R v Monk
[2022] NZHC 3427
•14 December 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-070-001899
[2022] NZHC 3427
THE KING v
BERNARD SIMON MONK ANTHONY PEETI
Hearing: 14 December 2022 Appearances:
Sunny Teki-Clark for the Crown Scott McColgan for Bernard Monk William Nabney for Anthony Peeti
Sentencing:
14 December 2022
SENTENCING NOTES OF MOORE J
R v MONK & ANOR [2022] NZHC 3427 [14 December 2022]
Background
[1] Bernard Monk and Anthony Peeti, at the ages of 43 and 47 respectively, you appear together for sentence having been found guilty of aggravated burglary.1 The maximum penalty is 14 years’ imprisonment.
The offending
[2] I will first begin by describing the facts of your offending. These will obviously be familiar to you. But because sentencing is quintessentially a public function which is required to be undertaken in open Court, it is important that I set these out. I too am well familiar with the facts having presided over your trial and having seen and heard the witnesses.
[3] Because I am sentencing you together, to avoid confusion, I shall refer to you in the third person, which is not my normal practice. For that I apologise.
[4] Mr Monk was an associate of one of the victims, Mark Breingan. Mr Breingan stored Mr Monk’s caravan and bus on his rural property on McLaren Falls Road near Tauranga. Mr Monk tried to regain possession of them. He was unsuccessful. Quite why remains uncertain on the information before me.
[5] Both Mr Monk and Mr Peeti were previously patched members of the Rebels Motorcycle Club (“the Rebels”). Through that connection Mr Monk contacted his associates to help him. Those who were recruited included Mr Peeti. These were David Timoti, Jordan Para and William Reid. It is less clear whether the other co- offenders were known to him or how his instructions were conveyed to them. However, what cannot be contradicted is that Mr Monk asked that with the assistance of the others, his caravan and bus be retrieved and returned back to him, using violence if necessary. He also arranged for his sister, Michelle Monk, and Odean Thompson to travel from Auckland and be present. Their role was less obvious. The jury found both women not guilty. It follows they were unsure of their role and requisite
1 Crimes Act 1961, s 232(1)(a).
knowledge. For the purposes of this sentencing, I must operate on the basis that the jury was unsure they were involved; at least in the sense required by the law.
[6] In pursuit of the plan, on 25 January 2021, Mr Peeti and the other men travelled from Hunterville to Tauranga in a black BMW (“the BMW”). At this time Mr Monk was on electronically monitored bail in Auckland. Not far from Mr Breingan’s address, the men in the BMW met up with Ms Monk and Ms Thompson and then the two cars travelled in convoy to the address on McLaren Falls Road.
[7]Mr Breingan was home splitting firewood with his nephew, Tyler. It was about
10.30 am. His partner, Lisa Mercer, was inside the couple’s sleep out a short distance away.
[8] The BMW arrived first. Mr Timoti got out and approached Ms Mercer. He grabbed her by the hair and began punching her face and body. He demanded that she hand over cash and began looking through drawers. He also took her iPhone before kneeing her in the face.
[9] A group of men, including Mr Peeti and Mr Reid, approached Mr Breingan. They told him that he owed them. Someone struck him from behind. The group then took turns punching him to the face, head and chest. He was knocked to the ground and unable to get back up. They continued beating him as he cried out for help.
[10] Two men then attacked Mr Breingan’s nephew, Tyler. Weapons were used. These included golf clubs and a pan. Tyler attempted to defend himself. He was overpowered and knocked to the ground. There he was kicked and told to stay down.
[11] The caravan was not at the property. Mr Breingan invited the men to take the bus. He was told to get into it and start it. When he refused, the group began hitting him with what I am satisfied was a baseball bat (or similar object) and golf clubs. He was struck to the head about nine times.
[12] Orchard workers from a neighbouring property heard the commotion and came over to investigate. They were scared off.
