Merriman v R [2011] NZCA 248 (2 June 2011)

Last Updated: 14 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA857/2010 [2011] NZCA 248

BETWEEN JERRI MERRIMAN Appellant

AND THE QUEEN Respondent

Hearing: 26 May 2011

Court: Randerson, Gendall and Allan JJ

Counsel: M J Hine for Appellant N F Flanagan for Respondent

Judgment: 2 June 2011 at 2.30 p.m.

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Gendall J)

[1] This is an appeal against a sentence of five years six months’ imprisonment imposed upon the appellant in the High Court at Rotorua on 3 December 2010 on a count of injuring with intent to cause grievous bodily harm.[1] At the same time, he was sentenced to concurrent terms of 18 months’ imprisonment on counts of injuring with intent to injure and participating in an organised criminal group. The appellant pleaded guilty, although not until 13 months after the charges were laid.

Background

[2] The appellant was an associate of the Tribesmen motor cycle gang which, over recent years, had been engaged in violent and bitter clashes with a rival gang, the Mongrel Mob, in the Murupara area. The appellant’s crimes occurred in the course of a continuation of that violence.
[3] On 26 August 2009 a number of members and associates of the Mongrel Mob were at an address in Murupara. Members of the Tribesmen gang drove past the address over the course of the day, offering verbal taunts and abuse, throwing bottles and other items, and challenging the occupants to fight. The invitation was not accepted.
[4] At about 9.00pm that day a member of the Tribesmen gang drove past the address and shone a spotlight into it for a few moments. It was to be a signal for a large number of Tribesmen gang members and associates, congregated nearby, to attack the address. The appellant was a part of that group which stormed the property to attack those who were present. The appellant had an axe handle and was one of a group of men who ran towards an associate of the Mongrel Mob, Mr Wiremu Hiko. He was struck with weapons, which included bats and axe handles, falling to the ground. He was then repeatedly struck with the weapons about the head, back and arms for several minutes. The appellant was observed holding an axe handle and striking the victim while he was on the ground.
[5] The appellant and other members of the gang also attacked another Mongrel Mob associate, Mr M Taoho. He was chased by the Tribesmen group and hit with bats and other weapons, and struck with a piece of wood on the back of the head.
[6] Mr Hiko suffered wounds to his head and hand, three broken fingers and swelling and tenderness to his back and shoulder. Mr Taoho suffered a significant cut to the top of his head which required extensive suturing, bruising and grazing over his body.
[7] The appellant was then aged 19 years 11 months (being aged 21 at the time of sentencing) and an associate of the Tribesmen gang, although he had earlier shown an allegiance to the rival Mongrel Mob. He had 15 previous convictions, including for robbery, wounding with intent to cause grievous bodily harm, assault, and assault with intent to rob, for which he had been sentenced to terms of imprisonment.

Sentencing remarks

[8] When sentencing the appellant, Duffy J identified four R v Taueki[2] factors which existed, being the use of weapons, attacks to the head, multiple attackers and the offending being premeditated. This was, she said, a serious attack where a group of people attacked occupants at a property with weapons, such as bats and an axe handle. Her Honour recognised that she had to adjust the Taueki sentence bands because they were fixed in relation to wounding with intent to cause grievous bodily harm, whereas in the present case the lead charge was injuring with intent to cause grievous bodily harm.
[9] Duffy J took as a starting point a sentence of four years six months’ imprisonment and no issue is taken with that. There was an uplift to the lead sentence of 18 months, the Judge said, to take into account the aggravating features of the two other crimes, serious in themselves. Her Honour regarded it as a further aggravating factor that the offences had occurred when the appellant was subject to prison release conditions and added a further uplift of six months for that.
[10] Duffy J then turned to factors that she said were mitigating. She noted that the appellant accepted responsibility, although in relation to the second attack on Mr Taoho it was only on the basis that he said he was a party rather than a principal offender. Taking into account the age of the appellant and remorse that he had expressed she allowed a discount of ten per cent and a further five per cent for the guilty pleas. As a consequence an end sentence of five years six months’ imprisonment was imposed.
[11] The grounds advanced on behalf of the appellant in the notice of appeal, included the contention that the sentence did not reflect the degree of culpability of the appellant, and failed to provide the “least restrictive” outcome. But, in his oral argument, Mr Hine accepted that the only matters upon which he could advance any challenge to the sentence were the age of the appellant at the time of his offending and that the uplift of 18 months for the concurrent two counts was excessive. He did not pursue the argument that the appellant should have been treated more leniently because of his claim that he was a secondary party to the acts of others. Clearly, all involved in the group attack on the second victim, Mr Taoho, with the use of weapons, were equally culpable irrespective of being described as principals or parties.

Discussion

[12] This was a brutal attack by a group of gang members all eagerly participating in violent assaults, armed with weapons and intending to injure, as they did, rival gang members. The appellant had a prior history for violent offending and the pre-sentence report indicates he was regarded by the Tribesmen gang as “particularly useful in a fight”. As a consequence, no doubt, he was persuaded to change his gang allegiance.
[13] Although only 19 years 11 months at the time of the crimes, his actions could not be described as youthful indiscretions so as to entitle him to any significant concession for age. It is frequently the case that men in their late teens and early 20s are engaged in serious gang-related violent offending, often at the instigation, and urged on, by senior gang members.
[14] Section 85(4)(a) of the Sentencing Act 2002 is statutory recognition of the totality principle, and where concurrent sentences are to be imposed, as was the case here, the sentence for the most serious crime must be at a level which reflects the totality of the offending. Each sentence is imposed for a crime which forms part of a series and not for an isolated incident, and the lead sentence is not to be viewed separately. It is long recognised that offenders should understand that the more crimes that they commit in the course of a series of events, the more severe the aggregate sentence is likely to be. The ultimate question is whether the effective sentence imposed properly reflects the totality of the offending.[3]
[15] In this case Duffy J assessed the seriousness of the offending by reference to all its component parts and in a reasoned and careful exercise she accurately assessed the appellant’s total culpability. He participated in a serious gang attack using a weapon to set upon two victims in two separate instances.
[16] The question on appeal is whether or not the lead sentence is manifestly excessive. That has to be determined by looking at the sentence actually passed rather than a minute analysis of the process by which the sentence was reached. The starting point was entirely appropriate and so too was the 18 months’ uplift for the aggravating features. The total discount of 15 per cent given for mitigating personal features was in fact somewhat generous given the appellant’s history for violent offending and the fact that the guilty plea was very late.
[17] This was not a sentence that could be challenged as dealing a “crushing blow” to a young man. He is described in the pre-sentence report as having a medium risk of reoffending, which was said to be rising, and prior convictions involving serious violence.
[18] The end effective sentence of five years six months was entirely appropriate and could not be said to be manifestly excessive.

Result

[19] The appeal is dismissed.

Solicitors:
Families Matter Law Practice, Rotorua for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Merriman HC Rotorua CRI-2009-063-4920, 3 December 2010.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
[3] R v James CA140/98, 10 August 1998.