R v Huata [2012] NZHC 2735 (18 October 2012)

Last Updated: 26 October 2012

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-082-000382 [2012] NZHC 2735

THE QUEEN

v

THOMAS JOHN HUATA

JAMES MAXWELL NGARI HUATA

Counsel: S B Manning for Crown

J S Jefferson for Prisoner Thomas Huata

M J Phelps for Prisoner James Huata

Sentence: 18 October 2012 (at Napier)

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Thomas Huata, you are to be sentenced on four charges arising from the wounding of Paul Kahukura on 29 October 2010 and your subsequent attempt to avoid responsibility for that incident. You pleaded guilty on the first day of your trial to charges of theft of a car, wounding with intent to cause grievous bodily harm, arson and attempting to dissuade a witness.

[2] James Huata, you appear for sentence having pleaded guilty at the same time to the two principal charges, that is less the theft and arson counts.

[3] In sentencing you, I will follow the following process. I will first identify a starting point, which is the period of imprisonment that reflects the seriousness of

R V HUATA HC GIS CRI-2011-082-000382 [18 October 2012]

your offending generally. In setting that starting point I will be treating you both as equally culpable. While it was you, James, who pulled the trigger, Thomas, you were fully involved in the offending and were solely responsible for the theft and arson.

[4] I will conclude by explaining why I have decided in this case not to impose a minimum period of imprisonment.

Your offending

[5] Your offending was a classic case of gang retaliation. Wairoa has a very unfortunate history of such shootings. You are both members of the Black Power gang. On 26 September 2010, a Black Power member, Judas Rarere, was shot outside the Mongrel Mob headquarters in Wairoa. On the afternoon and evening of

29 October 2010, you both went out with the express purpose of avenging that incident.

[6] Thomas, in the early afternoon, you went to a friend’s house in Napier. Another friend was there. You were angry that this other person had left you stranded at a rural address earlier in the day, and you demanded his car. You then took it. He was scared of you and thought you would assault him if he did not give you his car.

[7] Shortly afterwards, you went to pick up James, and another Black Power associate. The three of you then drove to Wairoa with the goal of finding and shooting a Mongrel Mob member. Any member. It didn’t matter. You didn’t care. You had a sawn-off shotgun for that purpose.

[8] You arrived at the Mobil Service Station at Bridge Street, Wairoa, at about

6.30pm. You saw the victim, Paul Kahukura, filling his vehicle before getting back into the driver’s seat. He was wearing a Mongrel Mob patch, so therefore he was an acceptable target – even though his wife and 13 year-old son were with him. His son went inside to pay for the petrol. You then drove down a side street. James got out,

put on a bandanna, armed himself with a shotgun and approached Mr Kahukura’s

vehicle.

[9] James, you then ran up to the closed driver’s window. You aimed the shotgun at Mr Kahukura from about 10cm away, and fired. He was struck on the arm. He then rolled over to protect his wife. Undeterred, you stuck the shotgun through the window of the car and fired again. This time, you hit Mr Kahukura in the buttock, causing a very large wound. You then ran back to the stolen car and Thomas, you drove away at speed.

[10] Mr Kahukura suffered very serious injuries. That he survived was only a matter of chance. He suffered multiple lacerations to his right arm and lower chest, a large wound and extensive tissue loss in his right buttock, and many metal fragments had to be surgically removed from his chest.

[11] After leaving the scene, Thomas, you stored the car for a short time at Raupunga, before retrieving it on 31 October 2010 and driving it to a location in Waikare where it was set alight. It was completely destroyed.

[12] That was the theft, grievous bodily harm and arson offending. The attempt to dissuade a witness offending occurred some months later. In early 2011, before either of you had been arrested, the witness concerned made a statement to police describing an apparent admission by you James to the offending at a party. On the basis of that, he became a Crown witness in your trial. In April 2012, in preparation for the trial, your lawyer was sent an edited copy of his statement. In it, the witness was identified as “Witness A”. In June 2012, Witness A was in custody at the same prison where you were being held. He received from you a brown envelope containing a copy of his witness statement and letters from each of you. The letters were threatening. They said you knew the person was Witness A, and that if he testified he or his brother would be seriously harmed. James, your letter threatened the witness with his life.

Starting point

[13] I turn first to the shooting. This is plainly the most serious charge. All are agreed that this offending involved a weapon, extreme violence, I conclude it involved pre-meditation, it involved serious injuries and it arose in the context of gang warfare. Those factors all seriously aggravate the offending. They place the case squarely in the top band of categories of offending identified by a Court of

Appeal judgment called Taueki.[1] It is also relevant that the shooting took place in

public. While the shots were controlled, the location meant that if anything went wrong there was a risk of injury to members of the public. In my judgement, having regard to similar cases,[2] a starting point of 11 years’ imprisonment is appropriate.

[14] Regarding the attempting to dissuade a witness charge, that clearly requires a cumulative sentence. It is a crime that is different in nature, and separated very much in time, from the shooting. What I must decide is by how much I should increase the 11 year starting point to take account of that offending, given how serious it was and the requirement that your sentences appropriately reflect the totality of your offending and are not disproportionate.

[15] In Rakete v Police,[3] Andrews J observed that a starting point of three years’ imprisonment is a benchmark for relatively serious cases of perverting the course of justice, and a starting point of 18 to 24 months’ imprisonment is appropriate in less serious cases.

[16] In this case I propose taking an approach which is generous to you both. I will increase your sentences by just two years’ imprisonment to take account of the charge of perverting the course of justice.

Adjustment for personal factors

[17] Whilst I recognise that James is two years younger than Thomas, and that in some circumstances that might justify an adjustment, in my assessment the ages of

you both, and the differences in your age do not warrant any form of discount. You are both young men who have offended in a serious way and you must be treated as adult offenders.

Discount for guilty plea

[18] I will provide a discount for your guilty pleas. That discount will reflect:

(1) The fact that your pleas occurred at the commencement of your trial;

and

(2) That your guilty pleas did alleviate the need for the trial to continue. [19] In my assessment your guilty pleas merit a reduction of nine months’

imprisonment.

Minimum period of imprisonment

[20] The issue that has caused me the most concern in determining your sentences is whether I should impose a minimum period of imprisonment. I have chosen not to do so for the following reasons:

(1) You are both still young and should be encouraged to do all you can to achieve parole at an early juncture. The letters I have received, particularly from your grandmother, suggest that both of you have the capacity to respond to prison rehabilitation programmes;

(2) You have no relevant previous convictions;

(3) The sentence that I have imposed is a very long sentence and appropriately reflects the need:

(a) to hold you accountable for the harm that you have done; (b) to denounce your conduct;

(c) to deter others from committing the same or similar offences; and

_{(d) to protect the community from you both.}

Sentence

[21] Before formally passing sentence I record that I have reflected on the overall appropriateness of the sentence that I have arrived at. I believe that sentence is the least restrictive sentence that I can impose in the circumstances with which I have been presented.

[22] You are now both sentenced to a total period of imprisonment of 12 years and three months on the charges of wounding with intent to injure and the charge of dissuading a witness to which you have pleaded guilty. James, the remaining two charges that you have pleaded guilty to will be dealt with by way of concurrent sentences of two years’ imprisonment.

_{[23] You may now stand down.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Napier

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[1] _{R v Taueki [2005] 3 NZLR 372 (CA) at [40].}
[2] _{R v Raroa [2012] NZHC 1279 and R v Duncan [2012] NZHC 181.}

[3] Rakete v Police HC Auckland CRI-2009-404-179, 21 August 2009 at [25].