[13] The Crown case against Ms Monk and Ms Thompson was that they got out of their car, went over to Ms Mercer and attacked her. It was alleged that they repeatedly punched her and demanded the keys to the cars. Ms Thompson was said to have taken Ms Mercer’s Toyota Hiace and left the address. As previously noted, the jury found both women not guilty.
[14] It was around about this point that the offending came to an end. Mr Peeti and the other men returned to Hunterville in the BMW. Ms Monk drove back to Auckland. Ms Thompson left in Ms Mercer’s Toyota Hiace.
[15] The victims were left with serious injuries. Mr Breingan suffered wounds, abrasions and contusions over his entire body. He had deep lacerations to his scalp inflicted by the golf club. He had multiple fractures to his nose, around his eyes, to two ribs and to two of his vertebrae. He suffered a deep puncture wound to his left trapezius. His teeth were broken and he is still to be treated by a maxillofacial surgeon. Ms Mercer detailed Mr Breignan’s injuries and other adverse consequences in her victim impact report. They are very significant indeed. Apart from the physical injuries, he has long term neurological deficits which affect his daily life, such as chronic pain, insomnia, anxiety, PTSD, tinnitus, vertigo, memory loss and an inability to write. His life has been changed forever.
[16] Ms Mercer also suffered significant injuries although not as severe. The attack caused swelling and bruising to the left side of her face. One of her incisors was loosened and has since had to be removed. She had abrasions and bruising across her body. She reports she was concussed.
[17] Tyler Breingan had abrasions and bruising over his body. Photographs taken shortly afterwards give some, albeit incomplete, sense of the extent of the physical harm inflicted on the victims.
Victim impact statement
[18] Unsurprisingly, what you and your co-offenders’ did that morning has had a profound impact on the victims. Ms Mercer courageously read her detailed victim impact statement in Court today. She did so for both herself and Mr Breingan. Her
statement was articulate, thoughtful and comprehensive. It was measured but it pulled no punches either. It makes for disturbing reading. She described the intense physical and mental trauma associated with a group of unknown assailants attacking them in the sanctity of their own home. The attack came out of the blue. It was completely unexpected. The assailants were strangers to the victims. The physical injuries caused may well have lifelong implications for both Mr Breingan and Ms Mercer, particularly the injuries which cannot be seen. The mental trauma will, all but inevitably, be chronic and long lasting. Ms Mercer is now, unsurprisingly, fearful of others. She is mistrustful. She is hypervigilant. She describes herself as living on an emotional rollercoaster. The financial consequences have been crippling. She has had to relocate to a different city.
What is the appropriate starting point?
[19] I now turn to the first stage in the sentencing process, which is to set a starting point for the offending. That starting point will be adjusted to take into account your personal circumstances at the second stage.
[20] There is no guideline judgment specifically applicable to aggravated burglary. However, the guideline judgment for aggravated robbery, R v Mako, contains some similar principles which are equally applicable to aggravated burglary.2 In Mako the Court of Appeal said that:3
“[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of 7 years or more. Where a private house is entered the starting point would be increased … to around 10 years.”
2 R v Watson CA224/03, 24 October 2003 at [27] citing R v Mako [2000] 2 NZLR 170 (CA).
3 The excised section of the quote referred to the home invasion provisions justifying the increase in the starting point. While those provisions have been repealed, in R v Fenton [2008] NZCA 379 the Court of Appeal considered that the repeal did not undermine the basis for imposing starting points in that range in cases of home invasion. In Tiori v R [2011] NZCA 355 at [16] the Court of Appeal further noted that the repeal of these provisions meant it was necessary to compare similar cases when determining the appropriate starting point, rather than directly applying the circumstances described in guideline judgment.
[21] Mr Reid and Mr Timoti have already been sentenced for their respective roles in the aggravated burglary. Lang J considered that their offending fell within this category. For each he adopted a starting point of nine years’ imprisonment.
[22] The question for me is whether the circumstances of your respective cases justify a departure from that starting point and, if so, in what way.
