R v Taumanu [2017] NZDC 7730 (11 April 2017)

Last Updated: 4 September 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT ROTORUA

CRI-2015-063-003767 [2017] NZDC 7730

THE QUEEN

v

_{BILLY VICTOR TAUMANU}

Hearing:	11 April 2017
Appearances:	M Jenkins for the Crown P Birks for the Defendant
Judgment:	11 April 2017

_{NOTES OF JUDGE P G MABEY QC ON SENTENCING}

[1] Billy Taumanu is before the Court to be sentenced on three charges brought by the Crown solicitor. They are a charge of burglary, aggravated assault and assault with a weapon, all of which occurred on the same day. On the afternoon of 12 July

2015 Mr Taumanu was at an address. It was empty. He was there with an associate Mr Tuki Te Kani. They broke in. They looked for items to steal. The complainant in this case, [victim 1], and others arrived to carry out an inspection of the property. To their surprise they find Mr Taumanu and Mr Te Kani, present at the property.

[2] Mr Taumanu and Mr Te Kani understandably tried to leave but were prevented from doing so by [victim 2] and [victim 1]. [Victim 3] was there, she called the police. Mr Taumanu had with him a metal pole and used it to threaten [victim 2]. He is not charged with any offence relating to that pole. However there was a struggle between Mr Taumanu and [victim 2] and that struggle resulted in Mr

_{Taumanu hitting [victim 1] a number of times in the head with his forearm. That is}

R v BILLY TAUMANU [2017] NZDC 7730 [11 April 2017]

the charge of aggravated assault as the assault on [victim 2] was in an attempt to escape the crime.

[3] Mr Te Kani then got into a car. [Victim 2] turned his attention to Mr Te Kani to try and stop him from driving off. It was at this point Mr Taumanu encouraged Mr Te Kani to drive off by saying, “Go, just go, who cares.” Mr Te Kani then drove the car and struck [Victim 2]. He was thrown from the bonnet of the car onto the ground suffering bruising and grazing. Separately, but unrelated to Mr Taumanu, Mr Te Kani kept driving and drove into [Victim 3], breaking her ankle but Mr Taumanu was not charged with that. Mr Te Kani was charged with that offence. He has pleaded guilty to assault with a weapon, being the encouragement he gave to Mr Te Kani to drive at [Victim 2].

[4] The lead charge is assault with a weapon as in context it is the most serious offence. It is the encouragement of the use of a lethal weapon in the form of a motor vehicle to hit an unprotected human body. Fortunately for [Victim 1] his injuries were minor.

[5] I consider an appropriate start point for that charge is 18 months and I would uplift on totality for the other charges to two years; 24 months.

[6] Mr Taumanu has previous convictions which have elements of dishonesty. In

2016 he was sentenced to community detention for unlawfully getting into a motor vehicle and on the same day, sentenced to community detention for receiving and then in 2015, community work by unlawfully getting into a motor vehicle. He has miscellaneous other convictions for burglary and breaches of community work.

[7] I do not have the Judges sentencing notes, but it is clear that Mr Te Kani was sentenced to home detention but as a result of a review he has been sentenced to imprisonment. It seems that the community work sentence remains. He was also disqualified from driving. I make the observations about Mr Te Kani because parity does become an issue in this case. It will influence my decision to grant home detention which I intend to do.

[8] I consider that an uplift is due for past convictions of dishonesty of two months, that takes me to 26 months. Mr Taumanu did plead guilty on the eve of the trial but on general principle he is entitled to credit for that. I will give him a

10 percent discount which takes me back to 23 months imprisonment.

[9] The Crown are neutral on home detention. As I have said, home detention is appropriate. I have a pre-sentence report dated 18 January 2017 which recommends imprisonment and release conditions, noting that there was a complete lack of remorse which of course is not an aggravating factor. Home detention was not recommended.

[10] I have a subsequent report of 10 April 2017 which now recommends home detention and post detention conditions.

[11] Mr Taumanu, you can stand please. Your sentence today is 12 months home detention and that is going to be at [address deleted]. There will be nine months post detention conditions that are set out in the report. I am going to give you a sentence of community work as a further punishment and that is going to be 150 hours. So the sentence today is 12 months home detention, nine months of conditions after that is completed and 150 hours community work that applies to all charges.

P G Mabey QC District Court Judge