The King v Leon Huritu
[2023] NZHC 3100
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2021-070-4221
[2023] NZHC 3100
THE KING v
LEON HURITU
Hearing: 18 August 2023 Appearances:
A Pollett and C A Bourke for the Crown W T Nabney for Mr Huritu
Judgment:
8 November 2023
SENTENCING REMARKS OF HARLAND J
Introduction
[1] Mr Huritu, you appear before the Court for sentence having been found guilty by a jury of:
(a)two charges of participating in an organised criminal group;1
(b)two charges of possessing methamphetamine for supply;2
(c)one charge of discharging a firearm with reckless disregard;3
1Crimes Act 1961, s 98A - Charges 1 and 2, Crown Charge List end of trial, maximum penalty 10 years’ imprisonment.
2Misuse of Drugs Act 175, ss 6(1)(f) and 6(2) - Charges 43 and 46, maximum penalty life imprisonment.
3 Crimes Act, ss 66 and 198(2) - Charge 54, maximum penalty seven years’ imprisonment.
R v LEON HURITU [2023] NZHC 3100 [8 November 2023]
(d)one charge of unlawful possession of prohibited firearms;4
(e)four charges of unlawfully possessing a firearm;5
(f)one charge of unlawfully possessing explosives;6 and
(g)one charge of unlawfully possessing a pistol.7
[2] Your offending arises out of a Police operation known as Operation Silk in which the activities of the Mongols Motorcycle Club (Mongols) and its role as an emerging player in the distribution and supply of methamphetamine and drugs throughout New Zealand was the focus. You are a patched member of the Mongols and held a senior position in the gang, likely being the sergeant at arms over at least some of the time relevant to the charges in respect of which you were found guilty.
[3] The maximum penalties for the individual charges you face range from four years’ imprisonment and/or a fine not exceeding $5000 to life imprisonment. Given your involvement in the offending and the nature of the charges in respect of which you were found guilty, a term of imprisonment is inevitable. The question for me on sentencing you is what the starting point for that term of imprisonment should be and what mitigating matters, if any, justify a reduction from that starting point. There is also a need for your sentence to be considered on a totality basis given that you have recently been sentenced to a term of seven years 10 months’ imprisonment arising out of charges following the Waikeria Prison riots over the 2020/2021 New Year period.
[4] So first, I will outline certain matters of general importance that relate to the offending of the kind you have undertaken before addressing your specific offending and then the mitigating matters that relate to you personally.
4 Arms Act 1983, s 50A - Charge 55, maximum penalty five years’ imprisonment.
5Arms Act, s 45(1) - Charges 100, 101, 109 and 117, maximum penalty four years’ imprisonment and/or a fine not exceeding $5,000.
6Arms Act, s 45(1) - Charge 102, maximum penalty four years’ imprisonment and/or a fine not exceeding $5,000.
7Arms Act, s 45(1) - Charge 108, maximum penalty four years’ imprisonment and/or a fine not exceeding $5,000.
Your role in Operation Silk
[5] First dealing with your role in Operation Silk. At some point during 2016, you returned to live in New Zealand, having lived in Australia for some years. You were deported from Australia because of your criminal history. At that time, you were a patched member of the Bandidos. Through your involvement in the Bandidos in Australia, you knew Jim Thacker and Hone Ronaki. And, like you, both of them were deported from Australia. And they returned to New Zealand in 2018.
[6] You all eventually settled in the Bay of Plenty. The idea was that you would set up a chapter of the Bandidos in the Bay of Plenty with Hone Ronaki as the president.
[7] But, for various reasons, there was an incident which resulted in you and others being de-patched from the Bandidos.
[8] In 2019, the Mongols established their first chapter in the Bay of Plenty with Jim Thacker as its president. Hone Ronaki was the vice president. And, as I have said, at some time but not all of the time, you were the sergeant at arms.
[9] The gang grew to form chapters and links in Auckland and Christchurch and likely elsewhere as well.
The offending
[10] I start now dealing with your offending and first your methamphetamine offending.
Methamphetamine offending
Charge 43
[11] You were found guilty by the jury of this charge which alleged that, between 5 December 2019 and 23 June 2020 at Tauranga, you had in your possession three kilograms of methamphetamine that had been obtained from Mr Collins-Haskins, via the protected witness, at Mr Thacker’s direction just prior to the COVID-19 lockdown.
