The Queen v Mitford [2004] NZCA 216; [2005] 1 NZLR 753; (2004) 21 CRNZ 232 (9 September 2004)

Court of Appeal of New Zealand

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The Queen v Mitford [2004] NZCA 216 (9 September 2004); [2005] 1 NZLR 753; (2004) 21 CRNZ 232

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/04CA248/04THE QUEEN

v

WILLIAM DAVID MITFORDMATHEW ATAREA HAPOPA EPAPARA

Hearing: 23 August 2004

Coram: Glazebrook J Robertson J Baragwanath J

Appearances: B A Gibson for Appellant Mitford
Y R Summers for Appellant Epapara
S P France for Crown

Judgment: 9 September 2004

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1] Messrs Epapara and Mitford appeal against sentences imposed by MacKenzie J in the High Court at Palmerston North on 21 May 2004 on similar but separate charges of participation in an organised criminal group (Crimes Act 1961 s 98A which came into effect from 1 January 1998). The section provides

98A Participation in organised criminal group

(1) Every one is liable to imprisonment for a term not exceeding 5 years who participates (whether as a member or an associate member or prospective member) in an organised criminal group, knowing that it is an organised criminal group, and—

(a) knowing that his or her participation contributes to the occurrence of criminal activity; or

(b) reckless as to whether his or her participation may contribute to the occurrence of criminal activity.

(2) For the purposes of this Act, a group is an organised criminal group if it is a group of 3 or more people who have as their objective or one of their objectives—

(a) obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more; or

(b) obtaining material benefits from conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of offences that are punishable by imprisonment for a term of 4 years or more; or

(c) the commission of serious violent offences (within the meaning of section 312A(1)) that are punishable by imprisonment for a term of 10 years or more; or

(d) conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of serious violent offences (within the meaning of section 312A(1)) that are punishable by imprisonment for a term of 10 years or more.

(3) A group of people is capable of being an organised criminal group for the purposes of this Act whether or not—

(a) some of them are subordinates or employees of others; or

(b) only some of the people involved in it at a particular time are involved in the planning, arrangement, or execution at that time of any particular action, activity, or transaction; or

(c) its membership changes from time to time.
[2] Section 312A provides

serious violent offence means any offence—

(a) That is punishable by a period of imprisonment for a term of 7 years or more; and

(b) Where the conduct constituting the offence involves—

(i) Loss of a person's life or serious risk of loss of a person's life; or

(ii) Serious injury to a person or serious risk of serious injury to a person; or

(iii) Serious damage to property in circumstances endangering the physical safety of any person; or

(iv) Perverting the course of justice, where the purpose of the conduct is to prevent, seriously hinder, or seriously obstruct the detection, investigation, or prosecution of any offence—

(A) That is punishable by a period of imprisonment for a term of 7 years or more; and

(B) That involved, involves, or would involve conduct of the kind referred to in any of subparagraphs (i) to (iii):

[3] The appellants were charged in separate indictments with two co-accused in common. The count against Mr Mitford was

...that BRIAN PAUL TAYLOR, ANTHONY BRETT CLEGG, WILLIAM DAVID MITFORD and KERRY JASON TAYLOR between the 4th day of February 2003 and the 7th day of February 2003 at Palmerston North did participate in a criminal group namely Mangu Kaha/Black Power, each knowing that it was an organised criminal group and each knowing that his participation contributed to the occurrence of criminal activity.

For reasons that follow we will refer to the events underlying the count as “the ‘taxing’ episode”.

[4] The count against Mr Epapara was

...that BRIAN PAUL TAYLOR, ANTHONY BRETT CLEGG, JOHN EDWARD MCGREGOR and MATHEW ATAREA HAROPA EPAPARA on or about the 5th day of February 2003 at Palmerston North did participate in a criminal group, namely Mangu Kaha/Black Power, each knowing that it was an organised criminal group and each knowing that his participation contributed to the occurrence of criminal activity.

