Te Tomo v The King
[2025] NZCA 295
•3 July 2025 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA455/2016 |
| BETWEEN | TYSON‑TAINUI RUKUWAI TE TOMO |
| AND | THE KING |
| Hearing: | 13 May 2025 |
Court: | Woolford, Jagose and Powell JJ |
Counsel: | S K Green for Appellant |
Judgment: | 3 July 2025 at 11 am |
JUDGMENT OF THE COURT
A The application to admit further evidence on appeal is declined.
B The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Powell J)
Introduction
Following a jury trial in 2015 before Hinton J, Tyson‑Tainui Rukuwai Te Tomo was convicted of murder. He was subsequently sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 10 years and six months.[1]
[1]R v Te Tomo [2015] NZHC 2671 [sentencing notes].
Mr Te Tomo filed a notice of appeal against conviction and sentence on 30 July 2016, some nine months out of time. The Court accepted Mr Te Tomo’s explanation for the delay in filing the appeal, but in 2017 dismissed his appeal against conviction (the conviction appeal judgment).[2] For reasons that are not clear, the sentence appeal was not dealt with at that time. Instead, no steps appear to have been taken to advance the appeal against sentence until March 2024 and no explanation has been given for that delay.
[2]Te Tomo v R [2017] NZCA 338 [conviction appeal judgment].
Mr Te Tomo has now brought the sentence appeal on for hearing. No issue arises with regard to the late filing of the appeal,[3] although Mr Te Tomo seeks leave to adduce fresh evidence by way of affidavits from both himself and Dr Erin Eggleston, a neuropsychologist. This application is opposed by the Crown on the basis the evidence sought to be adduced is neither fresh nor cogent.
[3]Consistent with the conviction appeal judgment, in a minute dated 19 February 2025 Thomas J determined an application for leave to appeal out of time did not need to be dealt with.
With regard to the substance of the appeal, Mr Te Tomo contends his sentence of life imprisonment and MPI was, and remains, manifestly excessive. He submits, with reference to authority decided subsequent to his sentencing,[4] that having regard to the circumstances of the offending (in particular a lack of culpability on his part), and his personal circumstances (his youth, background and cognitive issues), a sentence of life imprisonment was manifestly unjust in terms of s 102(1) of the Sentencing Act 2002.
[4]R v D [2024] NZHC 2118; Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405; and Kriel v R [2024] NZCA 45.
Opposing the appeal, the Crown position is that although it was not brought late, the delay in bringing the appeal against sentence to hearing raises issues of finality and in particular “the interests of victims … witnesses, and the integrity of the court’s processes which are put at risk if appeals are allowed to be reactivated after years of delay”.[5] The Crown contends that none of the issues now raised on behalf of Mr Te Tomo have substance, and are not sufficient to displace the statutory presumption in favour of life imprisonment.
[5]Marteley v R [2021] NZCA 636 at [37(b)].
Mr Te Tomo’s appeal must be allowed if his sentence was imposed in error and a different sentence should be imposed.[6] Whether the end sentence is “manifestly excessive” is a useful guide in determining the significance of the error and whether a different sentence should be imposed.[7]
The offending and the sentence
[6]Criminal Procedure Act 2011, s 250(2).
[7]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36].
The conviction appeal judgment summarised the offending as follows:[8]
[8]Conviction appeal judgment, above n 2 (alteration of quotes as in judgment). Note this is based on Mr Te Tomo’s own account of the offending.
[3] In the late afternoon of 20 February 2015 the 17‑year‑old Mr Te Tomo and his associate, Mr Williams, were at an address in Hamilton. The victim Mr Thompson, then in his late 20s, and his friend, Mr Apanui, were visiting the next‑door property. Mr Te Tomo and Mr Williams were affiliated to the Mongrel Mob gang, Mr Thompson and Mr Apanui to the Black Power gang.
[4] We take the narrative that follows from Mr Te Tomo’s evidence. Mr Te Tomo was inside his home packing to go to a tangi when he looked out the window and saw Mr Williams talking to Mr Thompson and Mr Apanui. He heard yelling and went outside. Mr Apanui and Mr Thompson were sitting in Mr Apanui’s car. Mr Te Tomo saw Mr Thompson trying to reach out, grab and punch Mr Williams. The car window smashed, and Mr Apanui and Mr Thompson jumped out of the car. Mr Thompson was aggressive, saying “You fucking smash my window you cunt, now you’re going to get it”. Mr Te Tomo saw that both men were very big in their build and older than he and his friend Mr Williams. Because the men were screaming that they were going to “fuck us up”, Mr Te Tomo thought he would go inside and get a weapon to try and scare them off.
