R v Kahotea HC Wang CRI 2008-083-703

[2008] NZHC 2277

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2008-083-703

THE QUEEN

v

RAYNOR STEPHEN KAHOTEA

CRI-2008-083-704

THE QUEEN

v

ATHLEEN JUNE BARLOW

Appearances: A Cameron for Crown

M J Bullock for Kahotea
L C Rowe for Barlow

Sentencing:     28 April 2008

SENTENCING NOTES OF GENDALL J

R V KAHOTEA AND BARLOW HC WANG CRI-2008-083-703  28 April 2008

[1]      Raynor  Stephen  Kahotea  and  Athleen  June  Barlow  you  both  appear  for sentence having pleaded guilty to charges (effectively) of being accessories after the fact to the crime of manslaughter.   Namely, that  you Ms  Barlow knowing two persons to be parties to a culpable homicide, assisted them to enable them to avoid arrest or conviction.  And you Mr Kahotea assisted one other who has since pleaded guilty to a crime of culpable homicide.

[2]      Counsel requested that I sentence you together even though you are charged separately, and I do so because of the common circumstances which exist.

[3]      In 2006 and 2007, the Mongrel Mob and Black Power gangs terrorised each other, and the citizens of Wanganui.  You both knew about that.  They engaged in gang warfare, resulting in a number of violent criminal acts occurring on both sides. The conflict reached a deplorable height on 5 May 2007.   Members of the Black Power gang had grouped at a Wanganui address, apparently to protect themselves, or a senior patched member of that organisation from an anticipated attack by members of the Mongrel Mob.  This Court is aware that earlier, at least in March 2007, Black Power members had used a weapon or weapons to attack premises of the Mongrel Mob.  Open warfare prevailed.

[4]      What resulted was on 5 May 2007 a 2 year old girl, Jhia Te Tua, was shot dead by a group of the Mongrel Mob gang pursuing the conflict with the rival Black Power gang and a member who was the infant’s father.

[5]      The escalating conflict led to the attack of that day when Mongrel Mob members obtained a .303 rifle, and in three vehicles went in convoy to the address of the patched Black Power member.   Two criminals were in one vehicle with the firearm.   Three shots were fired at the house intending to kill the Black Power member who lived there.  It was to be a murder – a gangland “hit”.  The shots missed the target and one bullet struck the infant child sleeping on a couch killing her instantly.

[6]      You  both  enjoy being  associated  with  members  of  the  Mongrel  Mob  in

Wanganui.  Mr Kahotea, you are not a patched member of that gang or an associate

or a prospect but you like to align yourself with it and its aim.   Ms Barlow, your former partner is a gang member, and you associate with other members of the Mongrel Mob.

[7]      The  car  which  contained  the  assailants  went  to  the  address  of  you, Mr Kahotea immediately after the shooting.   You were told that a shooting of a Black Power member had taken place, and you were asked to hide the rifle that fired the fatal shots.  You did this by placing the firearm under a bed, and the next day it was thrown down a bank either by you or an associate.   You were assisting in disposing of the weapon that murdered the child.

[8]      The  primary  assailants,  no  doubt  wanting  to  dispose  of  the  weapon completely, arrived at your address the next day to find it had gone but it was retrieved from the bank and given to them.   It has not been recovered to date so could not be used as a crucial exhibit in evidence against those who committed the act of homicide.

[9]      For your part, in assisting the gang members’ disposal of crucial evidence, you were charged as an accessory after the fact and have pleaded guilty.

[10]     Ms Barlow, your involvement arose in two ways.  First, being associated with gang members, who used the vehicle, came to your address.  It is not clear for what purpose they came to you but you moved the motor vehicle involved in the shooting. You knew that it had been involved and moved it away from the address at which it had been left, so as to protect gang members.  You later sought to assist two of them from being caught because 10 days later you drove the accused to an address in Northland so that they would escape apprehension.

[11]     When spoken to by police you said that you moved the vehicle in panic because you did not want the Black Power looking for it, but you were stoned at the time and you thought the car would get you into trouble.  You admitted transporting some of the accused to Northland knowing that they were being sought by the police. It is unthinkable that you did not know by that time what had occurred, who had been involved, and that they were being sought.

[12]     To both of you, and any others who may seek to assist serious criminal offenders avoiding apprehension and conviction, let me make it quite clear to you as follows.

[13]     Those who assist gang members in disposing of evidence to enable them to avoid  apprehension  and  conviction  for  grave  criminal  offences  and  acts  cannot expect lenient sentences.  Support, assistance, adherence to gang aims and cultures, to align oneself with gang’s criminal acts so as to provide support, encouragement and acceptance of the acts the gangs undertake, is not far removed from gang activity itself.  Even if offenders such as you are not formal patched members or associates; those who act as though criminal members of a gang can expect to be treated as though they are one.   So do not act as criminal gang members and expect to be treated that you are not members of that group.

[14]     I turn to your individual circumstances.

Mr Kahotea

[15]     Your personal history is that you are now aged 31 and have a total of 57 previous convictions which have arisen since 1995, although most them have occurred over a four year period up until 1999.

