R v Petersen

[2023] NZHC 3281

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-085-938

[2023] NZHC 3281

THE KING

v

MEL PETERSEN

Hearing:

20 November 2023

Counsel:

W Tupua for Crown

P J Ross for Defendant

Sentence:

20 November 2023

SENTENCE OF ELLIS J

[1]        Mr Petersen, I am sentencing you today on one charge of unlawful possession of a firearm and one representative charge of wounding with intent to cause grievous bodily harm.1 I’ll come back to the things that you did that resulted in those charges in a moment.

[2]        Earlier this year I gave you an indication of the sentence that would be imposed. I said the starting point would be nine years’ imprisonment but you would get a 25 per cent discount off that if you pleaded guilty, which you then did. I also said that you could get a further discount of around 10 per cent because you were only 21 at the time of the offending and because you had already shown signs of rehabilitation

– by which I mean the steps you were taking to turn your life around.

1      The maximum sentence for the firearm charge is four years imprisonment. The maximum sentence for the wounding charge is 14 years imprisonment.

R v PETERSEN [2023] NZHC 3281 [20 November 2023]

[3]        Since the time of the sentence indication your lawyer has  arranged  for  Harry Tam to write a report to help the Court with sentencing and I also now have the psychologist’s report, an alcohol and drugs report and the usual provision of advice to court’s report. I note and I will come back to it you have been attending the Grace Foundation and have been doing well there.

[4]       Before I talk more about those things, though, I need to talk about what happened on 23 April 2022. Although I talked about those things in my sentence indication it is important to repeat some of what I said again today.

[5]       So on that day, 23 April 2022 you and some other people—including Mana Lawson—were in the Wellington CBD in the early morning. You had been drinking in a number of bars for some hours before. Some of the people you were with were associates or patched members of the Mongrel Mob and the Killer Beez.

[6]       The three victims had also been drinking in town that night, in the company of others, some of whom were associates or patched members of a rival gang. They were celebrating the 21st birthday of one of the victims, Mr Dekiah Poe.

[7]At some point your group became aware that the other group was around.

[8]       At about 5am your group drove in a convoy and parked on Inglewood Place, Te Aro. You walked from there to Dixon Street. You had a 12-gauge shotgun hidden in your left trouser leg.

[9]       Your group approached the victims’ group, who were standing on the footpath outside Calendar Girls. When one person in your group approached the other group he was punched in the face. Your group retreated towards Inglewood Place.

[10]     You then took the shotgun out of your trousers and gave it to Mr  Lawson.  Mr Lawson fired the gun from his hip in the direction of the other group as they were walking around the corner into Inglewood Place. They were about 10 metres away at that point.

[11]      Although it was Mr Lawson who fired the gun it was you who brought it along and it was you who gave it to him so I proceed on the basis that you were each equally blameworthy. The shot Mr Lawson fired hit the three victims in the head, critically wounding both Mr Poe and Mr Imani Tuala. Mr Poe and Mr Tuala suffered serious head injuries.

[12]     Mr Poe had a ruptured eye. Shotgun fragments are still lodged in his brain and near his heart. There were fractures to bones in his face. He needed emergency surgery to take the pressure off his brain and to fix his eye. It turned out the shotgun fragments lodged in the back of his eye could only be removed by removing the eye itself.

[13]      Mr Tuala had gunshot wounds to the face, neck, chest, brain and tongue. He needed an operation to replace a piece of bone in his skull which had earlier been removed due to the brain bleed and swelling as a result of the gunshot wounds. He is still weak with reduced sensation in his hand, the last information I have and I have to say the information is quite old now but the last information I have is that he is unable to drive. The third victim received a wound to his left cheek after being struck in the face by pellets. He refused medical treatment though at the time and was not admitted to hospital. As I talked about back in April Imani Tuala’s mum has written a powerful victim impact statement where she talks about how her family and her son's life have been changed forever by what happened that night. She and her family were told by doctors that Imani was going to die. Although he proved them wrong, he walks with a limp and can no longer play rugby. Like Mr Poe I think he was only 21 years old. He cannot work. But despite all that Imani’s mother who I understand is listening in today has somehow managed to forgive each of you and even to wish you well. She is obviously a very special and very strong woman. I have also read the letter that you wrote in which you say how sorry you are for what you did.

[14]      When I decided that a starting point of nine years imprisonment was appropriate for the wounding with intent to cause grievous bodily harm charge, I took into account the very serious injuries suffered by Mr Tuala and Mr Poe, the use of a shotgun at close range, which might well have killed, and of course nearly did kill, someone. And I also took particular account of the fact that the attack took place in a

public place with others around and so the risk that your actions posed to complete strangers.

