R v Church

[2008] NZCA 272

IN THE COURT OF APPEAL OF NEW ZEALAND

CA334/2008
[2008] NZCA 272

THE QUEEN

v

CHANCE WAIRANGI CHURCH

Hearing:23 July 2008

Court:Ellen France, Wild and Heath JJ

Counsel:C B Wilkinson-Smith for Appellant

D R La Hood for Crown

Judgment:1 August 2008 at 2.30 pm 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       In Wanganui, there have been serious problems for some years arising out of tensions between rival gangs, in particular the Black Power and the Mongrel Mob.  On 5 May 2007, a series of altercations occurred between members of the two gangs.  The tensions of the day escalated to such a degree that those associated with the Mongrel Mob gathered together, in the evening, with the intention of confronting and inflicting serious harm on members of the rival group.  The incident culminated in the tragic death of a young girl, aged two years, Jhia Te Tua.

[2]       Jhia Te Tua’s father was associated with the Black Power gang.  His home had been targeted.  Members and associates of the Mongrel Mob were in a car, from which shots were fired at random, from a .303 calibre rifle.  One of the shots was fired in the direction of the dwelling, passed through a front lounge window and struck young Jhia while she lay sleeping on a couch.

[3]       Mr Church was one of those involved in the confrontation.  At the time, he was 19 years old.  He acknowledges that he assembled with people associated with the Mongrel Mob to confront those involved with Black Power.  The Crown accepts that he did not know that firearms were present or would be used. 

[4]       At the end of a preliminary hearing in the District Court at Wellington, Mr Church pleaded guilty to one charge of participating in an organised criminal group.  The maximum penalty for that offence is five years imprisonment.  We take the plea to have been entered at the earliest possible time, given the way in which charges against those involved in the preliminary hearing had been couched previously.

[5]       The District Court Judge declined jurisdiction and remanded Mr Church, with co-offenders who also pleaded guilty to offences arising out of the same incident, to the High Court at Wellington for sentence.

[6]       On 23 May 2008, Mr Church was sentenced to a term of imprisonment of 18 months:  HC WN CRI-2008-085-2762.  Ronald Young J, though having the jurisdiction to do so, elected not to impose a sentence of home detention.  The Judge considered that a sentence of imprisonment was required to respond adequately to the seriousness of the offending, particularly to meet the sentencing goal of deterrence.

[7]       Mr Church appeals against the sentence imposed.  He contends that the sentence is manifestly excessive or wrong in principle.  Mr Wilkinson-Smith, on his behalf, submitted that a term of home detention ought to have been ordered.

Mr Church’s offending

[8]       Mr Church entered his plea of guilty to a charge of participating in an organised criminal group (consisting of patched members, prospect members and associates of the Mongrel Mob) knowing it was an organised criminal group and being reckless as to whether his participation may have contributed to the occurrence of criminal activity.  That charge reflects the terms of s 98A(1)(b) of the Crimes Act 1961.

[9]       Knowledge of participation in an organised criminal group requires knowledge of a group objective to commit certain serious violent offences that are punishable by imprisonment for a term of ten years or more: s 98A(2)(c).

[10]     Mr Church was one of those who joined the group as they gathered together.  The sentencing Judge accepted that Mr Church was not part of the planning process. 

[11]     Initially, Mr Church lied about his involvement in the activity.  He also gave a false alibi for others.  Later he corrected those falsehoods, in statements to the police.

Sentencing in the High Court

[12]     The sentencing Judge regarded Mr Church as an associate of the Mongrel Mob.  He was involved, through an association with Mr Broughton and Mr Smith, who Ronald Young J described as being “involved on the periphery of gang activity” (at [12]).  The Judge found that Mr Church had made a deliberate decision to involve himself in the intended activity, knowing a violent gang confrontation was to follow.

[13]     Mr Church was sentenced together with Mr Broughton and Mr Kumeroa, both of whom had also pleaded guilty to the same charge.  The Judge assessed the culpability of both Mr Broughton and Mr Kumeroa as higher than that of Mr Church.  As opposed to the starting point for sentence of three years imprisonment used in respect of the other two prisoners, the Judge identified a starting point, having regard to all aggravating factors relating to the offence, of two years and six months for Mr Church.

[14]     It is clear from the earlier part of the Judge’s sentencing remarks that he was aware that Mr Church, while currently unemployed, had been in gainful employment in the past.  The Judge also accepted at [15] that Mr Church came from a “good family” who were “deeply concerned” about him.  Ronald Young J acknowledged that Mr Church accepted responsibility for his involvement and that he had had no prior gang connections.

[15]     The Judge, without differentiating between the early guilty plea and other mitigating circumstances, effectively allowed one year as credit for both aspects. 

[16]     We apprehend that the sentencing Judge took into account Mr Church’s background and acceptance of responsibility in determining the credit to be given for mitigating factors.  As is clear from R v Fonotia [2007] 3 NZLR 338 at [50] and [51] (CA), credits for guilty pleas in the range of 10 per cent to 33 per cent have been “regularly approved” by this Court. The earlier the guilty plea, the greater the credit.