Mr Monk’s role
[23] Mr McColgan, on Mr Monk’s behalf, submitted that he was not responsible for the violent aspects of the aggravated burglary. He traversed the evidence given at trial and submitted that the appropriate conclusion to be drawn is that Mr Monk instructed his co-offenders only to intimidate the victims, not to engage in any physical violence. For that reason, he submitted that a starting point of five years’ imprisonment should be adopted.
[24] I cannot accept this characterisation of Mr Monk’s offending. The victims described the assault as giving the appearance of being planned and strategised. Mr Breingan also gave evidence that he was struck with a weapon, a baseball bat, that was brought to his address. He was adamant on that point despite very vigorous challenges. Mr McColgan submitted that there was a logical and cogent evidential basis on which to conclude no weapon, let alone the one described by Mr Breingan, was brought to the scene and deployed. He took me through the evidence he relied on. With respect, I cannot agree. Having carefully watched Mr Breingan give evidence, I am satisfied that his description of the weapon used against him was reliable. I am satisfied to the required standard, it was not an item which was picked up and used. Neither was it a “weapon of opportunity” as Mr McColgan put it. Unlike the golf clubs which Mr Breingan recognised as his, the item he believed was a baseball bat was foreign to the property. It was taken to the scene with the intention it would likely be deployed for the purposes of the unlawful enterprise. That this attack was coordinated and pre-planned is also apparent from the witnesses’ descriptions of how events unfolded. The participants went about their business in a fashion which clearly suggests to me this was a co-ordinated and concerted plan, in which the various players knew their respective roles and performed them. Indeed, Mr Breingan said as
much in his evidence. I infer from this that there must have been a direction from Mr Monk, as the organiser, to use violence or at the very least an expectation that violence would be meted out.
[25] Mr McColgan then submitted that Mr Monk’s culpability was nevertheless lesser than his co-offenders because he was not present at the property because he was adhering to his conditions of bail. As such he was not some remote director deliberately distancing himself from the events. He did not mete out any of the violence. Nor could he have contemplated the level of violence, Mr McColgan submitted.
[26] In principle there is no justification for treating those assigned roles other than of confronting the victims as less necessarily culpable unless they are truly less than full participants.4 Conviction as a common purpose party presupposes knowledge of the intended offence.5 Distancing oneself from the direct commission of the offence is no “guarantee of immunity”.6 Particularly where a party is the organiser of an offence, they may be equally culpable with those directed to carry it out.7
[27] But for Mr Monk’s instrumental role, it is self-evident this aggravated burglary would not have taken place. He was the organiser. It was his property he wanted returned. He directed his co-offenders to go there to get his property back. I am satisfied that he directed them to use violence or at least expected that violence would occur. He must be held accountable for the harm he instructed them to cause. There is no principled basis to distinguish his culpability as any lesser than theirs. Indeed, there would be a principled basis to increase the starting point in Mr Monk’s case given that he was the instigator and co-ordinator of what followed. However, the Crown does not seek such an increase here and accordingly, I will not increase the starting point.
4 Royal v R [2009] NZCA 65 at [22] citing R v Mako [2000] 2 NZLR 170 (CA) at [64].
5 At [21].
6 At [21] citing R v Mahaki CA309/97, 8 April 1998.
7 R v Poole [2014] NZHC 1126.
Mr Peeti’s role
[28] Mr Nabney submits that Mr Peeti had a lesser role in the offending which justifies a starting point lower than that for Mr Reid and Mr Timoti. He submitted that there is no evidence that Mr Peeti inflicted any actual violence, nor that he was associated with the Rebels.
[29] I do not accept that either point materially bears upon the starting point. As for the first, Mr Breingan and Ms Mercer gave evidence at trial that there were multiple attackers. In light of the jury’s verdict and having sat through the trial, I am satisfied to the required standard that Mr Peeti was one of them.
[30] In any event, Mr Peeti was found to be a party to the common purpose. That presupposes that he had sufficient knowledge of what would occur. At a minimum, he knowingly facilitated and assisted in that. He may well have had a greater role. On that basis, a starting point lower than that of his co-offenders cannot be justified.
