IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA65/2023
 [2023] NZCA 330

	
BETWEEN	
HAZE TAIA
Appellant	
	
AND	
THE KING
Respondent	

Hearing:	
13 June 2023	

Court:	
Courtney, Peters and Mander JJ	

Counsel:	
R E Webby for Appellant
D J McWilliam for Respondent

Judgment:	
28 July 2023 at 11.30 am	

JUDGMENT OF THE COURT

Appeal 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, robbery, threatening to kill, assault with intent to rob, and two charges of kidnapping.  He was sentenced by Judge Ingram in the Tauranga District Court to an effective sentence of five years’ imprisonment.  Mr Taia appeals that sentence on various grounds which individually or in combination are said to have resulted in a manifestly excessive sentence.
Factual background
[2]	On the night of 25 September 2020, the complainant, Kaniera Jones, became involved in an altercation with a Jacob Paul, an associate of Mr Taia and the former partner of a woman with whom Mr Jones had been socialising.  Mr Paul found Mr Jones and the woman in bed together.  This resulted in Mr Paul going outside and damaging Mr Jones’s car.  When Mr Paul drove away from the address, he was pursued by Mr Jones and the woman.  A subsequent collision between their motor vehicles resulted in damage to both vehicles.
[3]	A short time later, after Mr Jones had parked and secured his car, the woman received a phone call from Mr Taia.  As a result of that conversation, Mr Taia picked up Mr Jones and the woman in his vehicle.  Mr Taia was wearing his local Kawerau Mongrel Mob patch.  After dropping the woman off, Mr Taia drove Mr Jones to another location where a group of five to seven men had gathered.  Some were also wearing 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 did he know “who we are?” because they were the mob.  Mr Jones was attacked by these men.  He was kicked and punched repeatedly whilst on the ground and struck with a wrench and hammer.  While being assaulted, Mr Jones was asked threatening questions about his family and where they lived.  A gun was put to his head and then into his mouth, with comments made such as “[w]e should just shoot him”.  Mr Jones believed he was going to die.  He remembers saying, “[d]on’t shoot” and the group laughing and mocking him.  During pauses in the attack, Mr Jones was asked for his bank account details.
[5]	Mr Taia took Mr Jones in his vehicle to another address and locked him in a shipping 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 account details and codes.  By this time he had already surrendered his phone.  He was threatened by Mr Taia with being hit on the head with a spade he was holding, if he did not provide these details.  Numerous threats were made, as were demands that Mr 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 his bank account.  Mr Jones did this, returning with $470, which he gave to Mr Taia, who then made Mr Jones phone his bank in an unsuccessful attempt to organise a $5,000 loan.  Mr Jones was forced to remain at the property and required to carry out mundane jobs around the address and run errands for the remainder of the day at Mr Taia’s direction.  He was required to stay at the property overnight.  When he woke the following 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.  Aggravating features of the offending were identified as including the use of a substantial amount of actual and threatened violence, the use of weapons, and the significant amount of harm inflicted on the victim.  While it was acknowledged there was no initial planning “a long time in advance”, the confinement of Mr Jones, and the putting him to work, and ordering him around were viewed as premeditated acts.  The Judge described the offending as an assertion of Mongrel Mob authority over someone who had dared to challenge a member of the gang.  This was clearly viewed as a serious, aggravating feature.  
[9]	A six-month uplift was imposed for Mr Taia’s criminal history.  Discounts of 10 per cent for factors canvassed in a s 27 cultural report relating to Mr Taia’s personal background and five per cent for remorse were applied.  Because Mr Taia was presently serving a significant sentence of imprisonment, a six-month adjustment for totality resulted in the end sentence of five years’ imprisonment.
The appeal
[10]	Mr Taia raises five grounds in support of his appeal:
(a)	The Judge made factual findings that were not supported by the evidence.
(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 methamphetamine addiction.
(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’s involvement arose from his membership in the Kawerau Mongrel Mob, and was motivated by the need to assert the gang’s authority over Mr Jones.  In the words of the Judge, Mr Jones “clearly had no idea just what sort of trouble he was getting himself into” and was required to receive appropriate punishment for having the “effrontery” to become involved with Mr Paul’s ex-girlfriend and damage his motor vehicle.  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 was suggested that Mr Taia had only become involved because he resided at the same house as the woman with whom Mr Jones had become involved, and that she trusted Mr Taia to go with Mr Jones.  It was also submitted there was no evidence to support the Judge’s view that Mr Taia had taken over the conduct of the matter on behalf of Mr Paul because he was senior to him in the Mongrel Mob, nor that he had been called upon 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 reasonably available to him and supported by the evidence.  Having been informed by Mr Paul about 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 is apparent from this point that Mr Taia would determine what was to happen to Mr Jones.  Mr Paul’s ex-partner was asked during her evidence about the situation that had 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 be sorted out, again you had some concerns about what was involved in sorting it out, is that right?
