R v Tuporo HC Auckland CRI 2005-092-12850

[2007] NZHC 2090

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-092-12850

THE QUEEN

v

MARLAN CONROY TUPORO

Hearing:         31 August 2007

Counsel:        R Marchant for Crown

I D Tucker and M Wotherspoon for Prisoner

Sentence imposed:     Murder (x1)

Life imprisonment

Minimum sentence imposed: 17 years

Judgment:      31 August 2007

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Auckland

Counsel:

I D Tucker, Takapuna, Auckland

M Wotherspoon, Auckland

R V TUPORO HC AK CRI 2005-092-12850  31 August 2007

Introduction

[1]      Marlan Conroy Tuporo, you appear for sentence today having been found guilty by a jury of the murder of Lio Naea in the early hours of Sunday 23 October

2005.  The maximum penalty for murder is life imprisonment.

[2]      While there is a discretion to reduce the period of life imprisonment, there are no circumstances in this case that would justify this course.  Accordingly, a sentence of life imprisonment will be imposed.

[3]      The only issue that I have to determine today is the length of the minimum term of imprisonment you must serve.  Your counsel argues that that period should be 10 years, while Mr Marchant, for the Crown, submits it ought to be 17 years.  The difference arises out of provisions in our Sentencing Act which require the higher period to be used for cases of particularly nasty killings.

Crown submissions

[4]      Mr  Marchant,  for  the  Crown,  has  submitted  that  the  relevant  sentencing purposes and principles can only be met by the imposition of a minimum term of 17 years, unless I were satisfied that mitigating circumstances justified reduction of that period in some way.  In particular, there is a need to denounce offending of this type and to deter others from acting in this way.

[5]      Mr  Marchant  relies upon the actual use  of  violence  with  a  weapon,  the unlawful entry into the dwellinghouse to commit the crime, the loss and emotional harm suffered by the deceased’s family and friends and the vulnerability of Mr Naea at the time you killed him.

[6]      Mr Marchant has fairly referred me to a number of mitigating factors which might lead me to the view that a term less than 17 years might be appropriate and I will deal with those  when  addressing  Mr  Tucker’s  submissions.    However,  Mr Marchant’s primary position is that the unlawful entry into the dwelling, coupled

with the level of brutality and callousness of the killing and Mr Naea’s vulnerability to attack, justifies a minimum term of imprisonment of 17 years.

Submissions for prisoner

[7]      Mr Tucker has submitted that a minimum period of not more than 10 years is required because the case cannot be brought within the provisions of our Act that require a higher minimum non-parole period for the type of killings to which I have referred.     He  submits  that  the  purposes  and  principles  of  sentencing  can  be adequately met by a sentence of life imprisonment, coupled with a 10 year minimum term of imprisonment.

[8]      Mr Tucker has suggested that Mr Naea said something to you at the time he was killed which led you to act as you did.  That was reflected in the evidence you gave before the jury.  While Mr Tucker accepts, as he must, that the jury excluded the possibility of that amounting to legal provocation, he submits to me that it should nevertheless be taken into account in determining the appropriate sentence on the charge of murder, particularly in relation to an assessment of your culpability for the killing.

[9]      Mr  Tucker  puts  to  me  that  there  was  no  home  invasion,  that  you  had previously gone to Mr Naea’s home and were free to come and go as you wished. He suggests that there was evidence that you went to ask Mr Naea about what had happened that evening when your two friends Ernest and Hanlon were badly injured. He submits, however, that you did not have any intent to kill.

[10]     Given the nature of the exchange which Mr Tucker submits occurred between you and Mr Naea, he submits that Mr Naea should not be regarded as particularly vulnerable for the purposes of assessing whether a longer minimum term of imprisonment is necessary.

[11]     Mr Tucker has pointed me to your youth (you were 19 years old at the time of the killing), provocation (though not in a legal sense) your remorse and admission of the killing and the limited time between finding your friends lying prone at the

intersection of Norrie Smith Avenue and Dosina Place and the actual killing that occurred.  Mr Tucker, while accepting that all murders involve levels of brutality and callousness, submits that this does not fall within  the high category required to impose a minimum term of 17 years.

My findings of facts

[12]     Mr Tuporo, having heard the evidence given at your trial I have formed clear views as to what occurred in the period leading up to the tragic death of Mr Naea and the way in which the murder was likely carried out.

[13]     It is clear that the incident stemmed from other events that occurred on the evening of Friday 21 October 2005, when you and others were drinking at  Lio Naea’s home.

