R v Goss HC New Plymouth CRI 2009-021-1570

[2010] NZHC 2069

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2009-021-1570

THE QUEEN

v

RAWIRI PERRY GOSS

Hearing:         28 October 2010

Counsel:         S T Ellis for the Crown

A Laurenson for the Prisoner

Judgment:      28 October 2010

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, New Plymouth

Copy to:            A Laurenson, New Plymouth

R V GOSS HC NWP CRI-2009-021-1570  28 October 2010

Introduction

[1]      Rawiri Perry Goss: You are before the Court for sentence today on charges of wounding with intent to cause grievous bodily harm and injuring with intent to injure.  The maximum sentence for wounding with intent to cause grievous bodily harm is fourteen years imprisonment and for injuring with intent to injure five years imprisonment.  You entered guilty pleas to these charges on 18 August 2010 which was two months before the matter was due to go to trial.  You entered guilty pleas on the basis that you were a secondary party to the offending and following sentence indications given by Asher J on 11 May 2010.

[2]      You, Mr Goss, were one of eight accused who face charges in relation to an incident which took place on 10 October 2009 at 110 Celia Street, Stratford.  Some of your co-accused also entered guilty pleas at various stages before and at trial. Three proceeded to trial.

Background facts

[3]      The summary of facts on the basis of which Mr Goss entered his guilty pleas refers to an exchange of text messages at around 5.55 p.m. on 10 October 2009 as the result of which the two victims of the offending, Karl Lurch and Jared Baker, went to an address on Broadway, Stratford where there was an altercation between one of the co-accused Rhys Wilson and Jared Baker.  Karl Lurch and Jared Baker returned to 110 Celia Street and continued to socialise in the garage at that address where a party for Mr Baker’s one year old daughter had been held earlier in the day.

[4]      Following the altercation at the Broadway address Rhys Wilson contacted some of his associates.  At 6.05 p.m. a text message was sent to Mr Goss relating to the organisation of a group to go and “get Baker”.  A group of associates convened at Mr Goss’ home address in Stratford.  In the meantime Mr Goss and one of the co- accused, Dean Sanson, had driven to another Stratford address and spoken to further associates about what they planned to do.

[5]      At about 7.05 p.m. a group of about twenty people in four vehicles arrived outside 110 Celia Street, Stratford.  Mr Goss was one of those people.  The group got out of the vehicles and some of them stood outside the gate to the property at 110

Celia Street yelling abuse towards those inside the address.  They called for Jared Baker to come outside.  Jared Baker and Karl Lurch moved just outside the garage to see what was going on.  The group at the gate unlatched the gate and rushed on to the property.  Rawiri Goss with others followed the group through the gate.  A co- accused, Reece Maxwell, went directly to Karl Lurch and struck him on the head with his right fist which caused Mr Lurch to fall to the ground.  When he was on the ground  he was  punched  and  kicked.    One of  the  persons  who  had  entered  the property swung a chain at Mr Lurch.   Mr Goss was in the driveway with some members of the group.  Some threw bottles towards the victims and the garage area. It appears Mr Goss did not participate in the physical assaults or the throwing of bottles and other items.

[6]      Mr Lurch was further attacked when he struggled to his feet.   Holes were caused in the walls to the garage.   Furniture and other items were damaged or broken.  Broken glass was strewn about the garage area and there was a lot of blood on the floor and  in the hallway leading into the house.   Jared  Baker was  also assaulted and was struck when he tried to intervene on behalf of Karl Lurch.  Karl Lurch’s partner, Nadia Quirk, was punched when she tried to protect him from the assaults, as was his sister Natalie Lurch.  One of the persons present threw a child’s high chair at the sliding glass door to the lounge where a thirteen year old girl and young children were present.

[7]      During the attack Mr Goss remained with the group on the driveway.   A

further group was outside the property.

[8]      The attack lasted only a matter of minutes.  The group then left the property and rapidly decamped in the vehicles waiting on the road.

