R v Matahaere
[2024] NZHC 2053
•24 July 2024
ORDER PROHIBITING PUBLICATION OF PART OF EVIDENCE CONTAINED IN THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-003574
[2024] NZHC 2053
THE KING v
HEATH JAMES MATAHAERE MIGUEL TUIALA MOAGUTUULI MARCUS FAGAALE MOAGUTUULI
JUNIOR FAAIVA
Hearing: 24 July 2024 Appearances:
M G McClenaghan and A M Harvey for Crown T D Clee (via VMR) for Defendant Matahaere
A J Bailey and R J T George for Defendant Miguel Moagutuuli K C Cook (via VMR) for Defendant Marcus Moagutuuli
D J Matthews for Defendant Faaiva
Judgment:
24 July 2024
SENTENCING REMARKS OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v MATAHAERE [2024] NZHC 2053 [24 July 2024]
Introduction
[1] Heath James Matehaere, Miguel Tuiala Moagutuuli, Marcus Fagaale Moagutuuli and Junior Faaiva, you appear for sentencing, each of you have pleaded guilty, or in your case, Mr Matehaere, have been found guilty, of the following charges:
(a)causing grievous bodily harm to with intent to injure;1
(b)injuring with intent to injure;2 and
(c)assault with intent to injure.3
[2] Miguel and Marcus Moagutuuli and Junior Faaiva, you are also to be sentenced on a related charge of common assault,4 and Miguel, you are to be sentenced for charges of unlawful possession of ammunition,5 unlawful possession of firearm parts,6 and failing to carry out obligations in relation to a computer search.7
[3] Junior Faaiva, you are also facing charges of possession of cannabis and utensils. The Crown gave notice of an intention not to offer evidence to support those charges and you are discharged in relation to them if that order has not already been made.
Facts of offending
[4] The factual basis upon which all four of you are to be sentenced is set out in an agreed summary of facts. Although in relation to you Mr Matehaere, I am entitled to fix sentence in reliance on the evidence I heard at your trial. But having sat through the trial, I am quite satisfied the evidence adduced by the Crown at trial does in fact reflect the evidence as was set out in the agreed summary.
1 Crimes Act 1961, s 188(2): maximum penalty seven years’ imprisonment.
2 Crimes Act 1961, s 189(2): maximum penalty five years’ imprisonment.
3 Crimes Act 1961, s 193: maximum penalty three years’ imprisonment.
4 Crimes Act 1961, s 196: maximum penalty one year’ imprisonment.
5 Arms Act 1983, s 22B: maximum penalty $10,000 fine.
6 Arms Act 1983, s 22A: maximum penalty $10,000 fine.
7 Search and Surveillance Act 2012, s 178: maximum penalty three months’ imprisonment.
[5] That summary does not, other than in relation to some acts of Mr Matehaere, identify what each you did in the lead up to and during the assaults. Rather, it refers to the acts of “the defendants”. That reference includes a reference to [NAME SUPPRESSED], who is to be sentenced at a later date. For the sentence, I adopt the language of the summary of facts.
[6] The four of you were patched members of the King Cobra gang. Other than the victim, BPM, none of you knew the victims of your offending. At around 2.40 am on Sunday 21 March 2021, the four of you, together with other associates arrived at the Cruz Bar on Victoria Street here in Christchurch. At about 3.06 am, the victim, LAT, arrived and entered the Cruz Bar. A short time later, the other three victims, BPM, his brother, RM and DL (and I will refer to them as the three victims) arrived and joined a queue to enter the bar. When they got to the front of the line, they were turned away by the doorman. Why that happened is not known. The three victims then walked down the road towards a nearby dairy.
[7] Three of your group left the bar a short time after the victims had been refused entry. Those three defendants went in the direction of the victims. An associate of yours gestured to the victims to return to the Cruz Bar. Your group then returned to the bar and stood around the entranceway near the doorman. Mr Matehaere told the doorman to allow the victims to enter the Cruz Bar. He had pre-paid for a number of entry tickets.
[8] Upon entering the bar, your group surrounded the three victims. Mr Matehaere, you confronted BPM. The CCTV evidence played repeatedly at your trial records you standing “right in the face” of BPM. You were chesting him. It was clear from the footage, that you were fired up and aggressive towards him. The victims then went to leave the bar, but as they did, one of your group, a person I identify as [NAME SUPPRESSED] punched BPM. From there, everyone spilled out onto the street. The victims were running.
[9] All four of you chased the victims out of the bar and across the road and ultimately between the four of you and [NAME SUPPRESSED], you managed to chase down the three victims.
[10] DL was punched several times, causing him to fall to the ground. He attempted to protect himself by curling up and covering his head. He was repeatedly kicked and punched over his head and body. He suffered bruising and swelling to his head, face and body. The assault on DL, to which each of you has pleaded guilty, had been reduced to a charge of assault with intent to injure.
[11] BPM was punched, causing him to fall to the ground. One of you held his head off the ground while another of you punched and kicked him in the head and face until he was unconscious. Notwithstanding that he lay prone, that is, unconscious and defenceless, the kicking, stomping and punching about the head continued. That led a member of the public to yell out to you to stop or you would kill the victim. That warning was ignored, and the attack continued. BPM sustained a serious head injury. His skull was fractured. He had a brain bleed and brain damage. He was in intensive care and in a coma for a number of days. He was hospitalised for weeks following the attack and then moved to a Wellington hospital for specialist rehabilitation. He sustained life-changing injuries as a result of the attack. In relation to that assault, the charge was one of causing grievous bodily harm with intent to injure.
[12] RM is BPM’s brother. He attempted to stop the attack on his brother. He, too, was knocked to the ground, then kicked, punched and stomped on the head until he was unconscious. RM suffered severe bruising and swelling to his right eye and bruising and swelling to his head. He sustained a severe concussion as a result of the attack and the summary records him having ongoing issues with his memory and headaches. The charge in relation to RM was one of injuring with intent to injure.
[13] The fourth victim, LAT, witnessed your attack on BPM and he ran to try and protect him. He lay over BPM’s head in an attempt to shield him from your attack. LAT was kicked in the face. He was dragged off BPM and punched and kicked about the head. He suffered bruising and swelling to his face, head and body and a concussion. That offending is represented in a reduced charge of assault. Mr Matehaere, as a consequence of LAT’s unwillingness to give evidence at trial, that charge was dismissed against you.
[14] Miguel, you face additional charges as a consequence of a search that was executed at your address on 7 May 2021. During that search, two .22 calibre silencers were located in your bedroom, together with 50 rounds of 22 LR (long range) ammunition. You do not hold a firearms license and you had no lawful basis to be in possession of firearm parts or ammunition. Your cell phone was seized following the execution of a search warrant. You were requested by police officers to provide the PIN code for your cell phone. You refused saying, “I’m not giving you my PIN”.
[15] In relation to the violent offending, all four of you were charged as parties under s 66(2) of the Crimes Act 1961. By your guilty pleas, and by the verdict of the jury, in your case, Mr Matehaere, you are to be sentenced on the basis that each of you were part of a common plan to assault the victims, to assist each other to carry out those assaults and that each of you knew it was a probable consequence, that is to say, it was likely, that in carrying out those assaults, the assaults that were actually inflicted involving punches, kicks and stomping, as I have described, and in the case of BPM, a really serious injury, would be the assaults actually inflicted.
