R v Turei [2007] NZCA 220 (1 June 2007)

Last Updated: 15 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA189/07 [2007] NZCA 220

THE QUEEN

v

_{CHRISTOPHER TUREI}

Hearing: 21 May 2007

Court: Wilson, Randerson and Rodney Hansen JJ Counsel: A Simperingham for Appellant

B J Horsley for Crown

Judgment: 21 May 2007

Reasons: 1 June 2007

_{JUDGMENT OF THE COURT}

A It is recorded that the appeal against conviction was abandoned.

_{B The appeal against sentence is dismissed.}

REASONS OF THE COURT

_{(Given by Randerson J)}

R V TUREI CA CA189/07 21 May 2007

Introduction

[1] The appellant and two co-offenders (John and Kelly Gemmell) were all found guilty after trial in the Gisborne District Court on one count of unlawful assembly contrary to s 86 Crimes Act 1961. On 27 April 2007, all three were sentenced by the trial Judge, Judge Gittos. Mr Turei and Kelly Gemmell were sentenced to two months imprisonment and John Gemmell to three months.

[2] Initially, both Kelly Gemmell and Christopher Turei appealed against their convictions and against sentence. However Kelly Gemmell abandoned his appeal against conviction and sentence (CA 178/07) and Mr Turei abandoned his appeal against conviction. The sole remaining issue for determination is Mr Turei’s appeal against sentence on the ground that it was manifestly excessive.

[3] We were told by Mr Turei’s counsel, Mr Simperingham, that Mr Turei has been released on bail pending this appeal. We were also informed he must serve two more weeks in prison before he would become eligible for parole.

[4] At the conclusion of the hearing of the appeal on 21 May 2007, we dismissed the appeal and ordered that Mr Turei surrender himself to the police forthwith. We indicated that reasons would be given in due course. These are those reasons.

The facts

[5] The police alleged that Mr Turei and his two co-offenders were involved in an unlawful assembly in a residential area in Wairoa. All three are associated with the Mongrel Mob. The incident had its genesis in a police pursuit of a vehicle being driven by an unidentified driver in which John Gemmell was a passenger. The vehicle stopped outside a disorderly party and was then reversed, ramming into the police car. The two police officers in the police vehicle were then confronted by the Gemmell brothers and Mr Turei.

[6] The police decided it was necessary to remove the car from the scene and called a tow truck for that purpose. The sentencing Judge found that the appellant and his co-offenders took violent exception to the police removing the vehicle. The Judge further found:

There were initially only two Police Officers at the scene, who were somewhat shaken at having been involved in the violent collision, which was precipitated when this car reversed into the vehicle in which they had been travelling. They had a torrid time of it, with hostilities being manifested from all of you and some others in the vicinity, and bottles being thrown from the house where the party was going on and in due course two other officers arrived to try and assist. The officers gave you every opportunity to back off and let them get on with their task. But you all, being somewhat fuelled by liquor and you, Mr John Gemmell, apparently more than most, took no notice of them. You made it very plain that as far as you were concerned the car was not going to be taken anywhere. Thus, four Police Officers were confronting you three determined fellows as opposing them doing their duty, backed up by numerous other rowdy people at this party who were throwing bottles about.

[7] The Judge then described the events which occurred after the tow truck arrived. The tow truck driver was concerned about the likelihood of violence erupting and removed the vehicle as quickly as he could. During this process, the Judge found that further bottles were thrown in the driver’s direction and one smashed on the ground. The Judge considered it to be “a very disorderly business”. At one stage, John Gemmell had tried to get into the car and a scuffle developed between himself and his brother. At another point, John Gemmell had put his fists up and charged at one of the police officers. That led the police to use pepper spray to subdue the Gemmell brothers and Mr Turei.

[8] The Judge recorded in his sentencing notes that the jury had expressed the view when giving its verdict that John Gemmell had played a leading role and was deserving of a more serious response from the Court than the other two offenders. However, it is clear that the Judge took the view that a hostile attitude was being displayed by all three offenders.

