TAIA v R [2023] NZCA 330

TAIA v R [2023] NZCA 330 [28 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA65/2023[2023] NZCA 330BETWEEN HAZE TAIAAppellantAND THE KINGRespondentHearing: 13 June 2023Court: Courtney, Peters and Mander JJCounsel: R E Webby for AppellantD J McWilliam for RespondentJudgment: 28 July 2023 at 11.30 amJUDGMENT OF THE COURTAppeal against sentence dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Haze Taia was convicted by a jury of injuring with intent to injure,1 robbery,2threatening to kill,3 assault with intent to rob,4 and two charges of kidnapping.5 Hewas sentenced by Judge Ingram in the Tauranga District Court to an effective sentence1 Sections 189(2) and 66 — maximum sentence of five years' imprisonment.2 Section 234 — maximum sentence of 10 years' imprisonment.3 Section 306(1)(a) — maximum sentence of seven years' imprisonment.4 Section 236(1)(b) — maximum sentence of 14 years' imprisonment.5 Crimes Act 1961, s 209(b) — maximum sentence of 14 years' imprisonment.of five years' imprisonment.6 Mr Taia appeals that sentence on various grounds whichindividually or in combination are said to have resulted in a manifestly excessivesentence.Factual background[2] On the night of 25 September 2020, the complainant, Kaniera Jones, becameinvolved in an altercation with a Jacob Paul, an associate of Mr Taia and the formerpartner of a woman with whom Mr Jones had been socialising. Mr Paul foundMr Jones and the woman in bed together. This resulted in Mr Paul going outside anddamaging Mr Jones's car. When Mr Paul drove away from the address, he was pursuedby Mr Jones and the woman. A subsequent collision between their motor vehiclesresulted in damage to both vehicles.[3] A short time later, after Mr Jones had parked and secured his car, the womanreceived a phone call from Mr Taia. As a result of that conversation, Mr Taia pickedup Mr Jones and the woman in his vehicle. Mr Taia was wearing his local KawerauMongrel Mob patch. After dropping the woman off, Mr Taia drove Mr Jones toanother location where a group of five to seven men had gathered. Some were alsowearing Mongrel Mob patches and/or balaclavas over their heads.[4] These men were immediately hostile towards Mr Jones. He was challenged,mainly by Mr Taia, about whether he knew who he had "f-ing messed with" and didhe know "who we are?" because they were the mob. Mr Jones was attacked by thesemen. He was kicked and punched repeatedly whilst on the ground and struck with awrench and hammer. While being assaulted, Mr Jones was asked threateningquestions about his family and where they lived. A gun was put to his head and theninto his mouth, with comments made such as "[w]e should just shoot him". Mr Jonesbelieved he was going to die. He remembers saying, "[d]on't shoot" and the grouplaughing and mocking him. During pauses in the attack, Mr Jones was asked for hisbank account details.6 R v Taia [2022] NZDC 25267.[5] Mr Taia took Mr Jones in his vehicle to another address and locked him in ashipping container. He remained there for some six hours until the early morning.When Mr Taia opened the container, he again asked Mr Jones' for his bank accountdetails and codes. By this time he had already surrendered his phone. He wasthreatened by Mr Taia with being hit on the head with a spade he was holding, if hedid not provide these details. Numerous threats were made, as were demands thatMr Jones ring his family members to obtain money.[6] Mr Jones was placed back in the container by Mr Taia. After some two hours,he released Mr Jones and directed him to go to an ATM to withdraw cash from hisbank account. Mr Jones did this, returning with $470, which he gave to Mr Taia, whothen made Mr Jones phone his bank in an unsuccessful attempt to organise a $5,000loan. Mr Jones was forced to remain at the property and required to carry out mundanejobs around the address and run errands for the remainder of the day at Mr Taia'sdirection. He was required to stay at the property overnight. When he woke thefollowing day, Mr Jones fled the address and contacted police.[7] As a result of the beating, Mr Jones suffered extensive bruising to his face,body and limbs, and ruptured blood vessels in his eye.The sentence[8] The sentencing Court took a global starting point of six years' imprisonment.7Aggravating features of the offending were identified as including the use of asubstantial amount of actual and threatened violence, the use of weapons, and thesignificant amount of harm inflicted on the victim.8 While it was acknowledged therewas no initial planning "a long time in advance", the confinement of Mr Jones, andthe putting him to work, and ordering him around were viewed as premeditated acts.9The Judge described the offending as an assertion of Mongrel Mob authority oversomeone who had dared to challenge a member of the gang.10 This was clearly viewedas a serious, aggravating feature.7 R v Taia, above n 6, at [15].8 At [17].9 At [17].10 At [14].