[31] As for the second, I do not consider that the alleged gang association between the co-offenders bears upon his culpability in any material way. This was gang-related offending only to the extent that it explains the association and connection between those involved. It is the other factors, which I will list below which inform the assessment of the seriousness of the offending.
Starting point
[32] It follows Mr Monk and Mr Peeti’s offending fits within the same category as that of their co-offenders. The aggravating factors are:
(a)Planning and premeditation: Mr Monk was involved in instructing his co-offenders to conduct the aggravated burglary. Mr Peeti and his co- offenders travelled significant distances to Tauranga to carry it out. It is also aggravating that the group together carried out a co-ordinated plan for what was effectively vigilante action in an attempt to recover Mr Monk’s property.
(b)Number of participants facilitating the offending: While some defendants were found not guilty, I am satisfied that there were at least six present. The victims were greatly outnumbered and unable to effectively defend themselves.
(c)Use of weapons: These included a baseball bat (which I am satisfied was brought to the scene), golf clubs, reinforcing bars and probably other items. While Mr Monk obviously did not personally use a weapon, those who did were present and did so at his instruction. It is not clear what weapon Mr Peeti used or if he used one at all. But at the very least, he assisted by physically assaulting the victims while others used weapons. His presence with others added to the force by numbers. Viewed in that way, it cannot be said that he is any less culpable than his co-offenders.
(d)The level of violence and associated injuries: The attackers targeted the victims’ heads. That together with the use of weapons caused the very serious injuries I described earlier.
(e)The home invasion element: Mr Monk directed his co-offenders to invade the sanctity of Mr Breingan and Ms Mercer’s home. It is evident from Ms Mercer’s victim impact statement that what occurred continues to have a severe impact on them.
(f)Theft: Ms Mercer’s Toyota Hiace was stolen from the property.
[33] I thank counsel for helpfully referring me to a number of cases which, in their submission, assist in setting the starting point. Some were discussed in oral argument. I have footnoted them for ease of reference and completeness.8
8 Court-Clausen v R [2020] NZCA 488; Royal v R [2009] NZCA 65; and Manuel v R [2010] NZCA 285 all involved slightly more serious offending for which starting points in excess of 10 years’ imprisonment were adopted. Each had similar aggravating factors to the present case, although also involved the use of firearms.
This can be contrasted with the eight year starting point adopted in Tiori v R [2011] NZCA 355. That case involved a home invasion by a group of offenders where weapons were brandished. The present case is materially more serious on the basis that there was a greater degree of violence and
[34] It follows that I am satisfied in respect of both defendants that a starting point of nine years’ imprisonment is appropriate.
Adjustments for personal factors
[35] I therefore turn to consider the adjustments that need to be made to the starting point for each defendant’s personal circumstances.
Mr Monk’s personal circumstances
[36] Mr Monk, given that this section relates to you specifically, I shall revert to the first person.
(a)Criminal history and offending while on bail
[37] The Crown seeks an uplift to reflect your criminal history and the fact you offended while on bail – both of which are aggravating factors.9
[38] Mr McColgan accepts the inevitability of an uplift for offending while on bail, but submitted that an uplift on account of your criminal history is unjustified. He submitted that none of your criminal history bears similarity to the aggravated burglary for which you are being sentenced.
[39] I accept that while you have convictions for violent offending, they appear to be related to family violence. Your other offending is unrelated – predominantly drug offending. In my view your criminal history is not sufficiently similar to the index offending to justify an uplift.
[40] Offending while on bail, however, reflects a disregard for Court orders which justifies an uplift.10
[41]I consider an uplift of five per cent is appropriate.
serious injuries were caused. Other cases involving lower starting points but a lesser degree of violence and injuries include Archbold v R [2015] NZCA 493; R v Manuel [2020] NZHC 2587; Poi v R [2020] NZCA 312; and Sylva v R [2017] NZCA 567.
9 Sentencing Act 2002, s 9(1)(c) and (j).
10 Clunie v R [2013] NZCA 110 at [22].
(b)Personal background and circumstances
[42] The next factor advanced by your counsel is your personal background and circumstances.
[43] When sentencing an offender, the Court is required to take into account their personal circumstances, including their personal, family, whānau, community, and cultural background.11 The Supreme Court has recognised that an offender’s background may affect the extent of their agency, which in turn impacts their culpability for their offending.12 An offender’s background need not be a proximate cause of their offending to justify recognition at sentencing – a causative contribution is sufficient.13 What that means is that background factors must help explain how an offender came to offend.14
[44] Your counsel has helpfully provided a psychological assessment report authored by Dr Purcell setting out your background.15 Dr Purcell records that you grew up in a home environment where violence was the norm. Your father assaulted you, your mother and your sister. When you were 11 years old, your mother left with you and your sister. A year later, she found a new partner who was a pro-social role model. Around this time your father died from his alcohol abuse.
[45] You began using drugs and offending from the age of 14. The report writer describes your difficulties with post-traumatic stress disorder (“PTSD”) and alcohol and methamphetamine use disorders. This combination, she says, results in difficulty managing your impulsivity and emotional regulation. Against that, however, Dr Purcell noted that you have managed your propensity for impulsivity at times throughout your life.
[46] I accept that the violence which you were exposed to as a child helps to explain your offending. It contributes to a predisposition to resort to violence in a way illustrated by the index offending. But as I discussed with Mr Mc Colgan, it is difficult
11 Sentencing Act 2002, s 8(i).
12 Berkland v R [2022] NZSC 143 at [91].
13 At [109].
14 At [109].
15 Sentencing Act 2002, s 27.
to see how a propensity for impulsivity causatively contributed to your offending. Mr McColgan put it to me that it hindered your foresight into the consequences. I am satisfied your offending was not spontaneous. To the contrary it was planned. You knew the likely consequences. The jury’s verdict tells me that. It follows that your background only helps to explain your offending to a limited degree.16
[47]In my view a discount of five per cent is justified.
(c)Rehabilitative efforts and remorse
[48] The final factors advanced by your counsel are your rehabilitative efforts and remorse.
[49] To your considerable credit you have undertaken rehabilitative programmes in an attempt to address the causes of your offending. These are detailed in the psychologist’s report, in your letters to the Court and in other documents I received and read earlier today. I am satisfied that your efforts are determined and genuine.
[50] I also accept you are remorseful. To what extent is difficult to gauge. Although Mr McColgan did not address it in his written submissions, he reminded me in oral submissions that on learning Ms Mercer’s van had been taken you took effective and immediate steps to have it returned. I have also read the letters you have written to me in which you express your regret for what happened and a level of empathy towards the victims.
[51]For that reason, a combined discount of ten per cent is appropriate.
(d)Net adjustment for personal factors
[52] The net result of these adjustments is a discount of ten per cent. Applying that to the starting point of nine years’ imprisonment yields a sentence of eight years and one month.
16 R v Philip [2021] NZHC 2393 was referred to by defence counsel as comparable on this point. That case plainly differs. The offender’s drug addiction was cited as a contributor to his drug offending. Addiction is less relevant in the context of Mr Monk’s offending.
(e)Totality adjustment
[53] The final point which I must consider is an adjustment for totality.17 That is because this sentence will be imposed cumulatively on the sentence of imprisonment you are currently serving. It is critical that the imposition of cumulative sentences does not result in an overall sentence that is “crushing”.18 A crushing sentence obliterates hope of reintegration into society and is contrary to the principle of rehabilitation, a cornerstone of the Sentencing Act.19
[54] You are currently serving a sentence of three years and 10 months’ imprisonment on charges predominantly relating to methamphetamine offending. If a sentence of eight years and one months’ imprisonment were to be imposed cumulatively without adjustment, the result would be an end sentence of 11 years and 11 months’ imprisonment.
