R v Popata-Edwardson - [2019] NZHC 1342

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2017-087-000131

[2019] NZHC 1342

THE QUEEN

v

FARIMOND POPATA-EDWARDSON

Hearing:
14 June 2019

(Heard at TAURANGA)

Appearances:

O M Salt for Crown

R Gowing for Defendant

Judgment:

14 June 2019

SENTENCING REMARKS OF LANG J

R v FARIMOND POPATA-EDWARDSON [2019] NZHC 1342 [14 June 2019]

[1] Mr Popata-Edwardson, you appear for sentence today having been found guilty by a jury in August last year on charges of rioting,1 participating in an organised criminal group,2 using a firearm against a law enforcement officer,3 discharging a firearm with reckless disregard for the safety of others4 and being in unlawful possession of a firearm.5 The maximum sentences on those charges range from two years imprisonment for rioting to 14 years imprisonment for using a firearm against a law enforcement officer.

[2] You absconded whilst on bail early in 2018 and were not arrested until recently. For that reason the trial took place in your absence. You were represented at trial, however, in able fashion by Mr Gowing. I take this opportunity to thank Mr Gowing for the services he has rendered on your behalf.

The charges

[3] The charges against you were laid as a result of an incident that occurred in Whakatane on the afternoon of 17 January 2017. On that date members of the Black Power gang became aware that a funeral procession involving members of the rival Mongrel Mob gang was due to pass through Whakatane. You and other members of the Black Power gang stationed yourselves at various points around Whakatane where you thought the funeral procession might enter the town.

[4] The funeral procession ultimately entered Whakatane along Valley Road. The catalyst for the incident that gives rise to the charges occurred in a service lane running parallel to Valley Road. Several members or associates of the Black Power gang went to the service lane and ambushed the procession by throwing missiles at it. These included rocks, bottles and sticks. That was obviously a planned event but it involved low level violence. Predictably, however, it evoked a much more violent response from the Mongrel Mob. Shots were fired from the funeral procession in the direction of the Black Power group in the service lane. Vehicles from the funeral procession

1      Crimes Act 1961, ss 87 and 66. (Maximum penalty two years imprisonment).
2      Crimes Act, s 98A. (Maximum penalty ten years imprisonment).
3      Crimes Act, s 198A(1) and s 66. (Maximum penalty 14 years imprisonment).
4      Crimes Act, s 198 and s 66. (Maximum penalty seven years imprisonment).
5      Arms Act 1983, s 45(1) and Crimes Act 1961 s 66. (Maximum penalty three years imprisonment)

then attempted to pursue the Black Power group down the service lane. One of those vehicles tried to run over a Black Power member during this aspect of the incident.

[5] The word went out very quickly to members of the Black Power group stationed…

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 Popata-Edwardson

Details

AGLC: R v Popata-Edwardson [2019] NZHC 1342
Case: [2019] NZHC 1342
Decision Date: 14 June 2019

CaseChat Overview and Summary

In the case of R v Farimond Popata-Edwardson, the defendant was found guilty of various charges including rioting, participating in an organised criminal group, using a firearm against a law enforcement officer, discharging a firearm with reckless disregard for the safety of others, and being in unlawful possession of a firearm. The case was heard in the High Court of New Zealand in Rotorua. The defendant absconded while on bail and was only arrested recently, leading to the trial being held in his absence. The defendant was represented by Mr Gowing throughout the trial.

The court was required to decide on the appropriate sentences for the defendant's various convictions. The court took into account the starting point for the sentences based on the culpability of the defendant's co-offenders. The court also considered aggravating and mitigating factors in determining the final sentence. The court found that the defendant's culpability was similar to that of another co-offender, with a slight distinction due to the defendant not brandishing the firearm at members of the rival gang. However, the court also considered the defendant's convictions for recklessly discharging a firearm and using a firearm against enforcement officers, leading to a starting point of four years three months imprisonment.

The court found that the defendant had a number of previous convictions, but none were relevant for present purposes. The court also considered a mitigating factor, which was that the defendant had taken active steps to resolve the charges some considerable time before the trial. The court applied a discount of five months to reflect this factor, reducing the effective end sentence to one of three years ten months imprisonment. The court sentenced the defendant to three years ten months imprisonment for participating in an unlawful criminal group, nine months imprisonment for rioting, 12 months imprisonment for recklessly discharging a firearm and using a firearm against enforcement officers, and six months imprisonment for being in unlawful possession of a firearm. All sentences were to be served concurrently.

Orders