Explanation for offending
[16] Each of you exercised your right to silence on arrest back in 2021. The only explanation you have provided in relation to your offending is that summarised in your pre-sentence reports or other reports I have now read. Those were comments made nearly three years after the offending, at a time when you had so much opportunity to reflect on your role and responsibility.
[17] Mr Matehaere, you said that the victims were rival gang members and that the meeting with them at the Cruz Bar was not planned. You said you dispute having committed the offences the jury found proven because you were not involved in violence towards the victims. You say you were found guilty because you were present and did not intervene when your associates committed serious assaults.
[18] Mr Matehaere, as I said to your counsel during argument, it is unconvincing that notwithstanding you having been charged on the basis of a joint enterprise, and that the grounds for party liability were explained repeatedly by me and by the lawyers throughout the course of your trial and in your presence, that you are not
acknowledging the true basis upon which you were found guilty by the jury. It is not because you were present. It is not because you did not intervene. It is because you were the instigator of the plan to assault the victims. It was you who lured them into the Cruz Bar. It was you who immediately got in the face of one of your victims. You were the aggressor and that fired up your co-defendants. When, what was inevitable in my view, a punch was thrown, it was you who joined in with your co-defendants in chasing after the victims as they sought to escape from the attack that you and your group had initiated. Mr Matehaere, I want you to understand you were found guilty because this was a joint enterprise, and you were at the heart of it.
[19] I am concerned that you do not seem to understand that in a case involving party liability and multiple offenders, each of you bears responsibility for the assaults that were carried out by the others. Please be clear it is not your presence that means you were guilty. Your involvement was far more serious, far more culpable. I agree with Mr McClenaghan who says that if anything, you might be held more accountable than any of your co-defendants because, in my view, the victims would not have been attacked but for your actions. But I am not going to increase the starting point for you because of that.
[20] Miguel Moagutuuli, you told the probation officer that you were “not too sure” what the catalyst was for the offending. You said that you knew there were some swear words from their group towards yours. You said these people were trying to be aggressors, being verbally abusive. You described it as a “fight that went too far”.
[21] Again, I cannot accept your explanations. This was not a fight. You and your gang associates outnumbered the victims, you and your associates launched an attack on them. They were not aggressive towards you at all. I am satisfied that your group lured them into the Cruz Bar to initially confront them and then to assault them.
[22] You have also offered explanations Miguel, to forensic psychiatrist, Dr Panckhurst. He has recorded those in his report. He described you as “somewhat cagey” in your statement that the victims were not well known to you. You told Dr Panckhurst that the victims had tried to start a fight earlier that evening at another bar and that they had approached you again at the Cruz Bar, but that you and your
friends were not interested in fighting them. When asked by Dr Panckhurst, why one of your group would have then met the costs of the three victims entering the Cruz Bar, you said that your group was trying to make peace. Dr Panckhurst reports your explanation that “one of them yelled out some abuse… they punched one of my friends and a big scuffle broke out”.
[23]Mr Moagutuuli, what you told Dr Panckhurst is just not true.
[24] Dr Panckhurst describes you making similarly evasive comments in relation to the ammunition and firearm parts found at your address.
[25] Marcus Moagutuuli, your pre-sentence report records that you could not or would not explain what had happened. It records that you claim that you were not involved to the extent you were charged. That reflects you avoiding responsibility. You are minimising your role in this offending. You told the probation officer there was a fight, but that the victims were not completely innocent. You alluded to them being involved in a gang and to there being some historical conflict as Miguel had said. You have told the probation officer you pleaded guilty for pragmatic reasons. But, like your brother, you are victim blaming. These victims were completely innocent. They were never aggressive, either verbally or physically. They never tried to fight back when your group attacked them.
[26] Mr Faaiva, you told your report writer that you and your associates had bumped into some people at a club where words were exchanged and that those same people then turned up at the Cruz Bar. You said, “one of them got lippy” and a scuffle developed which spilled out onto the street. You said it was a situation that got out of control.
[27] Again, I do not accept your explanation for the reasons I have outlined to your co-defendants. Having been lured into the bar, the victims were immediately on the defensive when they were surrounded by you all. There is no evidence that one of them “got lippy”. There was no scuffle. What happened was [NAME SUPPRESSED] threw a punch and the victims immediately tried to escape. They did not ever try to fight back. But you did not let them escape. You chased them. You caught them and
each of you then inflicted serious violence on them. Mr Faaiva, this was not a scuffle that spilled out onto the street and got out of hand.
[28] Those explanations I have summarised tell me, and as I have expressed to your individual counsel this morning, that none of you have truly acknowledged and accepted responsibility for these assaults. I have read your letters of apology, but I am not satisfied that you truly understand your culpability and responsibility for what happened. As I will shortly explain, I consider that to be at odds with you having genuine remorse.
Victim impact statements
[29] Victim impact statements can form an important part of the sentencing process. The absence of any reports in this case leaves the Court confined to the relevant material that was set out in the summary of facts. I am told your victims have declined to provide victim impact statements. I have had no explanation in relation to that.
Personal circumstances
[30] I have a great deal of information detailing your personal circumstances. For now, I make the following observations.
Heath Matehaere
[31] You are aged 45 years. You are in a relationship of about five years with the mother of your daughter.
[32] You have a substantial criminal history dating back to 1995. You have served a number of sentences of imprisonment. Your prior convictions predominantly consist of property-related offending. You served cumulative sentences for burglaries committed in 2008 and 2009 and a six-year concurrent sentence for aggravated robbery around the same time. But you did not offend between 2008 and 2021.
[33] Your pre-sentence report tells me you have spent the past three years on bail. There has been no further offending. You have been compliant. You were remanded in custody a few days after your trial. Of late, your partner says she has noticed a real
change in you. You are described as a good support to her and your daughter. You have been operating a furniture removal business and you have been working in the community with young Pasifika and Māori males, who were stepping into the security industry and acting as a mentor and role model.
[34] As at the date of this offending, you were a patched member of the King Cobras. You were the senior member on the day of this offending, but you say that you have relinquished all contact with the gang.
[35] The offending related factors I have been told about are identified as attitudes, friends and associates, alcohol and violence. The pre-sentence report tells me you meet the criteria to be assessed to complete the prison-based violent offending programme.
[36] Other than your failure to accept full responsibility for your offending, I would describe it as a positive pre-sentence report Mr Matehaere.
[37] On your behalf Mr Clee has filed a s 27 cultural report and a number of letters confirming that you have a firm focus now on family life and, in particular, on your young daughter, and the positive guidance you are providing to other young people in the community. You are to be applauded for that.
Miguel Moagutuuli
[38] You are 31 and the twin brother of Marcus. You have a loving partner and are described as a loving father, partner and son. You identify your parents as your main support notwithstanding a very troubled childhood I will refer to shortly.
[39] At the time you were a patched member of the King Cobras. Prior to your custodial remand in December when you breached bail conditions, you were working in the demolition industry. You were otherwise on EM bail.
[40] I have read numerous letters of support and character references that have been filed in support of you, Miguel. Your partner raises very personal matters, indicating
to me that she faces her own challenges and that she and your children are heavily reliant on you for support.
[41] Your employer describes you as a “great asset” and mentions the religious nature of your friendship. Your mother says you are the main caregiver to your parents and that you are a loving and caring person. A letter from pastors in the community express their faith that you can “turn over a new leaf”.
[42] Your pre-sentence report records that your present offending represents “an escalation in severity of offending”. Your criminal history is largely composed of driving, dishonesty, and violent offences, also featuring breaches of nearly all community-based sentences you have been subjected to. You are assessed as being at a high risk of re-offending and causing harm based on the level of violence inflicted on the victims of the offending for which you are to be sentenced.
