R v Stone - [2012] NZHC 227

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-96 [2012] NZHC 227

THE QUEEN

v

TERRY STONE

LADDIE PAORA TE APATU TAMATI GLEN JUNIOR TE KAHU BRADLEY JOHN NGARONOA JEREMY DANIEL MITA
PAUL STANLEY JOHNSON PETER RIKI LAVU LAVU

FREDERICK GEORGE DICK BLANFORD

Counsel: R J Collins and J E Rielly for Crown
V L Thorpe for Stone AJS Snell for L Tamati P J Jensen for Te Kahu
R B Philip for Ngaronoa
A Malik for Mita
V L Thorpe (for D D Rishworth) for Johnson
A M Sceats for Lavu Lavu
V L Thorpe (for A Clarke) for Blanford

Judgment: 15 February 2012

SENTENCING NOTES OF MACKENZIE J

[1] All of you appear for sentence on one count of participation in an organised criminal group under s 98A of the Crimes Act 1961. You each pleaded guilty to that charge, shortly after the beginning of your trial. The charges arise out of a gunfight
that took place at the Mongrel Mob pad in Wairoa on 10 August 2010.

R V STONE HC WN CRI-2011-485-96 [15 February 2012]

[2] The events of the morning of 10 August had their origins in a long standing leadership dispute within the Mongrel Mob Wairoa. The immediate catalyst was a fracas which developed at the Mongrel Mob pad on the afternoon of 9 August. There was a confrontation between Rangi Tamati and Claude Edwards on one side, and Kelly Gemmell, Saul Waihape and Vincent Monika on the other. A fight developed. Rangi Tamati’s patch was removed. He left, making clear his intention to return.

[3] Messrs Gemmell, Waihape and Monika anticipated a retaliation and made preparations to meet it. They obtained arms and ammunition and returned to the pad. The three of them, with others, spent the night at the pad. Early the following morning, they were joined by others, and there were then seven people inside the pad: They were armed with a .22 calibre pistol, a 20 gauge pump action shotgun and a 12 gauge double barrel sawn-off shotgun.

[4] Rangi Tamati made preparations for a retaliation. Early on the following morning, Tuesday, 10 August, a group of at least 17 Mongrel Mob members or supporters from Wairoa and Napier arrived in the backyard of the Mongrel Mob pad. They were armed with at least five weapons: a 7.65mm semi automatic pistol; two semi automatic .22 rifles; one bolt action .22 rifle; and a cut down pump action
12 gauge shotgun.

[5] A gunfight ensued. At least 25 shots were fired. The ESR firearms expert was able to identify trajectories of 21 shots fired from the outside to the pad, and four shots from inside the pad. Those inside fired the first shots. One of those was a shot from the .22 pistol fired by Mr Gemmell into Mr Edwards’ leg. Fire was returned from outside. In the course of the exchange of fire, Mr Gemmell was hit in the face by a shotgun shot. He was seriously wounded. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stone

Details

AGLC: R v Stone [2012] NZHC 227
Case: [2012] NZHC 227
Decision Date: 15 February 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Stone and others involved eight defendants charged with participation in an organised criminal group under section 98A of the Crimes Act 1961. The charges arose from a gunfight that occurred at a Mongrel Mob pad in Wairoa on 10 August 2010, stemming from a long-standing leadership dispute within the Mongrel Mob. All defendants pleaded guilty shortly after the trial began. The court had to determine the appropriate sentencing for each defendant, considering their level of involvement and culpability in the crime.

The primary legal issues were the appropriate starting point for sentencing and the extent of any discount for the defendants' guilty pleas. The court considered the principles of denunciation and deterrence, emphasising that resorting to firearms to settle disputes is unacceptable in a civilised society. The court also had to evaluate the individual culpability of each defendant, taking into account their level of involvement and any personal mitigating factors.

The court found that none of the defendants were actively involved in planning or preparing for the incident but were present as members of the group. The court concluded that their culpability was based on recklessness rather than knowledge, and the starting point for sentencing was three and a half years. Given the defendants' late but immediate guilty pleas, the court deemed a significant discount appropriate, resulting in a final sentence of three years for each defendant. The court examined each defendant's personal circumstances, including prior convictions and mitigating factors, but found no justification for increasing or decreasing the base sentence.

Each defendant was ultimately sentenced to a term of imprisonment of three years. The court emphasised that home detention was inappropriate for this type of offending, which requires a deterrent sentence. The judge acknowledged the defendants' guilty pleas and the mitigating factors but concluded that the base sentence remained appropriate.

Orders