[5] Mr Te Tomo went back inside and grabbed Mr Williams’ unloaded sawn‑off slug gun. He took it outside intending to use it to chase the two men off the property. He said “I actually thought in my head that maybe [Mr Thompson] would, he would you know just get in his car and go. We were only fuckin little kids, what are they doing?” Mr Te Tomo pulled his bandanna up over his lip to make himself look more intimidating and less boyish. He shouted at the men that they had to go, trying to do so in an intimidating manner. Mr Thompson responded “[f]ucking shoot me? You haven’t got the balls.” Mr Te Tomo approached Mr Thompson and tried to poke him with the gun. Mr Thompson grabbed the unloaded gun, pointed it at Mr Te Tomo and pulled the trigger. There is no suggestion that Mr Thompson knew it was unloaded. Mr Te Tomo says he was very scared at this time.
[6] At that point Mr Te Tomo and Mr Williams ran back inside the house. As they entered the house they turned into Mr Williams’ bedroom and grabbed a ceremonial sword each.
[7] Mr Thompson followed them a few steps into the house. When the young men told him there were kids in the house, Mr Thompson said he didn’t care and said “I’ll fucking burn this house down with them in it”. Mr Te Tomo confirmed in evidence that by that time there were no children in the house, but that he was saying there were children to make the men go.
[8] At that point Mr Williams chased Mr Thompson outside, threatening him with a sword. Both Mr Williams and Mr Te Tomo followed Mr Thompson out of the house. Mr Williams tried to scare Mr Thompson by swinging his sword, but Mr Thompson took the sword off him. Mr Te Tomo then dropped his sword, and both men again went back inside the house. When Mr Te Tomo got into the house he locked the door. He heard something big hit the door. He observed that Mr Williams was bleeding out of his head and that he looked dazed and sleepy.
[9] Mr Te Tomo’s female friend, Fairlaine, told him that Mr Apanui was on the phone. Mr Thompson was also shouting “[f]ucking the Blacks are on their way”. Mr Te Tomo put these things together and concluded Mr Apanui had called for reinforcements from the Black Power gang.
[10] Another female friend, Raewyn, was outside trying to get Mr Thompson and Mr Apanui to move back, yelling at them to “fuck off”. Mr Te Tomo looked out the window and thought the men looked like they wanted to hit her. He said the men were smashing up their cars and yelling out “all this shit”.
[11] At this point Mr Williams walked back out of the house. Mr Te Tomo was worried about him and so went into Mr Williams’ bedroom and grabbed a gun from under his bed. This was a .22 calibre. He said that his intention was to try and get the driver, Mr Apanui, to his car, because if he was in the car “then [Mr Thompson] will jump in the car and then they’ll just leave”.
[12] Mr Te Tomo walked out of the house with the loaded gun and fired a shot into the air. Mr Apanui turned around and looked to Mr Thompson. Mr Te Tomo thought Mr Apanui looked surprised or shocked. The two men looked at Mr Te Tomo as if to say “[y]ou haven’t got the balls to shoot us”.
[13] Mr Te Tomo tried to reload the gun but the reloading mechanism was jammed. Mr Apanui could see he was having trouble with the gun and he started to chase Mr Te Tomo. Mr Te Tomo ran back inside. Mr Apanui stopped well short of the door. This is evident from the fact that when Mr Te Tomo reached the inside and turned around there was no one there.
[14] When back inside Mr Te Tomo reloaded the gun and then ran outside again. No one was being beaten up or hit with anything, but Mr Te Tomo was thinking “[f]uck, I would, um, [Mr Thompson’s] the ringleader and if I get him in the car then, then they’re all going to go”. He said that he walked back outside with the firearm carried at chest level. Mr Thompson was on the street edge of the section behind a large power box.
[15] As he was walking towards Mr Thompson, Mr Te Tomo was telling him to “fuck off, get, get back in the car”. Mr Thompson was still verbally challenging Mr Te Tomo, although he was shielding himself behind the power box. Mr Te Tomo was walking with his finger on the trigger but had no intention to pull it. The gun just went off and Mr Thompson collapsed. At that point Mr Te Tomo ran back inside the house.
As the Court noted, the jury rejected Mr Te Tomo’s claim that the gun went off accidentally and he was found guilty of murder.[9] At sentencing, both counsel for the Crown and the defence accepted that there was nothing to displace the presumption of life imprisonment under s 102 of the Act.[10] Accordingly, Hinton J considered life imprisonment was not manifestly unjust, and that the main issue to be determined was the appropriate MPI.[11]
[9]Conviction appeal judgment, above n 2, at [30].
[10]Sentencing notes, above n 1, at [32] and [34].
