The King v Teretere Raiha Te Aroha Taniwha
[2023] NZHC 2923
•18 October 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-5021
[2023] NZHC 2923
THE KING v
TERETERE RAIHA TE AROHA TANIWHA
Hearing: 18 October 2023 Appearances:
D McWilliam for the Crown
G Walsh and M James for the Defendant
Judgment:
18 October 2023
SENTENCING NOTES OF POWELL J
This judgment was delivered by me on 18 October 2023 at 4.00 pm
…………………..
Registrar/Deputy Registrar
Solicitors:
Crown Law, Hamilton
Counsel:
T Walsh
R v TERETERE RAIHA TE AROHA TANIWHA [2023] NZHC 2923 [18 October 2023]
[1] Teretere Taniwha, you come up for sentence today having pleaded guilty to four charges arising out of your involvement in offending that occurred in March 2020.
[2]You have pleaded guilty to:
(a)Wounding with intent to cause grievous bodily harm;1
(b)Unlawful detention;2
(c)Injuring with intent to cause grievous bodily harm;3 and
(d)Accessory after the fact to murder.4
The offending
[3] For the purposes of this sentencing, I rely on the summary of facts dated 1 May 2023, which you have accepted.
[4] The background to your offending begins with a party on New Year’s Eve 2019. This took place in Hamilton at the home of Christopher Matatahi, a member of the Black Power. You went to the party with your half-sister Mihingarangi Rameka, who took with her to the party a bag of what she believed was MDMA or ecstasy.
[5] It was not: it was contaminated and appears to have contained traces of heroin. As you know Mr Matatahi took some and died. Four other people who ingested the substance at the party were taken to hospital. Following Mr Matatahi’s death, one of his friends, Daniel Payne, became determined to identify who had supplied the substance to Ms Rameka, and obtain retribution against those he considered responsible.
[6] The charges on which you are being sentenced today are the result of the actions that you and others took against those who you felt to be responsible.
1 Crimes Act 1961, ss 66(1) and 188(1). Maximum penalty: 14 years’ imprisonment.
2 Crimes Act 1961, ss 66(2) and 209(b). Maximum penalty: 14 years’ imprisonment.
3 Crimes Act 1961, ss 66(1) and 189(1). Maximum penalty: 10 years’ imprisonment.
4 Crimes Act 1961, s 176. Maximum penalty: 7 years’ imprisonment.
[7] The first incident involved Dean Mihinui, a member of the Hamilton Mongrel Mob.
[8] On 2 March 2020, Mr Mihinui, another man, Sao Yean, and a third person were chased by two vehicles and Ms Taniwha, you were one of those travelling in the pursuing vehicles.
[9] Mr Mihinui’s vehicle was forced off the road and stopped. Mr Mihinui was taken out of his car and forced into one of the other vehicles.
[10] You and your associates took Mr Mihinui back to your home in Hamilton where you and Ms Rameka assaulted him. At one point during the assault, either you or Ms Rameka used a baseball bat to strike Mr Mihinui on his right arm, resulting in a closed fracture which required surgery to repair. For the assault on Mr Mihinui you have pleaded guilty to injuring with intent to cause grievous bodily harm.
[11] The charges of unlawful detention and wounding with intent to cause grievous bodily harm arise from offending that took place on 12 March 2020.
[12] This time the victim was Jesse Whitiora. On that day Mr Whitiora was taken by an associate to your home and subsequently held at the address against his will. He was then assaulted by Ms Rameka and another half-sibling of yours, Mr Kirkwood, both of whom have been charged and sentenced.5 You were present as Mr Whitiora was tasered, struck by a baseball bat and continually physically assaulted.
