R v Moananui
[2021] NZHC 1723
•12 July 2021
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2019-054-3419
[2021] NZHC 1723
THE QUEEN v
QUENTIN JOSEPH MOANANUI JEREMIAH SUA MARIOTA SUA
Hearing: 9 July 2021 Counsel:
D R Davies and J J Harvey for the Crown
Q Moananui self-represented and P H Surridge as amicus curiae C Tennet and M Jaquiery for Mr J Sua
L P F Lafferty and S Jefferson for Mr M Sua
Sentencing Notes:
12 July 2021
SENTENCING OF CULL J
[1] Jeremiah Su’a, Mariota Su’a and Quentin Moananui, I am about to sentence each of you. While I read the sentencing you may sit down, and I will ask you to stand again at the end when I formally sentence you.1
[2] A jury has found each of you guilty of Codi Wilkinson’s manslaughter,2 wounding Kyle Rowe with intent to cause grievous bodily harm,3 and participation in
1 This is a record of the oral sentencing delivered in open court. There is a deletion of two sentences containing personal information of one of the defendants at the request of his Counsel. There has been some punctuation inserted for sense and grammar, and/or deletion of repetitious words.
2 Crimes Act 1961, ss 160(2)(a), 171, 177 and 66(2); maximum penalty life imprisonment.
3 Section 188; maximum penalty 14 years’ imprisonment.
R v SUA [2021] NZHC 1723 [12 July 2021]
an organised criminal group.4 Mr Moananui, you have also been found guilty of two charges of kidnapping.5
[3] To avoid confusion as two of you share the same last name, I will refer to all of you by your first names and I do so out of wanting to save confusion, not out of disrespect.
[4] Before I start, I remind the courtroom that there is a final suppression order in place in respect of the other persons who were initially charged and their names are suppressed, so I want to bring that to everybody’s attention at the back of the Court.
[5]In sentencing the three of you, I shall:
(a)set out the background to the offending;
(b)discuss the impact of your offending on the victim’s family (which you actually have heard today);
(c)assess the appropriate starting point for your sentence;
(d)assess any aggravating and mitigating factors that adjust the sentence from the starting point;
(e)consider the appropriateness of imposing a minimum period of imprisonment; and
(f)issue a stage 1 warning for the serious violent offences.
The facts
[6]I deal first with the facts.
4 Section 98A; maximum penalty 10 years’ imprisonment.
5 Section 209; maximum penalty 14 years’ imprisonment.
[7] Each of you has disputed, in your own ways, the facts as they apply to each of you. It is for the Crown to prove any aggravating facts beyond reasonable doubt. As I was the trial Judge, I am able to make decisions about those matters.6 In sentencing you, I must accept as proven, the facts that are essential to the convictions on which you have been found guilty.7
[8] Jeremiah is the President of the Manawatu chapter of the Mongrel Mob Aotearoa. Mariota and Quentin contest that they are not patched Mongrel Mob members. However, it is plain they are closely associated with this chapter of the Mongrel Mob. Codi Wilkinson and Kyle Rowe, the victims of this offending, were patched junior members of that Mongrel Mob chapter. I am going to refer to them as Codi and Kyle, and by doing so I mean no disrespect.
[9] On 10 September, Codi and Kyle decided to rob Mr X in Bunnythorpe. Fully masked and armed with a firearm and a baseball bat, they entered his home, smashed his leg with the baseball bat, taking several thousand dollars and several ounces of methamphetamine from him. Mr X was a long-term friend of both Jeremiah and Mariota.
[10] Later that evening, Jerimiah confronted Codi and Kyle about their involvement in the robbery. They lied to him about it, maintaining they were not involved.
[11] Mariota went to visit Mr X’s address in the early hours of 11 and 12 September and after spending some hours reviewing CCTV footage with him, Mariota identified Codi and Kyle by the car that was used to commit the robbery, which Jeremiah had loaned to Codi’s girlfriend, Krystal Hewitt.
[12] From that discovery, Jeremiah and Mariota formed a plan during the day of 12 September. This plan was to inflict serious violence with weapons to punish Codi and Kyle; to de-patch them; take the proceeds of the robbery from them and take them to Bunnythorpe, to show Mr X that they had been punished. To undertake that plan, they recruited assistance, one of whom was Quentin. After texts on that day, Mariota
6 R v Madams [2017] NZHC 81 at [86].
7 Sentencing Act 2002, s 24(1)(b).
and Jeremiah met at a motel to discuss the plan and Quentin spent the late afternoon or early evening trying to locate the whereabouts of Kyle Rowe. There is a contest by Quentin that he was looking for Kyle for an unrelated car matter as the texts show from the day before. However, text messages in the evening on 12 September indicate that Quentin was driving with another associate in the car, asking for Kyle’s whereabouts, and those texts were from another witness. I find those texts support the inference that I consider the jury drew, that Quentin joined this plan in the late afternoon of 12 September.
