R v Tupu-Ngahere [2017] NZDC 21813 (22 September 2017)

Last Updated: 1 May 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT ROTORUA

CRI-2015-077-000523 CRI-2015-077-000939

[2017] NZDC 21813

THE QUEEN

v

JOHNNY TAUROA TUPU-NGAHERE

Hearing:	22 September 2017
Appearances:	A Hill for the Crown A Schulze for the Defendant
Judgment:	22 September 2017

NOTES OF JUDGE M A MacKENZIE ON SENTENCING

[1] Johnny Tupu-Ngahere, you appear for sentence today in relation to a number of charges. The lead charge is wounding with intent to cause grievous bodily harm. You are one of five co-defendants in relation to that incident which I will address shortly in more detail. You are the last of the five to be sentenced by me.

[2] As well, you are to be sentenced in relation to a number of police charges which are unlawful possession of ammunition (five shotgun shells), possession for sale of psychoactive product, two male assaults female charges and a charge of receiving.

[3] I start with the wounding with intent to cause grievous bodily harm. As I have said, this was an incident involving five co-defendants; yourself, Mr Morehu Rangitoheriri, commonly known by the nickname of “Tax”,

R v JOHNNY TAUROA TUPU-NGAHERE [2017] NZDC 21813 [22 September 2017]

Mr Sean Puruto, commonly known by the nickname of “Pure”, Mr Dylan Coster and Mr Cain Douglas-Tera.

[4] The facts are not in any dispute. This was a serious incident of violence involving [victim 1] with gang overtones. [Victim 1] wanted to leave the Mangu Kaha. He was a prospect. That was apparently against the kaupapa of the gang and he was taken to the address at Fife Place in Tokoroa by Dylan Coster. At the relevant time, you were a prospect for the Mangu Kaha and the purpose of [victim 1] being taken to Fife Place was for him to be given a beating for his decision to leave the gang. The five of you were at Fife Place. He was outnumbered five to one.

[5] There were two phases of the assault. You participated in that initial phase. [victim 1] was initially attacked outside in the grounds of the property. It involved a serious physical assault upon him. Your involvement in the assault outside was to punch and kick [victim 1] as part of the group attack and at Mr Rangitoheriri’s direction, you also placed your arm around [victim 1’s] neck and attempted to choke him out. The incident moved into the garage. [Victim 1] was dragged or carried into the garage and placed on a chair. He was then physically restrained whilst he was on the chair. Your involvement inside the garage, I acknowledge, was limited. It was to offer vocal support much like Mr Coster and Mr Cain Douglas-Tera did as well. Gang chants were occurring and being said such as “Yowza” and “Mangu Kaha” and [Victim 1] was hit by one of the others, Mr Puruto, using a hammer as a weapon. The real issue for [victim 1] when he was inside the garage was he was particularly vulnerable and, in effect, outnumbered and unlawfully detained because her could not get away as he was tied to the chair. After a sustained attack over two phases, [victim 1] was released and taken to hospital and a story was concocted in order to cover the tracks of the five of you and this related to a rival gang.

[6] When I sentenced the other four co-offenders, I have set out the aggravating factors of the offending which are well known and obvious and not in dispute. I will address them in short form and direct that the sentencing remarks of Morehu Rangitoheriri are appended to these sentencing remarks [Editorial note: the sentencing notes have not been attached, the decision can be found at [2017] NZDC 8105]:

• (a) The incident involved extreme violence as this was a sustained and vicious assaults over two phases and, as I have said, included him being attacked on the ground outside the garage and you were part of that, as I have already referred to.
  
  • (b) There was an element of premeditation. It matters little about whether [victim 1] was lured to the address or not, but there was clearly some planning around the beating for his decision to disassociate himself from the Mangu Kaha.
    
  • (c) There was serious injury. None of the injuries were life threatening or have created long term harm, but [victim 1] suffered multiple injuries that required hospital attention. These are referred to in the victim impact statement.
    
  • (d) The next aggravating factor is harm to [victim 1] and I have addressed that in Mr Rangitoheriri’s sentencing remarks. The statement did make for compelling reason and he is afraid and has flashbacks and having read the PAC report, you have some empathy for his situation, Mr Tupu-Ngahere. I do not intend reading that out in open Court, given the matters that are set out in your PAC report, but I was impressed that you are able to take a walk in his shoes and that is positive.
    
  • (e) The next aggravating factor is the overall use of weapons and also the attack to the head which you were involved with, with the choke hold.
    
  • (f) The number of attackers is an aggravating factor, five in total. Whilst it was not gang warfare, it has gang overtones and directly linked to [victim 1’s] wish to leave the Mangu Kaha. It was an incident of severe violence administered in a gang context to serve a warning to others who might be thinking of leaving.
    
