R v Gotz [2018] NZDC 20256 (26 September 2018)

Last Updated: 10 June 2019

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

IN THE DISTRICT COURT AT BLENHEIM I TE KŌTI-Ā-ROHE KI TE WAIHARAKEKE

CRI-2018-042-000090

[2018] NZDC 20256

THE QUEEN

v

TUATAHI TEPARAU GOTZ

Hearing:	26 September 2018
Appearances:	J R T Crawford for the Crown R W Ord for the Defendant
Judgment:	26 September 2018

NOTES OF JUDGE D C RUTH ON SENTENCING

[1] Mr Gotz, you are before the Court today for sentence having been found guilty by a jury of two charges, one of burglary and one of assault with intent to injure.

[2] You, as was displayed on the video shown to the Court and the jury, went to the door of the room occupied by the complainant at [location deleted]. It was clear to me that you were looking in to see and make sure he was asleep and no other way a threat to you. You then returned, it seemed to me quite calm and collected, there was no sign that I saw of temper. You went in and you viciously attacked a sleeping, defenceless man. You rained a number of blows down on him. The fact that he escaped with less injuries than might have been expected is a matter of mere chance and I do not take that into account any more than is necessary in your favour.

R v TUATAHI TEPARAU GOTZ [2018] NZDC 20256 [26 September 2018]

[3] The fact of the matter is, you went in in a very cowardly and thuggish way and dealt to this man because something had upset you. As I say, this was not a display of temper, however, this was cold and calculated.

[4] You went into this room knowing he was in there and burglary was an entirely proper charge for you to face and the jury was satisfied beyond reasonable doubt that the charge was made out, as was the accompanying assault, of course.

[5] The background to the matter is a little unclear and I accept that, Mr Gotz, because it seemed to me that there was room for the view, again returning to the video footage, that we saw that the female who is displayed within that video footage may have had a little more to do with this than she would let on. However, the fact of the matter is she did not face charges, Mr Gotz, you did and it is you who has to be sentenced for what went on here.

[6] In advance of today the Crown has filed a memorandum for guidance to this Court as to how the sentencing should be dealt with. The Crown refers me to the fact that this, unlike some burglaries, has an element of home invasion. That is because this man was doing nothing but sleeping in his own bed and you knew that because you had previously looked to see that he was in there and so I think that is an aggravating feature. Obviously, there was an attack to the head and he was vulnerable as I have said.

[7] You have a long list of previous offending, not just for burglary but also there are, within your list, matters of concern in terms of your resort to violence when that is required in the particular situation in your perception. And so you have a conviction for assault with intent to injure earlier for which you received 18 months’ imprisonment, that is one half of the maximum penalty available and that tells me that that was no insignificant event.

[8] You also were most recently sent to prison for the crime of excess breath alcohol and being an unlicensed driver. You were given imprisonment there and you were also subject, of course, to release conditions on that sentence when you committed these offences.

[9] The offending that occurred then was sentenced in June 2017 and you were released and, as I say, you were subject to standard and special release conditions which were intended to assist you and to try and take you away from the offending you had previously embarked upon in your life. However, that obviously did not work because, as I say, you then offended in this serious way.

[10] You have been in custody now for some time and I accept that you have been on EM bail for quite a period of time, about 22 weeks Mr Ord tells me, and you are entitled to some recognition of the EM bail factor. I am not allowed to give you any consideration for time in custody because that is a matter that will be adjusted by the prison authorities.

[11] The Crown suggest that I should give you only a limited credit for your time on EM bail because, of course, it was not a particularly successful period for you and indeed, you took off your ankle bracelet, or cut it off, and you were missing for about 10 days.

[12] As to the charge of burglary, one of the cases that has more recently been quoted for the purposes of setting starting points is Arahanga v R and it is now settled law that for a dishonesty type burglary at the lower end of the scale, it is not uncommon for a starting point to be somewhere between 18 months and two years and six months.1

[13] The position that Mr Ord takes, and I can understand it, is that this burglary is different from the ones that you have previously been involved with because your intention and purpose, I am satisfied, was the attack on this man rather than to steal anything from him.