A. 	Yeah.
Q. 	Tell us about those concerns. What happens to people who cross the Mongrel Mob in Kawerau?
A. 	You get a hiding.
[15]	We accept there was no direct evidence regarding Mr Taia’s status within the local Mongrel Mob.  However, we consider it was apparent from how Mr Taia came to be involved in the matter and from his subsequent actions that he controlled the situation.  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 Judge was 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 the sentencing Judge was excessive and that a starting point “more in the realm” of four and a half years’ imprisonment would have been appropriate, although no sentencing authorities in support of that proposition were cited.  Ms Webby, who appeared on behalf of Mr Taia, was critical of the Judge’s reference to the guideline judgment of R v Taueki which does not concern the offence of kidnapping.  While it was acknowledged an uplift was required to mark Mr Taia’s criminal history, it was submitted care was required because much of Mr Taia’s recent offending occurred after the events for which he was being sentenced, and that a six-month uplift was excessive.  
[17]	The Judge remarked that he did not consider the sentencing authorities to which he had been referred were of any real assistance in the circumstances of the present offending, and none were provided to us on the appeal to suggest the starting point was outside the available range.  To the extent that guidance can be gleaned from cases that involve a combination of factors that include the detention of a victim(s), violence, robbery and gang intimidation, albeit in the context of collecting drug debts or taxing targeted individuals, we do not consider the six year starting point to be outside the range available to the Judge.
[18]	We do not consider the Judge erred by referencing R v Taueki for the purpose of identifying recognised aggravating features that are discussed in that case, including the degree of actual and threatened violence, the use of weapons, the vulnerability of the victim, and the significance of the harm caused.  Moreover, we consider the Judge rightly recognised the circumstances that may give rise to the commission of the offence of kidnapping can vary, but that regard is to be had to such factors as the length of the detention, the extent of premeditation, the number of offenders, gang involvement, and the level of violence employed.
[19]	Mr Jones was held for some 36 hours against his will, during which he was locked in a container for lengthy periods.  He was subjected to an extensive beating by 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 forced to access his bank account and hand over cash.  While the triggering event that led to this offending could not have been foreseen, we consider Mr Taia’s actions from the point he decided to involve himself were considered and premeditated.  
[20]	Some attempt was made to suggest Mr Jones’ ability to fetch fast food, travel to empty his bank account, and sleep for periods inside the house, were indicative of a lesser form of detention.  However, these movements occurred at Mr Taia’s direction and only serve to demonstrate the level of psychological control he was able to exert over Mr Jones as a result of the threats to his own and his family’s physical safety, and the involvement of the gang.
[21]	We consider the Judge was cognisant of the fact some of Mr Taia’s convictions related to offending that post-dated this matter.  He expressly acknowledged that to be the case.  However, there remained relevant offending for violence that included numerous assaults, convictions for threatening to kill, and wilful damage, all committed within a two-year period prior to the offending against Mr Jones.  We do not consider the uplift for further violent and threatening conduct to be beyond that available to the Judge.
Parity with co-offenders
[22]	Ms Webby submitted that Jacob Paul and his brother, Rawhiti Paul, had been involved in the assault on Mr Jones and the sentence imposed on Mr Taia lacked parity with the way they were dealt with.  We only have the sentencing notes relating to Rawhiti Paul.  We therefore confine our consideration of this issue to a comparison of Mr Taia with Rawhiti Paul. 
[23]	Rawhiti Paul was affiliated with the local Mongrel Mob.  He was charged with injuring with intent to injure and pleaded guilty at an early stage. He was sentenced to 12 months’ supervision, four months’ community detention and 150 hours’ community work. The Judge rejected a submission that what he described as the “relatively lenient sentence” should be used as any guide given Mr Taia’s responsibility for what happened to Mr Jones and the way the matter escalated.  This was said to be illustrated by the lack of any reference to the Paul brothers in the evidence after the initial assault on the first night.  
