R v Savage
[2014] NZHC 1802
•1 August 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI2013-087-1479 [2014] NZHC 1802
THE QUEEN
v
DEUCE DERRICK EVO RUA SAVAGE TERERE KIWAHO MACDONALD DEREK MAYNARD SAVAGE
Appearances: R Jensen for the Crown
H S Eward for Deuce Savage
W Nabney for MacDonald
A C Balme for Derek SavageSentence:
1 August 2014
SENTENCING REMARKS OF LANG J
Counsel:
R Jensen, Ronayne Hollister-Jones Lellman, Tauranga
H S Edward, Barrister, Rotorua
W T Nabney, Barrister, TaurangaA C Balme, Barrister,Tauranga
R v SAVAGE, MACDONALD, SAVAGE [2014] NZHC 1802 [1 August 2014]
[1] Mr MacDonald and Messrs Deuce and Derek Savage, you were all found guilty by a jury on two charges of discharging a firearm with intent to cause grievous bodily harm. In addition you Mr Deuce Savage and you Mr MacDonald were found guilty on a charge of aggravated robbery.
[2] Given your convictions on those charges, you are now subject to what is called the “three strikes” legislation. I now enter convictions on all charges on which you were found guilty by the jury and as a consequence I am required to provide you with a warning under that legislation.
[3] The warning relates to the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences in question. The warning is this:
If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
If you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[4] In addition to the charges in respect of which I have just given you a warning you, Mr Deuce Savage, were also found guilty on a charge of demanding with menaces.
[5] The charges of discharging a firearm with intent to cause grievous bodily harm carry maximum sentences of 14 years imprisonment, as does the charge of aggravated robbery. The charge of demanding with menaces carries a maximum sentence of seven years imprisonment.
Facts
[6] I propose to deal firstly with the charges on which you were all found guilty. They are the two charges of discharging a firearm with intention to cause grievous bodily harm. The incident that gave rise to those charges occurred later in time than
the incidents giving rise to the other charges, but it is much more serious and for that reason I consider it appropriate to deal with that particular issue first.
[7] The incident began after the three of you, together with others, had been drinking at Mr Derek Savage’s address on the evening of 12 September 2012. At about 5.00 am the next morning you, Mr MacDonald, went around to an address occupied by Mr Jeremy August. You knew Mr August at least because of an earlier incident giving rise to the aggravated robbery charges. You went there whilst you were clearly affected by alcohol or some other substance. You immediately adopted an aggressive stance, and demanded that he give you something. You told him that you had to “have something to take back to the boys.”
[8] Mr August did not accept what you were saying. He reacted and was able to strike you on the head with an iron bar. This caused a reasonably significant injury that was subsequently observed by witnesses, and can be seen in photographs taken following your arrest. Mr August was able to drive you from his property through the infliction of this blow and also another blow to your legs. As you left, however, you said words to the effect that you would be back to “sort it out.”
[9] You then went to a nearby address, where Deuce Savage was sleeping. That address was occupied by his sister, Ms Pinepine Savage. She was able to describe the fact that you were staggering around and clearly affected by your injury at that time. You woke up Mr Deuce Savage and obviously told him what had happened. He then disappeared through the back fence to his father’s address, that is you, Mr Derek Savage’s address. Pinepine at that stage sent text messages indicating she thought you had gone up to Jeremy August’s house.
[10] A short time later, a vehicle arrived at Pinepine’s address. Deuce Savage was in the front passenger seat of the vehicle and Pinepine saw you, Mr MacDonald, get into the rear of the vehicle. The vehicle then drove away. At trial, Mr Derek Savage, your counsel contended that there was reasonable doubt as to whether you were in fact the driver of the vehicle. He pointed out that other people had been at your address earlier in the evening, and that one or more of those persons could have been in the vehicle and one of them driving it. The jury clearly rejected that proposition.
[11] The vehicle then travelled to Mr August’s house, arriving there at about 5.15 am. Earlier, just before you left, you, Mr MacDonald, had sent texts out urging others to come to the address you were at and saying that there was a “war on.”
[12] By the time your vehicle arrived at the address, Mr August had arranged for several of his friends to come over to support him. He was obviously concerned at the likely prospect of retaliation, given what he had done to Mr MacDonald and Mr MacDonald’s parting words.
[13] The incident that occurred after you arrived at Mr August’s address must have occurred within very short compass. Timings between text messages and also a video camera shot taken of your vehicle driving away suggests that you were in the house for no more than about three minutes. There was significant confusion between the eye witnesses to the incident. That is not surprising, given the nature of the incident that followed and the short space of time within which it occurred. What is clear, however, is the three of you entered the address in various forms of disguise. I am satisfied from the evidence that very shortly after you arrived one of you yelled out words to the effect of “Who is fucking with the mob?” Or “Who wants to fuck with the mob?”
