R v Rakuraku [2014] NZHC 3270 (12 December 2014)

Last Updated: 6 June 2015

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-020-3916 [2014] NZHC 3270

THE QUEEN

v

_{STEVEN TIWINI RAKURAKU}

Counsel:	S B Manning and J E Rielly for Crown Mr Rakuraku in person E R Fairbrother QC and L P F Lafferty as amicus curiae
Sentencing:	12 December 2014

_{SENTENCING NOTES OF WILLIAMS J}

Introduction

[1] Steven Tiwini Rakuraku you appear today to be sentenced on 10 separate counts.

[2] In relation to Shaun Price: (a) kidnapping;

(b) threatening to do grievous bodily harm; and

(c) injuring with intent to injure (representative). [3] In respect of Wi Kuki Rewharewha:

_{(a) assault.}

R v RAKURAKU (SENTENCING NOTES) [2014] NZHC 3270 [12 December 2014]

[4] With respect to Johnny Wright:

(a) injuring with intent to injure; (b) kidnapping; and

(c) murder.

_{[5] With respect to Lillian Hilton:}

(a)	being a male, assaulted (representative);	her between May and June 2011
(b)	being a male, assaulted (representative); and	her between June and July 2011

(c) attempting to pervert the course of justice.

[6] Clearly the most important matter for sentencing purposes is the murder of

Johnny Wright. Much of what I will say hereafter will focus on that issue.

Factual basis for sentencing

[7] But let me start first for the factual basis for sentencing.

[8] The offending against Shaun Price occurred toward the end of 2010. The evidence said you needed somebody to drive you to Hastings. According to Mr Price, you told him you wanted a ride to Taupo and then forced him to keep going, punching him repeatedly on the journey. And then in Hastings you held him there against his will by threatening serious harm to him. At one point you held a pair of scissors to his throat. And on other occasions you punched him in the face. These attacks caused several injuries to his face and the loosening of his teeth, he said.

[9] Your offending against Wi Kuki Rewharewha followed the same sort of pattern. There was a warrant for your arrest at this stage and you were lying low and without money. You walked into his life and took it over. You took over his accommodation, his Eftpos card and finances, his phone and his car. So Mr Rewharewha met those two needs for you – a place to hide and some money. You had him do work for you and you beat him.

[10] Now Johnny Wright was a mental health patient as we have discussed today. He suffered from social anxiety and much preferred his own company. He took medication for his condition.

[11] He was described by his friends and by professionals who gave evidence as “a gentle soul”, “delicate”, and “not at all robust”. The Crown was right when it said that Mr Wright was the perfect target for your MO. You could easily bend him to your will with your physicality and your personality. He too provided you with a safe haven from authorities and money which you wouldn’t otherwise have.

[12] You and Lillian Hilton moved into Johnny Wright’s flat at Warwick Rd between May and June 2011. You beat Johnny Wright on a number of occasions there at Warwick Rd. One of the beatings described by Lillian as “a hua of a hiding” over her, and your fears about Johnny Wright’s intentions toward her. And another, it was said, when Johnny Wright found out that he had been evicted. And then there was the beating you gave him when you sent him south on an errand and his car (actually it was Wi Rewharewha’s car) ran out of petrol in central Hawkes Bay. Johnny Wright’s blood was all over the Warwick Rd flat, despite the landlord cleaning the place up after you moved out.

[13] Then you moved into your own whanau’s place in Caroline Rd and you held him there (thus the kidnapping charge) against his will. He was at that stage injured and unwell and you did not want either the health or law enforcement authorities finding out about it. So you moved him early in the morning when no-one would see him. You no doubt hoped that he would heal but you beat him there too. And you beat him with a taiaha until it broke. At the end, he was indeed so unwell he could

no longer walk without assistance to the toilet. So you beat him again when, being that ill he soiled his mattress.

[14] Once again despite you and Lillian having cleaned the house thoroughly in order to hide the evidence, there remained extensive evidence of the beatings at Caroline Rd – residual blood about the place. You took his money and you stole his persona for communications with the health authorities and WINZ. And in your communications with his parents – you held them at bay by pretending he wasn’t there.