[12]Mr Collins-Haskins and Mr Thacker were found guilty by the jury of Charge
42 which is related to Charge 43 as it concerns the same three kilograms of methamphetamine.
[13] The evidence about this charge came from the protected witness. He had described the general pattern of his trips to Auckland during which, and following Mr Thacker’s instructions, he would pick up methamphetamine from Mr Collins-Haskins and take it back to Te Puke where, at a later date, it would be transported down to the South Island.
[14] On this occasion, the protected witness described uplifting three kilograms of methamphetamine from Auckland and dropping it off at your house at Mount Manganui about a week prior to the COVID lockdown. He recalled this situation because he said you had laughed at him when he had arrived because one of his headlights was not working and there was therefore a risk that he could have been stopped by the Police because of this, carrying the methamphetamine.
[15] The protected witness then described himself and others going around to your property to “pick up their cuts … and sell their stuff”.8
[16] You accept that the quantum of this methamphetamine was three kilograms. However, Mr Nabney, on your behalf submitted that you were a custodian of it as opposed to a person who was actively dealing it. But, further, he submitted that you have already been sentenced for some of the methamphetamine that was part of the three kilograms supplied to you. I now outline, as I must, the reasons why he makes that submission.
[17] On 8 April 2020, a search warrant was executed at your then address. During that search, the Police located $40,660 cash and 21 grams of methamphetamine. Given the amount of methamphetamine, you were charged with being in possession of it for the purposes of supply.
8 Transcript pg 120.
[18] The protected witness in his evidence referred to the fact that you had been “raided again”.9 Mr Nabney submitted this 21 grams was all that remained from the three kilograms uplifted from Auckland.
[19] You sought a sentence indication and I was provided with a copy of the Judge’s sentence indication decision. Unfortunately, the sentencing notes aren’t available but there were apparently further reductions made at sentencing for you. You accepted the sentence indication and you were subsequently sentenced to two years four months’ imprisonment; with the Court indicating a starting point for the methamphetamine of two years six months, an uplift of 10 months for a firearm located during the search, and a reduction of 10 months for your guilty plea and, at sentencing, a further two months for matters set out in the s 27 report.
[20] Mr Nabney submitted that a two year reduction from any starting point was warranted to reflect this. And the Crown I note also agree that this is an appropriate adjustment to whatever I get to for your methamphetamine starting point.
Charge 46
[21] You were also found guilty of this charge of possessing methamphetamine for supply between 12 December 2019 and 21 January 2020. This methamphetamine comprised an additional three kilograms that had been earlier uplifted by the protected witness from “Lam” in Auckland.
[22] The protected witness’s evidence, which the jury must have accepted, was that Mr Thacker had directed him to pick up methamphetamine from “Lam” in Auckland and you subsequently possessed it with Mr Thacker when you participated in cutting the methamphetamine at Hone Ronaki’s house.
[23] Your defence at trial was that the protected witness’s explanation of how and where he uplifted the methamphetamine was not plausible. This was because the protected witness said that “Lam”, who looked like an Asian student, “came around the corner carrying a backpack like a normal looking person”, slipped the bag off his
9 Defence submissions at [25]. NOE 211 line 6.
shoulder and chucked it to the protected witness who then put it in his car and “took off”. Further, the description of the methamphetamine, which was dirty and was graphically described by the protected witness as looking as if it was contaminated by grass clippings and pubes, was submitted by Mr Nabney to simply be unbelievable.
[24] Two kilograms of the methamphetamine was uplifted from Lam but the amount of three kilograms was included in the charge because the protected witness said that an extra one kilogram of methamphetamine was added to it. This methamphetamine was in a backpack at the protected witness’s house and he said it had been missed by the Police when they searched his property on 7 January 2020.
[25] At trial, Mr Nabney submitted that this suggestion was not credible because of the thoroughness of the search. In addition, he submitted to the jury on your behalf that it was even more unusual that you would be involved in cutting methamphetamine at Hone Ronaki’s place.
