R v Peters

[2016] NZHC 2331

THIS IS A REDACTED VERSION OF THE JUDGMENT.  PARAGRAPHS [17], [18], [21] AND [22] HAVE BEEN REMOVED.

ORDER PROHIBITING PUBLICATION OF PARAGRAPHS [17], [18], [21] AND [22] CONTAINED IN THIS JUDGMENT PURSUANT TO S 205

CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-7255 [2016] NZHC 2331

THE QUEEN

v

ANTHONY KEVIN PETERS

Hearing:	30 September 2016
Appearances:	B Hawes for Crown P Hall QC for Defendant
Judgment:	30 September 2016

SENTENCTING REMARKS OF MANDER J

[1]      Anthony Peters you are for sentence this morning on a charge of kidnapping which carries a maximum penalty of 14 years imprisonment.  Given your conviction on that charge, you are now subject to the three strikes law.  I am required by the Sentencing Act  to  give  you  a  warning  of  the  consequences  of  another  serious violence conviction.  You will also be given a written notice which contains a list of these “serious violent offences”.

[2]      If you are convicted of any one or more serious violent offence other than murder  committed  after  this  warning  and  if  the  Judge  imposes  a  sentence  of

imprisonment, then you will serve that sentence without parole or early release.

R v PETERS [2016] NZHC 2331 [30 September 2016]

[3]      If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.  In that event, the Judge must sentence you to a minimum term of imprisonment.

[4]      Mr Peters, you pleaded guilty to the charge of kidnapping after I provided a sentence indication at your request.   When I providing the sentence indication to you, I canvassed in some detail relevant matters that I needed to take into account in assessing the appropriate sentence.   In passing sentence on you this morning it is necessary for me to again traverse those relevant factors.

Factual background

[5]      I must first set out the factual background to the offending.  This will include your particular involvement and your own evidence about that.

[6]      The offending was clearly gang related.   The victim, Mr Dawson Reihana, had an association with the Mongrel Mob.  Your co-offenders, as with yourself, were or are either members, associates or affiliates of that group.

[7]      On 8 August last year, Mr Reihana was invited to an address of one of your co-offenders in Ajax Street.  That invitation was a trap.  Mr Reihana was attacked by three people and other unidentified associates.  The attack involved him being struck with hammers to his head and knees.  His hands and feet were bound and the beating continued while he was in that defenceless position.

[8]      A decision was made to take Mr Reihana to a different address.  A gag was placed in his mouth and a rope tied around his legs.  Mr Reihana was placed in the back of a van.  You drove that van to the Ajax Street address.  You maintain you were directed to do so unaware of what had happened to Mr Reihana, and I proceed on that basis.  There is CCTV footage of you driving the van in the company of a co- offender to a nearby service station to obtain petrol.

[9]      Mr Reihana was transported in the van to an address in Bowenvale Avenue. Here he was held against his will and subject to further physical attacks by a number

of people.  This involved the use of knuckle dusters and being attacked in the head. You had no direct involvement in these physical attacks.

[10]     During the course of Mr Reihana’s detention, he was driven in the back of the van in a bound state for the purpose of having him point out the addresses of his associates, before he was returned to Bowenvale Avenue.  Again, you drove the van. Back at the Bowenvale property, Mr Reihana in his defenceless state was again the subject of assaults.  It is accepted you were not directly involved in those physical attacks.

[11]     Early the following morning, Mr Reihana was able to contact police by use of a cell phone.  The police cordoned the address and apprehended a number of your co-offenders at the property, including yourself.

Particular facts as they relate to Mr Peters

[12]     Specifically in relation to you, I accept that you were ordered by others to take the van to the Ajax Street address without knowledge of what had already occurred at that location.  You would, however, have been aware of what had happened  to  him  before  driving  to  the  petrol  station  and,  subsequently,  at  the direction of others, driving Mr Reihana in the back of the van to the second address in  Bowenvale Avenue.    On  your  account,  you  had  suggested  at  that  point  that Mr Reihana be taken to hospital.