[9]      Mr Lurch suffered a deep laceration to the top of his head, approximately ten centimetres long which required nine metal staples.  He suffered bruising to his face and eye and had to have twelve stitches to the inside and outside of his mouth.  He

suffered fractured ribs, bruising to his abdomen and general soreness in his body. Jared Baker received a gash over one eye which had to be glued shut.   He also received cuts and grazes to his hands and suffered general soreness in his body. Nadia Quirk was bruised in her lower back and Natalie Lurch suffered a black eye and swelling to her face.

[10]     There was considerable damage to property and items in the garage area.

[11]     By his guilty pleas Mr Goss has accepted his involvement as a party in the offending.  However, on the basis of the summary of facts he did not participate in the physical assaults or the property damage.  He was there with other associates to provide encouragement and support by way of numbers.  He also played a role in organising the group to go to 110 Celia Street and carry out the attack.

[12]     In the pre-sentence report Mr Goss confirms his part in arranging a group to use violence to “deal” to Jared Baker.   He claims that although he organised the offending he was mainly the driver in the incident.  He stated to the report writer that he was upset and nervous at being threatened by Jared Baker over a drug debt and that he wanted to “get Jared Baker and bring him back down to earth”.

Pre-sentence report

[13]     Mr Goss is a 19 year old Mäori male of Ngai Tahu descent.   He currently resides in Napier with his father and his father’s partner.  He moved from Stratford to pursue work opportunities some months ago.  He has a partner and two children aged 16 months and 3 months; they live in Taranaki while he establishes himself in Napier.    His  family  are  disappointed  but  support  him.    He  reports  a  strong relationship with his partner who he says supports him and I note her presence in Court today.

[14]     Mr Goss lived between his mother, father and Nan during his childhood due to difficult relationships he experienced with each of them.  He left school without any formal qualifications at 16 because he preferred to work.  He has been employed since leaving school, mainly in shearing gangs.  He now works full time in Napier

stacking and grading firewood.  Mr Goss would like to keep his job and wants his family to be together in Napier.

[15]     Mr Goss reports he is a social drinker.  He says he does not use drugs at the present time as he is randomly drug tested.  His main motivation for avoiding drugs is his desire to maintain a job so he can support his family.

[16]     To the report writer, Mr Goss displayed no remorse towards the victims and expressed that they “got what they deserved” and he was “glad Jared and that got a hiding”.  He did state he “wished that it didn’t happen like that” – he did not want other people to be hurt.  Only when prompted did he display any remorse towards the unintended victims.   He showed little awareness of the impact of his offending on his victims and said he would do it again without hesitation.   He displayed no insight into the seriousness of his situation, stating he “could have done it more discreetly”.   He attributed his offending to his desire to protect his family from a perceived threat and said he would do it again if his family were threatened.  The report writer said he minimised his role, indicating that he was more of the orchestrator than the perpetrator.

[17]     His  risk  of  re-offending  is  assessed  as  moderate  to  high  because  of  his assertion that he would do it again if his family were threatened.

[18]     While the home detention report is favourable in relation to an address with his father and his father’s partner in Napier, due to the serious nature of Mr Goss’ offending, his lack of remorse and lack of insight into his offending, the probation officer recommends a sentence of imprisonment.  The report writer recommends that a release condition to attend an assessment by a departmental psychologist be imposed if a short term of imprisonment is imposed.

[19]     Mr Goss has no previous convictions.   He does have outstanding fines of

$760.

[20]     Victim impact statements have been filed by Karl Lurch and Jared Baker.  Mr Lurch refers to the injuries he suffered which required him to stay in New Plymouth for a week and two days after the attack which meant that he was unable to accept an offer of fulltime work as a steel fixer.  Mr Baker refers to the incident ruining the day of his daughter’s first birthday and that he was upset about how Karl Lurch was hurt when he had nothing to do with the matter.   He referred also the trauma of Mrs Lurch and the younger sister of Natalie Lurch.