[13] The fourth and final charge arises in connection with the death of Mr Yean. Early on 13 March 2020, Mr Yean was murdered. Four of your associates, including Ms Rameka, have been sentenced to life imprisonment for the murder.6
[14] It was not suggested that you participated in the murder of Mr Yean. However, after Mr Yean was killed you assisted Ms Rameka to clean up and remove evidence at
5 R v Kirkwood [2021] NZHC 2202. Mr Kirkwood was sentenced to three years 11 months’ imprisonment.
6 R v Kirkwood, above; R v Rameka & ors [2023] NZHC 2420.
your home, including by removing blood-stained carpet from the garage where he was killed. As a result you have pleaded guilty to being an accessory after the fact.
Approach to sentencing
[15] Determining an appropriate sentence is a two-stage process.7 First, I must fix what is called the starting point this type of offending would attract. This involves identifying what we call the aggravating and mitigating features of your offending, that is the things that make your offending more or less serious, to enable me to arrive at an appropriate term of imprisonment. I must then decide whether the starting point should be adjusted for totality considerations so that your overall offending is in proportion to the term of imprisonment. I must then at the second stage take into account any of your personal circumstances that are relevant, including your guilty pleas. I must determine whether the starting point should be adjusted through any uplifts or discounts as a result of those personal circumstances to reach your end sentence.
[16] In sentencing you today, I must have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done,8 to denounce the conduct that you have been involved in,9 and to deter you and, importantly, others from committing similar offences in the future.10
[17] I must further consider the gravity of your offending and your degree of culpability, that is your responsibility for your offending and for the seriousness of that offending. In addition, and importantly, your sentence must be consistent with other similar sentences, including the sentences for those already sentenced for the same offending and I must impose the least restrictive sentence appropriate in the circumstances.
7 Moses v R [2020] NZCA 296.
8 Sentencing Act 2002, s 7(1)(a).
9 Section 7(1)(e).
10 Section 7(1)(f).
Assessing the starting point
[18] As I have noted, the first step in sentencing you today is setting the starting point for the sentence to be imposed. As you have heard counsel, the lawyers, agree that the lead offending is the charge of wounding with intent to cause grievous bodily harm, being the assault on Mr Whitiora on 12 March 2020. The starting point for this offending stands to be considered in the light of a case called R v Taueki.11 That case identifies a range of factors relevant to fixing the starting point for offending involving grievous bodily harm and establishes three bands of starting points based on the seriousness of that offending, and in particular, the number of aggravating factors.12
[19] In this case, Mr McWilliam, for the Crown, submits that the assault on Mr Whitiora involved premeditation, serious injury, including an attack on Mr Whitiora’s head, the presence of multiple attackers, the use of weapons and sustained violence while he was detained, which in Mr McWilliams submission, based on Taueki would result in a starting point of 8 years’ imprisonment.
[20] Mr McWilliam accepts, however, that the calculation of the starting point in this case is affected by the fact that one of your co-offenders, your half-brother Mr Kirkwood, has already been sentenced for the assault on Mr Whitiora.13 Mr Kirkwood’s starting point was seven years’ imprisonment and Mr McWilliam submits, therefore, that seven years would also be reasonable in your case, with an uplift of 12 to 18 months’ imprisonment for your other three offences.
[21] In his written submissions, Mr Walsh took a similar approach but submitted that you had a lesser role than Mr Kirkwood and as a result, your starting point for your part in the assault on Mr Whitiora should be between five and five and a half years before adding an uplift for your other offending.
11 R v Taueki [2005] 3 NZLR 372 (CA).
12 At [34].
13 R v Kirkwood, above n 5.
Discussion – Starting Point and Uplift
[22] In considering the submissions that counsel have made I begin by noting that the exact extent of your involvement in the assault on Mr Whitiora is not clear. The primary difference between you and Mr Kirkwood appears to be that Mr Kirkwood was seen to be holding a baseball bat, whereas you were not. Mr McWilliam says that everybody present was responsible to essentially the same degree. I do accept the point made by Mr Walsh on your behalf however that there does seem to be a slight distinction made in the summary of facts where it talks about Ms Rameka and Mr Kirkwood assaulting Mr Whitiora, with you being present.
