R v Pukeroa HC Rotorua CRI 2009-063-697
[2010] NZHC 2221
•10 December 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2009-063-000697
THE QUEEN
v
QUENTIN DUANE PUKEROA TERRY JOHN FAATAAPE JASON KIRK IOPATA
WILLIAM TE PAIRE ARAMOANA
Hearing: 10 December 2010
Appearances: F Pilditch, C Macklin and S Simmers for the Crown
A Schulze for the Prisoner Pukeroa
B Foote for the Prisoner Faatappe
R Weir for the Prisoner Iopata
H Edward for the Prisoner Aramoana
Judgment: 10 December 2010
SENTENCING NOTES OF WYLIE J
Solicitors/Counsel:Crown Solicitor, P O Box 740, Rotorua 3040 ([email protected] /
Mr Edward, P O Box 738, Rotorua 3040 ([email protected]) Mr Foote, P O Box 646, Rotorua 3040 ([email protected])
Mr Bergseng, P O Box 13 282, Tauranga 3141 ([email protected])
Woodward Chrisp, P O Box 347, Gisborne 4040 ([email protected])R A A Weir, P O Box 46 281, Herne Bay, Auckland 1147 ([email protected]) Mr Hine, P O Box 7426, Te Ngae, Rotorua ([email protected])
Mr Schulze, P O Box 2279, Rotorua 3040 ([email protected]) Mr Simpkins, P O Box 2279, Rotorua 3040 ([email protected])
R V PUKEROA & ORS HC ROT CRI-2009-063-000697 10 December 2010
[1] Each of you appears for sentence today in relation to events which occurred in Murupara on 27 January 2009, and on the following days either in Murupara or in Kawerau.
[2] Mr Pukeroa, on 10 November 2010, you were found guilty at trial in Rotorua of six counts. The details are as follows:
a) Murder. This is an offence pursuant to ss 167, 168 and 172 of the
Crimes Act 1961. The maximum penalty is life imprisonment.
b)Two convictions for aggravated burglary. This is an offence pursuant to ss 232(1)(a) and 66(1) of the Crimes Act. Each conviction carries a maximum penalty of 14 years’ imprisonment.
c) Injuring with intent to injure. This is an offence pursuant to ss 189(2) and 66(1) of the Crimes Act. It carries a maximum penalty of five years’ imprisonment.
d) Attempted murder. This is an offence pursuant to s 173 of the Crimes
Act. It carries a maximum penalty of 14 years’ imprisonment.
e) Participation in an organised criminal group — namely the
Mongrel Mob gang. This offence was committed over the period
27 January 2009 to 4 February 2009. It is an offence pursuant to s 98A of the Crimes Act. At the relevant time the maximum penalty was a term of imprisonment of five years.
[3] Mr Faataape, on 10 November 2010 you were found guilty at trial of participation in an organised criminal group. The jury was unable to reach a verdict in respect of counts 9 and 10 in the indictment. The Crown has indicated today that it does not propose to call any further evidence against you in relation to those charges. You are discharged in relation to them.
[4] Mr Iopata and Mr Aramoana, each of you pleaded guilty to a charge of participation in an organised criminal group after the trial had commenced.
Mr Iopata, you pleaded guilty on 19 October 2010, in week two of the trial. Mr Aramoana, you pleaded guilty on 29 October 2010, in week three of the trial.
Relevant Facts
[5] On or about Monday 27 January 2009, several members of the Mongrel Mob gang travelled from Kawerau to Murupara to attend a tangi. There are a number of members of the Tribesmen gang resident in Murupara. There were a series of minor incidents during the day over such trivial matters as what coloured clothing people were wearing. Tensions between members of the Mongrel Mob gang and members of the Tribesmen gang gradually escalated throughout the day.
[6] At about 8.24 pm a more serious incident occurred between Mr Pukeroa, another Mongrel Mob member, and various Tribesmen members outside the Murupara shops. Mr Pukeroa was assaulted by Mahu Herewini, Jamie Herewini, perhaps Jordan Herewini, and three others. Mr Pukeroa was punched, thrown to the ground, kicked and hit a number of times on the head with the blunt side of an axe. His white Nissan truck was stolen. It was subsequently set on fire and pushed over a cliff.
[7] After this assault, Mr Pukeroa was picked up by an associate. He was taken back to rejoin his fellow gang members at Mr Faataape’s property in Tawa Street. He told other members of the Mongrel Mob what had happened. As a result, a number of Mongrel Mob members armed themselves with a variety of weapons and got into vehicles to search for Mr Pukeroa’s truck and for those involved in the assault. They travelled around Murupara in a convoy effectively seeking revenge.
[8] At one point, a Mr Iwi Delamere was spotted by the Mongrel Mob members. Mr Delamere is a member of the Tribesmen gang. The Mongrel Mob members chased him in their vehicles back to his home address at 43 Matai Street. Mr Delamere escaped over the back fence but left his partner and baby at home. Several Mongrel Mob members went onto the property and used their weapons to smash windows in the house and to damage vehicles at the property. Some entered the house, smashing a mirror and tipping over furniture.
[9] The Mongrel Mob members then left 43 Matai Street and travelled to
10 Matai Street. The Herewini brothers lived at that address. They were present when the Mongrel Mob members arrived. They were also armed with weapons in the form of sticks and pieces of wood. Mr Pukeroa got out of a van he had been travelling in and had “words” with the Herewini brothers, especially Mahu Herewini. Mr Pukeroa and other Mongrel Mob members then went onto the property and some of them started smashing the windows with their weapons.
[10] The Herewini brothers ran from their property as the Mongrel Mob members arrived. However, Jamie Herewini delayed and he was cornered by a number of Mongrel Mob members. He was assaulted. One of the assailants was Mr Pukeroa. Either Mr Pukeroa or an unidentified co-offender swung at Jamie Herewini with a small axe. This blow initially missed him but it connected on the return swing. Jamie Herewini fell to the ground and he was kicked about the body. He then managed to escape. He suffered a dislocated shoulder and bruising down the side of his back.
[11] The Mongrel Mob members then prepared to leave the property. Mr Pukeroa got into Mahu Herewini’s Hilux utility which was in the driveway and used it to ram another vehicle that was parked further up the drive on two or perhaps three occasions. He then reversed out onto the street, hitting a fence in the process. He also prepared to leave. Some of the Herewini brothers had made their way back to the front of their property by this stage. Mr Pukeroa had stopped the vehicle on Matai Street. He and Mahu Herewini exchanged further abuse. A piece of wood or some other object was thrown at the truck.
