R v Eruera [2016] NZHC 532 (23 March 2016)

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Hearing:	23 March 2016
Appearances:	G C Hollister-Jones and H Sheridan for Crown E R Fairbrother QC and M M Dorset for Hiakita Eruera R M Adams for Taki A C Balme for Hyacin Eruera
_Sentence:	_{23 March 2016}

[1] Hiakita George Eruera, you have been found guilty of one charge of the murder of Taki Tiepa-Ranapia, known as Tarks, and one charge of wounding with intent to cause grievous bodily harm to Brooklyn Ormsby-Ratahi. Given that this is what is called second strike offending, the maximum sentence you face is life imprisonment without parole unless it would be manifestly unjust.¹

[2] Hyacin Eruera and Paul Taki, you both appear for sentence after having been found guilty on one charge each of wounding with intent to cause grievous bodily harm to Brooklyn. That offence carries a maximum penalty of 14 years’ imprisonment. You may be seated.

(b) Second, I will describe each of your personal circumstances; (c) Third, I will refer to the victim impact statements;

(d) Fourth, I will describe the legal frame, the principles and purposes of sentencing;

(e) Fifth, I will set out the reasons for the sentence I impose on each of you; and

[4] Before I go further I wish to address the families affected by this tragedy:

[5] I now turn the facts of the offending. It is largely though not entirely based on the summary provided by the Crown. Any differences are intentional and reflect my findings based on the evidence.

[6] Hyacin and George Eruera have been together for approximately 20 years. Paris Taite is Hyacin’s daughter by another relationship, but she is whanau to George. Paris’s son was fathered by Reg Ranapia, Tarks’s brother.

[7] On 29 November 2014, Alex Waititi had a party. Alex is a good friend of Reg and was close to Tarks. Paris was dropped off at the party by Hyacin and George at about midday. There was a large amount of drinking and for the most part, it was a happy occasion. At sometime during the evening, Paris and Brooklyn began cuddling on the couch. It appears that Tarks became upset with Paris’s behaviour and asked her to leave. She refused and Tarks forced her out.

[8] Paris returned home highly distressed. She told Hyacin that she had been physically bullied by Tarks and that two young men at the party had tried to rape her on the way home. She named Guy Wikeepa. She was lying, but neither of you knew that at the time.

Taki to help you confront Tarks and the young men. You also took a knife with you.

[10] Hyacin, you drove the car. After picking up Paul and on the way to Alex’s house you spotted Guy. Brooklyn was with him. George, you exited the car, followed by Paul. George, you immediately attacked Brooklyn. Paul, you stood by watching the violence, but your presence kept Guy at bay. George, you beat Brooklyn to the ground and you wounded him with the knife, causing minor cuts to various parts of his body, including his head and hands.

[11] You then went to Alex’s house to confront Tarks. George, you found a number of young men you thought to be Mongrel mob prospects. Some of them came on to the veranda and down the entrance steps to confront you. You shouted “seig fucken heil”. You displayed the knife. You were wearing your patch. Unsurprisingly, Tarks left and the boys retreated into the dwelling. You went into the house shouting, among other things, “where the fuck is Tarks.” Alex was in bed by this time, came out to see what was happening and confronted you about coming into his house. You demanded to speak to Tarks. Tarks was not there. You levelled further verbal abuse at Alex before leaving the dwelling. Then tragically, you met Tarks on the front lawn. You lashed out with the knife striking Tarks in the throat. Tarks fled. Tarks then walked for about 300m before the extent of the blood loss took its toll and he died.

[12] You returned to the car not fully appreciating the extent of the injury you had inflicted on Tarks. Upon arriving home, George, you told Paris you had “shanked some cunts” for her.

[13] A post-mortem examination of Tarks revealed there was a single wound to the left hand side of the neck. This nicked the left external jugular vein and cut the left internal jugular vein. It then extended 10.5 cm across the front of the neck, behind the oesophagus and trachea, to terminate close to the right carotid artery.

[15] Mr Eruera, you are a 38 year old male. Your paternal iwi is Te Whanau-a- Apanui and your maternal iwi is Tuhoe.

[16] You have four children and five grandchildren. As I have mentioned, Paris is whanau to you, and has a child who is Tarks’s moko. Tarks and his brother had stayed with your wife while you were in prison and you knew them as family to Hyacin and Paris.

[17] You are a patched member of the Mongrel Mob. You have 39 prior convictions over a period of 20 or so years including nine violence-related convictions. In 1996, you committed an aggravated robbery for which you were sentenced to one year three months’ imprisonment. You also broke into a premise with a weapon in 1999, for which you received a three year sentence of imprisonment.

[18] The balance of your offending was relatively minor until 2010, when you were convicted for injuring with intent to cause grievous bodily harm. This was your first strike offence. In that instance you drove a car into a man you had been fighting with. He was not seriously injured. You returned later with a firearm. You did not discharge the firearm, but you used it to assault two women causing injury and threatened to kill one of them. Judge Ingram, noted that you were related to the witnesses to that offending. The Judge adopted a starting point of four years’ imprisonment on the assaults and a further two years for the firearms and threatening to kill charges. You were warned that if you were convicted for murder, you would be given a sentence of life imprisonment without parole unless it was manifestly unjust. You were still subject to parole conditions for this offending when you killed Tarks and wounded Brooklyn.

