R v Stuart

[2018] NZHC 2105

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2017-087-131

[2018] NZHC 2105

THE QUEEN

v

JOSEPH STUART

Hearing:

16 August 2018

Appearances:

O M Salt for Crown

A Schulze for Defendant

Judgment:

16 August 2018

SENTENCING REMARKS OF LANG J

R v STUART [2018] NZHC 2105 [16 August 2018]

[1]    Mr Stuart you appear for sentence today having pleaded guilty to charges of participating in an organised criminal group,1 using a firearm against a law enforcement officer2 and discharging a firearm with reckless disregard for the safety of members of the Mongrel Mob.3 The maximum penalty on the charge of participating in an organised criminal group is ten years imprisonment, the maximum penalty for using a firearm against a law enforcement officer is 14 years imprisonment and the maximum penalty on the remaining charge is seven years imprisonment.

[2]    You also face charges of rioting and being in unlawful possession of a firearm. The Crown has offered no evidence on those charges and you are now discharged on them pursuant to s 147 of the Criminal Procedure Act 2011

The facts

[3]    The facts underpinning the charges are set out in a summary of facts that forms the basis for your guilty pleas. In addition, I have the advantage of having presided over the trial of some of your co-defendants last month. This has given me an insight into the events that occurred on 17 January 2017, and the culpability of the various participants in those events.

[4]    All of the charges arose out of a series of inter-connected incidents that occurred on 17 January 2017. They flow from ongoing and long-standing antipathy between the Black Power gang, with whom you were associated, and their rival, the Mongrel Mob. The evidence at trial and the summary of facts disclose that some days prior to 17 January 2017 an incident occurred in which the Mongrel Mob had removed a Black Power member’s patch and then had burned it and urinated on it. This caused considerable anger within the Black Power. The Black Power then learned that a funeral procession comprising members of the Mongrel Mob was to pass through the Whakatane township on 17 January 2017. This issue also caused members of the Black Power considerable concern.

1      Crimes Act 1961, s 98A.

2      Crimes Act 1961, s 198A(1).

3      Crimes Act 1961, s 198.

[5]    The funeral procession ended up arriving in Whakatane by a back route. Members of the Black Power had earlier gone to the Whakatane Bridge in anticipation that the procession would arrive through that entrance. You were not present at that gathering. They then moved to an area around Gorge Road and Valley Road, where they gathered to greet the funeral procession. You were seen in this area. The procession consisted of a very large number of vehicles. At trial, it was estimated that approximately 200 vehicles were in the cortege, and some two to three hundred members of the Mongrel Mob.

[6]    As the procession arrived at the outskirts of the town on Valley Road, a group of Black Power associates ambushed it by throwing sticks, bottles and stones at it. You were not part of this group. The Mongrel Mob responded by discharging a firearm in the direction of the persons throwing missiles. This caused them to scatter. A car driven by members of the Mongrel Mob then attempted to run the Black Power members down.

[7]    Word immediately got out that shots had been fired at the Black Power. Several Black Power members and associates, including you, then went to Arawa Road. They gathered approximately 150 metres from the intersection of Arawa Road and Valley Road. At the Arawa Road / Valley Road intersection approximately 200 members of the Mongrel Mob were gathered. This was some eight to ten minutes after the discharge of the firearm at members of the Black Power in Valley Road. The two groups then began taunting each other and chanting gang slogans.

[8]    Shortly after the Black Power members had gathered in Arawa Road, a silver Mitsubishi Galant motor vehicle arrived and parked near the intersection of Arawa Road and Tahi Street. Persons within that vehicle got out and opened the boot. You were then one of the persons who gathered round the boot unloading items from it. The boot contained several firearms. You picked up a firearm out of the boot and handed it to Mr Karaneihana Taipeti. He then walked down the street and endeavoured to fire it in the direction of the Mongrel Mob at the other end of the street. A loose cordon of police officers was standing in front of the Mongrel Mob group in an endeavour to keep the two groups apart.

[9]    The firearm you had given Mr Taipeti did not work. He then returned to the vehicle, where he was given another firearm. He discharged that firearm on two occasions in the direction of both the Mongrel Mob and the police. Whilst this was going on, members and associates of Black Power who were around the silver Galant motor vehicle continued taunting and chanting at the opposing members of the Mongrel Mob.