[9] A six-month uplift was imposed for Mr Taia's criminal history.11 Discounts of10 per cent for factors canvassed in a s 27 cultural report relating to Mr Taia's personalbackground and five per cent for remorse were applied.12 Because Mr Taia waspresently serving a significant sentence of imprisonment, a six-month adjustment fortotality resulted in the end sentence of five years' imprisonment.13The appeal[10] Mr Taia raises five grounds in support of his appeal:(a) The Judge made factual findings that were not supported by theevidence.(b) The Judge adopted an excessive starting point.(c) The sentence lacked parity with those imposed on co-offenders.(d) The Court failed to provide a discount for Mr Taia's methamphetamineaddiction.(e) Insufficient credit was extended for factors set out in the s 27 report.[11] We consider each of these matters in turn.Factual finding not supported by evidence[12] Judge Ingram, in sentencing Mr Taia, was of the view that Mr Taia'sinvolvement arose from his membership in the Kawerau Mongrel Mob, and wasmotivated by the need to assert the gang's authority over Mr Jones. In the words ofthe Judge, Mr Jones "clearly had no idea just what sort of trouble he was gettinghimself into" and was required to receive appropriate punishment for having the11 At [21].12 At [22]–[23].13 At [24]–[25]."effrontery" to become involved with Mr Paul's ex-girlfriend and damage his motorvehicle.14 Mr Paul is also a member of the local Mongrel Mob.[13] It was argued the Judge had erred in taking this view of the events. It wassuggested that Mr Taia had only become involved because he resided at the samehouse as the woman with whom Mr Jones had become involved, and that she trustedMr Taia to go with Mr Jones. It was also submitted there was no evidence to supportthe Judge's view that Mr Taia had taken over the conduct of the matter on behalf ofMr Paul because he was senior to him in the Mongrel Mob, nor that he had been calledupon to exercise his authority as a senior member of the gang in Kawerau.[14] We consider the Judge's assessment of Mr Taia's involvement was reasonablyavailable to him and supported by the evidence. Having been informed by Mr Paulabout what had occurred, Mr Taia called the woman, who had remained in Mr Jones'company in his damaged vehicle to inform her "it needed to be sorted out". It isapparent from this point that Mr Taia would determine what was to happen toMr Jones. Mr Paul's ex-partner was asked during her evidence about the situation thathad developed after the cars collided:Q. Immediately after the ramming, you became concerned for Mr Jones'safety, is that right?A. Yeah.Q. Why?A. Because it was all in relation to the Mongrel Mob.Q. Right and when [Mr Taia] contacted you and said that it needed to besorted out, again you had some concerns about what was involved insorting it out, is that right?A. Yeah.Q. Tell us about those concerns. What happens to people who cross theMongrel Mob in Kawerau?A. You get a hiding.14 At [4] and [9].[15] We accept there was no direct evidence regarding Mr Taia's status within thelocal Mongrel Mob. However, we consider it was apparent from how Mr Taia cameto be involved in the matter and from his subsequent actions that he controlled thesituation. He exerted his authority when he directed how Mr Jones was to be treated,not only by himself but by others affiliated with the gang. We are satisfied the Judgewas entitled to approach Mr Taia's sentencing in the way he did.Starting point[16] It was argued on behalf of Mr Taia that the starting point adopted by thesentencing Judge was excessive and that a starting point "more in the realm" of fourand a half years' imprisonment would have been appropriate, although no sentencingauthorities in support of that proposition were cited. Ms Webby, who appearedon behalf of Mr Taia, was critical of the Judge's reference to the guideline judgmentof R v Taueki which does not concern the offence of kidnapping.15 While it wasacknowledged an uplift was required to mark Mr Taia's criminal history, it wassubmitted care was required because much of Mr Taia's recent offending occurredafter the events for which he was being sentenced, and that a six-month uplift wasexcessive.