R v Moeke

[2018] NZHC 1426

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-087-000131

[2018] NZHC 1426

THE QUEEN

v

TUTERANGI MOEKE

Hearing:

14 June 2018

Appearances:

R Jenson for the Crown

S Franklin for the Defendant

Sentence:

14 June 2018

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:

Crown Solicitor, Tauranga S R Franklin, Whakatane

R v MOEKE [2018] NZHC 1426 [14 June 2018]

Introduction

[1]Mr Moeke, you may remain seated until I ask you to stand.

[2]        You appear for sentence today, having pleaded guilty to one charge of rioting.1 The maximum penalty for this offence is one of two years’ imprisonment.2

Relevant facts

[3]        There are two main gangs in the Bay of Plenty – the Mongrel Mob and the Black Power – and there has been considerable conflict between them over the years.

[4]        You are a patched member of the Black Power gang. You are a member of the Outback Blackz chapter which is based in the Eastern Bay of Plenty.

[5]        On the morning of Friday 13 January 2017, members of the Kawerau Mongrel Mob gang were in Whakatane to pick up the body of one of their deceased senior members and to hold a tangi for him. Members of the Black Power gang became aware of the Mongrel Mob’s presence, and they congregated in the same area. Members from both gangs began to provoke and antagonise each other, and the tension between the two groups escalated.

[6]        The police intervened and they endeavoured to broker a truce between senior gang members.

[7]        A large number of Black Power gang members met to discuss their response to the Mongrel Mob tangi. It was agreed that there would be a show of force along the route taken by the tangi procession. At around 11.30 am, 30 to 40 Black Power gang members congregated at the Whakatane bridge in a show of strength. The police allege that you were there. You deny this. Little turns on this dispute, because there was no riot at the bridge.

[8]        Some three hours later, a number of Black Power gang members travelled to a service lane in another part of the Whakatane township. You were in this group. You

1      Crimes Act 1961, s 87(1).

2      Section 87(2).

and your co-offenders armed yourselves with rocks and bottles, and hid in the bushes while you waited to ambush the Mongrel Mob tangi procession when it passed by.

[9]        When the procession arrived, some 20 or so Black Power gang members broke from cover and began throwing rocks and bottles at the Mongrel Mob vehicles which were leading the procession. You were involved in this incident. A member of the Mongrel Mob in one of the vehicles retaliated by firing a series of shotgun blasts at Black Power members. This caused you and your fellow Black Power members to run for cover. Another Mongrel Mob member then drove at speed along the service lane, swerving from side to side in an attempt to run over fleeing members of the Black Power gang.

[10]      The riot to which you have pleaded guilty is the riot which occurred in the service lane incident. Although there was more significant violence in other parts of Whakatane later in the day, there is nothing to link you to that offending, and you were not charged with it.

[11]      You are being sentenced today only for your participation in the riot which occurred in the service lane area.

Pre-sentence report

[12]      You are 22 years old. You are of New Zealand Māori descent and you are currently unemployed. You accept your role in the riot. You told the pre-sentence report writer that you thought you were “going for a fight” and that “everything happened fast”. You said you attended to “support [your] bros” and that you did not consider the consequences. You told the report writer that you are glad that no-one on either side was seriously hurt, but that you would likely make the same decision again if you were required to do so.

[13]      You acknowledged that you feel responsibility to the gang, but that nobody forces you to do what you do not want to do. You did suggest that you might be interested in relocating away from Whakatane, not to sever ties with the gang, but rather in an attempt to stand on your own.

[14]      You have previously completed a number of anger management courses. When the report writer raised with you the possibility of completing further programmes and counselling, you said that you would prefer to be “equipped with life skills and employment rather than attending programmes”, but that you would complete them if you had to.

[15]      You have a lengthy list of previous convictions. You have accumulated a total of some 43 convictions over a period of six years. These include convictions for breach of community based sentences. The report writer considered that you have a limited ability to comply with any further community based sentence.

[16]      The report writer assessed your risk of reoffending as high. He noted that you have an unstructured lifestyle, offending supportive associates, and a propensity to resort to violence. He also considered that you suffer from age-related impulsivity. He recommended a custodial sentence. He also recommended that you should engage with a departmental psychologist to address your pattern of offending and current behaviour.

Submissions

[17]      The Crown submits that the appropriate starting point for your offending is 18 months’ imprisonment. Mr Franklin, on your behalf, submitted that the appropriate starting point is between 12 and 15 months’ imprisonment. Both counsel accepted that you are entitled to credit for your guilty plea. The Crown initially suggested 20 per cent, but before me this morning, Mr Jenson, appearing for the Crown, accepted that 25 per cent is appropriate. That ties in with Mr Franklin’s submission that you are entitled to a 25 per cent discount.