[14]     Although Mr Naea’s son, George, was associated with a juvenile gang known as the Junior Crip Boys (JCBs) you and others who appear to have been associated with the Penion Dosina Boys (PDBs) regularly drank at his home.  During the course of the evening of 21 October 2005, Mr Naea was beaten up badly and his home was trashed by those present.  You were not involved, as I understand it, in that particular process.

[15]     The evidence at trial suggested that friends of George Naea learnt of what had happened to his father and his father’s home and communicated that to  Mr George Naea the following morning.  However, it is clear, from the victim impact report that has been obtained from George Naea, that he himself visited his father’s home at 5am that day and was aware of what had happened to his father in his home.

[16]     It is clear that a rallying call was made for members of the JCBs to come to the Penion Drive/Dosina Place area to seek retribution for what had occurred.  It is clear when the JCBs arrived there was serious violence.  That culminated in two of your friends, Hanlon and Ernest, being badly beaten with weapons and seriously injured.

[17]     I accept that, when you came upon them lying prone at the intersection of Norrie Smith Avenue and Dosina Place, you were upset and angered and deeply disturbed by what had occurred. I also accept that, at the time, you thought they may die.

[18]     At trial, you raised the spectre of provocation.  In essence, it was suggested that, having seen your friends, you thought dying, at the side of the road, you went to Mr Naea’s home to confront him and, when he made a comment to the effect that some deserved to die and showed no “remorse” for the injuries suffered by Hanlon and Ernest, you set upon him with the wrench which you said you had obtained from an unidentified female at the corner of Dosina Place and Norrie Smith Avenue.

[19]     Frankly,  your  explanation  for  obtaining  the  wrench  in  that  way  was inherently implausible.   I am satisfied beyond reasonable doubt that you obtained your own wrench from your home before departing to Mr Naea’s property.

[20]     The jury accepted that the Crown had excluded the reasonable possibility of provocation and found you guilty of murder.  I agree with the jury’s conclusion that provocation, in a legal sense, did not exist.

[21]     While Mr Naea’s death undoubtedly arose from what you had seen happen to your friends that night, I do not find that you were provoked in a legal sense in the killing occurring.  What occurred was more deliberate than that.  What occurred was in the nature of exacting retribution for what had happened to your friends.

[22]     You got a wrench.  The fact that you went and got the wrench shows that you intended to inflict very serious harm upon Mr Naea, from the time you left  the intersection.  There was no point in having the wrench with you unless that were the intention.  Yet, you went and got it.

[23]     I am satisfied that you calmly walked along Norrie Smith Avenue on the opposite side of the road to the house occupied by Mr Naea.  You had a bottle in one hand and you were concealing the wrench from view.  I am satisfied of those things from the evidence of bystanders who saw you walking along Norrie Smith Avenue,

across the road from Mr Naea, who was making his way home in a drunken state, something you must have observed.

[24]     After Mr Naea entered his home you followed him.   The bottle was placed near the doorway of the home.   Lio Naea was slouched on the bed in the lounge, smoking.   You had formed the view that he was responsible for telling George of what had occurred the previous night and was, therefore, to blame for the serious injuries inflicted on your friends.

[25]     In my view, without giving him any opportunity to defend himself, you hit him on the jaw area with the wrench.   It is clear from the positioning of the body when found; his legs were open [and one was] on the table in front of him as he lay slouched on the bed and the cigarette remained in his hand.   Having hit Mr Naea three times in the area of the jaw, partially removing part of the jaw, you went to the kitchen and, calmly and deliberately, obtained a knife, returning to stab Mr Naea four times in the neck, three times in the chest and a number of other times in the general trunk area.  Indeed, you left the knife protruding from Mr Naea’s chest from the fatal wound.

[26]     Having killed Mr Naea in that way, you put the wrench into the toilet bowl. You then walked past the body through the front door, having the presence of mind to pause and pick up the bottle you had left there.  You then walked down the road, engaging in conversation with neighbours standing nearby.

[27]     I accept that you said words to the neighbours which may have indicated responsibility for what occurred at that time.   However, later you had your hair shaven to change your appearance, you ensured your clothes were washed and, in speaking to the Police, you denied your involvement in the crime for some time before finally admitting involvement when it was clear the Police had sufficient evidence to charge you with the crime.

[28]     In my view, at the time you left the intersection with the wrench, you either had an intent to kill or an intent to do grievous bodily harm to Mr Naea.  That is clear from the fact you had the wrench with you.  I am prepared to accept, in your favour,

that the intention you had when you left the intersection was to do grievous bodily harm, but I doubt whether you were really caring as to what the consequences of your actions would be.

