R v Tarau

[2018] NZHC 2595

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 2595

THE QUEEN

v

TE RENETI BROOK TARAU

Hearing:	4 October 2018
Appearances:	O M Salt for Crown T Braithwaite (on behalf of R Mansfield) for Defendant
Judgment:	4 October 2018

SENTENCING REMARKS OF LANG J

R v TARAU [2018] NZHC 2595 [4 October 2018]

[1]      Mr Tarau, you appear for sentence today having been found guilty on charges of participating in an organised criminal group1 and rioting.2   The maximum penalty for the first of those charges is ten years imprisonment, whilst the maximum penalty for the other is two years imprisonment.

The facts

[2]      I presided over your trial and therefore have a good grasp of the facts.  The offending occurred in the context of long-standing rivalry and enmity between the Black Power gang and the Mongrel Mob gang. You are not a member of either gang, but you have associates, and I believe family members, in Black Power and are more closely associated with that gang for that reason than with the Mongrel Mob gang.

[3]      On 17 January 2017, the Black Power became aware that a funeral procession comprising a large number of Mongrel Mob members and associates was to travel through the Whakatane township on the way to a crematorium just outside town. This produced a good deal of angst on the part of the Black Power because they saw this as a form of insult given events that had recently occurred between the two gangs.  For that reason you and other members of the Black Power gang stationed yourselves at points in and around Whakatane township where you believed the funeral procession might enter the town.

[4]      The procession ultimately entered through a back route along Valley Road. When members of the Black Power learned this was occurring, they sent a group of members and associates to a service lane running parallel to Valley Road.  From the cover of bushes on the service lane these persons threw rocks, sticks and bottles at cars in the funeral procession.  Not surprisingly, this evoked an immediate response from the Mongrel Mob. They responded by firing two shots in the direction of the persons who had been throwing missiles at them.  A car containing members of the Mongrel Mob also tried to run down Black Power members and associates as they fled from the service lane.

1      Crimes Act 1961, s 98A.

2      Crimes Act, s 87.

[5]      At the time this occurred you were with Black Power members and associates who had gathered near the intersection of Valley and Gorge Roads.  I have no doubt that word of the shooting quickly spread to members of this group.  Several vehicles

then travelled to Arawa Road, which intersects with Valley Road.  You were seen arriving at the scene.   A silver Mitsubishi Galant motor vehicle stopped near the intersection of Valley Road and Tahi Street.  The boot of the vehicle was opened and firearms were taken from it.

[6]      The Crown case at trial was based largely on film footage taken by witnesses who filmed the events that occurred on their cellphones.  These showed you quite clearly going to the boot of the Mitsubishi Galant and removing a firearm from it. You appeared to examine the firearm before placing it back in the boot. You were charged with being in possession of this firearm, but the jury found you not guilty on that charge.   I am satisfied this reflects the jury’s conclusion, urged on them by your counsel, that although you had taken physical possession of the firearm you did not intend to exercise control over it.

[7]      Other persons who were in the vicinity of the boot of the vehicle handed a firearm to Mr Karaneihana Taipeti. He then pointed it in the direction of the Mongrel Mob and police officers who were at the other end of the street endeavouring to keep the two rival gangs apart.  He pulled the trigger of the firearm, but it did not fire. Another firearm was then given to him and he pointed this firearm at the Mongrel Mob and the police and pulled the trigger. On this occasion, the firearm discharged a shot. Mr Taipeti then reloaded the firearm and fired a second shot in the direction of the Mongrel Mob and the police.   Whilst this was going on, you can be seen in the background taunting members of the Mongrel Mob.

[8]      You were charged with being a party to the use of a firearm against police officers and the reckless discharge of the firearm towards other persons.  The jury found you not guilty on both charges.  This must reflect the fact that they were not satisfied you had intentionally encouraged the use of the firearm in those ways. Your culpability, therefore, lies in the fact that you were prepared to involve yourself in an incident where you knew firearms were involved and where there was a risk that they

would be used.  Your participation in the offending stopped short, however, of actual encouragement of the use of the firearm.

