R v Biddle

[2018] NZHC 2264

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CCRI-2007-087-131

[2018] NZHC 2264

THE QUEEN

v

BENJAMIN BIDDLE

Hearing:

30 August 2018

Appearances:

O M Salt for Crown

N M Dutch for Defendant

Judgment:

30 August 2018

SENTENCING REMARKS OF LANG J

R v BIDDLE [2018] NZHC 2264 [30 August 2018]

[1]        Mr Biddle, you appear for sentence today having been found guilty by a jury on charges of participating in an organised criminal group1 and rioting.2 The maximum penalty on the first charge is ten years imprisonment, whilst the maximum penalty on the second is two years imprisonment.

Background

[2]        Your offending arose from a series of incidents that occurred in and around Whakatane on the afternoon of 17 January 2017.

[3]        On that date members of the Black Power gang, with whom you are closely affiliated, became aware that a funeral procession comprising members and associates of the rival Mongrel Mob gang was to pass through Whakatane on its way to the crematorium just outside the town. You and others then went to various locations where you thought the funeral procession might enter the town. You were seen at various gatherings as members of the Black Power gang awaited the arrival of the funeral procession.

[4]        The incident that gives rise to the charges was sparked by another incident that occurred in a service lane near Valley Road when the funeral procession entered the town. During that incident members and associates of the Black Power gang threw missiles at cars in the funeral procession. The Mongrel Mob predictably responded in a violent fashion. They discharged several shots in the direction of the Black Power group. A vehicle driven by members of the Mongrel Mob also endeavoured to run down members of the Black Power group as they fled from the service lane.

[5]        You were with a group of people near Rex Morpeth Park at this time. Word quickly spread of the shooting and you went to your vehicle with others. I am satisfied beyond reasonable doubt on the evidence that you were told the Mongrel Mob had shot at members of the Black Power. I do not accept your explanation to the police that you believed a member of the Black Power had actually been shot. You and others then drove to Arawa Road.

1      Crimes Act 1961, s 98A.

2      Crimes Act 1961, s 87.

[6]        You drove your vehicle up Arawa Road towards Valley Road. Persons in your car then offered taunts towards a large group of Mongrel Mob members who had got out of their cars and were standing at the intersection of Arawa Road and Valley Road. I am satisfied you deliberately drove your vehicle up the road and parked in a position where persons in your vehicle could challenge the Mongrel Mob and jeer taunts at them. You then drove your vehicle back up the street. Film footage shows that you stopped your vehicle beside a silver Mitsubishi Galant motor vehicle that had arrived in Arawa Road. You then drove your vehicle over to the other side of the street where you parked. You got out of your car and walked across the street so you were in close proximity to the Mitsubishi Galant. You were able to see members of the Black Power gang taking firearms out of the boot of the vehicle.

[7]        Rather than leave the scene, you decided to participate in what then happened. You were shown on film footage raising your arms in gestures that were clearly challenges to the Mongrel Mob at the other end of the street. The jury obviously decided that your actions were sufficient to make you a member of a group that had decided to use serious violence against the Mongrel Mob. This took the form of the use of firearms against them.

[8]        The whole incident was captured by several persons who were in the vicinity. They used their cellphones to film what was going on, and the jury was therefore in a good position to reach its verdicts regarding your participation.

Starting point

[9]        The starting point in your case needs to be determined having regard to starting points selected in relation to other participants in the incident on 17 January 2017. A starting point of six years imprisonment was selected in respect of Mr Karaneihana Taipeti, who was the person who fired two shots at members of the Mongrel Mob during the course of the incident.3 Your culpability obviously falls well below that.

[10]      I consider  your culpability to be roughly similar to that of Mr Martin and   Mr Trent Taitapanui. In a sentence indication that they accepted, I selected a starting

3      R v Taipeti [2018] NZHC 961.

point of three years three months imprisonment.4 The Crown suggests I should select a slightly higher starting point in your case because of the fact that you drove up the street in an effort to deliberately challenge members of the Mongrel Mob. I do not consider that factor sufficient to depart from the starting point of three years three months imprisonment.

Aggravating factors

[11]      You have a large number of convictions. As the Crown points out, several of these are relevant for present purposes. These include a conviction for assaulting another person with a blunt instrument entered in 2009, together with another conviction for the same charge entered in 1991. You were sentenced to two years six months imprisonment on that occasion on several charges.

[12]      Ordinarily, convictions of this type would warrant an uplift. In the present case I do not apply an uplift for two reasons. First, I accept that the convictions are reasonably historic in that the last of them occurred approximately seven and a half years before the incident giving rise to the present charges. Secondly, I consider the uplift is offset by any discount I would ordinarily have given you for your remorse. For that reason I do not propose to increase the sentence to reflect your previous convictions, but neither will I be giving you a credit for remorse or any insight that you now show into the offending.

Mitigating factors

[13]      It remains to determine whether I should reduce the sentence to reflect mitigating factors personal to you.

[14]      You defended the charges, as was your right, so I cannot give you any credit for guilty pleas. However, I have been advised that you spent just over 13 months subject to restrictive EM bail conditions. I am prepared to give you a discount to reflect that factor. The Court does not, however, provide a discount on a month to

4      R v Martin & Taitapanui [2018] NZHC 1900 and [2018] NZHC 2270.

month basis because of course if you were not on EM bail you would have been in prison. I propose to allow a discount of five months to reflect that factor.

Sentence

[15]      On the charge of participating in an organised criminal group, you are sentenced to two years ten months imprisonment. On the charge of rioting, you are sentenced to nine months imprisonment. Those sentences are to be concurrent. This means that you will serve an effective sentence of two years ten months imprisonment.

[16]Stand down.

Lang J

Solicitors:

Pollett Legal Ltd, Tauranga

N M Dutch, Barrister, Tauranga