R v Taipeti
[2018] NZHC 2265
•30 August 2018
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 2265
THE QUEEN v
WHITU RUA TAIPETI TAUMATA OKAHUTEA TAWHAI CODIE TAITAPANUI
Hearing: 30 August 2018 Appearances:
R W Jenson for Crown
J N Briscoe for Mr Taipeti G Tomlinson for Mr Tawhai H Edward for Mr Taitapanui
Judgment:
30 August 2018
SENTENCING REMARKS OF LANG J
R v TAIPETI, TAWHAI & TAITAPANUI [2018] NZHC 2265 [30 August 2018]
[1] Mr Taipeti, Mr Tawhai and Mr Taitapanui, you appear for sentence today having been found guilty by a jury on charges of participating in an organised criminal group1 and rioting.2 The maximum sentence for the first of those charges is ten years imprisonment, whilst the maximum sentence for the other is two years imprisonment.
[2] Mr Taitapanui, you were also found guilty on a charge of being in unlawful possession of a firearm.3 The maximum sentence on that charge is one of three years imprisonment.
[3] Mr Taipeti, you also faced a charge of intentionally encouraging the reckless discharge of a firearm towards the Mongrel Mob.4 The jury was unable to reach a verdict on that charge and the Crown has elected to offer no evidence on it. I now discharge you on that charge.
Background
[4] You fall to be sentenced based on the facts that came out at your trial in the High Court at Rotorua. The charges were laid as a result of the combination of a series of incidents that occurred in and around the Whakatane township on the afternoon of 17 January 2017.
[5] All three of you are closely associated with the Black Power gang and have been for many years. There were some incidents earlier in January 2017 that led to an increase in tensions between Black Power and your rival gang the Mongrel Mob. This meant you became angry when you learned a funeral procession comprising members of the Mongrel Mob and their associates was to travel through the Whakatane township on 17 January 2017. You and other members and associates of the Black Power stationed yourselves at various points around Whakatane where you thought the funeral procession might enter the town. You were all captured on film at those
1 Crimes Act 1961, s 98A.
2 Crimes Act, s 87.
3 Crimes Act, s 202A(4)(b).
4 Crimes Act, s 198.
places. Mr Taitapanui and Mr Tawhai, the film footage taken makes it clear that you were very agitated during the course of the afternoon at what you perceived to be the Mongrel Mob presuming to come into what you considered to be your stronghold.
[6] The funeral procession ultimately entered Whakatane along Valley Road. The catalyst for the incident that gave rise to the charges occurred in a service lane running parallel to Valley Road. Several members or associates of the Black Power gang went to the service lane and ambushed the procession by throwing missiles at it. These included rocks, bottles and sticks. Obviously, that was a planned event but at a relatively low level. Predictably, however, it evoked a violent response from the Mongrel Mob. Shots were fired from the funeral procession in the direction of the Black Power group. Vehicles from the funeral procession then attempted to pursue the Black Power group down the service lane. One of the vehicles tried to run over a Black Power member during this aspect of the incident.
[7] I am satisfied that word spread very quickly to members of the Black Power group stationed in other parts of the township. The word went out that shots had been fired at the Black Power group, and it was decided to mobilise and conduct a show of force in Arawa Road.
[8] The incident that occurred in the service lane caused the funeral procession to stop. The procession comprised approximately 150 vehicles and as many as 200 to 250 members of the Mongrel Mob. A large number of these persons got out of their vehicles and gathered on the intersection of Valley Road and Arawa Road. Black Power members and associates congregated near the intersection of Te Tahi Street, approximately 150 metres down Arawa Road from the Mongrel Mob members.
[9] During the course of the incident a silver Mitsubishi Galant motor vehicle belonging to you, Mr Taipeti, arrived at Arawa Road. There is no evidence you were in the vehicle when it arrived. All three of you, however, arrived on foot shortly after the arrival of the silver Mitsubishi Galant. People immediately began pulling firearms out of the boot of the Galant.
