R v O'Toole - [2018] NZHC 1494

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-087-131

[2018] NZHC 1494

THE QUEEN

v

ERUERA POITETE HARE O’TOOLE

Hearing:
21 June 2018

(Heard at TAURANGA)

Appearances:

O M Salt for Crown

G Tomlinson for Defendant

Judgment:

21 June 2018

SENTENCING REMARKS OF LANG J

R v O’TOOLE [2018] NZHC 1494 [21 June 2018]

[1] Mr O’Toole, you appear for sentence today having pleaded guilty to a charge of rioting.1 That charge carries a maximum sentence of two years imprisonment.

[2] Up until now you also faced a charge of participating in an organised criminal group. The Crown offers no evidence on that charge and you are discharged on it under s 147 of the Criminal Procedure Act 2011.

Background

[3] The charge was laid after you became involved at the tail end of a series of events that occurred in and about the Whakatane area on 17 January 2017. On that date a large number of cars filled with members of the Mongrel Mob and their supporters was due to arrive in Whakatane as part of a funeral procession. During the course of the day members of the rival Black Power group, with whom you sympathise, decided they would confront the funeral procession. Several incidents occurred before the one in which you became involved.

[4] The most serious of these occurred in Valley Road, and involved a member of the Black Power firing two shots towards both a line of police and members of the Mongrel Mob. Fortunately, no one was injured as a result of that incident.

[5] Shortly after that incident, however, you and other persons associated with Black Power went to an alleyway running from Valley Road through to Douglas Street. About ten to 15 Black Power gang members again confronted the funeral procession armed with sticks, bats and missiles. This disrupted the procession and brought it to a halt.

[6] The police became involved immediately and pursued the Black Power members down the alleyway. Police staff who came into the area saw the Black Power members and associates running out of the alleyway carrying sticks and bats. They discarded these once they saw the police approaching. You were seen running out of the alleyway and getting into a vehicle. The police arrested you at that point.

1 Crimes Act 1961, s 87.

[7] You told the writer of the pre-sentence report that your only involvement was to leave the scene in the vehicle. Your plea to the charge of rioting requires me, however, to sentence you on the basis that you were a participant in the events that occurred.

Starting point

[8] Several defendants have been sentenced as a result of an earlier similar incident in which members of the Black Power and their associates confronted the Mongrel Mob procession in a similar way. In each of those cases a starting point of 18 months imprisonment has been selected.2 The Crown suggests I should select…

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 O'Toole

Details

AGLC: R v O'Toole [2018] NZHC 1494
Case: [2018] NZHC 1494
Decision Date: 21 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand at Rotorua, the defendant, Eruera Poitete Hare O'Toole, was sentenced for a charge of rioting following his guilty plea. The case was heard on 21 June 2018 by Lang J, with the Crown represented by O M Salt and the defendant by G Tomlinson. The sentencing remarks were delivered on the same day, resulting in a sentence of 14 months imprisonment, with immediate release due to the defendant's prior custody time.

The legal issues before the court included determining an appropriate starting point for the sentence, the influence of aggravating factors such as the defendant's extensive criminal history, and the mitigating effect of the defendant's guilty plea. The court had to balance these factors to arrive at a just sentence that reflects the seriousness of the offence while also considering the defendant's circumstances.

Lang J began by noting the maximum penalty for the charge of rioting and the dismissal of a related charge of participating in an organised criminal group. The court considered the defendant's involvement in a confrontation between the Mongrel Mob and Black Power groups, which led to multiple incidents of violence. The starting point of 18 months imprisonment, suggested by the Crown and previously applied in similar cases, was adjusted to 15 months, reflecting the defendant's late involvement and awareness of the preceding events. An additional uplift of two months was applied due to the defendant's significant history of violent offences, bringing the total to 17 months before mitigation. A discount of three months was given for the late guilty plea, resulting in a final sentence of 14 months imprisonment. Lang J also directed that standard release conditions under the Parole Act 2002 would not apply, based on the defendant's intention to relocate to the South Island.

Orders