[11]At [37]–[38].
Hinton J adopted a starting MPI of 12 years.[12] A discount of one and a half years was applied for Mr Te Tomo’s youth and background, having regard to the pre‑sentence report.[13] Hinton J did not consider Mr Te Tomo to be genuinely remorseful, and no discrete discount was given.[14] The end MPI was therefore 10 and a half years’ imprisonment.
The case for Mr Te Tomo
Circumstances of the offending
[12]At [43].
[13]At [44].
[14]At [46].
On behalf of Mr Te Tomo, Ms Green submitted there are a number of issues that lower Mr Te Tomo’s culpability such that life imprisonment is manifestly unjust:
(a)A power imbalance existed between Mr Te Tomo, and Mr Thompson and Mr Apanui. Mr Thompson and Mr Apanui were much older and physically larger than Mr Te Tomo, and both came onto the property together, and neither would leave.
(b)Mr Te Tomo did not plan to cause harm to Mr Thompson and Mr Apanui. He did not incite violence but was defending his friends. To that effect, he tried to warn Mr Thompson and Mr Apanui to leave the property three times, including by shooting the rifle into the air. Two of these attempts lead to Mr Te Tomo being disarmed by Mr Thompson and Mr Apanui.
Overall, Ms Green submitted Mr Te Tomo did not target a vulnerable victim and his offending was not a “wanton exercise of brutality”. Instead, she submitted Mr Te Tomo’s offending as simply a “wrong decision” — characteristic of the decisions youth offenders are likely to make.
In contrast Ms Green submitted Mr Te Tomo was significantly less culpable than various specified offenders in the decisions of R v D, Dickey v R, and Kriel v R, of which six of the convicted murderers noted did not receive a sentence of life imprisonment:[15]
(a)In R v D, the defendants followed and then collided with the victim’s vehicle, before stabbing the victim while he was seated in the drivers’ seat.[16] The 17‑year‑old principal offender was sentenced to 20 years and 10 months’ imprisonment, with an MPI of 10 years, while his brother, a 14‑year‑old, was sentenced to 14 years and five months’ imprisonment, with an MPI of six years.[17]
(b)In Dickey, one of three appellants, received a finite sentence of 15 years,[18] with an MPI of seven and a half years,[19] for luring and restraining the victim where he was stabbed by one of the other appellants.[20]
(c)In Kriel, Mr Kriel’s offending was described as “wicked and callous”.[21] The offender punched the victim in the head, attempted to strangle her, removed her clothing and then lay her face down in a stream where she died.[22] This Court declined Mr Kriel’s application for leave to appeal his sentence out of time because it was not manifestly unjust to impose a sentence of life imprisonment with an MPI of 11 and a half years.[23]
[15]R v D, above n 4, at [60]–[61]; Dickey v R, above n 4, at [253]–[255]; Kriel v R, above n 4, at [121]–[122]; and Lo v R [2024] NZCA 359 at [58]–[59].
[16]R v D, above n 4, at [5]–[12].
[17]At [60]–[61].
[18]Dickey v R, above n 4, at [211].
[19]At [215].
[20]At [8]–[18].
[21]Kriel v R, above n 4, at [106(a)], quoting R v Kriel HC Whangārei CRI-2008-027-2728, 23 March 2010 at [48].
[22]Kriel v R, above n 4, at [7].
[23]At [106]–[107].
Overall, with regard to Mr Te Tomo’s culpability for the murder, Ms Green submitted it was much less than those youths who had their sentences reduced to a finite term.
Personal circumstances of Mr Te Tomo
Ms Green submitted that Mr Te Tomo’s personal circumstances share the hallmarks of youth offenders who have subsequently received finite sentences.
Ms Green began by highlighting the findings in Mr Te Tomo’s pre‑sentence report, prepared in 2015. Although critical of the brevity of that report, Ms Green noted that it shows “an adolescent who has some insight into his upbringing and how this may have contributed to his offending”. It recorded in particular Mr Te Tomo’s:
(a)childhood in a family with gang affiliations;
(b)desire to distance himself from his gang associations and have his gang‑related facial tattoo removed as soon as possible; and
(c)regret at not having taken family advice not to involve himself in the gang.
Ms Green likewise relied upon Dr Eggleston’s 2024 neuropsychology assessment, which recorded Mr Te Tomo’s background as having involved:
(a)living on the streets on occasion; and
(b)growing up with alcohol, cannabis and a party environment, with daily use of cannabis from the age of seven.
Ms Green also submitted this report showed Mr Te Tomo suffered from three neurological or psychological deficits, namely an IQ in the very low range, untreated head trauma following an incident shortly before the murder, and a likely diagnosis of attention deficit hyperactivity disorder (ADHD).