Marcus Moagutuuli
[43] You are 31 years of age. You are in a steady relationship with your partner. You have been together for several years. You are described as a proud and good father to your 19-month-old son. You express remorse for your son who misses having his father at home. It is clear that your offending has engendered a great deal of hardship and stress on your partner.
[44] While on bail, you have been working as a barber and have expressed interest in attending a barbering course. You were a patched member of the King Cobra gang but you claim, as the others have, that you have had no real involvement with the gang now and have not had over the past three years.
[45] Your pre-sentence report notes that you have a lengthy history of offending, commencing in the Youth Court in 2009. You have convictions for violence, driving and alcohol related convictions and a number for non-compliance with community-based sentences. You have historical convictions that involve decisions made whilst under the influence of alcohol. Your report tells me the frequency of your offending appears to have reduced in recent times, however the severity in harm has
increased. Your last conviction was in 2018 when you were sentenced to a short term of imprisonment for common assault and resisting police.
[46] I have a s 27 report telling me about your past, and your counsel has filed numerous letters of support and character references, including from your employer, mother, uncle, de-facto father, mother and sister-in-law, and a friend who has observed you in many volunteering roles in the community.
Junior Faaiva
[47] You are aged 30 years. You are in a stable relationship and have three children aged 8, 4, and 9 months. I have an affidavit from your partner telling me about both your relationship with her and with your children. You have been in a relationship with your partner for about 10 years now and are described as a good family man. You have spent the last two years and four months on EM bail at your parents’ address.
[48] You are described as a patched King Cobra gang member. You joined the gang when you were 23. You told the report writer you are entrenched in gang culture, but you are saying now that you are motivated to leave the gang lifestyle to focus on your family.
[49] Factors relating to your current offending have been identified as violence, attitudes and friends and associates. You told the report writer that you were taking methamphetamine and cannabis on a daily basis in the year of your offending.
[50] While you have been on EM bail you were employed for about two years with a local business. You hope to return to that same employer on your release from prison. I have a reference from that employer.
[51] Your criminal and traffic conviction history dates back to 2011. You have accumulated a total of 15 convictions including threatening behaviour, likely to cause violence, breach of community work, failure to answer bail, possession of cannabis, common assault, driving while disqualified, wilful damage, dangerous driving, being unlawfully in a building, and male assaults female.
[52] I have a s 27 report that sets out your personal history. I will refer to that again shortly.
[53] As would have been clear from the submissions I have heard this morning, each of your counsel have filed very fulsome written submissions on your behalf. I have read all those very closely. I have read all the supporting material that has been filed, and I have listened very carefully to the arguments that I have heard advanced this morning.
Principles and purposes of sentencing
[54] In fixing an appropriate sentence for your offending, I must have regard to the statutory principles and purposes of sentencing.8 Of particular relevance includes the need to hold you accountable for your offending and for the harm you have caused to the four victims; the need to promote in you a sense of responsibility for and an acknowledgement of the harm that you have caused; the need to denounce your conduct; to deter you and others from similar offending; to protect the community; and also to assist in your rehabilitation. I must impose a sentence that is consistent with other similar offending.
Approach to sentencing
[55] All counsel are agreed that I should fix a global starting point to reflect the offending, rather than fixing a sentence for each individual offence and imposing a cumulative sentence. I consider each of the violence charges can be appropriately treated as part and parcel of the same event. I agree it is appropriate to fix a starting point by reference to the most serious assault and to then impose an uplift to reflect the further offending, that uplift being subject to consideration of the totality principle.
Starting point
[56] All counsel are agreed that the lead offence is the offence of causing grievous bodily harm to BPM with intent to injure. That offence carries a maximum penalty of seven years’ imprisonment. There is no dispute that this offending falls comfortably
8 Sentencing Act 2002, ss 7 and 8.
within band 3 of Nuku v R.9 Therefore a starting point of two years up to the statutory maximum of seven years’ imprisonment will apply, there being three or more of the aggravating features set out in R v Taueki.10
[57] Mr McClenaghan for the Crown together with Mr Clee on your behalf Mr Matehaere, in their written submissions, have proposed a starting point for the lead offence of around five years’ imprisonment. Mr Cook for Marcus and Mr Matthews for Mr Faaiva propose a starting point of around four years and Mr George for you, Miguel, proposes a starting point of three and half years’ imprisonment for that offence.
[58] I assess the appropriate starting point by reference to the aggravating factors together with a review of the various cases counsel have referred to.
[59]I am satisfied that this offending engaged a number of aggravating factors:
(a)Extreme violence. The offending was both unprovoked and gratuitous. It involved repeated punching, kicking and stomping. I am satisfied that does qualify as extreme violence albeit at a low to moderate level.
(b)Multiple attackers. The victims were outnumbered. Five of you have been convicted. It is clear you had other associates present who played a role, at the very least, in supporting you. This was a group attack on three victims. The fact of multiple attackers is an aggravating factor present to a moderate degree.
(c)Attacking the head. There can be no dispute that this aggravating factor is present to a high degree. The offending involved a sustained targeted attack to the head of each of the victims and, as recognised in Taueki, means this offending was equivalent to offending involving the use of a weapon.11
9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 (CA).
10 R v Taueki [2005] 3 NZLR 372 (CA).
11 At [31e].
(d)Vulnerability of the victims. Not only were your victims outnumbered when they were attacked, but both the brother victims were attacked with hands and feet whilst lying prone on the ground, either unconscious or otherwise defenceless. I consider their vulnerability to significantly aggravate this offending.
(e)Serious injury. BPM’s head injury was undoubtedly extremely serious. Counsel have taken issue with Mr McClenaghan’s description of his injuries as causing permanent disability impacting on his quality of life. It is in this context that counsel have highlighted the refusal of the victims to provide a victim impact statement which could be objectively assessed. Defence counsel acknowledge, as recorded in the summary of facts, that BPM suffered life-changing injuries but submit the Court ought to exercise care in not overstating the extent of those injuries. I am satisfied that the offending did involve a serious injury to BPM at a level that moderately aggravates the offending.
(f)Premeditation. That is pretty much contested. Mr McClenaghan submits the violence was premeditated in that the victims were lured into the Cruz Bar for the purpose of being attacked. Mr George describes the offending as spur of moment. Mr Cook denies that the offending was part of some plan. Mr Clee, for Mr Matehaere, denies that there was premeditation.
In my view this offending was premeditated, albeit to a low level. I disagree with Mr McClenaghan that the evidence demonstrates the defendants made a “concerted effort” to have the three victims return to the bar. Rather, I am satisfied that on recognising the victims, Mr Matehaere, you encouraged and then orchestrated their return to the bar with assistance from your co-defendants. The victims had been initially denied entry. It was your action, Mr Matehaere, that allowed them to enter. That the victims were confronted so soon after entering the bar points, in my view, irresistibly to the conclusion they were being set up.
Although I accept it was [NAME SUPPRESSED] who threw the first punch and that [NAME SUPPRESSED] had not been involved in that initial confrontation when the victims were inside the Cruz Bar, in my view it was an inevitable consequence that there was going to be violence and the victims were going to be assaulted. I do not accept that the purpose of enticing them into the bar was simply to allow words to be had.
