R v Taipari [2014] NZHC 577 (25 March 2014)

Last Updated: 16 April 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-019-002264 [2014] NZHC 577

THE QUEEN

v

_{COREY JUNIOR TAIPARI}

Hearing:	25 March 2014
Appearances:	R Douch for Crown M McIvor for C Taipari
Sentence:	25 March 2014

_{SENTENCING REMARKS OF LANG J}

R v TAIPARI [2014] NZHC 577 [25 March 2014]

[1] Mr Taipari, you appear for sentence today after pleading guilty after the commencement of your trial to a charge of wounding with intent to cause grievous bodily harm. At the beginning of your trial you faced other charges, including a charge of attempted murder. The Crown accepts, in light of your plea, that it would not be appropriate to proceed further with the remaining charges. For that reason, I now discharge you on those charges pursuant to s 347 of the Crimes Act 1961. I am now required to sentence you on the remaining charge, which carries a maximum sentence of 14 years imprisonment.

Facts

[2] The charge arises out of an incident that occurred on the evening of Monday,

28 January 2013. At that stage you were just 16 years of age. On that date the victim of your offending, Mr Taylor, was at his home address with his partner and a friend. The two men were outdoors working on a motor vehicle. For some unknown reason, Mr Taylor’s friend began texting your brother indicating that Mr Taylor wished to have a fight with your brother. This prompted your brother to get into his vehicle and drive round to Mr Taylor’s house. You accompanied your brother, and took with you two Samurai swords.

[3] When you arrived at the address, you walked towards Mr Taylor brandishing the two swords. Mr Taylor then responded by taking his shirt off, and telling you that if you wanted to have a fight then it should be “one on one” and without weapons. You continued to go down the driveway towards him brandishing the Samurai swords in his direction. You went right up to Mr Taylor and hit him on the face with the flat edge of one of the swords. This blow was of sufficient force to fracture Mr Taylor’s left upper jaw.

[4] At that point, Mr Taylor’s partner began screaming and telling Mr Taylor to get inside the property. She told you to get off her property. Rather than doing that, you rushed past Mr Taylor’s partner and into the house. As you passed his partner, you vomited over her. You then chased Mr Taylor through the house. He attempted to place himself behind a pool table and thereby out of your reach, but as he left the room a short time later you ran up behind him and struck him with the Samurai

sword on the side of the head. There is some dispute as to whether or not you struck this as a deliberate blow, or whether instead the handle of the sword broke and it flew out of your grasp. Whatever be the cause, the end result was that the sword struck Mr Taylor in the side of the head with sufficient force to embed the sword in the side of his head. The sword was embedded in his head in a line leading down from the ear towards his neck. At this point, you lost hold of the sword and Mr Taylor’s partner began chasing you out of the house. You then left the property.

[5] When the ambulance was called, they found that Mr Taylor had suffered not only the fracture of his jaw, but a deep laceration down the side of his head. This ultimately caused Mr Taylor to undergo surgery. As a result of the injury, he has lost the feeling on one side of his face because the facial nerve was severed. It would appear that this loss of feeling will not repair itself. As a result, Mr Taylor faces permanent disability as a result of the attack.

Sentencing Act 2002

[6] In any case involving violence of this level, the sentencing principles to the forefront must be those of deterrence and denunciation. The Court must also hold you accountable for your actions and for the damage done to your victim.

[7] I do not have a victim impact statement from Mr Taylor. That is not surprising, because he did not appear at the trial and nor did his partner. As a result, the trial had to be adjourned. There was also a suggestion that Mr Taylor and your brother had had a relationship of some animosity during the period leading up to this particular incident. Nevertheless, I proceed on the basis that your offending caused reasonably serious injury to your victim.

[8] Importantly, however, I must also impose a sentence that is in line with earlier authority and broadly consistent with sentences imposed in other cases.

Starting point

[9] The starting point to your offending is to be determined having regard to a guideline judgment of the Court of Appeal called R v Taueki.¹. In that case the Court of Appeal identified factors that might operate to make offending of this type more serious. Several of those factors are present in your case.