[12] Mr Pukeroa then reversed again. He aimed the vehicle at the Herewini brothers. He then drove at them. He smashed through the front fence and pursued them up the side of the house. Jordan Herewini had run to the rear of the property. In attempting to escape, Jordan tripped on a clothesline. Mr Pukeroa drove the utility into Jordan as he tried to get to his feet. He then smashed through the back fence and escaped down a service lane. Jordan Herewini sustained serious multiple injuries including a fractured skull and brain trauma. He died a short time later en route to Rotorua Hospital.
[13] Mr Pukeroa drove towards Oregon Drive and then back onto Matai Street where he caught up with some of his Mongrel Mob associates. They then drove back towards 43 Matai Street. By this stage, Iwi Delamere had returned to his property and he was standing on the footpath outside his driveway. Mr Pukeroa spotted him and drove the utility at speed at him, crossing from the opposite side of the road and mounting the curb in an attempt to run Iwi Delamere over. Someone called out to Iwi Delamere and he managed to get out of the way in time. Mr Pukeroa continued driving the vehicle, returning to Mr Faataape’s property in Tawa Street.
[14] Between 27 January 2009 and 4 February 2009, Mr Pukeroa, Mr Iopaata, Mr Faataape and Mr Aramoana participated in the Mongrel Mob gang as an “organised criminal group”. It had as one of its objectives serious violent offending. Details of their participation are as follows:
a) Mr Pukeroa is a Kawerau Mongrel Mob member. He mobilised his gang associates from Mr Faataape’s address after he had been assaulted at the Murupara shops. He drove around Murupara with them looking for his missing truck but also intent on retribution and revenge. He was involved in the attacks on 43 Matai Street and
10 Matai Street.
b)Mr Faataape is a Murupara Mongrel Mob member who hosted the members from out of town at the property he occupied at
32 Tawa Street. He participated by allowing his property to be used as the centre of operations for the organised criminal group over the course of the evening of 27 January 2009. In the following days he maintained active communications with fellow gang members about the so-called “war”.
c) Mr Iopata is a Kawerau Mongrel Mob member. He was not present at either 43 or 10 Matai Street. He had returned to Kawerau after the tangi. However, he maintained contact with his fellow gang members by text messages and he offered to return to Murupara to join in the
“war”. In the following days he actively participated in the group, attending meetings at the gang pad in Kawerau and preparing for further violent reprisals and retaliation from the Tribesmen gang.
d)Mr Aramoana was also a Kawerau Mongrel Mob member. He was in Murupara on 27 January 2009. He joined other members in the convoy of vehicles travelling around Murupara looking for retribution and revenge. He was present when damage was inflicted on
10 Matai Street, when Jamie Herewini was assaulted and when Jordan Herewini was killed. In the following days he returned to Kawerau and attended meetings at the gang pad in preparation for further retaliation and reprisals.
Victim Impact Statements
[15] I have received a number of victim impact statements. I refer to each briefly. [16] The first is from Jamie Herewini. He was Jordan’s half-brother. He
described his sense of loss. He described the relationship he had with Jordan, and the efforts the community has made to try and deal with his death. He described a community garden which has been planted in Jordan’s memory. He explained how the sharing of the produce from that garden has helped to ensure that Jordan’s spirit lives on. He detailed the sad and difficult time that the family has experienced as a result of Jordan’s death.
[17] There is a statement from Ione Herewini. Ione is Jordan’s sister. She has read her statement in Court this morning. She has described in harrowing terms the effect that her brother’s death has had on her.
[18] Another statement is from Jordan’s mother, Natalie Cowley. She has also read her statement in Court this morning. She has described the sorrow she feels at the loss of her son. She detailed the horror she feels at the manner of his death, and she questioned how Jordan ended up being killed as a result of a so-called gang war. She noted that Jordan was not a gang member, or a gang prospect. She described
Jordan’s upbringing, and the difficulties parents experience in places like Murupara, where young males in particular are fascinated by gangs, and are drawn to gang life.
[19] Another statement is from Kyro Selket. He is Natalie Cowley’s partner, and he treated Jordan as his stepson. He described the effect that Jordan’s death has had on everyday life in the family. He spoke of chaos, regret, anger, confusion, loss and a sense of hopelessness.
[20] I have received a victim impact statement from Yvonne Brown. She is the mother of Jordan’s brothers. She described the impact Jordan’s death has had on the wider family. She also described the impact that Jordan’s death, and gang violence generally, has had on Murupara. She detailed some of the steps the community is taking to try and recover from the tragedy of Jordan’s death, and other gang-related incidents which have occurred in the town.
[21] Finally, I received a victim impact statement from Tewaiwhakata Rurehe. She is Iwi Delamere’s partner. She described how scared and fearful she and her baby were when Mongrel Mob members forced their way into her home at 43 Matai Street. Indeed, she has since moved away from Murupara. The house was so damaged that she could not afford to replace things. She did not want to be there anyway, because there were so many unpleasant and horrible memories for her. She described how Murupara was left in mourning following Jordan’s death.
[22] I will now deal with each of you in turn.
Quentin Duane Pukeroa
Pre-Sentence Report
[23] I have received a full and helpful pre-sentence report.
[24] Mr Pukeroa, you are a 34-year-old man of Tuhoe and Nga Puhi descent. You were born and raised in Kawerau and you have lived there all of your life. You are one of three siblings. You told the reporting officer that you had a positive
upbringing and that you were not exposed to alcohol abuse or violence in your childhood. You married your wife when you were 18, and you have four children aged between 11 and 18.
[25] You left high school at 17 with a qualification in Te Reo Maori, and then worked at various seasonal jobs, interspersed with periods of unemployment and incarceration. You were convicted of assaulting your wife in 2004 and again in
2005. You advised that following your release from prison in 2006, your relationship with her improved and that there have been no further instances of domestic violence. You also obtained work at Mountain View Scaffolding and Rigging and you were in that position until your remand in custody in relation to your present offending in February 2009.
[26] You have been a ‘patched’ member of the Mongrel Mob for the last 10 years. You advised that you kept your gang association away from your family and that you did not have any position of status in the gang but were merely a “soldier”.
[27] You do not have any current income. You owe $4,930.01 in fines. You also have a debt of approximately $35,000 to Inland Revenue for child support.
[28] You are in good health.
[29] You have 19 previous convictions. Previous violent offences include:
a) Aggravated robbery in 1994, in respect of which you were sentenced to three years imprisonment; and b)
Male assaults female in 2004 and again in 2005, in respect of which you were sentenced to six months’ supervision and eight months’
imprisonment respectively. [30]
Your
other convictions are relatively minor and include drug-related
offending (possession of cannabis and cultivating cannabis), driving and alcohol offences, compliance offences (failure to answer bail, breach of community work), and disorderly offences (wilful trespass, resists police, obstructs police).