The purposes and principles of sentencing

[18]      In sentencing you, I have considered the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and importantly, in this case, the need to denounce the appalling conduct in which you were involved. Given the offending in issue in this case, I have also been mindful of the need to deter others

from committing the same or similar offences. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels, not only with your co-offenders, but also with similar offenders committing similar offences. I have also been mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.

Analysis

[19]There is no tariff case for offending of this kind.

[20]      There are a number of aggravating features to your offending. I note the following:

(a) Premeditation – while you deny being at the initial meeting at Whakatane bridge, there was clearly premeditation involved in your offending. You and your fellow gang members were involved in a premeditated show of force against a passing Mongrel Mob funeral procession. You went to the service lane area for that purpose. You armed yourself with rocks and bottles which you intended to use as weapons. You hid yourself in bushes and lay in wait for the Mongrel Mob procession.

(b) Actual or threatened violence – the offending involved actual violence, in that bottles, rocks and the like were thrown at the Mongrel Mob funeral procession. The Crown cannot identify which specific defendants threw which objects. However, it is clear that you and your co-offenders were involved in the riot which took place. You either threw objects or you supported those that did so. The violence was likely to incite further violence, by antagonising Mongrel Mob members. You must have known this.

(c) Loss, harm or damage – the summary of facts to which you pleaded guilty records that a number of pellets from a series of shotgun blasts fired by a Mongrel Mob member damaged commercial premises situated in the service lane, as well as vehicles parked in the area. It

also records that the driver of the Mongrel Mob vehicle which drove down the lane attempting to run over fleeing members of the Black Power gang, ultimately lost control and crashed into various vehicles parked on the side of the service lane. However, the total cost of the resulting damage has not been quantified. The Crown suggests that the incident received significant media attention and that it resulted in reputational damage to Whakatane. It also notes that substantial police resources were required to try and quell the violence which occurred on the day. I place little weight on these latter two assertions.

[21]      The Crown suggests the offending occurred in the context of tensions between the Mongrel Mob and Black Power gangs. That is true, but I note that you were discharged under s 147 of the Criminal Procedure Act 2011 in relation to a charge of being a participant in an organised criminal group.3 I do not treat this as a discrete aggravating feature.

[22]      I have considered the various authorities referred to me by the Crown and by Mr Franklin, on your behalf.4

[23]      None of the cases are particularly helpful, notwithstanding that one of the cases involved an offender involved in the same riot as you. He also pleaded guilty to a charge of participating in an organised criminal group. That charge carries a maximum penalty of 10 years’ imprisonment. The sentencing Judge, Lang J, adopted an overall starting point for both offences of two years and six months’ imprisonment.5 As I have

3      R v Ata [2018] NZHC 606.

4      R v Naime CA428/04, 30 May 2005 – defendants were convicted of one charge of causing grievous bodily harm, one charge of taking part in a riot and one charge of riotous damage arising out of tension between two groups – the Court of Appeal did not disturb a sentence of 12 months’ imprisonment for rioting; R v Tie [2015] NZHC 802 – riot in a prison, significant damage to the prison as a result of fires lit by rioters. The defendant did not start fires and he played a relatively small part in the offending. He did, however, smash up furniture, and handed broken pieces of furniture to other prisoners to use as weapons – starting point of 16 months’ imprisonment adopted; R v Nelson [2015] NZHC 963 – same prison riot as in Tie. The defendant’s role was not extensive. Rather, he was in close proximity to the group that smashed up the tables. A starting point of 13 months’ imprisonment was adopted; R v Pouwhare [2018] NZHC 360 – riot arose out of the events in Whakatane. The defendant pleaded guilty to charges of rioting and participating in an organised criminal group. He admitted to throwing rocks at the funeral procession. Lang J adopted a starting point of two years and six months’ imprisonment in relation to both charges; Stackhouse v Police HC Christchurch AP119/96, 20 June 1996 – offenders part of a group which chased two men. Offenders carrying sticks. The two men escaped, and offenders damaged their vehicle. End sentence of 18 months’ imprisonment imposed.

5      R v Pouwhare, above n 4, at [2].

noted, you are not being sentenced for being a participant in an organised criminal group.

[24]      The violence which was part of the riot in which you were involved was targeted at disrupting the funeral procession. The violence was intended to intimidate and it must have been known to you that it was likely to initiate further violence. While there is no evidence that any significant damage was caused by the rock and bottle throwing in which you participated, damage was caused as a result of the further violence which the riot initiated. The gang context cannot be ignored. The riot also created a significant risk of danger to members of the public. It involved premeditation. No mitigating actions were taken by you. You were a full participant in the riot which took place in the service lane area. It was serious offending of its kind.