  • (g) The last aggravating factor is victim vulnerability. He was not vulnerable in the sense of his age or disability, but vulnerable when he

was in the garage for the matters I have referred to in Mr Rangitoheriri’s sentencing remarks.

[7] There is no dispute that this is a tariff case. The tariff case is R v Taueki1 and that this is offending which falls within band 3 of Taueki. Both Mr Hill, for the Crown, and Mr Schulze, your counsel, accept that the appropriate starting point is nine and a half years imprisonment, given the aggravating factors I have referred to and given that it is within band 3 of Taueki. I do not address in any detail today how I got to that nine and a half years. It is referred to in the sentencing remarks of the other four co- offenders and particularly paragraphs [10] and [11] of the sentencing remarks relating to Mr Puruto.

[8] There is no dispute that I should start at nine and a half years in terms of the sentencing exercise for you, Mr Tupu-Ngahere. The one issue raised by Mr Schulze on your behalf is whether I should reduce that in terms of your lesser level of culpability. There is no dispute that Morehu Rangitoheriri orchestrated this attack and is the mastermind. I was asked to reduce the starting point in terms of the lesser level of culpability for both Mr Coster and Mr Douglas-Tera. I declined to do so. I decline to do so for you as well and I will tell you why.

[9] This is a case where there was a gang assault by a number of gang members and the position of collective responsibility applies and that was the approach that I took when I sentenced Mr Coster and Mr Douglas-Tera, and I referred to a decision Simeon v R2 which is squarely on point in respect of the issue of the respective culpability levels of those who take part in a gang assault. Simeon is squarely on point. It involved a gang assault involving a number of gang members. A submission was made to the sentencing Judge in that case that two of the appellants played little or no role in the attack and therefore their culpability was less and therefore they should receive a starting point which was less than others. The sentencing Judge noted that when a group of people involve themselves collectively in violence against somebody else, they must all take responsibility for the actions of the group. The Court of Appeal agreed with that sentiment because the appeal fairly and squarely was that the

1 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372

2 Simeon v R [2010] NZCA 559

sentences for those two appellants was manifestly excessive in light of their level of culpability and involvement. The Court of Appeal accepted the sentencing Judge’s collective responsibility approach and emphasised that the victim in that case was heavily outnumbered and without using precise words, alluded to a grim element of mob mentality and that is precisely the case here. Therefore, in line with Mr Coster and Mr Douglas-Tera, I decline to adopt a starting point less than nine and a half years based on your lesser involvement or degree of culpability on the basis, as I have said, of collective responsibility of an attack of this nature. Therefore, the starting point is nine and a half years.

[10] Added to that, I have also assessed the relevant level of culpability of Mr Coster and Mr Douglas-Tera when considering that nine and a half start point and what I can say is having done so, that your level of culpability in my view is broadly similar when I have undertaken that comparative exercise.

[11] The next matter is to consider whether there are personal aggravating or mitigating factors. There are no personal aggravating factors. I will deal with your other offending a bit later. There are personal mitigating factors which I will take into account. The first of those, broadly speaking, is youth. There is also the question of remorse and prospects of rehabilitation. I am going to deal with those in a broad-brush basis and on precisely the same basis as Mr Douglas-Tera. I accept that you are a young person and with that comes a lack of judgement and youthful impulsivity. It is a matter of discretion for a Judge in terms of the credit for youth. It is something of an elastic concept. There is no touchstone figure and can range from a very small percentage up to about 40 percent. Cases such as Churchward v R3, Pouwhare v R4 and R v M5 note that credit may be given for youth to reflect greater impulsivity, that young males are not hardwired to think like adults and there are greater prospects of rehabilitation for young people who are not necessarily completely entrenched in their thinking and a credit for youth is often given to ensure that there is a sentence which is not unduly crushing for a young person.

3 Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446

4 Pouwhare v R [2010] NZCA 268; (2010) 24 CRNZ 868

5 R v M [2014] NZHC 1848

[12] I do intend to therefore give you a credit for youth, Mr Tupu-Ngahere. Remorse and prospects of rehabilitation are also relevant. I am prepared to accept that your remorse is genuine and that a credit for remorse is appropriately given over and above what is already inherent in a guilty plea. As I have said, I have read the pre- sentence report and I have also read your remorse letter and I have taken into account the matters that are set out in there. You have demonstrated some insight into your behaviour and the real issue is whether you are going to be prepared ultimately to step away from the gang and that is over to you in the end.

