R v Ngaheu HC Rotorua CRI-2009-063-697

[2011] NZHC 2034

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-697

THE QUEEN

v

MASSEY NGAHEU

Hearing:         14 December 2011

Counsel:         L Maynard for Crown

M J Hine for Prisoner

Judgment:      14 December 2011

SENTENCING REMARKS OF LANG J

R V MASSEY NGAHEU HC ROT CRI-2009-063-697 14 December 2011

[1]      Mr  Ngaheu  has  pleaded  guilty  to  a  single  charge  of  participating  in  an organised criminal group.   The maximum penalty for that offence is ten years imprisonment.

The facts

[2]      The facts giving rise to the charge are contained in a summary with which, with one exception, Mr Ngaheu does not take issue.

[3]      The charge arose as a result of long-standing tension in Murapara between the Tribesmen and Mongrel Mob groups.   Mr Ngaheu is allied with the Mongrel Mob.

[4]      The tension came to a head at the end of January 2009, when a member of the Mongrel Mob was subject to violence at the hands of the Tribesmen.  Mr Ngaheu became involved by providing support to members of the Mongrel Mon group over several days, beginning on the evening of 27 January 2009.  His involvement was detected as a result of text messages that he sent to various persons during this period.  The text messages made it clear that he had allied himself with members of the Mongrel Mob who were involved in seeking retaliation against the Tribesmen for the assault on a member of the Mongrel Mob.

[5]      The text messages referred on several occasions to the fact that Mr Ngaheu was carrying a shotgun.  This forms part of the summary of facts, but he does not accept it.  There is no independent evidence to confirm that Mr Ngaheu ever carried a shotgun during the events giving rise to the charge. Although a shotgun was found at another person’s address during the police investigation, this cannot be tied back to Mr Ngaheu.   In the absence of any other evidence  linking Mr Ngaheu to a shotgun,  the  Crown  now  accepts  that  the  Court  cannot  be  satisfied  beyond reasonable doubt that he was armed in this way during the period to which the charge relates.  I therfore sentence him on the basis that he was not armed in the way that he claimed to be in his text messages.

[6]      The text messages make it clear, however, that Mr Ngaheu was a staunch supporter of the Mongrel Mob during this period, and was willing to lend both moral and physical support.  Importantly, however, the fact that nobody saw him in any of the incidents of violence that occurred over this period demonstrates that he was definitely on the fringes of the group.

Starting point

[7]      Given the amount of violence that occurred during this period, the Court must impose  a  sentence  that  has  deterrent  aspects  to  it.    This  is  evident  from  other sentences that have been passed on other members of the Tribesmen and Mongrel Mob groups as a result of the incidents that occurred during this period.   When sentencing other offenders in positions comparable to Mr Ngaheu, the Court has selected   starting   points   of   between   two   years   and   two   years   six   months

imprisonment.[1]   The Crown accepts, as does counsel for Mr Ngaheu, that the starting

point for Mr Ngaheu must fall within the same range.

[1] R v Pukeroa & Ors HC Rotorua CRI-2009-063-697, 10 December 2010; R v Teddy HC Rotorua

CRI-2009-063-697, 18 March 2011and R v Fox HC Rotorua CRI-2009-063-697, 26 September 2011.

[8]      Given my conclusion in respect of the shotgun, and given the fact that he must be seen as being on the fringes of the group, I select a starting point of two years three months imprisonment.

Aggravating factors

[9]      There are two aggravating factors here.   The first is that Mr Ngaheu has previous convictions for offending involving violence. The most serious of these is a conviction for assault with a blunt instrument in 2000.   Mr Ngaheu  received a suspended sentence of nine months imprisonment on that occasion.   He also has previous convictions for common assault and assaulting females.

[10]     Those factors mean that he must be regarded as a person who has been prepared in the past to resort to violence, and has not accepted the lesson that

previous sentences were intended to convey.

[11]     In addition, Mr Ngaheu was on bail at the time of this incident.  He was on bail on a charge of assaulting a female, and made references in his text messages to the  fact  that  he  was  due  to  appear  in  Court  on  that  charge.    That,  too,  is  an aggravating factor.

[12]    Taking those matters together, I consider that an uplift of three months imprisonment is required. This leads to an end starting point of two years six months imprisonment.

Mitigating factors

[13]     Mr Ngaheu pleaded guilty at the beginning of his second trial.  The first trial had to be aborted due to matters that were placed before the jury when they should not have been.   His  co-offender,  Mr Fox, pleaded  guilty at the same time and received a discount of two months to reflect that fact.  The Crown and counsel for Mr Ngaheu accept that the same discount should properly apply to Mr Ngaheu.

[14]     I therefore propose to apply a discount of two months imprisonment to reflect that fact.

Sentence

[15]     On the charge to which you have pleaded guilty you are sentenced to two years four months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:
M J Hine, Rotorua