[15] The evidence of the pathologist was that he had suffered 36 fractures to his

24 ribs. The probable cause of death was that the structure of his rib cage was so undermined that he could no longer breathe properly. According to medical evidence, he would have suffered increasing drowsiness from the carbon dioxide overload that would follow from structural undermining, then lying down, tired, confused, his brain slowly swelling until he became completely unresponsive. He passed away at some stage around the 23^rd June. The one blessing was that he must have died peacefully, the pain lost in a merciful fog of oxygen deprivation and then unconsciousness.

[16] The Crown case was based on alternative scenarios: either you intended to cause Johnny Wright injury knowing the injury could cause death but consciously taking that risk; or while meaning to cause injury in order to facilitate Johnny Wright’s kidnapping, you came to kill him. The verdicts and evidence provide good support for either scenario, in my view.

[17] Mr Fairbrother emphasises the fact that your actions during the few hours before you found Johnny Wright lifeless, do not support the idea that you knew he was dying at all. This, Mr Fairbrother said, reduces your culpability.

[18] Mr Fairbrother pointed to the fact that you and Lillian went to the library and shopping on bicycles and then got a taxi ride home. You took the puppy with you. These sorts of mundane actions suggested that you had no idea of the danger that Johnny Wright was in. I will come back to these matters.

[19] Let me turn now to the charges in relation to your partner at the time, Lillian Hilton. There were assaults on her up until the date of Johnny Wright’s death and then afterwards these assaults reflected your standard bullying techniques for dealing with people who challenged or disagreed with you, or who you needed to control.

[20] And finally, you were found guilty of counselling Lillian Hilton to make up a story about Johnny Wright having tried to rape her so as to provide (erroneously as it turns out) a provocation defence.

[21] This is a brief summary of the facts surrounding the 10 counts you face for sentencing. They reflect your MO. Subjecting weaker victims to emotional and physical bullying in order to obtain money, a hiding place and/or forced labour or companionship for you. There is an element of this theme in earlier sentencings you have faced.

Victim impact statements

[22] I turn now to the victim impact statements. We heard them delivered by the Wright family (en masse), and on behalf of Lillian Hilton. The words of Nellie Wright perhaps most demonstrate how you not only took a life but traumatised a family.

[23] The Wrights are still struggling with the idea that their loved son, brother, uncle – a charismatic, eccentric and gentle soul it seems was taken from them in such a brutal way. Parents should not have to bury their children in any circumstances. But they should never have to farewell a child in these circumstances.

[24] I cannot imagine how a whanau can begin to recover from this: knowing that you hid him from them when they were looking for him, and they did not look more; having to learn of the terrible circumstances of Johnny Wright’s death during the course of the investigation; and then having to relive those circumstances during the trial; and then to come back to these emotions once again during this sentencing process in a very open and public way with direct participation. These steps that

they have gone through over the last three years must be like constantly repeating the trauma that they have suffered.

[25] But there is power in a whanau– as a group – publicly, before me and you Mr Rakuraku, bearing witness to the wrong you have done and the pain you have inflicted on so many. And the whanau must take back some of their collective power given the injury you have inflicted upon them. I congratulate them on their courage in bearing witness to you in these most difficult circumstances.

[26] As Nellie Wright said in her statement, the Wrights are a “loyal loving extended family with amazing friends”. I watched them as they doggedly sat through this trial knowing what a painful process it was going to be. The whole family. This took true courage.

[27] Lillian Hilton too has been traumatised by this experience you put her through. And she has written of that. There are however some hints that you might have been the tipping point for her and that she has made real efforts to get her life back together since those events in 2011. That was the impression I had at the trial and from reading her more recent victim impact statement. Without seeing her today, I hope she is still doing this.

[28] So I acknowledge the courage of all who provided statements to the Court, and to you Mr Rakuraku, on behalf of the victims.