[14] Virtually immediately after that, firearms were produced. I have no doubt at all that all of you knew of the fact that firearms were being taken to the address and it was likely that they would be used. In fact my view of the facts is you went to the address, with those firearms, intending to use them against Mr August in retaliation for what he had done to Mr MacDonald earlier in the day. That is obviously a significant aggravating factor.
[15] Within a very short space of time, Mr August was shot in the stomach area. He then began crawling out through the kitchen into the back yard. Mr Hirini, one of the friends Mr August had asked to come over to his address to provide support, then made a move to either strike you, Mr Derek Savage, or to remove your firearm. At that point he received a serious gunshot wound to his abdomen. This caused him to immediately fall to the ground. It is also likely that at least one other shot was fired because of damage that can be seen to the wall of the address where the
shooting occurred. The three of you then left the address. You drove away and clearly disposed of the firearms, because they have never been found. It was some time later before the police were able to arrest you.
The victims
[16] The two victims were transported to Waikato Hospital in very serious condition. There they underwent numerous surgical operations designed to remove shotgun pellets from their abdomen and to repair damage to internal organs that had been caused by the shotgun blasts. They both remained in hospital for a very considerable period and now have lasting effects from the injuries they received in this incident.
[17] Having read the victim impact statements prepared for today’s hearing I accept that this incident has had a devastating effect on the victims. They both suffered enormous pain. They have been required to spend very large periods of time in hospital undergoing and recovering from numerous operations. In both cases the injuries have caused them to lose their means of employment. They have also suffered significant psychological trauma as a result of this incident.
Sentencing Act 2002
[18] The starting point for any sentence in your case must be governed by the principles contained in the Sentencing Act 2002. To the forefront in a case of offending this serious is the need to deter both you and others who would act in a manner like you from acting in such a manner in the future. The sentence must also hold you accountable and responsible for what you have done. It must also take into account the fact that your offending has had traumatic effect on your victims. Having said that, it is important to select a sentence that is broadly consistent with those imposed in other similar cases. When I say “broadly,” I do so advisedly because no two cases in this area are exactly the same.
Starting point: Discharging a firearm with intent to cause grievous bodily harm
[19] All counsel agree that the starting point for your offending is to be determined having regard to a decision of the Court of Appeal in R v Taueki.1 In that case, the Court identified starting points to be applied in respect of serious violent offending involving the infliction of serious bodily harm. The Court also identified various factors that inform the starting point to be applied. All counsel accept that many of these are present in the present case.2
Taueki factors
[20] The first of these factors is one I have already mentioned, namely that the attack was premeditated. Quite clearly you made a joint decision to travel in that vehicle, taking firearms, to inflict serious violence on Jeremy August. In doing so you must have known that there was a realistic likelihood that others who became involved would also be hurt. That is indeed exactly what transpired. This was not a spontaneous incident.
[21] Secondly, the offending involved not one but multiple attackers. You joined together in concert to present a formidable sight at the doorway of that address. Thirdly, you took with you to the address deadly weapons with the intent that they be used at least against Jeremy August. Next, you actually used those weapons on at least two occasions to inflict what can be described as extreme violence against the two victims. That violence caused the very serious injuries to which I have already referred.
[22] The offending also occurred in the context of a home invasion. You went to Mr August’s home in the early hours of the morning when he had every right to expect that he should be left free to his own devices. You had absolutely no right whatsoever to be there. The offending therefore occurred within the sanctity of the
home.
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 Counsel also agreed that the offending fell within Band 3 in Taueki, which calls for a starting
[23] The final factor is the subject of some dispute between counsel. The Crown says that your offending occurred within a gang context, and that it was a form of vigilante action designed to exact revenge on Mr August and possibly others at his address for what he had done to Mr MacDonald earlier that morning. Your counsel dispute that fact. They say that the most that can be taken out of this incident is that it was a desire to obtain revenge for the personal attack on Mr MacDonald.
[24] Having heard the evidence and considered the offending against the background of the other charges, I have no doubt at all that this offending occurred within a significant gang context. Despite your protestations to the contrary, the evidence at trial suggested that you all have a strong connection with the Mongrel Mob gang. That gang at this time was clearly seeking to impose its presence on the citizens of Kawerau. That fact is evidenced from the circumstances surrounding the other offending, to which I shall return shortly. Also important in this context are the words used shortly after you burst into the house. The announcement to the occupants that you wanted to know “Who wants to fuck with the mob” suggests to me that you had decided to go to that house in part to exact retribution for what had happened to Mr MacDonald, but also in part to impose or underscore the importance of the presence of the Mongrel Mob gang in Kawarau. That is a significant factor in the present context.
