IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2018-035-1361
[2020] NZHC 1562	

THE QUEEN	

v	

TIANA MAREE WALKER-DAHLBERG	

Hearing:	3 July 2020	
Counsel:	G J Burston for Crown
I M Antunovic for Ms Walker-Dahlberg	
Sentencing:	3 July 2020	

SENTENCING NOTES OF ELLIS J

[1]	Ms Walker-Dahlberg, I have to begin by convicting you, because that has not happened. I am convicting you on the charge of aggravated burglary. I also have to give you a first strike warning because you are now subject to the three strikes law by virtue of that conviction.

[2]	So I have to give you a warning of the consequences of another serious violence conviction. You will be given a written notice outlining those consequences, which also lists the serious violent offences which trigger three strikes. If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be

R v WALKER-DAHLBERG [2020] NZHC 1562 [3 July 2020]

served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[3]	Turning now to your sentence, you will appreciate there are quite a lot of things I need to say before we actually get to that. You pleaded guilty to the charge of aggravated burglary just before Christmas last year. Other charges that you were also facing then, and which related to the same events, were then withdrawn by the Crown.

[4]	Before I get to your sentence, there are some things I need to talk about, and the first of those is what happened back on 2 December 2018.

Background

[5]	The background to your offending involved a custody dispute between you and your former partner, Mr Ben Francis. One of the two victims (Mr Rhodes) was a relative of Mr Francis. The other victim, Ms Nepia, was Mr Rhodes’ partner.

[6]	At around 10 am on Sunday, 2 December 2018, both victims left their home in their car. When they stopped at the intersection of Church Street and Colombo Road, they saw you driving a car travelling south.

[7]	You stopped in the middle of the intersection and yelled at Mr Rhodes through an open car window something about his father’s sticker. You were referring to some remembrance stickers that had photographs of Mr Rhodes’ father on them, who had died two years earlier.

[8]	Mr Rhodes got out of his vehicle and approached your car, saying that he was going to take the sticker off your car. Then he saw that a Nomads sticker had been placed over the photo of his father. He was upset by this. There was an argument between the two of you. It seems that the argument did have some kind of physical component but I cannot really take that much further. You then drove away. Mr Rhodes and Ms Nepia reported the incident to police.

[9]	When you got home you told your then partner, Rex Daley, what had happened. You both got in the car and went to look for Mr Rhodes to confront him. When you

got to the address where Mr Rhodes was, you began yelling and throwing stones at the house. The police were called but you left before they arrived.

[10]	You then told your cousin,  Aaron  Takamore,  about  what  had  happened. Mr Daley armed himself with a sawn-off shotgun and some ammunition. At around
7.30 pm the three of you and some others drove to Mr Rhodes’ mother’s address in three vehicles. You parked in front of the house and began tooting your horns. Mr Rhodes came outside and challenged Mr Daley to a fight on the lawn.

[11]	After a further exchange between Mr Daley and Mr Rhodes you all drove away.

[12]	All that is just background to the events that form the basis of the aggravated burglary charge, which is what I am going to talk about now.

The aggravated burglary

[13]	Later that same evening, you, Mr Daley and Mr Takamore travelled again to Mr Rhodes’ mother’s house. Again, Mr Daley had armed himself with a sawn-off shotgun and a number of rounds of ammunition. He was wearing his Nomad gang patch. Mr Takamore was driving. All three of you covered your faces with bandanas.

[14]	Mr Rhodes, Ms Nepia and other family members were standing outside. Because of what had happened earlier they were on the lookout for you. Mr Rhodes saw the car park some distance away from the address and turn its lights off. Mr Daley got out of the car carrying the loaded shotgun and walked onto their property, toward the victims and their family. That is the basis for the aggravated burglary charge.

[15]	Although what happened next is not directly relevant to your sentence, it is important to say something about it.

[16]	Thinking Mr Daley was carrying only a bat, Mr Rhodes challenged him to a fight. Once he was a few metres away, Mr Daley raised the gun and closed the barrel. Recognising the sound, Mr Rhodes retreated into his mother’s yard and tried to hide behind the cars parked in the driveway.

[17]	Mr Daley followed Mr Rhodes into the yard and tried to point the shotgun at him.

[18]	Meanwhile Mr Takamore drove the car closer and parked across the road. You got out of the car and yelled abuse at the victims and their family. When Ms Nepia, with two other family members, ran towards you, you got back into the car and locked the door. Ms Nepia and her family members pounded on the window of the car.