[19] Your pre-sentence report states that you are at high risk of reoffending and at high risk of causing harm to others. You told the writer of the report that you had gone to confront a man you believed to have inflicted harm on Paris. You say that matters got out of hand and you had not meant for things to have ended in the way they did. The report says you have expressed remorse for the fact that a young life

has been tragically lost and have some insight into the impact that your actions have

[20] Mr Eruera, a cultural report has been prepared. It provides an in-depth insight into the social and cultural factors influencing you and your offending.

[21] The report records that your early years were spent within your tribal rohe in the Uruwera region. You were immersed in tikanga Tuhoe and were taught the primacy of whanau connection, the tapu of whanau, the importance of observing kawa and tapu (including spiritual restriction) and the consequences for breach. At this time, or shortly thereafter, you were also exposed to gang culture. You saw the Mongrel Mob as a means to reconnect with other Maori and Tuhoe and the norms that mirrored Tuhoe kawa, awhitanga and manakitanga. This gang connection, however, also put you in conflict with your iwi.

[22] The report refers to a number of factors and social dynamics that have played a role in alienating, criminalising and institutionalising Maori generally, which have also impacted on you. These factors include the mass Maori urbanisation in the

1960s, the emergence of the urban Maori gang, systemic unconscious bias, structural reform in the 1980s and high unemployment.

[23] The report identifies that this social and cultural background contributed to both your past and your present offending. The report writers are of the view that your first strike offending can be explained by a perceived need to protect your family from a series of violent confrontations with whanau members, including attacks on the family home, while your young wife and young son were present. In the present case, you saw the demands of utu, distorted by gang culture, as requiring you to confront those who you believed to have attempted to rape your step- daughter. Your offending is also exacerbated by your alienation from, and reluctance to use, the Police as a source of redress and protection.

[24] The report concludes that you have expressed remorse, that you have the support of whanau and iwi and that there is reason for optimism.

[25] Mr Taki, you have a limited offending history. You have two previous convictions in 1997 for common assault and wilful damage, and have remained offence-free for an extended period of time. Your pre-sentence report classifies you as posing a low risk of reoffending, but puts you at a medium risk of harm to others. Your offending-related factors include anti-social associates and a propensity to commit violence. The report indicates that there are no barriers to compliance with a sentence of home detention.

[26] Mrs Eruera, your pre-sentence report assesses you at a medium risk of reoffending and of causing harm to others. You do not have a history of violent offending, but have been convicted of 30 previous offences for dishonesty and driving-related offending. The report notes that you recently completed a nine month supervision sentence and demonstrated an ability to comply with court imposed sentences. The report states that you are not remorseful for your offending as you had no intention of causing harm to the victim. You do, however, display some empathy towards the victims and their families.

[27] You suffer from hepatitis C and take prescription medication to treat it. The report writer says that you can become volatile and have outbursts of anger, especially when you are not on track with your medication. The report indicates that the medication would have impacted your mental state on the night of the offending. I note, however, that no medical evidence has been provided to me to support this contention.

[28] I have read, and you have heard, the statements of some of the victims to your offending.

[29] Mr Eruera, Tarks’s whanau describe the pain and heartbreak that your actions have inflicted on them. Your actions have made it difficult for them to enjoy the things that matter most to them in their lives. They expressed a profound love for Tarks who was a happy, caring, quiet but outgoing young man. You have robbed Tarks of a promising future in which he intended to settle down and have a family with his girlfriend in Tauranga. His brother Reg has expressed deep sadness at the loss of Tarks.

[30] Brooklyn also provided a statement. He feels paranoid following the attack. He has had threats made to him and his family. You have left him scarred both physically and mentally.

[31] I am now going to describe the legal frame, principles and purposes that must guide sentencing.

[32] I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce the offending of each of you and to hold each of you accountable for the harm that you have all done. The sentence I will impose is intended to promote a sense of responsibility in you all for that harm. There must be deterrence, both against future offending by each of you and against others who might act similarly. And I have to consider the protection of the public, together with your rehabilitation.

[33] Subject to what I have to say about s 86E in relation to you, Mr Eruera, the sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your culpability. I must also take into account any circumstances that might make an otherwise appropriate sentence disproportionately severe and the effects that the offending has had upon each of you.

[34] Mr Taki and Mrs Eruera, I am going to sentence you first. I am grateful for the submissions from counsel, and the supplementary submissions in response to references to case law that I considered helpful for the purposes of my assessment.

[35] Mr Taki, you played the role of a mute bystander throughout the entire attack on Brooklyn, though your presence prevented Guy from assisting Brooklyn. The Crown otherwise accepts that there were no aggravating features to your offending. I therefore consider that your offending falls at the lowest end for this type of offending.

