williams.   As is always the case, the telephone call was recorded by the prison authorities and for that reason would have been available as evidence at Mr Tumata’s trial.   Mr Tumata told Mr Williams’ cousin that he intended to “blackmail” Mr Williams.  The two men then discussed an arrangement that entailed Mr Williams paying the sum of $5,000 into Mr Tumata’s bank account in exchange for Mr Tumata refusing to give evidence against Mr Williams at his re-trial.   Mr Williams’ cousin agreed to go round and present the offer to Mr Williams.

[7]      Five days later, on 2 September 2011, Mr Tumata contacted Mr Williams’ cousin again.   He asked the cousin if he had been to see Mr Williams yet.   The cousin said he had not, but would do so. Three weeks later, Mr Tumata contacted the cousin again at the same address.  On this occasion the cousin told Mr Tumata that he had been to see Mr Tumata’s brother in order to get Mr Wiliams’ telephone number.

[8]      It was at about this point that the prison authorities must have learned what was happening and referred the matter to the police, because the police then spoke to Mr Tumata on 3 October 2011.

Sentencing Act 2002

[9]      In  any case involving offending of this type,  issues of denunciation  and deterrence must be to the forefront.   This was a deliberate attempt to pervert the course of justice by Mr Tumata.   He knew that he had relevant evidence that he could give because he had been present at the scene at the time that the victim was killed.  For that reason he was obviously a vital witness in Mr Williams’ re-trial.  A deliberate attempt to obtain money in return for not giving highly relevant evidence

on such a serious charge must be met by a sentence that has elements of deterrence and denunciation built into it.

Starting point

[10]     The Crown has referred me to a number of authorities in which sentences have been imposed for charges under s 117(e) of the Crimes Act 1961.   These include R v Hillman, R v Churchward and R v Mail.[2]The facts in all of these cases are different to those in the present case, because they involved attempts to influence a juror, or to dissuade a witness from giving evidence.  None of them deal with the situation in which a person has offered to refuse to give evidence in return for the payment of money.  Nevertheless, the authorities show that where a plan is carried to fruition, in the sense that a juror or witness is actually approached, a starting point of

around three years imprisonment will be appropriate.

[2] R v Hillman CA14/92, 14 May 1992 (CA); R v Churchward CA439/05, 2 March 2006 (CA); R v

Mail HC Auckland CRI-2008-004-16181, 26 June 2009.

[11]     In the present case matters did not reach that point, because Mr Tumata’s associate never went as far as contacting Mr Williams.  To that extent, therefore, the offending is perhaps less culpable than those in cases where jurors or witnesses are actually approached and intimidated.  Nevertheless, that is largely due to the fact that there was some delay in Mr Williams’ cousin approaching Mr Williams.  It cannot be due to any actions on the part of Mr Tumata, who was clearly anxious to learn what Mr Williams’ cousin was doing to implement the arrangement.  There are therefore elements of premeditation and determination about this offending.   In addition, it occurred within a prison environment, and whilst Mr Tumata was serving a lengthy sentence of imprisonment for other criminal offending.

[12]     When those factors are taken into account, a sentence of imprisonment is clearly called for.  I consider that the culpability of the offending is slightly less than those in the cases referred to me by the Crown.  It is perhaps for this reason that the Crown suggests a starting point of between 18 months and two years imprisonment. Counsel for Mr Tumata relies on the same factors to support a submission that a

starting point of around 16 months imprisonment would be appropriate.

[13]     I take the view that a sentence at the upper end of the range recommended by the Crown is appropriate to reflect the factors to which I have referred.  I therefore select a starting point of two years imprisonment.

Aggravating factors

[14]     There has been some debate in the submissions as to whether an uplift should be applied to reflect Mr Tumata’s previous criminal history.  He now has a relatively extensive criminal history encompassing a wide variety of offending.  These include offences involving violence, and also numerous breaches of Court orders.   They clearly demonstrate that he is a person who has no compunction in offending against the criminal law.

[15]     It is important, however, that the Court not impose an uplift in circumstances that would amount to punishing Mr Tumata again for previous offending.  The object of an uplift in these circumstances is to demonstrate that the present offending is made that much more serious by the fact that the offender has not learnt from past sentences for similar offending.  None of Mr Tumata’s previous convictions are for offending of this particular type.   For that reason I do not consider that the requirement for an uplift to take account of this factor has been met in this case.  Mr Tumata needs to be aware that, should he engage in similar conduct in the future, then, undoubtedly, the attitude of the sentencing Court will be markedly different and an uplift will be applied.