Aggravating factors of the offending

[21]     There  are  a  number  of  aggravating  factors  of  the  offending  under  the

Sentencing Act and the guideline judgment of R v Taueki:[1]

[1] R v Taueki [2005] 3 NZLR 372.

•Use of violence, as the victims were punched and kicked, and Karl Lurch was hit with a chain

•     Use of weapons (chains, bottles and chairs were involved)

•     Attack to the head of the victims

•     Home invasion

•Extent of harm to the victims, two of whom were hospitalised and received quite serious injuries

•     Multiple victims, wounding of the victim Lurch and injuring in relation to the victim

Baker

•Some pre-meditation in the text message exchanges and the meeting at Mr Goss’s address before going to the scene of the offending in four vehicles.

•     Multiple attackers

•Vigilante action, as the offending occurred in retaliation for an earlier incident relating to Rhys Wilson and also apparently in relation to issues between Rawiri Goss and Jared Baker.  Mr Goss told the probation officer that he arranged a group of “older fellas who don’t care” about violence to “deal” to the victim in response to threats he perceived were made against his family.

[22]     While Mr Goss essentially accepts that these aggravating factors were present in the offending, he emphasises that he did not take part in the violence and says he had no knowledge of the use, or existence of any weapons.

[23]     The role of Mr Goss in the actual physical assaults is limited.  He was not involved in carrying out the attack.   However, he was present at the incident to provide encouragement and support by force of numbers.   He also, on his own admission, played a significant part in the organisation of the group.   Rather than being invited or asked to “help”, he organised others to participate in the incident.

[24]     Mr Laurenson submitted that provocation is a further mitigating factor for Mr Goss, because Mr Baker had threatened him for allegedly “narking” on him to Rhys Wilson, about property Mr Baker had stolen from Mr Wilson.  Mr Goss considered he was in imminent danger of being seriously assaulted by Jared Baker.

[25]     I note that Asher J considered provocation[2]  in relation to Mr Wilson.   He accepted that the attack by Jared Baker on Mr Wilson was an operative cause of the violence.  He noted, however, that there was some time between the violence to Mr Wilson and retaliation (about three quarters of an hour) and he considered that any deduction for provocation must be modest.  I consider that reasoning applies equally in respect of the provocation claimed by Mr Goss in relation to the threats to him by Jared Baker.   I note also that in taking a starting point of two and a half years imprisonment for the secondary offenders, Asher J said[3] that he took into account the elements of provocation.

[2] At [10].

[3] At [17].

[26]     Mr Laurenson also submitted that while the pre-sentence report indicates that Mr Goss holds no sympathy for Jared Baker, which is correct, he is extremely remorseful that others, particularly Mr Lurch, Ms Gooch, and Natalie Lurch were involved.  Mr Goss claims that he thought Mr Baker would come outside to fight and he says he is extremely sorry that what occurred involved both a home invasion and other victims that he did not intend.

[27]     Mr  Laurenson on behalf of Mr Goss accepts that he made a number of

“unhelpful  comments”  to  the  writer  of  the  pre-sentence  report.    Mr  Laurenson

submitted that while the comments made by Mr Goss reflected to an extent his thinking at the time, they were naive.  Mr Laurenson says that when he asked Mr Goss what he had learned from all this, Mr Goss answered “Next time I’d call the Police”.

Personal mitigating factors

[28]     Mr Goss is now aged nineteen, eighteen at the time of the offending.  He has no record of previous criminal offending and is properly to be treated as a first offender.  He entered a guilty plea to which he is entitled to appropriate credit.

Sentencing indication

[29]     In a sentencing indication given on 11 May 2010 Asher J considered the offending fell into the mid to upper end of Band 2 of the judgment in R v Taueki.

[30]     In relation to the secondary offenders, of which Mr Goss was one, Asher J

said:[4]

[4] At [11] and [12].