(g)Gang overtone. There was a gang overtone to this offending. All four of you at the time were patched members of the King Cobras. That you acted together in unison was no coincidence. Your bond, your willingness to act together, and for each of you to launch a violent attack without any hesitation reflects, in my view, your commitment and loyalty that you then had to the gang. You went into an automatic state. In the pre-sentence reports, there is a suggestion that the victims were members of a rival gang suggesting that your actions may have been a gang reprisal. I do not consider this was gang-on-gang violence. If I did, it would further aggravate the offending. Rather, I see this is as a case where your group had a gripe with at least one of the victims and following the lead of your most senior member, you extracted retribution in the way that by default you do. That is, with your hands and feet. I am satisfied the offending is properly described as having gang overtones to a modest degree.
Relevant authorities
[60] Counsel have referred to a number of cases said to assist as comparators in setting a starting point. I have had regard to each of those cases.12
[61] With reference to the cases of Hansen, Parker, Whittle, Tamati and Jones, Mr McClenaghan submits that a starting point for the assault on BPM is in the mid to top range of Nuku at around five years’ imprisonment. As I say, Mr Clee, for you
12 Hansen v R [2023] NZHC 3033; Parker v Police [2022] NZHC 2124; Whittle v R [2022] NZHC 946; Tamati v R [2023] NZHC 2846; Jones v R [2012] NZCA 162; R v Sheed [2022] NZHC 3304; R v Waho [2020] NZHC 112; and Te Ruki v R [2018] NZCA 319.
Mr Matehaere, accepts that a starting point in that general range is appropriate. Mr Cook, for Marcus, places particular reliance on the cases of Parker and Hansen. He supports a starting point of around four years. Mr Matthews for Mr Faaiva, supports Mr Cook’s submissions and Mr George, on behalf of Miguel, again with reliance particularly on Parker, submits that a starting point of around three years and six months’ imprisonment is appropriate.
[62] I have taken the most assistance from Hansen. In that case the four appellants appealed against a starting point of five years’ imprisonment on charges of wounding with intent to injure and participation in an organised criminal group. There were seven offenders, all affiliated to Black Power. They attacked an innocent victim at a McDonald’s restaurant after they had observed him wearing what they considered to be the colours of a rival gang. The victim suffered 14 separate kicks and punches — many targeted at the head. The victim was suffering from a mental illness that rendered him particularly vulnerable. During that assault he was hit with a weapon like a car jack or hammer, and he was stabbed. It was accepted by the Judge that the use of the weapon did not form part of the common intention of the group, so that was disregarded in sentencing. On appeal, McQueen J found that a starting point in the vicinity of four and a half to five years’ imprisonment was appropriate in relation to both charges, and that the starting point on the violence charge would have been around four years. The offending in Hansen did not lead to injuries as serious as that suffered by BPM.
[63] In Parker, the appellant was one of six offenders who assaulted four victims at a block of student flats in Dunedin. Everybody involved were young men. Mr Parker had punched one of the victims in the side of the head from behind and then with the other five offenders, punched, kicked and stomped on a second victim. He also assaulted two others who had attempted to assist the victims. One of the victims was punched in excess of 70 times and received kicks and stomps to all areas of his body while he was on the ground. That included blows to the head. The District Court Judge described the offending as “two minutes of alcohol-fuelled drunken violence committed with a pack mentality against a person who was largely defenceless”.13 The
13 Parker v Police, above n 12, at [10].
charge of wounding with intent to injure was met by a starting point of three years and six months’ imprisonment. That was upheld on appeal.
[64] As Mr Cook acknowledged, Parker did not involve gang overtones. It appears to be spontaneous offending, without any element of premeditation. The violence inflicted was not as serious as in the present case. I agree with Mr George that I must not simply accumulate the aggravating factors I have identified in terms of fixing where your offending fits. Rather, I stand back and look at you, having been convicted of committing serious assaults involving repeated stomping on the head, assaults committed by one group with gang associations against outnumbered innocent victims.
[65] I have regard to the authorities and the aggravating factors I have identified. I consider the appropriate starting point for this offending, is one of four years and three months’ imprisonment.
Uplift for other assaults
[66] Mr McClenaghan proposes an 18-month uplift for the other three assaults. He submits that a starting point of up to 24 months might be considered appropriate for those assaults. He submits that with application of the totality principle, a global starting point of six years is appropriate. He describes you, Mr Matehaere, as having culpability towards the top end of the group, you being the instigator and primary aggressor inside the bar.
[67] Mr Clee on your behalf, submits that an uplift of one year might be considered appropriate for the further two charges for which you were found guilty Mr Matehaere. That would lead to a global starting point of about six years. Mr Cook, with reference to R v Vaenuku acknowledges that an 18-month starting point might be considered appropriate for the additional charges but highlights that this offending all arose out of the same incident.14 He proposes an uplift of nine to 12 months, giving rise to an overall starting point of between four years and nine months and five years’ imprisonment. Mr George and Mr Matthews adopt the position advanced by Mr Cook.
14 R v Vaenuku [2023] NZHC 3593.
[68] There is no question that the further assaults were serious and warrant a discrete uplift. If you were facing those charges alone, I consider a starting point in the range of 18 months to two years’ imprisonment would have been available. Recognising, however, that this offending was part and parcel of a single event, and having regard to the totality principle, I consider the appropriate uplift for each of you to be one of 12 months’ imprisonment. That gives rise to an overall starting point of five years and three months’ imprisonment.
[69] I acknowledge Mr Matehaere, that you were not convicted of the assault against LAT. That was the least serious of the assaults that were committed. I am not persuaded to make any adjustment to reflect that fact given my acceptance of the Crown position that you sit at the top of the culpability tree in relation to the offending which you have committed.
Miguel – other offending
[70] Miguel, you face sentencing for other charges that you have pleaded guilty to. Mr McClenaghan proposes that a fine of $500 for the ammunition and firearm parts offending and a one-month imprisonment additional uplift for the failure to provide your PIN code to police. He acknowledges that the Court might, as an alternative, dealing the three charges on a concurrent basis or by way of conviction and discharge.
[71] Mr George on your behalf, submits a conviction and discharge is appropriate to deal with all three charges. He observes that it is not suggested by the prosecution that there was any material of significance ultimately discovered on your phone.
[72] In my view, if I was to impose a fine on you in relation to the Arms Act 1983 charges, it would really only serve to punish your family. In relation to those two, you are convicted and discharged.
[73] However, I agree with Mr McClenaghan that some sanction ought to be imposed for the failure to provide your PIN to police. I will impose a sentence of one month’s imprisonment to be served concurrently.
[74] I now turn to consider whether that starting point should be adjusted in light of personal aggravating or mitigating factors. I will deal first with aggravating factors.
Personal aggravating factors
[75] Mr McClenaghan proposes that the starting point for you, Miguel and Marcus, and for you, Mr Faaiva, should be uplifted because of your previous convictions for violence.
[76] Mr Faaiva, your relevant convictions are said to be threatening behaviour in 2020; common assault in 2017; and common assault in 2012. The Crown propose an uplift of three months. Marcus, relevantly, you have prior convictions for assault in 2018; common assault in 2013; and two convictions for aggravated assault in 2009. Again, an uplift of three months is proposed. Miguel, you have five relevant convictions, including fighting in a public place and common assault in 2017; male assaults female in 2016; common assault in 2016; and assault with intent to injure in 2014. Mr McClenaghan proposes a four-month uplift for you.