[13] At around 8:20 pm, Jeremiah, Mariota and two others were part of a group that arrived at a service station in two cars, before driving in a convoy to Ashurst. Quentin was picked up along the way. The cars drove to Codi’s girlfriend Krystal Hewitt’s address, where Codi and Kyle were at the time.
[14] I have listened, carefully to counsel’s submissions on the issue of weapons, but I find, consistent with the jury’s verdicts, that to carry out the common purpose, there were weapons in the cars in that convoy. They included a tomahawk, an axe, a hammer and a machete. These were weapons that were not known to Krystal Hewitt and from the events that occurred had to have been brought in the cars.
[15] On arrival in Ashhurst, Quentin knocked on Krystal’s door and asked Codi if he and Kyle would come outside for a discussion. Codi and Kyle walked out onto the driveway to the shed at the back of the property. They were immediately attacked with weapons. The Crown described it as an ambush. I accept that as an accurate description. It began in the shed, down the driveway and continued on to the street front, both outside Krystal Hewitt’s property, and in front of the neighbouring property where the victims’ blood has respectively been found. The Crown could not prove who inflicted the wounds or slashed both victims. The violence was inflicted in less than 5 minutes and was severe and brutal.
[16] After the infliction of these assaults, Mariota went to the door of the address and demanded that Krystal hand over Codi’s patch and belt bag. Jeremiah later took her keys and wallet.
[17] Immediately after the violence, Codi was placed in the boot of Kyle’s Ford Falcon. Kyle was forced into the front passenger seat. The Ford Falcon was then driven to Bunnythorpe, to the address of Mr X, the victim of the 10 September robbery. From the jury’s verdict, it appears to me that they have drawn the inference from the evidence, particularly subsequent to the offending that Quentin was the driver of the vehicle with the two victims in it. That evidence relates to his possession and control of that Falcon after the offending; the blood of the victims were found in it; and it was also the vehicle that he asked his friend to do paintwork on. There is evidence that he was seen dropping the vehicle off at another associate’s address, but the car described was a different one. Nevertheless, that associate was then seen driving it some three days later. It was open to the jury to either accept or reject the description as being wrong or right. It appears to me that they found that Mr Moananui was the driver.
[18] Upon arriving at the address in Bunnythorpe, Kyle was able to escape from the car. He ran away and found a member of the public who drove him to the hospital. We do not know how Codi got out of the car, or how he came to where he was later found. Codi died in shrubbery at a property near the address of Mr X. He was found 15 days later.
[19] Following the attack and the drive to Bunnythorpe, the three of you and the two others at the scene, reconvened at another address occupied by Codi’s former partner and her son and consumed beers and pizza.
[20] The pathologist found that Codi died of blood loss by sharp force injury. She described 17 separate sites of injury on his body. There were six sharp force injuries: two to the back of his head, one to his shoulder blade to the bone, one to his left upper arm cutting into both sides of the back of his arm bone, one to his right forearm and one to his right ankle into the bone. These injuries were grave, with some reaching the bone. They caused significant bleeding. His nose was broken, he had scratch injuries to his wrist, the back of his hand, abrasions to his hands and injuries to his knees, consistent with collapsing. Codi died later from substantial blood loss from these wounds.
[21] It is clear that the jury accepted the pathologist’s evidence that the cause of Codi’s death was blood loss from sharp force injuries. The jury clearly rejected the proposition that Codi had died from a methamphetamine overdose.
[22] Kyle likewise sustained sharp force injuries. He had a large laceration of 100 mm to the top of his head making his skull visible, as well as swelling and bruising across his whole body, particularly his head and abdomen. He had an open wound to his left middle finger, requiring medical attention as well.
[23] The Crown’s case here was not based on the identification of the principal offender/s or who inflicted these injuries. The Crown brought its case on the basis that the three of you were parties to a common purpose and the jury accepted on the evidence that the three of you participated in the common purpose to inflict serious violence to punish Codi and Kyle with weapons, by their returning the guilty verdicts.
[24] I say further, though, that in reaching its verdict on manslaughter, it is clear the jury found you did not subjectively appreciate the likelihood of death. This is a submission of the Crown, and I accept that.
Victim impact statements
[25] I want to turn then, to the effect that this has had on Codi’s family. The Court, as you know, has heard victim impact statements from several of Codi Wilkinson’s loved ones and whānau. He is described as being whānau-orientated with a big heart, and a caring son, brother, cousin and father. They describe the immense dread they faced in the many days in which Codi was missing and the grief which they faced when he was found, and it was discovered the extent of violence inflicted upon him. They tell of the particular loss his nine-year-old son is experiencing and the whānau’s ongoing grief.