[16]     You have a psychological or psychiatric illness which is complicated by chronic use of cannabis, and it seems, misuse of alcohol, but  your condition is reasonably managed by medication and other oversight from a rehabilitation service. You are subject to s 30 Mental Health Compulsory Treatment Act 1992 conditions.

[17]     You  are  assessed  at  having a  medium  risk  of  reoffending.    I think  that because of your more settled lifestyle in recent times, that is reduced somewhat.  But there  are  some features  which  place  you  at  risk  of  further  crimes.    As  I  have indicated, for so long as you choose to associate with criminal members of the Mongrel Mob, you will inevitably reoffend.   It is considered that you are able to undertake community work and that is the recommendation of the Probation Officer.

[18]     But you have grandiose delusions and a desire to be accepted as part of the Mongrel Mob gang or some other gang.   It is that which has led you into serious trouble, and there is little optimism that you will put those inclinations to one side. A report available to me says and I quote:

“[You] expressed a desire to be sentenced to prison.  [His] rationale for this wish was that it will put [him] into regular contact with other gang members and also a ready supply of young men to recruit into a gang.  [He] was quite keen to form a new gang and believed that [he] will once again be “the man” so to speak.”

[19]     That might just have been big talk and big noting.  But it is not for you to choose your sentence.  And if it is your wish to go to prison, then I will disappoint you.   There are mitigating facts in your case, including your guilty plea and psychological state.

Ms Barlow

[20]     You are now aged 25 and have a criminal history of 29 previous convictions which involved multiple convictions for burglary, theft, some drug related, excess breath alcohol  convictions,  driving whilst  disqualified,  and  breaches  of  periodic detention.

[21]     The Probation Officer’s report is not encouraging.  It says you are a sickness beneficiary having sustained a leg injury in a motor accident last year.  You have a young daughter who resides with  your former partner,  who  is  one  of  the  gang members.   You have two other children aged 3 and 9 who  reside with  you in Wanganui.

[22]     The Probation Officer says that you refuse to discuss the offending so as to enable proper assessment to be made of your rehabilitative needs.  You have shown little empathy and no remorse for the role you took.  As I have said, let it be quite clear that those who sympathise with, assist and help to harbour gang members can expect little sympathy from the Courts.  If you align yourself with them then you can expect to be seen as squarely in their camp.  You have unpaid fines and offences for breaching community-based sentences and ignoring Court orders.   That does not

give any optimism that you would be responsive to any community-based sentence, and the likelihood of you completing and responding to such sentences is problematical.

[23]     You have used cannabis and have a problem with alcohol, and according to the  Probation  Officer  you  only  pleaded  guilty  because  you  thought  you  would receive a community work sentence.  But, according to you, you say you cannot do much community work so you think a fine would be appropriate.  How you would pay that is not explained, because a simple fact is, according to the information before me, you do not readily pay fines imposed upon you.

[24]     The Probation Officer says that your:

“Close ties with offending associates and lack of remorse and insight into

[your] offending suggest that [your] risk rating could easily escalate.”

[25]     Despite your claims that a community work sentence or fine is all that you expect, the Probation Officer recommended imprisonment.  The report says that you:

“Presents as lacking victim empathy or remorse ….  [You] maintained that

[you] should not have been charged for the offence.”

[26]     A mitigating fact in your case is your guilty plea.

[27]     Dealing generally with authorities applying to the crime of accessory after the fact for murder or for that matter manslaughter, the leading authority is R v Raroa (1987) 2 CRNZ 596 where it was said that interference with the course of justice by assisting those who commit homicide to escape arrest calls for a deterrence sentence. A sentence of three years’ imprisonment was imposed.

[28]     Examples  more  closely  aligned  to  both  your  situations  is  R  v  Graham (HC CH CRI-2004-009-002224 14 September 2004 Chisholm J) where an accused assisted an associate to remove items from an address at which a homicide had earlier  taken  place.     Justice  Chisholm  took  a  starting  point  of  18 months’ imprisonment and reduced it by 50% to take into account features that the accused was a first offender with glowing references, neither which apply to you.

[29]     More  recently  in  R  v  Ovalau  and  Sheck  (HC  AK  CRI-2006-092-10484

13 March 2007 Randerson J) two offenders pleaded guilty to charges of accessory after the fact to murder following upon a dispute between rival gangs where a man was killed and the offenders took the assailants from the scene and also concealed the weapon.   A starting point of 18 months’ imprisonment was also taken with a significant discount because of guilty pleas, co-operation with the police, and youth.

[30]     Now in your case, I recognise the plea is not as accessories after the fact to the crime of murder, but simply to culpable homicide, that is the killing of a human being by an unlawful act.

[31]     So far as you are concerned Ms Barlow you assisted two offenders avoid detection twice.  The initial moving of the car may have been a relatively minor error but driving two of them to Northland ten days later was significantly more serious. You then knew they were wanted by the police, and you intended to assist them avoid apprehension.

