R v Sullivan HC Napier CRI 2009-020-4891

[2010] NZHC 1053

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2009-020-4891

QUEEN

v

JUAN MARCUS ARRON SULLIVAN NEWTON LEE WATENE HARLEM RAWIRI TURI

Hearing:         11 June 2010

Counsel:         R J Collins for Crown

T M Petherick for Prisoner Sullivan
AJS Snell for Prisoners Watene and Turi

Sentencing:     11 June 2010

SENTENCING NOTES OF MILLER J

[1]      Mr Sullivan, you appear for sentence on one charge of causing grievous bodily harm to Scott Nuku with intent to cause grievous bodily harm.  The maximum sentence  is  14  years  imprisonment.    Mr  Watene  and  Mr  Turi,  you  appear  for sentence for injuring Mr Turi with intent to injure.  The maximum sentence is five

years imprisonment.

R V JUAN MARCUS ARRON SULLIVAN AND ORS HC NAP CRI 2009-020-4891  11 June 2010

[2]      The facts are that on 21 November 2009 Mr Nuku was inducted into Unit 7 at the  Hawke’s  Bay  Regional  Prison,  having  been  sentenced  to  imprisonment  for failing to complete a period of community service.  Each of you is associated with the Mongrel Mob, and the victim believes that he was set up for retribution because he had given evidence against another person associated with the Mob.  He says that he was expecting an assault when he entered the prison.  The police are not able to confirm that that was the motivation for the assault, but the narrative clearly demonstrates that retribution was then handed out for some purpose.

[3]      As matters turned out, Mr Nuku did not have to wait long.  On the day of his induction, Mr Turi asked to talk to him in Mr Nuku’s cell.  As he entered the cell he was assaulted by Mr Watene who was behind the door.   Both of you seriously assaulted him, with many blows to the head and body.  Mr Sullivan ran across the courtyard and entered the cell, stabbing Mr Nuku numerous times about the torso with what was believed to be a chisel or similar shaped weapon.

[4]      It  is now  accepted  that  Mr Watene and  Mr Turi acted independently of Mr Sullivan who chose to join in for his own reasons.  This led to a reduction in the charges that you initially faced, which I will mention later.

[5]      A short time later, the three of you exited the cell, leaving Mr Nuku there seriously wounded.  He made his way across the compound to the control room to seek help.  One of the stab wounds had pierced the pericardium around the heart, and he would have died had he not been operated on quickly.   Apart from the stab wounds, he received serious bruising to his right eye, face and body.

[6]      The victim impact statement records that he spent seven days in the Intensive Care Unit and still has not healed properly.  He suffers breathing difficulties because his sternum has not healed, and he has not worked since leaving prison.  Previously he had worked on a fishing boat but he is unable to do that physical work now.  He expresses ongoing fear of further retribution for himself and his family.

[7]      Mr Sullivan, you are aged 24 and you have been a Mongrel Mob associate since you were young.  You are a shearer by occupation.  You declined to explain the  offence  to  the  probation  officer.    You  readily concede,  however,  that  your membership of the Mongrel Mob has led to your difficulties.   You are presently serving a life sentence for murder, committed on 25 August 2006.  Apart from that, you have few previous convictions.   You present something of a dilemma for the probation officer, because you obviously have some positive qualities and express a wish to engage in rehabilitative programmes.   In particular you want to enter the Maori Focus Unit, which could have a positive effect on your future behaviour.  You acknowledge that it might take you out of the gang scene.  Strong identity with the many  positive  aspects  of  your  culture  could  lead  to  you  becoming  a  valuable member of society, and I encourage you in that ambition.

[8]      In the meantime, you can only be regarded as a high risk of reoffending, in my opinion.  This offence demonstrates that you possess a propensity to use extreme violence without provocation and that suggests to me that you are in need of some kind of specialist intervention before you can be regarded as an acceptable risk to the community.  What I am saying, Mr Sullivan, is that you may find yourself in prison for a very long time indeed, unless you deal with the factors that underlie your offending.    I  observe  that  you  have  appeared  today  wearing  red,  the  colour associated with your gang.  It does not augur well for your prospects.

[9]      Mr Watene, you are aged 32, also a member of the Mongrel Mob.  You have a  partner  and  young  children  to  whom  you  evidently feel  a  close  bond.    You mastered the art of carving whilst in a Maori Focus Unit in 2000 and there is reason to believe that you are committed to learning more about your cultural identity. While that offers hope for your future, you remain committed to the Mongrel Mob despite your knowledge of its negative effect upon you and your life.  You have a substantial list of previous convictions, including a number for assault and many of dishonesty.  You have a poor educational background, although you had become a team leader at McCain’s Foods.   That indicates that you have potential leadership qualities. I read a thoughtful letter that you provided me today.  You left that job to

be a full-time carer for your children;  an admirable thing.  But the spare time seems to have led to you using your time in antisocial ways, and you became dependent on methamphetamine which led to a spiral of offending

[10]     You say that you were unaware of the use of a weapon in this case, and that is accepted.  But you have admitted your role in the incident and expressed remorse for it.  The problem for you is that of changing your entrenched pro-gang beliefs. Until you do that, it is unlikely that your risk of reoffending will reduce.  At present, notwithstanding your positive qualities, I regard it as high.