Cultural impact report

[29] Your oldest sister Maraea Rakuraku provided a cultural impact report as mandated by s 27 of the Sentencing Act. In some ways it too was a victim impact statement. It shows that your whanau also is a victim of your offending as they have stuck by you while your relationship with them has been tested through your offending on this and on other occasions. Yet there is hope, for the bonds remain strong, as your sister so powerfully attested. She bore witness to the fact that you are intellectually sharp (as if there were any doubt) and that you are physically strong. She tells the story of a tough childhood, a broken home, an unsettled upbringing, endemic violence, the confronting of racism in your and her life, and your wrong

turn to patch up with the Mob. A story punctuated, unquestionably, by its own trauma.

[30] Maraea attests nonetheless to the fact that your rivers are Wairoa and Tauranga, that your mountains are Whakapunake and Maunga Pohatu and that your iwi are Ngāti Kahungunu and Tuhoe. She confirms, as I can see, that despite the damaging pressures of your upbringing, you are a man who is immensely proud of your iwi and hapū, and of your Māori identity. This has not been clouded out by the violent madness of Mongrelism.

[31] Maraea’s is a cultural cry from the heart. As a big sister she inevitably blames herself. And in doing so, lays herself open to all in the courtroom today. And she makes a plea. A plea that some way be found to mend your broken wairua and make you whole again – tinana, wairua, hinengaro. You are, she says, a man of such extraordinary talent which you have applied to such destructive purposes. Even now you pit your pride and strength of character against the prison authorities that try to break you, she wonders how long you will be able to sustain this before the system ultimately succeeds in its purpose. And you come back to her even more broken than you were when you went to prison.

[32] She tells the story of Tuhoe and the loss of its land, the loss of its people, and its hope in those terrible events of the 19^th century. A story also punctuated by trauma. Of which she says your story is a continuation. And she tells the story of Tuhoe’s resurrection in the settlement of its claims – just this year. She hopes that that too might be your story one day.

[33] So, as I said, this report is its own kind of victim impact statement: of a people; of a whanau; and of you. As we search for a reason – not an excuse, but a reason – for why you would do these cruel and brutal things to a man so vulnerable to your clever plans and your over-the-top violence.

[34] Your sister wants to make a gesture to the family of Johnny Wright on behalf of your whanau. I’m quoting from her report when she says:

... This is not to place value on the life of [Johnny]. We could never measure how that is for them. This is to demonstrate how truly, deeply and sincerely sorry our whanau are for his death and the role Steven played in that. ... This is about acknowledging the ongoing sorrow and loss felt by Johnny Wright’s whanau and how we too wish with our hearts, our two families were not connected in this manner.

[35] She offers to meet with the Wrights one day, if now is too soon, to assist both sides in some sort of healing.

[36] Now it is not for me to direct any of this. I simply commend Maraea Rakuraku’s offer, backed up (as it turns out today) by Steven himself, and ask that the Wrights consider it in the healing spirit in which it is made.

[37] Now, I accept, is probably not the best time but the time will come when it is the right time. For there is, the Good Book says, great power in forgiveness.

Minimum period of imprisonment

[38] Mr Rakuraku you have been convicted of murder and there can be no doubt that a sentence of life imprisonment must be imposed. The minimum period of imprisonment in relation to a life sentence is 10 years. The Crown argues that this is not sufficient.

[39] The Sentencing Act contains a list of factors that must be taken into account in considering whether yours is a case for which a minimum period of imprisonment of at least 17 years should be imposed. The Crown says three of those factors are present in this case. First, the murder occurred while you were committing another serious offence – kidnapping. Second, it involved a high level of brutality, cruelty, depravity or callousness. And third, Johnny Wright was a particularly vulnerable human being.

[40] In your extensive submissions Mr Rakuraku, I must say as an aside that I couldn’t help thinking as you were delivering your analysis of the cases that it’s a great pity you didn’t go to law school instead of patching up. You could have made a great lawyer.

[41] Anyway you referred orally to a number of cases you say are applicable or comparable to your case or involved even more serious offending but involved lower minimum periods of imprisonment. And you have asked me to take all of those cases into account. I would say to you that my job here today is to look at this unique mix of facts in this particular case and so I will focus on analysing the facts in your case without an extensive assessment of the cases that you have referred me to.

