Taingahue v R [2016] NZHC 2788 (22 November 2016)

Last Updated: 9 December 2016

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-22 [2016] NZHC 2788

BETWEEN	DESTINY TAINGAHUE Appellant
AND	THE QUEEN Respondent

Hearing:	11 October 2016 via AVL
Counsel:	T Epati for the Appellant F E Cleary for the Respondent
Judgment:	22 November 2016

_{JUDGMENT OF MALLON J}

Introduction

[1] Destiny Taingahue was convicted following a judge alone trial in the Gisborne District Court as a party to injuring with intent to cause grievous bodily harm. She also pleaded guilty to possessing cannabis for supply while on bail awaiting trial on the injuring with intent charge. She was sentenced to three years

and one month imprisonment.¹ She appeals this sentence. She contends the Judge

erred by not allowing any discount for her personal circumstances arising from the birth of her baby.

The offending

[2] Destiny Taingahue, Charlene Taingahue, Wairangi Hubbard and a fourth, unidentified, woman assaulted the complainant over money she owed to Ms Hubbard. The complainant and her mother were sitting in a parked car. The defendants pulled up and parked their car bonnet-to-bonnet with this car. Ms

_{Hubbard approached the car on the mother’s side and asked her to pay the money the}

¹ _{R v Taingahue [2016] NZDC 15260.}

TAINGAHUE v THE QUEEN [2016] NZHC 2788 [22 November 2016]

complainant owed. Destiny and Charlene Taingahue and the fourth offender approached the complainant’s side of the car. One of those three, it was not clear which of them, hit the complainant on the head with a spanner through the passenger door. Charlene Taingahue dragged the complainant from the car and a three-on-one beating ensued. The complainant lay defenceless on the ground. The assault lasted for about one minute. The complainant suffered some contusions to her face and arms but no permanent injury. She self-discharged from the hospital on the same day as the assault.

[3] While on bail for this offending Destiny Taingahue was apprehended while attempting to sell cannabis. She was found to have 15 cannabis “tinnies”, with a total weight of 9.3 grams, three cell phones, $252 cash, and a notebook containing names and dollar amounts owed next to them.

The sentencing

[4] Charlene Taingahue and Ms Hubbard were sentenced on 29 January 2016.²

The Judge adopted a starting point of three years imprisonment for each of them. There were no personal aggravating or mitigating factors for either of them. The end sentence was therefore three years imprisonment. These sentences were upheld on appeal.³ In dismissing Ms Hubbard’s appeal the High Court Judge considered the District Court Judge did not err in declining to discount her sentence because of her two young children, aged one and three years.⁴

[5] Destiny Taingahue was not sentenced until 9 August 2016. This was because she was in the late stages of pregnancy when her co-offenders were sentenced. She gave birth to her baby, [name], on 29 February 2016. Further adjournments were granted to provide an opportunity to find a suitable home detention address and to await the outcome of her co-offenders’ High Court appeal. By the time of her

_{sentencing, [her baby] was five months old.}

² _{R v Hubbard [2016] NZDC 1484.}

³ _{Hubbard v R [2016] NZHC 1311; Taingahue v R [2016] NZHC 1310.}

⁴ Hubbard v R, above n 3, at [34].

[6] The Judge adopted an initial starting point of three years imprisonment. Counsel for Ms Taingahue submitted this should be lowered for two reasons. First, it was Charlene Taingahue who had taken the lead on the assault. The Judge rejected that as a basis for lowering the starting point. He considered that Destiny’s role in the attack, by adding to the numbers, did not involve any lesser culpability. Secondly, Ms Taingahue brought the assault to an end by saying to the others “It’s enough”. The Judge adjusted the starting point to two years and 10 months imprisonment for this reason.

[7] The Judge added three months to this for the cannabis offending, taking into account Ms Taingahue’s early guilty plea and totality. This brought the sentence to three years and one month imprisonment before mitigating factors.⁵

[8] Ms Taingahue’s counsel submitted that she had done a tremendous job as a young, solo mother, she had formed a strong bond with her baby and the impact of imprisonment and separation from her baby would be profound. The Judge declined to adjust the sentence on this basis. The Judge’s reasons were as follows:

[28] Ms Taingahue, I do not consider the circumstances relating to the birth of your child, your bonding with the child and the profound effect that a separation would have on you and potentially the young child reaches the level that a sentence of imprisonment would be disproportionately severe. It is going to be a hard term of imprisonment because of the circumstances. But, in my view, when weighed against all of the other factors in this case, it does not reach the point of being disproportionately severe.

[9] This meant an end sentence of three years and one month imprisonment.

The appeal

[10] Ms Taingahue’s counsel submits the Judge erred in not allowing a discount for mitigating factors. She submits the Judge appeared to require “extraordinary” factors to be shown before leniency could be extended. She submits this was not what the law requires. The respondent submits exceptional circumstances are necessary and in this case they did not arise. The respondent submits Ms

_{Taingahue’s efforts are admirable but not exceptional.}

⁵ R v Taingahue [2016] NZDC 15260.