The cases
[25] Counsel have referred me to a number of cases involving shootings within a gang context. I have found the most helpful of these to be R v Huata, Pekepo v R, R v Duncan and R v Raroa.3 Counsel rightly point out that the present case is somewhat different because it does not involve inter-gang warfare. Rather, it involves violence inflicted by members of a gang on the citizens of a town. To the extent that that is a distinction, I consider it to be a distinction without a difference. I
see no lessening of culpability in a case where members of a gang seek to exact
3 R v Huata [2012] NZHC 2735; Pekepo v R [2011] NZCA 305; R v Duncan [2012] NZHC
1814; R v Raroa HC Gisborne CRI 2011 082 360, 8 June 2012.
retribution on members of the wider community rather than members of another gang.
[26] The cases to which I have referred suggest that a starting point of around 10 –
11 years imprisonment is appropriate in cases of gang shootings. In each of those cases, however, there was just one victim. In the present case two men were seriously injured. I consider that this takes your offending to a slightly higher level than that in the cases to which I have referred. I consider that an appropriate starting point in your case is one of 12½ years imprisonment.
The remaining charges
Facts
The charge of demanding with menaces: Deuce Savage
[27] I now turn to the other charges in respect of which Mr Deuce Savage and Mr Terere MacDonald were found guilty. The earliest in time of these was an incident that occurred on the evening of 13 August 2013, when Mr MacDonald was drinking at an address in Kawerau with the victim, Mr Sattler. Whilst they were in Mr Sattler’s house a person by the name of Mr Ngaheu arrived, along with Mr Deuce Savage. Mr Ngaheu demanded of Mr Sattler whether he knew who Mr Ngaheu was. When Mr Sattler said he did not, Mr Ngaheu told him that he was “the enforcer of Kawerau.” Mr Ngaheu then made various threats to Mr Sattler.
[28] Whilst this was going on Mr Deuce Savage was standing to one side. He did not play an active role in the incident, but Mr Sattler told the Court that he found Mr Savage’s presence to be intimidating. I have no doubt that that was exactly what you intended when you went with Mr Ngaheu to the house on that occasion, Mr Savage. You were there to provide muscle and back up, and to underscore the threat that you and Mr Ngaheu posed to Mr Sattler.
[29] Mr Ngaheu tried to get money off Mr Sattler, but Mr Sattler said he didn’t
have any. At that point Mr Ngaheu called his (Mr Sattler’s) female partner into the
address. He told Mr Sattler to take a good look at his partner, and said that on his next payday Mr Sattler was to take the sum of $200 around to her house. Mr Ngaheu made threats to the effect that he would “find” Mr Sattler if this did not occur.
[30] Mr Ngaheu then told you, Mr MacDonald, that you were off to Jeremy’s house. You and Mr Deuce Savage then went with Mr Ngaheu to Mr August’s house. This is where the second of the incidents, that which has given rise to the charge of aggravated robbery, occurred.
The aggravated robbery charges: Deuce Savage and Terere MacDonald
[31] When you arrived at Mr August’s house, he had been meeting with a friend. The friend was in the process of leaving the address when you arrived at the gate. That is you, Mr MacDonald, and you, Mr Deuce Savage. You appear to have been dressed in some forms of disguise, including scarves. Mr August was able to recognise you, however, because he knew you. You immediately began threatening him. These threats continued after you followed him into his home. You walked through the home with him, and there you saw he had a young child in the house. Notwithstanding that, you made him hand over money from his wallet. You also demanded that he give you drugs. He gave you five or six cannabis bullets as a result of these demands. You then left the address. Before doing so, you said words to the effect that it would be all right for Mr August to deal in drugs in Kawerau but he had to do so under the auspices of the Mongrel Mob. To that extent this informs Mr MacDonald’s familiarity with Mr August in relation to the incident that occurred on the early morning of 13 September 2013.
Starting point
[32] Both of these incidents were reasonably serious in their own right. Both involved stand-over tactics by gang members. Both contained undertones of violence, and certainly threats of violence. Both occurred when you went into the sanctity of another person’s home.
[33] I take the view, Mr Deuce Savage, that in the ordinary course of events a starting point of 18 months imprisonment would be appropriate in respect of the incident involving Mr Sattler. Having regard to the interests of totality, because a cumulative sentence is required, I propose to halve that sentence and impose an effective sentence of nine months imprisonment.
[34] I consider the incident involving Mr August to be more serious, because it involved property being taken and threats being made in the proximity of a young child. Ordinarily that would require a starting point of around three years imprisonment. Again I consider that a sentence of one half of that length is appropriate to reflect totality principles. This would produce an effective cumulative sentence of 18 months imprisonment. This means, Mr Deuce Savage, that you would receive a cumulative sentence of two years three months imprisonment on the two other charges on which you were found guilty, and you, Mr MacDonald, would receive a cumulative sentence of 18 months imprisonment on the charge of aggravated robbery.
