R v Tuwhangai HC Hamilton CRI 2007-019-19

[2007] NZHC 2125

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-019-19

THE QUEEN

v

PERRY WILLIAM TUWHANGAI

Hearing:         24 September 2007

Appearances: R G Douch for Crown

R Laybourn & K W Burroughs for Prisoner

Judgment:      24 September 2007

SENTENCING NOTES OF RANDERSON J

Solicitors:           Almao Douch, PO Box 19173, Hamilton

R Laybourn, PO Box 936, Hamilton

K Burroughs, PO Box 19307, Hamilton

R V TUWHANGAI HC HAM CRI 2007-019-19  24 September 2007

Introduction

[1]      Mr Tuwhangai, you are appearing for sentence having pleaded guilty this morning to one count of murder.  The penalty for murder is life imprisonment unless that would be manifestly unjust in the circumstances.  It has not been suggested that anything other than life imprisonment is appropriate here.

The Facts

[2]        The facts have been read to the Court this morning by Mr Douch but it is necessary I should repeat them.

[3]      On the evening of 31 December 2006 a large number of people had gathered at Kawhia to celebrate the new year.  Kawhia did not at that time have a liquor ban in place due to the good record of well-behaved crowds as a general rule.

[4]      You had travelled from your home in Te Kuiti and spent the night celebrating with family and friends.  Over the evening you consumed a quantity of alcohol.

[5]      The deceased, Gareth Te Huia, also travelled to Kawhia from his home to spend the new year with family and friends.

[6]      Regrettably, during the course of the evening the consumption of alcohol had the unfortunate adverse affect of leading a number of the young persons present to engage in violence with the result that police on duty began to disperse the crowds gathered around the centre of the township.  Large numbers of persons then went to private addresses where the celebrations continued.

[7]      One such address was a dwelling house in Apakura Street where numerous people gathered including yourself and Mr Te Huia.  At this party you spent most of the time in your motor vehicle drinking.  You were visited there from time to time by two of your nieces (then aged 15 and 16 years).

[8]      At around 5.00 am Mr Te Huia walked past your vehicle in the company of your 16 year old niece.   You took exception to this and began banging on the window of the car shouting at him using offensive and confrontational language. You got out of your motor vehicle and confronted Mr Te Huia.  A short altercation followed in which Mr Te Huia received a number of blows to the head which did not appear to have any impact on him.

[9]      You then returned to your motor vehicle and despite efforts to stop you by your 15 year old niece (who was in your vehicle at the time), you took possession of a knife from the back of the car and returned to the area across the road where Mr Te Huia then was.  A second physical confrontation followed during which you stabbed Mr Te Huia several times.

[10]     One stab wound proved to be fatal.   This was a deep penetrating wound which entered in the region of the left collarbone and extended down to the left chest cavity where it perforated the chest wall with a consequent collapse of the left lung and then entered into the base of the left subclavian artery.  The latter injury resulted in Mr Te Huia rapidly bleeding to death.

[11]     You then left the area in your motor vehicle having made further threats towards the now prone deceased.  Friends of Mr Te Huia who were present, had to move his body to avoid the possibility of him being struck by the motor vehicle driven by you.

[12]     You were stopped between Kawhia and Te Kuiti by police.  You were found to have a large amount of blood on your clothing and the blood-stained knife you had used to stab Mr Te Huia was located in the vehicle.   When interviewed you acknowledged having been in a confrontation with a person who you did not recognise but alleged you could not remember stabbing anyone.

Pre-sentence Report

[13]     Normally for a sentencing involving the prospect of imprisonment a pre- sentence report would be obtained.  In this case, both counsel have asked for you to

be sentenced today and Mr Laybourn, on your behalf, has advised the Court that you have waived the need for a pre-sentence report.

[14]     A list of criminal convictions has been placed before the Court.   None of these is relevant to your sentencing today and I disregard any previous convictions for sentencing purposes.

[15]     You are 42 years of age.

Victim Impact Statements

[16]     Victim impact statements have been received and read by the Court.   The first is from the father of the deceased.  It is brief.  He regards the matter as having been finished when he buried his son, but it is quite obvious to me from what his daughter Vicky has had to say, that he is still feeling the effects of the loss of his son which would be entirely understandable, especially at the hands of someone who he regarded as his friend.

