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High Court of New Zealand Decisions |
Last Updated: 14 August 2012
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2011-082-0101 [2012] NZHC 1814
THE QUEEN
v
CHARLIE DUNCAN TERRENCE TAHURI
Hearing: 20 July 2012
Counsel: RJ Collins for Crown
J Verry for Prisoners
Judgment: 20 July 2012
SENTENCING NOTES OF RODNEY HANSEN J
Solicitors: Elvidge & Partners, P O Box 609, Napier for the Crown
(Email: cwalker@elvidges.co.nz )
J Verry, P O Box 78102, Auckland 1245 for the Prisoners
(Email: jennyverry@slingshot.co.nz )
R V CHARLIE DUNCAN HC GIS CRI-2011-082-0101 [20 July 2012]
[1] Mr Tahuri, you appear for sentence having been found guilty by a jury of wounding Allan Hubbard with intent to cause him grievous bodily harm. [Ms Duncan, found guilty of assisting Mr Tahuri to avoid arrest or conviction, arrived late for the sentencing – see [11] – [13].)
The facts
[2] The facts are that in February 2011, you and Ms Charlie Duncan were living together at a house in Apatu Street, Wairoa. You, according to evidence given at the trial, were a patched member of the Black Power gang. In the house next door lived Theodore Ruawai who was a patched member of the Mongrel Mob.
[3] On 13 February 2011, Mr Ruawai returned to his house about 7.00 or
8.00 a.m. in the morning, having attended overnight a birthday celebration at the Mongrel Mob headquarters in Wairoa. He was accompanied by three other Mongrel Mob gang members, including Allan Hubbard. For reasons which did not emerge in evidence, an argument started between you and Mr Ruawai. You shouted abuse at one another over the fence. At one point you were seen leaning out the window of your house yelling at him.
[4] A short time later, a distinctive red and black car owned by Ms Duncan left your house, drove off and returned a short time later. You then appeared on the driveway of your house, close to the fence that separated your house from Mr Ruawai’s house. You were holding a shotgun. You fired two shots in quick succession towards the neighbouring house. Mr Hubbard, who was standing at the front of the house, was hit in the shoulder by one of the shotgun blasts. He sustained a serious injury to his right shoulder. He was taken to the local hospital where 84 shotgun pellets were removed. Surgery, including skin grafts, was required. The doctor who treated him confirmed that his injury was consistent with a close-range shotgun blast.
[5] You were seen to leave the house soon afterwards with Ms Duncan. Text messages from her phone show that the two of you took refuge from the police in nearby Frasertown. They made it clear that you both knew that the police were at the scene at Wairoa. Ms Duncan gave herself up to the police the following day and you followed suit a day later. You both admitted being at the house at the time of the shooting but said you were asleep.
[6] The jury accepted the evidence of eye witnesses who positively identified you as the shooter. Your involvement was also confirmed in text messages later sent from another cellphone which was at the house. The jury obviously accepted, and so do I, that you were responsible for sending those messages.
Victim impact report
[7] Mr Hubbard has suffered serious physical and psychological injuries. His quality of life has been seriously damaged. He spent some weeks in the Hastings Hospital and then a week in Wellington Hospital having plastic surgery. He is left with ugly disfiguring scarring. His shoulder is still extremely sore. It keeps him awake at night. He still has about a hundred shotgun pellets in his shoulder. His personal life has been disrupted. He has had to relocate to Flaxmere where he is living on his own. He can’t work. He is reliant on a benefit. He can no longer drive and his license has been revoked. He is fearful of a repeat attack. He doesn’t sleep well. The shooting has obviously aggravated mental health issues that he thought he was bringing under control at the time of the shooting.
Personal background - Mr Tahuri
[8] You are a 21-year-old male of Ngati Kahungunu descent. You and your five brothers were raised in the Wairoa area. I gather that yours is a close family. You have a strong relationship with your parents and brothers. Although raised in the Wairoa area, you completed your secondary schooling in Brisbane where you attended a sports academy specialising in rugby.
[9] I was not provided with information about your work history but I am told by Ms Verry this morning that you have been employed more or less continuously since leaving school in the forestry industry. You have been before the courts previously but for relatively minor offending – disorderly behaviour and the like. Screening tests have suggested no harmful patterns of alcohol or drug abuse.
[10] You told the probation officer that you were not a member of a gang but three of your brothers are members of the Black Power gang and it is clear that you identify closely with Black Power. You also claimed to have a good relationship with members of the local Mongrel Mob gang and with your neighbours. You continue to deny your guilt.
