R v Tipiwai [2022] NZHC 2445 (23 September 2022)

Last Updated: 18 October 2022

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2020-063-2105 [2022] NZHC 2445

THE KING

v

BOBBY TIPIWAI

Hearing:	23 September 2022
Appearances:	A McConachy for the Crown T Braithwaite for the defendant
Date:	23 September 2022

SENTENCING NOTES OF CAMPBELL J

R v TIPIWAI [2022] NZHC 2445 [23 September 2022]

Introduction

• [1] Mr Tipiwai, you appear for sentence having pleaded guilty to one charge of kidnapping¹ and one charge of participation in an organised criminal group.² My job today, on behalf of the community, is to impose a sentence on you for those offences in accordance with law.

Offending

• [2] A summary of facts was presented to the Court when you pleaded guilty. You accepted that summary of facts. I will sentence you on the basis of those agreed facts, together with any inferences I can draw from them.³

• [3] You are one of a group of associates of the Black Power gang, led by Ricky- Lee Dixon. In August 2020, Ms Dixon came to believe that the victim in this matter had stolen methamphetamine from her. She organised a group to kidnap the victim and extort sums of money from the victim’s father. The group kidnapped and severely beat the victim on two separate occasions.

• [4] You were involved only in the first kidnapping. On the morning of 12 September 2020, you were with the victim at a Rotorua property. At around 4 am, an unknown associate arrived at the property and dragged the victim from her bed. You were present in the bedroom. You told the victim she had no choice but to go. Initially, the victim fought back, but your associate threatened the victim with a fake gun, which she thought was real.

• [5] You then left the property in a car with your associate and the victim. In the car, you told the victim that she needed to call her father and have him bring some money, in order for the victim to stay alive. Your associate said the same thing. You then drove the victim to a property where Ms Dixon and her daughter were.

¹ Crimes Act 1961, s 209(a) and 66(1). Maximum penalty: 14 years’ imprisonment.

² Section 98A. Maximum penalty: 10 years’ imprisonment.

³ R v R [2019] NZCA 135 at [33]; R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R [2014]

NZCA 356 at [30]–[36]; and R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494.

• [6] The victim’s father came to that property. He handed over around $1,500 in cash. Ms Dixon said it was not enough money and sent him away to get more. While he was doing that, the victim was forced to do chores around the house and was not allowed to leave without Ms Dixon’s permission. You were one of several people watching the victim under Ms Dixon’s direction.

• [7] The victim’s father returned. He was directed into a bedroom where Ms Dixon and the victim were. He handed over more money, promising he would get more if the victim was released. Ms Dixon then ordered the victim’s father to leave the bedroom with you.

• [8] The victim was then beaten severely with a bat, first by Ms Dixon and then by Ms Dixon’s daughter. The victim’s father was forced to wait in the lounge and listen while his daughter was beaten. However, it is not clear from the summary of facts whether you were one of the persons who forced the father to wait, or indeed whether you were still inside the property while the beating was occurring.

• [9] When Police spoke to you, you denied any knowledge at the time of the kidnapping. You said the victim had voluntarily gotten into the car, that there had been no gun involved, and that you removed yourself from the situation after you became aware of what was happening. You said the incident had to do with the victim owing Ms Dixon money, and that the victim was taken “for a ransom or something”.

Impact on the victim

• [10] The victim has provided a victim impact statement, which I have read. The victim describes the serious and ongoing physical, financial and emotional effects of your offending (and of the other kidnapping in which you were not involved). Unsurprisingly, she remains deeply affected by your offending. She has had to move away from Rotorua to feel safe. She should never have had to have done that.

• [11] The victim impact statement is detailed and eloquent. The victim concludes by saying that she wants you to know that she will forgive you. That shows remarkable generosity. I hope you learn something from it, Mr Tipiwai.

Approach to sentencing

• [12] The Sentencing Act 2002 sets out the purposes and principles of sentencing. Here, relevant purposes include holding you accountable for the harm that your offending has done to the community, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offending, and protecting the community.⁴

• [13] The principles include the need to consider the gravity of your offending and your degree of culpability, the seriousness of these offences and, importantly in this case, the general desirability for consistency with sentences that have been imposed in similar cases. I must also impose the least restrictive outcome that is appropriate in the circumstances.⁵

• [14] Determining the appropriate sentence involves two steps. First, I must determine a term of imprisonment as the “starting point” for the sentence, which will be based on the seriousness of the offending to which you have pleaded guilty. Secondly, I will consider your personal circumstances, including the appropriate deduction for your guilty plea.⁶ That will produce the end sentence.

Starting point

• [15] There is no tariff decision or guideline case for kidnapping offending, as there can be an “infinite variety of circumstances which underlie the crime of kidnapping”.⁷

• [16] However, Palmer J outlined the relevant features of kidnapping cases which contribute to assessing an appropriate starting point for the offending in a case called R v Liev.⁸ These features are:⁹

(a) the length of detention;

⁴ Sentencing Act 2002, s 7(1).

⁵ Section 8.

⁶ Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].

7. R v Hall CA296/05, 28 February 2006 at [26], referring to R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (CA) at [11].

