R v Taipeti [2018] NZHC 1482 (21 June 2018)

Last Updated: 4 July 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-087-131 [2018] NZHC 1482

THE QUEEN

v

KARANEIHANA TAIPETI

Hearing:	21 June 2018 (Heard at TAURANGA)
Appearances:	R Jenson and O M Salt for Crown S I Mills (on behalf of W Lawson) for Defendant
Judgment:	21 June 2018

SENTENCING REMARKS OF LANG J

R v TAIPETI [2018] NZHC 1482 [21 June 2018]

[1] Mr Taipeti, you appear for sentence today having pleaded guilty following a sentence indication¹ to charges of participating in an organised criminal group,² discharging a firearm against a law enforcement officer³ and discharging a firearm with intent to injure.⁴ The maximum sentences on those charges is ten years, 14 years and seven years imprisonment respectively.

[2] You also faced charges of rioting and being in unlawful possession of a firearm. The Crown has offered no evidence on those charges, and I now discharge you on them under s 147 of the Criminal Procedure Act 2011.

[3] When you pleaded guilty, convictions were not entered and I now enter those convictions. Because of your convictions on the two firearms charges, it is necessary for me to give what is called a “three strikes” warning. This is as a result of the fact that you now fall within the legislative regime known as the “three strikes” law.

[4] Given your convictions on the firearms charges, I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences. This lists serious violence offences that come within the regime. The first consequence is that if you are convicted of any serious violent offence other than murder that is committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. The second consequence is that if you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That sentence will be served without parole unless the sentencing Judge considers it would be manifestly unjust for that to occur. In that event the Judge must sentence you to a minimum term of imprisonment.

[5] When I gave you a sentence indication, I set out the facts in full. You attended that hearing via AVL link, so you heard what I had to say. For that reason I do not propose to go through the facts relating to your offending again. My sentence indication will be annexed to, and will form part of, my sentencing remarks. Anybody

¹ R v Taipeti [2018] NZHC 961.

² Crimes Act 1961, s 98A.

³ Crimes Act 1961, s 198A.

⁴ Crimes Act 1961, s 198.

who wishes to read and understand the factual basis for your offending will therefore need to read the sentence indication.

[6] In the sentence indication, I selected a starting point of six years imprisonment on what I considered to be the lead charge. That is the charge of participating in an organised criminal group. I set out my reasoning for doing so in my sentence indication, and I do not propose to traverse those issues again.

[7] I then added an uplift of one year to reflect the two firearms charges. This produced an end sentence of seven years imprisonment before taking into account aggravating and mitigating factors personal to you.

[8] I acknowledged that you have some previous convictions, but none of those are relevant for present purposes. For that reason I did not add any uplift to reflect aggravating factors.

[9] The only mitigating factor I took into account in the sentence indication was the entry of guilty pleas if those were to be entered shortly after the indication. I provided you what some might regard as a generous discount of 25 per cent, or 21 months, to reflect the guilty pleas. I did so because I considered it important that you, as one of the most influential members of this group, were prepared to accept responsibility for what you had done even though the pleas came a short time before trial.

[10] I indicated that it might be possible to provide you with a further modest reduction to reflect other mitigating factors that would be apparent at sentencing. I have now received a significant body of material from your counsel. I have also received a helpful pre-sentence report.

[11] The material I have received shows that you have strong support from your family, and I accept that you are a family man who will be missing your family deeply whilst you are in prison. You will also have, should you choose to accept it, a strong network of family support on your release if you wish to sever your connections with gangs and veer away from the path you appear to have chosen to date.
[12] One of the most significant matters contained in the pre-sentence report relates to your association with gangs. The intelligence held by police and corrections indicates that you have strong gang involvement. However, you denied this when you were interviewed by the writer of the pre-sentence report. Whatever the truth may be in that regard, there can be no doubt you were closely associated with the Black Power gang during this offending. You were prepared to take firearms to the Arawa Street intersection and to discharge them towards police officers and a rival gang. That obviously demonstrates that you must have had a significant connection with the gang as at the date of your offending. If you continue in that way, then no doubt further offending will occur and you will be back before the courts in the future.

[13] The pre-sentence report also indicates, however, that you have a degree of insight into your offending. This is supported by a letter you have written expressing your remorse for your offending.

[14] Taking those matters into account, your counsel submits that a reduction of around three months is appropriate and I agree. I therefore propose to reduce your sentence by three months to reflect the other mitigating factors shown in the material provided prior to sentencing today. I also propose to reduce the minimum term slightly to reflect the fact that the sentence has been reduced.

[15] On the charge of participating in an organised criminal group you are sentenced to five years imprisonment. On that charge you are ordered to serve a minimum term of two years five months before being eligible to apply for parole. On the remaining charges, you are sentenced to nine months imprisonment. Those sentences are to be served concurrently with each other and concurrently with the sentence imposed on the lead charge.