[23] You have nonetheless accepted by your guilty plea that you were a party to a prolonged and brutal assault in which a taser and a baseball bat were used to wound Mr Whitiora, and that he suffered serious injuries as a result of that assault.
[24] Taking these various matters into account I conclude that while there is a limited basis for reducing the starting point as compared to Mr Kirkwood, it is not as much as proposed by Mr Walsh. Instead, I consider that a starting point of six years and six months for the assault on Mr Whitiora is appropriate.
[25] I now consider whether that starting point should be increased (or uplifted) to take into account the other charges to which you have pleaded guilty. Having considered the submissions that have been made, I agree with counsel an uplift is appropriate. Both counsel have suggested that that total uplift should be in the range of 12 to 18 months. Having considered the various cases referred to by Mr McWilliam,14 I do not find any of them particularly helpful in determining exactly where the uplift should lie, but ultimately, having regard to the fact that your role in the assault on Mr Mihinui appears to have been greater than perhaps was the case in relation to the assault on Mr Whitiora, I consider that an uplift at the upper end of the scale proposed by counsel is required. I therefore fix the uplift at 18 months which leads to an adjusted starting point of eight years’ imprisonment prior to taking your personal circumstances into account.
14 Kreegher v R [2021] NZCA 22; R v Kalepo [2021] NZHC 578; R v Malua-Bently [2020] NZHC 2286.
Personal circumstances
[26] I therefore turn to consider your personal circumstances. As I noted at the outset, this requires looking at either the aggravating or mitigating factors personal to you, including the discounts for your guilty pleas. As counsel have submitted in their written submissions it is well established that this Court has a wide discretion to increase or discount the starting point for a number of reasons.15
[27] Mr Walsh has submitted on your behalf that substantial discounts should be available to account for the circumstances of your background, including your age, previous good character, the matters raised by Nick Lascelles, a forensic psychologist, and the s 27 report prepared by Raecheal Riddell, as well as your guilty pleas.
[28] Mr McWilliam on the other hand submitted that the total discount for those factors should be considerably less although as you have heard this morning, Mr McWilliam now accepts that there should also be an additional discount for youth related factors that were not included in his original written submissions.
[29] In assessing the discounts that are appropriate I have read the reports of Mr Lascelles and Ms Riddell and have also had the benefit of the most recent Provision of Advice to the Courts Report (“PAC report”) that you heard me discuss with both counsel.
[30] I start with age and good character and your prospects for rehabilitation. Ms Taniwha, you were only 18 at the time of the offending, and the Court recognises that young people are more inclined to make mistakes and that, in general terms, wisdom and greater culpability comes with age and experience.16 As a result, I conclude that discounts are warranted, likewise I accept that in general terms discounts are available for previous good character, as well as for the prospects of rehabilitation.17
15 Zhang v R [2019] NZCA 507, 3 NZLR 648 at [134].
16 Tangi v R [2023] NZHC 1997 at [58].
17 Faiyum v R [2020] NZCA 523 at [29]–[31].
[31] In Mr Walsh’s submissions, these were broken down between those different matters but, having considered the issue, I do not consider that each of these factors warrant discrete and separate discounts. In many cases, the fact of an appropriate youth discount recognising a lack of maturity on the part of an offender is inconsistent with significant previous good character discounts, not only because of the necessarily short period of good character but the fact that, as a youth discount implies, any good character is likely to be the result of good luck rather than good management. Similarly, where as here, there is no therapeutic rehabilitation identified, any references to rehabilitation appears to be more equipping a defendant with life skills as a result of the defendant’s youth.
[32] In this case, as counsel have noted, youth is clearly a factor in your offending, and it is clear that it was a fact, to a large degree, a factor of youth that led you into the orbit of Ms Rameka with the consequences that followed. Likewise I accept that to this point, you had had previous good character. It is also clear from the reports that I have before me, that your prospects for future rehabilitation are good and I particularly note Mr Walsh’s submission about the fact that you have cared for your disabled brother while you have been on bail which is a useful use of that time. Taking these various factors into account I am prepared to allow a combined discount of 20 per cent for youth, previous good character and rehabilitative prospects.