Ms Green likewise observed Mr Te Tomo reported he has suffered hits to the head since he has been in prison which have not been treated, although conceding that Dr Eggleston’s opinion was that they appear not to have resulted in lasting cognitive impairments or any severe disorder.
Overall, with regard to Mr Te Tomo’s circumstances, Ms Green accepted that these were not unique but nonetheless submitted:
… he shares many similar factors with the other appellants or youths: an upbringing of moderate neglect, substance abuse about him and imbibed by him from a young age, a resultant psychological deficit which more than likely had an effect on his decision‑making given his adolescent development coupled with his deficits opined by Dr Eggleston.
Discussion
As Ms Green submitted, since Mr Te Tomo’s sentencing, this Court issued its decision in Dickey v R, which directs that when sentencing a young person for murder, the court must assess whether a sentence of life imprisonment would be manifestly unjust:[24]
… we think it is no longer correct to say, as the Court did in Rapira, that youth can carry little weight when balanced against the public interest in denunciation and accountability. The seriousness and culpability of the offending remain centrally important. It also remains generally true to say that youth alone is not enough to establish manifest injustice. However, young persons may present with a combination of mitigating circumstances relevant to the offending and personal mitigating factors which together are capable of establishing manifest injustice. For these reasons, we accept the Crown’s submission that when sentencing a young person for murder a court must always undertake a s 102 analysis, giving careful consideration to whether life imprisonment is manifestly unjust.
[24]Dickey, above n 4, at [177] (footnote omitted).
The court must assess the gravity of the offending and culpability of the offender, followed by the personal aggravating and mitigating factors.[25]
[25]At [195].
Having considered the submissions advanced on behalf of Mr Te Tomo we are satisfied that there is nothing in the circumstances of the offending or Mr Te Tomo’s personal circumstances that makes the life sentence imposed on Mr Te Tomo manifestly unjust.
As Ms Hoskin pointed out on behalf of the Crown, it remains the position that youth alone does not establish manifest injustice,[26] rather, the offenders not sentenced to life imprisonment in the recent cases relied upon by Ms Green have been able to point to a combination of factors that reduced their culpability.[27]
[26]At [177].
[27]Kriel v R, above n 4, at [104].
In this case we do not accept Ms Green’s submission that any of the matters identified in relation to the offending in any way reduced Mr Te Tomo’s culpability. On the contrary we accept Ms Hoskin’s submission the circumstances of Mr Te Tomo’s offending simply do not support the “low culpability” characterisation advanced by Ms Green. They are inconsistent with the narrative previously set out by this Court in reliance on Mr Te Tomo’s evidence and, to that extent, as the account most favourable to Mr Te Tomo.[28] That narrative clearly demonstrates:
(a)Throughout, it was Mr Te Tomo and his associate Mr Williams who initiated the violence against Mr Thompson and Mr Apanui. As this Court confirmed, apart from one minor incursion, Mr Thompson and Mr Apanui made no effort to enter the house, which was a safe haven for Mr Te Tomo and Mr Williams.[29]
(b)On three separate occasions Mr Te Tomo chose to arm himself with a weapon which he attempted to use to confront Mr Thompson and Mr Apanui. First an unloaded slug gun, followed by a sword, and having been disarmed of those, a loaded rifle.[30]
(c)Having gone outside and fired the rifle into the air to warn off or scare Mr Thompson and Mr Apanui, Mr Te Tomo went back into the house where he deliberately reloaded the rifle before returning outside and advanced on Mr Thompson.[31]
(d)As this Court found, as Mr Te Tomo advanced on Mr Thompson there was no imminent threat to any of Mr Te Tomo’s friends, and no one was being “beaten up or hit”. [32] He was being told not to shoot;[33] and the only fear expressed by Mr Te Tomo was that if Mr Thomson or Mr Apanui got hold of his gun, it could be used against him.[34]
(e)At the time he was shot Mr Thompson was shielding himself behind a power box.[35] He was unarmed, neither advancing on Mr Te Tomo nor issuing any threats against him. Instead it was Mr Te Tomo who closed in towards Mr Thompson and fired at a range of approximately 3 metres.[36]
[28]Conviction appeal judgment, above n 2, at [4] and [31].
[29]At [31].
[30]At [5]–[6], [8] and [11].
[31]At [12]–[15].
[32]At [32].
[33]Sentencing notes, above n 1, at [7].
[34]Conviction appeal judgment, above n 2, at [34].
[35]At [32].
[36]Sentencing notes, above n 1, at [7].