Starting point

[9]      I gain considerable assistance in selecting the starting point for your offending having regard to the starting points selected in relation to other offenders.   Your offending mirrors most closely that of Mr Biddle, Mr Martin and Mr Trent Taitapanui. Those persons all involved themselves in the events that occurred in a similar way to you.   In each of their cases I selected a starting point of three years three months imprisonment.3

[10]     Your counsel urges me to select a starting point of two years six months imprisonment.  He submits your culpability is significantly less than that of others at the scene because you had no previous association with the Black Power gang and you were a reluctant participant.  In his written submissions, Mr Mansfield points out that when you were interviewed by the police you said that you had gone along in the vehicle to Arawa Street and you felt peer pressure to become involved in what occurred there. You said you had been scared by what was going on and did not wish to participate, but you felt you had little option but to act in the same way as others who were at the scene.

[11]     I propose to give your explanation some recognition, because it is correct that you have never been an actual member of the Black Power gang and I accept you were caught up to some extent with the events that occurred that day through factors beyond your control. Nevertheless, you were seen at several of the scenes where Black Power members gathered earlier in the day, and your actions as shown in the film footage of Arawa Road make it clear you participated in the same way as others.  I therefore propose to select a starting point of three years imprisonment in your case.

3      R v Biddle [2018] NZHC 2264; R v Martin & Taitapanui [2018] NZHC 2270.

Aggravating factors

[12]     You have some previous convictions, but none of these is relevant for present purposes. Your earlier offending relates to offences committed in contexts other than the gang environment.

Mitigating factors

[13]     It is now necessary to consider the extent to which I should apply a discount to reflect mitigating factors personal to you. Of these, the most significant is the fact that you have been required to spend 15 months on 24-hour curfew and subject to EM bail conditions.  You accomplished this without blemish, and it resulted in a significant restriction on your liberty. The Court is permitted to provide a discount to reflect this factor, but it does not do so on a month-to-month basis. In your case I propose to apply the discount suggested by your counsel and reduce the sentence by seven months to reflect this factor.

[14]     I have also read a large amount of material in which you express your remorse and insight into what occurred on 17 January 2017.   You also express your determination to cease your associations with persons who are involved in gang- related activities.  These expressions are borne out by your actions since the date of the offending.   I have no doubt that you hold genuine remorse and that you are determined to stay clear of gang-related influences in the future.  I propose to allow a discount of 15 per cent, or five months, to reflect this factor.

[15]     This reduces your sentence from one of three years imprisonment to one of two years imprisonment. As a result, you become eligible for an electronically monitored sentence in the form of home detention.   Ordinarily offending of this seriousness would not result in such a sentence, but I am satisfied that in your case it is appropriate because of the mitigating factors to which I have referred.  I see no sense in sending you back to prison where you will continue to be subject to gang-related influences. You are far better off in the community where you can hold down employment and avail yourself of rehabilitative factors. I am therefore satisfied that a sentence of home detention is appropriate in the present case.

[16]     This means, however, that I need to take into account the fact that you have now spent just under six months in custody. You spent approximately three months in custody after you were arrested and before you were granted EM bail. You then spent a further three months in custody awaiting sentence.   This is the equivalent of a sentence of 12 months imprisonment, because a person who serves a sentence of under two years imprisonment is entitled to automatic release after serving one-half of the sentence.

[17]     I consider the appropriate way to recognise this factor is to deduct 12 months from the two-year end sentence.  This would mean an end sentence of 12 months imprisonment,- which converts to a sentence of six months home detention.

Sentence

[18]     On both charges, you are sentenced to six months home detention.   The sentence is subject to the following conditions:

1.Upon release from the Court today, you are to travel directly to the nominated address where you are to await the arrival of probation and security staff.

2.You are to reside at the nominated address for the duration of the sentence and you are not to leave it without the prior approval of your probation officer.

3.You are not to possess, consume or use any alcohol or drugs not prescribed to you.

4.You are to attend a psychological assessment with a Departmental psychologist as directed by your probation officer, and you are to complete any treatment, counselling, course or programme as recommended by and to the satisfaction of your probation officer.

5.You are not to communicate in any way, or associate with, members of the Black Power gang without the prior approval of a probation officer.

[19]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Tauranga

R Mansfield, Barrister, Auckland