[77] While you, Mr Matehaere, have a significant criminal history of some 131-odd prior convictions, I agree they are largely historic. Your last conviction for violence was in 2010 for an aggravated robbery committed in 2008. Prior to that, you had a conviction for assault in 2003. In those circumstances, I agree with Mr McClenaghan and Mr Clee that no uplift is necessary.
[78] Mr George appropriately highlights the observations of the Court of Appeal, that uplifts for previous convictions should never be imposed as a matter of course, but rather as a consequence of a considered response by the Court to an offender’s criminal history.15 A sentencing court must bear in mind that the rationale for an uplift for previous convictions is that they are an indicator of a defendant’s character and culpability or are indicative of an enhanced risk of offending or reflect the need for a more deterrent sentence than has previously been imposed.16
15 O’Connor v R [2014] NZCA 328 at [41].
16 Orchard v R [2019] NZCA 529 at [39].
[79] On my assessment Mr Faaiva, you have two lower-level violence convictions in the past ten years. Marcus, you have one violence conviction in the last ten years. That, too, was low-level. In those circumstances, I am not satisfied that an uplift is necessary for either of you.
[80] Miguel, your position is different. You have five violence convictions in the last ten years — three are appropriately described as low-level, but two are more serious. Your more extensive history of violence reflects a willingness to engage in more serious violent offending. In those circumstances a modest uplift might be seen as appropriate. However, Mr George has persuaded me this morning, by reference in particular to your letter I have received this morning, and the very positive direction that letter talks about your life now taking, that an uplift is not necessary, so I decline to uplift your sentence.
Personal mitigating factors
[81] Each of you seek deductions to the sentence starting point to reflect personal mitigating factors. I start with your guilty pleas.
Guilty pleas
[82] The Crown propose a deduction of 10 per cent be allowed for Marcus, Miguel and Mr Faaiva. Their guilty pleas were entered on 8 February 2024 in advance of the trial that was then scheduled for 8 April 2024. The pleas were entered to reduced charges. I am told the resolution discussions were responded to by the Crown formally on 16 July 2023.
[83] I agree with the Crown that the pleas were not entered at the first reasonable opportunity and that having regard to the CCTV evidence, the prosecution case could be described as strong,
[84] Defence counsel propose on your behalf, a deduction of 15 to 20 per cent for your guilty pleas highlighting that they were entered quite soon after resolution discussions which had resulted in significant shifts in the Crown case.
[85] I acknowledge the case did involve some complexities including that there were four distinct assaults to be assessed as regards the appropriate level of charge, together with the challenges that are posed when confronted by a joint enterprise case. Also, and notwithstanding that Mr Matehaere maintained his not guilty pleas, meaning a trial could not ultimately be avoided, your guilty pleas did reduce the duration of the trial and the impact on the complexity of a trial for the jury. I consider a deduction of 15 per cent for your guilty pleas is appropriate.
[86] Mr Clee seeks a 5 per cent deduction to reflect your guilty plea on arraignment before the jury, Mr Matehaere to the charge of assault with intent to injure. Given the strong evidence of your direct involvement in that assault, that the guilty plea was entered on the morning of trial and that not guilty pleas were maintained in relation to the other three charges, I do not consider any deduction for guilty pleas is available to you.
Remorse
[87] All four of you seek a discrete discount for remorse. Each of you point to your expressions of remorse in your pre-sentence reports, your letters to the Court and your willingness to participate in a restorative justice (RJ) conference.
[88] Mr Matehaere, you say your remorse is further evidenced in the direct contact you have had with one of the victims and the letters that you have written to others. In those letters you seek to assure the victims that they should not be concerned that they will face any repercussions as a result of the prosecution. I accept your apologies to them are genuine, but again note that in your letter to RM you fail to take responsibility for the assault he suffered, again relying on your liability being restricted to you being present.
[89] Mr Clee has filed material on your behalf, Mr Matehaere, including an email from BPM sent directly to Mr Clee on 19 July recording that despite the RJ process being unable to proceed, that you had reached out to him through friends and offered what was accepted to be a sincere apology. The email refers to you answering questions raised by BPM and his acceptance of your apology. The email refers to his
belief in your potential for growth and his hope that this incident serves as a positive turning point for you. They are strong words from the victim.
[90] Mr Clee has also filed a screenshot of text messaging between BPM and the RJ coordinator advising the victim that RJ services had “reconsidered the complexity of the case and decided not to proceed without meeting them”, them being the defendants. The message I have seen records the victim’s disappointment with that advice.
[91] I find myself in agreement with defence counsel that it is unsatisfactory that the Court has not been provided with an explanation as to why RJ was not considered appropriate in circumstances where it seems the primary victim wanted to participate in that process. I simply note that RJ is a process that can be carried out at any stage including during the course of sentencing, or even beyond.
[92] In considering whether a deduction for remorse is warranted, the Court must assess whether the expressed remorse is genuine and then look for tangible signs of remorse beyond that inherent in a guilty plea.
[93] I would describe this offending at its heart as reflecting the propensity each of you have for violence when you are in a group setting. Although I acknowledge your various statements about severing ties with the gang, and that is certainly a positive feature of the material I have read, it is the comments that I have summarised earlier that each of you made to the authors of the various reports that I consider cast real doubts as to whether you have fully grasped an understanding and fully accepted responsibility for these assaults. That leads me to question whether in terms of a discount, your expressed remorse is genuine. In my view Marcus, Miguel and Mr Faaiva have engaged in victim blaming, an attitude that could have caused concern to the RJ coordinators. Mr Matehaere, as I have said, you seem to think the only thing you did wrong was not to intervene to stop the assaults. One of the concerns about a RJ conference is how that would be carried out if there were defendants who would continue to blame the victims or otherwise fail to grasp responsibility.
[94] In the circumstances, I have not been persuaded that a discrete deduction for remorse is warranted. I do not doubt that each of you have expressed remorse, and that you sincerely regret your involvement in this offending. It has led each of you to change your outlook on the lives that you had been living up to 2021. I consider that factor to be more appropriately reflected when I turn to deal with your rehabilitative prospects.
[95] I now turn to the further personal considerations advanced by your counsel and the material that each of you have filed. The principle mitigating factor each of you raise turns on what is described as s 27 reports setting out very personal background matters, and in your case Miguel, that is a medical report. Before dealing with you personally, I will just make some general observations.
General observations – personal circumstances including mental health
[96] The Court of Appeal in Zhang v R recognised there may be significant discounts where the mental health condition or personal circumstances and social deprivation of a defendant have a causal nexus to the offending.17 The rationale for that approach is that factors could give rise to reduced moral culpability. In Berkland v R the Supreme Court recognised that an offender’s background might well have an operative or proximate cause of offending.18 If that can be established, that background is likely to be a “potent sentencing factor”.19
[97]Of particular relevance to you, Miguel, the Court of Appeal in
E (CA689/10) v R observed that:20
A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.
(footnotes omitted)
17 Zhang v R [2019] NZCA 507 at [152].
18 Berkland v R [2022] NZSC 143 at [108].
19 At [108].
20 E (CA689/10) v R [2011] NZCA 13 at [68].
[98] I acknowledge that sentencing does have “an essentially moral base” and that “lesser moral fault requires recognition”.21 However, a discount is not automatically applied to a person with a mental disorder. It may be that disorder is not causatively related to the offending in that it cannot be seen as reducing the moral wrong. It may be that a discount is offset against the increased risk the offender poses to the community, in particular if that person has a propensity for violence.
