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…

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 Church

Details

AGLC: R v Church [2008] NZCA 272
Case: [2008] NZCA 272
Decision Date: 1 August 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Chance Wairangi Church against his sentence. The case arose from a violent confrontation between rival gangs, Black Power and the Mongrel Mob, in Wanganui, which resulted in the tragic death of a two-year-old girl, Jhia Te Tua. Mr Church, then 19 years old, pleaded guilty to participating in an organised criminal group with the knowledge that it intended to commit serious violent offences. The High Court sentenced him to 18 months in prison, a decision he now appeals on the grounds that the sentence was manifestly excessive or wrong in principle.

The central legal issue was whether the sentence imposed was appropriate in light of the mitigating factors presented. Mr Church's counsel argued that the sentence should reflect the minimal involvement of his client in the planning and execution of the crime, as well as his early guilty plea, lack of prior convictions, family support, and acceptance of responsibility. The Crown, on the other hand, maintained that imprisonment was necessary to meet the goals of denunciation and deterrence, given the serious nature of the offending and the ongoing issues with gang violence.

The Court found that the sentence, while severe, was not manifestly excessive. The starting point of two years and six months was deemed appropriate given the nature of the crime and Mr Church's culpability. The court also noted that the 40% credit given for mitigating factors was generous. The appeal judges concluded that imprisonment was a justified option under the Sentencing Act and that the sentence fell within the range available to the sentencing judge. The Court of Appeal dismissed the appeal, affirming that the sentence was neither manifestly excessive nor wrong in principle.

Orders