[17]     His daughter Vicky has also provided a victim impact statement and Mr Laybourn has informed the Court that several of the deceased’s brothers are also present here today.

[18]     Vicky (a sister of the deceased) says that he had been staying with her at the time of his death.  She has several children of her own and the deceased had been involved in raising them and assisted his sister to do so.   Plainly the death of the deceased has had a substantial impact both on Vicky and on her daughter who she says still asks about her uncle Gareth.   It has led (in Vicky’s case) to a degree of depression and she says she has had to carry the burden of responsibility on behalf of the whanau for the death of her brother.

[19]     She says, again understandably, this sort of thing does not go away.   The mental and psychological effects of your actions on the deceased’s family are likely to be ongoing.  That is something you will need to dwell upon during the term of imprisonment that will be imposed.

[20]     It  seems  now  that  Vicky is  accommodating her  father  and  that  tends  to support her statement that she has had to take a great deal of the burden for what you have done.

Submissions

[21]     The  Crown  submits  this  is  not  a  case  where  the  Court  should  consider imposing a minimum period of imprisonment under s 104 Sentencing Act.  In that section under certain circumstances, the Court must impose a minimum period of imprisonment of at least 17 years unless satisfied it would be manifestly unjust to do so.  I agree with the Crown’s assessment that s 104 has no application in your case. The Crown instead submits, in accordance with s 103 Sentencing Act, that a minimum period of imprisonment of 10 years is appropriate.

[22]     On your behalf Mr Laybourn has responsibly accepted that assessment.  He has emphasised that you have taken responsibility for this death by your guilty plea and you are entitled to credit for that.  He says that you have accepted responsibility for what you have done.  Mr Laybourn has informed the Court that while you did not intend to kill the deceased, you have accepted counsel’s advice that your actions amounted  to  recklessness  in  terms  of  ss  167(b)  Crimes  Act,  and  that  you  are therefore guilty of murder.

[23]     Mr Laybourn correctly described this event as tragic for the deceased and for yourself.   It does seem, as Mr Laybourn has submitted, that this incident is an inexplicable occurrence.   You have, according to what Mr Laybourn told me (supported by a reference produced this morning) generally been a quiet, humble and caring person.  I accept Mr Laybourn’s submission that these events happened in a flash but, as he says, they had enduring consequences.

[24]     Through Mr Laybourn you have expressed your deep remorse not only to the whanau of Mr Te Huia but also to your whanau who you have let down badly on this occasion but who, it seems, are still supportive of you and that is to their credit.

Assessment

[25]     In  approaching  your  sentencing  Mr  Tuwhangai,  the  starting  point  is  to consider the purposes of sentencing: s 7 Sentencing Act.  The relevant purposes in your case include holding you accountable for the harm done to the victim and the community by your offending, promoting a sense of responsibility in you for the harm you have caused, denouncing your conduct, deterring you and others from committing the same or a similar offence, protecting the community and assisting in your rehabilitation.

[26]     I am also required to have regard to the principles of sentencing and all relevant aggravating and mitigating factors: ss 8 and 9 of the Act.   For murder sentences, particular provisions apply.  Both counsel have accepted that a sentence of life imprisonment is inevitable and that the minimum term of 10 years imprisonment under s 103 is appropriate.  In my view, a longer term is not necessary to satisfy any of the purposes in s 103(2).  There is nothing in the circumstances of this case to take it outside the all too common pattern of murders arising from the consumption of alcohol and drugs. You are entitled to call upon your previous good record and your guilty plea in mitigation.

[27]     This is a case involving a tragic and senseless loss of life.  Fuelled by alcohol and drugs you launched a vicious attack on the deceased with a knife.  It was a gross over-reaction to a situation that was well capable of being resolved by peaceful means.  But for your excessive consumption of alcohol and drugs, I have no doubt the deceased would still be alive today and you would not be facing the lengthy term of imprisonment which must be imposed.

[28]     You   are   sentenced   to   life   imprisonment   with   a   minimum   term   of imprisonment of 10 years.  Stand down please.

A P Randerson, J Chief High Court Judge