Pekepo v R - [2011] NZCA 305

IN THE COURT OF APPEAL OF NEW ZEALAND

CA414/2010
[2011] NZCA 305

BETWEEN BRONSON TETINI PEKEPO
Appellant

AND THE QUEEN
Respondent

CA440/2010

BETWEEN KARL NESTOR NATHAN
Appellant

AND THE QUEEN
Respondent

Hearing: 11 May 2011

Court: Chambers, Venning and Courtney JJ

Counsel: G W Calver for Bronson Pekepo
S Jefferson for Karl Nathan
R J Collins for Respondent

Judgment: 5 July 2011 at 3 pm

JUDGMENT OF THE COURT

CA414/2010

A The appeal against conviction is dismissed.

BThe appeal against sentence is allowed. The sentence of ten years’ imprisonment and the order the appellant serve two-thirds of it are quashed. In substitution therefor, the appellant is sentenced to eight and a half years’ imprisonment and is ordered to serve a minimum period of imprisonment of five years, eight months.
CA440/2010
CThe appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

A shot in the back

On 24 February 2007 Wayne Tweeddale, the Vice-President of the Wanganui Hells Angels, was shot in the back as he rode his Harley Davidson motorcycle on State Highway 2 between Waipawa and Hastings. Hastings Police commenced an investigation. It quickly emerged that the Central Hawke’s Bay Mongrel Mob were probably behind the shooting. Police came across a text message which Allan Waa, President of the Hawke’s Bay Chapter, had sent on 24 February to Karl Nathan, one of the appellants before us, and Tawhiri Hone, to the effect that Hells Angels were heading in their directions and to “hit them”.
The Crown case, as it ultimately emerged, was that shots were fired at Mr Tweeddale from a Honda Concerto driven by a 19 year old Mongrel Mob prospect, Mr Hone. With him in the car were his cousins Mr Nathan and Bronson Pekepo, the other appellant before us. Both Mr Nathan and Mr Pekepo were patched members of the Mongrel Mob. The Crown case was that it was Mr Nathan who fired two shots at Mr Tweeddale. Mr Pekepo’s role was one of encouragement and assistance. All the men in the car were charged with attempted murder.
Mr Waa was charged with being a party to causing grievous bodily harm with intent to cause grievous bodily harm. The Crown did not charge him with attempted murder. It considered, despite the ultimate actions of those he commanded, that the order to “hit them” was not necessarily a command to kill. Mr Waa pleaded guilty. Asher J sentenced him to eight and a half years’ imprisonment for this and other offending.
Mr Hone pleaded guilty to his charge. Andrews J sentenced him to six years’ imprisonment.
Messrs Pekepo and Nathan pleaded not guilty. The Crown called Mr Hone as a witness at the preliminary hearing. He did not co-operate. He was declared hostile and his videotaped statements were admitted in evidence. Messrs Pekepo and Nathan were committed for trial on the basis of that evidence.
The joint trial of Messrs Pekepo and Nathan took place in April last year before Miller J. The Crown called…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pekepo v R

Details

AGLC: Pekepo v R [2011] NZCA 305
Case: [2011] NZCA 305
Decision Date: 5 July 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeals of Bronson Tetini Pekepo and Karl Nestor Nathan against their convictions and sentences for attempted murder. The appellants were members of the Central Hawke’s Bay Mongrel Mob who were involved in the shooting of Wayne Tweeddale, the Vice-President of the Wanganui Hells Angels. Pekepo and Nathan were found guilty of attempted murder after a trial in which the key witness, Tawhiri Hone, refused to co-operate with both the Crown and the defence. The appellants argued that the trial was unfair because they were unable to effectively cross-examine Hone and that the Judge's direction to the jury concerning Hone's evidence was inadequate. The Court found that the Judge was correct in admitting Hone's prior statements and that the trial was fair despite Hone's unco-operative behaviour. The Court also found that the Judge's direction to the jury was adequate. Pekepo further appealed against his sentence, arguing it was manifestly excessive given his lesser role in the offending. The Court found that Pekepo's starting point should have been eight and a half years' imprisonment rather than ten years. The Court allowed Pekepo's appeal against sentence and substituted a sentence of eight and a half years' imprisonment with a minimum period of imprisonment of five years, eight months. The appeals against conviction were dismissed.

Orders