R v Hone HC NAP CRI 2007-020-001518

[2008] NZHC 2444

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007-020-001518

THE QUEEN

v

TAWHIRI TAME HONE

Hearing:         30 July 2008

Appearances: R J Collins for Crown

R B Philip for Prisoner

Judgment:      30 July 2008

SENTENCING NOTES OF ANDREWS J

Solicitors:

Elvidge & Partners, P O Box 609, Napier 4015

Bate Hallett Lawyers, P O Box 749, Hastings 4215

R V HONE HC NAP CRI 2007-020-001518  30 July 2008

[1]      Tawhiri Hone, you appear for sentencing today having pleaded guilty to a charge of being a party to the attempted murder of a man on 24 February 2007. Counsel will have told you that that charge carries a maximum penalty of 14 years imprisonment.

Relevant facts

[2]      The charge arises out of continuing rivalry between the Hell’s Angels and the Mongrel Mob gang.  The president or captain of the central Hawkes Bay chapter of the Mongrel Mob, Mr Waa, found out that a group of Hell’s Angels’ members was travelling towards Hastings on motorbikes.    The captain sent you a text message directing you to “get them”.  You then drove a car with three Mob members in it and you caught up with the group.   One of the men in your car was armed with a shotgun.  He shot at one of the riders, a Mr Tweedale, hitting him in the lower back causing significant injuries.

[3]      According to the police summary there were two distinct attempts to shoot Mr Tweedale and you drove at high speed for some kilometres so that the second attempt could be made.   Mr Tweedale, who has had extensive surgery, was in a critical condition for several days.    I understand he is expected to make  a  full recovery.

[4]      You admitted your role in the shooting when you were interviewed by the Police  shortly  after  this  event,  but  you  then  challenged  your  statement  being admitted at trial.  It was ruled admissible and you pleaded guilty to the charge shortly after that ruling was issued.

Pre-sentence report

[5]      I turn first to consider the pre-sentence report of the Probation Officer.  You are now 21 years old and you were 19 at the time of the offence.  You are part of a large family and you describe your family relationship as being close and supportive. You have a partner who you have been with for two years and you have an 11-month

old daughter.  I understand your partner is here today in Court to support you.  Also it appears that you were employed consistently up until the time of your arrest.  You have cousins and other family members in the Mongrel Mob.   Although you had some association with the gang you were not closely involved until about six months before the offending.  As Mr Philip said this morning you thought it would be cool to be associated with it and to get a patch.

[6]      As to this offending, you told the Probation Officer that you were contacted by the captain and told to drive the car.  You said that when you found out what was to occur you felt that you could not say no because you would have got a hiding and those thoughts overrode any concern you would have about the consequences of getting caught.   The Probation Officer reported that you accept responsibility for your part in the offending and that you appeared to be genuinely remorseful for your actions.

[7]      I have read the letters you wrote to the Court and to the victim and in those letters you say you understand how you put the lives of your partner and your child at risk and you ask to be given a second chance at life.  You said in the letter that you have withdrawn from all criminal elements.  The Probation Officer assessed you as being genuine in your motivations to make significant changes and as having the motivation to address your offending.  Should you succeed in making the necessary changes in your life you are assessed as being at a low risk of re-offending, but those changes must be made.

Sentencing process

[8]      First of all I will talk to you briefly about the general law in relation to sentencing and about the principles that are set out in the law that I have to apply, then  I have  to  decide  what  sentence  is  appropriate  taking  those  principles  into account.  That is a two-step process.

[9]      The first is to establish what you have heard today referred to as the starting point.  That is what sentence would be imposed on you if you were convicted on the charge, for which you are being sentenced, after a trial in court.

[10]     The second step is then to take that starting point and decide what is the appropriate sentence for you for your offending.  I do this by considering whether there is anything about your offending that would lead me to impose a sentence that is greater (or lower) than the starting point and I consider also matters that relate to you personally because they also have an effect on your final sentence.

[11]     In sentencing you I have to take into account what the law has set out as the purposes of sentencing.  I have to hold you accountable, to make you understand that you are responsible for what you have done.   I have to consider deterrence and protection of the community.  I also have to denounce your offending.  That means to make it clear to you, as much as I can, that your offending is unacceptable in New Zealand society.  At the same time the purpose is to help you with getting back into the community as a useful member of it.

[12]     There are also some general principles of sentencing that must be considered. I consider the gravity of your offending, including the extent of your responsibility and how serious your offending is in comparison with other types of offending.   I also take into account the general desirability of keeping consistency in appropriate sentencing levels.