[26] Because the jury convicted you of this charge, they did not accept the defence put forward on your behalf. The question remains however as to the quantum of methamphetamine that comprises charge 46. You accept, somewhat responsibly in my view, that it was three kilograms.
[27] Accordingly, for the purposes of sentencing you on your methamphetamine offending and taking into account the 21 grams and the facts relating to that, the amount of methamphetamine involved is 5.979 kilograms.10
Charge 1 – participating in an organised criminal group
[28] You were also found guilty of participating in an organised criminal group that, between 1 January 2019 and 23 June 2020, shared the objective of distributing and supplying class A, B and C controlled drugs, in the main, mainly methamphetamine but also cocaine and MDMA, or Ecstasy, at Tauranga and elsewhere in New Zealand. You, as well as Mr Thacker, Mr Collins-Haskins, Mr Petrowski, Mr Ramsden, Hone
10 6 kgs less 21 gms.
Ronaki and Whana Ronaki have all been found, either by the jury or earlier guilty plea, to have been involved in this organised criminal group with this particular objective.
[29] Your involvement in the organised criminal group, with the objective I have outlined, was evident from your methamphetamine offending.
Firearms offending
Charges 54 and 55
[30]So, now I need to outline the facts relating to your firearms offending. Charges
54 and 55 relate to what occurred at Haukore Street, Mount Maunganui, or Maungatapu probably, during the evening of 28 January 2020. Charge 54, discharging a firearm with reckless regard for the safety of others, was a charge you faced with Mr Thacker, Hone Ronaki and Mr Collins-Haskins. All of you were found guilty of this charge by the jury. Charge 55 relates to the unlawful possession of prohibited firearms, being the firearms used to shoot at and into Haukore Street. You faced this charge with Hone Ronaki, Mr Thacker and Mr Collins-Haskins as well. And all of you were also found guilty by the jury of it.
[31] The background to the Haukore Street incident relates to what happened earlier in January 2020. There had been an arson attack on a business that Mr Thacker was establishing in Greerton in Tauranga. That barber shop business (Bladed and Faded) was torched, effectively on 28 January 2020. And a retaliatory attack was planned and then undertaken by the Mongols for what had happened. Mr Thacker considered the Mongrel Mob was behind the arson attack.
[32] Late at night, members of the Mongols travelled to Haukore Street, a suburban residential address in Maungatapu, where 96 rounds of ammunition were fired into a house. The house was occupied by the adult daughter of the president of the local Mongrel Mob. She, her partner and a number of children were present when this incident occurred. Some of the rounds were fired into the lounge at the address where children were watching TV, and other rounds were fired into the cars outside the address. As I have said to others who were involved in this very serious incident, it was fortunate that nobody was injured or, worse, died.
[33] All of you four faced the same charges as the Crown could not establish who in fact discharged the firearms. The firearms concerned were all prohibited firearms. They included a Bushmaster XM15-E2S, two DPMS Panther rifles A-15, a Ranger AK-47 and a Wyndham Weaponry WW-15. The fact that these firearms are prohibited weapons is an aggravating factor.
[34] Because you were charged as a party, it is irrelevant whether you yourself discharged one of the firearms or not. The jury’s verdict, which must be respected, reflects that you were present and actively participated in what occurred, either as a person who discharged one of the firearms or as a party to it.
Charges 100 - 102
[35] You faced these charges with Mr Thacker and Kane Ronaki. It was alleged that, on 6 May 2020, you three, together with Whana Ronaki, Falcon-Reign Smith and Elijah Wanoa, were unlawfully in possession of two firearms, namely an ERA brand 12 gauge Game King model sawn-off shotgun and a Gun City H20 Magnum long barrelled shotgun. These firearms are the subject of charges 100 and 101. Charge 102, the unlawful possession of explosives, is one that you faced with the same defendants. It concerns five shotgun shells that were loaded in the Magnum long barrelled shotgun I have just referred to. All three of you were convicted by the jury in respect of these charges.
[36] The charges relate to what occurred at 64 Malcolm Avenue, Te Puke on 6 May 2020. That day, the Police were contacted to advise that firearms had been discharged at this address by members of the Mongols. At trial, evidence was given that gang tensions had been escalating in the months before this incident.