[13]     You  remained  at  the  Bowenvale Avenue  address  while  Mr  Reihana  was effectively  held  prisoner  there.    You  would  have  been  aware  of  the  beating Mr Reihana received prior to driving him around for the purpose of him identifying his associates’ addresses, and then returning to Bowenvale Avenue.

[14]     The Crown accepts you did not physically assault Mr Reihana or have any direct involvement in the attacks upon him.  Mr Reihana himself, in his evidence, recounted that while in the back of the van, you turned around to him and gave him a cigarette.  He described you as being “pretty good like that”, and it is apparent from his observations that you were doing things at the direction of others.

[15]     The Crown has acknowledged, unlike your co-offenders, you were the only person to show any compassion towards Mr Reihana and his situation during the course of his detainment.

Evidence provided by Mr Peters

[16]     The position you have presented is that you were compelled to be involved in these events because of the threats of your co-offenders and that if you did not comply  you  would  suffer  very serious  harm.   You  have  previously set  out  the background to your involvement with the Mongrel Mob and the events leading up to the incident the subject of the present charge.  These involved you being attacked and  badly  injured  by  one  of  them  a  few  weeks  prior  to  the  kidnapping  of Mr Reihana.

[17]     …

[18]     …

[19]     You  have  produced  medical  records  that  provide  corroboration  for  your accounts of being the subject of serious assaults, both before the kidnapping of Mr Reihana and, subsequently, after your arrest while on remand in Christchurch Prison.   These assaults are said to have been  carried out by some of your co- offenders and their associates as a result of them demanding your compliance.

[20]     Your counsel has submitted that but for the statutory bar contained in the Crimes Act as it applies to such a serious charge as kidnapping, you would otherwise have had a viable defence of compulsion.  Based on that factor, it has been submitted this is a significant mitigating feature which requires to be taken into account when setting an appropriate starting point.

[21]     …

[22]     …

[23]     As  I have  acknowledged,  the  Crown  does  not  contest  your  account  and accepts that I can proceed on the basis of the details you have provided.  Specifically, the Crown does not challenge how you came to be involved with the gang, nor does it dispute your account of the situation you found yourself in at Bowenvale, which was effectively taken over by gang members.  It does not dispute the events post the offending, which I interpret as a reference to you being attacked in prison while on remand.  The Crown has previously observed that your narrative of involvement in the offending is substantially consistent with that provided by Mr Reihana.

[24]   The Crown, however, does not accept your involvement amounted to compulsion as that defence is recognised by the law.  In particular, the Crown has previously observed that in the course of the offending you were captured on CCTV footage by yourself undertaking a “petrol run”.  Whilst the Crown acknowledges that in the circumstances you found yourself, you took what was realistically probably the only avenue available to you, it does not accept you would have succeeded in a defence of compulsion had that been available to you as a matter of law.

Victim impact statement

[25]     Mr Reihana has provided a victim impact statement to the Court.  Apart from the  immediate  physical  injuries  he  suffered,  including  lacerations  to  his  head, swelling around his eyes, a broken nose and bruising to his head, face, body and limbs, he has sustained longer lasting detrimental consequences to his life.   He is concerned for his safety, his relationship with his partner and his family has suffered, and his daily life has changed.   He has some emotional difficulties, he no longer trusts anyone, and has required counselling.   He did not think he would leave the Bowenvale house alive.

Starting point

[26]     Kidnapping covers a multitude of circumstances.   In the present case, the kidnapping  cannot  be  separated  from  the  ongoing  serious  violence  inflicted  on Mr Reihana, which renders the offending to be at the serious end of the scale. This is apparent from relevant aggravating features, which are:

(a)       The presence of extreme violence:  This was marked by the prolonged and gratuitous nature of the violent conduct.

(b)      The serious harm caused to Mr Reihana. (c)     The use of weapons.

(d)      The attacking of the head:   Assaults were directed at Mr Reihana’s

head.

(e)       Multiple attackers:  The disparity between the number of the attacking group and the sole victim.

