White v The King

[2025] NZHC 1296

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-000079

CRI-2025-409-000080 [2025] NZHC 1296

BETWEEN

JESSE WHITE

Appellant

AND

THE KING

Respondent

Hearing:	22 May 2025 (via AVL)
Counsel	E Yu (appearing on behalf of J D Lucas) for Appellant K N Stitely for Respondent
Judgment:	26 May 2025

JUDGMENT OF LA HOOD J

(Appeal against sentence)

[1]    Mr White was sentenced to four years and 10 months’ imprisonment for serious drug dealing offences and for involvement in a violent confrontation between rival gangs at a holiday park.1 He pleaded guilty to assault with a weapon (as a party),2 rioting,3 possession of cocaine for supply,4 offering to supply cocaine,5 supplying cocaine,6 offering to supply MDMA7, suppling MDMA8 and failing to provide a PIN number for his phone (x 2).9

1      R v White [2025] NZDC 4922.

2      Crimes Act 1961, ss 202C(1)(a) and 66(1)(b); maximum penalty five years’ imprisonment.

3      Section 87; maximum penalty two years’ imprisonment.

4      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); maximum penalty life imprisonment.

5      Section 6(1)(c) and (2)(a); maximum penalty life imprisonment.

6      Section 6(1)(c) and (2)(a); maximum penalty life imprisonment.

7      Section 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.

8      Section 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.

9      Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.

WHITE v R [2025] NZHC 1296 [26 May 2025]

[2]    He appeals his sentence on the grounds that the starting point for the rioting and assault with a weapon charges (the violence offending) was too high, resulting in a manifestly excessive sentence.

The offending

[3]    The violence offending relates to an incident on 18 February 2024 at the Tasman Holiday Park in Christchurch. In the late afternoon, three Mongols gang members, including Mr White (a prospecting member of the gang), are seen on CCTV entering the Tasman Holiday park, looking around and leaving. Mr White again enters the holiday park with a group of Mongols members at around 5.05 pm. They look around the area and leave again.

[4]    At about 5.20 pm, a group of Bandidos Motorcycle Club members (Bandidos members) appeared to be leaving the park, with two members on motorcycles and two in a car. A member on foot attempts to enter a code to raise a barrier arm to allow the group to exit but stops when he sees a group of Mongols members approaching, including Mr White. The group of Mongols members lean on the barrier arm and stare at the group of Bandidos members, before two of Mr White’s associates force the barrier arm partially up and rush towards the Bandidos members, carrying a short metal-like silver weapon and a wrench respectively. They were followed by Mr White, carrying a short curved re-bar pole, and another masked associate, carrying a baseball bat wrapped in barbed wire.

[5]    As they approached the Bandidos members, one of the Bandidos, who was sitting on his motorcycle, flees through the barrier arm. As he approaches the Mongols members, the masked associate swings and hits the rider with the baseball bat, and barbed wire can be seen stuck to the rider as he pulls away through the barrier arm, breaking it. The rider almost loses control and drives at speed onto the adjacent street.

[6]    A second Bandidos rider gets off his bike and extends a collapsible baton. He is chased by three Mongols members as he flees back into the Holiday Park on foot. Mr White’s associate jumps on the abandoned motorcycle and drives it out of the park.

[7]    Three Mongols members approach the Bandidos members’ vehicle, shouting at them. They strike at the passenger side of the vehicle with a bat, wrench and tyre iron respectively as it drives forward, smashing the rear windscreen as it flees through the barrier arm and onto the street at speed, narrowly avoiding a collision with a passenger bus as it passes the entrance. After the Bandidos members flee the park, the Mongols members leave.

[8]    The balance of the charges arose while Mr White was on bail for the violence offending.