[17] The Judge remarked that he did not consider the sentencing authorities towhich he had been referred were of any real assistance in the circumstances of thepresent offending, and none were provided to us on the appeal to suggest the startingpoint was outside the available range.16 To the extent that guidance can be gleanedfrom cases that involve a combination of factors that include the detention of avictim(s), violence, robbery and gang intimidation, albeit in the context of collectingdrug debts or taxing targeted individuals, we do not consider the six year starting pointto be outside the range available to the Judge.17[18] We do not consider the Judge erred by referencing R v Taueki for the purposeof identifying recognised aggravating features that are discussed in that case, includingthe degree of actual and threatened violence, the use of weapons, the vulnerability of15 R v Taia, above n 6, at [15]; and R v Taueki [2005] 3 NZLR 372 (CA).16 R v Taia, above n 6, at [14].17 See, for example, White v R [2017] NZCA 322.the victim, and the significance of the harm caused.18 Moreover, we consider theJudge rightly recognised the circumstances that may give rise to the commission ofthe offence of kidnapping can vary, but that regard is to be had to such factors as thelength of the detention, the extent of premeditation, the number of offenders, ganginvolvement, and the level of violence employed.19[19] Mr Jones was held for some 36 hours against his will, during which he waslocked in a container for lengthy periods. He was subjected to an extensive beatingby a number of persons and threatened throughout with further serious violence.During that period, attempts were made to extort money from him and he was forcedto access his bank account and hand over cash. While the triggering event that led tothis offending could not have been foreseen, we consider Mr Taia's actions from thepoint he decided to involve himself were considered and premeditated.[20] Some attempt was made to suggest Mr Jones' ability to fetch fast food, travelto empty his bank account, and sleep for periods inside the house, were indicative ofa lesser form of detention. However, these movements occurred at Mr Taia's directionand only serve to demonstrate the level of psychological control he was able to exertover Mr Jones as a result of the threats to his own and his family's physical safety, andthe involvement of the gang.[21] We consider the Judge was cognisant of the fact some of Mr Taia's convictionsrelated to offending that post-dated this matter. He expressly acknowledged that to bethe case.20 However, there remained relevant offending for violence that includednumerous assaults, convictions for threatening to kill, and wilful damage, allcommitted within a two-year period prior to the offending against Mr Jones. We donot consider the uplift for further violent and threatening conduct to be beyond thatavailable to the Judge.18 R v Taueki, above n 15, at [31].19 R v Taia, above n 6, at [15]–[17]; and R v Liev [2017] NZHC 2253.20 R v Taia, above n 6, at [19].Parity with co-offenders[22] Ms Webby submitted that Jacob Paul and his brother, Rawhiti Paul, had beeninvolved in the assault on Mr Jones and the sentence imposed on Mr Taia lacked paritywith the way they were dealt with. We only have the sentencing notes relating toRawhiti Paul. We therefore confine our consideration of this issue to a comparison ofMr Taia with Rawhiti Paul.[23] Rawhiti Paul was affiliated with the local Mongrel Mob. He was charged withinjuring with intent to injure and pleaded guilty at an early stage. He was sentenced to12 months' supervision, four months' community detention and 150 hours' communitywork.21 The Judge rejected a submission that what he described as the "relativelylenient sentence" should be used as any guide given Mr Taia's responsibility for whathappened to Mr Jones and the way the matter escalated.22 This was said to beillustrated by the lack of any reference to the Paul brothers in the evidence after theinitial assault on the first night.[24] We do not consider the Judge erred in viewing Mr Taia's offending as being ata different level to that of Rawhiti Paul. Unlike Mr Taia, he did not face charges ofkidnapping, robbery, threatening to kill, or assault with intent to rob — all of whicharose from Mr Jones' detention and prolonged treatment that involved long periods ofconfinement, robbery, repeated attempts to extort money, threats of serious violence,and the use of force. Because of the significantly more serious charges Mr Taia faced,and his contrasting higher level of culpability as a result of his continued offendingagainst Mr Jones, we do not consider the sentencing Judge erred in declining to beguided by the approach taken to the sentencing of Rawhiti Paul, nor that the endsentence ultimately imposed on the charge he faced gives rise to any concern overparity.Failure to provide a discount for Mr Taia's methamphetamine addiction[25] Judge Ingram rejected a submission that Mr Taia's use of methamphetamineplayed a part in his offending or that any discount was justified solely for his21 R v Paul [2023] NZDC 26197.22 R v Taia, above n 6, at [11].addiction.23 Ms Webby submitted there was direct evidence to support such asubmission because Mr Jones described observing Mr Taia consuming "crack" at thetime he was being made to contact his bank in an effort to arrange a bank loan. It wasargued Mr Taia was under the influence of methamphetamine. Reliance was alsoplaced on Mr Taia's description in the s 27 cultural report of his use of drugs and theimpact it was having on him. His conviction for possessing methamphetamine in 2019was noted.