Lang J

Solicitors:

Crown Solicitor, Tauranga Lance Lawson, Rotorua

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS

PROHIBITED BY SECTION 73 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE

http://www.legislation.govt.nz/act/public/2011/0081/latest DLM3865734.html

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TAURANGA MOANA ROHE CRI-2017-087-000131 [2018] NZHC 961

THE QUEEN

V

KARANEIHANA TAIPETI

Hearing: 4 May 2018
(Heard at ROTORUA
Appearances: R W Jenson and O M Salt for Crown
S I Mills (on behalf of W Lawson) for Defendant
Judgment: 4 May 2018

SENTENCE INDICATION OF LANG J

[1] Mr Taipeti faces charges of participating in an organised criminal group,⁵ using a firearm against a law enforcement officer⁶ and discharging a firearm with reckless disregard for the safety of others.⁷ His trial is due to commence in this Court on 25 June 2018.

[2] The maximum penalty for the charge of participating in an organised criminal group is ten years imprisonment, the maximum penalty for using a firearm against a law enforcement officer is 14 years imprisonment, and the maximum penalty on the remaining charge is seven years imprisonment.

[3] Mr Taipeti seeks a sentence indication in respect of the charges. If he accepts the indication the Crown will present no evidence on other charges of rioting and unlawful possession of a firearm.

The charges

[4] All of the charges arose out of a series of inter-connected incidents that occurred on 17 January 2017. These occurred against a backdrop of increasing tensions between the Mongrel Mob and Black Power gangs in the eastern Bay of Plenty District. It appears that a few days before 17 January 2017 the Mongrel Mob had removed a Black Power member’s patch and had then desecrated it by burning it and urinating on it. This angered Black Power members. They then learned that a funeral procession for a deceased member of the Mongrel Mob was to pass through the Whakatane urban area on 17 January 2017. They viewed Whakatane as being their home turf and decided to put on a show of force to those Mongrel Mob members who were involved in the funeral procession.

[5] At about 11.30 am on 17 January between 30 and 40 Black Power members began congregating at the Whakatane Bridge. They expected the funeral procession to pass that way on its journey into Whakatane. The group was dispersed by the police

⁵ Crimes Act 1961, s 98A.

⁶ Crimes Act, s 198A.

⁷ Crimes Act, s 198.

before any issues arose. Mr Taipeti was one of the members of the group gathered at the Whakatane Bridge.

[6] The Black Power members then received information that the route for the funeral procession had changed. Approximately 30 Black Power members in 15 vehicles then moved to a car park area on Gorge Road. Mr Taipeti was present at that scene. The police arrived and searched the gang’s vehicles. They recovered a number of weapons from the vehicles. Again, the police dispersed the Black Power members before any issue arose.

[7] The Black Power members in the car park then drove across the road and joined other Black Power members gathered at a roundabout at the intersection of Valley Road and Gorge Road. Mr Taipeti was part of that group. Violence erupted at about
2.15 pm, when about 20 Black Power gang members broke from cover in a service lane off Valley Road and began pelting the Mongrel Mob vehicles with rocks and bottles. By this stage the funeral procession was of very considerable size. It involved more than 300 Mongrel Mob members and approximately 180 vehicles. It is not alleged Mr Taipeti was part of this incident.

[8] The incident came to an end after a member of the Mongrel Mob emerged through the sunroof of his vehicle and discharged a number of shotgun blasts at the Black Power members who had been throwing rocks at the procession. As the Black Power members fled, another car driven by members of the Mongrel Mob chased them and tried to run them over.

[9] The Black Power members then regrouped. A short time later they went to the intersection of Valley Road and Arawa Road in two vehicles. By this stage approximately 150 to 200 Mongrel Mob members had got out of their vehicles and were congregating approximately 100 metres down the road. One of the vehicles two Black Power vehicles as a silver Mitsubishi Galant driven by Mr Taipeti. As soon as this vehicle stopped members of the Black Power went to the boot of the vehicle and began removing firearms from it.
[10] By this stage approximately 13 Black Power members were on the scene. The Black Power members began taunting the Mongrel Mob members down the street and no doubt the Mongrel Mob members returned in kind.

[11] After the firearms were taken from the boot one of them was given to Mr Taipeti. He aimed it towards the group of Mongrel Mob members and pulled the trigger, but the firearm failed to discharge. In front of the group at which Mr Taipeti aimed were seven police officers. They were doing their best to keep control of the situation and to keep both sides apart, but were obviously completely outnumbered by both gangs.