(f)       Vulnerability of victim:  At an early stage of the attack, Mr Reihana was effectively disabled and could do little to defend himself.

(g)Finally, gang warfare:  Serious violence was perpetrated by members of a criminal gang.

[27]     You,  as  I have  already  acknowledged,  had  no  direct  involvement  in  the infliction of this violence.  You did not directly encourage or assist in the physical beatings, and it is not apparent you were physically present when these occurred, albeit you were in the same house.  Mr Reihana himself is able to distinguish you from other co-offenders by the fact you did not participate or appear to support any of the assaults.

[28]   Your culpability, however, arises out of the assistance you provided by transporting Mr Reihana in your van when directed to do so.  Mr Reihana was driven by you from the first address to another to avoid possible detection and then driven around for the purpose of him identifying addresses.   You were therefore directly involved in Mr Reihana’s ongoing detention.  I proceed to sentence you on the basis your involvement was limited to being the driver of the van, as disclosed in the summary of facts.

[29]     I  accept  a  significant  mitigating  factor  which  requires  to  be  taken  into account is the situation you found yourself at the time you were directed to bring the van to the Ajax Street address, and subsequently while your address was occupied and used by your co-offenders to detain Mr Reihana.  A person who acts in response to coercion but in circumstances where the strict requirements of compulsion have not been satisfied is entitled to an adjustment of their sentence to reflect the Court’s

assessment of that person’s true culpability.1

[30]     As I previously indicated to you Mr Peters, I am satisfied you were acting under duress at the time you drove the van and while at the Bowenvale Avenue address.  I am satisfied you were acting out of an immediate concern for your own physical safety.  That is, that if you declined to do what you were told you could find yourself in a similar situation as Mr Reihana.   The background to your situation supports the conclusion that you had little realistic choice but to do as you were told. What you were required to do did not involve any direct violence to Mr Reihana.

[31]     As I commented when providing the sentence indication, care needs to be taken when assessing the degree to which duress can properly be taken into account as a mitigating factor, particularly in the circumstances of gang affiliations. Ordinarily, those who choose to associate themselves with a gang would be well aware of the obvious pressure to comply with the requirements of the gang.  Those who associate with persons involved in gangs can reasonably anticipate they will be placed under some form of compulsion to assist in illegal activities, and of the

consequences of not doing so.2

[32]     It is important to recognise that your ongoing involvement with your co- offenders and their associates does not appear to have been out of any choice on your part.  The narrative that you have provided of how you came to be in that situation which led to your predicament is not contested, nor the pressure you were under

before, during and after the events giving rise to the kidnapping charge.

1      I A v R [2014] 1 NZLR 17 at [15]; R v Z [2005] 2 AC 467, 492 (HL).

2      Kingston v R [2010] NZCA 460 at [22].

[33]     However, as I commented on the earlier occasion of your sentence indication, your reluctant involvement in the offending and, indeed, the remorse that you have shown towards Mr Reihana did not extend to any cooperation or assistance to the police.  You felt you had no opportunity at the time to assist Mr Reihana, and I have found that in the circumstances, on balance, that is likely to have been the case. However, when you did have the opportunity to assist him by corroborating his account and cooperating with the prosecution, you did not pursue such a course.

[34]     I immediately acknowledge that choice does not detract from the assessment of your culpability as it relates to the offending.  In many respects your stance can be interpreted as consistent with your view of the level of compulsion under which you were acting, such is your fear of the gang.   I remind myself that assistance to the police and a willingness to give evidence is a mitigating factor going to the personal circumstances of the offender rather than the offence in respect of which issues of duress are to be assessed.  It is not, of course, an aggravating factor.

[35]     The  only  reason  for  mentioning  this  feature  is  to  place  in  context  your position relative to other offenders who may consider themselves to have been in a similar situation but are willing to assist and even give evidence now they are no longer under immediate direct threat.  I accept you may consider, given your present situation, that immediate threat still remains, but there needs to be appropriate relativities between the respective positions of offenders when considering the discount from the sentence that would otherwise be imposed and the appropriateness of the level of sentence ultimately imposed.