I approach the position of the secondary offenders with some caution.  While there seems to be little doubt about the actions of Messrs Maxwell and Whale, assuming that they are correctly identified, there may be variations in the conduct of the other six accused who did not participate in the actual physical attack.   Some may have had a greater role than others in the organisation, preparation or encouragement of the attack.  Some may have gone further off the road and towards the buildings than others.

It is impossible to nuance this sentencing indication on such issues, in the absence of more detailed proven facts.   For starting point purposes I will treat them all in the same category.  I assume that they all knowingly went to the victims’ address with the intention that there should be an assault by some of them on the victims.  I assume that they got out of their cars and were there and witnessed the attack.  I assume that they were encouraging and supportive of the attack, but did nothing to actually physically assist the perpetrators.   I assume that they did not get close to the victims and did nothing to assist in the actual assaults.  I assume that they did not go into the victims’ house.

[31]     Asher J considered the secondary offenders were all involved to a low degree of culpability.  He took into account the elements of provocation, but also the serious nature of the attack and the harm done to the victims.  He considered a starting point of two and a half years imprisonment to be appropriate.[5]

[5] At [17].

[32]     The factors identified[6] by Asher J were present in the case of Mr Goss and in addition he had a relevant and possibly motivating part to play in the organisation of the group to carry out the attacks.

Parity

[6] At [12].

[33]     One of the secondary offenders, Chris Sanson, was sentenced by Cooper J[7] for his part in the offending.  While, like Mr Goss he was a secondary offender, he did not play a significant or active role in organising the group to carry out the attacks.  Cooper J noted the starting point for all secondary offenders indicated by Asher J of two and a half years imprisonment.  He adopted a starting point for Chris Sanson of two years and two months.  For Mr Sanson’s youth and his guilty plea (which he said entitled Mr Sanson to a twenty per cent reduction in the sentence that would otherwise have been imposed), he reduced the sentence to eighteen months imprisonment,  a  reduction  from  the  starting  point  of  eight  months.    The  final sentence imposed was nine months home detention.

Submissions

[7] R v Sanson CRI-2009-021-1570 10 August 2010.

[34]     The Crown submitted that a starting point in the vicinity of three years was appropriate having regard to the involvement of Mr Goss in the organisation of the attack.   Ms Ellis submitted that on a parity basis this was appropriate given the starting point  of two  years  two  months  adopted  in  respect  of  Chris  Sanson  by Cooper J.   The Crown accepted that Mr Goss is entitled to a discount of between

fifteen and twenty per cent on account of his guilty pleas in accordance with R v

Hessell.[8]

[8] R v Hessell [2009] NZCA 450.

[35]     Mr Laurenson submitted that while Mr Goss may be slightly more culpable than Chris Sanson, given his role in organising the offending, an increased starting point of three years is not justified.  He submitted a starting point of less than two and a half years would be appropriate.

Sentencing

[36]     I do not accept that a starting point of less than two and a half years is appropriate in the case of Mr Goss.  He played an active role in the organisation of this offending.   A large group of people assembled at his house before they made their way to 110 Celia Street where the serious assaults occurred.  Further, while I accept that Mr Goss may have felt seriously under threat from Jared Baker and had fears for his safety, a considerable period elapsed between his receiving threats from Mr Baker and the attack on the Lurch household.  The period that elapsed between the assault of Rhys Wilson by Jared Baker and the attack on the Lurch household was approximately 40-45 minutes and the period between the threats by Jared Baker to Mr Goss was longer, approaching two hours.  Further, as I have noted, Asher J took into account the elements of provocation when considering a starting point of two and a half years for the secondary offenders, to be appropriate.