[99] The various reports that I have read in relation to each of you raise issues that are regrettably all too common. For all of you, the picture painted is remarkably and tragically similar. Each of you now have the real benefit of a caring and loving partner and of children, that is young people who need you and who I am told are suffering as a consequence of your offending.
[100] I am hopeful that having engaged not just with the s 27 cultural report writers, the pre-sentence report writers, and in your case, Miguel, with a forensic psychiatrist, that each of you will have a very clear sense of what it was that lead you to be facing sentence in this court for serious assaults.
[101] As a group, socialising together, consuming alcohol, abusing drugs and united by your commitment and loyalty to a gang, you present, and will continue to present, a very high risk of committing violent offences. That is because what I have seen in this case is a group of young men acting like gangsters, acting with a pack mentality, with no care or forethought, not just of the consequences of your actions for your victims, but importantly, of the consequences for your families.
[102] This prosecution has taken far too long to make its way through the criminal justice process. I do not attribute any fault to you for that. I agree with your counsel that you have used the opportunity of time wisely. Other than one matter, and I refer to you Miguel, all four of you have remained offence-free since this offending back in May 2021. Each of you tell me that you have shifted your focus away from the gang to your loved ones. Each of you has demonstrated that notwithstanding the very significant disadvantages that you faced as children, that you have the desire, and you
21 R v Bridger [2003] 1 NZLR 636 (CA) at [42].
have the capacity to put your past behind you and focus on a family-orientated future. Each of you tell me you will sever ties with the gang.
[103] In those circumstances, just speaking globally, I am prepared to allow what I consider to be a generous discount to reflect the background reports and the supporting letters and references I have read from those who know you best. I agree with your counsel that an important component of this sentencing is to recognise and encourage you on a path of rehabilitation.
[104] I will deal with the reports in relation to each of you and having considered each of the mitigating factors said to individually arise, I will ask you to stand, and I will impose sentence before I move to the next defendant.
Heath Matehaere
[105] On your behalf, Mr Clee first seeks a deduction of 20 per cent due to what he describes as your limited involvement in the offending. That submission rests on the claim that you were not physically involved with the two victims of the more serious assaults and what is said to be an absence of evidence that you provided direct encouragement to the defendants who were physically involved in those assaults.
[106] I accept, having seen the CCTV, you were not physically involved in the more serious assaults, but as I have tried to make clear today, the submission that has been advanced on your behalf does not grasp the legal basis upon which you were found guilty. It was never alleged you were physically involved in those assaults. Direct encouragement is not an element of common intention party liability. Your involvement was not limited. It was central. As I have said, I do not believe this offending would have occurred but for your actions. I am not able, as a matter of law, to allow a deduction for your limited involvement.
Section 27 report
[107] You seek an allowance to reflect matters set out in your cultural report. Your report provides insight into your upbringing.
[108] You were removed from your mother’s care at the age of one. Your mother was a Black Power supporter. Your father was a patched Mongrel Mob member. Both had alcohol and drug issues.
[109] Your first memory is of being at a foster home in a rural area. In foster care you suffered trauma. That home was rife with violence, meted out by a foster father. On one occasion you were hospitalised, suffering serious injuries.
[110] You suffered abuse while in state care. That has been acknowledged by way of financial compensation.
[111] You joined the Crips gang when you were 12 years old. You were placed in custody at Weymouth Boys’ Home after getting into trouble for burglaries. You suffered violence at the hands of staff. For you, Mr Matehaere, violence was normalised from a very young age. In your mid-twenties, you left the Crips and by the age of 30, you had joined the King Cobras. In that environment you found a supportive network and what you described as a family.
[112] As at the date of the offending, you were using drugs — cocaine and alcohol. You classify yourself as a “binge drinker” — not drinking every day but getting inebriated when you do drink.
[113] You say that for the past two years, you have been trying to “transition” out of the King Cobras. I understand that is going to be difficult process, but you are encouraged on that path, because as you say, your new focus has to be your adult children and your new granddaughter.
[114] Your s 27 report author considers there to be a number of factors in your background that have a causative connection to your offending. The absence of any attachment with a parent or caregiver; a disconnection from your siblings and Te o Māori until your twenties; the abuse you suffered in care is identified as being linked to your offending, as is the normalisation of violence to which you were conditioned from such a young age.
[115] Mr Clee on your behalf points to a case called Poi v R where the Court was considering a cultural report which is described as strikingly similar to that of yourself.22 In that case, a total discount of 20 per cent was allowed for a background of severe deprivation and disadvantage together with rehabilitative prospects and concrete steps taken to address past trauma.
[116] Every case has to be considered on its own merits. However, as I have indicated, I am satisfied your report identifies a number of factors with a causal connection to your offending. In my view, your past sets you on a path that almost inevitably led you to a gangster lifestyle and in turn to violence. I consider the appropriate deduction to reflect your background and prospects of rehabilitation as being 20 per cent.
Time on bail
[117] Mr Clee seeks a further discrete deduction in recognition of you having spent over two and half years on bail subject to a night-time curfew. Mr McClenaghan acknowledges that you have been compliant with your bail conditions. Your compliance was recognised by myself when I allowed you to be bailed notwithstanding the jury’s guilty verdicts because I trusted you to surrender to the prison as indeed you did.
[118] The Sentencing Act 2002 (the Act) expressly requires the Court to consider the time an offender has spent on EM bail when fixing sentence. The Act does not recognise time spent on bail simpliciter even with restrictive conditions as requiring such consideration. Although not mandated, a court may nevertheless, in my view, take restrictive or extended conditions of bail simpliciter into account in sentencing.23 I am satisfied that in your case, when you have been subjected to a restrictive condition such as a nighttime curfew over a prolonged period and you have been compliant as reflected in an absence of breaches or further offending, it is appropriate to allow a modest discount.
22 Poi v R [2020] NZCA 312.
23 Curry v R [2021] NZHC 3277 at [10].
[119]I allow a deduction of three months.
[120] Mr Matehaere, it seems you have spent your time on bail wisely. You say you have moved away from the gang. I sincerely hope that what I have read about your commitment to your family as a priority is real, and you would not want to compromise your liberty in the future following your release from prison by returning your former lifestyle.
[121]Can you please stand. Heath James Matehaere:
(i)On the charge of causing grievous bodily harm with intent to injure, you are sentenced to three years and eleven months’ imprisonment.
(ii)On the charge of injuring with intent to injure, you are sentenced to 14 months’ imprisonment.
(iii)On the charge of assault with intent to injure, you are sentenced to eight months’ imprisonment.
[122]All sentences are to be served concurrently.
[123]You may stand down.
Miguel Moagutuuli
[124] On your behalf, Mr George seeks further deductions to reflect your background, your mental health, rehabilitation, the impact of incarceration on your child and the time you have spent on EM bail. I consider it appropriate that your background, mental health, and rehabilitation be considered together.
Background, mental health, and rehabilitation
[125] The pre-sentence report tells me that like your brother, Marcus, you describe growing up in a “really poor family” with a “violent alcohol[lic] father” who would inflict “ruthless beatings” on your “depressed mother”. You spent a proportion of time
in state care, facing trauma which prompted you to run away and experience homelessness. You report having always being around gangsters and that you were drawn to the King Cobras as a consequence of your upbringing.
[126] I have the benefit of a report from forensic psychiatrist, Dr Maxwell Panckhurst. I agree with Mr George that the report doubles as s 27 report.