[14] There are two cases which have been quoted to me which have some similarities to yours and from which I derive some assistance. The first is a case of R v Tuata-Chaney where there was a person who came to a residential property, was told to go away so of course knew that the resident was inside.2 He then threatened

1 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189

2 R v Puata-Chaney [2016] NZDC 22054

and in fact threw a deck chair at a window cracking it. There was no actual assault in there but there was a theft. The Court in dealing with the sentencing there said at para [8] of the decision, “This is more than a case of burglary where there is a risk of confrontation. In this case this was a deliberate confrontation by you,” and that fits neatly with what you did on this occasion. The starting point there was two and a half years for the burglary charge.

[15] The second case which you have heard me discuss with Mr Ord is the case of Te Moananui v R.3 In that case two persons went to a property and the victim, who was elderly in that case, was asleep in a chair. That person was viciously assaulted and the persons there also faced, as did you, charges of burglary and assault with intent to injure. The sentencing Judge there took two and a half years as the starting point, given the aggravating features which are similar to yours, the nature of the burglary, the knowledge that the person was in the property, the fact of premeditation and vulnerability of the victim, all of which apply in your case, and adopted a starting point of two and a half years’ imprisonment.

[16] In that case there was then an uplift of two years to cover the fact of the actual violence and I observe that Mr Te Moananui was, in fact, only a party to that violence because it was not he who delivered the blows but he was there in support of his friend. Having reviewed the case, the High Court Judge there said that the two years uplift was too much but that, on the other hand, this type of burglary, given its features, could have had a starting point of three and a half years and with a 12 month uplift for the assault with intent to injure, he got to four years and seven months. And so that is a background against which I have to consider your case.

[17] The Crown’s view is that your case if more serious than that of R v Puata- Chaney but perhaps not as serious as that for Mr Te Moananui. The Crown suggest that a starting point of two and a half years would be appropriate with an uplift of eight months to reflect your extensive history and this offending while subject to release conditions. The Crown accepts that there may from that be a relatively minor discount for your EM bail time.

3 Te Moananui v R [2014] NZHC 2320

[18] Mr Ord, on your behalf, takes a rather different view. He suggests that the Court should take the view that this was not the sort of burglary that has been prevalent in your previous history and a type of offending which Mr Ord submits on your behalf is something you now no longer take part in and that I should view this really as a matter of jealousy perhaps and a loss of temper and an inability to process thought patterns sufficiently quickly to deter you from this type of behaviour.

[19] In that regard Mr Ord has provided me with a report in 2014 which talks about your mental health and intellectual functioning. This was a report that come in from Mental Health and Addiction Service, as I say, was dated 25 September 2014. I accept, therefore, it is not entirely up-to-date but it does cover one of the matters that was raised on your behalf and that was about hearing voices. The view of the clinician who provided this report was that they are not the result of any mental illness on your part, rather they are a symptom of anti-social personality trait which you have. The consultant psychiatrist who provided the report said there is not any psychiatric treatment indicated. You are, however, I accept on some medication, or were, at the time of this.

[20] In those circumstances, I see no basis upon which there should be any reduction for you on the basis of any perceived intellectual or psychiatric functioning. The link simply is not made out and in fact, if anything, on the report is dismissed.

[21] I turn to the pre-sentence report. You maintain your innocence in this matter so there is no remorse. It would be contrary to common sense to suggest you have remorse where in fact you do not agree you committed the offence in the first place. You say that you are not guilty, you are caught in a racist system, you are just another number. Well, none of those is true, Mr Gotz. You are the author of your own destruction. No one is imposing this on you. You have done this yourself. Your race is of no consequences in this situation at all. The position that the report writer reaches is that a term of imprisonment is the only viable sentence for you and that seems to me to be an inevitable conclusion.

[22] I reach the view, having regard to all the cases I have read that the starting point here, Mr Gotz, is one of three years’ imprisonment. I agree with the Crown’s estimate

of an eight-month uplift for your extensive history and offending while subject to release conditions, that takes me to three years and eight months.

[23] You were 22 weeks on EM bail, however, as I say that was not a time that went very well for you but I am prepared to give you what might otherwise be regarded as a generous discount for EM bail time of two months.

[24] You are, therefore, on the burglary charge sentenced to three years and six months and six months concurrently on the assault with intent to injure.

D C Ruth

District Court Judge