[31] You did not deny having taken part in the incidents at Murupara on
27 January 2009, and advised that your defence was based on your assertion that you did not intend to kill the victim Jordan Herewini. This is a position you still maintain. You stated that you were extremely angry after the theft of your vehicle, and you admitted using Mahu Herewini’s vehicle as a weapon. You justified this by saying that you were alone and that you were surrounded by six rival gang members.
[32] The report writer considered that you have expressed some remorse. You have stated that you were devastated when you heard of the death of Jordan, and you have expressed a desire to make an apology to his family. However, as far as I am aware, you have not carried through on this.
[33] Key factors contributing to your offending are identified as being your propensity for violence, your criminal associates, and alcohol abuse. You do not accept that your gang membership was a contributing factor, attributing your behaviour to the rival gang’s theft of your vehicle and also your alcohol abuse on the day. You have no intention of relinquishing your gang membership. You did however acknowledge that you may not have reacted in such an extreme way if you had not been under the influence of alcohol. The report writer noted that you appear to be a moderate user of alcohol, although your wife advised that you have no problems with alcohol and drugs at home.
[34] The report writer considered your gang membership to be the primary driver for the offending. He considered that you have a low motivation to address your offending behaviour given your commitment to the Mongrel Mob gang. He also assessed you as being at high risk of reoffending.
Submissions
[35] I have received helpful submissions from Mr Pilditch on behalf of the Crown, and from Mr Schulze on your behalf.
[36] Mr Pilditch submitted that life imprisonment with a minimum non-parole period of 13 to 16 years is appropriate. He submitted that murder is the lead offence
and that life imprisonment is the inevitable sentence for Jordan’s murder. He accepted that all other offences should receive concurrent sentences.
[37] Mr Schulze accepted that a sentence of life imprisonment is inevitable given the nature of the lead offence. He also accepted that this sentence must be accompanied by a minimum term of imprisonment of not less than 10 years. He referred to various aggravating and mitigating factors, which I will come back to shortly and submitted that a minimum term of imprisonment of between 12 and 13 years is appropriate.
[38] Mr Schultz produced a character reference for you from Tawhirangi Pukeroa. She is your wife. She says that you are a good, loving and caring father. There was also a reference from your wife’s parents. I have read that reference. They generally speak of you in positive terms. I also acknowledge that your parents are here today to support you. Indeed, I understand your mother has travelled from Australia.
Purposes and Principles of Sentencing
[39] In sentencing you, I am required by the Sentencing Act 2002 to consider the purposes and principles of sentencing set out in ss 7 and 8 of that Act.
[40] In my judgment, the following purposes of sentencing are particularly relevant in your case:
a) first, I must seek to hold you accountable for the harm you have done to the community by your offending;
b)secondly, I must seek to promote in you a sense of responsibility for, and acknowledgement of that harm;
c) thirdly, I must seek to provide for the interests of the victims of your offending;
d)fourthly, and importantly in this case, I must denounce the appalling conduct in which you were involved;
e) fifthly, I must seek to deter you and others from committing the same or a similar offence; and
f) finally, I must seek to protect the community from you.
Mr Schulze has accepted that I must take these various matters into account.
[41] Under s 8 of the Act, I have also taken into account the following principles of sentencing:
a) the gravity of your offending, including your degree of culpability;
b)the seriousness of the offences in respect of which you have been convicted;
c) the general desirability of consistency with appropriate sentencing levels for similar offenders committing similar offences in similar circumstances; and
d)such information as has been provided to me concerning the effect of your offending on the victims.
[42] Pursuant to s 9 of the Act, I have taken into account various aggravating and mitigating factors to the extent that they are applicable. In your case, these include the fact that your offending involved actual violence; the murder involved the use of the vehicle as a weapon; the very considerable harm resulting from your offending; the relative vulnerability of the victim, Jordan Herewini, when he fell over the clothesline; the fact that the offending was gang related; and a degree of premeditation on your part. I can also take into account your previous convictions. I must not take into account by way of mitigation the fact that you were, or claim that you were, affected by alcohol at the time of the offending.
Analysis
[43] Mr Pukeroa, you have been found guilty of murder. Under s 102 of the Sentencing Act I must sentence you to imprisonment for life, unless, given the circumstances of the offence and your own circumstances, a sentence of imprisonment for life would be manifestly unjust.
[44] I have already detailed the circumstances of your offending resulting in your conviction for murder. I have considered those circumstances and your personal circumstances. The threshold is high and in my judgment, there is nothing to suggest that a sentence of imprisonment for life would be manifestly unjust in your case and indeed, I note that Mr Schulz accepted that a sentence of life imprisonment is inevitable. I now go on to consider under s 103 of the Act the minimum term of imprisonment I must impose.
[45] Under s 103(2) the minimum term of imprisonment ordered may not be less than 10 years, and it must be the minimum term of imprisonment that I consider necessary to satisfy all or any of the following purposes:
a) first, the need to hold you accountable for the harm done to the victim and the community by your offending;
b) secondly, to denounce the conduct in which you were involved;
c) thirdly, to deter you or others from committing the same or a similar offence; and
d) fourthly, to protect the community from you.
[46] I have considered each of these matters. Your attack with the vehicle on Jordan Herewini was brutal. He was a defenceless 16-year-old youth. Your attack on him resulted in his death, and you must be held accountable for that. I must also denounce the appalling conduct in which you were involved. You have murdered a
16-year-old boy, using his brother’s four-wheel drive truck as your weapon of
choice. You were fuelled by anger, alcohol and a desire for revenge. You took the law into your own hands, and set out to intimidate and exact revenge by assaulting Tribesmen gang members, and trashing their properties. Such extreme and violent behaviour cannot be tolerated. I must seek to deter you and others from such offending. Behaviour such as yours is becoming increasingly common. I am aware of increasing gang violence in some parts of the country, including Murupara. Only a few days ago a Tribesmen gang member was sentenced in this Court for injuring two Mongrel Mob members with intent. The sentencing Judge, Duffy J, noted that it cannot be pleasant for anyone living in Murupara to see the young men of that community involved in repeated attacks on each other. She noted that the whole community in Murupara must be living under a cloud of despair and shame at the
way in which the young men in the community are behaving.[1] I can only endorse
[1] R v Merriman HC Rotorua CRI-2009-063-4920, 3 December 2010 at [24].
those comments.
[47] Duffy J was sentencing a much younger man. You are 34 years old. You should not be leading your fellow gang members in escalating violence of this type. I am also aware of other recent cases with gang overtones where vehicles were used as a weapon. There is a need to deter you and others from such mindless intimidation and violence played out against a background of petty gang and ultimately hollow gang allegiances. On 27 January 2009, you and others effectively held Murupara to ransom for a number of hours. The community is entitled to be protected from such lawless behaviour and it has to be denounced in the strongest terms. In my view your offending calls for a minimum term of imprisonment considerably in excess of the minimum 10-year period stipulated in the Act.