[37] At the trial, several Police officers told the jury that they had responded to a call from Police communications. They were directed to arm themselves and head in the direction of Malcolm Avenue. To get there, they needed to travel along Rangiuru Road, which is a rural road. As they headed towards Malcolm Avenue, they observed two vehicles, a Mercedes followed by a Mazda ute, travelling in the opposite direction, towards the Te Puke Highway. The officer did a U-turn and started following these.
The lights and sirens on the Police car were activated and the white Mazda ute, in which Kane Ronaki, Elijah Wanoa and Falcon-Reign Smith were travelling, was stopped. The vehicle was searched and the Police found a sawn-off shotgun wrapped in material in the footwell behind the driver’s seat and a loaded long barrel shotgun was found in the box on the rear tray of the ute. These are the two firearms which are the subject of charges 100 and 101. These young men were all affiliated to the Mongols but were junior members of it.
[38] The Mercedes vehicle was subsequently found abandoned on Te Kahika Road near the Makahae Marae. Kelly Petrowski had purchased the Mercedes vehicle in Napier around two days before, on 4 May 2020. The fingerprint evidence at trial established that Jim Thacker, Kelly Petrowski, Whana Ronaki and you were the occupants of that vehicle. You were all senior patched members of the Mongols.
[39] Taking into account the intercepted communication recorded in Mr Thacker’s garage before the incident11 and the fact that senior members of the Mongols, including you, were present in the Mercedes vehicle, I accept that those in the white ute were acting on the instructions of more senior members of the Mongols and had been directed to travel in that vehicle with the firearms, one of which was loaded.
[40] The jury’s verdict indicates that, even though you were travelling in the Mercedes, you had the ability to control the firearms and ammunition and were therefore in possession of them. Your possession was unlawful because you did not have them for a lawful, proper and sufficient purpose.
Charges 108 and 109
[41] I now need to deal with charges 108 and 109 which you faced with Mr Thacker. He was found not guilty of Charge 108 but guilty of Charge 109. You were found guilty of both. These charges relate to the events that occurred on 24 May 2020, shortly after the Malcolm Avenue incident, at your address which was then 18 Claridge Place, Mount Maunganui. Both are charges of unlawfully possessing firearms; Charge 108 relates to the unlawful possession of a pistol (a Baikal 12 gauge wooden sawn-off
11 Folder 7, tab 203.
shotgun) and charge 109 relates to the unlawful possession of a firearm (a Khan Brand A-TAC pump-action shotgun with a skull design). Both these shotguns were found at 31 Oleander Lane, Mount Maunganui, a property that backed onto your address at 18 Claridge Place.
[42] The background to these charges concerns what happened earlier in the day at a Caltex service station at Bayfair. As I have outlined, the Mongols were having patch protection issues with other gangs in the Bay of Plenty. One of these gangs was the Greasy Dogs. Earlier in the day on 24 May 2020, Mr Thacker stole a Greasy Dogs sweatshirt from a junior member of the Greasy Dogs, who happened to be at the Caltex service station at Bayfair at the same time that you and Mr Thacker were there.
[43] The Greasy Dogs retaliated by travelling to your address at 18 Claridge Place, in convoy and armed. After they arrived, you were seen facing them with a firearm in your possession. You and your family, who were present at 18 Claridge Place, then escaped out of the back of your property, over a fence into a property at Oleander Lane where the occupant allowed you, fortunately, to hide out in his garage. The jury, by their verdict, found that you took with you the shotguns referred to in charges 108 and 109.
[44] Your defence at trial was that the jury could not be certain which firearm you had when you arrived at Oleander Place and so the jury could not be sure which firearm you had in your possession and control because two firearms were found in the garage, but you were only seen with one.
[45] But, in any event, the jury found you guilty of unlawful possessing both firearms and must have accepted that you had the ability to exercise control over both, even if you had only one in your actual physical possession. I agree with the verdicts of the jury on both charges. You were with members of your family, not other members of the Mongols. The firearms referred to were weapons for the use of the Mongols and you were the only member in your family who was a member of the Mongols. Although it is not clear whether you were the sergeant at arms at that particular point, I have no difficulty in accepting that you exercised control over both. And, can I say to you Mr Huritu, what happened at Claridge Place is a direct
consequence of all of this gang protection retaliatory behaviour that was being undertaken by the Mongols and you put your family at risk by continuing to be involved in that.
