R v Te Aonui-Tawhai
| Jurisdiction | New Zealand |
| Judge | Palmer J |
| Judgment Date | 29 August 2022 |
| Neutral Citation | [2022] NZHC 2169 |
| Docket Number | CRI-2021-041-880 |
| Court | High Court |
| Year | 2022 |
Palmer J
CRI-2021-041-880
IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA
AHURIRI ROHE
Criminal Sentence — sentencing for murder, aggravated robbery and assault with a weapon — use of knife to stab the victim — pre-meditated attack on a member of another gang and the use of a weapon to facilitate robbery of a gang patch — discounts for personal mitigating factors — Sentencing Act 2002
S B Manning for the Crown
R B Philip for Mr Te Aonui-Tawhai
Mr Belmont Te Aonui-Tawhai has pleaded guilty to:
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(a) murder, which is punishable by life imprisonment;
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(b) aggravated robbery, which is punishable by up to 14 years' imprisonment; and
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(c) assault with a weapon, which is punishable by up to five years' imprisonment.
I sentence him in accordance with a sentence indication I provided on 21 June 2022. 1
Mr Te Aonui-Tawhai, and his co-defendant are patched members of the Mongrel Mob. On the afternoon of Monday 29 March 2021, they were in a car when they saw and chased the victim, Mr Peter Lui, who was on his motorcycle. Mr Lui was a 63-year-old patched member of the Outlaw Motorcycle gang. Mr Te Aonui-Tawhai's intention was to take Mr Lui's patch as a trophy.
Mr Te Aonui-Tawhai has pleaded guilty on the basis of a statement of facts that alleged both he and his co-defendant attacked Mr Lui while he was lying on the ground. Mr Te Aonui-Tawhai used a knife to inflict 11 stab wounds to Mr Lui's upper arms and nose, and two incised wounds to his chest and right upper arm. Mr Te Aonui- Tawhai and, allegedly, the co-defendant, kicked and punched the victim and took his patch. They left him lying on the ground, bleeding. Mr Lui died soon afterwards due to blood loss.
Mr Te Aonui-Tawhai either intended to murder Mr Lui, was reckless as to his potential death, or meant to cause grievous bodily injury to facilitate an aggravated robbery and death ensued from the injury. The offending involved a pre-meditated
attack on a member of another gang and the use of a weapon, multiple times, to facilitate robbery of a gang patchMr Philip acknowledges, for Mr Te Aonui-Tawhai that Mr Lui's death was totally unnecessary and avoidable and influenced by his consumption of methamphetamine. He has read Mr Te Aonui-Tawhai's letter of apology and what he submits is genuine remorse. He refers to his upbringing in a gang culture as normalising violence, substance abuse and anti-social behaviour. Mr Manning says it is important to the Lui family that I and Mr Te Aonui-Tawhai know more of who Mr Lui was, a family man, an electrician riding his motorcycle on his lunch break.
The primary victim of the offending was obviously Mr Lui. But his family and friends have also suffered serious emotional harm from the offending. Our law recognises them as victims too. 2 Twenty or so of Mr Lui's family and friends have attended the sentencing. I have read all the victim impact statements. Six have read their victim impact statements here in Court today. I do not repeat what they have said. But to give a sense of it for the record:
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(a) Mr Lui's wife, who uses Peter's nickname “China”, was with him for 10 years and they were married for five years. Meeting China was the best thing that had happened to her. He became her best friend as well as her partner and would tell her he loved her multiple times a day, which never changed over the years. Five days was the longest they were ever apart and that was super hard for both of them. Her world was turned upside down when he was stabbed. A piece of her died with him, being robbed of the only man she had ever loved, and robbed of all her happiness, security and her future. She is haunted by the way China's life was viciously taken from him. It replays over and over in her head. She says, Mr Te Aonui-Tawhai, that you have ruined multiple people's lives and caused pain and trauma that will never go away. She
says the family will not forget about China but will talk about him and love him forever. He was a legend to them. -
(b) Mr Lui's son says this event has taken a great emotional toll on him and the family. He thinks about the life events his Dad was at and the fact the grandkids will never get to see their grandfather anymore. He is worried about how his kids will grow up now and about the effect on Mr Lui's mother. He hopes you understand the full effect you have had on him and his family's lives.