Competing submissions

[17]     While not pressing the point in his oral submissions, Mr Wilkinson-Smith contended initially that the starting point was too high, having regard to Mr Church’s limited involvement in what occurred.  He submitted that involvement was “extremely peripheral”.

[18]     With reference to R v Mitford (2004) 21 CRNZ 232 (CA), Mr Wilkinson-Smith accepted difficulties in identifying an appropriate starting point for offending of this type, having regard to the wide range of serious offending that might be involved, yet the relatively low maximum penalty available: Mitford at [52].

[19]     Having regard to Mr Church’s lack of previous gang involvement, his non-participation in the planning of the confrontation and his lack of knowledge of the presence of weapons, Mr Wilkinson-Smith submitted that Mr Church’s culpability should have been assessed “at the lowest end of offending” of this type.

[20]     Mr Wilkinson-Smith’s stronger point on manifest excess was that the reduction of the sentence to take account of mitigating factors was inadequate.  He submitted that there were four components for mitigation which required independent assessment and which, cumulatively, were not reflected adequately in the credit given.  They were:

(a)       The early guilty plea;

(b)       The lack of relevant previous convictions;

(c)       Family support; and

(d)       Acceptance of responsibility.

[21]     Mr Wilkinson-Smith referred to the relative youth of Mr Church, at the time of the offending.  He cited R v Wilson (1989) 5 CRNZ 165 at 168 (CA) as supporting the need to take account of lack of maturity and to have an expectation that rehabilitation or reform may be possible.  Having regard to the mitigating issues raised, Mr Wilkinson-Smith submitted that a reduction of more than 12 months was warranted.

[22]     Alternatively, Mr Wilkinson-Smith submitted it was either wrong in principle or inappropriate to impose a sentence of imprisonment, rather than a non-custodial sentence.  He referred to R v Hill [2008] 2 NZLR 381 at [36] (CA):

[36] Fourth, in determining whether there is jurisdiction under s 15A(1)(b) (that is, whether the judge would otherwise impose a “short-term sentence”), the relevant figure is the end sentence rather than the starting point. But under both ss 15A and 57 the starting point and the factors which lead to the end sentence will be relevant to the decision whether or not a sentence of home detention should be imposed. Where the giving of a significant discount to reflect an offender’s personal circumstances produces an end sentence that is sufficiently low to raise the possibility of home detention, those personal circumstances will also be relevant to the question whether home detention should be imposed.

[23]     In short, Mr Wilkinson-Smith’s point was that home detention is regarded by the Legislature as an adequate response to offending that would otherwise result in a sentence of imprisonment of two years or less.  He submitted that a sentence of imprisonment was not warranted.

[24]     Mr La Hood, for the Crown, submitted that a sentence of imprisonment was necessary to respond to the particular nature of the offending and the sentencing goals to which reference is made, specifically, in s 16(2) of the Sentencing Act 2002.  He submitted that the criteria in s 16(2) were met.  In those circumstances the Court was entitled to impose a sentence of imprisonment. 

[25]     Mr La Hood submitted that the starting point was within range for offending of this type.  The Judge had also turned his mind to the relative culpability of the three co-offenders before him for sentence.  In those circumstances, Mr La Hood submitted that any adjustments to the percentages of credit could not make the sentence manifestly excessive.

[26]     Mr La Hood submitted that it was open to the Judge not to impose home detention.  He submitted that there was no basis on which this Court should reconsider the exercise of the Judge’s discretion in the type of sentence imposed.

Analysis

[27]     We deal first with Mr Wilkinson-Smith’s submission that the sentence was manifestly excessive.  Viewed in the context of the respective roles in the offending played by Messrs Broughton, Kumeroa and Church, it is clear that the Judge differentiated Mr Church from the other two prisoners who were before him for sentence.  Given the nature of the offending, it is not seriously arguable that a starting point of two years six months imprisonment, based on a maximum term of imprisonment of five years, was manifestly excessive.

[28]     It is true that the Judge did not mention specifically Mr Church’s age.  However, we have no doubt that the experienced Judge was alive to that facet of the sentencing exercise. In terms of the credit given for an early guilty plea and other mitigating factors, an allowance of 40 per cent can be seen as generous.  We agree with the Judge that Mr Church chose to involve himself in the gang activities.  As he said himself to the probation officer he must “take the consequences of his actions on that day”.

[29]     We are satisfied that imprisonment was an available sentencing option; the criteria in s 16(2) of the Sentencing Act were met.  We are also satisfied that the sentence was within the range available to the Judge.

[30]     Mr Wilkinson-Smith’s second point hinges on the need to give greater weight to rehabilitation and the imposition of the least restrictive sentence appropriate than denunciation and deterrence.

[31]     We are satisfied that it was open to the Judge to hold that imprisonment must be imposed.  Inter-gang activity has been a serious problem in Wanganui for some time.  The escalating acts of violence that occurred during the course of the day are troubling.  Mr Church chose to join the group at a relatively late stage as they went to confront Black Power gang members.  It is inherent in his plea of guilty that he recognised that the commission of serious violence was likely. 

[32]     In those circumstances, Mr Church’s conduct required denunciation and deterrence in a manner that could not be achieved by the imposition of home detention.  For those reasons, we do not consider that it was wrong in principle for the Judge to impose imprisonment.

Result

[33]     The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington