R v Signal

[2023] NZHC 2757

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2019-054-3419

[2023] NZHC 2757

THE KING

v

JASON DAVID SIGNAL

Hearing:	2 October 2023
Appearances:	B D Vanderkolk for Crown M C Jaquiery for Defendant
Sentencing:	2 October 2023

SENTENCING BY PALMER J

Solicitors

Crown Solicitor, Palmerston North M J Law, Whanganui

THE KING v SIGNAL [2023] NZHC 2757 [2 October 2023]

[1]    On 21 September 2022, in the High Court at Palmerston North, Mr Jason Signal was found guilty and convicted of the offences of:

(a)participation in an organised criminal group;1

(b)being a party to wounding Mr Kyle Rowe with intent to cause grievous bodily harm;2 and

(c)being a party to the manslaughter of Mr Codi Wilkinson.3

[2]    I adjourned Mr Signal’s sentencing, at his request and with the consent of the Crown, to allow the Court of Appeal time to consider an appeal regarding an issue with a juror. The Court of Appeal has now dismissed the appeal based on that issue.4 It also acquitted Mr Signal of the offence of participation in an organised criminal group, because it duplicated the other two offences. So, he is not to be sentenced for that. The Court of Appeal has adjourned a further appeal ground regarding the manslaughter offence, pending a further decision by the Supreme Court. But it is usually the case that a conviction appeal is filed after sentencing. While the delay until sentencing has been at his request, Mr Signal has waited long enough to be sentenced. I sentence him today for the two offences of wounding within intent to cause grievous bodily harm and manslaughter.

What happened?

[3]    I have given careful consideration to the evidence heard at trial. I briefly recount the proven facts relevant to this sentencing.

[4]    Mr Signal is good at fixing cars. The evidence at trial is that he was a responsible babysitter and friend. He was also addicted to methamphetamine and became a close friend of Mr Jeremiah Su’a, the President of the Aotearoa chapter of the Mongrel Mob. Mr Signal is not a member, prospect, or associate of the Mongrel Mob.

1      Crimes Act 1961, s 98A: maximum penalty 10 years’ imprisonment.

2      Sections 188(1) and 66(2): maximum penalty 14 years’ imprisonment.

3      Sections 171, 160(2)(a), 177 and 66(2): maximum penalty of life imprisonment.

4      Signal v R [2023] NZCA 459.

[5]    On 12 September 2019, Mr Signal travelled in a car with Mr Su’a from Palmerston North to Mulgrave Street, Ashhurst. They stopped at various addresses in Palmerston North first. The four men other than Mr Signal were all patched members of the Mongrel Mob. They went to 107 Mulgrave Street to de-patch Mr Wilkinson and Mr Rowe, who were junior members of the Mongrel Mob but who had attacked and robbed a friend of the Su’as.

[6]    Violence  was  expected  at  the   de-patching   and   violence   eventuated.  Mr Wilkinson and Mr Rowe were attacked. Weapons were used. After being subdued, they were put in a car and taken to Bunnythorpe. Mr Rowe, suffering from sharp force injuries to his head and hand and from blunt force trauma, escaped and received medical attention. Mr Wilkinson escaped into bushes where he tragically died from blood loss as a result of the deep lacerations he suffered.

[7]    I have seen the victim impact statements by family members of Mr Wilkinson. His whakapapa is impressive. His family did not always agree with the choices he made but knew him as whānau-oriented, respectful and loving member of the family, a team player, funny, and empathetic. They have no more opportunities to build their memories of him and this is their life sentence. His mother’s heart was ripped away from inside of her. His father was not able to get through his speech at the funeral. They had to endure a closed casket. Mr Wilkinson was particularly close to his grandmother who was devastated at what happened. She says his son is not able to have stories read to him by his Dad or to have cuddles or talks with his Dad. His former partner thought she had finally found someone she felt safe with. But as Codi’s mother said, the offenders did not take her son’s mana or wairua.

Approach to sentencing

[8]    Sentencing is conducted for the purposes, and according to the principles, in ss 7 and 8 of the Sentencing Act 2002. In terms of the principles of sentencing, I have regard to: the gravity of the offending and Mr Signal’s culpability; the seriousness of the offences committed compared with others; the need to ensure the sentence is consistent with other sentences for this type of offending; the effect of the offending

on the victims; Mr Signal’s particular circumstances and background; and the requirement to impose the least restrictive outcome appropriate in the circumstances.

[9]    In terms of the purposes of sentencing Mr Signal, I have particular regard to: the need to hold him accountable for the harm his offending has done to the victims and the community; the need to promote in him a sense of responsibility for, and acknowledgement of, that harm; the interests of the victims; the need to denounce the conduct with which he was involved and deter others from committing similar offences; and the need to protect the community from his offending in future.