Particulars of Criminal Activity:

The aggravated robbery of Henry Edwards and the shooting of Sovite Timothy Sua.

We will refer to the underlying events as “the reprisal episode”.

[5] Mr Brian Taylor, who was a co-accused on each count, was a patched member and president of the Manawatu chapter of the Mangu Kaha/Black Power gang. Mr Mitford was a patched member of Black Power but not of Mangu Kaha. He had been a member of the Hawkes Bay chapter until late 1999 when he moved to another area and he rejoined the gang as a member of the West Coast chapter in 2001.

The ‘taxing’ episode

[6] In the early afternoon of 4 February 2003 Mr Taylor, Mr Mitford and their co-accused Messrs Clegg and Kerry Taylor were driven by Mr Taylor’s partner to the home of the complainant, Mr Moore, in Palmerston North. On arrival Mr Taylor knocked at the front door which was answered by the complainant. Messrs Clegg and Mitford stood watching the conversation. After about five minutes of normal conversation the tone changed. Mr Taylor alleged that the complainant’s three eldest sons had told another person that a member of the Black Power gang had been at the complainant’s address recently with a gun looking for someone else. Mr Taylor told the complainant that as a result he owed the gang financial compensation for the comments made by his sons.
[7] The Crown described the claim as part of a practice known among gang members as “taxing”, meaning the taking of property on demand for payment of a fictitious debt. If the property is not handed over by the intended victim it is common practice for it to be either stolen or taken by force.
[8] The complainant did not agree to Mr Taylor’s demands. Mr Taylor then asked about the ownership of a 1984 red Commodore car parked in the driveway and instructed the complainant to hand over the key. Mr Moore refused to do so. Mr Taylor then said that someone had to pay for the comments made and demanded that the complainant part with the car or pay him $200. The complainant refused and was hit over the back of the head by Mr Clegg or Mr Mitford. Mr Taylor then joined in the assault and the complainant was punched about the body and face, sustaining a black eye. As the accused left the property the complainant was told to “stop fucking them around”. Mr Taylor said that he could enter the complainant’s house, smash it up and take whatever he wanted. He concluded by saying that he would return on Friday to get the money.
[9] The following day in the evening Mr Taylor’s brother Kerry called at the complainant’s address asking for the $200 his brother claimed he was owed. On being told the money was not yet available he left the address.
[10] In the late morning of Friday 7 February 2003 while the complainant was at home with his two year old daughter, his three sons of 12, 14 and 15 and an adult woman, Mr Mitford arrived at the complainant’s address. He saw the complainant on the front steps and yelled out to him, asking if he had Mr Taylor’s money. The complainant said he did not. Mr Mitford asked the complainant if he would have the money later in the day and was told no. Before leaving Mr Mitford told the complainant that he and the others would return to the address to “kick his fucking head in”. Soon afterwards the complainant reported these events to the police who located Mr Mitford wearing a waistcoat marked with “Black Power Forever” gang insignia and regalia. He admitted that he had been talking to Mr Taylor and had been told that he should go to the complainant’s address and that he had said he would go back to punch the complainant’s head in.

The reprisal episode

[11] The charge against Mr Epapara results from events that began on the evening of 4 February 2003 when he and his co-accused were at a party at Mr Taylor’s home. Those present included Mr Clegg and Messrs McGregor and Epapara, both of whom were close associates although not patched members of the Black Power gang. After consuming alcohol and drugs the four accused on the second indictment decided to visit members of the local Mongrel Mob gang to exact retribution for the shooting of a Black Power prospect the year before.
[12] In the early morning of 5 February the accused drove to the home of a complainant, Mr Edwards, a patched member of a local Mongrel Mob gang. Three of the accused were wearing balaclavas, one was not. They entered the complainant’s home, one of them holding a sawn off shotgun. One of the accused held him at gunpoint while another beat him and robbed him of his gang patch.
[13] They then left his house and drove to the address of another complainant, Mr Sua, who was the acting president of the local Mongrel Mob gang. Messrs Taylor and Clegg left Messrs Epapara and McGregor in the vehicle, taking the shotgun with them. Messrs Taylor and Clegg pretended that they were fellow Mongrel Mob members and induced the complainant to come to the door. One of Messrs Taylor and Clegg fired buckshot through a perspex sheeting, striking the complainant in the upper thigh and waist area, causing a significant number of pellet wounds. A second solid slug shot was then fired which just missed striking the complainant. Had it struck him it would almost certainly have killed him. The complainant remained in hospital for some days but sustained no lasting effects from the gunshot wound.