There can be no doubt that Mr Te Tomo was solely responsible for the death of Mr Thompson. As Ms Hoskin submitted, far from being impulsive and spontaneous, his actions demonstrated a significant degree of deliberation, persistence, and commitment on his part.
We also accept Ms Hoskin’s submission that the absence of premeditation, victim vulnerability, and callousness does not reduce Mr Te Tomo’s level of culpability, but explains why s 104 of the Act was not engaged in this case.
We are likewise satisfied that nothing in Mr Te Tomo’s personal circumstances changes the position. As Ms Green herself submitted, Mr Te Tomo’s background is perhaps best categorised as “an upbringing of moderate neglect”. It is clear that the additional evidence sought to be filed by Mr Te Tomo does not raise anything of substance with regard to Mr Te Tomo’s background that was not already before Hinton J and taken into account at sentencing.
Similarly, and contrary to Ms Green’s submissions, Dr Eggleston’s assessment does not confirm any neurological deficits. Although Dr Eggleston found Mr Te Tomo had a very low IQ of between 72 and 81, he considered the validity of data suggested that Mr Te Tomo’s IQ likely sits at the higher end of that range. More broadly, he found no evidence of cognitive impairment and concluded Mr Te Tomo was able to reason, reflect and explain his circumstances well. There was likewise no formal diagnosis of ADHD as this was not able to be tested, albeit Dr Eggleston suggested it was likely present. In any event, none of the matters identified provide any basis for suggesting the presumption of a life sentence should have been displaced in the circumstances of this case.
There is simply no evidence before the Court that suggests that the sentence of life imprisonment was manifestly unjust for Mr Te Tomo. Instead, and as Ms Hoskin noted, Mr Te Tomo has now nearly served his MPI without any apparent difficulty deriving from the personal circumstances on which his arguments rely. It is likewise difficult to see that the other consequences of a life sentence — the possibility of recall and lifetime parole conditions — result in a manifestly excessive sentence, given recall is not ordered unless necessary,[37] and he may apply to vary or discharge those conditions in the future.[38]
[37]Dickey v R, above n 4, at [190].
[38]Parole Act 2002, s 56.
It follows that the cases relied upon by Ms Green do not support her proposition that there was an error in the sentence imposed on Mr Te Tomo. In fact, each of the cases referred to is clearly distinguishable to the present case. The offending in R v D was, as the sentencing Judge noted, clearly more impulsive and characteristic of teenagers than Mr Te Tomo’s offending,[39] which steadily escalated over time as he returned to the house to obtain further weapons or to deliberately reload.
[39]R v D, above n 4, at [27]–[30].
Likewise, Ms Dickey, while playing a significant role in the murder for which she was convicted, was not the principal offender,[40] as was also the case with Mr Lo, a youth offender who had his life sentence reduced to a finite sentence on appeal.[41] In contrast and as noted, Mr Te Tomo was solely responsible for the death of Mr Thompson.
[40]Dickey v R, above n 4, at [16]–[17] and [202].
[41]Kriel v R, above n 4, at [112]–[116]; and Lo v R, above n 15, at [49]–[50] and [59].
As Ms Hoskin noted in a case where life imprisonment was found to be manifestly unjust for a principal offender that too was readily distinguishable from the present case. The offender in M (CA434/2022) v R was significantly younger than Mr Te Tomo at the time of the offending (14, compared to Mr Te Tomo’s 17 years), and relied on a much more substantial evidential foundation to establish that life imprisonment would be manifestly unjust in that case.[42]
[42]M (CA434/2022) v R [2023] NZCA 319 at [94]–[107].
We also observe that although there are clearly cases where the offending by a youth offender is more serious than the present case, as with Mr Kriel, this is not the test in s 102. On the contrary, s 102 requires the imposition of life imprisonment for murder unless it is manifestly unjust, with any differences in the degree of seriousness to be addressed through adjustment of the MPI.
Taken together, we are satisfied there is simply no basis for concluding that the imposition of life imprisonment for Mr Te Tomo and the resulting MPI was manifestly unjust. Likewise, it did not result in a sentence that was manifestly excessive. Instead we accept Ms Hoskin’s submission that Mr Te Tomo’s sentence is consistent with both the law at the time of sentencing and the law today. As a result, the appeal must be dismissed.
Although we have considered the additional evidence in the course of our analysis, it will be apparent that we accept Ms Hoskin’s submission that neither the affidavit of Mr Te Tomo nor the report or affidavit of Dr Eggleston are either sufficiently fresh or cogent to be admitted. The application to adduce further evidence is therefore appropriately declined.
Result
The application to adduce further evidence is declined.
The appeal against sentence is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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