[11]     Mr Turi, you are aged 29, with three children.  You say that your partner is supportive of you.   You too have long been associated with the Mongrel Mob, in your case, since about the age of 14 years.   Your account of the assault is that Mr Nuku is your cousin and you went into his cell to discuss a family dispute, which got out of hand.  That is not consistent with the summary of facts which you have accepted today;  the offending was plainly planned.  However, I will not sentence you on the basis that the retribution stemmed from Mr Nuku’s decision to give evidence, since that is not accepted as I explained earlier.

[12]     You express remorse for what happened.   As with the others, your gang membership undoubtedly leads you to continue to offend.  You too have shown up wearing your red today.  You have a long list of previous convictions, including a number for violence, and a pattern of failing to comply with Court orders.   You appear to have offended more or less constantly, when you are not in custody, since about 1994.  So your risk of reoffending must be considered as high.

Starting point

[13]     Mr Sullivan, your offending falls into a category for which a starting point must be in a range of nine to 14 years.[1]   That is so because there are a number of serious aggravating factors present:  serious injury;  the use of a weapon;  multiple attackers;  attacking the head.  The fact that the attack occurred in prison is also an

aggravating factor.   Because prisoners have no exit option they are vulnerable to such attacks unless they are kept in isolation.  In your case the starting point will be

10 years imprisonment.

[1] R v Taueki [2005] 3 NZLR 372 (CA) at [34] and [40].

[14]     Messrs Turi and Watene,  you are charged with a lesser offence and  the starting point is correspondingly much lower notwithstanding that the two of you engaged in a group attack.[2]   In your case, the aggravating factors are the attack on a prisoner, the serious violence used including attacking the head, and the evident element  of  premeditation.    I do  not  take into  account  the  use  of  a  weapon  by Mr Sullivan or his involvement in the attack.  The starting point will be two and a

half years imprisonment.

Aggravating and mitigating factors

[2] R v Harris [2008] NZCA 528

[15]     Mr Sullivan, you do not have an extensive history of violence but as I have mentioned  it  does  include  a  conviction  for  murder,  which  was  committed  by stabbing a rival gang member in the back with a knife.  As in this case, the victim was outnumbered by you and your associates.  It appears you have learned nothing. As I have said earlier this present offence confirms that you have a propensity to use extreme violence without provocation.  In the circumstances, the starting point must be increased by two years for your previous history.

[16]     Mr Watene, there will a modest uplift of three months for your previous convictions.  In recent years there have been a few for violence.  There is one for male assaults female in 2009, one for assault on a prison officer in 2008, but I note that you were convicted and discharged for that.   Your last offence for violence before that, aggravated assault, was in 2000, so for those reasons the uplift is, as I have said, a modest amount of three months.

[17]     Mr Turi, you are a regular and frequent offender.   In June 2009 you were convicted of assaulting police, resisting police, fighting in a public place.  In 2005 you were convicted for a number of assault charges and sentenced to imprisonment.

You were similarly sentenced to imprisonment in 2004 and 2002.  The uplift in your case will be six months.

[18]     In mitigation, credit must be given for your guilty pleas.   They were not entered at the earliest possible date, but the explanation for that is that when you were first committed on 11 January 2010 you were charged with attempted murder. Messrs  Turi  and  Watene were charged  in  the  alternative  with  causing  grievous bodily harm with intent to cause such harm.  On 24 March the Crown intimated that it would accept a guilty plea in Mr Sullivan’s case to the charge for which he has now been convicted, and counsel for Mr Sullivan confirmed on 22 April that the plea would be entered.  A charge of injuring with intent to injure was offered at that point to the other two, and all three were arraigned on 11 May 2010.  In the circumstances I accept that your pleas must be taken as having been entered at an early date.  You will each receive a discount of 30 per cent for that.

[19]     Mr Snell pointed to remorse, your family support, and an element of insight into your offending, but I do not accept that any additional discount can be given for these matters.   An allowance for remorse is implicit in the discount for the guilty plea,   and   anything   else   would   scarcely  be  consistent   with   your  continued commitment to the Mongrel Mob with all that that entails.  I note at this point that Mr Watene’s partner suggested in her reference that he has left the gang, but I am not prepared to accept that without more cogent evidence.

Cumulative or concurrent?

[20]     I  must  consider  the  question  whether  the  sentences  are  cumulative  or concurrent.

[21]     Mr Sullivan is serving an indeterminate sentence and for that reason the sentence imposed on him today must be concurrent.

[22]     Mr Turi was of course in prison at the time, but he has since been released.

[23]     Mr Watene is still in prison and he has a statutory release date of 13 June

2012.   He is eligible for parole under his existing sentence on 25 July 2010.   His sentence must be cumulative because the Court must impose a sentence that is meaningful and provides a genuine deterrence to prison violence.   The totality principle must be applied however, and I will make an allowance of six months for that.

Decision

[24]     Gentlemen, your sentences are as follows:

•Mr  Sullivan  your  sentence  is  eight  years,  five  months  imprisonment, concurrent with your existing sentence.

•Mr Watene your sentence is 17 months imprisonment, cumulative on your existing sentence.

•    Mr Turi your sentence is two years, one month’s imprisonment. [25] The Crown does not seek a minimum period, and none is imposed. [26]   You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Napier for Crown

Gresson Grayson, Hastings for Prisoner Sullivan