[48] Under s 104, I must make an order imposing a minimum term of imprisonment of at least 17 years in certain specified circumstances, unless I am satisfied that it would be manifestly unjust to do so.
[49] Mr Pilditch addressed s 104. He submitted that it does not apply. So did
Mr Schulze.
[50] One of the matters I am required to consider under s 104(c) is whether or not Jordan’s murder involved an unlawful entry into, or an unlawful presence, in a dwelling place. Here Jordan Herewini was murdered in the back yard of the property at 10 Matai Street. Mr Pilditch submitted that the section at 10 Matai Street does not qualify as a dwelling place for the purposes of s 104(c). He referred to the
decision of Asher J in R v Pahau.[2] In that case the Court held that an empty section
[2] R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010.
was not a “dwelling place”, but that areas like decking can be. I accept that reasoning. Section 104(1)(c) is aimed at home invasion cases. Here no Mongrel Mob member went into the house at 10 Matai Street. I accept that the back of the section where Jordan was killed was not a place where people dwelled.
[51] Under s 104(d) I am required to consider whether the murder was committed in the course of another serious offence. Here Jordan was struck by you shortly after his older brother, Jamie, was assaulted, and his family home was the subject of an aggravated burglary. Further, shortly after running over Jordan, you attempted to murder Iwi Delamere. All of these matters comprise serious offending. However, Mr Pilditch accepted that Jordan was not run down in the course of committing these serious offences. He acknowledged that the taking of the truck, the targeting of the Herewini brothers, and Jordan’s murder were part of a connected series of acts, rather than acts completed during the commission of another serious offence. Again, I accept Mr Pilditch’s reasoning.
[52] No other circumstances detailed in s 104 are obviously relevant.
[53] For these reasons, I have not considered the imposition of a minimum period of imprisonment of 17 years or more pursuant to s 104.
[54] Both Mr Pilditch and Mr Schulze have referred me to a number of other cases. I have considered the same. Some, such as R v Sila[3] and R v Gardner[4] are helpful, because in those cases the prisoner also used a motor vehicle as a weapon. The case of R v Wallace[5] is also helpful. That case involved gang tensions between
[3] R v Sila [2009] NZCA 233.
[4] R v Gardner [2009] NZCA 113.
[5] R v Wallace HC Wellington CRI-2007-083-1608, 20 February 2009.
the Mongrel Mob and Black Power. Serious violence occurred, and a two-year-old child was killed when a gun was discharged at Black Power members. The violence was triggered by desire for retribution. The Court adopted a minimum non-parole period of 15 years’ imprisonment. I have also considered R v McCallum,[6]
[6] R v McCallum HC Whanganui CRI-2008-083-2794, 12 February 2010.
R v Shadrock[7] and R v Worrell.[8]
[7] R v Shadrock HC Auckland CRI-2009-092-3881, 2 July 2010.
[8] R v Worrell HC Auckland CRI-2008-092-9884, 15 February 2010.
[55] It is common ground that I have to take into account the other offending in respect of which you have been found guilty when I am considering the appropriate minimum term of imprisonment.
[56] I deal first with the two aggravated burglary convictions. There is no guideline judgment applicable to aggravated burglaries. However, the Court of Appeal in R v Watson[9] explicitly endorsed the application of aggravated robbery guidelines derived from the decision in R v Mako.[10] Here the aggravated burglary of both 43 Matai Street and 10 Matai Street involved an element of premeditation by
[9] R v Watson CA 224/03, 24 October 2003.
[10] R v Mako [2002] 2 NZLR 170 (CA).
you. Weapons were used. There were multiple attackers and home invasion in the case of 43 Matai Street. The offending arose out of a gang warfare situation. Two properties were targeted — 43 Matai Street and 10 Matai Street. Considering the relevant guidelines, in my view a starting point of eight years’ imprisonment is warranted in respect of each offence.
[57] Turning to the offence of injuring Jamie Herewini with intent, the guideline judgment in respect of this offence are the decisions of R v Harris,[11] where the Court cautioned against a mathematical approach and encouraged a focus on the nature of the injury inflicted, and R v Taueki.[12] Here Jamie Herewini suffered a dislocated shoulder and heavy bruising. A weapon was used. There were multiple attackers. I accept that it is not altogether clear whether you struck the relevant blow or whether it was struck by someone else. You were, however, clearly involved. In my view, this offending requires a starting point of two years’ imprisonment.
[11] R v Harris [2008] NZCA 528.
[12] R v Taueki [2005] 3 NZLR 372 (CA).
[58] I now turn to the charge of attempted murder. There is no guideline judgment applicable to offending of this kind. I bear in mind a recent decision of my own — R v Bolt.[13] That case was in some respects similar on its facts, although after the victim was struck by the motor vehicle, he was hit in the head with a claw hammer. I adopted a starting point of 10 and a half years’ imprisonment. The Crown has referred me to a number of other cases, where various starting points ranging from 10 to 13 years were adopted, and final sentences ranging from six to 11 years were imposed. There are some differences here. Mr Delamere was not
[13] R v Bolt HC Rotorua CRI-2009-077-1497, 28 October 2010.
injured, but there were aggravating features: first the gang warfare context and secondly the use of the vehicle as a weapon. In my view, if this offending were considered alone, it would justify a starting point of nine years’ imprisonment.
[59] Finally, I refer to the offence of participation in an organised criminal group. I deal with this more fully shortly when considering your co-offenders. I accept Mr Pilditch’s submission that you played a lead role in this particular offending. Were you being sentenced in relation to this offence alone, an appropriate starting point would be three years’ imprisonment.
[60] Here you committed five other serious offences in addition to murder. The most serious of these additional offences is the attempted murder. The aggravated burglaries are also serious offending in their own right. The offences were all committed within a short timeframe of approximately 40 minutes, and I accept that concurrent sentences are appropriate.
[61] Given your overall conduct and taking into account the matters listed in s 103(2), in my view a substantial uplift in the minimum non-parole period from
10 years is warranted. In my view, the appropriate starting point for the lead offence of murder is one of 15 years’ imprisonment.
Aggravating and Mitigating Features
[62] I now turn to look at aggravating and mitigating factors personal to you.
[63] As I have noted, you have an extensive criminal record, including a number of convictions for violent offences. They are however much less serious than the present offending, and in my view, they are of only limited relevance in relation to the convictions in respect of which I am sentencing you.