[10]   Your culpability therefore was that you assisted, or attempted to assist, Mr Taipeti by handing him a firearm. You then intentionally encouraged Mr Taipeti to fire the firearm notwithstanding the fact that there was obvious danger to members of both the Mongrel Mob and the police at the other end of the street.

Starting point

[11]   In fixing the starting point, I take the lead, or most serious, charge as that of participating in an organised criminal group. I draw support from the starting point I adopted in relation to Mr Taipeti on that charge.4 I considered his culpability on that charge warranted a starting point of six years imprisonment. He arrived in the vehicle carrying weapons and knowing they would be used. He also knew that he was the person who would discharge one or more firearms towards the Mongrel Mob. His culpability therefore sits at a higher level than yours. Nevertheless, by involving yourself in the way that you did you assumed a more significant role than other members of the group, who restricted their activities to taunting and chanting at the Mongrel Mob. I take a starting point of five years imprisonment to reflect your culpability in relation to the charge of participating in an organised criminal group.

[12]   The remaining charges also warrant an uplift because they reflect the fact that you intentionally encouraged Mr Taipeti to discharge the firearm in the direction of the police and Mongrel Mob. I adopted an uplift of 12 months imprisonment to reflect these charges when I sentenced Mr Taipeti. I consider your role to be lesser than his, because he was the person who discharged the firearm on two occasions. Your role was simply to encourage him. On that basis I apply an uplift of six months to reflect the remaining charges.

4      R v Taipeti [2018] NZHC 961 and 1482.

[13]This brings the sentence to one of five years six months imprisonment.

Aggravating factors

[14]   The Crown originally suggested that I should add a modest uplift to reflect your previous convictions. The only one of any significance in the present context is a conviction for aggravated robbery for which you received a sentence of three years imprisonment on 3 March 2010. Your remaining convictions relate to driving offences and are obviously of no relevance today.

[15]   I do not consider any uplift is required to reflect the aggravated robbery charge, because it represents offending of a very different type to that for which you appear for sentence today.

Mitigating factors

[16]   I now need to consider the extent to which I should reduce the sentence to reflect mitigating factors personal to you.

[17]   The pre-sentence report makes encouraging reading. At the age of 32 years you have now withdrawn from your close association with the gang. You draw great support from your partner, who is here today to support you, and you also have the support of your family. All of those persons are obviously going to miss you whilst you are in prison as a result of the present offending.

[18]   I propose to provide a discrete discount to reflect two factors. First, I acknowledge that you have been subject to restrictive terms of EM bail for just over seven months. The Court has a discretion to apply a discount to reflect this factor, but it is not on a month-for-month basis. If you were not on EM bail, you would of course have been in prison. I propose to reduce your sentence by three months to reflect the fact that you have been on EM bail for a reasonably lengthy period.

[19]   The second factor for which I can provide a discount is your acknowledgement of responsibility through your guilty pleas. These were not entered at the earliest opportunity, but the Crown nevertheless accepts you should receive a discount of

around 20 per cent to reflect your guilty pleas. This produces a discount of one year one month imprisonment.

[20]   It follows that the effective end sentence is one of four years two months imprisonment.

Minimum term of imprisonment

[21]   The Crown also asks that I make an order requiring you to serve a minimum term of imprisonment before being eligible to apply for parole. The Court has the power to make such an order when it is satisfied that the usual parole provisions do not provide adequate recognition for the sentencing principles of the need for deterrence, the need to hold the offender accountable and the need to denounce the conduct in question.5

[22]   In the ordinary course of events you would be eligible to apply for parole after serving approximately one year five months of your sentence. I made an order requiring Mr Taipeti to serve a minimum of one-half of his sentence before being eligible to apply for parole. I consider, albeit by a narrow margin, that a minimum term of imprisonment is not required in your case. Your overall culpability is significantly less than that of Mr Taipeti. In addition, you have shown encouraging signs of reformation and rehabilitation during the time you have been on remand.

[23]   I therefore consider I should leave it to the parole authorities to determine when you are eligible to be released on parole. I make no order requiring you to serve a minimum term of imprisonment.

Sentence

[24]   On the charge of participating in an organised criminal group you are sentenced to four years two months imprisonment. On each of the other two charges you are sentenced to two years imprisonment. Those sentences are all to be served concurrently, which means you will serve an effective sentence of four years two months imprisonment.

5      Sentencing Act 2002, s 86(1).

[25]Stand down.

Lang J

Solicitors:

Pollett Legal Ltd, Tauranga Lance Lawson, Rotorua