[10] Mr Taitapanui, you grabbed a firearm and began brandishing it in the air in the direction of the Mongrel Mob. Mr Taipeti, you had a bat and spent virtually the whole of the time during this incident to the forefront of the group of Black Power members brandishing the bat and no doubt yelling taunts towards members of the Mongrel Mob at the other end of the street. Mr Tawhai, you were seen waving your arms and gesticulating in a manner that was clearly taunting the Mongrel Mob members.
[11] The incident came to a head when a firearm was provided to Mr Karaneihana Taipeti. He then discharged it on two occasions in the direction of the Mongrel Mob members. There were also several police officers at the other end of the street trying to keep the Mongrel Mob from coming down Arawa Road towards your group. The evidence was that some of the pellets from these shots ruffled the trouser legs of one or more police officers. Clearly the force of the shots had been spent by the time they reached the police officers and Mongrel Mob members.
[12] The jury acquitted all three of you on charges of intentionally encouraging Mr Taipeti to recklessly discharge the firearm in the direction of the Mongrel Mob and the police officers. Your culpability therefore lies in the fact that you went to the scene knowing there would be a show of force. Once you knew firearms were involved, you continued to participate in the actions of the group. Your culpability falls short, however, of actually encouraging the discharge of the firearm.
Starting points
[13] I now need to consider the starting points for the sentences to be imposed in relation to each of you, because they depend on your individual culpability. I draw assistance in this context from sentences imposed on other persons who have already been sentenced as a result of the same charges you are to be sentenced on today.
[14] At the lowest end of the group were Mr Biddle, Mr Martin and Mr Trent Taitapanui. The sentences imposed on them had a starting point of three years three months imprisonment.5 None of them handled firearms. Their culpability was
5 R v Biddle [2018] NZHC 2264; R v Martin & Taitapanui [2018] NZHC 2270.
restricted to taunting members of the Mongrel Mob whilst the firearms were being handled.
[15] Mr Taitapanui, your culpability is obviously considerably greater because you were prepared to take a firearm and brandish it at the Mongrel Mob. You told the police that the firearm was broken. Only you will know whether that is correct, but the fact remains that both the Mongrel Mob and civilians in the area saw you brandishing a firearm. That obviously raised the tension for all persons in the area. I select a starting point in your case of four years three months imprisonment.
[16] Mr Taipeti, your culpability is greater than the other persons to whom I have referred because of the fact that you were to the forefront throughout, brandishing your bat at members of the Mongrel Mob. You would have been clearly visible to them and, again, your actions raised the tension of the situation and led to an increased risk of violence. In your case I take a starting point of three years seven months imprisonment.
[17] Mr Tawhai, you did not handle a firearm and your culpability is largely restricted to the gestures you made towards the members of the Mongrel Mob at the other end of the street. There is, however, one other factor. You approached a member of the public who was filming the incident on his cellphone. You demanded in an aggressive manner that he delete the film footage. He complied with your request although, unknown to him, he did not delete all of the film footage and some of it was played at the trial.
[18] Your counsel says you did that because you did not wish to be filmed. I am satisfied you did that because you believed the person filming the incident could provide evidence of it at a later date. That is an aggravating factor I take into account.
[19] Your counsel submits that the starting point should be around two years imprisonment because he says this is really no more than a riot and nobody was injured as a result of it. I take a different view for the simple reason that the taking of firearms to a scene has the potential to escalate the level of violence considerably. It is only perhaps a matter of good fortune that the shots that were fired did not evoke a similar
response from members of the Mongrel Mob at the other end of the street. For that reason I consider the starting point must be higher than that suggested by your counsel. In your case, I select a starting point of three years five months imprisonment.
Aggravating factors
[20] It is now necessary to have regard to aggravating factors personal to each of you. These relate to relevant previous convictions. The Court can apply an increase for relevant previous convictions not to punish an offender again for earlier offending. Rather, the fact that an offender has not learned a lesson from previous convictions makes that offending that much more serious.
Mr Taipeti
[21] In your case, Mr Taipeti, you have no relevant previous convictions and I do not apply any uplift.