[13]     The Sentencing Act directs me to impose the least restrictive outcome that is appropriate in the circumstances.  It is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community.  However the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to your case.

Starting point

[14]     Now I come to the starting point.

[15]     Mr  Waa  was  originally  jointly  charged  with  you,  with  being  party  to attempted murder.   The Crown accepted from him a plea of guilty to a charge of being a party to causing grievous bodily harm with intent to cause grievous bodily harm in respect of the shooting of Tweedale.   Mr Waa directed the “hit” on Mr

Tweedale.  He was sentenced by Asher J and Asher J adopted a starting point on that charge of ten  years imprisonment with the final sentence being eight-and-a-half years imprisonment with a minimum term imposed of four years and eight months. Mr Collins does not suggest that your culpability, that is your responsibility in the shooting of Mr Tweedale, is any greater than Mr Waa’s but he submits that it is similar.

[16]     On your behalf Mr Philip agrees that the appropriate starting point should not be greater than that adopted by Asher J for Mr Waa - that is, ten years imprisonment.

[17]     I have considered the sentences imposed and starting points adopted in cases where the circumstances were similar to yours.   Of course no two cases are ever exactly the same.

[18]     Apart from Mr Waa’s sentencing a starting point of 12 years imprisonment was adopted in the case of Daniels1 in September 2004 where three gang members were  sentenced  on  a  group  of  charges  arising  out  of  a  gang  warfare  incident involving firearms.   Each of the three prisoners there faced a number of serious charges.  In another series of cases involving gang-related incidents with firearms, the Court of Appeal upheld sentences of nine, ten and 15 years imprisonment.   In

that case the victim was left a paraplegic and they are the cases of Hartley  & Gardiner2 in May 2002 and Hopa & Climie3 in December 2001.

Features of offending

[19]     Mr Hone, as I said earlier, the law requires me to look at aggravating and mitigating features of your offending, that is, things that make it more or less serious. In your case the aggravating factors of the offending are the violence of the shooting and the premeditation, that is, you were directed to “get” Mr Tweedale, the serious injury caused, the use of a firearm and the gang-warfare context.  In relation to the offending there are no mitigating factors.

1    R v Daniels HC TAU CRI 2003-047-000415 3- September 2004, Heath J

2    R v Hartley & Gardiner CA 6/02, CA 112/02 , 9 May 2002

3    R v Hopa & Climie CA 302/01, CA 329/01, 18 December 2001

[20]     Taking all those factors into account I have concluded that the appropriate starting point is ten years imprisonment.

Personal factors

[21]     I turn now to consider matters that relate to you personally.  I will take into account your plea of guilty and your age at the time of the offending.  I also take into account the fact that you have no relevant previous convictions.

Defence submissions

[22]     On your behalf Mr Philip submitted that you should be given significant credit for your guilty plea and for your co-operation with the Police at least in the early stages after the event.  Mr Philip, in his written submissions, suggests that the offending occurred because you did not have the opportunity to carefully rationalise what was going on in the heat of the moment when you were with older and more senior members of the gang.  Mr Philip also referred me to your letters and letters from your partner and from her parents.

[23]     I accept that you are entitled to a discount in your sentence to reflect the guilty plea.  It cannot be at the highest level however because it was not entered until after the depositions and after a pre-trial judgment that your statements to the police were admissible in your trial.   I have concluded that a discount of one-quarter is appropriate for your guilty plea.  I accept also that it is appropriate that you receive a further discount to take account of further mitigating factors such as your age at the time  of  the  offending,  your  early  co-operation  with  the  police,  the  absence  of relevant previous convictions and the remorse you have expressed.  I have to note, however, that that is questioned by Mr Collins.

[24]     The end result, Mr Hone, I have concluded that your sentence should be reduced by four years from the starting point.

Sentence

[25]     Mr Hone would you please stand.

[26]     On the charge of being party to attempted murder, you are sentenced to six years imprisonment.

[27]     That is a long sentence of imprisonment Mr Hone.   I do not consider it appropriate  to  impose  a  minimum  term  of  imprisonment.    I    mean  this  as  an incentive to you to demonstrate that you are indeed firm in your resolve to change your life, to distance yourself from your former associates and to complete your sentence as soon as you can, and return to your partner and child so that you can support them and be with them.   To a very great extent Mr Hone this is in your hands.

[28]     Please stand down.

Andrews J