[36] Mrs Eruera, I find that you actively encouraged Mr Eruera to confront the boys about what you thought they had done to your daughter. But I do not accept that you actually promoted the specific violent offending that occurred. Rather, you were largely complying with Mr Eruera’s demands and there was very little you could do to affect his actions. I also reject as unreliable the Crown’s evidence that

you shouted encouragement to kill at the time of the offending.²Like Mr Taki, I am

[37] For reasons that I will express in relation to Mr Eruera, I consider you were provoked into confronting the young men by Paris and that this provocation was operative at the time of the assault on Brooklyn.

[38] Against this backdrop, I have considered where your offending sits in relation to a number of other cases. I accept that ordinarily, the starting point for this type of offending would exceed three years. But the Court of Appeal in Taueki stated that a

²The key witness for the Crown was Guy Wikeepa. He was highly intoxicated at the time of the incident – which was a short but violent occasion. He was shown to be less than reliable on a number of fronts, and I am not satisfied that it is safe to find that he heard specific utterances of the kind alleged by the Crown.

[39] In this regard I have been principally assisted by the decisions in R v Isaaka,⁴

R v Goss⁵and R v Sanson⁶in which the starting points ranged between two years two months and three years six months on parties to wounding with intent to cause grievous bodily harm offending. In these cases, the parties were either instigators or played a much more active role than either of you in the principal’s offending. The Crown also referred me to R v Wereta,⁷but I have found that decision to be of less assistance due to the fact that it dealt with the sentencing of a principal and not a party. I therefore consider that your culpability falls at the lowest end for offending of this type.

[40] Mrs Eruera, you are also entitled to a discount given the clear evidence of provocation (though, of course, it does not absolve you of your culpability).

[41] Mr Taki, for your role in the offending I therefore adopt a start point of two years and two months’ imprisonment.

[42] Mrs Eruera, for your role in the offending I adopt a start point of two years four months’ imprisonment. I discount that by three months to reflect the provocation.

[44] Mr Taki, I accept your counsel’s submissions that you are a person of good character having had minor lapses when you were 20 years old. I consider that you should get a discount of two months for this.

[45] I also know that you are instrumental in the care of Ms French, your partner. The fragility of her mental health, suffering severe depression, was made plain to me during the trial; indeed, I am concerned that any prolonged separation from her

_{could have a very significant impact on her, and ultimately on you. To
account for}

this potentially disproportionate outcome, I consider that a further discount of two months is warranted.⁸

[46] Accordingly, were I to impose a sentence of imprisonment, I would impose an end sentence of 22 months’ imprisonment.

[47] Mrs Eruera, despite your pre-sentence report, Mr Balme says that you have demonstrated remorse for what you did. But there is nothing before to suggest that you are genuinely remorseful.

[48] Mr Balme also submitted that you should receive a discount on the basis that you suffer from Hepatitis C. Mr Balme has provided the Court with only a sparse amount of information to demonstrate that your illness either affected your culpability or would make a sentence of two years and one month imprisonment harsher on you so as to justify a discount.⁹I therefore make no allowance for it.

2015. You were also released on restrictive bail conditions, which included curfew and travel conditions, until trial for a period of 10 months. The time you spent on restrictive bail justifies a discrete discount of two months.

[50] For completeness I have examined your record of prior offending and I do not consider it is material to the length of sentence given that it is not violence related.

[51] Accordingly, if I were to impose a sentence of imprisonment on you, I would impose a sentence of 23 months.

[52] Having arrived at an end sentences of 22 months’ imprisonment for Mr Taki

and 23 months’ imprisonment for Mrs Eruera, I am required to consider a sentence

[53] Mr Taki, I am of the view that it is appropriate to commute your sentence to one of home detention. Your involvement in the offending was of a limited nature and you did not participate in the actual attack. Your culpability falls below the kind of offending that ordinarily attracts a conviction. Given your previous good character I am satisfied that a sentence of home detention is the least restrictive sentence capable of holding you accountable and responsible for your offending, deterring both you and others from engaging in similar offending and protecting the community.

[54] The pre-sentence report notes that the address at which you would serve such a sentence, [redacted], is suitable. Neither Housing New Zealand nor the Police have any difficulty with you serving a sentence of home detention at that address. And I note for completeness that the address shall be suppressed.

[55] Ordinarily I would impose a sentence of 11 months’ home detention. But I must also take into account that you have spent two and a half months in prison prior to being released on bail in formulating your end home-detention sentence. Accordingly, I reduce your sentence to 10 months’ home detention.

[56] Mrs Eruera, I have had more difficulty coming to a decision as to whether I should impose home detention in your case. You lack remorse, you have a lengthy history of previous offending. Sentences of home detention and imprisonment have not deterred you from re-offending.

[57] Mr Balme nevertheless directed me to Court of Appeal authorities to the effect that a non-custodial sentence of home detention should not be considered a lenient sentence.¹⁰I agree with his submission that a sentence of home detention is appropriate to achieve the sentencing purposes in the light of the fact that you have no previous convictions for violent related offending. I also acknowledge that while

_{you encouraged Mr Eruera to confront the young men, throughout the
offending you}

were essentially complying with your husband’s demands. You could do little to prevent the offending from occurring and did nothing more than drive Mr Eruera to the locations where he offended.