Sentencing decision

[9]    The Judge set an overall starting point for the drug offending of five years’ imprisonment, uplifted by nine months to reflect that this offending occurred while Mr White was on bail for the violence offending.10

[10]   Turning to the violence offending, the Judge found that the offending was clearly premeditated, there were multiple offenders, the offending took place in a gang context, and it occurred in a public place. The Judge considered all the offenders were equally culpable. He adopted a starting point for this offending of two and a half years’ imprisonment.11

[11]   The Judge reduced the global starting point for totality from eight years and three months’ imprisonment to seven years’ imprisonment.12 He then imposed reductions of 10 per cent for Mr White’s drug addiction and 20 per cent for Mr White’s guilty plea. The Judge declined to give reductions for Mr White’s remorse and unborn child.13 This resulted in an end sentence of four years and 10 months’ imprisonment.14

10     R v White, above n 1, at [34]–[35].

11 At [36].

12 At [39].

13     At [40]–[43].

14     At [44]–[45].

Approach on appeal

[12]   Mr White must establish that there was an error in the sentence reached and that a different sentence should have been imposed.15 Sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer”.16 The court will not generally intervene unless a sentence is manifestly excessive,17 and outside the range available to the sentencing judge.18 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.19

[13]   As I have previously said, the “well-engrained”20 error principle recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range.21 This reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.22

Parties’ positions

[14]   Mr White says the starting point for the violence offending was too high. He notes that there were no injuries inflicted, and only minor property damage. In oral submissions, counsel for Mr White, Mr Yu, initially submitted that the Judge should have adopted a lower starting point for Mr White’s offending because he effectively only acted as a lookout. However, as the Crown pointed out, Mr White was directly involved in the confrontation carrying a weapon (a curved re-bar pole). In fairness to Mr Yu, he was acting on instructions from Mr Lucas, and did not press the point when he realised the correct position.

[15]   Mr White contends the riot charge was the real mischief in this case, and that the presence of weapons and the brief use of one of the weapons should be considered

15     Criminal Procedure Act 2011, s 250(2).

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] and [35].

17 At [35].

18 At [36].

19     At [30]–[36].

20     Tutakangahau v R, above n 16, at [34]–[35].

21     Johnson v R [2023] NZHC 3748 at [6]; and M v R [2024] NZHC 3632 at [9].

22     Johnson v R, above n 21, at [6]; and M v R, above n 21, at [9].

an aggravating factor of the rioting charge. An overall starting point of no more than

15 months’ imprisonment was appropriate for the violence charges, Mr White contends, which would have resulted in an overall starting point of six years’ imprisonment (following a totality reduction), and an end sentence of four years and two months’ imprisonment.

[16]   The Crown submits the starting point of two and a half years was open to the sentencing Judge. The Crown contends that this offending is serious as it occurred in a public place and that several dangerous weapons were brought to the scene. The Crown says the generous reduction for totality, and the Judge incorrectly applying the uplift for offending on bail at the first stage of sentencing (as an aggravating feature of the offending rather than the offender), demonstrate that the end sentence was not manifestly excessive.

Assessment

[17]   Mr White’s submission that the assault with a weapon offending should be considered an aggravating feature of the rioting offending (rather than the reverse) is of little moment. What is required is an assessment of whether the overall starting point for the violence offending appropriately reflects the overall gravity of that offending. The Judge was clearly correct to adopt a global starting point for the violence charges given they arose out of the same incident.23 The Judge adopted the same global starting point of two and a half years’ imprisonment for the co-offender, as he viewed all the offenders as equally culpable.24 Having viewed the CCTV footage myself, I consider there was no error in the Judge treating all the offenders as equally culpable for this premeditated gang attack.

[18]   Whether the assault with a weapon or the rioting is considered the most serious aspect of the offending is irrelevant provided the overall starting point reflected the combined gravity of both offences. There was no error in the Judge’s approach on this ground.

23     R v White, above n 1, at [36].

24 At [36].

[19]   Next, Mr White relies on three decisions in support of his submission that a starting point of 12 to 15 months would have been appropriate. The first is this Court’s decision in Stackhouse v Police.25 There, the six appellants, most of them carrying sticks, chased two men down the street. When they did not catch the men, they attacked the vehicle from which they had fled. The car sustained broken windows, torn trims and all four of its tyres were slashed. On appeal, Tipping J decreased the sentence for the two most culpable appellants from the maximum penalty of two years’ imprisonment to 18 months, as the District Court sentencing remarks indicated that the District Court Judge did not consider the case fell into the category of the most serious offending of its type.

[20]   I agree with the Crown’s submission that the present offending is more serious. In that case, there was no assault with a weapon charge involving the infliction of actual violence with a dangerous weapon, nor was there the same organised gang element.

