R v Nathan HC Napier CRI 2008-020-4688
[2010] NZHC 1051
•11 June 2010
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2008-020-4688
QUEEN
v
KARL NESTOR NATHAN BRONSON TETINI PEKEPO
Hearing: 11 June 2010
Counsel: R J Collins and N Graham for Crown
J S Jefferson for Prisoner Nathan
G W Calver for Prisoner Pekepo
Sentencing: 11 June 2010
SENTENCING NOTES OF MILLER J
[1] Gentlemen, you appear today for sentence, having been convicted after trial of the attempted murder of Wayne Paul Tweeddale. The maximum sentence is 14 years imprisonment.
[2] The victim is a member of the Hells Angels gang. You are both patched members of the Mongrel Mob. And the offence has its origins in animosity between
the two gangs.
R V KARL NESTOR NATHAN AND ANOR HC NAP CRI 2008-020-4688 11 June 2010
[3] On 24 February 2007, Mr Tweeddale and another Hells Angel were riding on State Highway 2 between Otane and Te Hauke. Mr Waa, the President of the local Mongrel Mob Chapter to which you belong, learned that the motorcyclists were driving through and instructed you and another offender, Mr Hone, to “get them”. You were in Mr Hone’s Honda Concerto at the time. You went and got a shotgun from the Mob pad at Waipukurau and headed north.
[4] Mr Hone, who was driving, chased the motorcyclists at very high speed with encouragement from the others. Mr Nathan had the gun, and Mr Pekepo was repeatedly urging him to “get” Mr Tweeddale. Two shots were fired at very close range by Mr Nathan. Some time elapsed between the two shots because Mr Hone had to catch up with the motorcyclists again. He and Mr Pekepo had to change seats in the car between shots. One of the shots hit Mr Tweeddale. You were unable to find a third cartridge and having difficulty with the car, which had a loose wheel, so the attack was abandoned. The third cartridge was located under the seat when the police searched the car.
[5] The offence is notable for its determination, its persistence and the unequivocal murderous intent that you displayed.
[6] Mr Tweeddale suffered a very serious injury to his lower back and abdomen. He was lucky to survive.
[7] I note at this point that the Crown’s case was that Mr Nathan was the shooter and Mr Pekepo a party. The jury must have accepted that analysis, as I do.
[8] Mr Hone, who was also a party, pleaded guilty at an early stage and was a reluctant witness for the Crown at your trial. Andrews J took a starting point of 10 years in his case, and sentenced him to six years imprisonment (with no minimum period) after making allowance for substantial mitigating factors, none of which, I emphasise, are present in your cases.
[9] Mr Waa pleaded guilty to causing grievous bodily harm with intent to do so. His stance was that he did not intend that those travelling in the car should actually
attempt to kill the motorcyclists. The starting point in his case was 10 years imprisonment.
Personal circumstances
[10] Mr Nathan, you are aged 27 and the father of five children. It appears that your partner continues to support you. You say that you have been involved with the Mongrel Mob for some six to seven years. You are a shearer by occupation, and apparently you are very good at it, having competed at top level. You do have a harmful pattern of alcohol consumption and you use cannabis occasionally. Although your attitudes are plainly antisocial, you do not have a long criminal history. There are some 17 previous offences, only one of which is for violence (that was male assaults female). The others concern alcohol, driving offences, or cultivating cannabis. Nonetheless your risk of reoffending must be regarded as high having regard to your ongoing gang membership and your lack of motivation to change your ways.
[11] Mr Pekepo, you are aged 27. You are the son of Sonny Smith, the President of the local Mongrel Mob Notorious Chapter, who has regrettably also appeared for sentence today. You were born into the Mongrel Mob, as counsel says. You have two daughters. You do not report harmful levels of alcohol or drug use.
[12] You have an unusual criminal history, most of which consist of breaches of Court-imposed sentences and conditions. There are two convictions for violence, one for male assaults female and another for wounding with intent to injure. You have served two terms of imprisonment. I have considered references from your employer who described you as a good employer and reliable and I have considered a second reference from the Kohanga Reo which your children attend.
[13] Although you acknowledge poor choice of associates and have expressed concern that your own children should not become involved in the Mongrel Mob, you show no sign of changing your own ways and your risk of reoffending is assessed as high. I agree with that. That risk will remain so until you successfully address the factors relating to your offending, principally your gang membership.