[58] Your house at [redacted] is also suitable for home detention and you have signed the offender agreement consenting to the conditions of an electronically monitored sentence. The Police has no concerns with you serving a sentence at the address and, again, the address shall be suppressed.

[59] In these circumstances, I am of the view that it is appropriate to commute your sentence to 12 months’ home detention. As with Mr Taki’s sentence, I must discount the period you serve to take into account the fact that you have spent two and a half months’ in prison prior to trial. Accordingly, I sentence you to 11 months’ home detention.

[60] Mr Taki and Mrs Eruera, I request that you now wait where you are, as I now turn to the sentence for Mr Eruera.

[61] Mr Eruera, as I have said, you are now subject to s 86E of the Act. Given its significance, I want to first explain to you how I have applied this section in your case. I will then turn to the evaluation of your sentence for both the murder and the grievous bodily harm.

[62] I have had the benefit of submissions from the Crown and Mr Fairbrother QC about s 86E. I have read various parliamentary records dealing with the introduction of s 86E and the four High Court sentences that have applied, but not deployed,

[63] In summary, repeat offending involving murder is presumed to be sufficiently serious to require a life sentence without parole and that such a sentence will ordinarily serve the purposes and principles of the Sentencing Act 2002. But the requirement to avoid a manifestly unjust sentence is also an equally clear statutory directive designed to achieve the Act’s overarching purposes and principles.¹²It has

heightened importance in the present context,¹³because of the significant breadth of

offending that is subject to s 86E and the inherent severity of an indefinite term of imprisonment for which there is no legal precedent in our history.

[64] But I do not, with respect, agree with the reasoning expressed by Woolford J in R v Turner¹⁴to the effect that only criminality of the worst kind is within the s 86E’s intended scope. Section 86E overtly departs from the previous sentencing regime which required the presence of seriously aggravating factors to trigger a minimum (s 104) or an indefinite (s 103A) period of imprisonment. In short, all second strike offending involving a murder is presumptively subject to the enactment.¹⁵

[65] I prefer instead to proceed on the basis that Parliament intended to legislate consistently with the requirement to avoid disproportionately severe treatment as required by s 9 of the New Zealand Bill of Rights Act 1990.¹⁶That will mean that

_{the sentence must not be grossly disproportionate to the
circumstances of the}

¹²There is nothing in the legislative history to suggest that s 86E was cut adrift from ss 7,8 and 9 so that the ordinary maxim of statutory interpretation applies, namely that any enactment must be interpreted by reference to the Act’s purpose: Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36; [2007] 3 NZLR 767 (SC) at [24].

¹³R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [57], as the Court of Appeal stated, the meaning of manifestly unjust is context specific.

¹⁵I have come to this conclusion with reference to s 3 of the Sentencing and Parole Reform Act

2010, the Explanatory Note to the Sentencing and Parole Reform Bill 2009 (17–1) and the

Parliamentary debates that can be found in Hansard at 652 NZPD 1420 at 1421 (18 February

2009), 662 NZPD 10673 at 10674 (4 May 2010) and 663 NZPD 11226 (15 May 2010). I have also considered to the Departmental Report at [202]–[206] and a Cabinet Paper prepared prior to the Bill’s introduction entitled “No parole for worst repeat offenders and worst murder cases”

¹⁶I have examined this issue within the six step frame provided by Tipping J in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [92]. First, I identified the intended meaning, namely that s 86E applies to qualifying offending except in very exceptional circumstances. Second, I consider that

s 86E may be discordant with the s 9 right to be free from disproportionately severe treatment if

applied strictly in accordance with the intended meaning. Third, if so,I do not consider that the intended meaning is necessary to achieve the legislative objects of denunciation, deterrence and the protection of the community. Fourth, it is reasonably possible to interpret the term “manifestly unjust” in a manner consistent with the s 9 right that will achieve the legislative object, namely that the sentence must not be grossly disproportionate.

offending and the offender.¹⁷Mere lack of proportionality will not suffice, however, and, given the legislative history,¹⁸a finding of gross disproportionality cannot be assumed. I understand that the Crown broadly agrees with this threshold test.

[66] I will therefore approach the manifestly unjust assessment as follows:¹⁹

(a) I will assess the sentence that I would normally impose but for s 86E requirements in light of the orthodox application of the purposes and principles of sentencing.

(b) I will assess, in light of step 1, whether a sentence of life without parole is grossly disproportionate to the circumstances of the offending and the offender.

[67] As the Court of Appeal stated in Williams, what level of disparity amounts to manifest injustice remains a matter of sound sentencing judgment that is not capable of precise determination.²⁰It must not be so low as to undermine the clear legislative policy. But, given that the fundamental right to be free from disproportionately severe treatment is plainly engaged by the section, close scrutiny must be given to the actual level of culpability, any mitigating factors and the

¹⁷This is the accepted measure for the purpose of measuring consistency with the right to be free from disproportionately severe treatment – see Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [176] (per Blanchard J). The requirement for a grossly disproportionate sentence also captures the need to clearly show the injustice.