[11] It appears that the Judge’s focus was on whether a sentence of imprisonment, as opposed to a different type of sentence, would be disproportionately severe because it would break the bond between mother and baby. The Judge did not, however, appear to have focused on whether, if imprisonment was to be the sentence, the length of imprisonment might be discounted for Ms Taingahue’s personal circumstances. The position is that a defendant’s family situation, including the well-being of the defendant’s child, will “always be among the personal

circumstances to which regard is had by a sentencing judge.”⁶ How much weight it

can be given depends on the circumstances.⁷ Circumstances which are extraordinary may result in merciful sentences where otherwise appropriate sentences are not imposed.⁸ Lesser discounts may be available, depending on the circumstances, for relevant personal circumstances which might not be regarded as quite so exceptional.⁹ Rehabilitative steps taken may also be mitigating.¹⁰

[12] In this case there were personal circumstances which warranted a discount to the sentence. Ms Taingahue had grown up in a gang environment. Her father is a patched member of the Mongrel Mob. She and her sister Charlene are members of “Sisters in Red”, a gang affiliated with the Mongrel Mob. She was 24 years old at the time of the offending. She left school when she was 13 years old. She had no qualifications, was unemployed and was living an unstructured life style. At the time of the pre-sentence report (2 December 2015) she was seven months pregnant. She no longer had contact with the father of her baby and she had limited support other than from her father. The pre-sentence report writer described her as having a sense of entitlement and showing little remorse for the complainant.

[13] In support of her appeal Ms Taingahue filed an affidavit. She describes the birth of [her baby] as changing her life. It was the first time she felt motivated to make positive changes in her life. She worked hard to do things right for her baby

_{and to breastfeed him. She took him everywhere with she went. She approached}

⁶ _{Harlen v R [2001] NZCA 130; (2001) 18 CRNZ 582 (CA) at [22]; Sentencing Act 2002, s 8(i).}

⁷ _{At [22].}

⁸ _{Garnett v R [2010] NZCA 173; Zheng v R [2015] NZCA 451.}

⁹ Sentencing Act 2002, s 8(1). See, for example, R v McGregor, HC Auckland CRI-2003-044-

_{2778, 4 February 2005.}

¹⁰ See Sentencing Act 2002, s 7(1)(h); R v Hill [2008] NZCA 41, [2008] 2 NZLR 381; and Mallett v R [2014] NZCA 39. See also Hall’s Sentencing (online looseleaf ed, LexisNexis) at [I.7.7(f)]: it may sometimes be appropriate to recognise that “the punitive elements of the sentencing process should not be permitted to destroy the results of rehabilitation”.

Patricia Walsh for help and encouraged her friends in the Sisters in Red to come to a hui run by Patricia. Since being imprisoned and separated from her baby she feels as though she has lost a part of herself. Her mother brings [her baby] to visit once a week so she can see him. She applied to be moved to the mother and baby unit in prison. Unfortunately this was declined due to her gang affiliations.

[14] An affidavit from Patricia Walsh was also filed in support of the appeal. Ms Walsh works with gang-affiliated women in Gisborne. She confirms that Ms Taingahue approached her in February 2016 for help with anger, drug and alcohol issues. Ms Taingahue was also looking for help with skills so she could be a good parent to her son. She participated in all the meetings that Ms Walsh arranged and was the leader for her whānau. She encouraged the Sisters in Red to engage with these meetings. The meetings included discussions about parenting and education programs and resourcing available to the women. She says that, without Ms Taingahue’s leadership the Sisters in Red would not have engaged with the community as openly as they did.

[15] Ms Walsh also says that she observed [her baby] to be a clean, well-fed, well- dressed and happy baby throughout this time. She considered Ms Taingahue to be doing an “amazing job” looking after [her baby] and breastfeeding him. She did this with little support from her family. She views the birth of [her baby] as the catalyst for positive change by Ms Taingahue.

[16] When sentencing Ms Taingahue, the District Court Judge had a report from a lead maternity carer who commended Ms Taingahue’s commitment to her baby through breastfeeding him. This recommended that Ms Taingahue not be separated from [her baby]. The Judge did not, however, have any details about the positive changes which Ms Taingahue had made as shown by Ms Walsh’s evidence which is before me. He had a pre-sentence report which pre-dated these positive changes. Later pre-sentence reports only considered whether there was a suitable home detention address.

[17] With the benefit of the information before me, I consider Ms Taingahue ought to have received a discount from the three years and one month sentence imposed by

the Judge. Ms Taingahue’s efforts to be a good mother, to seek help and to encourage the Sisters in Red to also seek help, were commendable in light of her background. It is unfortunate for both mother and baby that the bond established had to be broken by the sentence for offending that occurred before [her baby] was born. Ms Taingahue should be encouraged to re-establish that bond and continue with her efforts to become a more positive member of the community as soon as that is possible. A discount to her sentence is a tangible way of recognising her efforts and encouraging her to continue her rehabilitative efforts.

[18] In all the circumstances I consider a discount of 15 per cent is appropriate. That would bring her sentence down to thirty one months imprisonment. I recognise that Ms Hubbard, who is the mother of two young children, did not receive any discount for this. However in Ms Taingahue’s case the significant positive rehabilitative steps she has taken, which are for the good of her baby, must be recognised and encouraged.

Result

[19] The appeal is allowed. Ms Taingahue’s sentence of three years and one month imprisonment is quashed. It is replaced with a sentence of two years and seven months imprisonment.

Mallon J