Charge 2 – participating in an organised criminal group
[46] You were also found guilty of participating in an organised criminal group, between 1 January 2019 and 23 June 2020, that shared the objective of the commission of serious violent offences. You, as well as Mr Thacker, Hone Ronaki and Mr Petrowski have all been found, either by the jury or earlier plea, to have been involved in this organised criminal group with this particular objective.
Approach to sentencing
[47] Having outlined the facts, which I have needed to do for transparency, I now have to deal with my approach to sentencing you.
[48] In sentencing you, I must consider the purposes and principles of the Sentencing Act 2002 (the Act). And while I must impose what would be the least restrictive outcome, I must also take into account the gravity of your offending, including your degree of culpability, which means blameworthiness, and the seriousness of the offending. Any sentence I impose must denounce your conduct, deter both you and others from committing similar offences in the future and hold you accountable for the harm your offending has caused in the community.
[49] Determining the appropriate starting point requires me to set a starting point which will be based on the seriousness of the offending based on the jury’s verdicts. Having set the starting point, I will then move on to consider your personal circumstances and then I will reach the end sentence. And, finally, I will consider whether a minimum term of imprisonment (MPI) is necessary.
Starting point
[50] Your convictions for possessing methamphetamine for supply are the lead charges. Zhang is a case that sets out five “bands” of offending based on the amount of methamphetamine, with band 5 being the most serious. It applies in cases involving
quantities of more than two kilograms. Both lawyers agree that the total quantum of methamphetamine for you is 5.979 kilograms of methamphetamine. That places your methamphetamine offending squarely within band 5 of Zhang.12 Therefore, based on it, the starting point for your offending would be in the vicinity of 10 years to life imprisonment.
[51] But, although quantity is a relevant measure of culpability because it indicates harm or potential harm to the community, and in your case commercial activity, it alone is not enough. Your role in the offending is also very important.13 Offenders may play a lesser, significant or leading roles, which may adjust the starting point up or down to reduced culpability or, put another way, blameworthiness.
[52] The Crown submitted that the role you played in the offending is best reflected as being significant but in the lower range of significant. Your lawyer submitted that your role is less than significant because your offending arises from your membership of the Mongols. He submitted that you were a custodian of the methamphetamine in relation to Charge 43 as opposed to the person who was actively dealing with it and, in relation to Charge 46, it was also submitted you had a minimal role, even though you were present when the methamphetamine was cut, he submitted there was no evidence that you were involved in the subsequent distribution of it. Overall, he submitted you had an operational role in the Mongols drug dealing business. However, he accepted, and again responsibly so, you must have been motivated by a financial or other advantage and had some awareness and understanding of the scale of the Mongols’ operation.
[53] Although I agree you fulfilled an operational function within the Mongols, I also consider you had a management function in your role, at least part of the time, as sergeant of arms. Realistically, you must have expected financial or other advantages from the Mongols’ illegal activities – certainly there is no evidence that you were in paid employment. I also consider you were well aware and understood the scale of the Mongols’ drug dealing business even if you did not personally participate in any of the drug deals either by organising them or directing others to do so. The fact that
12 Zhang v R [2019] 3 NZLR 648.
13 Berkland v R [2022] NZSC 143.
you used your property to store three kilograms of methamphetamine that others in the Mongols were able to access indicates you were a trusted and senior member. I agree however that your role is towards the lower end of significant.
[54] The Crown submitted the overall starting point for your methamphetamine offending is 12 years’ imprisonment, whereas your lawyer submitted it ought to be no more than 10 years.
[55] One of the things I need to do in setting the starting point for methamphetamine offending is to refer to various cases because obviously it would be unfair to people if some kind of offending got one sentence and another of the same type of offending received another. So, I have analysed the cases that both the lawyers have referred to but I am not going to go through them today in my oral remarks. They will be there for you to read in my written sentencing remarks.