[12] A Black Power gang member then handed Mr Taipeti another firearm and he again pulled the trigger. On this occasion the shotgun discharged pellets in the direction of the police and the Mongrel Mob members down the street. Moments later, Mr Taipeti pulled the trigger again and a further shot was fired at the Mongrel Mob and the police. Fortunately, neither of the shots caused any physical harm to either the police or members of the Mongrel Mob. One police officer reported, however, that he had felt shotgun pellets hitting the trouser legs of his uniform.

[13] Shortly after the shots had been fired, the firearms were stowed back in the boot of Mr Taipeti’s vehicle and the Black Power members departed the scene.

Starting point

[14] Against that background it is necessary to set a starting point that reflects the overall culpability of Mr Taipeti’s offending. The Crown suggests a starting point of between seven and eight years imprisonment to reflect Mr Taipeti’s culpability on all charges. Mr Mills for Mr Taipeti contends a starting point of no more than approximately six years is warranted.

[15] The Crown submits that the lead charge is that of using a firearm against a law enforcement officer. It makes that submission no doubt on the basis that this charge carries a greater maximum penalty than the other two charges. I consider, however, that the appropriate lead charge is that of participating in an organised criminal group.
Although that charge carries a lesser penalty than the firearms charge, I consider it accurately captures the essential nature of this offending.

[16] The group of Black Power members who assembled at the intersection of Arawa Road and Valley Road clearly went there with a purpose. They were no doubt incensed at the fact that the Mongrel Mob had repelled the attack in the service lane in Valley Road. They therefore went to the Arawa Road and Valley Road intersection carrying weapons for the purpose of using them to inflict serious violence against the Mongrel Mob. In doing so they must also have known that they would be firing the firearms in the direction of the police officers standing in front of the Mongrel Mob members.

[17] In setting the starting point, the following aggravating factors inform the Court’s decision.

[18] First, it needs to be borne in mind that this was a planned attack against persons who were participating in a funeral procession. Mr Taipeti and his co-defendants cannot rely on the fact that Mongrel Mob members had stolen and desecrated a Black Power patch a few days earlier. That act could not possibly justify a large group of Black Power members attacking a funeral procession. A funeral procession is a sacred and solemn event. Gang rivalries ought to have been put to one side so far as it was concerned. I therefore consider the fact that an organised attack was mounted against persons participating in a funeral procession to be a seriously aggravating factor.

[19] Secondly, the group’s objective was going to involve the actual use of firearms. In carrying out that objective it became a matter of fortune, or luck, as to whether or somebody would be injured. Even at a distance of 100 metres a shotgun can be a lethal weapon because nobody can predict where shotgun pellets will travel after they ricochet off the ground. A shotgun pellet into the eye of either a police officer or a Mongrel Mob member, even at that distance, could easily have caused very serious injury.

[20] Thirdly, the offending involved large numbers of gang members. This is important because a show of force in the present context was always going to require
a large group of persons. The significance of the numbers in the group lies in the fact that each encourages or incites the others. The combined effect of a large number of Black Power members acting in this way is that it created a serious risk of violence.

[21] Next, the group’s objective had the real potential to cause further violence. By the time of the incident at the intersection of alley Road and Arawa Road, the Black Power members knew the Mongrel Mob members were carrying at least one firearm. They must have appreciated that the firing of a shotgun at the Mongrel Mob could easily result in a response to the same effect by the Mongrel Mob. The group’s proposed activity therefore had the potential to escalate into a far more serious situation with attendant risk to life of all concerned.

[22] Further, there is the fact that the Black Power members knew they were going to attack a group protected by police officers. Although the police officers were not their objective, they nevertheless knew they were placing police officers at risk of physical harm by firing shotgun pellets towards them.

[23] Finally, this was not a single or isolated incident. It arose out of the earlier incidents that escalated in terms of violence during the course of the afternoon. Mr Taipeti had been present from an early stage. In addition, he bears responsibility for the shots that were fired. He was not a supporting actor. Rather, he had driven the car to the scene knowing he had weapons in the boot together with ammunition. He was also the person who was to fire the weapons towards the police and the Mongrel Mob members. In terms of overall culpability, he would probably be second only to the person or persons who made the decision that the group would endeavour to inflict serious harm on the Mongrel Mob by using weapons.

[24] Counsel have referred me to a number of cases.⁸ I have difficulty in deriving a great deal of value out of many of these. None of them arise in the context of an

8. R v Jolley [2018] NZHC 93; R v Motuliki HC Auckland CRI-2006-092-18270, 4 March 2008; R v Templeton CA460/05, CA470/05 and CA 484/05, 6 July 2006; R v Church HC Wellington CRI- 2008-085-2762, 23 May 2008; R v Smith HC Wellington CRI-2008-085-2762, 13 June 2008; R v Mitford [2004] NZCA 216; [2005] 1 NZLR 753, (2004) 21 CRNZ 232; R v Te Tomo HC Rotorua CRI-2009-063-1915, 30 October 2009.

attack on a funeral procession. Although some have gang overtones the nature of the offending is very different.