The pre-sentence reports

[14] Mr Mitford is 27 years of age with a difficult upbringing. He became a prospect to the Mangu Kaha/Black Power gang as a teenager and a full member at the age of 19. At the time of sentence he was in stable employment and in stable rental accommodation with his long-term partner and four of his five children. He claimed that Mr Taylor told him to collect money owed to Mr Taylor. He admitted threatening the complainant but said that it was an idle threat and that he never even got out of the car. He claimed that he believed that the money demanded was legitimately owed.
[15] Mr Mitford has a criminal list involving mainly dishonesty and driving offences. He has no convictions for sentences of violence. He produced supportive references describing him as hard working, honest and punctual.
[16] Mr Epapara is a 22 year old single man with a young daughter who lives with his former partner. He told the probation officer that he was heavily intoxicated on the day of the offence. His 18 adult convictions include drug offences, burglary and violent offending for which he has undergone sentences of conviction and discharge, supervision and imprisonment.

The sentence of Mr Taylor

[17] Mr Taylor was sentenced by Wild J on 27 April 2004 on a series of offences. The first was of wounding with intent to cause grievous bodily harm on 3 November 2002 when he fired a .22 calibre rifle with a telescopic sight and struck a Mongrel Mob member, a Mr Tako, who required surgery on his left leg, hospitalisation and had to wear a brace on his knee for some time. The second was the “taxing” episode involving Mr Moore. The third was the reprisal episode involving first Mr Edwards and then Mr Sua. A further count resulted in two charges of unlawful possession of firearms, a cut down .22 calibre rifle and a sawn off shotgun, on 2 May 2003. The final count was of unlawful possession of a different sawn-off shotgun on 7 February 2003.
[18] For the shooting of Mr Tako the Judge took a nine year starting point which he reduced by three years for his confession and plea of guilty, resulting in a six year term. For the aggravated robbery of Mr Edwards he began with a nine year term which was discounted by three years for his plea to six years. On the count of wounding Mr Sua with intent to cause grievous bodily harm he took an eight year starting point which he reduced by two years to reach a net six year term. For the offence of participation in an organised criminal group he observed that Mr Taylor was the leader of the chapter or section of the gang involved. He took a starting point of three years and allowed a discount of one year for the guilty plea resulting in a sentence of two years imprisonment. On the count of demanding with menaces affecting Mr Moore he imposed a sentence of two years imprisonment allowing a discount for the plea of guilty.
[19] The Judge properly directed himself as the need to look at the totality of the offending and to reflect the fact Mr Taylor was currently in prison serving sentences on unrelated matters. The result was a 14 year term cumulative on his existing sentence comprising six years for the wounding of Mr Tako, a cumulative six years for the aggravated robbery of Mr Edwards and a cumulative two years for unlawful possession of the first of the two firearms found. The six years for wounding Mr Sua, two years for participation in an organised criminal group and other sentences were imposed concurrently.

MacKenzie J’s general sentencing remarks

[20] MacKenzie J accepted the Crown’s submission that there is a strong public interest in imposing stern sentences for offending under s98A and that gang related violence is a serious problem in the Manawatu as it is in New Zealand as a whole and a deterrent sentence is therefore warranted.

