Tuporo v The King
[2025] NZHC 1137
•13 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000014
[2025] NZHC 1137
BETWEEN GABRIEL TUPORO
Appellant
AND
THE KING
Respondent
Hearing: 12 May 2025 Counsel:
H N Kim for Appellant
N C Vaughan for Respondent
Judgment:
13 May 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 13 May 2025 at 11 am
Registrar/Deputy Registrar
Solicitors/Counsel:
Han Na Kim (Manukau) for Appellant
Kayes Fletcher Walker (Manukau) for Respondent
TUPORO v R [2025] NZHC 1137 [13 May 2025]
Introduction
[1] Mr Tuporo appeals the sentence of two years and two months’ imprisonment imposed on him by Judge S Patel on 16 December 2024.1 He submits the sentence is manifestly excessive in that the Judge adopted too high a starting point and did not sufficiently discount the sentence for Mr Tuporo’s personal circumstances.
[2] I must allow Mr Tuporo’s appeal if I find there to be an error in his sentence such that a different sentence should be imposed.2 If I find his sentence to be manifestly excessive then that is an error which must be corrected.
Background
[3]I take the background events from the Judge’s sentencing notes:
[4] The facts that I sentence you on are these. You are the de facto brother-in-law of Mr Waipouri. Mr Waipouri had been in a relationship with your sister for about eight years. He and your sister have been involved in several family harm incidents in the past. I understand, there was an incident involving Mr Waipouri and your sister subsequent to your offending which led to Mr Waipouri spending time in custody.
[5] You were the registered owner of a Suzuki Swift vehicle. The circumstances of the offending are that around 6.30 on 24 December 2023, you drove your vehicle north on Hills Road in Ōtara. You saw Mr Waipouri walking along Hills Road. You performed a U-turn and stopped the car near Mr Waipouri. You then confronted him about family harm matters involving your sister. You then pursued Mr Waipouri on foot to try and engage physically with him, swearing and yelling at him. Mr Waipouri said to you: “What do you think you’re doing?” and in response, you threatened to stab him with a pocketknife that you were holding.
[6] You then approached Mr Waipouri aggressively while holding the pocketknife. He ran and sought safety in a nearby shop. He told staff there about your threats to stab him.
[7] You returned to your car and parked it outside the shop where he was. You yelled into the superette: “Come out! Come out!” After about 20 seconds, you shouted: “You wait! I’ll get you!” and then you drove away.
[8] A short time later, you drove your car along Hills Road. You saw Mr Waipouri walking on the footpath. He was facing away from your car. You accelerated the car, crossed over to the wrong side of the road, and drove onto the footpath. You hit Mr Waipouri from behind with the vehicle at speed.
1 R v Tuporo [2024] NZDC 32106.
2 Criminal Procedure Act 2011, s 250(2).
That impact propelled Mr Waipouri into the windshield and caused him to go over the vehicle and onto the road.
[9] After hitting Mr Waipouri, you did not stop to check on him. You immediately left the scene.
[10] The summary of facts records that Mr Waipouri suffered a critical head injury, including a brain bleed. He was taken by ambulance to Middlemore Hospital to be stabilised, then he was taken to Auckland Hospital for specialist treatment. By 27 December 2023, he was transferred out of the intensive care unit and could breathe independently.
[11] You spoke to the police in an interview. You made full admissions to the offending, citing years of pain and deep-seated hatred towards Mr Waipouri due to his violence towards your sister. You said you panicked after the collision and drove home.
The Judge’s sentence
[4] The Judge’s sentence followed a sentence indication given on 29 July 2024 which was accepted by Mr Tuporo on 5 August 2024. The Judge had indicated a provisional end sentence of 28 months’ imprisonment, with scope for additional discounts at sentencing, depending upon the provision of mitigating material.
[5] The Judge adopted a starting point of four years and six months’ imprisonment on the charge of wounding with intent to injure. The aggravating features identified were the use of a car as a weapon and the seriousness of the injury caused to Mr Waipouri. The Judge said:
[16] … I also concluded that by the time the interaction took place between you and Mr Waipouri outside the shop, that you intended to cause him harm, therefore that there was some planning by you. However, I said that there was no evidence of extensive planning of this offending.
[6] The Judge increased the starting point by three months’ imprisonment on account of the charge of failing to stop and ascertain injury.
[7]The combined starting point was four years and nine months’ imprisonment.
[8]The Judge discounted the starting point:
(a)25 per cent for pleas of guilty;
(b)10 per cent for remorse and previous good character (Mr Tuporo had no previous convictions);
(c)10 per cent for good prospects of rehabilitation; and
(d)5 per cent because of the difficulties a sentence of imprisonment would cause Mr Tuporo and his autistic two-year-old son of whom Mr Tuporo was the caregiver.
[9] Finally, the Judge gave a discount of three months to take into account the time spent by Mr Tuporo on restrictive bail conditions.
[10] The Judge considered the pre-sentence report and a report from Dr Carlyon (who opined on the background to the offending and on Mr Tuporo’s remorse) but declined a further discount in response to them.
The appeal
[11] Ms Kim for Mr Tuporo submits that on consideration of comparable cases the starting point for the charge of wounding with intent to injure should have been no more than four years’ imprisonment.