[26] Any submission that Mr Taia is less culpable because he was under theinfluence of methamphetamine at the time must be rejected. A sentencing court isprohibited from taking into account as a matter of mitigation the fact an offender wasaffected by the voluntary consumption of any drug at the time of committing theoffence.24 However, an offender's addiction can have relevance when assessingmatters relating to their personal background because it may bear on how they havecome to offend and causatively contributed to that outcome.25[27] As we have already found, the sentencing Judge, who presided at the trial, wasentitled to assess Mr Taia's involvement as having resulted from his perceived need topunish Mr Jones for daring to challenge a member of the local gang. We also considerhe was entitled to conclude that Mr Taia's offending was uninfluenced by anymethamphetamine dependence. We do not overlook Ms Webby's submissionregarding the prevalence and impact of methamphetamine on the local Kaweraucommunity, which is peddled by the local Mongrel Mob.26 We have little doubt thatgang members themselves, like Mr Taia, are detrimentally affected by their own useof this drug. However, we do not consider that his dependence on methamphetaminemitigates his conduct in the circumstances of this case.[28] Mr Taia's reliance on methamphetamine may well be the product of hisdeprived background and marginalised upbringing, as no doubt is his involvement inthe Mongrel Mob itself. However, to the extent that is a relevant consideration, it is23 At [20].24 Sentencing Act 2002, s 9(3).25 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]–[109].26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [79].reflected in the discount he was afforded for personal mitigating factors the Judge latertook into account when completing the sentencing exercise.Alleged insufficient credit for content of s 27 report[29] The sentencing Judge afforded Mr Taia a 10 per cent discount for the factorsdiscussed in the s 27 cultural report relating to his personal background.27 As alreadynoted, we accept his involvement in the gang can be linked with his upbringing andassociated social dislocation that was marked, in particular, by physical conflictbetween his parents and other forms of direct abuse he experienced. However, whilewe accept there is an obvious linkage between Mr Taia's conduct and his earlyexposure to gang life, we consider the way Mr Taia persisted in his offending againstMr Jones and chose to involve himself, entirely at his own volition, in a matter thathad nothing to do with him, detracts from the strength of this causal contributor to hisoffending. We do not consider the Judge's 10 per cent discount for the factorsreviewed in the s 27 report to be insufficient.[30] A further complaint was raised relating to the level of credit afforded inrecognition of Mr Taia's remorse, which, it was submitted, should also include hisoffer to make amends through restorative justice. We do not consider the five per centdiscount for remorse, which the sentencing Judge described as late and "very, verylimited", was anything other than appropriate.28 We accept that often little can be doneby an offender beyond making expressions of remorse and offers to make amends, but,in the absence of any further demonstration beyond such representations, we do notconsider the level of discount provided gives rise to any error.Conclusion[31] We agree with Ms Webby's final submission that the sentencing exercise needsto be considered in its entirety and, indeed, most fundamentally, on the basis ofwhether the final sentence imposed lies within the range available to the sentencingCourt in the exercise of its discretion. Notwithstanding the matters raised for our27 R v Taia, above n 6, at [22].28 At [22].consideration, we do not consider the Judge erred in his approach to sentencingMr Taia, nor that the final sentence imposed was manifestly excessive.Result[32] The appeal is dismissed.Solicitors:Webby & Associates, Tauranga for AppellantCrown Solicitor, Tauranga for Respondent