[127] It too details the domestic violence you both witnessed and were subjected to, along with your brother as a child. You described your father as “controlling, cruel and evil”. You describe suffering your father’s violence for hours, leaving you “unable to walk”. The report details other abuse I do not need to detail. Like your brother, you lived on the streets and went from foster home to foster home.
[128] Dr Panckhurst refers to your history of problems with low mood, suicidality and trauma-related symptoms since adolescence. The medical notes refer to an event that gave rise to your admission to the Kensington Unit in Timaru on 1 January 2015.
[129] You present with a pervasive pattern of negative thoughts and emotions associated with trauma. Dr Panckhurst says that there is extensive evidence to indicate that you meet the criteria for post-traumatic stress disorder (PTSD). He refers to research confirming a long-established link between PTSD and problems with violence. He believes you also meet the criteria for alcohol and cannabis use disorders, antisocial personality disorder and a recurrent major depressive disorder. He assesses you as being a moderate to high risk of future violence if you retain an association with antisocial and gang affiliated peer groups, which he tells me could lead to context that would trigger your trauma symptoms in moments of threat.
[130] As I have indicated the Panckhurst report makes for harrowing reading. He has identified a number of factors in your background that have a causative connection to this offending, particularly being exposed to such extreme violence as a child. You were neglected. That exposure helps explain to me why, as an adult, you have such violent tendencies. It explains why you found solace within a gang.
[131] Your mental health complicates your history and further explains why you might act in a manner that is impulsive and aggressive, you might have demonstrated a complete disregard for the safety of others.
[132] The upside of what I have read, is that you are now very well educated on these issues. You are lucky to have a supportive family, including your mother and father, and you are acutely aware of your responsibilities to your partner and children. It is your family who will play a critical role in your continued rehabilitation.
[133] In your circumstances and having regard to the additional complication of your mental health, I allow a deduction of 25 per cent for your background, mental health and rehabilitation.
Child separation
[134] You seek a further deduction to reflect the effect a sentence of imprisonment will have on your children. The availability of and rationale for a deduction in those circumstances is confirmed by our Supreme Court in Philip v R24 and by the Court of Appeal in Ah Tong v R.25 The focus for the sentencing court is on the interests of the children and importance of children growing up in a familial environment, consistent with the United Nations Convention on the Rights of the Child.
[135] Dr Panckhurst has addressed issues in relation to your parenting. He tells me, as does the other material, you have two children, now aged 5 and 3. Your partner told Dr Panckhurst that you are a caring and supportive partner and an “awesome dad”. Prior to your custodial remand you, without fail, had the care of your children each Friday to Sunday and you were helping out with various tasks during the week. Your partner particularly highlights the importance of your role in parenting your son, and his particular needs that I do not need to detail. Your partner reports that you and your son have a very strong bond and she has noticed an increase in his defiance in your absence. The report talks about challenges that your family has encountered,
24 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
25 Ah Tong v R [2024] NZCA 144 at [13].
particularly having your son engage with you while you are serving a sentence of imprisonment and communication is primarily via audio visual link.
[136] Dr Panckhurst identifies the specific vulnerabilities of your son and the role that parenting is likely to play in your ongoing rehabilitation. Your role as a father is described as instrumental to the significant positive changes you have made in your life in the last 18 months. I am also conscious of the challenges that I have read about that your partner is currently facing.
[137] In those circumstances I allow a further discrete deduction to reflect separation from your child and family of 10 per cent.
Time on EM bail
[138] You seek a deduction for the time you have spent on EM bail. As I have said, the Sentencing Act requires the Court to take into account that factor when fixing sentence. The relevant considerations for the Court are the time that a defendant spent on EM bail, the restrictions the defendant faced, and compliance. As observed by the Court of Appeal in C v R, the credit allowed generally ranges from 30 to 50 per cent of the time spent on EM bail.26
[139] Miguel, you were on EM bail for about 19 months. During that time there were a number of incidents of you acting outside the conditions of EM bail. That included unapproved absences and unapproved stops. Your compliance generally was poor and ultimately, in December last year your EM bail was revoked. It is because of your poor history of compliance on EM bail you are assessed as unsuitable for an electronically monitored sentence.
[140] I accept that because of the length of time you were subject to EM bail, a deduction remains appropriate, but reflecting your poor compliance, that must be modest. I allow a deduction of five months.
26 C v R [2023] NZCA 99 at [41].
[141] That leads to a total deduction for personal factors for you, Miguel, of 50 per cent, with a further five-month deduction, leading to an end sentence I fix at two years and three months’ imprisonment.
[142] As I said to Mr Matehaere just a few minutes ago, I hope this sentencing marks the end of your gangster lifestyle and that you too are sincere in your expressed motivation to change. I think of all the material I have read, this particular line from your partner encapsulates where each of you are at, when she says, “the generational curses stop here”.
[143]Miguel, will you please stand.
(i)On the charge of causing grievous bodily harm with intent to injure, you are sentenced to two years and three months’ imprisonment.
(ii)On the charge of injuring with intent to injure, you are sentenced to 14 months’ imprisonment.
(iii)On the charge of assault with intent to injure, you are sentenced to eight months’ imprisonment.
(iv)On the charge of assault, you are sentenced to five months’ imprisonment.
(v)On the charge of failing to carry out your obligations in relation to a computer search, you are sentenced to one month’s imprisonment.
(vi)On the charges of unlawfully possessing firearm parts and unlawfully possessing ammunition, you are convicted and discharged.
(vii)I make an order for the destruction of the firearm parts and ammunition seized by the police.
[144]All sentences are to be served concurrently.
[145]You may stand down.
[146] I make a suppression order in relation to paragraph 10 of Dr Panckhurst’s report and I confirm that report will not be released other than by way of order of this Court.
Marcus Moagutuuli
[147] On your behalf, Mr Cook seeks further deductions to reflect matters set out in the s 27 report, your potential for rehabilitation, the impact of your imprisonment on your children and partner, and for time you have spent on bail simpliciter subject to a curfew.
[148] Again, I consider it appropriate to address your background and rehabilitative prospects together.
Background and rehabilitation
[149] Not surprisingly your pre-sentence and s 27 reports tell me the very same sad and distressing story I have read and summarised in relation to your brother. The pre-sentence report speaks to your deeply troubled upbringing with frequent exposure to family violence. You ended up lived on the streets. You connected with gang members from a very young age. You told the report writer that the King Cobras “were there for people” and you looked up to them as a product of the system that they were against. Despite this, you say you have not been involved with the gang for three years now.
[150] Like the others Marcus, your s 27 report is a very difficult read. It provides real insight into your upbringing.
[151] It tells me about your parents immigrating from Samoa who were unable to find gainful employment. That in itself gave rise to poverty. I am told there was no electricity in the home. Your family often went without food. You had a violent father.
He was violent towards your mother and towards the four children including you and Miguel. Your mother suffered from depression. She was absent from the family for periods. The implications of that for your family were severe.
[152] As a result of the financial deprivation, you resorted to antisocial behaviour as a young person beginning with stealing to access food.
[153] As well as growing up in a household where violence and substance abuse was prevalent, you faced significant bullying and racism. There were few Samoan families in the area where you lived. You often responded with violence. You developed a ‘fight to survive’ mentality. That led to your early engagement with the police and ultimately led to you being dislocated from your family and taken into state care.
[154] After your early offending, you were placed in a youth justice residence. That is described as something of a breeding ground for developing antisocial associates. From there, you began abusing substances and you formed attachment with what is described as a largely Pasifika gang, that is the King Cobras, of which you remain a patched member.