[25]I adopt a starting point of 18 months’ imprisonment.

[26]I now turn to consider aggravating and mitigating factors personal to you.

[27]      As I have noted, you have 43 previous convictions. A number of those are relevant to the current offending. You have three notations for wilful damage in the Youth Court in 2011, seven notations for common assault in the Youth Court, also in 2011, two notations for assault with a blunt instrument, also in the Youth Court, and a notation for threatening behaviour, also in the Youth Court. You also have a conviction for wilful damage in 2015, a conviction for aggravated robbery in the same year, and a conviction for wounding with intent to cause grievous bodily harm in 2013.

[28]      In my judgment, an uplift of two months’ imprisonment is appropriate to recognise your extensive criminal history. It makes truly sorry reading for a person only 22 years old.

[29]      I have considered whether or not I should give you a discount for your relative youth. Mr Franklin acknowledged that you have been in the youth justice and criminal justice system for some years. Nevertheless, he argued that you should receive some discount given your age.

[30]      The Courts have recognised that youth can be relevant to the sentencing process, primarily because of age-related neurological differences, the effect of imprisonment on young people and the greater capacity for young people for rehabilitation.6 However there is no presumption that a discount for youth should be given in every case.

[31]      Here, I am not persuaded that your relative youth played any part in your current offending. Apart from an observation by the report writer in the pre-sentence report that you suffer from age-related impulsivity, there is nothing to suggest that your offending was caused by age-related neurological differences. You were remanded in custody on 27 January 2017 in relation to this charge. There is nothing to suggest that this was unduly harsh for you as a result of your age. Nor do you yet exhibit any signs of rehabilitation. When you were released on electronically monitored bail in December 2017, you were only on bail for 16 days until you breached your bail and you were returned to custody. You were readmitted to electronically monitored bail in April 2018, but you again breached your bail, and were returned to custody shortly thereafter.

[32]      I cannot see that there is anything in your circumstances which justifies a discount for youth.

[33]      Nor, given your response to the interviewer in the pre-sentence report, can it responsibly be said that you have expressed any remorse. Indeed, the opposite is true. You have said that you would do the same again, if the situation arose.

[34]      The only factor entitling you to a discount is your guilty plea. I am advised by counsel that you formally indicated to the Crown prosecutor in April 2017 that you would enter a guilty plea to the charge of rioting if the charge of participating in an organised criminal group was withdrawn. That charge was not withdrawn. However, you were subsequently discharged by this Court in relation to that charge.7 You then promptly entered a guilty plea to the charge of rioting.

6      Churchward v R [2011] NZCA 531 at [77](a)-(c).

7      R v Ata, above n 3.

[35]      In my view, a full discount of 25 per cent is appropriate. You were entitled to withhold your plea until the charge of participating in an organised criminal group was dealt with.

Sentence

[36]Mr Moeke, will you please stand.

[37]      In respect of the charge of rioting, I impose a sentence on you of 15 months’ imprisonment.

[38]      That is a short term of imprisonment, as those words are defined.8 I do not, however, consider that a community based sentence is appropriate. First, you are not able to provide an address at which an electronically monitored sentence could be served. Secondly, you have already been in custody for a lengthy period. But for other matters which I am told by your counsel are currently before the Court, you will likely be eligible for either immediate release, or release in the near future.

[39]      The report writer who prepared the pre-sentence report recommended special conditions, which he suggested should be imposed when you are released. I have considered those conditions and the submissions of counsel in relation to them. A number of them seem to me to be impracticable and I have very real doubts that you would abide by them. There is no point in setting you up to fail.

[40]      I do, however, consider that two of the conditions might assist your rehabilitation, or at least get you thinking about turning your life around. Mr Franklin, on your behalf, agreed that the following two conditions are appropriate.

[41]I impose the following post-release conditions:

(a)You are to attend a psychological assessment with a departmental psychologist as directed by a Probation Officer, and, for a period of six months following your release, you are to complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer;

8      Parole Act 2002, s 4(1).

(b)You are to attend an assessment for alcohol and drug counselling as directed by a Probation Officer, and, for a period of six months following your release, you are to attend and complete any counselling treatment or programme as recommended by the assessment and as directed by and to the satisfaction of a Probation Officer.

[42]      Mr Moeke, I hope that these steps will enable you to turn your life around and get things back on track.

[43]You may stand down.

Wylie J