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(c) Mr Lui's daughter says her father was not a perfect man but the love he had for his family was evident to her throughout her whole life. He was loving, shy, a cook, with a good sense of humour, in the background, who gave everything he could and always had the latest gadget. This loss has stopped her always being quick to smile. He will never be able to walk her down the aisle or be around for her nieces and nephews. She feels sorry for you but says no upbringing excuses your actions. She hopes you will realise the gravity of what you have done.
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(d) One of Mr Lui's sisters says Peter was her older, protective and only brother and they were close. She acknowledges Peter had an entire other side of him, being part of the Outlaws gang. There, she says he believed you did not need to be involved in criminal or violent activities. But he was a hard-working, caring and loving Dad to his children. They are still trying to process and understand his death and the fact he is no longer around to guide and support them. His death has left a huge void as he has been the head of the Lui family since his father's passing in 1984. She misses him every day. The family will always keep him close in their hearts and in the memories they share of him. She hopes Mr Te Aonui-Tawhai you are able to turn your life around to make you and your family proud, with professional support, so that Peter's death will not have been in vain and he will continue to make a difference.
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(e) Another of Mr Lui's sisters says that when she received the call about Peter it was beyond her comprehension, as he was just coming back to health after his battle with cancer. Under their Chinese custom, Peter was head of their line of the family, which they could trace back to the year 1200. Peter was someone she knew she could count on if needed – a loving big brother with a dry sense of humour and a rough, often scary outward appearance. The Motorcycle Club was just one aspect of his life. He was an electrician. He helped her to believe in herself. She is left anxious, vulnerable and helpless and says the family does not deserve to have gone through this terrible process. She hopes you make the most of your time in custody. If you are genuinely remorseful, she can forgive you. But nothing will ever bring Peter back.
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(f) Mr Lui's niece says Peter was a dedicated family man who was sorely missed at their family reunion last year and her children are incredibly saddened by his passing. Her own disbelief at his death is constant and she talks about the heavy emotional and physical toll it has taken on the whole family, particularly her grandmother. Nothing will ever be the same.
The penalty for murder is life imprisonment unless, given the circumstances of the offence and the offender, that would be manifestly unjust. There is no suggestion it would be manifestly unjust here. The sentence for the murder will be life imprisonment.
The primary issue is what the minimum period of imprisonment (MPI) should be. During that period there can be no parole from prison, and only after that is the judgment about parole left to the Parole Board to assess on an ongoing basis. Counsel agree that s 104 of the Sentencing Act 2002 (the Act) applies here, because the murder was committed in the course of another serious offence, aggravated robbery. The murder was also likely committed with a high degree of callousness, involving some pre-meditation, extreme violence, serious injury, use of weapons, attacking the head, facilitation of robbery and multiple attackers in the context of conflict between gangs. So the section applies for that reason too. It requires me to impose an MPI of 17 years unless that is manifestly unjust.
Cases involving this sort of manifest injustice need not be rare, but they will be exceptional. 3 In the sentencing indication, I said the starting point for sentencing, in this case, is that the Court must impose an MPI of at least 17 years unless it is satisfied that it would be manifestly unjust to do so. 4 I noted that other offences justified an uplift to the MPI and that a guilty plea would justify a discount. I also said that, while there was no guarantee, it was a reasonable possibility that your youth and background circumstances would mean an MPI of 17 years would be manifestly unjust, depending on reports I would receive. 5
I have now read a cultural report produced by Ms Shelly Turner for the purposes of s 27 of the Act, and a pre-sentence report by the Department of Corrections about your personal background. It is clear you were raised in dysfunction, poverty and violence, and cultural...
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