Cases relied on
[56] The case of Berkland involved two appeals for sentences imposed in relation to a significant methamphetamine supply operation.14 Mr Berkland was the “right- hand man” to Mr Blance, the mastermind of the operation. Mr Berkland pleaded guilty to seven charges relating to the possession and supply of methamphetamine (as well as ancillary firearm and other drug charges). The High Court, having found the quantum involved 15 kilograms and that he was placed at the upper end of the significant role, adopted a starting point of 16 years and six months’ imprisonment. This was reduced by the Supreme Court to 13 and a half years’ imprisonment after determining Mr Berkland’s role was within the mid-range of significant.
[57] In R v Maciel,15 the offender received a 13 year starting point for methamphetamine offending concerning a quantity of 7.1 kilograms (rounded up from 7.096). He was assessed as being in the middle of the significant category. Relevant to that assessment was his operational function as the “runner” in the syndicate and
14 Berkland v R, above n 13.
15 R v Maciel [2021] NZHC 836.
being trusted to hand large amounts of drugs and money, as well as his financial motivations, and that he had travelled to New Zealand for the purposes of offending.
[58] The defendant in R v Kim was involved in the same offending as in Maciel.16 Mr Kim was the storeman in the operation, stockpiling and repackaging drugs that were then supplied to other syndicate members, including at least 15 kilograms of methamphetamine which was the lead offending. Edwards J in the High Court found that Mr Kim was in the lower end of the significant category having regard to his operational function, that he was primarily motivated by financial reward, and had some awareness of the scale of the operation. A starting point of 14 years’ imprisonment was adopted.
[59] In my view, your offending is less serious than both Mr Berkland’s and Mr Maciel’s. This is because the amount of methamphetamine involved in your offending is less and their roles were assessed as being in the mid to upper range of the significant category. Your culpability is slightly less, because I have found you to be towards the lower end of the significant category. A lower starting point is therefore justified. Likewise, although your role is similar to Mr Kim’s, the quantum of methamphetamine involved in his offending was much more.
[60] In my view, your offending falls somewhere between that of Mr Petrowski and Mr Ross. I adopted a 10 year starting point for Mr Petrowski’s methamphetamine offending and 13 years for Mr Ross. Mr Ross was convicted of charges involving more methamphetamine and had a more significant role, whereas Mr Petrowski had less methamphetamine and a lesser role than you. Mr Petrowski however received an uplift of one years’ imprisonment to reflect this offending.
[61] I have decided to include your conviction for Charge 1, that is the organised criminal group drug dealing charge, as part of the starting point for your methamphetamine offending. I therefore adopt an initial starting point of 12 years’ imprisonment.
16 R v Kim [2022] NZHC 952.
[62] But, I agree with your lawyer, and the Crown has also accepted, that a reduction is appropriate to reflect your previous charge relating to the 21 grams that formed the basis for charge 43. And, I have already talked about that in my earlier sentencing remarks to you.
[63] Given that the Crown and defence do not disagree about the two year reduction for this, I adjust the starting point for your methamphetamine offending to one of 10 years’ imprisonment.
Uplift for firearms and organised criminal group (violence) offending
[64] Then there is an uplift required for the firearms offending and the organised criminal group violence offending which was Charge 2.
[65] The Crown submitted, on a totality basis, that an uplift of two years to two years six months was required to reflect these convictions. Mr Nabney did not disagree, and again responsibly so. Others of your co-defendants have received uplifts ranging between six months to three years. Bearing in mind that the firearms in respect of which you were convicted and the fact that this uplift includes your conviction for Charge 2, I adopt an uplift of two and a half years.
Personal and mitigating matters
[66] I now am going to talk about your personal and mitigating matters. The only mitigation sought on your behalf is one that relates to your background, as outlined in the s 27 report. I have very carefully read that report, and several times, because the report writer interviewed both you and your mother. This report I have read was obtained for your sentencing in relation to the Waikeria Prison riots. And, in that case, Gordon J considered that a 15 per cent discount was appropriate because she was satisfied there was a necessary what we call causal contribution from your background to your current offending.
[67] I am not going to go through all the details in that report. Many are very personal. However, it is important for me to refer to some matters in your background to justify why I consider a deduction is justified in your case.
[68] Mr Huritu, the report makes very sad reading. You are 40 years of age. You whakapapa to Te Whānau ā Apanui on the east coast of the North Island. That is a very respected and well-known iwi. Although you spent your formative years growing up on the marae, unfortunately you have not maintained your links with your culture, likely to your detriment.
