R v Raroa

[2012] NZHC 1281

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-082-0360

CRI-2011-041-1871 [2012] NZHC 1281

THE QUEEN

v

CLEVELAND SONNY RAROA

Hearing:         8 June 2012

Counsel:         CR Walker and F Cleary for Crown

PJ Jensen for Prisoner

Judgment:      8 June 2012

SENTENCING REMARKS OF LANG J

R V CLEVELAND SONNY RAROA HC GIS CRI-2011-082-0360 [8 June 2012]

[1]      Mr Cleveland Raroa, you appear for sentence having been found guilty by a jury on one charge of participating in an organised criminal group.  The maximum sentence for that offence is ten years imprisonment.

Facts

[2]      As you are aware, I have just sentenced your father who was also found guilty of participating in an organised criminal group.[1]   That charge arose out of the same series of events that led to the charge against you.

[1] R v Riki Raroa [2012] NZHC 1279.

[3]      I do not propose to repeat the factual background set out in my sentencing remarks when I sentenced your father.  The remarks that I now make must be read together with those that I made in relation to your father.

[4]      Put shortly, your offending arose out of a series of events that occurred at a time of high tension between the Black Power and Mongrel Mob gangs in Wairoa. You have been a patched member of the Mongrel Mob gang for some time.  That was virtually inevitable  because  your father has been a patched member of the Mongrel Mob for many, many years, and I have no doubt that you grew up steeped in the Mongrel Mob culture.   It was, as your counsel submits, virtually inevitable that you would join the Mongrel Mob when you came of age because you have known, I suspect, nothing else throughout your life.   Your friends, associates and family all live by the Mongrel Mob code and within its culture.

[5]      Violent incidents in the Wairoa area between the Mongrel Mob and Black Power occurred with some frequency during the period leading up to October 2010. In addition, there were disputes between two factions of the Mongrel Mob in Wairoa that had led to a wide-scale confrontation involving firearms in August 2010. Following that, many of the Wairoa Mongrel Mob members were removed from the scene, and your father assumed responsibility for looking after some of the affairs of

the Wairoa chapter, including the protection of its headquarters, or pad.

[6]      Tensions became heightened over the weekend of 24 October 2010 because, in a stupid endeavour, a member of the Mongrel Mob stole a car belonging to associates of the Black Power.   He drove the vehicle to the Mongrel Mob pad in Wairoa, and the police found both him and the vehicle there.   Even if it was not intended to do so, this incident was bound to provoke Black Power into some form of retaliation.

[7]      Your father realised that, so he placed the Mongrel Mob in Wairoa on red alert.   This  meant  that  he organised  for  people,  including  yourself, to  man the Mongrel Mob pad overnight and for weapons to be kept at the pad to ward off any attack by the Black Power.

[8]      The Crown case at trial relied on a series of text messages that occurred between 24 and 30 October 2010.   The Crown contended that the text messages contained  coded  references  to  firearms  and  that  they  showed  that  your  father arranged for you and others in your group to ensure that firearms were kept at the Mongrel Mob pad overnight, and then removed in the morning.

[9]      The existence of firearms at the pad produced consequences on the night of

26  October  2010.    In  the  early  hours  of  26  October,  a  car  containing  several associates of the Black Power arrived outside the Mongrel Mob headquarters.  You were present at the time, and I am satisfied from text messages between you and your father that he had checked earlier the previous evening to make sure firearms were there.   One of the occupants of the vehicle got out and began yelling abuse directed towards the occupants of the Mongrel Mob pad. Someone within the Mongrel Mob pad responded with a shotgun blast directed towards another occupant of the car who was in the vicinity of the car.   This caused serious injury to that person.  He required immediate surgery to remove approximately 40 shotgun pellets. He also suffered the loss of a kidney and damage to his liver and bowel.

[10]     Earlier that evening, you had sent a text to your partner indicating you were at the Mongrel Mob pad and that you were “holedn our pece”.  I am satisfied that this was a reference to a firearm, and that you were telling your partner that you were

holding a  firearm.   You were therefore obviously aware on that  evening that a firearm was in the pad.

[11]     The Crown has never been able to establish who fired the shot that wounded the Black  Power  associate.   Your father was  convicted  on  a  charge  of causing grievous bodily harm with intent to do so, but you were acquitted on that charge.  I consider that the jury’s acquittal on that charge was based on the fact that it could not be satisfied beyond reasonable doubt that you aided, assisted or encouraged the person who fired the shot to fire it. You are perhaps fortunate that the Crown did not proceed against you on this charge on the same basis that it did in relation to your father.  Had the Crown adopted that course, you may well have been facing a similar penalty to that which I have just imposed on your father.

[12]     In any event, as soon as the shot was fired, you sent a coded text message to your father to tell him that a crisis had arisen.   He then immediately arranged for others to go to the Mongrel Mob pad and for the firearm to be removed from the premises. When the police arrived, there was no sign of the firearm.

