R v Ata [2018] NZHC 2109 (16 August 2018)

Last Updated: 6 September 2018

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

CRI-2017-087-131 [2018] NZHC 2109

THE QUEEN

v

ANDRE ATA ANTHONY OHLSON

Hearing:	16 August 2018
Appearances:	O M Salt for Crown R O Gowing for Mr Ata S Franklin for Mr Ohlson
Judgment:	16 August 2018

SENTENCING REMARKS OF LANG J

R v ATA & OHLSON [2018] NZHC 2109 [16 August 2018]

[1] Mr Ohlson and Mr Ata, you appear for sentence today having each pleaded guilty to a charge of rioting.¹ The maximum sentence for that offence is two years imprisonment. Mr Ata, you also pleaded guilty to a charge of unlawfully being in possession of a knife,² the maximum penalty for which is three years imprisonment.

The facts

[2] The charges were laid as a result of an incident that occurred in Whakatane on the afternoon of 17 January 2017. On that date the Black Power gang, with whom you both then identified, learned that a funeral procession comprising members of the Mongrel Mob and associates was to pass through the Whakatane township during the day. This caused concern for Black Power because of long-standing animosity between the two groups. This had increased in recent weeks because of several incidents that had occurred. The Black Power became concerned that a Mongrel Mob funeral procession was to pass through what it considered to be “its town”.

[3] As a result, members of the Black Power and their associates began to gather at various points around Whakatane where they thought the funeral procession may enter the town. You were seen in a group at the Whakatane Bridge, but the funeral procession did not enter Whakatane using that route. Ultimately, the procession entered Whakatane down Valley Road. You were then part of a group of Black Power members and associates who gathered in a service lane just off Valley Road. You used the cover of bushes to throw missiles such as rocks, sticks and bottles at cars in the funeral procession.

[4] It cannot have been a surprise to you when there was a response to your actions. Somebody within the Mongrel Mob procession fired a shotgun in the vicinity of the Black Power members. A car containing members of the Mongrel Mob then chased Black Power members around industrial premises off the service lane.

¹ Crimes Act 1961, s 87.

² Crimes Act 1961, s 202A(4)(b).

Starting point

[5] You are the last of the offenders who were involved in the service lane incident to be sentenced. The courts have consistently selected a starting point of 18 months imprisonment for offenders involved in that incident.³ Although the offending can on one view be regarded as low level, nevertheless its culpability lies in the fact that it had the potential to cause significant ramifications. These in fact occurred, because after the Mongrel Mob responded by discharging a firearm, members of the Black Power armed themselves and went to Arawa Road where one of their number fired shots at the Mongrel Mob. It is only a matter of good fortune that nobody was seriously injured as a result. Your culpability, therefore, lies in adding to a situation that had the potential to escalate what was already a very tense situation involving large numbers of Mongrel Mob and Black Power.

[6] The courts have selected a starting point of 18 months imprisonment in relation to the other offenders involved in the service lane incident, and I see no reason to depart from that in the present case. I therefore select a starting point of 18 months imprisonment in respect of your offending.

[7] I now propose to deal with you separately in relation to aggravating and mitigating factors personal to you.

Mr Ata

Uplift

[8] Mr Ata, you were found to be carrying a butcher’s knife in a sheath under your clothing. You explained that this was a work knife, and you carried it for your protection. Nevertheless, the carriage of a weapon such as that is a significant matter. The Court sees many instances where weapons such as knives that are carried for protection are used with fatal consequences. I propose to add an uplift of two months to reflect that factor.

3. R v Moeke [2018] NZHC 1426; R v Tapiki [2018] NZHC 1498; R v Ponini-Kara [2018] NZHC 1489; R v Dixon [2018] NZHC 1486.

Aggravating factors

[9] You have three previous convictions, two of which are for wilful damage and one for common assault in a domestic violence context. Those convictions are of no relevance for today’s purposes. I therefore add no uplift for previous convictions.

Mitigating factors

[10] I am prepared to allow a modest discount to reflect the fact that you have shown insight into your offending, and expressed remorse for your involvement in it. I apply a discount of two months to reflect that factor. This produces a sentence of 18 months imprisonment before taking into account your guilty pleas.

[11] The pleas were not entered at the earliest opportunity, but were nevertheless entered in the context of evolving circumstances. These included the Crown withdrawing a charge of participating in an organised criminal group. I propose to allow a discount of four months to reflect your guilty pleas, producing an end sentence of 14 months imprisonment.

Home detention

[12] You are an obvious candidate for home detention because of your age and relatively limited offending history. You are therefore entitled to the benefit of a lesser sentence than imprisonment given your current circumstances. Ordinarily a sentence of 14 months imprisonment would convert to a sentence of approximately seven months home detention. In the present case, however, I need to take into account the fact that you spent two and a half months in custody awaiting trial. This equates to a sentence of five months imprisonment. Deducting that from the end sentence of 14 months imprisonment produces a sentence of nine months imprisonment. I propose to convert this to a sentence of four months home detention.

Mr Ohlson

Aggravating factors

[13] Mr Ohlson, you have a reasonably lengthy list of previous convictions. Many of them are for offending unrelated in type to the charge for which you appear today. However, you have several convictions for disorderly behaviour and a conviction for aggravated robbery. I consider these warrant a modest uplift, and propose to add two months to the starting point to reflect that factor. This produces a sentence of 20 months imprisonment before taking into account mitigating factors.

Mitigating factors

[14] At 30 years of age, the pre-sentence report is positive in the sense that you have expressed remorse, you have expressed a desire to move away from gang-related activities and you have now relocated to an area away from Whakatane where your former associates reside. You also have a job with the local Council. I propose to apply a discount of two months to reflect these factors. This produces a sentence of 18 months imprisonment before taking into account your guilty plea.

[15] Like Mr Ata, your guilty plea was not entered at the earliest opportunity, but there were reasons for that. I propose to apply a discount of four months to reflect that factor. This produces an end sentence of 14 months imprisonment.

Home detention or community detention

[16] Given the positive factors contained in the pre-sentence report you are also an obvious candidate for home detention or community detention. In your case home detention is not a viable option for two reasons. First, your employment requires you to move around and work in different places. Home detention will not allow for that. Secondly, your nominated address is not technically feasible for a sentence of home detention.

[17] Your address is, however, technically feasible for a sentence of community detention. That sentence would also enable you to continue with your work, and I
consider that to be important. I therefore propose to sentence you to six months community detention, together with community work and supervision.

Sentence

[18] Mr Ata, you are sentenced to four months home detention. That is to be on the conditions set out in the appendix annexed to the pre-sentence report.

[19] Mr Ohlson, you are sentenced to six months community detention and you are ordered to perform 150 hours of community work. In addition, you are sentenced to nine months supervision. The curfew period for your sentence of community detention is to be between the hours of 7 pm and 7 am each day.

[20] Stand down.




Lang J

Solicitors:

Pollett Legal Ltd, Tauranga Gowing and Co Ltd, Whakatane