R v Raroa [2012] NZHC 1280 (8 June 2012)

Last Updated: 17 July 2012

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-082-0360

CRI-2011-041-1871 [2012] NZHC 1280

THE QUEEN

v

_{RIKI JOHN RAROA}

Hearing: 8 June 2012

Counsel: C R Walker and F Cleary for Crown

A Malik for Prisoner

Judgment: 8 June 2012

_{SENTENCING REMARKS OF LANG J}

R V RIKI JOHN RAROA HC GIS CRI-2011-082-0360 [8 June 2012]

[1] Mr Riki Raroa, you appear for sentence today having been found guilty by a jury on charges of causing grievous bodily harm with intent to do so and participating in an organised criminal group. The maximum penalties for those offences are sentences of 14 and ten years imprisonment respectively.

Factual background

[2] In order to understand the issues that your sentencing raises, it is necessary to set out the factual background in some detail.

[3] You have been a long term member of the Mongrel Mob. You live in Nuhaka, but at your trial it became plain that you also have a considerable amount to do with the activities of the Mongrel Mob in Wairoa.

[4] In August 2010 a major event occurred at the Mongrel Mob pad in Wairoa. It involved an internal dispute between members of the Wairoa Mongrel Mob. Ultimately, the two factions decided to sort out their differences by way of a major confrontation involving firearms. In that confrontation, no fewer than 26 shots were fired. This led to the police arresting a very large number of Mongrel Mob members and it effectively meant that very few Mongrel Mob members were left in Wairoa. It seems that this resulted in you assuming, or accepting, responsibility to undertake a caretaker role to preserve the assets of the Wairoa Mongrel Mob. In particular, you seem to have assumed responsibility for ensuring that the Mongrel Mob headquarters, or pad, in Wairoa was manned and thereby protected from interference by others.

[5] This was no doubt important to you because the Mongrel Mob in Wairoa has been involved in a longstanding feud with the Black Power gang. This has resulted in numerous incidents of violence over the years. The incidents that gave rise to the present charges form just one chapter in the hostilities between the Mongrel Mob and the Black Power gangs.

[6] An incident occurred on the weekend of 23 - 24 October 2010. It seems that a Mongrel Mob member went to a function hosted by Black Power. There he stole a

motor vehicle and drove it back to the Mongrel Mob headquarters. Even if it was not calculated to do so, this act would undoubtedly have been seen by Black Power as an act of provocation by the Mongrel Mob.

[7] The Mongrel Mob were well aware of this, because from the evening of Sunday night onwards, you placed them on “red alert”. This meant that members of the gang, including your son Cleveland, were required to be at the pad each night to ensure that it was protected from invasion by Black Power.

[8] At your trial the Crown relied on a series of text messages between Sunday

24 October and Saturday 30 October in support of its case that you arranged each night for the Mongrel Mob pad to be not only manned but also stocked with a firearm or firearms to ward off any attackers.

[9] This was the essence of the charge of participating in an organised criminal group. The Crown alleged that you, and at least two of your associates, participated in a group that had as its object the causing of really serious bodily harm to the members of the Black Power gang. An integral part of the Crown’s allegation was that firearms were to be stored at the address and used if necessary.

[10] An issue arises regarding the extent of your participation in the organised criminal group. This is because the jury found just two of the accused, namely you and your son Cleveland, guilty on the charge of participating in an organised criminal group. It did so notwithstanding the fact that, in order for that particular crime to be committed, it is necessary for a group of three or more persons to participate together.

[11] The Crown has set out an argument as to why it considers that you and your son could be guilty of the charge notwithstanding the jury’s verdicts. It is not necessary for me to comment further regarding that issue because, ultimately, I have no doubt it will be a matter for the Court of Appeal if not in your case, then in that of your son Cleveland. What is important for present purposes, however, is to determine whether I accept, as your counsel urges me to do, that your participation

extended only over the night of 25 and 26 October, or whether it extended further than that.

[12] The relevance of this is that an incident occurred in the early hours of

26 October 2010 that led to the charge of causing grievous bodily harm with the intent to do so. At somewhere around 1.30 or 2 am on the morning of 26 October, a car containing three associates of the Black Power arrived and parked outside the Mongrel Mob pad in Wairoa. One of the occupants of the car was drunk and was obviously intent on abusing the occupants of the Mongrel Mob pad. This person got out of the car, went over to the gateway of the pad and began yelling drunken abuse at those inside. Another member of the vehicle, Mr Judas Rarere, also got out of the vehicle but remained in the vicinity of it.