[24]	We do not consider the Judge erred in viewing Mr Taia’s offending as being at a different level to that of Rawhiti Paul.  Unlike Mr Taia, he did not face charges of kidnapping, robbery, threatening to kill, or assault with intent to rob — all of which arose from Mr Jones’ detention and prolonged treatment that involved long periods of confinement, 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 offending against Mr Jones, we do not consider the sentencing Judge erred in declining to be guided by the approach taken to the sentencing of Rawhiti Paul, nor that the end sentence ultimately imposed on the charge he faced gives rise to any concern over parity.
Failure to provide a discount for Mr Taia’s methamphetamine addiction
[25]	Judge Ingram rejected a submission that Mr Taia’s use of methamphetamine played a part in his offending or that any discount was justified solely for his addiction.  Ms Webby submitted there was direct evidence to support such a submission because Mr Jones described observing Mr Taia consuming “crack” at the time he was being made to contact his bank in an effort to arrange a bank loan.  It was argued Mr Taia was under the influence of methamphetamine.  Reliance was also placed on Mr Taia’s description in the s 27 cultural report of his use of drugs and the impact it was having on him.  His conviction for possessing methamphetamine in 2019 was noted.
[26]	Any submission that Mr Taia is less culpable because he was under the influence of methamphetamine at the time must be rejected.  A sentencing court is prohibited from taking into account as a matter of mitigation the fact an offender was affected by the voluntary consumption of any drug at the time of committing the offence.  However, an offender’s addiction can have relevance when assessing matters relating to their personal background because it may bear on how they have come to offend and causatively contributed to that outcome.  
[27]	As we have already found, the sentencing Judge, who presided at the trial, was entitled to assess Mr Taia’s involvement as having resulted from his perceived need to punish Mr Jones for daring to challenge a member of the local gang.  We also consider he was entitled to conclude that Mr Taia’s offending was uninfluenced by any methamphetamine dependence.  We do not overlook Ms Webby’s submission regarding the prevalence and impact of methamphetamine on the local Kawerau community, which is peddled by the local Mongrel Mob.  We have little doubt that gang members themselves, like Mr Taia, are detrimentally affected by their own use of this drug.  However, we do not consider that his dependence on methamphetamine mitigates his conduct in the circumstances of this case. 
[28]	Mr Taia’s reliance on methamphetamine may well be the product of his deprived background and marginalised upbringing, as no doubt is his involvement in the Mongrel Mob itself.  However, to the extent that is a relevant consideration, it is reflected in the discount he was afforded for personal mitigating factors the Judge later took 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 factors discussed in the s 27 cultural report relating to his personal background.  As already noted, we accept his involvement in the gang can be linked with his upbringing and associated social dislocation that was marked, in particular, by physical conflict between his parents and other forms of direct abuse he experienced.  However, while we accept there is an obvious linkage between Mr Taia’s conduct and his early exposure to gang life, we consider the way Mr Taia persisted in his offending against Mr Jones and chose to involve himself, entirely at his own volition, in a matter that had nothing to do with him, detracts from the strength of this causal contributor to his offending.  We do not consider the Judge’s 10 per cent discount for the factors reviewed in the s 27 report to be insufficient.
[30]	A further complaint was raised relating to the level of credit afforded in recognition of Mr Taia’s remorse, which, it was submitted, should also include his offer to make amends through restorative justice.  We do not consider the five per cent discount for remorse, which the sentencing Judge described as late and “very, very limited”, was anything other than appropriate.  We accept that often little can be done by 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 not consider the level of discount provided gives rise to any error.
Conclusion
[31]	We agree with Ms Webby’s final submission that the sentencing exercise needs to be considered in its entirety and, indeed, most fundamentally, on the basis of whether the final sentence imposed lies within the range available to the sentencing Court in the exercise of its discretion.  Notwithstanding the matters raised for our consideration, we do not consider the Judge erred in his approach to sentencing Mr Taia, nor that the final sentence imposed was manifestly excessive.
Result 
[32]	The appeal is dismissed.

Solicitors: 
Webby & Associates, Tauranga for Appellant
Crown Solicitor, Tauranga for Respondent