[13]     Thereafter, over the next few days, there were other text messages between you and your father and other of your associates.  Many of these were directed to the manning of the pad, and I am satisfied to ensuring that a firearm was held there overnight on most, if not all, occasions.   I consider that the coded references to “things” and “mutton” taken in context must relate to firearms and not to other innocent matters as was pressed by counsel at the trial.

[14]     It is not necessary for me to attempt to understand the jury’s verdict.  That may occur in another forum.  What is important is that the jury considered that you were a participant in an organised criminal group that had as its objective the causing of really serious bodily injury to members of the Black Power gang.  You did that by being in relatively constant communication with your father regarding the manning of the pad and the storing of firearms within it.

[15]     Your role, as I see it, was very much as your father’s trusted lieutenant. You

were the person to whom he primarily gave instructions and from whom he primarily

received reports.  The text messages show that you were an eager supporter of what the Mongrel Mob was doing at that time and, indeed, the pre-sentence report records that you saw it as your duty to participate.  That is not surprising given the level of involvement you have had throughout your life with the Mongrel Mob.  I therefore take your participation in the events to be at a lower level than that of your father, but not significantly so.

Sentencing Act 2002

[16]     In any case that has as one of its elements the possible use of a firearm, issues of deterrence and denunciation are to the forefront.  That has been emphasised time and again by the courts and, indeed, was emphasised by McKenzie J  when he sentenced all of the offenders who were involved in the incident that occurred in August 2010.[2]   He confirmed that the main purposes of sentencing in this type of context are those of denunciation and deterrence.  It is simply unacceptable in our society for any person, let alone persons who are already involved in gang warfare, to arm themselves with firearms in order to settle their differences.

[2] R v Waihape & Monika, R v Tamati & Others; R v Stone & Others, n 1.

[17]     The  real  issue  so  far  as  you  are  concerned  is  to  identify  the  level  of culpability that is to be attributed to you, and to impose a sentence that is consistent with sentencing principles and with those imposed in other cases.

Starting point

[18]     In selecting a starting point, I bear in mind the starting point that I selected for your father.  I considered, for the reasons that I gave when sentencing him, that a starting point of five years was appropriate. As I have said, your culpability falls at a lesser  level  than  that,  but  not  by  much.    I  take  a  starting  point  of  four  years

imprisonment in your case.

Aggravating factors

[19]     There are no aggravating factors that would operate to increase the starting point  that  I have  selected.    You  have  some  minor  convictions  but,  for  present purposes, these are irrelevant and I put them to one side.

Mitigating factors

[20]     The only remaining issue therefore is the extent to which I should take into account mitigating factors.

[21]     You appear for sentence at the age of 22 years.   You are unemployed and have not held a job for some time.  The pre-sentence report makes it clear that your life and activities revolve, virtually exclusively, around the activities of the Mongrel Mob.

[22]     Your counsel submits that this Court should endeavour to impose a sentence that steers you away from the pathway of crime and involvement with the Mongrel Mob.   He points out that a sentence of imprisonment will inevitably see you incarcerated with many of your Mongrel Mob associates.   This, in turn, will only serve to harden you and mean that society deals with a hardened criminal when you are ultimately released.  He submits that the best place for you now is Nuhaka, and that you should be permitted to return there and serve a sentence of community work to repay something to the community whose rules you have broken.

[23]     In many ways your counsel’s words carry a great deal of sense, because I know for a fact that if you go to prison you will inevitably associate with members of the Mongrel Mob. Any prospect that you might have of leaving the Mongrel Mob will disappear completely.

[24]     Before  I  could  give  serious  consideration  to  your  counsel’s  submission, however, I would really need to be satisfied that you had a genuine desire to give up your Mongrel Mob patch and to engage in a lifestyle totally disassociated with them. I just do not see, Mr Raroa, that you have reached that level of commitment.  The

comments that you made to the probation officer when she interviewed her before preparing the pre-sentence report make it clear that you really still have no insight into your lifestyle and activities.   I consider that you remain immersed within the Mongrel Mob culture, and that any sentence short of imprisonment would have no possible effect so far as removing you from gang involvement is concerned.

[25]     For that reason, although I acknowledge the shortcomings that a sentence of imprisonment inevitably has, nevertheless I do not see anything that would permit me not to impose the sentence that would otherwise be appropriate.

[26]     I am prepared, however, to take into account two factors in mitigation.  You are obviously not entitled to a discount for a guilty plea, because you never pleaded guilty.  You have, however, spent over six months subject to a 24 hour curfew and thereafter you have spent approximately six months subject to a restrictive overnight curfew.   Coupled with that, I take into account the fact that you are a relatively young man and that you have not attracted the attention of the criminal law in any significant way in the past.   I also consider that you need to be given some encouragement to look to the causes of your offending and to endeavour to move away from it.  That may be a forlorn hope given your background and the sentence that you about to serve.  Nevertheless, I consider that you should be given some hope in this area.   For that reason I propose to reduce your sentence by six months to reflect those factors.

Sentence

[27]     Mr Raroa, on the charge on which you were found guilty by the jury, you are sentenced to three years six months imprisonment.

[28]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Gisborne

Counsel:

PJ Jensen