[13] During the trial Judas Rarere and his brother Ihaka, were declared hostile witnesses, as is often the case in this type of offending. The victims had no interest whatsoever in participating in the criminal justice system. Nevertheless, after they were declared hostile, they volunteered in cross-examination that they saw the person who had got out of their vehicle carrying a gun. I have no doubt that their evidence was fabricated in this respect. In their original statements they stated that nobody in their car had a gun. There is nothing in the evidence to suggest that the occupants of the car that stopped at the address were carrying a firearm. I consider instead that their act in stopping outside the Mongrel Mob pad was one of drunken stupidity born on the spur of the moment.

[14] Nevertheless, the abuse that was being hurled at the occupants of the pad evoked a response in the form of a single shotgun blast. I am satisfied that this was fired from somewhere in the vicinity of the fence at the front of the premises where there is a platform that would enable those inside the premises to look over the top of the fence.

[15] The shotgun blast caught Mr Judas Rarere in the abdomen. He suffered no fewer than 40 pellet wounds and was required to go to hospital immediately. He underwent surgery and ultimately lost his right kidney and suffered damage to his liver and small bowel.

[16] Immediately after this occurred, Cleveland sent what I have no doubt was a coded message to you to indicate that an emergency had arisen at the pad. You then took control of the situation and immediately gave a message designed to instruct Cleveland to remove the firearm from the premises.

[17] Thereafter, over succeeding days, I am satisfied that a firearm was also at the premises. I draw this inference from the coded messages that were used. You and Cleveland and others used terms such as “rakaus”, “things” and “mutton” to describe what I am satisfied were firearms. I draw this conclusion because, taken in context, I do not consider that they could realistically have referred to anything else. In particular, I have no doubt that the phrase “mutton” was not referring to meat as was contended at the trial.

[18] Not surprisingly given what had occurred, members of the Mongrel Mob remained on alert over succeeding days. To your credit, however, you immediately got in touch with your counterpart in the Black Power gang. It is obvious that you had the ability to contact him, and the tone of your communications with him makes it clear that you had a relatively good working relationship with him. Your communications with this person were obviously designed to cool things down so that the violence did not get out of hand.

[19] Your efforts and those of your counterpart appear to have worked, because on Thursday 28th October you stood down members of the Mongrel Mob from red alert. That, it seems, was a little premature because on the evening of Friday 29 October, an incident occurred at the Mobil Service Station in Wairoa. In this incident a Mongrel Mob member was shot and seriously wounded by a member of the Black Power gang. There can be no doubt that this shooting was in direct retaliation for the

incident that had occurred outside the Mongrel Mob headquarters in the early hours of 26 October.

[20] Again, you immediately swung into action and mobilised members of the Mongrel Mob to go to the pad and ensure that it was manned. Coded words on this occasion also satisfy me that you directed that it be armed in case of further attack by the Black Power.

[21] Contemporaneously with this, you also got back into contact with your counterpart at Black Power and over succeeding days the two of you were able to calm matters down to the extent that the crisis was over within a few days.

[22] Nevertheless, this was a sad and sorry chapter in the history of Wairoa. It demonstrated a level of lawlessness unknown in most parts of New Zealand. It also demonstrated a distinct willingness to resort to firearms as a first means of combating any aggression directed towards the Mongrel Mob.

Sentencing Act 2002

[23] For this reason I am satisfied that the issues of deterrence and denunciation are firmly to the forefront when considering the sentence that needs to be imposed on you.

[24] The Crown has provided me with the sentencing remarks of McKenzie J, who sentenced members of the Mongrel Mob who were involved in the incident that occurred at the pad in August 2010. He made it clear that it is not acceptable for people to resort to firearms to resolve their differences. He said:[1]

The main purposes of sentencing which are relevant are those of denunciation and deterrence. These events deserve the strongest possible denunciation. The resort of the groups to firearms is deserving of the highest level of denunciation, and the starting point must reflect that, and the need to deter others from similar conduct. It is not acceptable, in a civilised society, for people to resort to a gunfight to settle their differences. That is what those involved on both sides of this dispute did. This resulted in two men being wounded by gunshots, one seriously. The fact that none of those involved has been convicted on the wounding counts does not lessen the seriousness of the conduct in participating in a criminal group.

[25] The real issue in your case, as your counsel acknowledges, is to determine your culpability and then to impose a sentence that reflects both your culpability and the seriousness of the offending. In doing so, however, I need to have regard to other cases so that I impose a sentence that is broadly consistent with those imposed in

_{other like cases. I say “broadly consistent” because in this context the facts of every}

case are different and the nuances produced by the differences between the case can be of real importance.

Approach on sentencing

[26] The first issue I need to decide is the starting point to be adopted on the charge of causing grievous bodily harm, which I take to be the lead, or most serious, charge. I then need to consider the starting point to be applied in relation to the charge of participating in an organised criminal group. Next, I must have regard to principles of totality so that I do not select an end starting point that is too great, having regard to your overall culpability. I then need to consider whether there are aggravating and mitigating factors personal to you that operate to reduce the end starting point that I select.