Mr Mitford’s sentence

[21] MacKenzie J recorded that Mr Mitford faced one charge of participation in an organised criminal group in relation to the events involving Mr Moore that on 4 February he stood observing conversation following which Mr Taylor punched Mr Moore and made demands on him. On the second occasion he returned and himself made threats to Mr Moore. His explanation was that Mr Taylor owed him money and told him to get the money off Mr Moore who owed money to Mr Taylor. He accepted the submission of counsel for Mr Mitford that his degree of participation was less than that of Mr Taylor. He said

[25]...However it must be borne in mind that Taylor also faced substantive charges arising out of this matter, as well as the charge of participating in a criminal gang. Accordingly, I consider that it is appropriate to adopt a similar stance so far as the charge of participation is concerned, to that of Taylor, notwithstanding your somewhat lesser involvement

[26] Your pre-sentence report notes that you are currently working fulltime to support your family. It recommends that a sentence of community work be imposed. I am not prepared to accept that recommendation. This was serious offending and it must be met with a punishment which, (having regard to setting that at the least restrictive outcome) must necessarily involve a sentence of imprisonment.

[27] In relation to that charge, I consider that an appropriate starting point for your situation, to recognise your slightly lower degree of involvement, is two years as opposed to the 2.5 years that I have fixed in relation to Clegg. From that I allow you a discount for your guilty plea which came at rather a late stage and I consider that a discount of 6 months is appropriate. That leaves an effective sentence of 18 months imprisonment and that is the sentence which I impose. That will be subject to the standard conditions of release.

Mr Epapara’s sentence

[22] The starting point for Mr Epapara’s sentence was based on that of Mr Clegg. McKenzie J had sentenced Mr Clegg to five years for the charge of aggravated robbery and 5.5 years for the charge of wounding with intent to cause grievous bodily harm. As to the two charges of participation he said

[19]...In relation to the incidents involving Mr Moore, Wild J took 3 years as a starting point and allowed a discount of one year. I consider that the appropriate starting point in your case having regard to that is 2.5 years, to reflect your slightly lesser degree of involvement, but I allow a similar discount of 1 year to give a sentence on that charge of 1.5 years.

[20] For the charge of participation in the Edwards and Sua incidents, Wild J’s sentence is not an appropriate guide as he clearly treated that matter as being a subsidiary charge in the case of Taylor because he convicted and discharged without penalty. That is of course not appropriate in your case. I consider that the appropriate starting point for a sentence for the participation in respect of the Edwards and Sua incidents, is 3 years. I allow a discount of 1 year for the guilty plea, leaving a sentence of 2 years on that.

Mr Clegg’s four terms of imprisonment were ordered to be served concurrently.

[23] The Judge sentenced Mr Epapara in the same manner as Mr McGregor. He said

[29] Again your counsel submit that your participation in the offending was small but as I have already said, the effect of s98A is to include within the scope of criminal conduct, participants who are in the situation in which you were in. You do not face substantive charges arising from the incident which you would have done no doubt, if greater participation had been involved.

[30] I consider that in each of your cases the appropriate starting point is the same as that which I have identified for Clegg, namely a term of 3 years. From that I allow a discount of one year to reflect your guilty pleas, leaving each of you with an effective sentence of 2 years.

...

[31] In the case of you Epapara, your sentence is subject to the standard conditions and to the special conditions which are referred to in your pre-sentence report. Namely, that you are to undergo an alcohol and drug assessment and attend any counselling and/or residential treatment as directed by the Probation Officer. Secondly, to undergo assessment for and if suitable, attend the Te Wairua programme as directed by the Probation Officer. Thirdly, to attend any other such assessment, treatment, counselling, or course, as directed by the Probation Officer.