[21]   The second decision Mr White relies on is R v Moeke.26 The defendant there was charged with rioting for being one of around 20 gang members who laid in wait and then threw rocks and bottles at a funeral procession for a member of a rival gang. The rival gang members retaliated by firing shotgun blasts and attempting to run the gang members over. The Judge took a starting point of 18 months’ imprisonment, noting that the defendant must have known that his group’s actions would provoke further violence.

[22]   I do not accept Mr White’s submission that the offending in that case was more serious than the present offending because a gun was fired. Although the defendant knew there would be retaliatory violence, he was not responsible for the discharge of the shotgun. I accept the Crown submission that the present offending is more serious. Again, there was no assault with a weapon charge in that case. The dangerous nature of the weapons Mr White and his co-offenders used, and the fact they could only be used at close range, meant there was a greater degree of foreseeable violence and harm. There was also a greater level of actual harm to the Bandidos member and the vehicle.

25     Stackhouse v Police HC Christchurch AP119/96, 20 June 1996.

26     R v Moeke [2018] NZHC 1426.

[23]   Finally, Mr White relies on the Court of Appeal’s decision in Hurinui v R.27 There, the appellant was charged with assault with a weapon for hitting the victim over the head with a baseball bat during a large group fight. The injury required 15 stiches and the victim experienced discomfort and soreness for several weeks. The Court upheld the starting point of 18 months on appeal.

[24]   I do not accept the submission that the offending in Hurinui was much more serious. I agree with the Crown that the present offending is quite different. While the blow with the weapon caused greater injury there, the weapons in the present case were more dangerous (particularly the bat wrapped in barbed wire) and the offending was more pre-meditated, involving an orchestrated inter-gang attack.28 Moreover, as reflected in the rioting charge, the attack was in a public place during the day in circumstances that put the public at risk, as demonstrated by the near-collision with a bus as the car fled the scene.

[25]   It follows that, given the aggravating features, and the authorities to which I have been referred, I do not accept that a global starting point of two and half years’ imprisonment was outside the available range.

[26]   I agree with the Crown that there are other aspects of the sentence that reinforce that the end sentence was not manifestly excessive. First, Mr White obtained the benefit of a substantial totality reduction from the starting point of eight years and three months’ imprisonment to seven years’ imprisonment (15 per cent).

[27]   Second, the Judge applied the nine-month uplift for offending while on bail when setting the starting point. Offending while on bail is an aggravating factor personal to the offender.29 This adjustment should not have been made at the first stage of the process (when setting the starting point), as the Court of Appeal in Moses held that uplifts and reductions for personal factors are to be applied at the second stage of the sentencing process (after calculating the starting point).30 Incorporating

27 Hurinui v R [2014] NZCA 290.

28 Hurinui had a weak gang element – the fight there was initiated because one of the victim’s associates was wearing a red cap, which apparently suggested that he was a member of a rival gang, although this was in fact untrue: see at [20(d)].

29 Huata v R [2024] NZCA 521 at [37].

30 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

this  uplift  into  the  starting  point  likely  resulted  in  a  lower  end  sentence.31    The difference between the sentence urged upon me (four years and two months’ imprisonment) with the sentence imposed (four years and 10 months’ imprisonment) does not suggest an end sentence that is clearly outside the available range when considered against these other factors.

[28]    This case demonstrates that sentencing is not a science. There is no guideline judgment or directly analogous case. Given the aggravating features of the offending, a global staring point of two and half years’ imprisonment against a notional global maximum penalty of seven years’ imprisonment (five years on the assault with a weapon charge and two years on the rioting charge) appears unremarkable. When cross-checked against the cases to which I have been referred, it might be considered stern, but the Judge was entitled to take an approach that emphasised deterrence, denunciation and accountability for this serious inter-gang attack that put the public at risk.

[29]I therefore dismiss the appeal.

La Hood J

Solicitors:
Crown Solicitor, Christchurch for Respondent

31 This is because the 30 per cent reduction for personal mitigating factors has been calculated as a proportion of the uplifted starting point. Applying the nine-month uplift at the second stage means the 30 per cent reduction is applied to a lower starting point, leading to smaller reductions for personal mitigating factors and therefore a longer end sentence.