Prisoner Duncan
[11] At this point in the sentencing of Mr Tahuri, Ms Duncan (his co-accused who it was intended would be sentenced at the same time and who was held up in arriving at the Court) has arrived. It has been agreed that I should complete sentencing them both at the same time. For that purpose, I have, during the time it has taken for Ms Duncan to go into the dock, received further submissions and information from Ms Verry, who is appearing for both prisoners.
[12] Ms Duncan, before I resume to talk about Mr Tahuri’s personal position, I simply want to record the facts as I find them to be in relation to your involvement in this whole matter.
[13] You were living with Mr Tahuri at the time in Apatu Street. I have already made reference to the fact that prior to the shooting, your car was seen to leave the address and return shortly afterwards. And, after the shooting, you left the house with Mr Tahuri at the back of the car. I have recorded the fact that text messages from your phone showed that you had both taken refuge from the police in Frasertown. They made it clear that both of you knew the police were at the crime scene. You gave yourself up to the police the following day.
[14] I now resume the discussion I had commenced to Mr Tahuri’s personal background. I have received several references, Mr Tahuri, from your former employers. One is from a silvaculture training and employment opportunities trust, the Takapua Trust. The manager of that trust has spoken of your keen interest in the forestry industry, your excellent work ethic and your being hardworking and reliable. He obviously assesses you to be a young man of considerable potential. To similar effect are references from two who have employed you in the shearing industry while you were awaiting trial. You are said to have proved yourself a very hard worker and to have learnt quickly about the job and applied yourself diligently.
Personal background – Ms Duncan
[15] You two, as I understand it, have been in a relationship for between two and a half and three years. Ms Duncan, you are a 20-year-old woman. Like Mr Tahuri, you live in the Wairoa area and also have, it would seem, had the benefit of a good relationship with your immediate family who continue to support you while not condoning what you did.
[16] You are unemployed but have engaged in casual work on a neighbouring farm. I have read the testimonial provided by Mr John Ross, a neighbouring farmer whom you have helped out from time to time. He describes you as a hard worker and a thoughtful caring person, respectful of your elders and trustworthy. He particularly comments on the way in which you have helped and cared for his elderly parents.
[17] You have not previously offended. You are assessed at low risk of reoffending, although your denial of this current offending and your ongoing association with gang members are thought by the probation officer to increase the risk of reoffending.
Starting point
[18] Mr Tahuri, I am going to address your sentence first. As you will have been told, a sentence of imprisonment is inevitable and it must be a substantial one. Sentencing for serious crimes of violence is governed by a case called R v Taueki.[1]. It prescribes sentencing bands according to the seriousness of the offending. This largely depends on the aggravating features present. In your case, it is accepted that there were more than three aggravating features which puts you in what is called band 3 of Taueki which calls for a prison sentence of between nine years and 15 years. The particular features of your offending which are identified and accepted as
bringing you within that category are:
[19] First, the extreme violence involved. The shooting of Mr Hubbard at close range clearly qualifies for that description.
[20] Secondly, the fact that the shooting was premeditated. I have referred to the evidence that you left the address and returned shortly before the shooting which establishes to my satisfaction that you went away and obtained the firearm from elsewhere, even though your argument with Mr Ruawai had finished.
[21] Thirdly, there are the serious injuries inflicted on Mr Hubbard which I have already referred to. They are going to cause him pain and suffering, probably for the rest of his life and a permanent disability.
[22] Fourthly, there is the use of a weapon. The use of a firearm is a serious aggravating feature. As the Crown has submitted, it is only by good fortune that Mr Hubbard wasn’t killed.
[23] Finally, there is the element of gang warfare. Although on one level this was a dispute between neighbours, what was clearly a gross over-reaction can be explained only, in my view, by the ongoing hostilities between the Black Power and
Mongrel Mob gangs in Wairoa. In my view, the argument would not have led to the shooting were it not for the bad blood that exists between the two gangs in the region. This is, I accept, well known and was described in a great more detail by Lang J in the sentencing of R v Raroa.[2] I accept Mr Collin’s submission that the ongoing violence between the two gangs in the Wairoa area makes considerations of deterrence and denunciation of particular importance.
[24] The sentencing of Mr Raroa is helpful also for the purpose of indicating an appropriate starting point within the range of nine to 15 years that I have already indicated. He adopted a starting point of 9½ years on the same charge as you have been convicted of in which a shotgun was also used. The difference was that the prisoner in the case he was dealing with, Mr Raroa, did not himself discharge the firearm. Lang J said that had he been responsible for pulling the trigger, a starting point of 11 or 12 years imprisonment would have been appropriate. It is on that basis that the Crown submits that a starting point for sentence in that range is appropriate and your counsel, Ms Verry, does not dispute that.