[10]   The way the Court sentences is first to set a starting point reflecting the seriousness of the offending, and then to make adjustments for the offender’s personal circumstances, and finally to stand back to check the sentence reflects the totality of the offending.5

Starting point

[11]   Mr Vanderkolk, for the Crown, submits that Mr Signal’s culpability was relatively similar to that of Mr Dean Jennings. He submits the distinguishing features are marginal. Having regard to the circumstances of the offending as the Crown understands it, and to other similar cases, he submits an appropriate starting point for the manslaughter by Mr Signal is between five and six years’ imprisonment.6 He submits that should be uplifted by one year’s imprisonment for wounding within intent to cause grievous bodily harm. I note that no minimum period of imprisonment is sought.

[12]   Ms Jaquiery, for Mr Signal, submits that he was on the sidelines of the offending and should have a much lower starting point than his co-offenders. She submits a starting point of between three and four years’ imprisonment with an uplift of no more than six months is appropriate. She points to a plea for leniency from one member of the jury and a number of other factors.

5      Moses v R [2020] NZCA 296 at [46].

6      Pahau v R [2011] NZCA 147; R v Fore [2021] NZCA 28.

[13]   The other four men convicted of offences in relation to these events have already been sentenced:

(a)Mr Jeremiah Su’a, the President of the local chapter of the Mongrel Mob, and his brother Mr Mariota Su’a, a senior member of the Mob, were found to have formulated and had a crucial role in the plan for the de-patching.7 In sentencing them, the Court set starting points of 12 years’ imprisonment, with an uplift of three years’ imprisonment for the wounding with intent to commit grievous bodily harm and participation in an organised criminal group.8

(b)Mr Quentin Moananui, a Mongrel Mob member, joined the plan after it was formed and was directly involved in the attack. His starting point was 10 years’ imprisonment with an uplift of two years.9

(c)Mr Dean Jennings, another patched Mongrel Mob member, drove the other car, including to Bunnythorpe.10 He was not involved in the initial formulation of the plan and was not said to have been physically involved in the attack. But he did know about what was to occur and knew what was involved in a de-patching. And he did participate in the kidnapping of Mr Wilkinson and Mr Rowe which heightened his culpability.11 His starting point was six years and six months’ imprisonment with an uplift of one year for wounding with intent to commit grievous bodily harm.12 Having regard to the totality of his offending, no further uplifts were given for the two kidnapping offences Mr Jennings committed.13

[14]   I accept that the very serious injuries caused to both victims, the involvement of multiple offenders, the use of weapons, and gang violence were aggravating factors

7      R v Moananui [2021] NZHC 1723 at [44].

8      At [45], [47] and [65]–[66].

9      At [83]–[88].

10     R v Jennings [2022] NZHC 746 at [8].

11 At [21].

12 At [23].

13 At [23].

to the offending in general. But Mr Signal played a relatively minor and peripheral role in the offending. He was not a member, prospect, or associate of the gang. He travelled in the car with his friend, Mr Jeremiah Su’a. He used, or allowed his phone to be used, to find out where Mr Wilkinson and Mr Rowe were. He also paid for petrol for one of the cars on the drive to Ashhurst, though the money may have come from Mr Jeremiah Su’a.

[15]   There is evidence Mr Signal was present during the attack, standing by the roadside. He chose to go there with Mr Jeremiah Su’a. The calls that were made from his phone that could well have been aimed at finding out where the victims were though that was probably at Mr Jeremiah Su’a’s direction. It is not clear that he knew what was intended, that weapons were going to be used, or that such serious injuries were going to be caused. The jury found that Mr Signal knew it was a probable consequence of pursuing the common unlawful purpose that Mr Wilkinson was likely to suffer from more than trivial harm. But Mr Signal was not physically involved in the attack and the evidence does not prove beyond reasonable doubt that he was involved in planning to attack the victims. He was party to the offending mainly because his presence there lent some support to it. There is evidence of Mr Signal yelling at Ms Krystal Hewitt, but that was after the offending. Mr Signal did not go to Bunnythorpe after the attack and was not party to the kidnappings. I accept that his role was significantly less serious than that of Mr Dean Jennings who had a starting point of six years and six months’ imprisonment.

[16]   I have had regard to the cases which counsel have mentioned and others. In particular, I consider there are four somewhat comparable cases:

(a)In R v Ahsin, Ms Ahsin was driving Black Power members, and did a U-turn when they saw a member of the public wearing a red hoodie.14 She yelled at them to stop their attack but also drove them away afterwards. The Court set a starting point for manslaughter of five years’ imprisonment.