[37]     In  sentencing  Mr  Goss  I  take  a  starting  point  for  the  lead  offence  of wounding with  intent  to cause  grievous  bodily harm  of  two  years  nine  months imprisonment.  For the mitigating factors, being his youth, he is a first offender and for his qualified remorse, I make an allowance of four months to reach a revised starting point of two years five months imprisonment.  For the guilty plea (entered later than that of Chris Sanson who was accorded a discount of twenty per cent) I allow a discount of five months imprisonment (17.2%).  The resultant end sentence is thus two years imprisonment.

Home detention

[38]     Having arrived at a sentence of two years imprisonment I am required to consider a sentence of home detention instead of imprisonment.  The pre-sentence report states that Mr Goss will struggle to accept the sentence imposed by the Court because of his apparent sense of justification in respect of his actions.

[39]     The Crown submits that home detention is not appropriate because of the elevated  level  of  culpability  of  Mr  Goss  compared  with  the  other  secondary offenders and his lack of insight into the seriousness of his offending as set out in the pre-sentence report.

[40]     Mr  Laurenson notes that the home detention appendix  assesses a Napier address as suitable for home detention.  He says that a sentence of home detention would allow Mr Goss to bring his partner and his two young children to Napier to live with him and would allow him to continue to support his family, which he wants to do.   Mr Laurenson submits that it is not in the interests of the community to sentence a nineteen year old first offender to a fulltime term of imprisonment when a sentence of home detention is available and appropriate.

[41]     The matter of home detention raises serious issues in the case of Mr Goss.  In

R v Hill the Court of Appeal said: [9]

[9] R v Hill [2008] 2 NZLR 381 (CA) at [37] and [39].

.. Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

...

... This will be particularly so if the assessment that there are good prospects for rehabilitation is based not simply on conjecture or expressions of intent or hope but on evidence which demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.

[42]     I have considerable concerns about what the probation officer describes as

Mr Goss’ apparent sense of justification in respect of his actions.  While, Mr Goss

may consider he has some entitlement to retaliate against Jared Baker, there is no justification for criminal offending whether by way of direct or secondary involvement.  However, I am prepared to accept the strong submissions made by Mr Laurenson that Mr Goss now has a better appreciation of his role in organising the offending and that it was an “ill considered” and “naive” response by a young man who did not foresee the serious consequences of his actions.  I am prepared to accept also that Mr Goss, who is employed in Napier, wants to provide for his family and keep his family together.  He is to be encouraged in both respects.

[43]     I am therefore prepared to impose a sentence of home detention rather than a sentence of imprisonment.  The sentence of home detention will be subject to strict conditions.   Mr Goss may find those conditions considerably restricting.   He will need to understand that if he fails to comply with all the conditions of his home detention sentence, including the conditions for electronic monitoring, then he is likely  to   see   the   home   detention   sentence   substituted   with   a   sentence   of imprisonment.

Result

[44]     In the result therefore Mr Goss, the sentence imposed on you on the lead charge of wounding with intent to cause grievous bodily harm is twelve months home detention.  The sentence imposed on you on the charge of injuring with intent to  injure  is  six  months  home  detention.     Both  sentences  are  to  be  served concurrently.

[45]     The sentences of home detention will be subject to the standard conditions and also to the following special conditions:

a)       You are to travel directly from the Court to 29 McGrath Street, Napier and to remain there until the arrival of the probation officer and a representative of the electronic monitoring company.

b)You are to reside at 29 McGrath Street, Napier for the duration of the sentence of home detention unless the probation service has given

prior approval in writing to an alternative home detention address where electronic monitoring and the other requirements of home detention can be effectively carried out.

c)        You are to attend an assessment by a departmental psychologist at the direction of the probation officer.

[46]     There will be no order for reparation.   Prior to today no amount had been claimed or advised.  Ms Ellis advised today that the insurer has now identified a sum of $622.40 in relation to reparation.  However, given that this amount has not been previously noted and counsel for the various accused have not had the opportunity to confer with their clients and the Court is not in a position to assess the appropriate breakdown of the amount to be paid by the various offenders, I decline to make any order for reparation.

[47]     Please stand down.