[25] I accept that somewhere at the mid-point of the range of band 3 is indicated. I consider that anything less than a starting point of 11 years would not adequately reflect the seriousness of your crime and that is the starting point I propose to adopt.
Aggravating and mitigating factors
[26] There are no aggravating features. Your previous convictions would not justify any increase to the starting point. It remains for me to consider whether there are mitigating factors which can justify a reduced prison sentence.
[27] I consider it appropriate to recognise that, notwithstanding the minor scrapes you have had with the law, your conduct on this occasion was quite out of keeping with your previous behaviour. The references that I have read this morning have confirmed the impression that I have that you are basically a good man, of considerable potential, a hard worker who can really do something with your life. That makes it all the more inexplicable that you should have done what you did.
There may be causes that have not been disclosed to me. Otherwise, I can only attribute your offending to a moment of madness, reflecting your youth and your immaturity. With youth and immaturity goes impetuosity, sometimes mindless bravado and misplaced pride, and it seems to me that what happened here was a combination of those kind of things and an inability on your part to walk away from an argument that should have been left where it was.
[28] Coupled with the influence that your youth played on the offending, there is the importance of promoting rehabilitation in younger people who have obvious potential. While you have not acknowledged your offending and your risk of reoffending is assessed as high, it is, in my view, in the public interest that the Courts recognise that a lengthy prison sentence risks serious damage to the prospects of rehabilitation of a young person. Its effects should be ameliorated to the greatest extent possible, consistent with the paramount need to denounce your conduct, deter others and to recognise the harm that you have done to the victim and the community.
[29] Giving you the most generous credit that I can, to take account of those factors, Mr Tahuri, enables me to reduce your sentence from a starting point of 11 years, by 18 months to one of 9½ years. Let me say that it is a sad duty to sentence a young man of your potential to a sentence of imprisonment. But, I am afraid, the level of violence involved, the harm that was done, the seriousness of the offending, gives me no choice.
Sentence – Ms Duncan
[30] Ms Duncan, you are in a very different position. There is no tariff or scale for sentencing on a charge of being an accessory. That is because the circumstances vary so widely. What you did - and I exclude from consideration as irrelevant what assistance you might have rendered misguidedly before the incident - was to assist Mr Tahuri to get away from the scene and evade apprehension and to help with the concealment or disposal of important evidence which was the firearm.
[31] It is important that I impose a sentence that appropriately reflects the seriousness of what you did but is in line with sentences imposed in other cases involving similar circumstances.
[32] Mr Collins has referred me to the case of R v Duff[3] where a starting point of
18 months imprisonment was imposed in broadly similar circumstances. However, the assistance in that case was to avoid apprehension on a charge of murder. The assistance was provided over a much longer period of three weeks. It resulted in a great deal of cost and inconvenience to the police which did not arise in your case.
[33] Here, Mr Tahuri was on the run for a matter of days only and you gave yourself up to the police. I do not think a prison sentence of more than 12 months could be justified.
[34] You are also a relatively young person, just 20 years of age. You have had no previous convictions of any sort. You are clearly a person of good character. In addition to the reference I have referred to from your neighbour, I have another reference which attests to your positive character attributes and also the work that you have carried out as a shearer.
[35] Your relationship with Mr Tahuri and your misguided loyalty to him has dragged you into doing something that I accept is completely out of character.
[36] It is accepted that, as a first offender, it is appropriate for you to receive a sentence of home detention and I have a report confirming that your parents’ home is suitable for electronic monitoring and that your parents are agreeable to your remaining there for the duration of your sentence.
[37] Taking into account the prison sentence that would otherwise have been imposed, your youth and your previous good character, I consider that the
appropriate sentence in your case should be one of five months home detention.
[38] So if you would both now please stand and I will formally impose sentence on you.
Sentence – Mr Tahuri
[39] Mr Tahuri, you are sentenced to a term of 9½ years imprisonment.
Sentence – Ms Duncan
[40] Ms Duncan, you are sentenced to five months home detention on the following conditions:
(a) You travel directly to 571 Waitai Valley Road, Wairoa and wait there until your home detention connection is completed by a probation officer and security officer;
(b) You reside at that address and do not move without the prior approval of your probation officer;
(c) You remain at that address at all times unless an absence from the residence has been authorised by your probation officer;
(d) You abstain from the consumption of alcohol and illicit drugs for the duration of your sentence of home detention; and
(e) You not associate or contact in any way any person or groups of persons identified in writing by your probation officer unless you have prior written approval from a probation officer.
[1] R v Taueki
[2005] 2 NZLR
372
[2] R v Raroa
HC Gisborne CRI-2011-082-0360, 8 June 2012
[3] R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010, Lang J.
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