[26] The trial process was undeniably gruelling for his family who attended court most, if not all, days. Today, his whānau have expressed their grief and the ongoing effects of anxiety, depression and in one case, ongoing fear and distrust. A number of you are in counselling to deal with the consequences of this offending. Codi’s killing has inevitably had, and will continue to have, a long-lasting impact on his loved ones.
His grandfather describes it as “a life sentence” for all of them. I recognise that no sentence I could impose could ever account for the loss that they have experienced.
Sentencing Purpose and Principles
[27] In sentencing you all, I must bear in mind the purposes and principles of the Sentencing Act 2002.8 Relevant sentencing purposes in this case include:
(a)holding you accountable and responsible for the harm done to the victims and the community;
(b)to promote in you a sense of responsibility for and an acknowledgement of that harm;
(c)to provide for the interests of the victims’ families;
(d)to denounce your conduct;
(e)to deter you and others from committing similar offences;
(f)to protect the community from you; and
(g)to assist in your rehabilitation and reintegration.
[28] Your sentence should be sufficient to denounce your conduct and protect the community. I must consider the gravity and seriousness of your offending and take into account its effect on the victims. The sentence is to be the “least restrictive” appropriate in the circumstances, but consistent with appropriate sentencing levels. I am required to impose the maximum penalty described for the offence if the offending is within the most serious of cases. Similarly, a sentence close to the maximum is required if the offending is “near to the most serious of cases”. These purposes and principles of sentencings have no ranking.9
8 Sentencing Act 2002, ss 7 and 8.
9 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [4]; and Hessell v R [2010] NZSC 135,
[2011] 1 NZLR 607 at [37].
Approach to sentencing
Manslaughter
[29] Manslaughter is the lead offending in this case. It carries a maximum penalty of life imprisonment. Due to the wide range of situations and levels of culpability encompassed in the charge, as a number of a defence counsel have submitted, there is no tariff case for manslaughter.10 However, in manslaughter cases such as this, where serious violence was a foreseeable outcome, the Court will conduct a comparative analysis, looking at both similar cases and how the offending sits with the serious violence guidelines provided in the tariff case of Taueki.11 Emphasis should be placed on comparable cases, with the Taueki guidelines acting as a useful cross check, although I use it with caution.12
[30] The offending arose out of a common plan shared by each of you. The aggravating features as they apply to each of you are largely the same, albeit with some differences that must be accounted for. I will first consider a general starting point for manslaughter, referring to the relevant cases and the guidelines. I will then sentence you each in turn, assessing the starting point for each of you given your involvement and the factors that affect your individual sentence.
[31] I accept that Crown’s submission that there are seven aggravating features in the present offending. These are:
(a)Pre-meditation: this was an instance of pre-meditated violence. It was planned that a group of people would support and participate in the attack. The planning also involved taking two vehicles to the address, and as I have found, taking weapons with you.
(b)Multiple offenders: all three of you have been convicted for sharing a common purpose to commit serious violence against Codi and Kyle, and to assist each other to reach that common purpose.
10 R v Hayden [2020] NZHC 966.
11 R v Tai [2010] NZCA 598; Pahau v R [2011] NZCA 147; and R v Taueki [2005] 3 NZLR 372 (CA).
12 Pokai v R [2014] NZCA 356 at [25]; and Murray v R [2013] NZCA 177 at [27].
(c)Use of weapons: a sharp force weapon, in the nature of a machete, was used to inflict the injuries on Codi. Blunt force injuries were also inflicted.
(d)Extreme violence: Codi suffered repeated violence in an ambush style attack.
(e)Serious injuries: the extent of Codi’s injuries was severe. He died of blood loss caused by sharp force injuries.
(f)Gang Warfare: The Crown have described this as intra-gang violence which occurred at a residential home. This was a planned attack on two young gang members by you three, as senior gang members or associates, to de-patch and punish them for an aggravated robbery which was not authorised by the Chapter.
(g)Vigilante action: this attack was orchestrated as an act of retribution against a robbery committed by the victims, not only to get back the spoils of the robbery, but, I also consider, to seek retribution on behalf of Mr X, a friend of the Sua brothers.
[32] With these aggravating factors, in my view the offending falls into band three of the Taueki bands.13 This suggests a starting point between nine- and 14-years’ imprisonment.