[25] I derive some assistance from R v Riki Raroa, because the offending in that case occurred against a backdrop of tensions between the Black Power and Mongrel Mob gangs.⁹ In that case the Mongrel Mob had made a decision to arm their headquarters with firearms in expectation that it would be the subject of a retaliatory attack from Black Power members for earlier incidents in which the Mongrel Mob had inflicted harm on Black Power members. As it transpired a member or associate of the Black Power gang arrived at the address in the middle of the night and began yelling taunts at those inside. A shotgun was then fired at him from close range and he received serious injuries to the chest. In that case the sentencing Judge adopted a starting point of five years imprisonment for the person who had organised the group’s activities, albeit he was not present at the time that the shots were fired at the Black Power member.

[26] I consider the offending in the present case to be more serious than that in Riki Raroa for the reasons I have identified. In particular it involves an attack on a funeral procession and in circumstances where the police were nearby and in the line of fire. Furthermore, the offending in Raroa occurred in the context of defensive methods the Mongrel Mob had undertaken to guard against the possibility of an attack by the Black Power. The present offending does not involve defensive efforts. Rather, it involves a decision by the Black Power members to take the battle to the Mongrel Mob.

[27] For those reasons I consider the appropriate starting point on the charge of participating in a criminal group is one of six years imprisonment.

[28] There needs to be an uplift to reflect the remaining charges. Ordinarily, I consider that a person who discharges two shots towards the police and rival gang members could easily expect a starting point of around three to three and a half years imprisonment. Totality principles are, however, to the fore. I consider that an uplift of one year is appropriate to reflect the remaining charges. This leads to an effective

⁹ R v Riki Raroa [2012] NZHC 1279.

end starting point of seven years imprisonment before taking into account aggravating and mitigating factors.

Aggravating factors

[29] Mr Taipeti has a number of previous convictions. The only relevant conviction for present purposes is a conviction in 2009 for being in possession of an offensive weapon. He was convicted and discharged on that charge, however, so it must have been at a low level. I therefore do not apply any uplift to reflect his previous convictions.

Mitigating factors

[30] The only mitigating factor I am prepared to consider at this point is that relating to guilty pleas. If they are entered in the near future, they would not be entered at an early stage because these charges have been on foot for nearly 15 months and the trial is due to commence within the next two months. For that reason the Crown suggests a discount of just 15 per cent is appropriate.

[31] For Mr Taipeti, Mr Mills submits the Court should provide a full discount of 25 per cent. He submits that the sentence indication has been sought after the Crown acknowledged it was prepared to proceed on the basis that Mr Taipeti fired the shots towards the police in a reckless manner and not with any form of intent. Up until recently the Crown has maintained that Mr Taipeti intended to hurt either the police or the Mongrel Mob when he fired the shots towards them. Mr Mills also submits that significant time and cost will be saved by guilty pleas at this stage.

[32] I do not accept the last submission carries a great deal of weight because the Crown will still need to call virtually all the evidence at trial that it would otherwise have been required to call. However, I acknowledge that there will be some saving of time and cost if Mr Taipeti was to plead guilty at this stage.

[33] I consider a more important factor in the present case is that one of the most important participants in the series of events giving rise to the charges is prepared to acknowledge his responsibility for the offending. His pleas at this stage would have
very real value for that reason. In addition, I accept that the Crown has changed its stance in a reasonably significant way in recent times. For that reason I would be prepared to make an allowance of 21 months to reflect guilty pleas. This is slightly less than 25 per cent.

[34] This produces an end sentence of five years three months imprisonment. It is possible that other mitigating factors may be available to reduce the charge further at sentencing, although I cannot think what they would be. If any other material is advanced to the Court at sentencing or through the pre-sentence report, I would be prepared to give consideration to a further modest reduction to reflect mitigating factors.

Minimum term of imprisonment

[35] The only other matter I need to determine today is whether a minimum term of imprisonment is required. If no minimum term is imposed Mr Taipeti would serve just 21 months of his sentence before being eligible to apply for parole. I consider that would be manifestly inadequate to reflect the sentencing principles of denunciation, deterrence and the need to hold Mr Taipeti accountable for his offending. For that reason I would impose a minimum term of imprisonment of two and a half years.

Time for acceptance

[36] A difficulty arises because Mr Lawson, who is senior counsel acting for Mr Taipeti, is overseas until 15 May 2018. Mr Taipeti needs to have the opportunity to take advice from Mr Lawson regarding the sentence indication. For that reason I direct that Mr Lawson is to file and serve a memorandum no later than Friday 18 May 2018 to advise the Crown and the Court whether Mr Taipeti proposes to accept the indication.




Lang J

Solicitors:

Crown Solicitor, Tauranga W Nabney, Tauranga