[10] First, there was the fact that you, accompanied by your brother, went to Mr Taylor’s home address unbidden. Secondly, you used a weapon. Thirdly, you struck Mr Taylor two significant blows to the head. Fourthly, those blows caused serious injury.

[11] Both counsel agree that your offending falls at the top of band two identified in Taueki which calls for a prison sentence of up to nine years, or towards the lower end of band three which starts at about the same point and goes upwards.

[12] Having regard to the aggravating factors I have identified, I consider the Crown is correct when it says that a starting point of at least ten years imprisonment is warranted. Indeed, I consider that a starting point of up to 12 years could be justified given the circumstances of your case. I propose, however, to take a starting point of ten years imprisonment, which I accept is at the lower end of the range identified by counsel.

Aggravating factors

[13] It is now necessary for me to consider whether to increase the starting point to reflect aggravating factors personal to you. In your case there is one aggravating factor, and this relates to the fact that you have another conviction for exactly the same offence.

[14] This conviction was entered after the incident that has given rise to the present charge. The important feature, however, is that the earlier incident occurred on 11 August 2012, when you were just short of your 16^th birthday. The defended

hearing in the Youth Court on that charge was to be held just two weeks after the incident that has given rise to the present charge. As a result, the present offending occurred whilst you were on bail in respect of very serious similar offending.

[15] The facts of the earlier offending are worth recording. On the evening of 11

August 2012, you and two associates went to the address of a 72 year old man in Thames. He was known to your associates, and they went into the address ostensibly to get alcohol. You remained outside the address whilst they spoke to the victim.

[16] At some stage, however, you entered the address and whilst the victim was turned away from you, you walked up to him and struck him a significant blow on the back of the head with a metal pipe. You obviously did that in circumstances where he was completely vulnerable. That blow caused the victim significant injury of itself. He then fell heavily to the ground, where you stomped on his head on at least one occasion. Either the fall to the ground or the stomping action, or both, caused significant fractures to the face, nose and eye socket of the victim.

[17] The Judge who sentenced you in the District Court took a starting point of nine years imprisonment in respect of that offending. He then reduced the starting point by four years six months to reflect mitigating factors including your age, your immaturity, your lack of judgment and intellectual impairment. This produced an

end sentence of four years six months imprisonment.²

[18] That sentence was imposed on 31 May 2013. I infer that you have been in custody since the present offending occurred. This means that you will have served approximately 14 months of the sentence that was imposed on you on 31 May 2013. In making that calculation, I take into account the time spent in custody on remand.

[19] I consider that the fact that the present offending occurred whilst on bail would easily justify an uplift of around two years imprisonment. I propose, however, to apply an uplift of just one year to reflect that factor. This means that I

am left with an end starting point of 11 years imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[20] I identify two mitigating factors personal to you. The first is your youth and the personal factors that led the Judge in the District Court to reduce the starting point by four and a half years. I am not prepared to make a reduction of that level in the present case. I accept that at 17 years of age you remain a young person. Nevertheless, I consider that a discount of no more than two years is justified to reflect your youth.

[21] You are also, however, entitled to a discount to reflect your guilty plea. Although this came during your trial, your counsel had offered from a very early stage to plead guilty to the charge on which you are now to be sentenced. The Crown accepts that you are entitled to a full discount of 25 per cent to reflect this fact. As a result, I propose to allow a discount of two years three months to reflect your guilty plea. This leads to an end sentence of six years nine months imprisonment.

Concurrent or cumulative sentence

[22] I now need to determine whether to impose a concurrent or cumulative sentence of imprisonment. Generally speaking, concurrent sentences will be appropriate where they arise out of connected facts and circumstances.³ Where an offender is to be sentenced in respect of offending that is different in time, place and circumstance to earlier offending, a cumulative sentence will generally be justified.⁴

[23] In the present case, I consider that a cumulative sentence is appropriate because of the fact that the two sets of offending occurred at completely different times, and involved different victims. In addition, I do not consider that a concurrent sentence would properly reflect the overall culpability of your offending having

_{regard to the fact that you have only served 14 months of the earlier sentence.}

³ Sentencing Act 2002, s 84(2).