[24] The Judge declined each defendant leave to apply for home detention

Submissions on appeal

For Mr Mitford

[25] In written and oral submissions Mr Gibson argued that the Judge had erred in accepting the Crown’s submission that there is a strong public interest in imposing stern sentences for offending under s 98A; that there was no evidence supporting the Crown contention that gang-related violence is a serious problem in the Manawatu as it is in New Zealand and that a deterrent sentence is therefore warranted. He corrected an error in the sentencing remarks which stated that Mr Clegg was with Mr Mitford on the 7 February visit to Mr Moore’s address: the people in the car with Mr Mitford were his partner and infant son, something different in kind from a visit by two gang members. He challenged what he submitted was the Judge’s acceptance of the Crown’s submission that Mr Mitford’s offending involved “effectively your terrorising the complainant and his family and those living at his address”. He further challenged the Judge’s conclusion in respect of Mr Mitford that

This was serious offending and it must be met with a punishment which (having regard to the least restrictive outcome) must necessarily involve a sentence of imprisonment.

[26] He then challenged the Judge’s adoption of a similar stance in sentencing Mr Mitford as was used for the principal offender, Mr Taylor. Next, he submitted that the sentence was disproportionately harsh by comparison with other sentences imposed under s 98A. He submitted that the Judge had failed to take proper account of the views of the victim as required by s 8(f) of the Sentencing Act 2002. He referred in that regard to Mr Moore’s statement

In terms of the other visits that I had from the associates of TAYLOR (TAYLOR, Kerry and MITFORD) it didn’t mean anything. I have had the opportunity of speaking with the defendant MITFORD, and I do not personally have any grudges against him for his actions. I believe he had been set up again by TAYLOR.

[27] He further submitted that the Judge erred in

9. taking into account the views of persons who were not victims within s 4 of the Sentencing Act and... placing undue weight on the effects of the offending on them;

x. not granting leave for the Appellant to apply for home detention;

xi. restricting the allowance made for the plea of guilty.

[28] He submitted that Mr Mitford did not take part in any violence, for which he had no record. He did use harsh language in making a threat. That impressed the complainant so little that he turned his back on Mr Mitford and walked off. The facts he submitted do not justify a stern and deterrent sentence to mark this unrelated violence. He submitted that in sentencing if the two indictments had not been considered simultaneously a lesser sentence would have been imposed on him. He submitted that Mr Mitford’s personal circumstances were not properly taken into account. Those included his family responsibilities and the fact that he was a member of Black Power, not of Mangu Kaha.
[29] He submitted that Mr Taylor’s sentence was not an appropriate point of comparison and that by adopting it the Judge fell into error. He further submitted that no proper weight was given to the appellant’s continuing in successful attempts at rehabilitation and the plea of guilty advised to the Crown 19 days before trial. He submitted that Mr Mitford had reason to feel that he was being in prison for being a member of a gang rather than for the merits of his own conduct and that a proper sentence would have been that of community work recommended by the probation officer.

For Mr Epapara

[30] For Mr Epapara, Ms Summers observed that Mr Taylor, who had been sentenced to two years imprisonment on the s 98A count relating to Mr Moore, had been convicted and discharged on the count relating to the incident in which Mr Epapara was involved. She cited s 85(1) of the Sentencing Act

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

...

and submitted that the Judge was to be taken to have made an appropriate sentencing decision in relation to the reprisal episode.

[31] She submitted that Mr Taylor was the principal offender in respects of the events in which Mr Epapara was involved – the leader who recruited his forces and the driving force behind all of the offending. The only mitigating factor was his plea of guilty. She submitted that by contrast

• Mr Epapara’s involvement was minimal;
• he was simply present during the course of events;
• he was so drunk he remembered almost nothing;
• he did nothing active by way of participation;
• from his point of view nothing was planned;
• he was not even a gang member;