[13] I gave a credit to Mr Douglas-Tera, something just over the 10 percent mark, and I am going to do the same for you and that credit encompassed youth, remorse and prospects of rehabilitation. Nine and a half years translates to 114 months and I allocated a credit down from 114 months to 100 months which translates to eight years and four months imprisonment and that 14 month credit represents just over the 10 percent mark for youth, remorse and prospects of rehabilitation and I give you exactly the same credit.

[14] The next matter raised by Mr Schulze is whether I should give you a credit for time spent on electronically-monitored bail. It is mandatory for me to consider that but discretionary to determine if or the extent to which I give you any credit. I have already nailed my colours to the mast in that regard in my discussions with Mr Schulze. I am not going to give you a credit for that. I would otherwise have, but the reason being, Mr Tupu-Ngahere, is that I am conscious of the fact that you are facing other separate police charges and I have made it clear that for totality reasons, I am going to impose concurrent sentences for those rather than cumulative sentences, even though a cumulative sentencing approach would entirely be warranted, given that they are separate in nature to this particular offending. But you cannot have it both ways. You cannot have a credit in my view for time spent on electronic bail and a concurrent sentencing approach in terms of the police matters and the reason I say that is that I have made it clear that I see your circumstances being broadly similar to Mr Douglas-Tera, and that whilst a defendant’s individual circumstances might result in a different end point, the end point for you, if I impose concurrent sentencing for the police charges but gave you a credit for time spent on EM bail, would mean an end sentence less than Mr Douglas-Tera’s and in my view, that would do violence to the

parity principle because Mr Douglas-Tera does not have those other charges. So I do not give you any credit for time spent on EM bail for those reasons.

[15] The last personal mitigating factor is a credit for the guilty plea. Even though you cut off your EM bracelet and went on the run, so you are the last of the five to be sentenced, the first two being sentenced in December of last year, I still give you the credit of five percent like the other co-defendants for the simple reason that a second trial has been saved and therefore I deduct a further five months from the eight years and four months, so that is an end sentence in terms of the lead offence of seven years and 11 months imprisonment for the charge of wounding with intent to cause grievous bodily harm.

[16] The last matter is to consider the sentences for the police charges I have referred to already. As both Mr Hill and Mr Schulze acknowledge, on a standalone basis, they are serious in their own right and I would be well justified in adopting a cumulative sentencing approach. I am not going to address the facts of all of those charges in any detail. They are clearly set out in the summaries of facts which are available on the Court file. I will say something very briefly about those matters only.

[17] The first matter is the possession of ammunition and the psychoactive drugs charges and that involved you in being in possession for supply of a psychoactive drug and a small quantity of ammunition. There was 53 deal bags and a tick list and I agree with Mr Hill’s assessment that it indicates that you were a reasonably busy street dealer. In line with the tariff case for possession for sale and supply of psychoactive drugs, which is the Moore v R6 decision, the starting point for the possession of ammunition and the psychoactive drugs is somewhere in the vicinity of nine to 12 months.

[18] The male assaults female have some serious hallmarks involving a stomp to the head and a punch to the head. There were no injuries sustained and on those two charges on a standalone basis would have attracted a combined starting point of somewhere between six to 12 months. A punch to the head in and of itself warrants a

6 Moore v R [2015] NZHC 2565

starting point of six months imprisonment in line with decisions of Williams v Police7

and Wawatai v Police.8

[19] The receiving, whilst might seem innocuous, does have some hallmarks that are a little more sinister, as is set out by Mr Hill in his Crown sentencing submissions. However, I intend to adopt a concurrent sentencing exercise and I will formally sentence you in relation to those charges now on a concurrent basis as follows. I have not referred in any detail to Mr Schulze’s submissions, Mr Tupu-Ngahere. Do not worry about what is going on in the public gallery thank you. In relation to those charges, I intend no disrespect to him by not referring in any great detail, but the starting points I have indicated are warranted broadly in line with the starting points Mr Schulze submits are appropriate at paragraph 35 of his written submissions. Accordingly, in relation to each of those charges, CRN ending 725, possession of the psychoactive substance with intent to sell or supply, there is 12 months imprisonment concurrent. CRN ending 726, unlawful possession of the shotgun ammunition, three months imprisonment concurrent. CRN ending 1112, the receiving matter, two months imprisonment concurrent, and CRN ending 1103, the assault on [victim 2], six months imprisonment concurrent and finally CRN ending 1104, the assault on [victim 3], six months imprisonment concurrent.

[20] That formally covers all matters. You are formally sentenced to seven years and 11 months imprisonment.

M A MacKenzie District Court Judge

7 Williams v Police [2014] NZHC 3255

8 Wawatai v Police [2015] NZHC 406