[33] I likewise accept that there should be a discount for the background factors identified in Ms Riddell’s and Dr Lascelles reports. I accept Mr Walsh’s submission that your early childhood exposed you to and normalised the use of violence, you were at times isolated from your culture, you grew up witnessing your mother being involved in violent relationships, your father, when he came into your life, was violent and controlling, and throughout your upbringing you experienced significant hardship and suffered physical, sexual and emotional abuse which has resulted in Mr Lascelles’ formal diagnosis of you suffering from Post-Traumatic Stress Disorder.
[34] The diagnosis of Post-Traumatic Stress Disorder is particularly important and I note that Mr Lascelles has observed that some of your personality features resulting from that clearly echo in your role in the offending and in your inability to stand up to
Ms Rameka. Taking those matters into account I consider it appropriate to allow a further discount of 15 per cent for those factors.
[35] As you have heard me discuss with counsel, I also consider that the PAC report reveals that you now have some considerable insight into your offending and the effect that it has had on the victims. Noting that, for reasons that I will come to, there is only a very small discount available for the guilty pleas, I consider it is appropriate for there to be a specific discount of 5 per cent for remorse over and above that inherent in your guilty pleas.
[36] Finally as you have heard both counsel have submitted that your guilty plea discount should be 5 per cent, as the guilty pleas were entered the week prior to the trial and I agree with that analysis.18
[37] Applying these discounts which total 45 per cent takes your sentence to four years and five months’ imprisonment following which, as counsel agree, there should be an adjustment for the time that you have spent on restrictive bail.
[38] There is no dispute you have been on restrictive bail since 24 September 2020, which is almost exactly 3 years. Initially you were on a 24-hour curfew but by 4 February 2021 your curfew was relaxed on two mornings a week. Within a further seven months, bail was further relaxed on three mornings per week, and the periods of relaxation were also slightly extended. Mr McWilliam initially submitted that no more than 12 months should be discounted for time served on restrictive bail and Mr Walsh submitted a similar period should be allowed. As you have heard, however, Mr McWilliam has indicated that there could be a greater discount given, up to perhaps half of the period for which you were on restrictive bail. Having considered the issue, I conclude that while it was not the most restrictive bail and was not electronically monitored, it was nonetheless significantly restricted, and for somebody as young as you are it would have required a significant effort to comply over that prolonged period. Overall I therefore conclude that the appropriate discount for time spent on restrictive bail is 18 months.
18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
[39] Applying this discount, I get to a final end sentence of two years and 11 months’ imprisonment.
[40] In reaching this conclusion, I recognise Mr Walsh’s clear submission on your behalf that you were seeking a sentence of home detention. A sentence of home detention, as you will have been told by your lawyer, is only available if the end sentence is less than two years’ imprisonment. As the end sentence I have identified is much greater than that, home detention is not available to you.
Sentence
[41]Ms Taniwha please stand:
(a)On the charge of wounding with intent to cause grievous bodily harm you are sentenced to two years and 11 months’ imprisonment.
(b)On the charge of unlawful detention you are sentenced to two years and six months’ imprisonment.
(c)On the charge of injuring with intent to cause grievous bodily harm you are sentenced to two years and six months’ imprisonment.
(d)On the charge of accessory after the fact to murder you are sentenced to nine months’ imprisonment.
[42] All sentences are to be served concurrently, that is the maximum term of imprisonment is two years and 11 months’ imprisonment.
[43] Finally, and for completeness, I dismiss charge 1, which was an unlawful taking away, and charge 5 which was a further wounding charge, pursuant to s 147 of the Criminal Procedure Act 2011, on the basis that the Crown has not offered any evidence.
[44]You may stand down.
Powell J
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