[55] By any measure that is a lengthy sentence of imprisonment. A sentence of that magnitude would be wholly out of proportion to the gravity of your offending viewed in its entirety. However, any adjustment must take into account the differing nature of your previous offending and the seriousness of it.
[56] It is my view that your previous offending justifies a further two years’ imprisonment in addition to the sentence on the aggravated burglary charge. I therefore propose to reduce the sentence on the aggravated burglary charge by one year and 10 months to account for totality.
[57]This results in an end sentence of six years and three months’ imprisonment.
Mr Peeti’s personal circumstances
[58]Mr Peeti, I will now address your personal circumstances.
17 Sentencing Act 2002, s 85.
18 Haywood v R [2015] NZCA 551 at [13].
19 Taylor v R [2018] NZCA 444 at [17].
(a)Remorse
[59] The first is remorse. The pre-sentence report writer viewed your remorse as sincere. It is common ground between counsel that you are genuinely remorseful for your offending. But there is a caveat in my view.
[60] You told the report writer that you were “shocked” at the violence and that you “didn’t go there for that”. Such a claim lies uncomfortably with the jury’s verdict which required them to be sure you had foresight of violence or threats of violence. Being sorry for what occurred is different from being genuinely remorseful for what you did. I do, however, accept that your feelings for the victims are sincere and a modest credit is justified.
[61]A discount of three months (just under three per cent) is appropriate.
(b)Personal background and circumstances
[62] The next factor advanced by your counsel is your personal background and circumstances. I will not repeat the comments I made in relation to the legal principles I covered when discussing Mr Monk’s case. Obviously, they also apply to you.
[63] Your counsel has helpfully provided a cultural report setting out your background.20 I will not traverse it in detail. Of relevance is that you grew up in a home where violence was the norm. Your father was a heavy drinker and regularly meted out violence to you, your mother and your brothers. His drinking meant that your family grew up in poverty. You left school early so that you could support yourself. At times throughout your life you used drugs. You also spent some time as a patched member of the Rebels, but you say you left in 2009. However, the present offending shows that you have maintained your links to the Rebels.
[64] It is common ground that these factors causatively contribute to your offending. The disadvantage in your upbringing bears upon your agency. Most relevantly, growing up in a home where violence was the norm helps to explain the violent offending for which you are being sentenced.
20 Sentencing Act 2002, s 27.
[65] I agree with counsel that a discount of 10 per cent is justified. This is more than the discount I gave Mr Monk but, for the reasons I gave, there is a difference between you under this heading because of the way your background interacts with your differing roles.
(c)Time spent on electronically monitored bail
[66]The final factor is the time you spent on EM bail.
[67] An allowance of up to 50 per cent is not uncommon.21 That is not an upper limit – the assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case.22
[68] You spent just over one year and one month on EM bail. During that time, you were involved in one domestic incident, but were subsequently readmitted to bail. It is common ground between counsel that in those circumstances a discount of six months’ imprisonment is appropriate.
[69]I agree and that is the discount I will apply.
(d)Net adjustment for personal mitigating factors
[70] The combination of these adjustments is a reduction of just over 18 per cent. Applying this to the starting point of nine years’ imprisonment results in an end sentence of seven years and four months’ imprisonment.
[71] A sentence of seven years and four months is a substantial sentence. It requires me to stand back and ask whether it is appropriate. I am satisfied it is appropriate. It reflects the seriousness of your offending and is not out of step with the sentences already imposed on your co-offenders.
End sentence
[72]Mr Monk, please stand.
21 Paora v R [2021] NZCA 559 at [53].
22 At [53].
[73] On the charge of aggravated burglary, you are sentenced to six years and three months’ imprisonment. This is imposed cumulatively on the sentence of imprisonment you are currently serving.
[74]Mr Peeti, please stand.
[75] On the charge of aggravated burglary, you are sentenced to seven years and four months’ imprisonment.
[76]Stand down.
Moore J
Barristers/Solicitors: Crown Solicitor, Tauranga Mr McColgan, Auckland Mr Nabney, Tauranga
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