[24] In any case where the Court imposes a cumulative sentence, the Court must consider whether or not to reduce the sentence to reflect totality principles.⁵ In other words, the Court must decide whether viewing all of the offending as a whole, the end cumulative sentence would be wholly disproportionate to the culpability and gravity of the overall offending.

[25] This requires me to take into account that if no adjustment is made for totality, you will be required to serve a total sentence of 11 years three months imprisonment. When I take that fact into account, and also consider the gravity of both forms of offending, I take the view that no further adjustment is required for totality. I consider that an effective end sentence of 11 years three months imprisonment properly reflects your overall culpability notwithstanding your age. I therefore make no adjustment for totality.

Minimum term of imprisonment

[26] In any case where the Court imposes a sentence of imprisonment of more than two years, it may impose a minimum term of imprisonment where that is necessary because the usual parole provisions would not be sufficient to reflect certain matters. These include the need to deter the offender, the need to hold the offender accountable, the need to denounce the offending and the need to protect the public. The Crown urges me to impose a minimum term of imprisonment in your case, because it suggests that all four of these factors are engaged.

[27] In the ordinary course of events, you would be eligible for parole after serving just two years three months of the sentence I intend to impose. In my view that would be manifestly inadequate to reflect all of the factors to which I have referred. In particular, I consider that a serious issue arises in relation to the need to protect the public. I draw this conclusion for two reasons. First, you were prepared to engage in the conduct that led to the present charge notwithstanding the fact that in just two weeks time you were due to stand trial on another serious charge. This indicates that you have no regard for consequences when it comes to acts of violence.

[28] Secondly, I bear in mind the contents of a very helpful report that I have received from a consultant psychiatrist with the Midland Regional Psychiatry Service. This report makes chilling reading, because it points out the deprivation and neglect that you have suffered through your youth. You are the product of a very poor home environment, where both parents were neglectful in the extreme and engaged in substance and alcohol abuse. You have had limited educational opportunities because you were expelled from school at a very early stage for disruptive behaviour. That type of conduct has led to the offending for which you appear for sentence today.

[29] The psychiatrist’s report concludes as follows:

Mr Taipari’s neglectful and abusive upbringing explained his difficulties in managing his aggression in social learning or modelling of aggression to solve disputes. His offending is consistent with his long-term behavioural pattern of aggressive and oppositional behaviour. His personality structure is such that it is difficult for him to control his effective arousal and respond in a socially acceptable manner. His early violent behaviour, social maladaption, interpersonal instability, substance use and personality disorder are all significant factors in his long term risk of violence towards others and to, hence, risk of reoffending. His pattern of behaviour has become entrenched from early childhood and now into his late adolescence. He will need considerable psychological input to address coping skills, interpersonal functioning, impulse control and anger management, in an attempt to degrease his long term risk when he is eventually released into the community. Given the trajectory of his behavioural pattern, his prognosis is poor. It is of note that personality dysfunction is associated with recurrent episodes of self-harm as well as violent behaviour. ... Recurrent hospital admission often reinforces manipulative self-harm attempts.

[30] The matters identified in that report persuade me, Mr Taipari, that you are at very high risk of violent reoffending upon your release into the community. For that reason, I am satisfied that it is appropriate to impose a minimum term of imprisonment in your case. It is clear that the prison authorities will need to engage in intensive therapeutic rehabilitation if the risk of violent reoffending is to be reduced in any way at all. I therefore consider that the maximum minimum term of imprisonment is warranted in your case. I therefore propose to impose a minimum term of imprisonment of four years three months imprisonment.

[31] Mr Taipari, I understand that you are currently being held in a secure care youth facility, and I imagine that that will continue to be the case. Should there be a need for a direction from me to that effect, then I make that now.

Sentence

[32] On the charge to which you have pleaded guilty, you are sentenced to six years nine months imprisonment. That sentence is be served cumulatively on the existing sentence of four years six months imprisonment that you are currently serving. You are directed to serve a minimum term of imprisonment of four years three months.

_{[33] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel: R Boot