¹⁸See, for example, the comments made by the Hon Judith Collins at the second and third readings of the Sentencing and Parole Reform Bill 2009: 662 NZPD 10673 at 10674 (4 May 2010) and

¹⁹Initially, I anticipated a four step test involving a further assessment of whether, given the level of disparity, the specific circumstances of the offending and/or the offender fall outside the reasonably intended scope of s 86E.

[68] I now address the sentence that I would impose upon you for the murder of Tarks if you had not been given a first strike warning. It is agreed that you must, as a minimum, face a sentence of life imprisonment (though with the prospect of parole). The central issue is the length of any minimum term of imprisonment you must serve.

[69] To ascertain this, I will first identify the key features of your offending to ascertain its severity and the level of your culpability. In light of those features, I will examine other sentences to gain a gauge on where your offending sits relative to other offending of this kind. This will help me to set a starting point for your minimum sentence. I will then look at your personal circumstances and apply any uplifts or discounts to the starting point for a minimum term in the light of those circumstances. I will then go onto consider whether you offending triggers the s 104 threshold so that a minimum sentence of 17 years must be imposed unless manifestly unjust.

[70] I agree with the Crown that the following aggravating features are present:

(b) Use of a weapon – this is also an aggravating feature because it always carries the risk of serious or fatal injury; and

(c) Harm to Tarks’s family – while this is inherent to the charge of murder, the effect of your actions on Tarks’s family is an aggravating element.

(a) You were provoked by Paris’s claim that Tarks had beaten her up and that Guy and another had tried to rape her. I come back to the full significance of this later.

(b) You did not set out to kill Tarks – there was no plan to kill him or seriously injury him;

(c) The harm done to Brooklyn provides an insight into your objective – there were no killer blows even though you had a clear opportunity to kill him given his vulnerable state;

(d) There is no direct evidence of your confrontation with Tarks except your own. While there are aspects of it that are plainly implausible, for example, that you happened to pick up a knife that was sitting on the bonnet of a car and that you simply punched him without realising that you were carrying a knife, I accept that you did not consciously decide to kill him. Rather, more plausibly on the evidence, in your anger at what had happened to Paris, you lashed out recklessly, knowing that in doing so you could kill him, and carried on in any event.

[72] The Crown submits that your actions are of a vigilante nature.²¹I accept that you wanted to confront the young men who had allegedly attempted to rape Paris, and that you took the law into your own hands because you had no faith in the Police. But this is a superficial description. As I have said, you were clearly provoked by Paris to do violence to her attackers. That is how the Crown closed its case to the jury – Mr Hollister-Jones imploring it to find that:

²¹While this is not a factor that is expressly referred in the Sentencing Act 2002, it is recognised to be an aggravating feature in grievous bodily harm offending (see R v Taueki, above n 3, at [31]) and can therefore be taken into account under s 9(4) of the Sentencing Act 2002.

[75] Your Counsel, however, assumed that this was not a case of provocation and that the fact of the alleged rape was not an operative consideration. He maintains based on the evidence, that you were lawfully travelling to the scene of the alleged rape attempt.

[76] I find this submission troubling. The jury was invited specifically by the Crown to conclude that the genesis of your violence was Paris’s claim of an attempted violent sexual assault and that this fuelled your anger throughout the violence that followed. Mr Hollister-Jones accepts that this may be a relevant consideration, but the weight to be given to it should be limited.

[77] Your defence theory pursued by Mr Fairbrother QC was that you were not provoked, but rather seeking to discuss what happened. That theory was plainly rejected by the jury. The only alternative theory was that provided by the Crown, namely that Paris launched you at the victims.

[78] Despite your counsel’s submission, I will therefore proceed on the basis that your case is one of provocation (as I did for Mrs Eruera) of the kind identified in the seminal grievous bodily harm authority – Taueki²²and in a number of authorities since.²³In Taueki the Court observed:²⁴

(a) Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

²³Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369; Police v Whittaker HC Wanganui CRI-

Maheno [2013] NZHC 2430; R v McKinley HC Wellington CRI-2008-078-0809, 23 October

[79] I must emphasise that this does not absolve you of culpability because the provocation ignited an underlying propensity for violence, for which you must be held accountable in any event. But the presence of provocation does support the view that your culpability for the offending is less than those murders or serious violent offending involving a calculated and controlled response,²⁵as was the

[80] In the first case the defendant’s daughter had been sexually assaulted which triggered the defendant to seek revenge for this offending. She attacked the victim with an iron bar, repeatedly causing serious injury. In that case the Judge held that the defendant was “greatly disturbed” by the alleged sexual violation and reduced the starting point for sentence by 18 months.

[81] In the second case, the defendant killed a man by punching him to the ground and then hitting him several times while he was lying on the ground. He thought the man had raped his wife, wrongly. The Judge in that case observed that had she considered a sentence of more than the 10 year minimum were appropriate she would have reduced it to take into account the provocation. I consider, and I find, a similar issue of provocation arises in this case.

[82] I turn then to assess your culpability relative to the standard run of cases involving your type of offending.