[33] I turn to comparable cases. Starting points of 10 to 15 years’ imprisonment have been adopted in manslaughter cases involving serious violence.14 The cases where a defendant has been convicted of manslaughter in circumstances where the offending is close to murder have usually resulted in a starting point between 13 to 15 years’ imprisonment.15
13 At [40].
14 Griffin v R [2019] NZCA 422; R v Neketai [2016] NZCA 174 at [6]; and Waipuka v R [2013] NZCA 661 at [35].
15 Waiwatai v R [2014] NZHC 2374 at [36].
[34] The Crown have referred me to the case of Pahau, and you would have heard other defence counsel referring to it.16 In that case, a group of gang members became aware that a group of an opposing gang were attending a party. One of the offenders called various gang members together to respond to their presence. The group drove to the party together with weapons in the car. They pursued the group. One defendant stabbed the victim. He was convicted of murder. The other defendants were convicted of manslaughter. Starting points of 13 years’ imprisonment for manslaughter against the organiser and leader of the attack, and 10 years’ imprisonment for the members of the group who pursued the victim were upheld by the Court of Appeal.
[35] The Crown submit the present case to be more serious than this example, due to a greater level of premeditation, and the extent of the violence inflicted. In that case, which involved a stabbing, there was a conviction for murder, and I bear that in mind. Here, the jury did not find that any of you had murderous intent in this case. The manslaughter verdict requires me to accept that death was not a foreseen consequence of the attack planned by you.
[36] I refer to three further comparable cases involving a planned attack resulting in manslaughter.
[37] R v Madams involved a group of defendants that sought revenge after a confrontation at the victim’s house had gone wrong earlier that evening.17 The group of defendants had left the victim’s house after that confrontation and regrouped with an extra member. They returned to the property with a number of weapons in the car, including crowbars, as steel bar and a metal pole. Two of the defendants were convicted of murder, for striking at the victim’s head with a steel bar, multiple times. The other three defendants were convicted of manslaughter.
[38] Each received different starting points, depending on their role. One of defendants, described as the instigator and of “influence over the others” received a starting point of nine years. This was informed by the Judge’s finding that she could not be sure any blows were inflicted by the defendant on the victim. A second
16 Pahau v R above n 11.
17 R v Madams, above n 6.
defendant who joined the plan to carry out the assault after it was formulated and assaulted the victim, received a starting point of seven years — two years less than the planner in that case. He was described as having a “peripheral role” in the offending. The blow inflicted by the defendant was mitigated by an element of defence, as the victim was at this point coming towards him with a spade.
[39] In another case, the Court of Appeal upheld a starting point of 12 years for the leader of a group plan to carry out an aggravated robbery with firearms, in which a manslaughter resulted.18 The defendant was described as the “instrumental leader,” responsible for driving the group to the place of the attack and supplying firearms and ammunition.19
[40] Finally, I refer to a recent case in which two offenders engaged in a common plan to break into the victim’s home and obtain money and methamphetamine.20 The two severely attacked the victim. He was hog-tied, with his hands and feet tied behind his back, and suffered 26 abrasions and eight contusions to his head, chest, back, arms, legs and hands, including a fracture to his nose and left-eye socket. In this case, the Judge could not be sure that weapons were used. It was also unclear who was responsible for inflicting what injuries on the victim. A starting point of 12 years’ imprisonment was adopted for both of the defendants on that basis. This was upheld by the Court of Appeal.
JEREMIAH
[41]Jeremiah, I start with you.
Starting point
[42] The Crown submits a starting point of 13–14 years would be appropriate for your manslaughter conviction.
18 Griffin v R, above n 14. Aggravating factors: use of weapons, level of violence, premeditation, multiple offenders, home invasion, victim impact, detention of partner.
19 At [22].
20 R v Fatu [2020] NZHC 1893; and R v Ekeroma [2021] NZCA 250.
[43] Jeremiah, you are the President of the Mongrel Mob Aotearoa Manawatu Chapter. You are described by Mariota as “the King” and that if you want something done, you decide. I have given careful consideration to both the Crown submissions and your counsel submissions.
[44] I find that both you and your brother were the genesis of the common plan to commit serious violence with weapons against Codi and Kyle. In your police interview, you told the detective that “the bill” was on you for what happened to Mr X. You formulated the plan with Mariota and met with him at the motel on 12 September prior to the attack. I am satisfied that your role in the offending was instrumental to the ultimate outcome, but I do not see you as being the instigator alone.
[45] I consider a starting point of 12 years would be appropriate if I were sentencing you just on the manslaughter charge. This is consistent with the cases referred to above and accurately reflects your role in the offending. It also reflects the circumstances of the offending, particularly the callousness of the attack, its premeditated nature, that it was organised as a group attack, and the repeated and severe violence inflicted on Codi, with its ultimately fatal consequences done in a very short space of time: less than five minutes. I come to this starting point by also taking into account the guidance of the Court of Appeal that gang confrontation with serious lawlessness, and cases where the aggravating factors are particularly severe, such as of repetitive violence, require a stern response.21 Cross-checking this against the Taueki guidelines, this falls towards the top end of band three of the guidelines. In my view, this accurately reflects the high number of seriously aggravating factors present.