Aggravating factors
[35] I now need to consider factors personal to you that might alter the starting points I have selected. You all have previous convictions. Mr Derek Savage, you have a significant number of previous convictions going back a long way. The Crown accepts, however, that these are largely historic and for that reason does not seek any uplift in respect of previous convictions.
[36] Mr Deuce Savage has far fewer previous convictions, but of concern is the fact that in 2011 he received a sentence of imprisonment on firearms-related charges. The Crown submits that a modest uplift is required to reflect these. I have given this careful consideration, but in the end have decided not to apply an uplift in respect of previous convictions. Neither, however, am I prepared to give you a discount, as your counsel submits you should have, in respect of your age. This offending occurred when you were 21 years of age. By that age, however, you had already been in trouble to the extent that you had gone to prison for firearms-related offending. I consider that the two balance each other out, and although no uplift is
required for the previous convictions I will not apply any discount in respect of your youth.
[37] Mr MacDonald, you have a number of previous convictions for offending involving violence. These are largely convictions for assaulting females. A matter of concern, however, is you also have a conviction for injuring with intent to injure for which you received an effective sentence of two years one month imprisonment on 1 March 2011. Your criminal history tells me you are a person who resorts to violence readily. Previous sentences have obviously not proved a deterrent to you, and your present offending is made that much more serious by this fact. I therefore propose to apply an uplift of six months imprisonment to reflect previous convictions.
Mitigating factors
[38] I now need to consider whether the sentences should be reduced to reflect mitigating factors personal to you. I have already indicated, Mr Deuce Savage, that I do not propose to reduce the sentence to reflect your age at the time of the offending. None of you accept responsibility for this offending, as is your right. For that reason none of you display remorse.
[39] Mr MacDonald, you have indicated that you are prepared to undergo rehabilitation during your period of imprisonment, and I hope that you do because if you do not you will be back before the courts, I have no doubt, shortly after your release.
[40] In the end there are no mitigating factors for which I can give any of you any discount from the starting points I have adopted.
Minimum term of imprisonment
[41] The remaining issue is whether I should impose a minimum term of imprisonment. This means a minimum term that you will be required to serve before being permitted to apply for parole. The Court has jurisdiction to make such order in
any case where it sentences an offender to two years imprisonment or more. The Court may only do so, however, where it is satisfied that normal parole provisions would not adequately reflect the sentencing principles of deterrence, denunciation, the need to hold the offender responsible for his or her offending and the protection of the community.4
[42] In the ordinary course of events, you would be eligible for parole on the charges of discharging a firearm with intent to cause grievous bodily harm after serving just four years two months of your sentence. I consider that would be manifestly inadequate to reflect the sentencing principles to which I have referred. I acknowledge your counsel’s submission that the normal parole provisions will require you to serve a reasonably lengthy sentence before being eligible for parole. There is also no guarantee, as your counsel submit, that you will be released on parole after serving one-third of your sentence. Nevertheless this offending was so serious, and the consequences were so great, that the Court must recognise those factors by imposing a minimum term of imprisonment.
[43] The Crown submits that the maximum minimum term available, namely a requirement that you serve two-thirds of your sentence, is appropriate in the present circumstances. I acknowledge that an argument can be made to that effect. Given the length of the sentences that I have imposed, however, I consider that the sentencing principles to which I have referred can be adequately served by the imposition of a minimum term of just over half of the end sentence.
Sentences
[44] Stand please.
[45] On the charge of discharging a firearm with intent to cause grievous bodily harm you are each sentenced to 12½ years imprisonment. I make an order under s 86 of the Sentencing Act 2002 that you are to serve a minimum term of
imprisonment of six years four months on that charge.
4 Sentencing Act 2002, s 86.
[46] Mr Deuce Savage, on the charge of demanding with menaces and on the charges of demanding with menaces and aggravated robbery you are sentenced to concurrent sentences of two years three months imprisonment.
[47] Mr MacDonald, on the charge of aggravated robbery you are sentenced to 18 months imprisonment.
[48] Stand down.
Postscript (after Court reconvenes)
[49] Mr Jensen has quite rightly pointed out that I failed to apply the uplift that I said I would apply in relation to Mr MacDonald in respect of his previous convictions.
[50] The sentence for Mr MacDonald on the charge of discharging the firearm is therefore one of 13 years imprisonment. I make no alteration to the minimum term of imprisonment on that charge.
[51] I referred also in my sentencing remarks to the fact that cumulative sentences were required, and I simply wish to add now that the sentence for Mr MacDonald of
18 months imprisonment on the charge of aggravated robbery is cumulative on the sentence of discharging the firearm with intent to cause grievous bodily harm.
[52] The other two sentences imposed on Mr Deuce Savage are concurrent with each other, but cumulative on the sentence imposed on the charge of discharging a
firearm with intent to cause grievous bodily harm.
Lang J