[64] The Sentencing Act provides that the actions of a victim can be a matter for consideration and that they can be a mitigating factor. I acknowledge that Tribesmen members assaulted you and that your truck was stolen. I accept, and Mr Pilditch accepted, that this was the catalyst for your conduct. Nevertheless, it is my clear view from the evidence that I have heard that your conduct was driven by anger and a desire for revenge. There was a distinct time lapse between the assault and your later offending. You were not acting in the heat of anger. In my view, your later actions were deliberate and premeditated. Further, you incited others to act. Whatever Jordan and his brothers had done, in my judgment, there can be no excuse for the appalling retaliation that you meted out.
[65] I accept that you have expressed remorse to the probation officer who wrote the pre-sentence report. However, you have not relayed that remorse to Jordan’s family insofar as I am aware, and you have been steadfast in your denial that your gang involvement played a role in your offending.
[66] I doubt whether there is any great or genuine remorse, and such remorse that you have expressed seems to me to be too little, and too late.
[67] In my judgment, any minor discount I might have allowed for your remorse is balanced by the aggravating factor of your prior criminal history.
Sentence
[68] Mr Pukeroa will you please stand.
[69] In respect of the murder of Jordan Herewini I sentence you to life imprisonment with a minimum term of imprisonment of 15 years.
[70] In respect of the aggravated burglary of 43 Matai Street, I sentence you to a term of imprisonment of eight years.
[71] In respect of the aggravated burglary of 10 Matai Street I sentence you to a term of imprisonment of eight years.
[72] In respect of the conviction for injuring Jamie Herewini with intent to injure, I sentence you to a term of imprisonment of two years.
[73] In respect of the attempted murder of Iwi Delamere, I sentence you to a term of imprisonment of nine years.
[74] In respect of the offence of participation in an organised criminal group, I
sentence you to a term of imprisonment of three years. [75] The sentences are to be served concurrently. [76] You may stand down.
Terry John Faataape, Jason Kirk Iopata and William Te Paire Aramoana
[77] Mr Faataape, Mr Iopata and Mr Aramoana, you have all been convicted of the same offence — participation in an organised criminal group, namely the Mongrel Mob. I will consider your respective pre-sentence reports, then the applicable law and then the extent of your individual participation in the organised criminal group. I will sentence you individually at that point.
Mr Faataape
Pre-Sentence Report
[78] Again, I have received a full and helpful pre-sentence report.
[79] You are a 42-year-old man of Samoan and Maori (Tuhoe) descent. You were born in Auckland and raised in Murupara. You are the eldest sibling with two brothers and three sisters. You attended St Paul’s Collegiate as a boarder but left in fifth form without any formal qualifications. Your father, now deceased, was described as a “hard man” who meted out harsh physical punishment. However, you did not resent your father and you looked after him when he was dying of cancer in
1988. Your mother, now remarried, is a Kohanga Reo teacher, and she is supportive of you. Your brother has described you as “no risk to anyone”, and your sister has described you as having “a big heart”.
[80] You have eight children, including two adult children from a former union and six children aged four to 15 years, who are in the care of your estranged wife. You married her in 2001 and you were together for some five years prior to that. However, in 2003 a restraining order was issued against you. Child, Youth and Family intervened, and in 2004 you were charged with beating your sons. You moved out of the family home in 2008 but you stated that you maintain contact with your family whenever you can. You are in the process of applying for supervised visits. You have stated that you often look after your four-year-old child.
[81] From 2000 to 2003 you were employed by Baywide Tyres, where you changed tyres on a 24-hour call-out basis. You also mentioned having a job lined up as a bandsaw operator with “Tui Timbers” just prior to your remand in custody (although the report writer could not confirm this). Currently, you have no income other than an unemployment benefit, and you owe $6,160.14 in unpaid fines.
[82] You became involved in the Mongrel Mob after your father died. You said that Murupara was a small town where “everyone supported someone”, and you chose the Mongrel Mob because of your friends. Your gang affiliation is evident from the tattoos on your face.
[83] You cannot bear weight on your right leg following a motorcycle crash in
2002. You were also hit twice on the head with a hammer in 2001. You are
apparently taking various medications for an untreated tooth abscess, indigestion and hypertension. You reported that you have not consumed alcohol or drugs over the past year due to your bail conditions, but that you used to drink on a reasonably regular basis about or at least once a week. You advised that you have not used drugs since 2004, that you have no suicidal ideation, and that you do not gamble.
[84] You have amassed 43 previous convictions in the District Court between
1984 and 2008. Relevant previous convictions include:
a) Acting in contravention of a restraining order (x8) (2008);
b) Injuring with intent to cause GBH (x2) (2004);
c) Assaulting a child (2004);
d) Assaulting a person with a blunt instrument (2004);
e) Unlawful assembly to disturb the peace (2000);
f) Unlawful possession of ammunition (1994);
g) Disorderly behaviour (1993);
h) Assault with intent to injure (1993); and i) Wilful damage (1993).
[85] You also have previous drug, driving and dishonesty convictions.
[86] You state that you have constructed a “remorse letter” because you feel sorry that Jordan had been killed. However you accept no responsibility for his demise and were apparently “shocked” at your guilty verdict. You still maintain that you were not involved. The report writer considered that you have low motivation to change. Factors identified as contributing to your offending were your offending supportive associates — that is, your Mongrel Mob associates. You are apparently unlikely to relinquish your gang connections, although you have stated that you are ready to live a more “relaxed” life, given your age.
[87] You have demonstrated good compliance with previous rehabilitative programmes, your motivation being access to your children. For example, you self-referred to a Stopping Violence programme in 2004. However, this does not appear to have resulted in changes to your behaviour. You are assessed as being at
high risk of re-offending due to your denial of culpability and your active involvement in gang life.
[88] Imprisonment was recommended. You were not able to provide a suitable address for home detention. Mr Foote on your behalf sought an adjournment so that a suitable address could be found. I indicated to him that a sentence of home detention was not, in my view, appropriate, and I declined that application.
Jason Kirk Iopata
Pre-Sentence Report
[89] Mr Iopata, you are 36 years old and you reside in Kawerau. You and your wife have been together for eight years and you married her last year. You have a seven-year-old son. Your wife describes you as a good husband and father. She acknowledged your gang affiliation and stated that she supports you. You and your wife have good family support around you from your wife’s sister and your cousins, who you maintain regular contact with. Your parents have passed away.
[90] You receive a joint sickness benefit of $150 a week and you have little disposable income after expenses. You have had difficulties with securing employment because of your facial tattoos, but you are trying to obtain employment as a truck driver and are interested in undertaking training for a Heavy Trade Licence.