[83] I have considered a number of cases which demonstrate the spectrum of sentences imposed for similar murder offending. Regrettably there have been a number of one stab murders, usually involving a prior altercation, the retrieval of a knife to injure the victim and another confrontation tragically resulting in the

_{victim’s death. On my review of these sentences, a murder of this
nature with some}

1207. But in that case the reaction was so egregious that the provocation simply did not correspond to the violence that followed. It was also vigilantism proper, with no familial connection of the type involved in the present case.

premeditation, but without a retributive or vigilante purpose, will attract an MPI in the order of 11-12 years.²⁸High levels of premeditation with a retributive or vigilante elements (for example involving gang violence) will attract a sterner minimum sentence; say in the order of 14-15 years.²⁹

[84] I am satisfied that your offending, Mr Eruera, falls into the middle of this band for offending of this kind in terms of its seriousness and brutality.

[85] I have come to the view, therefore, that a start point for a minimum sentence of 13 years fits the nature of your murderous offending and is a necessary start point to hold you accountable, to denounce your conduct, and to deter others and to protect the community.³⁰

[86] I will, however, discount this starting point by 18 months to reflect the provocation.³¹

[87] I must however add a further 36 months having regard to the totality of your offending on the night of the murder, namely for the grievous bodily harm to Brooklyn.

[88] While I am on this aspect of your offending, I consider that your violent attack on him was serious offending that, on its own, would attract a sentence of seven years’ imprisonment, including substantial uplifts for your prior convictions, and a discount for provocation. A concurrent sentence of seven years is commensurate with that offending.

[89] Returning to your murder sentence, my analysis results in, if I adopted an ordinary form of sentencing, a preliminary MPI of 14 years six months.

²⁸R v Millar CRI-2010-090-5044, 21 June 2011; R v Tauaraki HC Auckland CRI-2010-092-11776,

³¹See the comparable discounts given in the following GBH and murder authorities: Police v

[90] I now turn to address your personal aggravating and mitigating factors in order to see whether they should impact on a minimum non-parole period that you serve.

[91] As noted earlier, you have nine previous convictions for violent offending, but the first and present strike offending is the most serious. The balance of your offending is low level or historic (having occurred in 1996 and 1999).

[92] A further seriously aggravating feature, however, is that the present offending occurred while you were on parole in relation to the offending that you were convicted of and sentenced to in 2012.

[93] There should be an uplift to take into account these two factors. In my view,

18 months is necessary to denounce your propensity to commit violence when you think you are wronged. This takes the MPI to 16 years.

[95] Mr Hollister-Jones submits that you should not get a discount for remorse on the basis that you minimised your offending and blamed the deceased for charging at you. He says that your response can more accurately be described as regret that Tarks died, rather than full acceptance of responsibility together with deep remorse. But as Mr Fairbrother submits the cultural report provides, as I have said, a deeper insight into your offending. It says that you are remorseful. It also provides some explanation for what unfolded, and the cultural factors underpinning your reaction. Namely that you sought redress in accordance with your social and cultural norms. And you now appreciate that you went too far, tragically killing Tarks.

[96] Accordingly I prefer the in-depth explanation of your conduct presented by the cultural report and I find that you are remorseful, though it appears you still do

not accept full responsibility for what you have done. A discount of five per cent is warranted for this.

[97] I pause here to consider further your counsel’s claim that your offending must be seen in light the cultural norms that define you – the tapu or sanctity of whanau, and linked to this that you set out not to harm the young men, but to seek an explanation for what had happened. As noted, I fully accept that your cultural background, and the sanctity of whanau would have formed the background of your decision to confront the boys you thought harmed your daughter. But the evidence simply does not support a finding that you approached this calmly or for the purpose of discourse.

[98] Accordingly, were I to sentence you in accordance with the ordinary principles set out in s 103, I would impose a life sentence with a minimum non- parole period of 15 years two months.

[99] I turn to examine whether you would be subject to a 17 year minimum non- parole period.

[100] In doing so I am to look at the aggravating factors set out at s 104 to the extent they are present, and any other applicable aggravating and mitigating factors. If the result of this assessment is that a non-parole period of less than 17 years is appropriate, the second step for me to ask is whether the minimum term of 17 years

[101] I agree with the Crown that s 104(c) is engaged (though only indirectly). That section states a sentence of 17 years minimum must be imposed if “the murder involved the unlawful entry into or unlawful presence in a dwelling place.” This provision emphasises the importance of the sanctity of the home.³³Your actions in

_{entering Alex’s house to confront the occupants formed an
integral part of the}

circumstances of the murder.³⁴I also reject Mr Fairbrother’s contention that there was implied consent. You are a large imposing man – self described as weighing about 140kg. You marched up the stairs and into the house, knife in hand, full of apparent menace. The young men retreated in the face of it, rather than consenting to it.

[102] Having found that s 104 applies, I now consider whether it would be manifestly unjust under that section to impose a minimum non-parole period of 17 years.

[103] In order to assess whether that threshold is met, I need to make a comparison with the sentence that you would have ordinarily received under s 103 – that is of 15 years and two months.³⁵At first blush, a minimum sentence of 17 years does not appear manifestly unjust.