14     R v Ahsin [2015] NZHC 1884.

(b)In R v Madams, Mr Mathew Madams drove family members on two trips to the house of another family, and stood by the car during both confrontations which involved weapons.15 The Court set a starting point for manslaughter of four years’ imprisonment.16

(c)In R v Pomare, Mr Perkinson, aged 17, travelled to the victim’s home with the intention of confrontation and knowing some violence was likely to occur.17 He was standing three meters away from the victim when he was struck with an axe and killed. The Court set a starting point for manslaughter of four years’ imprisonment.18

(d)In R v McNaughton, Mr Perry was the driver to an organised fight between two groups of young men.19 He was the least committed but took a weapon for self-defence. The Court set his starting point for manslaughter at three years’ imprisonment.20

[17]   I do not consider several of the cases referred to in the written submissions of the Crown of Pahau v R, R v Fore, or R v Jamieson, are particularly useful for the purposes of comparison.21 The offenders in those cases were more actively involved in planning or carrying out the relevant attacks and more culpable than Mr Signal. The circumstances in the case of Reuben v R, within a prison, are not comparable to those here.22

[18]   For the lead offence, of being a party to manslaughter, given the aggravating factors but also Mr Signal’s relatively minor and peripheral role, I set a starting point of four years’ imprisonment with a proportionate uplift of four months for wounding with intent to commit grievous bodily harm. So that is a global starting point of four years and four months’ imprisonment.

15     R v Madams [2017] NZHC 81 at [50]–[51]

16 At [56].

17     R v Pomare [2016] NZHC 1346 at [65].

18 At [75].

19     R v McNaughton [2012] NZHC 815 at [89].

20 At [92].

21     Pahau v R, above n 6; R v Fore, above n 6; and R v Jamieson [2009] NZCA 555.

22     Reuben v R [2017] NZCA 138.

Adjustments

[19]   Mr Signal, the Department of Corrections has provided me with two pre-sentence reports. The first assessed your risk of reoffending as low but recommended imprisonment. The second updated report assessed your risk of reoffending as medium but recommended home detention. They both note you have no history of violence and your association with Mongrel Mob members contributed to your involvement in this offending. You have no relevant previous convictions.

[20]   The second Corrections report highlights the support you have from your family. The report writer suggests you may be suffering from depression, as a result of the length of time it has taken to get to sentencing. They recommend home detention. Electronic monitoring is technically feasible and you have complied with the conditions of EM bail, which you have now been on for an extensive period. Corrections supports you receiving alcohol and drug support if you are subject to a community-based sentence, subject to special conditions.

[21]   Dr Jarrod Gilbert has provided a report about your personal background under s 27 of the Sentencing Act 2002. You did not suffer real deprivation as a child. You started acting up at school after your parents separated. Your drinking and drug use started as a teenager. You were medically retired from a contracting job at the age of 25 due to an arthritic flare-up induced by psoriasis. I know that can be debilitating. You were last employed in 2017. Around the time of the offending, your methamphetamine use had increased, after your relationship came to an end. You started to make money by selling car parts and fixing cars, in return for drugs or money to buy drugs. That is how you became friends with Mr Jeremiah Su’a. Your addiction drew you into the antisocial group which led to your involvement in this offending. You should avoid those associations in future.

[22]   I have also received a drug and alcohol report by Mr Roger Brooking, dated April 2023. He reports that you appear to meet at least six of the criteria indicating a severe substance use disorder. This has not been helped by using cannabis to cope with your psoriasis. You would be better to consult a skin specialist. But you stopped using drugs when you went to prison. You have avoided using them while on EM bail.

You have completed a drug treatment programme run by the MASH Trust and want to enter a more comprehensive drug treatment programme.

[23]   Ms Jaquiery submits that a discount should be available to reflect your addiction to methamphetamine as well as your rehabilitation prospects now that you have ceased to use methamphetamine. The Crown acknowledges there are personal factors of significance here. I accept there is a clear causal nexus between your background of addiction and this offending. I accept that without your methamphetamine addiction and consequent gang associations, there is no reason to think you would have found yourself involved in this offending. I consider your personal background of addiction warrants a discount of six months.

[24]   I also consider the relatively positive reports from Corrections and Mr Brooking about your willingness and prospects of rehabilitation should be encouraged. You have been free from drugs during your lengthy period on EM bail and appear to be actively wanting to free yourself from addiction. This warrants a four-month discount. There is no discount for remorse.