[36]     Having  taken  into  account  the  circumstances  as  they  relate  to  your involvement  in  the  offending,  and  in  particular  your  role  in  what  happened  to Mr Reihana, including that you were acting under a very high level of duress, I take a  starting  point  which  I  previously  indicated  to  you  of  three  and  a  half  years

imprisonment.3

3      R v Moffatt CA193/01, 29 October 2001; R v Hill HC Rotorua CRI-2015-063-3096, 27 October

2007; R v Shen [2007] NZCA 67; R v Singh-Kang [2014] NZHC 126; R v Kimber HC Rotorua
CRI-2003-070-6113, 17 June 2005; R v Ratana CA 357/90, 25 February 1991.

[37]     Mr Peters you need to appreciate that is a very substantial reduction from the starting point that will be applied in respect of your fellow co-offenders.

Personal aggravating and mitigating factors

[38]     I turn now to personal aggravating and mitigating factors.   I now have the benefit of a pre-sentence report.  The pre-sentence report writer was impressed by your positive attitude and by the support that you have of your partner and your family.  You may remain seated.  You have learnt a trade, have held responsible jobs in the past.  You are assessed as having a low risk of reoffending overall, although the risk of harm you present is considered to be moderate.  The reason for that is because you have allowed yourself to be involved in at least two situations in the recent past that have led to extreme violence.

[39]     I have read the letter that you have provided to me and that of your partner.  I accept you are genuine in the remorse you have expressed for the victim and the hurt and distress you have caused to your own family and partner.  I note that since your release from prison in 2011 you have successfully completed an Odyssey House programme, completed vocational courses and gained full time employment.  You were, however, unable to distance yourself from the gang, and your offending has been a resulting consequence.

[40]     At the age of 42 years you do not have a criminal history marked by a pattern of violent offending.  There is, however, the previous conviction for manslaughter entered in July 2006.  You were sentenced to imprisonment for 10 years with a non- parole period of five years.  Your counsel has submitted this was not gang-related offending, although the victim was a member of a local gang.  It has been urged on your behalf that this offending should not result in any uplift in the sentence that would otherwise be imposed.   The fact remains, however, that while the circumstances of that earlier offence are different from your present offending both involve you in episodes of serious violence.

[41]   I acknowledge you have genuine remorse for your involvement in the kidnapping of Mr Reihana, and you have expressed feelings of empathy for the

victim with whom you can identify.  You have indicated a willingness to participate in a restorative justice meeting.

[42]     You are entitled to credit for time spent on EM bail; a period of some nine months.

[43]     Reference has  been  made to  your limited role  in  driving the van  at  the direction of co-offenders and that you did not offer violence to Mr Reihana.  These are significant factors but they are ones that I have already taken into account in assessing the circumstances of your involvement in the offending which is part of the assessment of the appropriate starting point.

[44]     As  I  formally  indicated  to  you  at  the  time  of  providing  my  sentence indication, you are entitled to a 20 per cent reduction for your guilty plea which, as I also previously commented, because of the timing of your plea, shortly before trial, must be considered generous.

[45]     I allow a four and a half month deduction for time spent on EM bail and I also allow a further five months for your genuine remorse, marked by your willingness to engage in a restorative justice meeting.   In recognition of your expressed willingness to rehabilitate yourself, I make no uplift for your previous criminal history, however, you are not entitled to credit for good character.

[46]     Mr Peters, if you would now please stand.

[47]     Mr Peters, notwithstanding all that has been submitted on your behalf by Mr Hall, the end result is that a sentence of imprisonment is unavoidable.  It will be for a period of two years and two months.     I consider that to be the least restrictive outcome appropriate in the circumstances.  The question of home detention therefore does not arise.

[48]     Notwithstanding that your offending relates to serious violence, the Crown has not contended for, nor do I consider it appropriate to impose a minimum period of imprisonment.

[49]     Mr Peters, you are sentenced to imprisonment for two years and two months. [50]    You may stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch

Phillip Hall Queens Counsel, Christchurch