[46] However, there is the further serious charge arising from the same set of facts, namely, the wounding of Kyle with intent to cause grievous bodily harm. The Crown suggest a starting point of nine to 11 years should be added to a starting point of 13– 14 years and adjusted in totality to 17 years. I consider that disproportionate, particularly here where the offending arises from the same set of facts and the same aggravating features. I consider an uplift should be added to the manslaughter charge
21 R v Challis [2008] NZCA 470; and R v Rapira [2003] NZLR 794 (CA) at [132].
starting point for the wounding of Kyle Rowe, with intention to cause grievous bodily harm.
[47] I add an uplift of three years. This reflects the severity of the attack on Kyle, which has left him with ongoing difficulties and impairment.
[48]I adopt a starting point of 15 years.
Personal Aggravating Factors
[49] The Crown seek a discrete uplift of 12–18 months imprisonment on your starting point, due to both your history of drug offending (receiving three sentences of imprisonment since 2000 for such), and that at the time of the offending, you were on post-detention conditions for the supply of methamphetamine. The Crown say that your current offending cannot properly be divorced from your involvement in organised crime and the drug trade. I infer this is due to the victim, Mr X, of the 10 September robbery being known to you through the drug underworld.
[50] I consider an uplift for criminal history is inappropriate in this case. While the offending occurred with a drug-related sub context, previous convictions for the supply of drugs are disparate from the current offending, which is a serious violence offence. However, a discrete uplift for the fact the offending occurred while you were on post detention conditions, including conditions of non-contact with gang members (although that is somewhat compromised, as your counsel has pointed out) is appropriate. I impose a discrete uplift of six months on this basis.
Personal Mitigating Factors
[51] I turn now to your personal circumstances and any factors that may be relevant in mitigating your sentence length. I have received a pre-sentence report, a s 27 cultural report and alcohol and drug assessment to assist in this.
[52] You are 50 years old. You are a first-generation New Zealand born Samoan. As you grew up you felt disenfranchised from both your Samoan and New Zealand identities, not feeling Samoan enough, but also an outsider in New Zealand. Your s 27
report notes that this paradox of identity is experienced by many New Zealand-born Samoans and can lead to an insecure sense of self-identity or belonging.
[53] Your father was an abusive alcoholic. He would beat you, your siblings, and your mother. You recall getting a lot of beatings, often with weapons, including, on two occasions, with a metal bar and a trike. The relationship between you two was strained, and you say were never sure if your father actually loved you.
[54] You left school at age 14 and shortly after were introduced to the Mongrel Mob. You say you felt totally accepted by them, for the first time in your life. You began prospecting at age 16 and were patched by 19 years old. Your recognised ability to build relationships easily and communicate effectively led you to move steadily through the ranks of the Mongrel Mob to your current position as president of the Aotearoa Manawatu chapter.
[55] Your alcohol and drug assessment diagnoses you with moderate binge-type alcohol use disorder, mild cannabis use disorder and stimulant use disorder, stemming from your earlier use. You have been in sustained remission for your alcohol and stimulant use and are in remission for your cannabis use in a controlled environment. You have reported being been fully abstinent of all drugs except nicotine since 2019.
[56] Your criminal history spans 40 years and approximately 63 convictions. You have been out of formal work for most of your adult years, surviving on the unemployment benefit which you have supplemented in the past by selling drugs. You say that during this time you thought you were getting on the right path. You wanted to get off the benefit, work and spend more time with your mokopuna. You had started working with a friend to set up a car mechanics business. However, you say you received no help when you came out.
[57] You say your primary focus now is to be a good granddad for your moko and build positive relationships with your children and grandchildren, to leave them some good memories and a home. You have been working hard to rebuild these relationships that have been damaged in the past. You also want to return to Samoa and reconnect with your culture. Your partner of the last year and a half is described
as a pro-social influence on you, with no gang connections. She is prepared to stand by you throughout your sentence.
[58] You continue to deny your offending, both to the cultural report and pre- sentence report writer. You also told the author of the pre-sentence report that you are “against violence”. However, this is contradicted by your confirmation in the same report that you use threats of violence in the form of a fight “out back” to manage the behaviour of gang members when they do not listen to you.
[59] The s 27 report and the alcohol and drug assessment recommend that you engage in counselling, receive mentoring and further education, and be supported to avoid criminal connections in the Manawatu area when released from prison. I also urge you to undertake those courses if offered to you in prison, and I trust they will be.
Discounts
Section 27 factors
[60] Any social, cultural or economic deprivation that has a demonstrative nexus with the offending, may be a mitigating factor at sentencing.22 I consider there is a link between your socio-economic deprivation and the current offending. It is evident the circumstances of your upbringing drew you into the gang life, where you found a sense of belonging and excelled. Unfortunately, this has led you into a life of criminal activity.
