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 in other parts of the township that shots had been fired at the Black Power group and Black Power decided to mobilise and conduct a show of force in Arawa Road.

[6]    The incident that occurred in the service lane caused the funeral procession to stop. The procession comprised approximately 150 vehicles and as many as 200 to 250 members of the Mongrel Mob. A large number of these persons got out of their vehicles and gathered on the intersection of Valley and Arawa Road. Black Power members and associates then arrived near the intersection of Arawa Road and Tahi Street, approximately 150 metres away from the Mongrel Mob members.

[7]    During the course of the incident a silver Mitsubishi Galant motor vehicle arrived and parked on the side of Arawa Road. People immediately began pulling firearms out of the boot of the Galant. You were one of those persons. Cellphone photographic footage taken by a person who was observing the incident clearly showed you removing and examining a firearm at the boot of the vehicle.

[8]    The incident came to a head when other members of your group handed a firearm to Mr Karaneihana Taipeti. He then discharged it on two occasions in the direction of the Mongrel Mob members. There were also several police officers at the other end of the street trying to keep the Mongrel Mob from coming down Arawa Road towards your group. The evidence was that some of the pellets from these shots ruffled the trouser legs of one or more police officers. Clearly the force of the shots had been spent by the time they reached the police officers and Mongrel Mob members.

Starting point

[9]    The starting point for the sentences to be imposed on you is obviously informed by the sentences that have already been imposed on your co-offenders. As the Crown points out, the courts have identified different levels of culpability arising out of this offending. The most serious is that of Mr Karaneihana Taipeti, who was prepared to

discharge a firearm on two occasions in the direction of both members of the Mongrel Mob and police officers who were endeavouring to keep the two rival groups apart. Below him in culpability are those members of the group who took firearms from the boot of the vehicle and handed them to Mr Taipeti. Below that group are offenders who handled firearms from the boot of the vehicle but did not pass them on  to      Mr Taipeti. Both the Crown and your counsel agree that you fall within this group.

[10]   Your offending is similar to that of Mr Codie Taitapanui, who removed a firearm from the vehicle and brandished it towards the members of the Mongrel Mob at the other end of the street. In his case I selected a starting point of four years three months imprisonment.6 Mr Gowing points out on your behalf that your culpability is slightly less than that of Mr Taitapanui because you did not brandish the firearm at members of the Mongrel Mob. Rather, you only took it out of the boot of the vehicle and examined it.

[11]   I agree that this distinguishes your conduct to some extent from that of Mr Taitapanui, and that ordinarily a slightly lesser starting point would be appropriate. In your case, however, you were also convicted of being a party to the reckless discharge of the firearm and using a firearm against enforcement officers. Mr Taitapanui was acquitted on those charges, and I consider discrete recognition needs to be given to your convictions on them. For that reason I adopt a starting point of four years three months imprisonment as reflecting your overall culpability on all charges.

Aggravating factors

[12]   You have a number of previous convictions, but the Crown agrees none of these is relevant for present purposes. I apply no uplift to reflect your previous convictions.

Mitigating factors

[13]   There is only one mitigating factor I can take into account in the context of your offending. This is that in December 2017 counsel acting for you and Mr Taumata Tawhai sought a sentence indication. I was ultimately not prepared to give a sentence

6      R v Taipeti, Tawhai & Taitapanui [2018] NZHC 2265 at [15].

indication because the starting points advocated by the Crown and your counsel based on the same summary of facts were too far apart. The Crown was advocating a starting point in the region of ten to 12 years imprisonment, whilst your counsel maintained a starting point of no greater than three to four years imprisonment was appropriate. I ultimately declined to give a sentence indication because I was concerned a miscarriage of justice might occur if I did so.

[14]   It turns out that your counsel was correct in his assessment of the appropriate starting point for your offending. This is one of those rare cases where the facts disclosed at trial fall in favour of the defendant rather than the Crown. I also infer that you would have been prepared to enter guilty pleas in December 2017 if I had given a sentence indication that included a starting point in the vicinity of that suggested by your counsel. It was of course open to you to enter guilty pleas notwithstanding the lack of any indication, but I can understand why you did not do so given the significant disparity between the starting points suggested by the Crown and your counsel.

[15]   I gave Mr Tawhai a credit of five months, or around ten per cent, to reflect this factor.7 I consider it appropriate to do the same for you. I therefore apply a discount of five months to reflect the fact that you took active steps to resolve the charges some considerable time before trial. This reduces the effective end sentence to one of three years ten months imprisonment.

Sentence

[16]   On the charge of participating in an unlawful criminal group you are sentenced to three years ten months imprisonment. On the rioting charge you are sentenced to nine months imprisonment. On the charges of recklessly discharging a firearm and using a firearm against enforcement officers you are sentenced to 12 months imprisonment. On the charge of being in unlawful possession of a firearm you are sentenced to six months imprisonment. All sentences are to be served concurrently.

Lang J

7      R v Taipeti, Tawhai and Taitapanui, above n 6, at [28].

Solicitors:

Crown Solicitor, Tauranga