[155] In summary the report outlines the very sad trajectory of your life and your subsequent choices that you have made. As with your brother, and indeed, Mr Matehaere and Mr Faaiva, I accept that exposure to violence at a very young age coupled with general deprivation that you suffered as a child is what led you to take solace in gangs. It is what led you to abusing drugs and alcohol. It is what has led to you committing offences of violence. I accept you have suffered significant social, cultural and economic deprivation. Those factors from your past have a causal connection to your offending, such that they are appropriately recognised in fixing your sentence.
[156] Again though Marcus, it is reassuring that you have got such strong family support and in particular a stable relationship, a first child for you to focus your interests on and a career interest that you have, providing you with great motivation to shift your focus to your family.
[157] I allow a deduction of 20 per cent for your background factors and rehabilitative prospects.
Child separation
[158] The material filed by Mr Cook on your behalf identifies the challenges your partner faces within the family home in your absence. He seeks a further deduction to reflect the challenges that face them and the impact of separation from your child and partner. I have read the letter from a social worker, Ms Malan. I have read a really thoughtful letter that your partner has written to me. You have a 19-month-old son, a son who was born while you were on bail. That, more than anything, perhaps reflects the shift for you in your life and your priorities since this offending. You are now in a stable relationship, and I infer, freeing yourself from the shackles of a gang so you can focus on your family. I acknowledge that your relationship with your son, such a young son, who is at such a critical developmental stage is being negatively impacted by your custodial remand and causing him a great deal of confusion and uncertainty.
[159] I allow a deduction to recognise the impact of a sentence of imprisonment on your son and partner at five per cent.
Time on EM bail
[160] You seek a credit for time spent on bail. Prior to pleading guilty you had been on bail simpliciter with a curfew. You were on bail for nearly three years. During that time there was one breach. As I have indicated to Mr Matehaere, the Sentencing Act does not prescribe that a Court consider a sentence deduction for time spent on bail simpliciter, even when there are restrictive conditions.
[161] I adopt the same approach I took for Mr Matehaere that notwithstanding the single breach, I allow you a deduction of three months.
[162]Marcus Moagutuuli, will you please stand.
(i)On the charge of causing grievous bodily harm with intent to injure, you are sentenced to two years and five months’ imprisonment.
(ii)On the charge of injuring with intent to injure, you are sentenced to 14 months’ imprisonment.
(iii)On the charge of assault with intent to injure, you are sentenced to eight months’ imprisonment.
(iv)On the charge of assault, you are sentenced to five months’ imprisonment.
[163]All sentences are to be served concurrently.
[164]You may stand down.
Junior Faaiva
[165] Mr Faaiva, Mr Matthews on your behalf seeks additional deductions to reflect your background as evidenced in a s 27 report, your rehabilitative potential, the impact a sentence of imprisonment will have on your family, and the time you have spent on EM bail.
[166]I adopt the same approach I have taken with your co-defendants.
Background and rehabilitation
[167] Your s 27 report tells me your family emigrated to New Zealand when you were 10 from Samoa. For you that was a culture shock. You did not speak English. Your family, too, were described as poverty-stricken on arrival, furnishing your home with furniture discarded on the streets. Your father, too, was a violent man and a heavy drinker. When your family moved to Christchurch you began shoplifting for food. You began truanting from school. The family violence that you had endured continued. You recall being badly physically injured at the hands of your father.
[168] Notwithstanding the challenges you faced, and to your credit, you acquired NCEA Level 1. But at the age 16 or 17, you left school and started working. You say your parents took most of your wages, leaving you without money. You left home. You joined a gang. You say you had nowhere else to go. You report that you then started taking recreational drugs and smoking methamphetamine. It was your abuse of methamphetamine that led you to commit more serious offences.
[169] At the age of 20, you became a father to your daughter. Two years later you and your partner had a son. By then, you describe your methamphetamine addiction as spiralling out of control. You joined the King Cobras when you were 23, eight years ago. You are now 31.
[170] In the lead up to the offending that occurred in March 2021, you had been smoking methamphetamine for several days and drinking heavily.
[171] You say that since your arrest, you have been methamphetamine free. You report being committed to alcohol and drug rehabilitation. You report to being committed to concentrating on your family moving forward. You describe yourself as being in the process of leaving the gang.
[172] The factors that are seen as contributing to your offending include the normalisation of violence, socio-economic deprivation, limited education, gang connections and methamphetamine addiction.
[173] That picture from your s 27 report and the factors identified as relevant to your offending strike as an all too familiar picture that I have been confronted with this morning. What I have said in relation to the other defendants applies equally to you. I accept that it was your background that led you on a path to the King Cobras, that led you on a path to drug abuse, that led to you on a path ultimately to this offending. I am satisfied there is a clear causal connection between your past and what happened.
[174] To your credit, you have taken positive steps towards rehabilitation. You have been in employment and you are well regarded in that employment. You enjoy strong
family support. You have talked about disconnecting from the gang, having your gang tattoos removed. I encourage you to do so.
[175] As with the others, I consider a generous discount, which I fix at 20 per cent being appropriate to reflect your background and your rehabilitative potential.
Child separation
[176] You also seek a deduction to reflect your separation from your children, that is the impact your sentence of imprisonment is having on all three of your children. I have seen an affidavit that your partner has filed. She describes you as a fantastic role model for your children. She describes your deep love for your children. Your partner describes the children as suffering, having a very hard time since you have been remanded in custody. Your eldest child had been very dependent on you, particularly in relation to school sports where you played a coach role with whatever sport she engaged with. I am told you are the parent who she always felt comfortable to talk to. You described as having been inseparable from your son and having a deep bond with your youngest daughter since she was born. Your partner describes the difficulty that she and the children face being only able to communicate with you through phone calls during your remand at the Otago Corrections Facility.
[177] You have got young and vulnerable children. Your focus needs to be on them. I accept that a modest deduction is appropriate to recognise the impact of the sentence I must impose will have on them. I allow a five per cent deduction.
Time on bail
[178] Finally, I deal with a discrete deduction to reflect the time you have spent on EM bail. You were on EM bail from November 2021 until February 2024. That is some two years and three months. I agree some deduction is called for, but that needs to take into account that throughout an extensive period whilst on EM bail, you were approved absences to allow you to engage in employment and also the fact that you did offend on bail simpliciter shortly before being granted EM bail.
[179] In the circumstances, I allow a deduction of six months, or 25 per cent of the period you spent on EM bail.
[180] Mr Matthews made the submission on your behalf that if I had arrived at a short-term sentence then you should be sentenced to home detention. Mr Faaiva, I have assessed the appropriate sentence to be greater than two years imprisonment, but I say I would not in any event have considered a sentence of home detention to be appropriate to hold you accountable and to give effect to the sentencing purposes of denunciation and deterrence in a case involving such serious group violence.
[181]Junior Faaiva, will you please stand.
(i)On the charge of causing grievous bodily harm with intent to injure, you are sentenced to two years and five months’ imprisonment.
(ii)On the charge of injuring with intent to injure, you are sentenced to 14 months’ imprisonment.
(iii)On the charge of assault with intent to injure, you are sentenced to eight months’ imprisonment.
(iv)On the charge of assault, you are sentenced to five months’ imprisonment.
[182]All sentences are to be served concurrently.
[183] I make orders for the destruction of the drugs and utensils found at your address.
[184]You may stand down.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
T D Clee, Barrister, Christchurch
D J Matthews, Barrister, Christchurch A J Bailey, Barrister, Christchurch
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