[61]I consider a discount of 15 per cent is appropriate in the circumstances.
MARIOTA
Starting Point
[62] I now turn to you, Mariota. You also had a crucial role in organising this attack. You have been a senior member of the Mongrel Mob and in this offending was Jeremiah’s right-hand man. It was you that discovered that Codi and Kyle had been
22 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].
lying about their involvement in the robbery. You reviewed the CCTV footage with Mr X. You texted Jeremiah about that and you met with Jeremiah at the motel prior to the attack. It is clear to me in the transcripts of your phone calls in which you refer to the fact that Jeremiah was “hurting to the max,” that you were talking about the robbery by Codi and Kyle and you would “rather go and do whatever” than let your brother “put blood on his hands”. You were integrally involved in seeking retribution for what had happened to your “uncle”, as you called Mr X.
[63] The Crown submits a starting point of 13–14 years for the leading manslaughter charge is appropriate for you. Your counsel suggests nine years as a starting point, with reference to the starting point of the planner in Madams.23
[64] I consider the level of violence in this case and your role in it, is distinguishable from Madams. Although the defendant in Madams planned the attack, he was not present when the critical blows were inflicted. Here the infliction of sharp force wounds as described in the medical evidence is more extreme than that inflicted in Madams. You were intrinsically involved not only in the formulation of the plan but seeing that it was carried out. You went in the convoy of cars to Krystal Hewitt’s place in Ashhurst and you were described by her as being at the scene. You were the one who demanded Codi’s patch and bag after the attack from her.
[65] I consider a 12-year starting point is also appropriate for you. I make no distinction between you and Jeremiah as I consider you were both responsible for the formation of the plan and it coming into fruition. It is the common purpose or plan that underlay all of the charges and the ultimate verdicts as I consider them.
[66] For the same reasons as for Jeremiah, I uplift the starting point by three years for the wounding with intent to cause grievous bodily harm conviction.
Personal Aggravating Factors
[67] There are no personal aggravating factors to your offending. While you have a criminal history, this is not connected to the current offending, with the current
23 R v Madams, above n 6.
offending being a marked escalation in offending for you. No uplift is sought by the Crown, and I do not impose one. I now turn to your personal mitigating factors.
Personal Mitigating Factors
[68]A pre-sentence report and s 27 report have been prepared for you.
[69] You and your brother naturally share the same background. aspects of it do not need to be repeated. You, too, are a New Zealand born Samoan. You have been alienated from your Samoan heritage and do not identify with your Samoan culture.
[70] You experienced significant socio-economic deprivation growing up. You say there was often not enough food on the table, and you had to help your family earn money at an early age by picking fruit and vegetables in the weekends and holidays. This required you to sacrifice opportunities available to you at an early age, including representative rugby, which you describe as the one thing you were really good at.
[71] You were also subject to extensive physical abuse from your father, and your counsel has referred to this.
[72] In your early teens you became involved in the gang world. You describe the gang as a “salvation” for you. You say that it was a place you could get easy money, be fed and find a community, and that any “hidings” you received from the gang were nothing compared to that you would receive from your father. Your involvement started with gang members giving you stolen car stereos to sell and you were able to keep the money and grew over time. You became a “prospect” where your role was to manage the Bloods gang, a feeder gang for the Mongrel mob made up of younger members. You received your Mongrel Mob patch for your good management of this gang.
[73] However, your involvement in the gang significantly accelerated your engagement in crime and drug use. The cultural report records that you started to use cannabis in your teens, before experimenting with an array of illicit drugs, including methamphetamine. At times your methamphetamine habit has been so heavy you would stay awake for up to six days at a time. Although you were using
methamphetamine up until your arrest, you do not feel as though you are addicted, and you never have withdrawal symptoms. You have indicated you would be open to a programme to stop your use altogether.
[74] Both reports note that you claim to no longer be a patched member of the Mongrel Mob. You say you left the gang four years ago, giving away your patches on two occasions to other members. However, you admit to still being associated with the gang.
[75] You are now aged 45. Your pre-sentence report records that you have over 44 previous convictions. Your offending history took a more violent turn in the last six years (including assault with intent to injury, two common assault convictions and convictions for wilful damage). The current offending is far more serious than your previous offending. The report concludes that your propensity for violence, attitude and association with a criminal gang and gang lifestyle are all factors that contributed to your offending. You are assessed as being of high risk of reoffending and of high risk to others.
Discounts
Section 27 factors
[76] Any social, cultural or economic deprivation that has a demonstrative nexus with the offending, may be a mitigating factor at sentencing.
[77] The socio-economic deprivation you faced growing up, alongside early exposure to violence led you to seek solace in the gang world, which then sent you down an accelerating path of criminality and violence. It is clearly your connection to the gang world that has led you to be a part of this offending, intimately connected to the inner workings of the gang and its hierarchy.