⁸ R v Liev [2017] NZC 2253.

⁹ At [25].

(b) the extent of premeditation;

(c) the number of offenders;

(d) any gang involvement; and

(e) the level of violence involved.

• [17] Most of these factors weigh against you. As to the length of detention, the victim was taken from her bed at around 4 am. While the summary of facts is not explicit as to when the victim was later released, the references to the victim’s father being sent away to get more money and to the victim being made to do chores around the house in the meantime, support the inference that the detention lasted for many hours.

• [18] Further, two co-offenders and your unknown associate were involved in this first kidnapping. There was a gang overlay to the kidnapping in that your co-offenders were associated with Black Power. There was plainly a high degree of violence inflicted on the victim. I cannot conclude from the summary of facts that you were present when that violence occurred. However, you told the victim that she needed to call her father and have him bring some money, in order for her to stay alive. I infer from this that you must have known that serious violence, at the least, was likely.

• [19] Your counsel submitted that no premeditation can be attributed to you. You were present at the property from the day before the kidnapping occurred, taking methamphetamine. He said it was your associate’s actions that initiated the kidnapping, and that you only became a party to it because you were present at the time. He emphasised that you were not the person who presented the fake gun, and that you did not participate in the violence against the victim. I accept those matters, but they diminish your culpability only slightly, when set aside the other facts I have mentioned.

• [20] As to aggravating features, Ms McConachy said it is relevant that you were previously a friend of the victim. She said this fact gives rise to a breach of trust.

I agree with that submission. Further aggravating factors, in Ms McConachy’s submission, include that you participated in the kidnapping of the victim from her bed, that you participated knowing that the object was to hold the victim to ransom, that you were present when your associate wielded the fake gun, and that you were present when the victim’s father was made to listen to his daughter being beaten. I do not accept that that last matter can be inferred from the agreed summary of facts. I accept that the other factors aggravate your offending.

• [21] I do not consider there are any mitigating features of your offending, and your counsel did not contend for any.

• [22] Comparator cases will aid my assessment. Your counsel referred me to cases called Hill, Snowdon and Hansen.¹⁰ My view is that your offending is more serious than that of the offenders in those cases, having regard to the background circumstances and aggravating factors that I have already discussed.

• [23] More relevant and useful for present purposes are the sentences imposed on your co-offenders. Ms McConachy said your offending is more serious than that of Kristina Reid, Thorne Tucker and Desmond Ohlson, all of whom had more limited roles in the offending. None was involved in any violence against the victim or the extortion of her father. They respectively received starting points of three years’ imprisonment,¹¹ three years and three months’ imprisonment,¹² and three years and six months’ imprisonment.¹³ I agree with that submission that their role was more limited than yours.

¹⁰ R v Hill HC Rotorua CRI-2005-063-3096, 27 October 2006 (offender participated in kidnapping, but not the subsequent detention and injuring of the victim. Involvement described as “in a kidnapping of short duration following a modest assault”. Starting point of two years and six months’ imprisonment); R v Snowdon HC Auckland CRI-2008-004-23774 (offender pleaded guilty to charges of kidnapping, blackmail, aggravated robbery of a motor vehicle, taking a document and using a document. Involvement included participation in initial kidnapping, providing duct tape to apply to the victim’s mouth and eyes, and awareness that the victim was being assaulted. Starting point of three and half years’ imprisonment); and R v Hansen [2017] NZHC 449 (offender who was affiliated with the Head Hunters pleaded guilty to charge of kidnapping. No involvement or awareness of subsequent serious assault of the victim. Starting point of three years’ imprisonment).

¹¹ R v Reid [2022] NZHC 2440.

¹² R v Tucker [2021] NZHC 1548.

¹³ R v Ohlson [2021] NZHC 2748.

• [24] Ms McConachy further submitted that your offending is most broadly analogous to Shaun Te Kiri’s. He received a starting point of five years’ imprisonment.¹⁴ Like Mr Te Kiri, you did not actively participate in the serious violence inflicted against the victim. Nevertheless, you both participated fully in the group’s offending (though, like Mr Te Kiri, you were not present when the victim was being assaulted). Like Mr Te Kiri, you were involved in transporting the victim to various places against her will, and you participated in intimidating her and her father.

• [25] Unlike Mr Te Kiri, however, there is nothing on the facts before me to indicate you carried a weapon at any stage of your offending. And while your actions were undoubtedly intimidatory, they were arguably less so than Mr Te Kiri’s. His actions included carrying various weapons in the car with the victim, putting a bandana over his face and adopting an intimidatory pose while the group demanded money from the victim’s father.

• [26] Standing back, then, I assess your culpability as lying between Mr Te Kiri’s and Mr Ohlson’s. I will take a starting point between those taken by the sentencing judges for those two co-offenders. In this case that leads me to a starting point of four years and two months’ imprisonment.

Personal circumstances

• [27] Mr Tipiwai, I now turn to your personal circumstances and any uplifts to or allowances against your notional sentence that those circumstances require.