[104] To test this initial view, I have compared the present offending against other retaliatory offending of a nature that attracted a minimum period of imprisonment of

17 years or more. In one case a group of offenders attacked a man in his home killing him. They too had assumed that he had raped a friend. The pathologist report identified 30 serious injuries.³⁶Your offending is nowhere near as extreme, callous or brutal. But I also acknowledge that in Pahua the Court of Appeal held that similar offending involving a home invasion and a single stab wound could attract an MPI of 17 years.³⁷

[105] I have come to the view that the totality of your offending rests on the borderline of the intended boundary of s 104 when considered in the light of the

³⁴The murder did not take place on the veranda and while the victim was climbing into the house, as it did Pahau v R, above n 28, cited by Mr Hollister –Jones. I also note that Asher J in R v Pahau CRI-2008-043-4555 also found that the empty part of the section was not inside the dwelling, and that the Court of Appeal affirmed the approach taken by Asher J “on its narrow factual compass” (at [73]). But I accept that the purpose of entering the house was to confront Tark’s and inextricably linked to the murder offending.

³⁶R v Jones, above n 24, the murder sentences in which were upheld on appeal in Jones v R [2015] NZCA 312.

orthodox application of the Act’s purposes and principles, even with the element of provocation. As the injustice therefore of the sentence is not clearly made out, I cannot find manifest injustice.

[106] In summary then, were I to sentence you on the orthodox sentencing approach, I would sentence you to life imprisonment with a minimum non-parole period of 17 years minimum for the totality of your offending.

Is a life sentence without parole grossly disproportionate in light of step 1?

[107] I come then to assess whether a life sentence without parole would be grossly disproportionate to the totality of your actual criminality and your personal circumstances.

[108] This assessment will depend on a number of factors, usefully identified by

[109] Based on available statistical information as to life expectancy, it is likely that you would serve a sentence of 30-50 years if a life sentence without parole were imposed. That is well in excess of sentences of the worst offending of any kind and more than two to three times the usual sentence applicable to your current offending, and about two times the combined sentences for both the first and second strike offending. I accept the Crown’s submission however that this raw arithmetic must be coloured by the legislative policy that offending of this nature is sufficient to attract such a sentence. I come back to the significance of this below.

[110] I have already described the circumstances of your present offending and the offending for which you received a first strike warning. The salient aggravating

(a) Both sets of offending involved high levels of violence; (b) They are marked by a propensity to violence;

[111] Both sets of offending were, however, below the worst of its kind in terms of severity, brutality or depravity. I also observe that the previous strike offending involved a violent confrontation with a number of people and in a context where it appears, both sides engaged in the violence (though I accept with injury to two women who were not a threat to you from the blows to the head with a rifle).

[112] Beyond the strike offending, your violence is best described as sporadic (not repeat) and for the most part, relatively low level.

[113] Your offending is rooted in your gang culture and a strong propensity to resolve disputes through violence, especially when there are threats to your family. But you are not defined solely by this culture. You are a father and a grandfather, in a stable long term relationship. Your most recent offending aside, 15 or so years have elapsed since the last serious violent offending.

[114] You also maintain a strong connection to your Maori dimension, your facial moko reflecting your whakapapa. The cultural report also refers to your reaching out to tikanga based systems for rehabilitation and considers that there is room for hope.

[115] The significance of this is that your violence is a learned behaviour. It is readily capable of remedy; and that you are ready to take the steps necessary to curb your violence, especially via Maori/tikanga based programmes. You also have the support of your family and iwi and I note that the presentencing report also concludes that there are no barriers to your rehabilitation.

[116] For my part also, I consider that notwithstanding the submissions made by your counsel, provocation clearly played a role in triggering deep seated concern for

your daughter and whanau who are clearly tapu to you and as the Crown says launched you into action.

[118] Given the legislative policy underpinning s 86E, I assume that the purposes of denunciation, accountability, promoting responsibility and deterrence are engaged by your offending and strongly support life imprisonment without parole for the offending committed by you, Mr Eruera.

[119] I do not consider that a life sentence without parole, however, serves the victims’ interests to materially greater extent that a life sentence with the prospect of parole. That factor is neutral.

[120] There is only a weak connection between a sentence of life without parole and the protection of the community given the detailed facts of the offending and your personal circumstances. Your offending is context specific, the triggers for which are clear – assumed attacks on you or your family and an extremely maladjusted response to it. There are no barriers to your reversing these factors. An indefinite sentence is therefore not obviously necessary to protect the public, particularly given the ordinary powers available to the Parole Board to keep you imprisoned until satisfied that your risk factors are properly addressed. This factor clearly favours a Parole-based sentence.

[121] This then brings into focus the principle of rehabilitation. But for the legislative policy evident in s 86E, this principle would demand an opportunity for

you to rehabilitate and there is no sound reason why, with the appropriate counselling, you would not rehabilitate and re-integrate safely back into the community. This factor also strongly favours a Parole-based sentence.