[25]   Ms Jaquiery submits that discounts should be made to your sentence to reflect the time you have spent on electronically monitored (EM) bail.23 Mr Vanderkolk accepts that you are entitled to a significant discount for the time you have spent on EM bail. It is, after all, a mandatory mitigating factor under the Act. The law is that the extent of the credit depends on the restrictiveness of the bail conditions, particularly the frequency and duration of authorised absences, the time spent on that restrictive bail, and your compliance with conditions over that time.24

[26]   You have been on EM bail for two years and four months and you have complied with your conditions of bail for all of that time:

(a)You were on EM  bail  with a 24-hour  curfew from  25 June 2021 to  1 July 2022, which is 13 months. You could only leave for specified

23 The Court of Appeal has noted that allowances are common to reflect the time spent on remand in fixing the period of home detention: Laloni v R [2015] NZCA 55 at [9]; and Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [15].

24 Sentencing Act 2002, s 9(2)(h); and Tuarae v R [2023] NZCA 229 at [26].

purposes. In that time there were six days where you were allowed to leave your address. In a similar case, on appeal, the Court of Appeal gave a discount of 12 months for 14 months spent on EM bail with a 24-hour curfew.25 Given the length of time involved, the restrictiveness of the conditions, and your compliance with them, I consider you should have a discount of 11 months for your period on EM bail.

(b)You were then placed on EM bail with no curfew from 1 July 2022 until today, which is 15 months. That is less restrictive but is a long additional period. I consider that justifies a discount of a further seven months.

[27]   Ms Jaquiery submits that further discounts should be made at this point to reflect the time you spent in custody. However, I do not consider that s 82 of the Sentencing Act allows me to do so.26 That section appears to provide that I am only to consider the time you have spent in custody if I conclude that a community-based sentence, such as home detention, would be an appropriate outcome.

[28]   Overall, taking into account the lengthy time you have already served on EM bail, the remaining part  of  a  sentence  of  imprisonment  left  to  serve  would  be 24 months’ imprisonment. This requires me to consider whether you should be sentenced to imprisonment or home detention.

Home detention

[29]   Mr Signal, your compliance with the restrictions of EM bail for two years and four months has been impressive. It demonstrates you can comply with electronic monitoring. New Zealanders who resented Covid lockdowns for just a few months, while being able to leave their homes for exercise, will understand that being restricted in your movements is very difficult. It is no wonder you may be getting depressed.

25 Hohipa v R [2015] NZCA 485 at [32]–[35].

26 See Sentencing Act, s 82; Parole Act 2002, s 91; Laloni v R, above n 23, at [8]–[9]; Closey v Police [2020] NZHC 990 at [13]–[15]; Saunders v Police [2015] NZHC 1964 at [20]–[23]; and Longman v Police [2017] NZHC 2928 at [10].

But, understandably, you would prefer a further period on home detention to imprisonment.

[30]   I consider that imprisonment is likely to set back your rehabilitation. You  would not have access to the drug treatment programmes that are available in the community. And importantly, you would be forced to socialise with exactly the sorts of people who led you into this offending. I consider prison is likely to increase the risk of you reoffending again.

[31]   In sentencing offenders, Courts are required to impose the least restrictive sentence appropriate in the circumstances. We are required to take into account the safety of the community. In your case imprisonment would not meet either of those requirements. On home detention you will receive drug treatment and may be able to get work. The Department of Corrections recommends home detention, at your mother’s address, in its latest report. A sentence of home detention would maximise your prospects of becoming a productive member of society again and is the least restrictive sentence appropriate in these circumstances. The usual approach is to set a period of home detention which is half the time you would otherwise have spent in prison, to reflect the fact you will not be released half-way through your sentence of home detention as you would be if you were imprisoned. That would be 12 months’ home detention.

[32]   Finally, I now consider the time you have spent remanded in custody before your trial, from 26 November 2019 to 25 June 2021, a period of one year and seven months in prison. If you had served a sentence of imprisonment, Corrections would take that into account in determining how much longer you are to serve. In sentencing you to home detention, I need to take it into account. This is not really a discount to your sentence. It is a recognition that you have already effectively served most of it.

[33]   You spent 19 months in custody. I reached an end sentence of imprisonment of 24 months or 12 months on home detention. In the peculiar circumstances of this case, given the time you spent in custody and the extent of the discounts for the time you spent on EM bail, I consider a sentence of home detention of five months from now properly reflects the totality of your offending.

Sentence

[34]   Mr Signal, please stand. I sentence you to five months’ home detention at the proposed address, with the following special conditions:

(a)not to possess, consume or use any alcohol or drugs not prescribed to you;

(b)to attend and complete an appropriate alcohol and drug programme determined by and to the satisfaction of a Probation Officer;

(c)to attend an assessment for any counselling, treatment or programme as directed by a Probation Officer; and

(d)attend and complete any counselling, treatment, or programme as recommended by the assessment and as directed to the satisfaction of a Probation Officer.

Palmer J