[15]     Although you have quite a few other convictions, particularly for dishonesty offending, I did not increase the starting point for that and, as I said back in April, the nine year starting point will be reduced by 25 per cent because you pleaded guilty. That is because it shows acceptance of responsibility by you and avoided the need for a trial. And as I said I indicated around 10 per cent for your age and rehabilitative prospects. I’ll come back to that again in a minute as well.

[16]      Since then I have received more information about you from the various report writers so I need to talk about that now.

[17]      Mr Tam says in his report that you suffered trauma as a child from an unstable home life and time spent in foster homes. I think your family had drink and drugs at its heart and you were placed in state care when you were around 13 years old. Like so many others I think you were subjected to physical abuse while you were in care. You began drinking and using drugs at around that age and you have been a member of the Killer Bees since 2015 I think although I do understand that you are looking to leave if you have not already left that gang.

[18]      Mr Tam says the absence of positive adult influences can lead to a failure to successfully become an adult and also to risk taking behaviour. He talks about your history of offending, gang involvement and use of drugs and alcohol and says you may have ADHD which can affect decision making. In Mr Tam’s view there is a clear link between your background, mental health and your criminal offending. The psychological report writer expresses very similar views.

[19]      The AOD report writer says you meet the criteria for drug dependence in relation to MDMA in particular although you have also been a big cannabis user. You are working on this and have said you are willing to continue with one—on—one AOD counselling when you are released into the community.

[20]     So based on all these reports, the Crown acknowledges there is a causative connection between your background and mental health difficulties and the offending although Mr Tupua points out that your mental health difficulties are not as great as Mr Lawson’s were.

[21]     As mentioned earlier, your age can also fairly be seen as a factor contributing to your risk-taking and also means a long term of imprisonment may be particularly hard for you. You have been taking some active and positive steps towards rehabilitation at the Grace Foundation which reports that you have been doing well there. Through no fault of your own you have not quite finished the programme at the Grace Foundation and I really am sorry about that. You have graduated from a number of programmes, the Mana Man, Budgeting and Solutions programmes, as well as being in the AOD Programme. Mr Ross told me this morning that you have completed the domestic violence/anger management programme called ‘Jigsaw’. You have said and I believe you that you want to leave the gang and get a job and that you have a plumbing apprenticeship lined up which is fantastic in terms of your future.

[22]     You have also been in a relationship with your current partner, Ms Ponga, for about six months. You have been helping her look after her children and she has told me today how great you have been for them and for her. I think it sounds to me like she is lucky to have had your support and you are lucky to have hers.

[23]     So I think you have a lot of positives going for you now Mr Petersen and I need to try and make sure your sentence reflects those and encourages you to keep going down that path. But Mr Tupua also quite rightly says that whatever the available sentencing discounts might be for these things the end sentence still needs to reflect the seriousness of what you did and the awful harm that you caused to Mr Tuala and Mr Poe.2 Mr Ross accepted that and I have to tell you it’s a very hard balance to achieve.

[24]     so as I said earlier my indication was the starting point of nine years, discounts of around 35 per cent for guilty plea and your age and rehabilitative prospects. But in light of the further rehabilitative steps you have continued to take and shown a

2      McCaslin-Whitehead v R [2023] NZCA 259 at [61].

commitment to I discount by a further five per cent for that and 20 per cent for the causative matters talked about in the reports. Mr Tupua for the Crown thought that was appropriate. So that would get me down to an end sentence of four years imprisonment, which is the same as the sentence I arrived at for Mr Lawson.

[25]     But in your case, I am also required to take account of the really rather long time you have spent on restrictive EM bail. That’s 464 days according to Mr Ross’ submission. Having heard from Mr Ross this morning no reports of non-compliance and so I will be deducting a further six months for that. So that’s going to mean a final sentence of three years and six months imprisonment.

[26]     The sentence on the firearms charge will be one year’s imprisonment which is to be served concurrently—which means that it does not get added onto the three years and six months, you will serve it at the same time.

[27]      Just before I finish I ask that you thank Mr Ross for all the hard work that he’s done for you and I hope that you thank Ms Ponga for her support because she’s obviously a pretty great woman. So if you could stand now please Mr Petersen. Your final sentence today is a sentence of three years and six months imprisonment. Please stand down.

Rebecca Ellis J

Solicitors:

Crown Law, Wellington