[12] Ms Kim submits that a discount greater than 10 per cent should have been applied for Mr Tuporo’s remorse and his previous good character. Based on cases Ms Kim considers comparable, she submits a combined discount of around 20 per cent would have been adequate.
[13] Ms Kim submits it is relevant that if her submissions are accepted, the sentence would fall below two years and thus give Mr Tuporo the opportunity to ask for an alternative sentence, such as intensive supervision.
Discussion
[14] On an appeal against sentence, the Court is focused on the appropriateness of the end sentence rather than how it was calculated.
[15] In my view, the starting point of four years and six months on the charge of wounding with intent to injure was within the range available to the Judge, and could have been higher.
[16] In his sentencing indication,3 the Judge applied the Court of Appeal’s guideline judgment of Nuku v R,4 deciding that the offending “sits between bands 2 and 3”.5 The Judge considered that:
[12] The two most serious aggravating features in this case are the use of the vehicle as a weapon and the significant injuries to Mr Waipouri.
[17] But, the Judge also reflected on the factor of premeditation. Although the Judge found that Mr Tuporo did not plan the attack and was not seeking to confront the victim, the Judge was clear that the initial confrontation showed that Mr Tuporo had the intention to harm the victim.
[18] In my view, the events leading up to the attack with the car show an ongoing intention by Mr Tuporo to harm the victim. The Judge, in his sentencing notes, said:
[34] Your explanation of the background to the offending is set out in paragraph [24] of the report. That is, that you were aware that over a period of years, your nephews and your sister were subject to assaults by Mr Waipouri. You had sometimes confronted Mr Waipouri about the reported family violence, and that had led to physical fights and mutual antagonism. You explained that your mental health deteriorated as you ruminated about your perceived inability to keep your sister and your nephews safe. You reluctantly resigned from stable full-time work that you had held for six years because of your distracted mindset. You plainly resented Mr Waipouri, given that your family had taken him in. It appears that you felt that he had betrayed the love and support that had been given by your family to him.
[19] This was not a case where two people met by chance, became antagonistic towards each other and there was a spontaneous attack. Mr Tuporo felt he was justified in attacking the victim because of the background set out by the Judge. He tried to do so in the initial confrontation and, at that time, brandished a knife while making threats. When he next saw the victim, he at once used his car as a weapon and inflicted very serious injuries. This is relevant to the assessment of the starting point.
3 R v Tuporo DC Papakura CRI-2023-092-011267, 29 July 2024 [sentencing indication].
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
5 R v Tuporo, above n 3, at [13].
[20] In my view, a starting point of four years and nine months would have been within range.6
[21] I consider also that Mr Tuporo should not have been given the maximum discount of 25 per cent for his pleas of guilty. Mr Tuporo negotiated with the Crown. The deal struck was that if Mr Tuporo pleaded guilty to a charge of wounding with intent to injure then the Crown would not proceed with the much more serious charge of wounding with intent to cause grievous bodily harm (the former having a maximum sentence of seven years’ imprisonment and the latter a maximum sentence of 14 years’ imprisonment). If he did not plead to the lesser charge then the Crown would go to trial on the more serious charge.
[22] Mr Tuporo did not plead immediately. He sought a sentence indication, which he eventually accepted.
[23] In my view, the Judge would have been well justified in affording Mr Tuporo a discount of 15 per cent for his pleas of guilty.
[24] Similarly, the uplift of three months on the charge of failing to stop and ascertain injury was towards the bottom of the range available to the Judge. The maximum penalty for that offence is five years’ imprisonment. Mr Tuporo could have been in no doubt of the force with which he struck the victim. Having achieved his intention, he simply left his victim in his injured state. An uplift of perhaps five months would have been justified.7
[25] I consider also that the Judge was generous in giving a discount of 20 per cent for Mr Tuporo’s former good character, remorse, and prospects of rehabilitation. These factors run together.
6 I acknowledge the comparator cases cited by both counsel: Robertson v R [2011] NZCA 517; Barlow v R [2019] NZHC 650; R v Fox [2020] NZDC 17105; and R v Follas HC Rotorua CRI-2009-077-1497, 4 February 2011. However, the facts are different and where a guideline judgment is available it is better to have regard to it.
7 Ms Kim pointed to Dr Carlyon’s account of Mr Tuporo saying that after the attack he believed the victim was still alive, and saw that others were helping as mitigating the offence. But, that means there was no remorse at the time and instead a decision to leave the victim’s fate in the hands of others.
[26] I do not accept Ms Kim’s submission that a total discount of 30 per cent was justified for these factors to more substantially provide for remorse. For one thing, there has been no tangible expression of remorse. Given the long background of antagonism and anger leading up to the attack, remorse cannot be given real effect at sentencing just because it is expressed.
[27] Finally, I must step back and look at the end sentence against the totality of the offending and Mr Tuporo’s personal characteristics. The actual offending was very serious. Mr Tuporo received discounts of 50 per cent plus three months. The end sentence of two years and two months’ imprisonment is light.
Decision
[28]The appeal is dismissed.
[29] I am advised that Mr Tuporo was granted bail pending the outcome of this appeal. I direct that Mr Tuporo surrender himself to the Manukau Police Station no later than 3 pm on Wednesday, 14 May 2025.
Brewer J
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