[16]     I also take the view that the starting point that I have selected sufficiently reflects the fact that this offending occurred within a prison environment and by a sentenced prisoner.  For that reason I do not apply any uplift to reflect Mr Tumata’s previous convictions.

Mitigating factors

[17]     There are two mitigating factors.  The first of these is that Mr Tumata was prepared to co-operate with the authorities and give evidence at Mr Williams’ re- trial.  His evidence also reflected that contained in a written statement he had earlier

given to the police.  There is therefore no suggestion that he altered his evidence in any way so as to endeavour to help Mr Williams.

[18]     Mr Tumata’s credibility at the re-trial was probably dented to a significant extent by the factual background to the present offending, because it was exploited by counsel for Mr Williams during his cross-examination.  For this reason the jury may have disbelieved Mr Tumata and this may have been a factor in the jury’s decision to ultimately acquit Mr Williams on the charge of murder at the re-trial. That cannot, however, be counted against Mr Tumata for present purposes because, as I have said, he gave evidence in accordance with his brief.   He did so at considerable risk to his personal safety given his status as a sentenced prisoner at the time he gave his evidence.

[19]     The courts have regularly afforded a discount to reflect cooperation of this type, particularly when it leaves the offender in jeopardy or at risk of personal harm. The Crown agrees that a reasonably significant discount may be afforded to reflect this factor.  Several authorities have been referred to me in this context, but, again, many of them are of limited assistance because of the differences in the factual matrix.

[20]     I take the view that the cooperation that Mr Tumata provided by giving evidence should be marked by a discount of eight months, or around 30 per cent. This leaves a sentence of 16 months imprisonment.

[21]     Mr Tumata is also entitled to credit for his guilty plea.  It did not come at the first opportunity, but I note that Mr Tumata sought a sentence indication in the District Court prior to committal.   That could not be accommodated because the District Court did not have jurisdiction to deal with the charge that Mr Tumata faced. For that reason it was necessary for him to be dealt with in this Court.

[22]     Nevertheless,  at  a  very  early  stage  following  the  presentation  of  the indictment  in  this  Court,  Mr Tumata  sought  a  sentencing  indication,  and  I  am therefore prepared to give him credit on the basis that he entered his plea at a relatively early stage.

[23]     That  said,  however,  the  decision  of  the  Supreme  Court  in  Hessell  v  R[3] requires the Court to take a robust and overall view of the circumstances in which a guilty plea is entered.  I consider that Mr Tumata’s conviction on the present charge was inevitable, having regard to the content of the telephone conversations between himself and Mr Williams’ cousin.  For that reason the discount to be given for the guilty plea must be tempered to some extent.

[3] Hessell v R [2011] 1 NZLR 607.

[24]     I propose to allow a discount of three months, or approximately 20 per cent, to reflect the guilty plea that has now been entered.  This leaves an end sentence of

13 months  imprisonment.    That  sentence  would  obviously  need  to  be  imposed cumulatively on the sentence Mr Tumata is already serving because of the fact that it represents completely separate and discrete offending from that that gave rise to the sentence Mr Tumata is currently serving.

[25]     In any case where the Court imposes a cumulative sentence, it is required to have regard to principles of totality.[4]   This means that the Court must stand back and have regard to the end sentence in order to make sure that it is not disproportionate to the overall culpability of the offender.

[4] Sentencing Act 2002, s 85(2).

[26]     In the present case it could easily be argued that a cumulative sentence of

13 months imprisonment leading to an effective end sentence of ten years ten months imprisonment is not disproportionate.  I bear in mind, however, that Mr Tumata is a relatively young man at 26 years of age.   He is already serving a very lengthy sentence of imprisonment, and any addition to it will be of significant consequence to him.  For that reason I am prepared to make some adjustment having regard to totality principles, but the adjustment must necessarily be modest given the fact that the end sentence is not of any great length.  I propose to reduce the sentence by one month to reflect totality principles, leaving a cumulative end sentence of 12 months

imprisonment.

Sentence

[27]     Mr  Tumata,  on  the  charge  to  which  you  have  pleaded  guilty  you  are sentenced to 12 months imprisonment.  That sentence is to be served cumulatively on the existing sentence of nine years nine months imprisonment that you are already serving on the charge of manslaughter.

[28]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland
Public Defence Service, Auckland