The Judge’s approach to sentencing

[9] The Judge recorded that defence counsel had submitted that the circumstances of the offending were less serious than a gang confrontation between Black Power and Mongrel Mob which had occurred in 2003 in the vicinity of the Wairoa Courthouse. At that time, a number of offenders were convicted of being members of an unlawful assembly. Those who pleaded guilty were sentenced to community work. The response of the Judge to those submissions is recorded in the sentencing notes:

To that extent, those submissions are well-founded. That was a larger and more disorderly assembly in a way, which perhaps presented more in the way of a threat to the public. But what is aggravating about this particular set of facts, is that it involves a violent confrontation with the Police in a public place and a declared determination to frustrate the Police in what they were doing in a very disorderly and potentially violent way. That puts it into a somewhat different category from some confrontation between different gang factions. But as dangerous and concerning as those things may be, they do not directly involve confrontation with the Police as an objective of the disorderly behaviour.

[10] The Judge endorsed a submission by the Crown in these terms:

... as the Crown Prosecutor aptly says, whatever the outcome here you people need to know that the citizens in Wairoa are thoroughly sick and tired of violent, loud, disorderly behaviour on the streets and that reaches a point where the limits of tolerance are well and truly reached when you start on the Police. It is bad enough to have this ongoing gang conflict in the district, but when you start taking on the Police in a suburban street and trying to face them down with violence, the limits of the Court’s patience are reached.

[11] The Judge considered that anything short of a sentence of imprisonment would not be an adequate response to the overall offending but did not consider any lengthy sentence of imprisonment was appropriate.

[12] In respect of Mr Turei, the sentencing Judge did not have a pre-sentence report available. That was because Mr Turei had failed to report to the Probation Office despite several attempts to contact him. The probation officer noted in a brief report to the Court that Mr Turei had a history of failing to comply with directions of the Court. The probation officer also advised that a community based sentence would not have been recommended due to Mr Turei’s history of non-compliance.

[13] The Judge had Mr Turei’s list of previous convictions which is substantial. Significantly, they include a conviction for unlawful assembly arising from the 2003 incident at Wairoa. On that occasion, Mr Turei was sentenced to five months imprisonment although that was said to be a concurrent sentence. It is not clear from the record of previous convictions what the other offending was. Mr Turei’s record includes numerous convictions for breaching bail, several convictions for breach of periodic detention and conviction in 2005 for breach of a sentence of community work.

Submissions for the appellant

[14] Mr Simperingham submitted that the circumstances of the current offending were less serious than the offending in 2003; the Judge failed to consider imposing a sentence of community work; the Judge had wrongly concluded that the driver of the vehicle managed to escape as a consequence of the actions of Mr Turei and his co-offenders; and that, in consequence, the sentence was manifestly excessive. Mr Simperingham submitted that a sentence of one months imprisonment should have been imposed.

[15] Mr Simperingham explained that this submission was made on the pragmatic basis that Mr Turei had already served one months imprisonment before being released on bail.

Discussion

[16] We are not persuaded the sentence was manifestly excessive. There was, in the circumstances, no prospect that a community work sentence could have been appropriate given Mr Turei’s previous conviction for unlawful assembly, his record of non-compliance with earlier community-based sentences, and his failure or refusal to co-operate with the probation officer in the preparation of a pre-sentence report.

[17] The maximum sentence for unlawful assembly is 12 months imprisonment. In the circumstances of this case, a sentence of two months imprisonment was at the

lower end of the range available to the Judge. We entirely agree with the view expressed by the sentencing Judge that anything less than a sentence of imprisonment would have been an inadequate response in the circumstances of this case.

[18] The police are entitled to expect a firm response from the Court when faced with disorder of this nature, involving as it did a display of hostility by offenders designed to thwart the police in the carrying out of their duty.

[19] For these reasons, we dismissed the appeal.

Solicitors:

Crown Law Office, Wellington