[32] In relation to the shooting of Mr Sua it was Messrs Taylor and Clegg who were near the gate; another person was near the car. It cannot, she submitted, be said that Mr Epapara was even there to make up the numbers. He was simply there.
[33] Again, in regard to the aggravated robbery of Mr Edwards, Mr Epapara’s involvement was at most presence to make up the numbers.
[34] She submitted that the sentencing Judge did not pay regard to significant mitigating factors including a developing maturity in his outlook and attitude and a development of some insight into the consequences of his behaviour. His probation officer recorded that he had expressed a motivation to address his offending that had been absence in previous reports and that he could be ready to benefit from rehabilitative services.
[35] Ms Summers challenged the Judge’s taking from the Taylor case the three year starting point which must have included a calculation in respect of aggravating factors which are not applicable to Mr Epapara. Nor, it was submitted, did the Judge give sufficient weight to the then presumption in favour of granting leave to apply for home detention.

For the Crown

[36] Mr France’s submissions for the Crown supported the Judge’s decisions.

Discussion

[37] The elements of the offences are

1. that the offender participates in an organised criminal group; which is
2. a group of three or more people who have as an objective
   1. in the case of Mr Mitford, obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more;
   2. in the case of Mr Epapara, the commission of serious violent offences (being offences punishable by imprisonment by seven years or more) and where the conduct constituting the offence involved at least serious risk of serious injury to a person
      1. knowing that it is an organised group; and
      2. knowing that his participation contributes to the occurrence of criminal activity or is reckless as to whether his participation may contribute to the occurrence of criminal activity.

[38] There is limited assistance available as to the purpose and effect of s 98A, which was enacted to give effect to New Zealand’s obligations under the United Nations Convention Against Transnational Organised Crime (and substituted for the original section responding to the gang crime issues identified in the 1986 Ministerial Committee of Inquiry and of Violence (the Roper report). In its report on the Bill the Select Committee stated

The [former s98A’s] definition of a ‘criminal gang’, which includes a requirement that at least three members have recent serious criminal convictions... relates only to New Zealand offences and offenders. A new definition of ‘organised criminal group’ is required that is broad enough to cover criminal groups that conduct some or all of their operations transationally.

The Committee said

We consider that the mental element appropriate to a particular offence has to be determined in the context of that offence and the conduct at which it is aimed. In this context, a person is liable for an offence who participates in an organised criminal group (as defined) knowing that it is an organised criminal group and either knowing that his or her participation contributes to the occurrence of criminal activity or is reckless as to whether his or her participation may contribute to the occurrence of criminal activity. We note that to be criminally liable for ‘reckless’ conduct requires proof beyond reasonable doubt that the accused deliberately ran a known risk when it was unreasonable in the circumstances to do so. This is a high threshold. This clearly excludes from liability any unwitting associates, such as a secretary of a company, or those who have good reasons, such as social contacts and family members.

We note that new section 98A was vetted for compliance with the New Zealand Bill of Rights Act and we are advised that the Crown Law Office considered it contains adequate safeguards, specifically its requirement for both participation and for knowledge that the group is an organised criminal group. We further note that the interpretation of ‘participation’ by the courts should be consistent with a New Zealand Bill of Rights Act interpretation. We understand that ‘participation’ and ‘association’ would not be treated as synonymous.

[39] Care must be taken to avoid the kind of imprecision that can extend criminal responsibility beyond the proper ambit of the measure, as has occurred in the context of other offences that criminalise conduct short of conventional substantive offences. Examples are R v Nakhla [1975] 1 NZLR 393 (PC) which concerned the former offence of frequenting (see also Ledwith v Roberts [1937] 1 KB 232) and Kamara v DPP [1974] AC 104 describing conspiracy as one of the most difficult and controversial branches of the criminal law.
[40] Adams IF-29 subs (1) observes

Subsection (1) contemplates the common phenomenon of organised criminal groups which have a core of four members and a penumbra number of aspirants to membership, such aspirants being... involved to greater or [lesser] extent in criminal offending by full members of a group.

What is meant by “participates” in subs (1) may be problematic. The verb is generally more apt to describe involvement in the conduct of others than involvement within entities. In the context of a section, a person perhaps “participates” in an organised criminal group if a person either overtly associates with members of a group in their capacity as group members or engages in a course of conduct actually advancing the interests or activities of the group, or overtly appearing to advance such activities.