• [28] As to uplifts, I note that you have previous convictions. Those include convictions for violent offending. But I do not consider those convictions are relevant to your present offending and Ms McConachy did not seek an uplift in respect of them. I set them to one side. There are no other circumstances that would justify an uplift from the starting point.

¹⁴ R v Te Kiri [2022] NZHC 217.

• [29] As to allowances, I have reviewed your pre-sentence report. It states you have clear rehabilitative needs, including for methamphetamine addiction and post- traumatic stress disorder. You started using methamphetamine after you suffered the psychological effects of being seriously assaulted with a machete. You never received treatment for the trauma and ended up self-medicating with drugs. I have read a s 38 report that expresses the opinion that your trauma symptoms have contributed in part to your recent offending. You are working with your lawyer to apply to a residential rehabilitation centre as part of your return to the community.

• [30] I have also been given this morning a s 27 report. It provides much more detail on your upbringing as well as addressing the post-traumatic stress disorder.

• [31] Mr Tipiwai, you were given a loving start in your life by your paternal grandparents in Tonga. But matters fell apart for you when you were returned to New Zealand to be with your parents at 11 years of age. And I must say, the report makes for distressing reading thereafter. From that time you were exposed to a seriously dysfunctional family life in which alcohol and substance abuse was normalised. Worse, physical violence was normalised as part of your family life. Including against you, and that was essentially from the age of 11 years. There was a complete absence of what most New Zealanders would consider as parenting. The report unsurprisingly in these circumstances records that you left school and home at about age 12.

• [32] Before reading that report I was going to say that I accepted that the matters in the pre-sentence report, particularly the untreated post-traumatic stress disorder, had contributed to your offending. But it is clear from the s 27 report that the causes of your offending started at a much earlier age and I accept that, as is all too often the case when sentencing defendants, Mr Tipiwai, I read reports like this which outline not just substance abuse by the defendants but charts a series of steps from a young age that have led to that substance abuse and have led to the normalisation of violence.

• [33] All these matters to which I have referred, significantly lower your culpability. To be clear, they don’t provide an excuse, and I see you nodding and accepting that

they don’t provide an excuse, but they do have to be taken into account by me in assessing your responsibility and culpability for this offending.

• [34] I consider that an allowance of 20 per cent for these factors against the starting point is appropriate.

• [35] You have also written a letter of remorse to the victim, which I have read and considered in this sentencing exercise. In the letter, you say that you would do things differently if you could have your time again. You apologise to the victim and her father for your role in the offending. You say that when you are released you will seek out rehabilitation opportunities so that you will not use methamphetamine again. You say you want to leave your current life behind and to start anew.

• [36] This letter has unfortunately come very late. It stands in some contrast to the pre-sentence report which records you expressing remorse for what happened after your involvement ended but does not record any remorse for what you yourself did.

• [37] Rather than giving a specific discount for the remorse that you have shown in this letter Mr Tipiwai, I have instead taken it into account in making the other allowances which I am now going to come to for your guilty plea and for your willingness to engage in rehabilitation.

• [38] You pleaded guilty only five days before trial was set to begin. You are entitled to some credit for that plea. It saved the victim from having to appear at trial. On the other hand, it was too late to save the victim from having to go through the anxiety of preparing to give evidence. However, I do accept that one factor that led to the delay in your guilty plea was a change in the Crown case and that is referred to in a second sentence indication that Lang J gave in August 2022. I expect that that change in the Crown case was one reason why even at that stage Lang J was willing to provide a 15 per cent discount for what otherwise would have appeared to be a fairly late guilty plea.

• [39] You did not accept that second sentence indication and so your plea became even later than Lang J had anticipated. However, taking account of all the factors that

I have just referred to in relation to your guilty plea, I consider that an allowance of 7.5 per cent is appropriate.

• [40] Finally, it is clear that you have indicated a willingness to address your previous addiction to methamphetamine and to address other factors such as your post- traumatic stress disorder that have contributed to your offending. This is evident from the pre-sentence report, it is also evident from a judgment of Muir J dated 23 August 2022 in which His Honour declined an application by you for EM bail pending sentencing. Your EM bail application was put forward to allow you to attend a rehabilitation programme at the Grace Foundation in Ōtāhuhu, Auckland.

• [41] Muir J declined the application but clearly accepted that you did have a willingness to attend a rehabilitation programme.

• [42] You are to be credited for having that willingness Mr Tipiwai, and I hope it remains. I am going to make a further allowance of 2.5 per cent against the starting point for that.

End sentence

• [43] Taking a starting point of four years and two months’ imprisonment, the above allowances that I have just referred to total 30 per cent against that starting point. This leads to an end sentence of two years and eleven months’ imprisonment.

Result

• [44] Mr Tipiwai, for your conviction on the charge of kidnapping, I sentence you to two years and eleven months’ imprisonment. For your conviction on the charge of participation in an organised criminal group, I sentence you to two years and eleven months’ imprisonment. These sentences are to be served concurrently.

• [45] I say again that you are to be congratulated on recognising some of the matters that have led to this and other offending and I encourage you to take all opportunities that are made available to you to address those issues through rehabilitation.
• [46] Mr Tipiwai, please stand down.

Campbell J