[122] Turning to the s 8 principles, I have assessed the gravity and seriousness of the offending above. It is at the lower end of the spectrum for murder and grievous bodily harm (though in combination it attracts a 17 year minimum). I have also assessed your personal circumstances including the drivers of your offending, your whanau and tribal support and your capacity to rehabilitate. In combination, these factors clearly favour a Parole-based sentence.

[123] I have taken into account the victim’s statements – they are clearly devastated at Tark’s death and they seek a sentence of life imprisonment without parole, something I must take into account.

[124] I put to one side the directives to impose the least restrictive sentence outcome and the desirability of consistency, given the legislative presumption that life sentence without parole is suitable for repeat offending involving murder.

[125] As to restorative justice, I record that you are prepared to engage in a restorative justice process but the victims are not willing to engage. I place no significance on this aspect – either positive or negative.

[126] By reference to the bedrock principles of our sentencing law: that the punishment must fit the crime, that there must be parity in sentences, that we must look to your rehabilitation – a sentence of life imprisonment without parole is grossly disproportionate to your offending.

[127] But I must have due regard to the clear legislative policy of the Act. It assumes that repeat violent offending of the type that led to Brooklyn’s beating and Tarks’s death achieves the purposes just mentioned. Your combined strike offending

Mr Eruera, involved seriously violent attacks using weapons causing injury to five victims, three seriously, with one death. The first strike offending involved the use of car to run over a victim, and a gun to bludgeon two women. The murder occurred while you were still on parole for the first strike offending, evincing a clear propensity to violence. It involved a violent intrusion into the sanctity of the home. Tarks was only 19 when he died. The totality of your strike offending therefore fully engages the purposes of denunciation, deterrence and protection of the public that provide the foundation stone for s 86E. It is, in short, save for what I have said and will say about provocation, a clear example of the repeat offending that s 86E expressly addresses. To find otherwise, would in my view, defeat the legislative policy underpinning it.

[128] But the jury was left with the Crown theory of the case, namely that this was a case of extreme provocation. Reduced to its essentials – I do not consider that a father provoked to violence by an attempted rape of his daughter engages to the same extent, the object of s 86 in terms of deterrence and denunciation, and a sentence of life imprisonment without parole would be, on my view of all of the facts, grossly disproportionate to you, particularly in the light of your capacity to rehabilitate.

[129] I consider that this conclusion is supported by the observation of the Court of Appeal in Hamidzadeh v R which held in relation to s 102 of the Sentencing Act that “there may be cases of an exceptional nature where the court may properly find that provocation by the victim (or possibly from other sources) was such that a sentence of life imprisonment would be manifestly unjust”.³⁹This statement applies with equal force to cases under s 86E. Mr Eruera, your case is one of an exceptional nature that allows me to find, given the provocation, that a sentence of life imprisonment without parole is manifestly unjust.

(a) On the charge of murder, I sentence you to life imprisonment with a minimum non-parole period of 17 years.

[132] Mr Taki, on the charge of being a party to wounding with intent to cause grievous bodily harm, I sentence you to 10 months’ home detention with special conditions that the Registrar will record.

[133] Mrs Eruera, on the charge of being a party to wounding with intent to cause grievous bodily harm, I sentence you to 11 months’ home detention with special conditions that the Registrar will record.

[134] Mr Taki and Mrs Eruera, I am now also required to give you both a first strike warning. I am sure you now appreciate the significance of this. A copy of what I am about to say will be made available to you later. Your convictions today constitute Stage 1 Offences for the purposes of s 86B of the Sentencing Act 2002. From this point if any of you commit another serious violence offence except murder, you will receive a final warning. Furthermore, if you receive a sentence of imprisonment for that offence other than a sentence of life imprisonment for manslaughter or preventive detention generally, you will serve that sentence without parole. If you are convicted of murder you will be sentenced to life imprisonment, which you will have to serve without parole unless that would be manifestly unjust. If serving that sentence would be manifestly unjust the Judge must specify what minimum period of imprisonment you would serve. I reiterate this warning will be provided to you later in writing and if you have any questions I am sure others will be able to explain it to you.

[135] Mr Eruera, I must now give you your final warning. It explains the consequences of another serious violent conviction. You will be given a written notice outlining these consequences which lists the serious violent offences.

[136] If you are convicted of any serious violent offence, other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for that offence. That will be served without parole or early release unless it would be manifestly unjust.

[137] If you are convicted of manslaughter committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years’ imprisonment unless the Judge considers that it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum of at least 10 years’ imprisonment.

[138] If you are convicted of murder after this warning, then you must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole, unless it would be manifestly unjust to do so. If the Judge finds that it is manifestly unjust to do so, then the Judge must impose a minimum period of imprisonment of at least 20 years, unless that would be manifestly unjust, in which case the Judge must sentence you to a minimum period of imprisonment. I am sure you appreciate the significance of that.

[139] If you are sentenced to preventive detention, you must serve the maximum term of imprisonment of the most serious offence you are convicted of, unless the Judge considers that would be manifestly unjust.

High Court of New Zealand Decisions

R v Eruera [2016] NZHC 532 (23 March 2016)