[69] Both your parents were affiliated to gangs. Your father was a member of the Mongrel Mob and East Coast Riders. Your mother had partners who were members of the Black Power gang. The primary influences during your childhood, and therefore your formative years, were violence, trauma and the culture of gang life. Each of the family households in which you lived was a place of violence and substance abuse. And I mention these things because they are not your fault.
[70] Your education was also limited, hardly surprising given what you were experiencing at home. And, at the age of 12, you were sent to Boys homes for your offending. In your early teens, you ceased attending school altogether to help your father with his cannabis growing operation. I consider, at that stage or your life, you were very vulnerable and it is hardly surprising you ended up where you did.
[71] Inevitably, given your background, from the age of 11 you became involved with gangs - in your case initially the Crips. As Gordon J noted, gangs have been a central feature of your life since before you were a teenager and I agree that they have been at the root of the majority of your offending. It is well-known that those who come from deprived backgrounds often seek out gangs for fellowship and brotherhood. In your case, because of your disconnection to your culture, which also would have provided you with these things. It is inevitable, in my view, that you ended up gravitating towards gangs. But it has had a significant impact on your offending.
[72] Unsurprisingly, you also developed addiction issues. You began using alcohol and cannabis when you were barely a child aged 11 and you became addicted to methamphetamine at the age of 16.
[73] In Australia, you were also involved in gang life, substance abuse and offending.
[74] It must however be recognised that the stress and the financial hardship that resulted from being deported from Australia back to New Zealand in 2016, meant you continued to use drugs, had gang involvement and offended when you returned to New Zealand. I accept that a return to New Zealand would have been very difficult for you and your whānau.
[75] The Crown submits 12 per cent should be applied to reflect the matters referred to in the s 27 report. No specific reasons are given for this figure, neither is it referenced to the discounts for these factors the Crown accepts should apply to other defendants or why it should be different from Gordon J’s assessment.
[76] Like Gordon J, I adopt a discount of 15 per cent. I am satisfied that there is a causal nexus between this offending and the matters I have referred to in your background and I am satisfied that that amount should be applied in your case.
[77] Applying this discount, this brings your end sentence down to 10 years six months’ imprisonment.
Minimum period of imprisonment (MPI)
[78]I now address whether a minimum period of imprisonment should be imposed.
[79] The Crown seeks the maximum possible MPI of 66 per cent.17 And I there go on to talk about the law about MPIs which I am not going to read out today but it will be in my sentencing remarks, the written ones.
[80] In Zhang, the Court observed that MPIs should not be imposed mechanistically or as a matter of routine.18 Lengthy MPIs are to be reserved for cases featuring significant commercial drug dealing,19 in other words, for the most deserving cases.20
[81] Under s 86(2) of the Sentencing Act, I may impose an MPI if I am satisfied the minimum period of one-third is insufficient for the purposes of accountability,
17 Sentencing Act 2002, s 86(4).
18 Zhang v R, above n 12, at [169] and [174].
19 At [171].
20 Sentencing Act, s 8(c).
denunciation, deterrence and community protection. I recognise that the serious nature of your offending calls for, in particular, deterrence and denunciation. However, I do not think there is anything in the present facts that means a standard one-third will not serve these purposes sufficiently. Your end sentence of 10 years six months’ imprisonment is a significant sentence. So, I have decided not to impose an MPI.
Other matters - totality for other sentence
[82] I now need to talk about the other matters and in particular what we have referred to today or has been referred to today as totality. This relates to the end sentence of seven years 10 months’ imprisonment with no MPI that you received in relation to your role in the riots. The sentence I impose will need to be cumulative, that means on top of, this sentence. However, it is accepted by everyone here that there should be a further deduction for totality.
[83] Your lawyer submitted that an end sentence in the region of six years to six and a half years would be appropriate. His submission was based on the fact that your end sentence overall would amount to a total in excess of 14 years’ imprisonment.
[84] The Crown adopted a different methodology in relation to this. Again, I am not going to go through the submissions because we have just heard them but I will record them in my sentencing remarks.