[19]	Mr Daley ran back to the car with the loaded shotgun and used the butt to hit one of them. Ms Nepia tried to protect the others. Mr Daley turned the shotgun on her and fired into her left leg. She fell to the ground, bleeding heavily.

[20]	Mr Daley then got back into the car and you all left the scene.

[21]	As you know, Ms Nepia suffered life-threatening injuries. She was hospitalised for several months. Her leg was eventually amputated above the knee. She still requires medical treatment. She has to use a wheelchair and has large scars from her surgeries. You heard what she said to you and to the Court today. Her life has been permanently and horrifically affected by what happened that day. She has lost her children. She has lost her independence. Her life will never be the same. Even though you are not being sentenced today for what Mr Daly did when he fired that gun at Ms Nepia, you share responsibility for setting in motion the chain of events that led to that dreadful happening.

Co-offenders

[22]	At the end of last year Mr Daley also pleaded guilty to a charge of aggravated burglary as well as further serious charges of causing grievous bodily harm with intent to cause grievous bodily harm and a charge of discharging a firearm with reckless disregard for the safety of others. I have just sentenced him this morning to eight and a half years’ imprisonment for that.

[23]	Mr Takamore pleaded guilty some time ago to one charge of aggravated burglary—the same charge that you are now being sentenced for—and was sentenced

to 12 months’ home detention, although for reasons I do not need to go into, he has recently been re-sentenced to a term of imprisonment.

Sentence

[24]	Now I come to the question of your sentence. As I said earlier you are being sentenced on one count of aggravated burglary for which the maximum penalty is  14 years’ imprisonment. The burglary here was Mr Daley entering into an enclosed yard with the intention of threatening or committing violence. What makes it aggravated is the fact that he had a loaded sawn-off shotgun with him. You are liable as a party because you helped or encouraged Mr Daley to do that.

[25]	I need to begin by deciding the starting point. The starting point needs to reflect the seriousness of the offending.1 In your case there were several things that adds to the seriousness here:2

(a)	First, there was a degree of planning and preparation to what happened because of the build-up of tensions earlier that day. You played a central role in the build-up of those tensions and, indeed, it was you who told Mr Daley about them, spurring him to action. I think you knew that Mr Daley was likely to confront Mr Rhodes with a lethal weapon and that you encouraged or certainly did not stop him from doing so.

(b)	Secondly, there is the fact that there were three of you involved, even though it was only Mr Daley who actually entered the enclosed yard.

(c)	Thirdly, you each attempted to disguise your appearance through the use of bandanas.

1	While there is no tariff case for aggravated burglary, the principles in the tariff case for aggravated robbery, R v Mako [2000] 2 NZLR 170 (CA) can apply equally to aggravated burglary: R v Watson CA224/03, 24 October 2003 at [27]; R v Drewett [2007] NZCA 48 at [15]; Archbold v R [2015] NZCA 493 at [9].
2	I do not agree with the Crown that the use of a weapon is a separate aggravating factor; as I have already explained it is use of the gun that makes the burglary charge aggravated in the first place.

(d)	Fourthly, the aggravated burglary involved both verbal threats of violence and physical threats of violence, when Mr Daley raised and activated the shotgun within a few metres of Mr Rhodes and pointed it at other family members.

(e)	And lastly, the burglary happened at night, although I acknowledge that at 9 pm in December, it may well not have been completely dark.

[26]	When first sentencing Mr Takamore on the same aggravated burglary charge, Thomas J said the appropriate starting point was five years’ imprisonment. She discounted that by one year because Mr Takamore was only the driver and so was less to blame.

[27]	As counsel have said today, in May last year, Simon France J also gave you a sentence indication. He noted the five-year stating point adopted for Mr Takamore and that it was accepted at that time the same should apply to you. He did not think that you should get the same one-year reduction as Mr Takamore did because your involvement in the offending was greater than his. He nonetheless thought six months off was appropriate to reflect that you were less to blame than Mr Daley. I agree with that. So the starting point for you is four and a half years’ imprisonment.

[28]	The next question is whether there are matters personal to you, Ms Walker- Dahlberg, which mean this starting point should go up or down.

