R v Waihape - [2012] NZHC 198

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-082-526 [2012] NZHC 198

THE QUEEN

v

SAUL WAIHAPE VINCENT JAMES MONIKA

Counsel: R J Collins and J E Rielly for Crown
NCH Hewat for Waihape
J C Mathieson for Monika

Judgment: 15 February 2012

SENTENCING NOTES OF MACKENZIE J

[1] Saul Waihape and Vincent Monika, you appear for sentence on one count of participation in an organised criminal group under s 98A of the Crimes Act 1961, and three counts of unlawful possession of a firearm. The charges arose out of a gunfight which took place at the Mongrel Mob paid in Wairoa on 10 August 2010.

[2] The events of the morning of 10 August 2010 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 Mr Gemmell and yourselves on the other. A fight developed. Rangi Tamati’s patch was removed. He left, making clear his intention to return.

[3] The two of you and Mr Gemmell anticipated a retaliation and made preparations to meet it. You obtained arms and ammunition and returned to the pad.

R V WAIHAPE HC WN CRI-2010-082-526 [15 February 2012]

The three of you, with others, spent the night at the pad. Early the following morning, you were joined by others, and there were then seven people inside the pad: The three of you and four others. You were collectively 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, 10 August, a group of at least 17 Mongrel Mob members or supporters from Wairoa and Napier arrived in the backyard of the pad. That group was 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 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, which I accept, was fired by Mr Gemmell into Mr Edwards’ leg. Fire was returned from outside. In the exchange of fire, Mr Gemmell was hit in the face by a shotgun shot. He was seriously wounded. Mr Edwards was hit again by some shotgun pellets. Mr Gemmell left the pad by a side door to seek medical help. Mr Edwards also left the scene but did not go to hospital to seek medical help until the next day.

[6] You Mr Monika contacted police. They responded first from Wairoa, and then with further resources,…

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 Waihape

Details

AGLC: R v Waihape [2012] NZHC 198
Case: [2012] NZHC 198
Decision Date: 15 February 2012

CaseChat Overview and Summary

The case of R v Waihape involves the sentencing of Saul Waihape and Vincent Monika, who were convicted for their participation in an organised criminal group and unlawful possession of firearms. The charges stem from a gunfight that occurred at a Mongrel Mob pad in Wairoa on 10 August 2010. The dispute arose from a leadership conflict within the Mongrel Mob Wairoa, which led to a violent confrontation on 9 August 2010. Both Waihape and Monika, along with others, anticipated a retaliation and armed themselves in preparation for it.

The primary legal issues the court needed to address were the appropriate starting point for sentencing, given the nature and seriousness of the offences, and the extent to which personal factors of the offenders should influence the final sentence. The court considered the purposes of denunciation and deterrence in sentencing, emphasizing that resorting to firearms to settle disputes is unacceptable in a civilised society. The court also had to evaluate the relative culpability of the two offenders and determine the appropriate discount for their cooperation with the prosecution.

The court's reasoning led to the conclusion that both Waihape and Monika were equally culpable, actively participating in the planning and execution of the gunfight. The court established a starting point of six years, reflecting the seriousness of their involvement. The court applied a discount of two years for their cooperation with the prosecution, acknowledging the risks and difficulties they faced in breaking the gang code. For Waihape, no additional mitigating or aggravating personal factors were found, leading to a sentence of four years imprisonment for participating in an organised criminal group and one year for each count of firearm possession, all to be served concurrently. Monika received a sentence of three years and nine months for the group participation charge, one year for each firearm possession count, and two years for an unrelated charge of offering to supply methamphetamine, to be served cumulatively, resulting in a total sentence of five years and nine months.

The final orders of the court reflect the careful consideration of the purposes of sentencing, the specific circumstances of the offence, and the personal factors of the offenders, ensuring that the sentences imposed serve the objectives of denunciation, deterrence, and proportionality.

Orders