[42] On the first of the factors that the offence was committed while another serious offence was being committed – kidnapping – there is no question of course that kidnapping is such a serious offence, the Sentencing Act itself says so. But Mr Fairbrother says that kidnapping may have been unrelated to your death, I don’t think that is possible. The evidence is clear, in my view, that you took Johnny Wright to Caroline Rd and held him there in order to prevent his injuries being

discovered. And you held him at Caroline Rd for that period until the 23^rd June

fearing discovery but administering further beatings, which beatings ultimately killed him. So the kidnapping and Johnny Wright’s death were intimately related. And there is no doubting that the first factor is present.

[43] As to the second factor, a high level of brutality, cruelty, depravity or callousness, Mr Fairbrother points to the fact that you were clearly unaware of the effect the beatings were having on Johnny Wright, because you were so surprised to discover that he had died. And the morning you discovered that he had passed away, was just a normal morning. You went to the library early in the morning and you went shopping on bikes. Mr Fairbrother suggests that you have, for whatever reason, unusual perceptions borne of a lack of self-awareness alongside some sort of obsessively compulsive controlling behaviour.

[44] You know Mr Rakuraku throughout this trial and the sentencing process you have impressed me as an intelligent man. And you have impressed other Judges in the same way. You have impressed me as an intelligent man who understands human behaviour well enough to be an arch manipulator – that’s your skill. For reasons related to your personality and background, you seem capable of great cruelty.

[45] I consider that you were aware of the risks of the ultimate effect of the beatings you meted out to Johnny Wright – how could you not? You just didn’t actually care. That is why you kept doing it. And you behaved as if nothing particularly serious was happening. You lacked insight, in my view Mr Rakuraku, because sadly you lacked empathy.

[46] I do not accept as you have said to me that you have limited executive functioning – quite the reverse in fact. No-one who listened to your submissions today could think that.

[47] There can be no doubt, in my view, that what you did today was brutal and callous. There were multiple beatings at two different venues over many days. But it’s equally clear that brutality and callousness was at a high level – indeed unique as Mr Manning said – not just because of the level but because of the duration. The law reports do not have a case like this in them. And the evidence speaks for itself – 36 breaks on 24 ribs – some probably with the taiaha. So you meted out a high level of callousness and brutality. There’s just no dodging that. The fact that I accept you didn’t expect Johnny Wright to die is beside the point. Lillian too was surprised but she attested (independently) to the savagery of the beatings. You don’t have to apprehend death to be highly callous about it. So the second of the Crown’s three factors is also present.

[48] The next factor is whether Johnny Wright was “particularly vulnerable” because of his mental health status. There is no doubt that Johnny Wright had some vulnerabilities but whether he was particularly vulnerable in the sense used in the Act might be a matter of debate. He was, to be sure, seen as gentle and non-violent. And he suffered from social anxiety sufficient to require medication. And of course you targeted him for that reason. I think that requirement is probably also met, but I don’t need to make a finding about that.

[49] There’s one point I wanted to make actually about the callousness so I am

going to come back to that Mr Rakuraku.

[50] You pointed to the fact that you administered a karakia at Johnny Wright’s grave when you buried him. And that while he was with you, you and Lillian (in particular) cared for his wounds. You said these are not the characteristics of a callous and brutal crime to a high level. I must say I don’t agree with that. I have no doubt that you delivered a karakia and you meant it. Anyone brought up in Waimana would do that. But I feel sure for myself that you did it out of regret and the need to expiate that regret. I don’t mean that in a pejorative way. It was an understandable thing to do but it does not reduce the callousness or brutality of the original act. And attending to the wounds is consistent with your fear in relation to those wounds and the prospect of being caught. It was in your interest as well as Johnny Wright’s for them to heal, as long as it didn’t involve anyone from a District Health Board or a doctor.

[51] So as I have said, I have no doubt in my mind that the callousness and brutality leg of s 104 is satisfied. All that means Mr Rakuraku, there must be a minimum period of imprisonment of at 17 years in this case.