[78] Your Counsel submits a 15 per cent discount is available for you on these factors. The Crown acknowledges some limited discount could be awarded.
[79]I accept a 15 per cent discount is appropriate.
Remorse
[80] Your Counsel has addressed me about remorse, and accepts that this does not and would not normally justify a discount. You have expressed some remorse to the pre-sentence report writer, stating you wished you were not present altogether, and that you are regretful of the pain caused to the parents of the victims of the offending, whom you saw attending the trial daily. You have offered to undertake restorative justice with the victim’s family.
[81] I am not going to give you any discount for that, but I do want it recorded in these notes of sentencing. As the Supreme Court has noted, sentencing judges can be sceptical of expressions of remorse that come well after the event and at sentencing.24 Your Counsel has responsibly asked that your remorse be recorded, at the very least.
Result
[82]I sentence you to 12 years and nine months’ imprisonment.
QUENTIN MOANANUI
[83] Quentin, you had a lesser role in the offending. You were not involved in the initial formulation of the plan. You joined the plan after it was formed. The jury clearly accepted the evidence involving you in this plan. You were picked up by the others because you arrived at Krystal Hewitt’s address. The others, who were seen at the service station before proceeding to the Ashhurst address, did not involve you, but it was you that went up to the door and told Codi and Kyle to come outside, where the violent attack ensued. You were seen, by Krystal Hewitt, in the driveway near Kyle after his attack and moving between the cars in the driveway. Krystal Hewitt has described your demeanour as “frantic”. She also describes you leaving in one of two cars with the victims in one of them. Relevant items were found at your address where you stayed after this offending.
[84] Recognising your lesser role, in that you joined the plan after it was formed, the Crown seeks a starting point of 9–11 years for the manslaughter charge.
24 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
Mr Surridge contends for a six-year starting point, on the basis of a case concerning domestic violence.25 I have given consideration to that case, and apart from the reference by Mr Lafferty to [30], which I consider to be very pertinent, I do not consider those facts to be relevant here.
[85] The same aggravating factors apply to you as to your co-offenders. However, the level of pre-meditation on your behalf is lower. I refer to Madams where the defendant, who joined the plan to carry out the assault after it was formed, received a starting point of seven years.26 That was two years lower than the planner in that case. However, the defendant in Madams was in a different position to you. His role was described as peripheral. In my view, that description does not apply to you. You were actively involved in carrying out the plan. As I have already said, the extremity of violence in the current offending is graver than in Madams.
[86] A starting point of 10 years, two years lower than that which I have determined appropriate for your co-offenders (the planners) is appropriate here. This remains within the range of band three offending and is consistent with the case law which recognises defendants with differing culpability should receive different starting points.
[87] This is uplifted by two years for the wounding with intent to cause grievous bodily harm conviction. This uplift also reflects your lower level of culpability than your co-offenders. That takes your starting point to 12 years. You also face two further convictions of kidnapping Codi and Kyle. In light of the totality for the offending which was all part of the common plan, I will not uplift this further. You will receive a concurrent sentence of one year on each charge.
[88]Therefore, I adopt a starting point of 12 years.
Personal Aggravating Factors
[89] There are no personal aggravating factors. The Crown seeks no uplift for your criminal history, as you have no history of violent offending at this level before.
25 R v Bevan [2012] NZHC 2969.
26 R v Madams, above n 6.
Personal Mitigating Factors
[90] I now discuss your personal circumstances, as informed by two s 27 reports and a pre-sentence report provided to the Court. Quentin, you are a 45-year-old Maori tāne. You whakapapa to Ngati Kahungunu of which many of your tūpuna were senior rangatira. Your grandfather was a veteran of the 28th Maori Battalion during the second world war.
[91] You grew up surrounded by socio-economic deprivation. One s 27 report describes your upbringing as disjointed and unstable. Your mother moved to Australia when you were only five. You went with her for a time, however, returned to your father in Hastings and went to school here. You recall him giving you beatings behind closed doors. When you were in your late teenage years, your father began a relationship with a new partner with two children of her own and you fell into the background. You would visit your mother from time to time, but she was also living in difficult circumstances.
[92] Your father also suffered a serious accident when you were young. You ended up having to take care of him when his compensation payments were stopped in error. This is described as having a significant impact on you, as you often took on the role of caring for your father. There was no lifting equipment, special toileting or shower facilities provided for him and no one helping out. Although ACC later rectified this issue by reinstating your fathers ACC entitlements, this state of affairs caused you to significantly lose out on your childhood. Your father would also spend periods of time in hospital, in which you would be sent to stay with his friends or your grandmother.