[91] You have been a ‘patched’ Mongrel Mob member for the past 10 to 11 years. You advised that you are no longer involved in criminal activity but that you attend social functions that occur at the gang headquarters. You stated that you are getting older and that your focus is now on your family. You advised that you have not consumed alcohol or used illegal drugs for the past 14 years. You potentially have blood pressure issues, for which you have not yet sought medical attention. You have no outstanding fines.
[92] You have 12 previous convictions. Prior convictions include one count of rape, drug offences (possessing cannabis plant, cultivating cannabis, possessing cannabis for supply), minor violence offences, dishonesty offences, property offences, and driving offences.
[93] You have stated that you and others were at the Mongrel Mob’s gang pad and that you were expecting retaliation after the events that had occurred in Murupara. No further incident in fact occurred. You are firm that you had no involvement with the incidents at Murupara. The main factor contributing to your offending was your offending-supportive associates. Your risk of reoffending is assessed as low but, given your previous convictions, the report writer assessed your general risk of reoffending as medium.
[94] The probation officer recommended a sentence of home detention and community work.
[95] The address of 3 Whittaker Street, Kawerau has been assessed as suitable for home detention, and the other occupant (your wife) has given consent. You have been assessed as a suitable candidate for home detention.
William Te Paire Aramoana
Pre-Sentence Report
[96] Mr Aramoana, you are a 26-year-old male of Tuwharetoa and Tuhou descent. You are currently at Waikeria Prison serving a three-month custodial sentence, but previously you lived with your three children, aged 7, 8 and 9, in Kawerau. The mother of your children lives in Auckland and she has little contact with the children. You have a current partner who you have been with for four years.
[97] You described a good upbringing and good parents. Your father recently passed away and your mother in Australia is suffering from cancer. You have a good relationship with your sister. You left school at age 16 with no formal
qualifications, but have completed courses in forestry and gained various licences for the use of heavy machinery. You have been employed for the past five to six years working on various rigs, and previously worked in orchards, packing houses, panel beating and as a forklift driver.
[98] You informed the probation officer that you were a member of the Mongrel Mob for approximately six months prior to the offending. You were patched but your patch has been taken off you since the offending. You have outstanding fines outstanding of $315. You are generally in good physical and mental health, and you do not have a harmful pattern of consuming alcohol or drugs.
[99] You have two previous convictions: driving with excess breath alcohol (2002) and breach of the Corrections Act 2004 (2010). The latter charge arose when you appeared in the Rotorua High Court during the course of this trial.
[100] In relation to the present offending, you stated that one of your friends was badly beaten and his truck stolen, and that you got into a vehicle and travelled to a house to try to recover the truck.
[101] You have demonstrated some insight by identifying alcohol and offending-supportive associates as contributing to your offending. You also commented that you were remorseful but stated that it was an accident, and that you no longer think about it. In response to whether you took responsibility for your actions you said, “actually I don’t”, and stated that you were prepared to accept the sentence imposed but also stated that you felt “hard done by”.
[102] The report writer assessed your motivation to address your offending as low, as you did not consider your use of violence a factor contributing to your offending. You also stated that you would attend alcohol and drug counselling and violence prevention programmes, “if that’s what it takes”. The report writer considered that you were at high risk of reoffending, given your current offending and your gang involvement, although the assessment tool indicated that the risk was low.
[103] You stated that you have been “thrown out” of the gang. You also said that your family comes first, and that you will not be involved in the gang in the future if it compromised your ability to be with your children.
[104] The probation officer recommends a short sentence of imprisonment. The possibility of home detention, with a non-association order in relation to gang members, was also considered suitable, unless this option was considered by me to be too lenient given the seriousness of your offending.
Purposes and Principles of Sentencing
[105] Much the same purposes and principles of sentencing apply to all of you. I have had regard to the need to hold each of you accountable for your offending, the need to promote in each of you a sense of responsibility for and acknowledgement of your offending, and the need to denounce the conduct in which you were each involved. I am also mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of your individual offending, including your degree of culpability, and I have considered the seriousness of this type of offence and the general desirability of consistency in the appropriate sentencing levels with similar offenders committing similar offences.
Relevant Law
[106] There is no tariff case in relation to the offending in respect of which you have been convicted, but there are a number of decisions which do help.
[107] I refer first to R v Church.[14] That case involved gang violence between Black Power and Mongrel Mob members in Wanganui. After an incident at a rugby league match, Mongrel Mob members gathered together and went to confront the Black Power members. They went to a Black Power house. It was entered and the occupants were assaulted. Vehicles driven by Mongrel Mob members were used to try to run over Black Power members. The violence culminated in a two-year-old
[14] R v Church HC Wellington CRI-2008-085-2762, 23 May 2008.
girl being shot and killed while she was asleep. Three Mongrel Mob members were sentenced on the charge of participation in an organised criminal group. The Crown accepted that they had no idea that there was a firearm in one of the vehicles. However they got into the vehicles knowing that they were heading towards a Black Power house, and that a gang confrontation was going to occur. In the High Court, Ronald Young J considered that the appropriate starting point for each offender was three years’ imprisonment. The Court considered that the appellant — Mr Church — had made a deliberate decision to involve himself in the intended activity, knowing that a violent confrontation would follow. His starting point was reduced to two and a half years’ imprisonment to recognise that he was involved on
the periphery of the events. The Court of Appeal[15] upheld the sentence in the
High Court, stating that it was within the acceptable range. Home detention was not considered appropriate given the need to deter and denounce Mr Church’s offending.
[15] R v Church [2008] NZCA 272.
[108] In R v Smith,[16] Young J was sentencing another prisoner for participation in a criminal group, and for various other offences, including the possession of ammunition. The participation charge arose out of the same incident as the Church case. He adopted a starting point of two and a half years. Two months were added to the starting point to reflect, amongst other things, the charge of possession of ammunition. A one-month concurrent sentence was given for possession of the ammunition.
[16] R v Smith HC Wellington CRI-2008-085-2762, 13 June 2008.