[41] In Don Stewart’s Canadian Criminal Law (4th ed) pp 646-652 the learned author draws attention to potential abuse of similar legislation.
[42] While in the present case the pleas of guilty acknowledge the offending alleged it is the responsibility of a sentencing Court to identify the “precise criminality” of the offender: R v Duffy (1994) 15 Cr App R (S) 677, 681 followed in R v Meroiti CA392/99, 26 October 1999. In s98A cases that is likely to be no easy task.
[43] It is necessary to consider the case of each appellant separately.

Mr Mitford

[44] The “organised criminal group” must have included Mr Taylor, Mr Clegg, Mr Kerry Taylor as well as Mr Mitford. The “objective [of] obtaining material benefits from the commission of offences” must relate to the process of “taxation” which would fall within s 239(2) of the Crimes Act

...Every one is liable to imprisonment for a term not exceeding 7 years who, with menaces or by any threat, demands any property from any persons with intent to steal it.

[45] The plural “offences” in the second element of s 98A requires the inference that the offending relating to Mr Moore was not a single instance.
[46] In terms of the third element Mr Mitford is to be taken as knowing that the group was an organised one with the proscribed objective.
[47] In terms of the fourth he is to be taken as knowing that his conduct contributed to the group’s criminal activity or as reckless as to whether it might do so.
[48] The inevitable inference from the facts recorded in paragraphs [6], [8] and [10] of this judgment is that Mr Mitford’s participation in the organised criminal group was substantial rather than peripheral.
[49] We must bear in mind that Mr Mitford has not been convicted of any substantive offence (as under s 239(2)) and that Parliament has limited the penalty under s 98A to a five year term even though the raison d’être of the organised criminal group is the objective of serious offending. There is as Mr France submitted some parallel with s 310, which confines the penalty for conspiracy to commit an offence to seven years even though, as in such cases as R v Mullen (1991) 12 Cr App (S) 754 and R v Taylor and Hayes (1995) 16 Cr App R (S) 873, a conspiracy may be of graver dimension than the substantive offences constituting its overt acts and would warrant a much sterner sentence.
[50] The gist of the present offence is knowingly taking part as a member of the group which has come together to commit the proscribed activity, whether or not any substantive offence has been committed. If it has there will be a further offence carrying a separate penalty within the limits of totality. Of course commission of the further offence, like the overt acts in a conspiracy, will often be powerful evidence of breach of s 98A.
[51] The important considerations here include the serious objective of “taxing” or demanding with menaces; combining with the co-accused for that purpose; forming part of a formidable presence to confront Mr Moore and at least abetting (in terms of R v Coney (1882) 8 QBD 543 and s 66) the assault upon him. All of these constituted conduct in common with other members of the organised criminal group for which a broadly equal starting point is likely to be appropriate in terms of sentence. There are then the added factors particular to Mr Mitford in his visit to the complainant’s house on 7 February and the threatening behaviour at that stage. Against that are the mitigating factors advanced in Mr Gibson’s submissions, particularly that Mr Mitford did not himself take part in violence; that he had no record of violence; that the complainant seems not to have been troubled by his conduct; and of course his plea.
[52] We regard Mr Taylor’s sentence on the “taxing” count, with its three year starting point reduced to two by reason of his plea of guilty, as moderate in terms of the anti-social conduct entailed. But Wild J was right to recognise the sharp distinction required between the s 98A breach and substantive offending and we do not regard his sentence as over-generous. With the relatively low maximum penalty, the wide range of serious offending which may be an objective of criminal groups, and the element that this is a prophylactic provision, there will inevitably arise some compression of sentences to an even greater extent than that seen in case of fraud where tariffs cannot rise in ratio to the sums involved without risk of a disproportionate result. A consequence of that is that fine discrimination among different members of the organised criminal group is unlikely to be attainable for the starting point of their sentence, whatever difference may result when mitigation is appraised.
[53] In this case we consider that the Judge’s selection of a two year starting point compared with Mr Taylor’s three years and Mr Clegg’s 2.5 was broadly appropriate, as is the six month discount for mitigating factors, especially the guilty plea advised some three weeks before trial. But to recognise the possibility that the Judge’s error concerning the people in the car with Mr Mitford might have resulted in a slightly higher sentence than he would otherwise have considered appropriate we reduce the 18 month sentence to 15 months. In other respects it will stand.
[54] We agree with the Judge that home detention is inappropriate for such offending, which requires a deterrent sentence.