[93] You describe constantly making friends with a troubled group at school, being in the lower standard classes at school and getting “nothing of an education”. You left school around the age of 15 and began to work, growing squash and weeding squash paddocks. It was during this time you reinforced friendships with various gang members. Like your co-offenders, you found solace in this community and felt these were the only people you could lean on for support. They would show you how to repair cars, cell phones and computer equipment, and gave you money for doing so.
The report concludes that you were never a patched member of the Mongrel Mob and you managed to maintain some independence from the gang.
[94] Your pre-sentence report notes that you have received previous convictions dating back to 1994, predominantly for violence, driving, dishonesty, and defying police authority. It records that your violent offending has “escalated into a repetitive pattern over the years” that will likely worsen if you don’t find a way to resolve your propensity for violence or strategies to become involved in something more positive. You also consistently deny your role in the offending. You are assessed as being at high risk of reoffending and a high risk of harm to others.
[95] The cultural report notes that you do have whanau that would support you in any process of rehabilitation. It says you have the capacity to use these connections and your talents, including a recognised work ethic, to remove yourself from the unhelpful influences in your life. I, too, urge you to undertake counselling, which may be of benefit to you if it is offered to you in prison.
Discounts
Section 27 factors
[96] Mr Surridge submits on your behalf that a discount of 15 to 20 per cent is appropriate for your background. The Crown submit that while your personal background is relevant, any discount applied should be limited.
[97] It is clear that, like your co-offenders, you were drawn into the gang world for the support it provided you, in the face of a dysfunctional upbringing where you had limited cultural and emotional support. Despite not being a member, you clearly have a strong engagement with the gang world and have been a willing participant in gang affairs. Like your co-offenders, I impose a discount of 15 per cent.
Remorse
[98] Mr Surridge, in his written submissions, has suggested a five per cent discount is available for your remorse. I do not accept this is so. No discount for remorse is imposed.
Minimum Period of Imprisonment
[99] The Crown seeks a minimum period of imprisonment of 50 per cent for Mariota and Quentin and for Jeremiah, two-thirds of his end sentence. The Crown submits the minimum period serves the purposes of accountability for harm done, denouncing the conduct, deterring the defendants and other persons from committing the same offences and protecting the community from the offender.
[100] I have already addressed those very principles in imposing these sentences for serious violent offending. I have already canvassed the cases upon which I have taken those sentencing starting points and applied them here. In relation to protection of the community, quite apart from imposing a sentence of imprisonment, that is the role of the Parole Board in its decision to release of any of you on parole. Those matters, in my view, should be addressed at that time.
[101]I do not therefore, impose minimum periods of imprisonment here.
Participation in an organised criminal group
[102] You were all convicted for participation in an organised criminal group. In the circumstances, I will impose a sentence for that charge that will be served concurrently with the charge of manslaughter and the charge of wounding with intent to cause grievous bodily harm.
[103] Each of you will receive a sentence of two years imprisonment to be served concurrently.
Sentence
[104]Jeremiah, Mariota, Quentin, please stand.
[105] Jeremiah, with a 15 per cent discount on your starting point of 15 years and six months’ imprisonment, I am sentencing you to a period of 13 years and two’ months’ imprisonment for the manslaughter and wounding with intent to cause grievous bodily harm convictions. On the participation in an organised criminal group, a sentence of two years is to be served concurrently.
[106] Mariota, with a 15 per cent discount on your starting point of 15 years’ imprisonment, I sentence you to a period of 12 years and nine months’ imprisonment for the manslaughter and wounding with intent to cause grievous bodily harm convictions. On the participation in an organised criminal group, a sentence of two years is to be served concurrently.
[107] Quentin, with a 15 per cent discount on your starting point of 12 years’ imprisonment for the manslaughter and wounding with intent to cause bodily harm convictions, I sentence you to a period of 10 years and two months’ imprisonment. On the participation in an organised criminal group, a sentence of two years is to be served concurrently. For the two kidnapping charges, I impose a sentence of one year each, to be served concurrently.
Strike Warnings
[108] You have each been convicted of serious violence offences that qualify under the Three Strikes Law, in particular, the manslaughter and the wounding with intent to cause grievous bodily harm.
[109] I am giving you a stage 1 warning, and this is a first strike warning in respect of those charges, but for the purposes of record they should be given for the manslaughter charge as the lead charge.
[110] If you are convicted of any further serious violent offence, except murder, after receiving this warning, you will receive a second strike. Any sentence of imprisonment imposed by a Judge for that offence must be served without parole or early release. If you are convicted of a further serious violent offence after that, you will receive a third strike, and in sentencing you, the Judge must impose the maximum penalty for the offence, to be served without parole unless this would be manifestly unjust.
Cull J
Solicitors:
BVA Law, Palmerston North for the Crown Justice Chambers, Petone for Mr J Sua
Leo Lafferty, Napier for Mr M Sua
3
16
0