Starting point

[27] The starting point to be applied in relation to the charge of causing grievous bodily harm with intent to do is governed by the decision of the Court of Appeal in R v Taueki.[2] In that case the Court of Appeal identified different bands relating to categories of seriousness for the charge of causing grievous bodily harm. The Court of Appeal also identified individual factors that go to aggravate the seriousness of offending of this type. Included in these is premedication, the use of extreme force,

the use of a weapon, whether or not the offending occurs within the context of gang warfare and the extent of injury caused to the victim.

[28] The Court said that in any case where three or more of those bands are present, such offending will fall within Band 3 and will attract a starting point of between nine and 14 years imprisonment.

[29] In this case several of those factors are engaged. First, there was the use of a lethal weapon in the form of a shotgun. That must, on any view of the circumstances be regarded as use of extreme force, particularly as it was discharged in this case

_{from very close range.}

[30] Secondly, it involved some degree of premeditation because you had arranged for a firearm to be kept at the pad for just such an eventuality as occurred in the early hours of 26 October. I accept, however, that so far as the actual incident is concerned, you had no knowledge that it was likely to occur.

[31] Thirdly, the discharge of a firearm caused serious injury to the victim notwithstanding his obvious reluctance now to discuss it in the forum of a courtroom.

[32] Finally, the offending occurred within the context of gang warfare that had been going on for some time, and in respect of which serious violence had obviously been used in the past.

[33] All of those factors persuade me that the offending does fall within Band 3 and, accordingly, the starting point must be between nine and 14 years imprisonment.

[34] Had you been the person responsible for pulling the trigger, I have no doubt that a starting point of 11 or 12 years imprisonment would have been appropriate. You were not, however, that person. In fact you were some considerable distance away at the time that the trigger was pulled. Nevertheless, you were the person who had arranged for the firearm to be stored at the pad that night. The jury’s verdict also makes it clear that you knew that the shooting of another person and, in particular, a member of the Black Power gang, was something that could well happen as a result of a decision to store the firearm there. Indeed, in my view, given the history between Black Power and the Mongrel Mob in Wairoa, it is virtually inevitable that any approach by Black Power would have been met with the kind of violence that was demonstrated on this occasion. So your culpability stems from the fact that you arranged for a firearm to be stored at the pad when you knew that a Black Power member could well be shot as a result of that act.

[35] Your counsel has referred me to two cases in support of his submission that the starting point should be between the range of seven and eight years imprisonment.

[36] In R v Challis[3] members of a gang travelled in a vehicle to an address they knew to be occupied by a member of another gang. When the vehicle went past the address, a shot was fired from the vehicle. It entered the house and killed a baby who was sleeping on a sofa in the lounge. The offenders in that case were passengers in the vehicle and were not responsible for pulling the trigger. Nevertheless, they knew that a firearm was in the vehicle and that it was likely to be used during their journey. They had pleaded guilty to a charge of manslaughter. In that case, the sentencing Judge adopted a starting point of ten years imprisonment and this was later upheld as appropriate by the Court of Appeal.

[37] In R v Waa[4] the offender was charged with causing grievous bodily harm with intent to do so. The offending in that case also came within the context of gang warfare. A member of one gang had seen members of another gang travelling in the area on motorbikes. He sent a text message to associates saying that they should “get them”. This caused the associates to chase the rival gang members and to discharge a firearm into the back of one of those persons whilst he was riding his motorcycle. Not surprisingly, this caused him serious bodily harm. In that case, too, the sentencing Judge adopted a starting point of ten years imprisonment.

[38] I consider that your offending is slightly less serious than the offending in these two cases, mainly because of the fact that you did not send your associates out to shoot other people. Rather, you caused the Mongrel Mob pad to be armed in circumstances where the firearm would be used should any gang member arrive there. I therefore consider that your offending is slightly less serious because you were not actively looking for trouble. Rather, you were endeavouring in a seriously misguided way to ensure that the occupants of the pad were properly protected.

[39] For that reason I propose to adopt a slightly lesser starting point, and select a starting point of nine and a half years imprisonment on the charge of causing

_{grievous bodily harm.}

[40] I now need to consider the appropriate starting point in relation to the charge of participating in an organised criminal group. The Crown has referred me to a number of authorities in relation to people who have been charged with participating in an organised criminal group. Many of these are not directly relevant, because the facts are so very different.

[41] It is clear, however, that starting points for principal offenders will generally be around five to six years imprisonment. By principal offenders, I mean those who can be regarded as the organisers of the criminal group in question. There can really be no doubt, Mr Raroa, that you were the ringleader of this group. The text messages make it clear that you issued the orders and that others, particularly your son, obeyed them.