[52] Despite your background and issues, I do not think it can be argued that such an outcome is manifestly unjust in all of the circumstances.

[53] I agree with your submission – well made – that such an imposition should be used only sparingly. The problem is this is a case that fits the description “sparingly”, and so it must be used. The Sentencing Act requires it.

[54] The Crown then argues that the minimum period should be higher at 18 or 19 years. The Crown points to the fact that you were on bail on unrelated charges and in breach at the time of the murder – I know you disagree with that; these are the offences for which you have now been sentenced; and of course you committed other offences against Mr Price, Mr Rewharewha, Mr Wright and Ms Hilton. The Crown says in addition you have prior convictions showing a similar pattern of violent bullying behaviour from 2001.

[55] In my view, the Crown is right that an uplift on the minimum period has got to be justified on those factors. Six months for previous relevant convictions and the

fact that you were on bail at the time, and a further six months for the charges that you face in the offending that I am having to deal with today.

[56] But there are also mitigating factors. Your difficult upbringing is attested to eloquently by your sister. A childhood of poverty, violence and racism. There is, I think, a real chance that you do suffer from post-traumatic stress disorder, and that perhaps you suffer from brain injury as well. Indeed given your background, a genuine likelihood of that.

[57] Your sister’s success in her chosen career no doubt brought about by her time away from home at boarding school on a scholarship – attests to the causative impact of your past on your current criminality. There is also the story of trauma and loss in the history of Tuhoe. The impact of that on succeeding generations who, marginalised and impoverished, sought solace first in millennial religions such as Te Kooti’s Ringatū and then in widespread self medication. Departure to the cities in search of work after the Second World War probably tore what was left of remaining social fabric for so many of those whanau.

[58] This is cumulative and relevant in my view. Your anger and aggression is partly a factor of your personality and you made free choices in that regard. But it is also partly a response to the drivers I’ve discussed that aren’t of your making at all; to the way the world responds generally to Māori boys and men from poor backgrounds. We must be honest with ourselves about that. So it comes as no surprise to me that you sought security in the brutalised and traumatised company of those who share your experience and history – the Mongrel Mob. That shared experience has a terrible magnifying effect when it gathers in one place. To deny that as a contributing factor would be to deny that race and history have any part to play in Māori criminality generally today, and therefore in your own criminality. The sentence I impose must take proper account of this factor if it is to be a

_{punishment that fits both the offences and the offender.}¹

¹ These are mandatory considerations according to s 8(i) of the Sentencing Act. See R v Mika

[2013] NZCA 648, and see especially Canadian Supreme Court decisions in R v Gladue [1999] 1

SCR 688, and R v Ipeelee [2012] 1 SCR 433.

[59] Now many of these issues really go to in-prison treatment programmes and are not for me but are for Corrections. But they’re not just that.

[60] These matters that I have discussed are not going to have a major impact on final sentence in offending as serious as this, and certainly will not bring your sentence below the 17 year minimum period of imprisonment. But their impact ought nonetheless to be discernible. I would reduce your minimum period of imprisonment by 12 months to take account of these mitigating, personal and historical factors.

[61] I cannot direct it – the law does not allow me to, I say in response to your sister’s urgings. But I express the earnest hope in your case Mr Rakuraku because you are so full of genuine potential, even now, a man of 40 years age, I express the genuine and fervent hope that you can receive the necessary psychological counselling to address the problems that you have yourself expressed in your submissions to me today. And that you are provided with the cultural support to allow you to serve your sentence in a way that does not become destructive of you. These two things together may yet allow you to unleash your true and positive potential.

[62] Mr Rakuraku, for the murder of Johnny Wright I sentence you to life imprisonment with a minimum period of imprisonment of 17 years.

[63] On each of the counts against Shaun Price you are sentenced to two years’ imprisonment to be served concurrently. On the count against Wi Kuki Rewharewha, three months’ imprisonment concurrent. On each of the other counts against Johnny Wright, two years’ imprisonment concurrent. On each of the counts against Lillian Hilton, you are sentenced to one year imprisonment concurrent.

_{[64] Ka nui tera. Please stand down.}

Williams J