R v Tumahai CA262/04 [2004] NZCA 362 (26 October 2004)

Last Updated: 25 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA262/04

THE QUEEN

v

BENJAMIN RED TUMAHAI

Hearing: 14 October 2004 Coram: Anderson P
Baragwanath J Gendall J

Appearances: M N Pecotic for Appellant
M R Heron for Crown Judgment: 26 October 2004

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1] The appellant pleaded guilty to the crimes of murder and wounding with intent to cause grievous bodily harm. He was sentenced by Harrison J to life imprisonment with a minimum non-parole period of 14 years on the charge of murder and to six years imprisonment on the charge of wounding with intent to cause grievous bodily harm. He appeals against both sentences.

[2] Counsel for the appellant submitted that the sentencing Judge erred in imposing the minimum non-parole period by giving insufficient credit to the appellant for his guilty plea and personal circumstances. She contends that the

R V TUMAHAI CA CA262/04 [26 October 2004]

sentence of six years of imprisonment on the wounding count was manifestly excessive, for the same reasons.

Background facts

[3] The essential facts are that the appellant was a member of a group known as the King Cobra Gang which was involved in selling cannabis from an address at Mangere. The two victims were selling cannabis on behalf of the gang from this house. As a result of a dispute within the gang, the appellant and others decided that the victims should be removed from controlling the cannabis selling. The appellant, together with two other gang members, went to the address despite being instructed by a senior member of the gang to stay away from it. An argument with the victims occurred. The appellant and his associates departed but returned about three hours later at 3am. The Crown’s summary that the assailants were armed with at least one knife was disputed by the appellant and the sentencing Judge said that

In your favour Mr Tumahai I am prepared to accept that you picked up a knife at the address. Again it will not be decisive.

The appellant stabbed one of his victims in the chest and arm whilst he was being held on the ground by two others. That victim managed to escape to raise the alarm with the family of the second victim. That person was a teenage boy aged 15 years who was then set upon by the appellant and his associates. He was struck by the appellant about 30 around the head and body with the knife inflicting fatal injuries. The appellant pleaded guilty at an early stage in the District Court at Manukau on 1 April 2004. His co-offenders are awaiting trial.

[4] In sentencing, the Judge imposed a life sentence on the count of murder and then turned his attention to the provisions of s104 Sentencing Act 2002. There a Judge is required to impose a minimum term of at least 17 years imprisonment if one or more features set out in the section are present, unless satisfied that it would be manifestly unjust to do so. The Judge said that the prerequisites which existed in this case to invoke the provisions of s104 were in the following subsections:

• (d) The murder was committed in the course of another serious offence; and

• (e) The murder was committed with a high level of brutality, cruelty, depravity or callousness; and

• (f) The deceased was particularly vulnerable because of his age, health or because of any other factor.

We observe that the provisions of subs(c), namely where a murder involves unlawful presence in a dwellinghouse, may also have been satisfied.

[5] In coming to the conclusion that s104 applied the Judge said he was satisfied that the attack upon the first victim causing serious bodily harm, as well as the attack upon the deceased, could properly be treated as all one venture. He thought there was such a close connection between the two crimes that the murder was indeed committed in the course of wounding the first victim. The Judge said the murder was committed with a high level of brutality, cruelty, depravity or callousness, involving stabbing 30 times with a knife about the head and body in a sustained and frenzied attack carried out with a murderous weapon by three or four young men. He had no doubt that the attack was of sufficient brutality to justify a mandatory minimum sentence, noting that the appellant was present at the address for at least 10 minutes, with screams being heard by neighbours for at least six of those minutes, indicating the duration of the attack. The Judge also found a third criterion to be established, namely that the victim was particularly vulnerable because of his age of 15 years. Although he was a member of a street gang and able to deal in controlled drugs, he was described by the Judge as a “boy living in a man’s world” and noted the vast gulf between his physical strength and maturity and that of the 20 year old appellant.

[6] Having found that a minimum term of at least 17 years imprisonment was required, the Judge turned to the issue of whether such a requirement would be manifestly unjust. He considered the appellant’s personal circumstances and his plea of guilty which he described as “very significant”, and recognised the appellant’s
remorse and acceptance of responsibility. In the end the Judge said that he would not have reduced the minimum non-parole period of 17 years if the appellant had not pleaded guilty but because of that plea an allowance of three years was justified. Accordingly he reduced the non-parole period to 14 years.