Perhaps you will do that as you mature, but at present it cannot be said that you have good prospects of remaining offence-free.
[14] Neither of you express any remorse and you continue to deny involvement.
Sentencing principles
[15] There is no tariff for this offence. The aggravating features are the gang context, the complete absence of provocation, the element of premeditation, your persistence in chasing the motorcyclists and firing two shots at significant intervals, the high level of murderous intent associated with firing a shotgun at short range into the back of a defenceless man, the high risk for other members of the public, and the serious injuries to Mr Tweeddale.
[16] Although Mr Nathan was the shooter and Mr Pekepo a party, Mr Pekepo’s encouragement was very active indeed; he not only urged Mr Nathan repeatedly to get Mr Tweeddale but swapped places in the car between shots to facilitate that. I flatly reject Mr Calver’s submission that Mr Pekepo was there just to make up the numbers; he was an enthusiastic participant. I characterise this as a cowardly group attack, of the sort that would not happen but for the mutual encouragement that you lent one another. Neither of you is in any way less culpable than Mr Hone and Mr Waa.
[17] I have considered a number of comparable cases.[1] These comparable cases. These indicate a starting point in the range of 10 to 11 years imprisonment. I have already referred to the starting points adopted for Mr Waa and Mr Hone. Those do not bind me, but they are within the range I have identified.
[1] R v Hopa CA302/01, 18 December 2001; R v Hartley CA6/02, 9 May 2002; R v Daniels HC Tauranga CRI 2003-047-415, 30 September 2004; R v O’Brien HC Christchurch T307546/02, 17
October 2003; R v Savelio HC Auckland CRI 2007-092-2556, 17 November 2009.
[18] The issue that has caused me some difficulty is whether I ought draw a distinction between the two of you. Mr Collins suggests that Mr Nathan was more culpable given that he was prepared to pull the trigger. That is a powerful
submission. But I take a more malign view of Mr Waa’s behaviour than did Asher J, who sentenced him. Parity of treatment with him leads me to adopt a starting point of 10 years for both of you.
Aggravating and mitigating factors
[19] Each of you have previous convictions, but the most that can be said of them is that they demonstrate absence of previous good character and a propensity for violence. I do not propose to increase the starting point on account of them.
[20] There are no mitigating factors. In his written submissions Mr Calver invited me not to be constrained by R v Hessell, arguing that some allowance ought to be made in Mr Pekepo’s case for the ‘unusual’ nature of the case against him.[2] In essence, the submission was that it was reasonable for Mr Pekepo to deny guilt, so the end sentence ought to correspond to Mr Hone’s. I do not find that approach in any way consistent with established sentencing practice. To the extent that it implicitly invites me to question the jury’s verdict I should record that I harbour no reservations whatsoever about your guilt. The better explanation for the decision
that both of you made to go to trial is not that the case was novel but that you hoped to exclude Mr Hone’s evidence. I do not hold that against you, but neither will I treat it as a mitigating factor.
Decision
[2] R v Hessell [2010] 2 NZLR 298; [2009] NZCA 450.
[21] Each of you is sentenced to 10 years imprisonment.
Minimum period
[22] The Crown seeks a minimum period of imprisonment. That is a minimum period before you are eligible for parole.
[23] Few cases present a more compelling argument for a minimum period than this. Your behaviour was calculated, murderous and unprovoked. It was exceptionally dangerous not only for your victims but also for anyone else who happened to be using the public highway. The need for denunciation and deterrence is about as high as it gets. The fact that it was inter-gang violence does not alter that conclusion; Mr Tweeddale may be a member of a criminal gang himself, but he is still entitled to the protection of the law.
[24] Mr Calver urged me not to impose a minimum period, arguing that it would adversely affect your prospects of rehabilitation. That is true as far as it goes, but neither of you can point at this stage in your lives to good prospects of rehabilitation or remorse or any other mitigating factor that might warrant leniency. Far from it, there is a case to be made for a sentence designed to protect the community from you.
[25] The other consideration that might warrant leniency is parity of treatment, but there was good reason not to impose a minimum period in Mr Hone’s case, while Mr Waa received something over 50 per cent notwithstanding that he had left the Mob.
[26] The minimum period will be the maximum available in law, two-thirds of the sentence I have just imposed.
[27] Stand down.
Miller J
Solicitors:
Crown Solicitor’s Office, Napier for Crown
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