[109] In R v Mitford,[17] Mr Mitford, Mr Epapara, and another went to a house demanding “compensation” from the owner. Apparently the owner’s sons had made what were considered inappropriate comments to a Black Power member. When compensation was refused, the owner was assaulted and told to find the money. Mr Epapara was a close associate of the Black Power gang. After attending a party, he, along with three others, decided to visit Mongrel Mob members to exact retribution for an earlier shooting. They drove to two houses where Mongrel Mob members lived. They entered the first house, assaulted the victim and robbed him of his patch. At the second house, they induced the victim to come to the door and then
[17] R v Mitford [2005] 1 NZLR 753 (CA).
shot him. Mr Mitford and Mr Epapara both pleaded guilty to participating in organised criminal groups. The starting point adopted in Mr Mitford’s case was one of two years’ imprisonment. His role during the visit to the house was to observe one of his co-offenders in making demands and punching the victim. The Court of Appeal upheld the starting point adopted by the Judge. Again home detention was dismissed as being an inappropriate sentence given the need to deter offences of this kind. In Mr Epapara’s case, a starting point of three years’ imprisonment was adopted. The High Court Judge had accepted that Mr Epapara’s role in the offending was peripheral, but noted the wide scope of s 98A. The Court of Appeal upheld this starting point. It commented as follows:
[61] … Offending under s 98A with the objective of committing serious violent offences will tend to be viewed more seriously than offending with the objective of obtaining material benefits …
[110] In R v Wharewaka,[18] Baragwanath J was sentencing various Black Power members and associates for drug-related offending. One member had pleaded guilty to participating in an organised criminal group and to unlawful possession of a firearm. The object of the group was to obtain benefits from the manufacture of methamphetamine and the sale and cultivation of cannabis. His Honour adopted a starting point of 18 months’ imprisonment on the firearms charge, and imposed a cumulative sentence of eight months’ imprisonment for the charge of being involved in an organised criminal group.
[18] R v Wharewaka HC Auckland CRI-2004-092-4373, 28 April 2005.
[111] In R v Gledhill,[19] the prisoner pleaded guilty to wounding with intent and to participation in an organised criminal group. Gledhill was travelling in a vehicle. She stopped when she saw rival gang members. She attacked them with a cricket bat. The Court adopted a starting point of two years and 11 months in relation to the charge of participation in an organised criminal group.
[19] R v Gledhill [2009] NZCA 415.
[112] I also refer to my own decision in R v Te Tomo.[20] In that case Mr Te Tomo participated in the same organised criminal group as each of you. He attended at
[20] R v Te Tomo HC Rotorua CRI-2009-063-1915, 30 October 2009.
43 Matai Street, although there was nothing to suggest that he went on to the
property. He accepted that he went to the property for a fight with members of the
Tribesmen gang. There was no evidence to suggest that he attended at
10 Matai Street. I adopted a starting point of two and a half years in relation to the offence of participation in an organised criminal group. I considered the aggravating features to Mr Te Tomo’s offending — in particular, that he was part of a group that armed itself with weapons which were used to cause damage to the property at
43 Matai Street. I accepted there was no evidence that he personally had a weapon, but nevertheless considered that he was part of a group which had armed itself, and then set out to achieve a criminal purpose. I also considered that there was clear premeditation, because Mr Te Tomo banded together with others and set out to attack the people whom he considered were responsible for earlier events.
[113] Against this general background, I turn to consider the involvement each of you had in the offending which occurred on 27 January 2009 and in the subsequent days.
Mr Faataape
Submissions
[114] Mr Pilditch for the Crown submitted that your offending justifies a starting point in the range of two and a half to three years’ imprisonment. He went on to suggest that any mitigation must be limited. He noted that you did not plead guilty, and that you have relevant previous convictions. The Crown was opposed to home detention in the event that the end sentence is two years or less.
[115] Mr Foote on your behalf submitted that it was neither alleged nor proven that you participated in the convoy. He argued that culpability and consequences must relate to the facts proven against you. He submitted that you participated only by providing a venue for fellow Mongrel Mob members, and by your text communications. He put to me that your participation was after the principal offending. He argued that a starting point of 18 months’ imprisonment would be appropriate.
Analysis
[116] I accept that there is no evidence identifying you as being at either
43 Matai Street or 10 Matai Street. Nevertheless, in my view you played an important role in the events that occurred on 27 January 2009 and in the following days. You hosted out of town Mongrel Mob members at the property occupied by you following the tangi. Your property in effect became the centre of operations for the organised criminal group on the evening of 27 January 2009. It was used as a base from which the gang mobilised, and to which it regrouped after the attacks on the addresses of the Tribesmen gang members. You allowed members of the Mongrel Mob to remain at the property over the course of the evening. The evidence suggested that during the course of the evening various Mongrel Mob members left your address from time to time, with weapons, intent on achieving the group’s violent objectives. You must have known this. There is nothing to suggest that you attempted to persuade gang members to leave your property. Further, the text messages which you sent in the days following the events of 27 January 2009 made it quite clear that you maintained active communication with fellow gang members, that you considered that the gang was at war with the Tribesmen gang in Murupara, and that you were prepared for further confrontations.
[117] In my view, the appropriate starting point which best reflects your involvement is a term of imprisonment of two years and three months.
[118] I now turn to consider aggravating and mitigating factors personal to you.
[119] As I have noted, you have a number of previous convictions, some of which are relevant. In particular, you have various convictions for violence-related offending, for unlawful assembly, and the like. In my view your history of violent offending warrants a one-month uplift to the starting point.
[120] You are not entitled to any discount for a plea; you were found guilty following trial.
[121] It is stated in the pre-sentence report that you have expressed some remorse. I am told that you have “constructed” a letter recording that you are sorry that Jordan Herewini was killed. However, I am also told that you take no responsibility for Jordan’s demise, and that you are surprised at the guilty verdict. I am not prepared to allow you any discount for this faint and unfulfilled expression of remorse. There is nothing to suggest to me that it is genuine, or that you have communicated your feelings to Jordan’s family.
[122] Mr Faataape will you please stand.
[123] In respect of the offence of participating in an organised criminal group, you are sentenced to a term of imprisonment of two years and four months.
[124] I should also record that in my view a sentence of home detention would not have denounced the conduct in which you were involved. It would not be sufficient deterrence. It can be said that the community is rightly affronted by gangs who take the law into their own hands and it cannot and should not be expected to put up with it. Participating in an organised criminal group is a serious offence. The community is entitled to expect that such behaviour will be denounced in strong terms.
[125] You may stand down.
Jason Kirk Iopata
Submissions
[126] Mr Pilditch for the Crown submitted that your participation justifies a starting point in the range of two to two and a half years’ imprisonment. He accepted that I need to take into account aggravating and mitigating factors applicable to you, including your guilty plea. He was neutral in relation to the nature of the end sentence I should pass on you.
[127] Mr Weir on your behalf submitted that your participation was reckless and peripheral. He noted that you offered to become involved only after the primary
offending had occurred. He submitted that your texts were a response to a perceived threat and that they did not inflame the situation. He referred to various mitigating factors and endorsed the suggestion made by the probation officer that home detention and community work would suffice.
Analysis
[128] I accept that you were not present in Murupara when the events at 43 and
10 Matai Street occurred. You had returned to Kawerau. However, shortly after the events occurred, you received a text message from one of your co-offenders indicating that there was a “war” occurring in Murupara. You offered to return to Murupara but you were told that “it would be all over”.