[7] A point has been raised by the Crown as to the question of jurisdiction of a sentencing Judge, where a minimum period of imprisonment of 17 years in circumstances where s104 applies is required, to reduce such period where the factor to make the mandatory 17 year term “manifestly unjust” is a guilty plea. There is at present an appeal before the permanent Court in R v Williams and Olsen (CA64, 117/04) awaiting decision on the application of s104 in such circumstances, and whether or not a guilty plea is a factor to be taken into account in determining whether a 17 year non-parole period is “manifestly unjust”. We are not faced with a Crown appeal in this case and our dealing with this aspect the argument is not to be taken as informing, still less determining, the issue raised in the pending appeal decision mentioned above. The issue is simply whether the appellant can show that the allowance of only three years discount from the 17 year non-parole period has resulted in a manifestly excessive sentence.

Discussion

[8] Counsel for the appellant referred to a number of cases where the imposition of minimum non-parole periods was imposed but none relate to situations where it was mandatory (in the absence of it being manifestly unjust) for there to be a 17-year period. It could not be seriously argued that the Judge was not entitled to conclude that s104 applied. A minimum non-parole period of 17 years was required by statute, unless manifestly unjust. A “discount” of three years would represent a little under 18 percent. Counsel argued that that was “not enough credit” for the guilty plea. We are not persuaded that such factor can be given the same emphasis under s104, assuming jurisdiction, as in cases to which s103 applies, namely where a Judge imposes a minimum non-parole period in excess of 10 years where the circumstances of the offence are sufficiently serious to justify doing so.
[9] Reduction from the mandatory 17 years on the basis that such a term was manifestly excessive can only occur in exceptional cases. Credit or allowance for a guilty plea when it results in an effective term significantly below the statutory requirement can only occur in rare cases where clear injustice would otherwise arise. Here the Judge was merciful and generous to the appellant in reducing the mandatory period, giving a real three-year discount in recognition of the guilty plea. We think that was clearly within a proper ambit and it could not be said that it was manifestly unjust for him not to give a greater allowance. If the Judge was to recognise and respect the mandatory requirements of s104 he could not properly have afforded any greater discount. There can be no basis upon which it could be said that the ultimate minimum non-parole period was manifestly excessive so as to require any adjustment by an appellate Court. Once the Judge found that this brutal and callous murder justified imposition of a minimum non-parole period of 17 years as mandated by statute, there can be no basis upon which the term of 14 years non- parole, fixed simply because of a guilty plea, can be said to be manifestly excessive.

[10] Turning to the sentence of six years imprisonment on the count of wounding with intent, of course this is to be served concurrently and to that extent the appeal is academic. However, counsel for the appellant contended that the period was set at too high a level given the circumstances of the appellant and his early guilty plea. We have been referred to cases where terms of four and a half years imprisonment (R v Fu Dong Li (CA15/04, 12 May 2004) and three and a half years imprisonment (R v Moevasa (CA376/01, 18 April 2002) were imposed. Counsel for the appellant contended that this crime came within the second category described in R v Hereora [1986] 2 NZLR 164 (CA) which suggests a range of three to five years. However, Hereora contemplates a range of five to eight years for cases of wounding causing serious grievous bodily harm which exhibit a combination of aggravating factors, including premeditation.

[11] This case falls into the category of a premeditated act by an appellant who, having been involved in an argument left the premises vowing to kill someone. There was conscious, deliberate premeditation over some hours. He returned armed with a lethal weapon and with others who assisted him in committing a serious violent crime, which could well have attracted a charge of attempted murder. Some
allowance for a guilty plea was required and the issue was simply whether a possible starting point of eight years in these circumstances was beyond the permissible range. Of course the Judge did not record a starting point but it could not have been less than seven to eight years. In those circumstances was the allowance for a guilty plea insufficient?

[12] Even if it was a stand alone sentence, a term of six years imprisonment could not be said to be outside the range available to a sentencing Judge. Another Judge might have imposed a slightly lesser sentence taking a starting point, for example, of seven years imprisonment but it cannot be said that the final sentence in this case was manifestly excessive so as to be interfered with on appeal.

Result

[13] It follows that the appeal in respect of both sentences must be dismissed.

Solicitors:

Crown Solicitors, Auckland