R v Brown - [2018] NZHC 1486

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-087-131

[2018] NZHC 1486

THE QUEEN

v

TUTEMAUNGAROA DIXON

Hearing:
21 June 2018

(Heard at TAURANGA)

Appearances:

O M Salt for Crown

N J Utting for Defendant

Judgment:

21 June 2018

SENTENCING REMARKS OF LANG J

R v DIXON [2018] NZHC 1486 [21 June 2018]

[1] Mr Dixon, you appear for sentence today having pleaded guilty to a charge of rioting. As I am sure you know, that charge carries a maximum sentence of two years imprisonment.

Background

[2] Your offending occurred on 17 January 2017. On that date you were part of a gathering of Black Power members who met in the morning at an address in Paul Street, Whakatane to discuss what you were to do in relation to a funeral procession comprised mainly of members or associates of the Mongrel Mob that you understood was to pass through Whakatane later in the day. You subsequently went with other members of the Black Power to a service lane in Valley Road. When the funeral procession went past the service lane, you joined with others in confronting the procession. Members of the group threw sticks, bottles and stones at vehicles within the procession. The Crown cannot specifically say what you did, but you acknowledge you participated in what occurred.

[3] The confrontation came to an end when a person within the procession stood up in a vehicle and discharged a firearm in the direction of the Black Power members. This caused them to scatter, and they were pursued by a car driven by a member of the Mongrel Mob.

[4] Other events then occurred later in the day in Whakatane, and these have led to other charges against members of your group. The Crown accepts you were not party to any of the later and more serious events.

Starting point

[5] I fix the starting point for your offending having regard to the starting point selected by Wylie J when sentencing one of your co-defendants, Mr Moeke.1 His role was much the same as yours with the only distinction being that he was described as a “full participant”, whatever that term may mean. I propose to select the same starting point in relation to your offending.

1 R v Moeke [2018] NZHC 1426.

Aggravating factors

[6] You have a reasonable criminal history for a person of the age of 22 years. You have had a number of previous convictions for offending involving violence. You also have convictions for wilful damage and disorderly behaviour. The most serious conviction is on a charge of aggravated robbery. You have already served a number of sentences of imprisonment for this offending.

[7] Having regard to your history, I propose to apply an uplift of two months to reflect your previous convictions. This is not to punish you again in relation to your previous convictions. Rather, it is because the courts view the present offending…

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 R v Brown

Details

AGLC: R v Brown [2018] NZHC 1486
Case: [2018] NZHC 1486
Decision Date: 21 June 2018

CaseChat Overview and Summary

The defendant, Tute Maungaroa Dixon, was sentenced by Lang J in the High Court of New Zealand Rotorua Registry for the offence of rioting, which was a charge he had pleaded guilty to. The incident occurred on 17 January 2017 when Dixon participated in a confrontation with a funeral procession mainly consisting of members or associates of the Mongrel Mob. Dixon and other Black Power members threw sticks, bottles, and stones at vehicles within the procession. The confrontation ended when a person within the procession discharged a firearm in the direction of the Black Power members. Dixon was not involved in any subsequent events that occurred later in the day. The court had to decide on the appropriate starting point, aggravating factors, and mitigating factors before deciding on the sentence.

The court determined that the starting point for Dixon's sentencing would be the same as that selected for his co-defendant, Mr Moeke, who had a similar role in the incident. The court applied an uplift of two months to reflect Dixon's previous convictions for violence, wilful damage, and disorderly behaviour, as well as his conviction for aggravated robbery. The court reduced Dixon's sentence by three months for remaining free of offending while on bail and by another three months for his guilty plea. This resulted in a final sentence of 14 months imprisonment. The Crown accepted a sentence of home detention, but the court considered it more appropriate to impose a sentence of community detention to allow Dixon to continue his employment in forestry.

Dixon was sentenced to six months of community detention, subject to the conditions set out in the pre-sentence report dated 12 June 2018. He was also sentenced to 150 hours of community work and 12 months of supervision. The court took into account Dixon's employment, his ability to adhere to curfew conditions, and the need for oversight and guidance over the coming months. The final orders of the court were for Dixon to serve six months of community detention, perform 150 hours of community work, and be under supervision for 12 months.

Orders