[29]     Nevertheless, at the time you finished hitting Mr Naea with the wrench it is clear that you formed an actual intent to kill.   There was no reason to go to the kitchen to get a knife and to stab Mr Naea so many times had you not had that actual intent to kill.  That is the basis on which I will be sentencing you.

Analysis

[30]     The general rule is that a person convicted of murder will be subject to a minimum term of imprisonment of 10 years.1    In certain circumstances, prescribed by law, the Court is required to impose a minimum term of at least 17 years unless satisfied it would be manifestly unjust to do so.2    The first question to determine is whether there are circumstances bringing this case within the category of case in which a minimum term of at least 17 years should be imposed.

[31]     We have an unprovoked attack on Mr Naea with an intent to do grievous bodily harm, at least at the time you gained the wrench, and an actual intent to kill at the time you administered the fatal stab wound.

[32]     The murder involved calculated behaviour, certainly from the point at which you formed an intent to cause grievous bodily harm and even more so at the time you decided to go to the kitchen to get the knife to finish him off.   That should be balanced, however, as Mr Tucker says, against the limited period of time that had expired between seeing your friends in the position in which they fell and the time at which Mr Naea died.  There was time for you to stew or time for you to reflect on what you intended to do.

1 Sentencing Act 2002, s 103

2 Sentencing Act 2002, s 104.  See also R v Williams [2005] 2 NZLR 506 (CA) at [52]-[54] and R v

Paul CA496/05, 1 August 2006 at [23], [27]-[30]

[33]     The murder involved unlawful entry into Mr Naea’s dwelling  While you and your friends had a limited licence to go to his home to drink or to socialise, that was not the purpose of your visit.  You went there either to do him grievous bodily harm or to kill him.  That was not a purpose for which you were allowed on his property. Nobody has a licence to go onto someone’s property to assault them in that way and certainly not to kill.

[34]     The murder was one which was brutal and  it  did have a high degree of callousness, in particular, from the point at which the knife was obtained to stab and finish off Mr Naea.

[35]     While Mr Naea was vulnerable given his drunken state and position on the bed in the lounge at the time you confronted him the vulnerability was probably not sufficient to bring the case within the most serious of its type on that ground alone.

[36]     Further, there may be nice arguments as Mr Tucker has put forward, for the proposition that the murder was not sufficiently brutal or callous.  That is a fine line. But the unlawful entry into Mr Naea’s dwelling, coupled with the aggravating circumstances, certainly brings it within that most serious category in my view.

[37]     I must consider the aggravating and mitigating factors to assess your degree of culpability against what is called “the standard range of murders”.

[38]     The concept of a “standard range of murders” is incredibly difficult to apply in practice as a sentencing Judge.   All murders are serious.   All murders involve varying degrees of brutality and callousness.   All murders involve the deliberate taking of another’s life.  The sanctity of life is one of the most fundamental values in our society.    However,  it  is  only  those  murders  which  contain  sufficiently  bad aggravating factors that can justify imposition of a minimum term of imprisonment of at least 17 years.

[39]     On that step of the inquiry, I am satisfied that the unlawful entry into Mr Naea’s home, coupled with the brutality and callousness demonstrated, is sufficient to engage the provision requiring a minimum sentence of 17 years.

[40]     The next step is to determine whether, notwithstanding that finding, it would be manifestly unjust to impose it.   In that context I need to consider  mitigating factors advanced by Mr Tucker.

[41]     You  were  19  years  old  at  the  time  this  crime  was  committed.    While ordinarily the Court is required to have regard to relative youth, it is clear from appellate decisions by which I am bound,3 that age alone will not avoid the consequences of the 17 year minimum term.

[42]     So far as remorse is concerned, and your admitting of the killing, my view is that remorse was more for the predicament in which you found yourself than for Mr Naea’s death.  That is amply established by the fact that you took so long to admit the killing to the Police, I think at the end of the interview it was reasonably plain that you were feeling sorry for yourself rather than for Mr Naea’s death.

[43]     While there was a degree of provocation involved, and the proximity in time between seeing your friends on the street and killing Mr Naea was relatively short, those factors are not sufficient, in my view, to overcome the presumptive position of a 17 year period minimum term.

[44]     The Court of Appeal has made it clear that the period of 17 years is itself required by the Act and strong reasons must be found to bring the case within the terms of the manifest injustice provision.  I do not find that those are made out.

Result

[45]   For those reasons I have given, Mr Tuporo, you are sentenced to life imprisonment with a minimum term of imprisonment of 17 years.

[46]     Stand down.

P R Heath J

3 eg R v Slade [2005] 2 NZLR 526 (CA)