Mr Taitapanui
[22] Mr Taitapanui, I note that you have some previous convictions but they are largely in a family violence context. I put them to one side for present purposes and do not propose to apply an uplift.
Mr Tawhai
[23] Mr Tawhai, you have a long list of previous convictions no doubt entered as a result of your long-standing association with the Black Power gang. Several of these are for disorderly behaviour and violence. You have also served a sentence of imprisonment on firearms charges. I propose to add an uplift of three months to reflect that factor.
Mitigating factors
[24] It is now necessary to consider the extent to which, if at all, your sentences should be reduced to reflect mitigating factors personal to you.
Mr Taipeti
[25] Mr Taipeti, you have the benefit of guilty pleas entered at a very early stage. The Crown accepts you should receive a full discount for that. The Supreme Court has said that the maximum discount for guilty pleas is 25 per cent.6 Applying that discount and rounding it up, I propose to apply a discount of 11 months to reflect your guilty pleas.
Mr Tawhai
[26] Mr Tawhai, you went to trial as was your right, and accordingly I cannot give you a discount for guilty pleas but I am going to take into account another factor to which your counsel has referred.
[27] In December 2017, you and Mr Popata-Edwardson sought a sentence indication on these charges. I ultimately declined to give a sentence indication because I was concerned that your counsel and the Crown were so far apart regarding their respective views of your culpability that I ran a very real risk of creating an injustice one way or the other by giving a sentence indication. If I had accepted your counsel’s submission that a starting point of four to five years imprisonment was appropriate, I may have done the Crown an injustice because it said your culpability was much greater. On the other hand, the Crown was saying the starting point was because ten and 12 years imprisonment. If I had accepted that submission, then clearly an injustice would have occurred because everybody now accepts that your culpability is much less than the Crown originally thought. This is one of those very rare cases where the facts at trial become very much better for a defendant after the trial than they were in a summary of facts before it.
[28] You could of course have entered guilty pleas at that stage and left me to reach my own view of the facts. However, given the fact that the Crown was suggesting such a high starting point I can fully understand why you did not enter guilty pleas and elected to go to trial. I propose to allow a discount of five months to reflect that factor.
6 Hessell v R [2011] 1 NZLR 607 (SC) at [75].
Mr Taitapanui
[29] Mr Taitapanui, you are also in a different position because you went voluntarily to the police even though they did not have you marked out as a suspect at that stage. Your police interview also makes it clear that you have significant insight into your offending and you are remorseful for what occurred.
[30] In addition, the pre-sentence report advises me of a tragedy in your personal life that occurred in 2015. This has had obvious consequences for you and your partner. I have no doubt that the disturbed and unsettled state that you were in on 17 January 2017 was caused at least in part by all of those personal issues in your family life. I propose to allow a discount of nine months to reflect those factors.
[31] In addition, your counsel advises me today that you spent just under two months on EM bail on a restrictive basis before your trial. I propose to allow a discount of one month to reflect that factor.
Sentence
[32] Mr Taipeti, on the charge of participating in an organised criminal group, you are sentenced to two years ten months imprisonment. On the charge of rioting, you are sentenced to nine months imprisonment. Those sentences are to be served concurrently, which means you will serve an effective sentence of two years eight months imprisonment.
[33] Mr Tawhai, you are sentenced to three years three months imprisonment on the charge of participating in an organised criminal group. On the rioting charge, you are sentenced to nine months imprisonment. Those sentences are to be served concurrently, which means you will serve an effective sentence of three years three months imprisonment.
[34] Mr Taitapanui, you are sentenced to three years five months imprisonment on the charge of participating in an organised criminal group. On the rioting charge, you are sentenced to nine months imprisonment. On the charge of being unlawfully in possession of a firearm, you are sentenced to nine months imprisonment. Those
sentences are to be served concurrently, which means you will serve an effective sentence of three years five months imprisonment.
Lang J
Solicitors:
Crown Solicitor, Tauranga Tompkins Wake, Rotorua Gowing & Co Ltd, Whakatane Harry Edward Law, Rotorua
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