Mr Epapara

[55] The “organised criminal group” must have included Mr Taylor, Mr Clegg, and Mr McGregor as well as Mr Epapara. The “objective [of] obtaining material benefits from the commission of offences” must relate to the process of retribution. The deliberate visiting of Messrs Edwards and Sua, in force and armed, is sinister.
[56] Again the plural “offences” in the second element of s 98A requires the inference that the offending was not a single instance.
[57] In terms of the third element Mr Epapara is to be taken as knowing that the group was an organised one with the proscribed objective.
[58] In terms of the fourth he is to be taken as knowing that his conduct contributed to the group’s criminal activity or as reckless as to whether it might do so.
[59] It is plain from paragraph [13] of this judgment that Mr Epapara’s participation in the organised criminal group was rather peripheral than central in relation to the serious Sua episode. Given Mr Epapara’s apparent intoxication, the fact that there is no evidence that he played a more significant role in relation to the earlier assault on Mr Edwards justifies treating him overall as a lesser participant in the s98A offending. Nevertheless participation even by presence is calculated to encourage primary offending and must be deterred.
[60] We consider that Wild J’s conviction and discharge of Mr Taylor in relation to the reprisal episode cannot be called in aid by Mr Epapara. It was obviously a washing up sentence in relation to literally concurrent offending against Mr Edwards and Mr Sua which contributed to the evidence of it and required specific disposition after substantive sentences totalling 14 years had been added to Mr Taylor’s existing five year sentence. While making no significant difference to Mr Taylor it would in retrospect have been better in relation to the sentencing of co-offenders for the Judge to have imposed a concurrent sentence as he did in relation to the “taxing” episode.
[61] MacKenzie J’s starting point of three years for Mr Clegg is to be seen within the context of the concurrent sentences of 5.5 years imposed on him in relation to the Edwards and Sua incidents. While apparently less systematic than the “taxing” episode the reprisal episode was inherently much more serious. Offending under s 98A with the objective of committing serious violent offences will tend to be viewed more seriously than offending with the objective of obtaining material benefits, as is seen by a comparison between the reprisal and taxing episodes in the present cases. Mr Clegg may be considered fortunate to have had a starting point of as low as three years applied to him and Mr Taylor even more fortunate to have been convicted and discharged. But in each case the sentence is largely academic in view of the term imposed for substantive offending.
[62] We are satisfied that there was no injustice to Mr Epapara by the adoption of the three year starting point for the offending to which he pleaded guilty. A one year discount was appropriate for the mitigating factors of his plea and limited involvement. It must be remembered that Coney parties are sentenced via s 66 as “a party to and guilty of [the] offence” and a comparable approach is generally appropriate for group offending. Had Messrs Taylor and Clegg been sentenced in relation to the reprisal episode alone they could have expected a significantly heavier penalty than Mr Epapara’s two years.
[63] Again given the need for deterrence home detention was not justified.
[64] We are therefore satisfied that the sentence imposed by MacKenzie J on Mr Epapara was appropriate. His appeal is dismissed.

Solicitors:
B A Gibson, Wellington for Appellant Mitford
Yvonne R Summers, Levin for Appellant Epapara
Crown Law Office, Wellington