[42] It is impossible to select a starting point on this charge without taking into account the consequences of your actions. The gravity of the offending arises principally out of the fact that you ensured that a firearm was at the Mongrel Mob pad for a lengthy period. This always carried with it the risk that it would be used, and used in such a way that somebody would be seriously injured or killed. That risk was realised on the night of 25 - 26 October 2010.

[43] Having regard to those factors, I consider that the Crown is correct in identifying a starting point of five years imprisonment on the charge of participating in an organised criminal group.

Totality

[44] The reality, however, is that you will not receive a sentence of five years imprisonment on that charge. This is because I need to stand back and view your offending overall in order to select an appropriate sentence. When I do that, I consider that an end sentence on both charges of 11 years imprisonment is appropriate. I therefore propose to add an uplift of 18 months imprisonment to reflect the charge of participating in an unlawful criminal group.

Aggravating factors

[45] I now turn to aggravating factors personal to you.

[46] You have a number of previous convictions but, surprisingly, very little of relevance to today’s sentencing. The only charge that could be regarded as even marginally relevant is a conviction in 1989 for unlawful assembly to disturb the peace. That conviction is so inconsequential that I propose to put it to one side and do not apply any uplift to reflect previous convictions.

Mitigating factors

[47] I now need to have regard to mitigating factors personal to you.

[48] You appear for sentence at the age of 46 years. You are firmly steeped in the Mongrel Mob culture. You have been a member for many, many years and obviously are a very senior member of the Mongrel Mob.

[49] The probation report reveals that you regard violence between Black Power and the Mongrel Mob as a fact of life, and something that you appear to accept as inevitable. You are, of course, entitled to your views, Mr Raroa, and I have no doubt that nothing I say or do today will cause you to change your allegiance from the organisation to which you have been so loyal. You need to know, however, that the activities of that organisation bring with them consequences and, if you continue to be involved with it as heavily as you have been, then inevitably the consequence will be that you will end up again in the situation you are in today.

[50] Having said that, it is clear from the material that I have received that you do have redeeming features. You genuinely care for the people in your community and in particular, for young persons. I am satisfied that you have acted in the past to guide people towards sporting and cultural activities that are of a far greater value to them and the community than being involved in gang-related activities.

[51] I am prepared to give you some credit for that, and propose to reduce your sentence by six months to reflect that fact.

Minimum term

[52] The Crown has also asked me to make an order that you serve a minimum term of imprisonment before being eligible for parole. I have the power to do that under s 86 of the Sentencing Act 2002 when I am satisfied that the normal parole provisions would not adequately meet principles of deterrence, denunciation, accountability and the need to protect the public.

[53] In many ways your offending engages all of those principles, because the type of activity that occurred in October 2010 requires both denunciation and a deterrent sentence. It also requires those responsible for it to be held fully accountable for their actions. The escalation of gang warfare involving firearms also places the community at risk. Innocent passersby can easily be injured, perhaps mortally, by people discharging firearms and, as we have seen on this occasion, one violent incident inevitably leads to another.

[54] Two factors have ultimately persuaded me that a minimum term of imprisonment is not required in your case. First, I am satisfied that you and your associates did not go out looking for trouble as did the offenders in Challis and Waa. Had you instructed your associates to go out round the streets of Wairoa armed with a shotgun in order to cause harm to members of the Black Power, then a minimum term of imprisonment would, without doubt, have been imposed. I am satisfied, however, that your activities were designed to ensure that the Mongrel Mob pad was protected and that you did not go out aggressively looking for trouble.

[55] Having said that, as the jury’s verdicts show, you were clearly determined that Black Power members who arrived at the pad would be met with the use of firearms.

[56] Secondly, I accept your counsel’s submission that you played an active part in defusing the situation after it arose. To some extent, the weight to be given to that

factor is diminished by the fact that you were simultaneously ensuring that the pad was armed. Nevertheless, it is clear that you had a sense of responsibility and that, as soon as violent events occurred, you immediately took steps to ensure that the violence did not escalate further.

[57] Those factors persuade me that a minimum term of imprisonment is not required to meet the objectives referred to in s 86 of the Sentencing Act 2002.

Sentence

[58] On the sentence of causing grievous bodily harm with intent to do so, you are sentenced to ten and a half years imprisonment. On the charge of participating in an organised criminal group, you are sentenced to five years imprisonment. Those sentences will be served concurrently. There is no order that you serve a minimum term of imprisonment.

_{[59] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Gisborne

Counsel: A Malik

---

[1] R v Waihape & Monika, [2012[ NZHC 198; R v Tamati & Others [2012] NZHC 221; R v Stone & Others [2012] NZHC 227 at [8] in each decision.

[2] R v Taueki [2005] 3 NZLR 372.
[3] _{R v Challis [2008] NZCA 470.}
[4] R v Waa HC Napier CRI-2007-020-1518, 7 May 2008.