[129] Further, you maintained contact and communication with fellow gang members about events in Murupara on the evening of 27 January 2009, and also on the days that followed up until approximately 4 February 2009. You attended meetings about proposed retaliation at the gang pad in Kawerau. Together with other gang members, you prepared for further violent reprisals and retaliation. You attended those meetings in the knowledge that the objective of the organised criminal group comprising the Mongrel Mob was the commission of further violent offending if the circumstances arose.
[130] I accept that your involvement was limited. While you were willing to become involved, in the event you did not play an active part. In my view, your involvement is less than that of your co-accused in relation to this count. A starting point of two years is appropriate to recognise the offending in your case.
[131] I now turn to consider aggravating and mitigating factors personal to you. You have some previous convictions for violence-relating offending. However, they are relatively historic — having occurred between 1999 and 2005. I agree with Mr Weir that a further uplift is unnecessary to recognise your offending, given the historic nature of that offending.
[132] I also accept that you pleaded guilty, albeit at a very late stage — during the second week of the trial. As against that, the case against you was strong. It did not change before trial. The Crown case included a number of incriminating text messages. While I am prepared to allow you a discount for your guilty plea, it must in my view be minimal. I allow you a discount of one month.
[133] Mr Weir referred to a number of other mitigating factors personal to you; he noted the strong family support you enjoy. He noted your limited involvement with the Mongrel Mob. He also advised me that you assert that you were not asked about remorse by the pre-sentence report writer, and that is why the report does not refer to remorse. He advised me that you are remorseful. I also note in the pre-sentence report that you do accept responsibility for your part in the offending. I am prepared to allow you a further discount of one month to recognise these various factors.
[134] Mr Iopata, the result is that my end point is a sentence of 22 months’ imprisonment. That is a short term sentence of imprisonment as those words are defined in the Sentencing Act and the Parole Act 2002. A sentence of home detention is available to me provided I am satisfied that the purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences. Here the offending in respect of which you pleaded guilty and have been convicted is serious. It is important to denounce the conduct in which you were involved. In my view, the purpose for which you are being sentenced cannot be achieved by any less restrictive sentence. I am prepared to impose a sentence of home detention together with a sentence of community work. I expect that the community is rightly affronted by gangs who take the law into their own hands and that it cannot and should not be expected to put up with the lawless mayhem which the Mongrel Mob caused on the night of 27 January 2009 and was prepared to continue in the days that followed. While it is finely balanced, I am satisfied that your role was such that home detention and community work will nevertheless be a sufficient deterrent to you and will sufficiently denounce your conduct.
[135] Mr Iopata will you please stand.
[136] In respect of the conviction for participating in an organised criminal group, you are sentenced to home detention for a period of 11 months. The sentence is to be served at 3 Whittaker Street, Kawerau.
[137] While you are serving the sentence, you are to be subject to the standard conditions set out in s 80C(2) of the Sentencing Act. In addition, I impose the following conditions:
a) You are to remain in Court while the particulars of sentence are drawn up in the form of an order. You are detained in custody for this purpose for a period not exceeding two hours.
b) Upon your release from Court, you are to travel directly to
3 Whittaker Street, Kawerau, and await the arrival of a probation officer and a security officer, and the installation of the electronic monitoring equipment.
c) You are to reside at 3 Whittaker Street, Kawerau for the duration of this sentence.
d)You are not to possess or consume alcohol and/or illicit drugs for the duration of the sentence.
e) You are to report to the probation officer as directed.
f) You are to attend and complete an appropriate drug and alcohol programme to the satisfaction of the probation officer and programme provider. Details of the appropriate programme are to be determined by the probation officer.
[138] Following the conclusion of the sentence, the standard post detention conditions are to apply. Further, you are to undertake and complete any remaining rehabilitative programme, counselling, treatment, and maintenance follow-up programme as directed by the probation officer.
[139] In addition to the sentence of home detention, you are sentenced to 150 hours of community work.
[140] You may stand down.
William Te Paire Aramoana
Submissions
[141] Mr Pilditch on behalf of the Crown submitted that your offending justifies a starting point in the region of two and a half to three years’ imprisonment. He opposed home detention, on the basis that it would not adequately deter and denounce your participation in the offending that occurred.
[142] Mr Edward on your behalf referred me to the statement you made to the Police. He acknowledged that you were at 10 Matai Street, but submitted that you were leaving when the murder occurred. He accepted that your offending was serious, but submitted that a sentence of home detention would be appropriate.
[143] Mr Edward also made available to me a letter from your partner. She is supportive of you and she advised that you have the support of your employer.
Analysis
[144] Your involvement in the organised criminal group was more extensive than that of your co-offenders in relation to this charge. You stated to the police that you went looking for Mr Pukeroa’s truck with your gang associates. You also went to
10 Matai Street. While there is no evidence that you personally had a weapon, or that you inflicted any damage to people’s property, you were present at
10 Matai Street supporting your fellow gang members. You were part of the group which armed itself, and set out to achieve a criminal purpose. You and your fellow gang members banded together, and set out to seek revenge for the attack on Mr Pukeroa and the theft of his truck. The likelihood of violence was high. You and
your associates nevertheless set out in a convoy as I have described and you were present when the events at 10 Matai Street occurred.
[145] Further, there are various text messages to and from you which show that you were involved in the organised criminal group in the days that followed between
27 January 2009 and 4 February 2009. After you returned to Kawerau, you attended meetings at the gang pad at Kawerau, and prepared for further retaliation and reprisals if the circumstances arose.
[146] In my view, the appropriate starting point, given your level of involvement, is one of two years and six months’ imprisonment.
[147] I now go on to consider your personal circumstances. First, I note that while you have some convictions, none are relevant for present purposes. I do not increase the starting point to take account of those previous convictions.
[148] You did plead guilty, but only in the third week of trial. You faced a case that you could have accepted at the time of committal. However, you maintained your not guilty plea, until the trial was largely completed. The case against you was strong from the outset. Your plea came after all civilians had given their evidence and little Court time was saved. I am in the circumstances prepared to allow you a discount of two weeks only for your guilty plea.
[149] While you have stated that you are remorseful, you also told the probation officer that you no longer think about what occurred. When you were asked if you took responsibility for your actions, you replied that you did not. You stated that you are prepared to make amends by accepting the sentence of the Court, but you also stated that you felt as if you have been hard done by. I do not allow any further discount for remorse.
[150] Mr Aramoana, will you please stand.
[151] In respect of the offence of participating in an organised criminal group, you are sentenced to a term of imprisonment of two years, five months and two weeks.
[152] You may stand down.
Wylie J
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