Te Kahu v R - [2012] NZCA 473

IN THE COURT OF APPEAL OF NEW ZEALAND

CA147/2012
[2012] NZCA 473

BETWEEN GLENN JUNIOR TE KAHU
Appellant

AND THE QUEEN
Respondent

CA399/2012

AND BETWEEN JEREMY DANIEL MITA
Appellant

AND THE QUEEN
Respondent

Hearing: 9 October 2012

Court: Stevens, Chisholm and Venning JJ

Counsel: A J S Snell for Appellant Te Kahu
A Malik and A F Mclean for Appellant Mita
D J Boldt for Respondent

Judgment: 16 October 2012 at 10.00 am

JUDGMENT OF THE COURT

AIn the case of Mr Mita, an extension of time to bring the appeal is granted.
BThe appeals against sentence by Mr Te Kahu and Mr Mita are both dismissed.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellants, Mr Te Kahu and Mr Mita, both entered pleas of guilty to a single charge of participation in an organised criminal group under s 98A of the Crimes Act 1961. The charge arose out of a violent confrontation between members of the Mongrel Mob in Wairoa on 10 August 2010. Both men were sentenced in the High Court by MacKenzie J to three years’ imprisonment.[1] They now appeal against that sentence on two grounds: first, that the Judge erred in setting the starting point and second, that the Judge failed to take into account relevant mitigating factors.
[1] R v Stone [2012] NZHC 227.
As the elements of the charge are important to the disposition of the appeal we set out below the amended charge from the indictment to which guilty pleas were entered:
THE SAID CROWN SOLICITOR further charges that … together with Rangi Tamati, Alexander Tamati, Sovite Sua, Wayne Hema, Ronald Rigby, Harry Minhinnick, Christopher Turei, and Claude Edwards on the 10^th day of August 2010 at Wairoa, did participate in an organised criminal group, namely the Mongrel Mob, each knowing it was an organised criminal group and was reckless as to whether his conduct may contribute to the occurrence of any criminal activity, and was reckless as to whether the criminal activity may contribute to achieving the group’s particular objective.
Mr Mita’s appeal was filed late. The Crown does not oppose an extension of time. We grant an extension of time to bring the appeal.

Factual background

The background to the violent confrontation between the rival groups is conveniently set out in the summary given by MacKenzie J in his sentencing notes:
[2] The events of the morning of 10 August 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 Kelly Gemmell, Saul Waihape and Vincent Monika on the other. A fight developed. Rangi Tamati’s patch was removed. He left, making clear his intention to return.
[3] Messrs Gemmell, Waihape and Monika anticipated a retaliation and made preparations to meet it. They obtained arms and ammunition and returned…

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 Te Kahu v R

Details

AGLC: Te Kahu v R [2012] NZCA 473
Case: [2012] NZCA 473
Decision Date: 16 October 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals against sentence from two appellants, Mr Te Kahu and Mr Mita, who had pleaded guilty to participating in an organised criminal group under s 98A of the Crimes Act 1961. They were sentenced to three years’ imprisonment by MacKenzie J in the High Court. They appealed against their sentences on two grounds: first, that the starting point was set too high, and second, that the sentencing judge failed to take into account relevant mitigating factors. The appeal against sentence by Mr Mita was granted an extension of time to be filed. The Court found that the starting point set by the sentencing judge was not excessive and that the judge had properly considered the appellants’ mitigating factors in arriving at their sentences. The appeals were therefore dismissed.

Orders