R v Hakeke - [2013] NZHC 865

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-016-1916 [2013] NZHC 865

THE QUEEN

v

JOHN HAKEKE AND STUART MOKOMOKO

Hearing: 24 April 2013

Appearances: CWalker for Crown
V Thorpe for Mokomoko
T Epati for Hakeke

Judgment: 24 April 2013

SENTENCING REMARKS OF ALLAN J

Solicitors:
Crown Solicitor Gisborne
V Thorpe, Gisborne
T Epati Gisborne

R V HAKEKE AND MOKOMOKO HC GIS CRI-2012-016-1916 [24 April 2013]

[1] Mr Mokomoko, Mr Hakeke, you appear for sentence this morning on a charge of discharging a firearm with intent to cause grievous bodily harm, having been found guilty by a jury earlier this year. The maximum penalty is 14 years imprisonment.

Factual background

[2] On 25 April 2012, you were both socialising and drinking. Towards evening, you decided to go for a drive. You were joined by two young associates and the four of you drove around the streets of Gisborne for a time. Then someone suggested that you go looking for Mongrel Mob members or associates. You were all patched members or supporters of Black Power. The overall intention was to engage in some sort of confrontation.

[3] You ended up in a street in Kaiti where Mongrel Mob supporters were known to be found. Mr Mokomoko was in the front passenger seat, Mr Hakeke was driving. It was then about 6.30 pm and dark. You saw a Mr Dylan Donnelly standing on the footpath talking to another man, who proved to be a relative. Mr Hakeke made some challenging remarks as he drove slowly past. He brought the car to a halt some distance down the road. The evidence varied, but it seemed that the distance between Mr Donnelly and the car when it came to a halt was perhaps
50-70 metres.

[4] When the car stopped, Mr Mokomoko produced a sawn-off firearm from under the passenger seat, partially climbed out of the front passenger window, and having steadied himself on the roof of the car, fired two shots in Mr Donnelly’s direction. Fortunately, no-one was killed or injured, but there was ample evidence to show that the bullets were aimed in Mr Donnelly’s direction. The discharge of the firearm put him in peril, along with those nearby who included the uncle with whom he had been talking, and the occupants of a motor car parked by the side of the road very close to Mr Donnelly. Your car was then driven off.

[5] When you were later apprehended, each of you denied any knowledge of the offending. Neither of you gave evidence at trial but there was ample evidence to justify the jury’s verdict, including important evidence from the two back seat passengers in your car.

[6] This was a very serious incident. The jury’s verdict was that these shots were

fired at Mr Donnelly, with the intention that he suffer grievous bodily harm.

Personal background

[7] Mr Mokomoko, you are a 29 year old Maori who has been living with his mother, sister and niece in Wellington. It…

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 Hakeke

Details

AGLC: R v Hakeke [2013] NZHC 865
Case: [2013] NZHC 865
Decision Date: 24 April 2013

CaseChat Overview and Summary

The defendants, John Hakeke and Stuart Mokomoko, were convicted of discharging a firearm with intent to cause grievous bodily harm. They appeared before the High Court of New Zealand, Gisborne Registry, for sentencing. The Crown was represented by C Walker, and the defendants by V Thorpe and T Epati, respectively. The judge, Allan J, delivered the sentencing remarks and imposed a sentence of imprisonment on both defendants.

The legal issues the court had to decide included the appropriate starting point for the sentence, the aggravating and mitigating factors, and whether to impose a minimum period of imprisonment. The court also had to consider the purposes and principles of sentencing, as outlined in sections 7, 8, and 9 of the Sentencing Act 2002.

The court found that the most helpful case for comparison was R v Katene. While the case at hand involved a random drive-by shooting in a public place with multiple shots fired, the court did not find it more serious than Katene due to the extent of planning and premeditation involved in that case. The court held that both defendants were equally culpable, as Hakeke's role in bringing the car to a halt and attempting to fire the weapon himself made him an equal participant in the offence.

Taking into account the aggravating and mitigating factors, the court set a starting point of four years and six months for each defendant. A discount of six months was allowed for each defendant to recognise their commitment to making lifestyle changes and addressing issues such as alcohol consumption and gang associations. The court decided not to impose a minimum period of imprisonment, as it did not consider it necessary in this case.

The final orders of the court were as follows: both defendants were sentenced to a term of imprisonment of four years for the charge of discharging a firearm with intent to cause grievous bodily harm. Additionally, the court issued a stage one warning to the defendants under the three strikes law, informing them of the consequences of another serious violence conviction.

Orders