[85] The Crown submitted that to achieve a global picture of your culpability, an uplift can be applied to the starting point to account for the subsequent arson and rioting offending. The Crown suggested an adjusted starting point, before discounts for mitigating matters are made, of 17 to 17 years and six months’ imprisonment would be appropriate. This comprises 12 years’ imprisonment for methamphetamine offending, two to two years and six months for firearms and organised criminal group offending, and an additional five year uplift for riot offending, with the discount for your District Court sentencing.
[86] But, the Crown submitted, overall, an end sentence of 14 years 11 months’ imprisonment to 15 years and five months would be appropriate. Therefore, Ms Pollett
submitted a cumulative sentence of seven years to seven years six months’ imprisonment should be adopted by me.
[87] If I impose a cumulative sentence on the lead charge arising from your Waikeria Prison riot charges, you would serve a sentence of 18 years four months. As outlined, the Crown submits an end sentence of 14 years 11 months to 15 years five months would be appropriate, which is not too far apart from the approach taken by your lawyer.
[88] Both sets of offending are discrete. An argument can be made that, because of this, any reduction for totality should not be significant. Having said that, I consider a deduction is appropriate. There is little provided to me to assess this in a principled way. Section 85(2) of the Sentencing Act outlines that, where cumulative sentences are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. As well, s 75 of the Parole Act provides that, where cumulative sentences are imposed on an offender who is already serving a prison sentence for other offending, the later and earlier sentences form a notional single sentence for, relevantly here, the non-parole period to apply when determining the parole eligibility date and the release date that is to apply when determining the statutory release date.21
[89] I am persuaded that a reduction for totality is required. My sense is that an end sentence of 15 years’ imprisonment is appropriate to reflect overall culpability. And accordingly, the end sentence I impose on your charges is one of seven years two months’ imprisonment and that will be cumulative on the end sentence of seven years 10 months’ imprisonment that Gordon J imposed on you.22
Result
[90]Mr Huritu, please stand.
21 Section 75(1)(b) and (c).
22The schedule attached to these sentencing remarks outlines the sentences imposed in respect of each charge.
[91] I impose a sentence of seven years two months’ imprisonment cumulative on the end sentence of seven years 10 months’ imprisonment imposed on you on 10 July 2023. I am not imposing an MPI.
[92]Thank you. Stand down please.
Harland J
Leon Huritu
Schedule of Charges and Sentences
| Charge No. | Charge | Quantum / Description | Sentence23 |
| 1 | Participated in an organised criminal group | Distributing and supplying class A, B and C controlled drugs | 7 years |
| 2 | Participated in an organised criminal group | Commission of serious violent offences | 3 years |
| 43 | Possession of methamphetamine for supply | 3 kg, less 21 gms | 7 years 2 months |
| 46 | Possession of methamphetamine for supply | 3 kg | 7 years 2 months |
| 54 | Discharged a firearm with reckless disregard | At Haukore St on 28 January 2020 | 3 years |
| 55 | Unlawful possession of prohibited firearms | Incident at Haukore St on 28 January 2020 - Bushmaster XM15-E2S, 2 x DPMS Panther rifles A-15, Ranger AK-47, Wyndham Weaponry WW-15 | 3 years |
| 100 | Unlawful possession of a firearm | Incident at 64 Malcolm Ave on 6 May 2020 - Gun City H20 Magnum long barrelled shotgun | 1 year |
| 101 | Unlawful possession of a firearm | Gun City 870, Magnum long-barrelled shotgun (inside L4WL3S) | 1 year |
| 102 | Unlawful possession of explosives | Incident at 64 Malcolm Ave - 5 x shotgun shells loaded in Magnum long barrel shotguns | 1 year |
| 108 | Unlawful possession of a pistol | Incident at 18 Claridge Place on 24 May 2020 - Baikal 12 gauge wooden sawn- off shotgun | 1 year |
| 109 | Unlawful possession of a firearm | Incident at 18 Claridge Place on 24 May 2020 - Khan Brand A-TAC pump-action shotgun with a skull design | 1 year |
23 Mr Huritu’s end sentence taking into account totality is seven years and two months’ imprisonment, cumulative on the end sentence of seven years and 10 months’ imposed on 10 July 2023 by Gordon J.
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