R v Maka

[2020] NZHC 1161

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-011080

[2020] NZHC 1161

THE QUEEN

v

SIOSAIA JOE MAKA

Hearing:	29 May 2020
Counsel:	DB Stevens and YH Olsen for Crown GJ Newell for Defendant
Judgment:	29 May 2020

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Manukau. GJ Newell, Auckland.

R v MAKA [2020] NZHC 1161 [29 May 2020]

[1]                 Mr Maka, you are for sentence on four charges: assault with a weapon; assault with intent to injure; common assault; and manslaughter. The last is the most serious by an appreciable margin.

[2]                 I pause to acknowledge the presence of Mr Maka’s family members; welcome. I gather none of the victims is here this morning, but the victim impact statement of Ms Awhina Rogers was read aloud.

[3]                 I return to you Mr Maka. All your offences concern an incident in the early hours of 19 October 2019. At 3.45 that morning, you and others went to the home of the victims in Māngere. You did so because one of your co-offenders was angry about something said a little earlier on the telephone by one of the victims. The two were once in a relationship. You had a sawn-off shotgun. The victims were already outside. You and your co-offenders approached them and said, “Do you know who you are messing with?”.

[4]                 You pointed the gun at the chest of Ms Rogers. She pushed one of her (adult) children behind her. She grabbed the barrel. She heard the gun click three times. She implored you not to shoot her children. One of your co-offenders spoke to you in Tongan. You left the driveway and returned the gun to the car. This sequence captures the assault with a weapon charge, which is punishable by a maximum of five years’ imprisonment.

[5]                 A co-offender then attacked Ioteva Taikoko, an 18-year-old. Mr Taikoko fell to the ground. You joined the attack. You and your co-offender repeatedly punched Mr Taikoko to the head while he was defenceless on the ground. This explains the assault with intent to injure charge. It carries a maximum penalty of three years’ imprisonment.

[6]                 You then attacked Rocky Rogers, a 23-year-old. You punched him to the head. He fell to the ground. Mr Rogers got up and tried to leave. You pursued him. You continued to punch him. This sequence captures the assault charge, the maximum penalty for which is 12 months’ imprisonment.

[7]                 Hashim Saad—Mr Rogers’ stepfather and Ms Rogers’ partner—came out of the house. He went to help his stepson, whom, as I have just said, you were attacking. Mr Saad said “no, no”. You turned to face him. Mr Saad walked backwards for five or six metres. You followed. You then punched Mr Saad with an uppercut. You hit him to the jaw. Your punch stunned him. He fell to the ground. He hit his head on the concrete, and later died. You and your co-offenders got back in the car and drove away.

[8]                 You exercised the right to silence when arrested. You pleaded guilty to the manslaughter of Mr Saad on 4 February this year. You pleaded guilty to the other charges just over three weeks later (on 26 February).

[9]                 I have received helpful written submissions from the Crown, and your lawyer, Mr Newell. As you will recall, both spoke to these, very briefly, this morning. The difference between them is not great. The Crown contends the manslaughter offence should attract a starting point of five years’ imprisonment, to which should be added another year for the rest of your offences. Mr Newell contends the manslaughter offence should attract a starting point of four years’ imprisonment, to which should be added six months only.

[10]              I have read the cases each has referred to.1  I will not burden you with detail.  I adopt five years’ imprisonment as the  starting  point  for  your  manslaughter  of Mr Saad. You attacked him. He was doing no more than trying to dissuade you from assaulting his stepson. Your use of violence was not spontaneous. You went to the victims’ home looking for trouble in the early hours of the morning. These aggravating features make the manslaughter a more serious example of its kind, hence the five-year starting point. Again, this was not spontaneous violence.

[11]              I add nine months for the balance of your offending rather than 12 because the same factors make the manslaughter offence more serious, and the five-year starting point reflects that. That said, your other offending was serious in isolation, meaning

1      Blackler v R [2019] NZCA 232, R v Pene [2010] NZCA 387, Murray v R [2013] NZCA 177, Everett v R [2019] NZCA 68, R v  Larson  [2020] NZHC  237, R v  Gray [2019] NZHC  2364, R v Nepia [2019] NZHC 1932 and Kepu v R [2011] NZCA 104. It is not clear R v Taueki  [2005] 3 NZLR 372 (CA) adds anything.

independently of the manslaughter, and much of it cowardly. You assaulted others and you pointed a gun at a female while her adult children were nearby. That must have been terrifying. A six-month uplift would be too little.

[12]              Before addressing your circumstances, I record the obvious. Your offending has caused great harm and pain. Ms Rogers has lost her partner; her children their stepfather. As you will recall from the victim impact statement read this morning,  Ms Rogers continues to “revisit the nightmare” every day.

[13]              You were 23 when you committed these offences; you are now 24. You have three convictions for Land Transport Act offending, but nothing like this. Indeed, you were a student at the University of Auckland. Your pre-sentence report says you have six children. It also says you claim to be a patched member of the Black Power gang. I doubt that very much Mr Maka. Your conviction list is much too short. And even if this were true, it would be nothing to be proud of.

[14]              Mr Newell contends I should discount your sentence by 15 percent because of your age and because of the prospect of rehabilitation. This is a little too high. Your offending was not really impulsive, nor could it be described as adolescent excess, features often associated with a discount for youth. I allow 10 percent, primarily because of the prospect of rehabilitation. You have significant family support, as is evident today. In saying all this, I do not overlook the assessment of the Department of Corrections—which I assume to be actuarial—that you pose a high risk of re-offending.

[15]              The Crown and Mr Newell agree restrictive, electronically monitored conditions of bail warrant a three-month discount. I give you that. The parties also urge a 25 percent discount for your prompt guilty pleas. I give you that too. You saved the state and the victims the burden of a trial, you pleaded guilty promptly, I commend that.

[16]              Mr Newell contends I should also make a discrete discount for remorse. I do not do so. While you may regret the offending, you have done little tangible beyond pleading guilty. And, I have already given you full credit for doing that.

[17]              This produces a final sentence of 44 months’ imprisonment, or three years and eight months.

[18]Please stand. Mr Maka:

(a)For the manslaughter of Mr Saad, I sentence you to three years and eight months’ imprisonment.

(b)I impose 18 months’ imprisonment for the other offences beyond common assault, for which I impose three months’ imprisonment.

[19]              All those sentences will be served at the same time. So, as I have said, the final sentence is 44 months, or three years and eight months.

……………………………..

Downs J