[32]     For your part Mr Kahotea you concealed the weapon used in the killing and endeavoured to dispose of it.   This was a serious impediment to a homicide investigation as forensic examination of a murder or killing weapon is a vital part of such investigation, and any attempts to impede police in locating weapons have to be treated seriously.

Appropriate sentencing

[33]     In both cases the Crown accept that a sentence of imprisonment for less than two years is appropriate, but it accepts that it need not necessarily full-time custodial.

Mr Kahotea

[34]     The psychiatrist says that if you were sentenced to imprisonment you would likely lapse  your Mental  Health  Act  status,  leading to  a default  in  your  taking medication.  A possible benefit of imprisonment however may be a reduced access

by you to cannabis, although from what we see from time to time that is by no means certain.  But it is not appropriate that you be sentenced to imprisonment so that you can pursue gang contacts or your inclination to become involved in them.

[35]     I have real concerns that you might become more actively involved in gang subculture if performing community service or work, given your mental state.  But the consultant psychiatrist is of the view that the best compromise for the probation officer or services and your current caregivers to work together.   I am satisfied a sentence of intensive supervision together with community work is the proper sentence.

[36]     Your aggravating features of 57 previous convictions weigh against  your mitigating features of your guilty plea and your mental health problems.   You are made particularly vulnerable I suspect because of the influence of the primary offender, who has pleaded guilty to murder, namely Hayden Wallis.  I do not think that in your case community detention is necessary but you are required to perform community work and be subject to a sentence of intensive supervision.   That is because I am satisfied it would reduce the likelihood of further offending by you through rehabilitation and reintegration and also because your needs are such that the conditions that need to be imposed are not available through the sentence of supervision.  So the standard conditions contained in the Sentencing Act will apply to you, including not associating with persons of a specified class that the Probation Officer directs that you not associate with.

[37]     And there will be further special conditions imposed upon a sentence of intensive supervision that you undertake and complete such treatment or treatment programme  that  the  Probation  Officer  may formulate  and  require.    So  you  are sentenced to community work for a period of 100 hours.    In addition, you  are sentenced to a term of 18 months intensive supervision, pursuant to s 54B of the Sentencing Act.  The standard conditions under s 54F will apply, together with the special condition that you undertake and complete such programme and treatment that the Probation Officer can formulate as necessary for your rehabilitation.

[38]     The combination of those sentences is necessary and permitted pursuant to s 19(7) of the Sentencing Act.

[39]     Your counsel has sought suppression of your name.  Gang members or those who associate with them and align themselves and sympathise with them deserve to have their names known to the community.   You wish to be associated with such gang members.  The information before me indicates you are related to several gang members.  Your involvement will be very well-known.  Any issue of suppression of your name is out of the question.  It is declined.

Ms Barlow

[40]     Ms Barlow, the Probation Officer does not recommend community work because it is hard to see you successfully completing that sentence.  An appropriate starting point for your offending is 18 months’ imprisonment and the only mitigating feature is your guilty plea.  I do not accept that you have any genuine remorse apart from  the  remorse  of  being  caught.    The  aggravating  features  include  your  29 previous convictions, and you will only avoid a fulltime custodial sentence because the Crown does not consider it appropriate.

[41]     I have come to the conclusion that you be sentenced to a term of community detention pursuant to s 69B of the Sentencing Act.  Understand that that is not a “soft option”.  The Probation Officer will advise you of the conditions which will attach to such sentence, as no doubt will your counsel.   I direct that it should be for the maximum period of six months (that is the maximum permitted by law).  You will be subject to a curfew between the hours of 7 pm and 6 am on each day in each week.  You will be able to leave the curfew address only in an emergency, or with the consent of your Probation Officer which can only be given on certain grounds. You will have the reporting obligations also.

[42]     Before such a sentence can be imposed however, the Court has to be satisfied that that curfew address is suitable and any relevant occupants of it understand matters as set out in s 69C(2), and that you understand all conditions that would

apply during your sentence, and you agree to comply with them, because if you do not, other sentencing options are available to the Court.

[43]     Consequently, a remand is necessary for such period to allow assessment to be completed by the Probation Officer prior to the sentence of community detention being imposed.  I am required to be in Wanganui for another sentencing on Monday,

9  June  2008,  and  accordingly,  you  are  remanded  to  that  date  to  enable  the appropriate report and agreement to be obtained and I will impose final sentence then.

[44]     Be clear, in terms of the hierarchy sentences now provided in the Sentencing Act, this is only one step below that of imprisonment.   I am satisfied that it is necessary to reduce the likelihood of  your  further offending by restricting  your movements, to meet the purposes of denunciation, to make you accountable for your offending, and also to generally deter others.

[45]     You are remanded for final sentence in this Court at 10 am on 9 June 2008. You have been on bail and that will continue on the existing terms.   But on the further conditions that you are not associate or communicate whether directly or indirectly with Tyrone Box, James Challis, Ranji Forbes or any members of the Mongrel Mob, whether they be patched, associate or prospects.

“J W Gendall J”

Solicitors:

Luke Cunningham & Clere, Wellington

M J Bullock, Wanganui

Armstrong, Barton, Wanganui