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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Moeke

Details

AGLC: R v Moeke [2018] NZHC 1426
Case: [2018] NZHC 1426
Decision Date: 14 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the case of The Queen v Tuterangi Moeke involved sentencing for a charge of rioting. Moeke, a member of the Black Power gang, had pleaded guilty to participating in a riot that occurred during a confrontation between the Mongrel Mob and Black Power gangs in Whakatane. The riot involved throwing rocks and bottles at the Mongrel Mob’s tangi procession, causing damage and inciting further violence. Moeke was involved in the incident that took place in a service lane, where Black Power gang members had ambushed the procession.

The legal issues before the court included determining an appropriate starting point for sentencing, considering aggravating and mitigating factors, and deciding on the nature of the sentence, whether custodial or community-based. The court considered the purposes and principles of sentencing, the gravity of the offending, Moeke's culpability, and his criminal history, which included 43 previous convictions. The court also examined whether Moeke’s youth warranted a discount in his sentence and whether his guilty plea should be recognised.

The court found that the aggravating factors of premeditation, actual or threatened violence, and the lack of mitigating actions warranted a starting point of 18 months’ imprisonment. Moeke's extensive criminal history warranted an uplift of two months. However, the court determined that Moeke's youth and expressed remorse did not justify a discount. Instead, the court imposed a full 25 per cent discount for Moeke’s guilty plea. The final sentence was 15 months’ imprisonment, along with specific post-release conditions for psychological assessment and alcohol and drug counselling.

The court concluded that a community-based sentence was not appropriate due to Moeke's inability to comply with such conditions and his lengthy period in custody. The imposed post-release conditions aimed to support Moeke's rehabilitation and encourage him to turn his life around.

Orders