[29]	As we heard this morning, you are now 31 years old. You have three children—three boys, who are aged 14, 13 and seven. The two older boys have always lived with your parents and, since your arrest for this current offending, your youngest boy lives with them too. You report that they are all suffering as a result of your offending and that they have been bullied and teased at school. You would like all of them to come and live with you somewhere out of Masterton eventually, but that seems unlikely, at least in the short term. Recently you have only been able to see them for a few hours on alternate weekends.

[30]	You have previously held down a number of different jobs, including as a real estate agent. Your convictions have, of course, made employment problematic, but I do note that you say you would like to study criminal law and what Mr Antunovic told me this morning about you taking some steps in that direction.

[31]	I have read the provision of advice to courts (or PAC) report about you and a report prepared by a psychiatrist. The PAC report identifies you as vulnerable and that is confirmed by a cultural report which has also been filed. The cultural report was written by a friend of yours and of your new partner. I have also read your recent letter to the Court in which you express great remorse for what happened on 2 December 2018 and, in particular, what happened to Ms Nepia. It seems you are no longer trying to shift the blame for that, although a lot of your letter is also about the effect of all this on you and your children. I do agree with you, though, that in a sense your children are victims here too.

[32]	The cultural report and your letter both speak of a number of personal tragedies you have suffered over the last two years or so. Your friend who wrote the report speaks of your many good qualities and the letters of support I received yesterday from your grandfather and others also emphasise your positive attributes. I have no doubt that, in the right circumstances, you are and you can be a good and loving friend and I am sure that you are capable of making a positive contribution to society, if you put your mind to it.

[33]	The psychiatrist’s report identifies a number of things which have contributed to your offending. Despite growing up in a caring and supportive family environment you developed relationships in adolescence that supported your rebellion against your parents and provided easy access to drugs. There is also mention of a friend’s suicide when you were 14 which appears to have had a significant impact on you at that time. In any event, it seems you increasingly disengaged from school and other positive activities in favour of substance abuse and association with antisocial people. You reported a number of other traumatic experiences which further contributed to your emotional difficulties and, in turn, your abuse of alcohol and other drugs. And in the last year or so you have suffered the losses of three other people who were very dear to you.

[34]	The psychiatrist says you have a number of needs which, if addressed, could reduce your risk of future reoffending and improve your well-being more generally. He says you seem to have developing insight and are motivated to attend treatment for substance abuse. You have also acknowledged the need to attend counselling for grief and PTSD, and would like treatment to help you better understand what led to your current offending.

[35]	I agree with the Crown that your criminal history is relatively neutral here. Your previous offending is not particularly serious and not especially relevant. Equally, though, I also agree with Mr Burston that it is difficult to see how there can be any discount for good character, although, again, I acknowledge that you do plainly have many positive attributes to which those who are close to you have attested.

[36]	The Crown accepts that you have spent quite a length of time on relatively restrictive bail conditions but also points out that you committed drug offending while on bail, as a consequence of which you received a sentence of intensive supervision and community detention. Mr Burston also referred me to the fact that there are other charges pending, but he rightly said that you are entitled to the presumption of innocence in relation to those.

[37]	I have to say, Ms Walker-Dahlberg, the question of what we call personal mitigating factors is a difficult one in your case. Unlike Mr Daly, for example—where it is not difficult to see how his childhood, his more recent past and his mental health issues have led him to where he is today—quite how you have ended up here is much less clear to me. I acknowledge that you have suffered some traumatic life events which have diminished your coping ability and which you need help to address and resolve without turning to drugs and alcohol. I also acknowledge, again, that you still have real potential to make something of your life and that you wish to do so. But there is very little in the way of your personal circumstances that could justify a significant reduction in sentence today. I am, though, prepared to accept that you have recently exhibited signs of remorse, even though, I have to say, they have been a long time coming.

[38]	Lastly, there is the matter of your guilty plea. You did not accept France J’s sentence indication and did not plead guilty for another six months. The Crown says that a discount of no more than 20 per cent would be appropriate. I agree with that. In my view, 25 per cent would be too generous and is not warranted.

[39]	In the end, I consider a combined reduction of 18 months for remorse, guilty plea and time spent on restrictive bail is warranted in your case. That gives an end sentence of three years’ imprisonment. That is out of home detention range.

[40]	So, Ms Walker-Dahlberg, would you stand now please. On the charge of aggravated burglary I sentence you to three years’ imprisonment.  Please stand down.

Rebecca Ellis J

Solicitors:
Crown Solicitor, Wellington Antunovic Law, Wellington