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Court of Appeal of New Zealand |
Last Updated: 13 July 2011
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CA414/2010
[2011] NZCA 305 |
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BETWEEN BRONSON TETINI PEKEPO
Appellant |
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AND THE QUEEN
Respondent |
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CA440/2010
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BETWEEN KARL NESTOR NATHAN
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 11 May 2011
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Court: Chambers, Venning and Courtney JJ
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Counsel: G W Calver for Bronson Pekepo
S Jefferson for Karl Nathan R J Collins for Respondent |
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Judgment: 5 July 2011 at 3 pm
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JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
CA440/2010
REASONS OF THE COURT
(Given by Chambers J)
A shot in the back
[1] On 24 February 2007 Wayne Tweeddale, the Vice-President of the Wanganui Hells Angels, was shot in the back as he rode his Harley Davidson motorcycle on State Highway 2 between Waipawa and Hastings. Hastings Police commenced an investigation. It quickly emerged that the Central Hawke’s Bay Mongrel Mob were probably behind the shooting. Police came across a text message which Allan Waa, President of the Hawke’s Bay Chapter, had sent on 24 February to Karl Nathan, one of the appellants before us, and Tawhiri Hone, to the effect that Hells Angels were heading in their directions and to “hit them”.
[2] The Crown case, as it ultimately emerged, was that shots were fired at Mr Tweeddale from a Honda Concerto driven by a 19 year old Mongrel Mob prospect, Mr Hone. With him in the car were his cousins Mr Nathan and Bronson Pekepo, the other appellant before us. Both Mr Nathan and Mr Pekepo were patched members of the Mongrel Mob. The Crown case was that it was Mr Nathan who fired two shots at Mr Tweeddale. Mr Pekepo’s role was one of encouragement and assistance. All the men in the car were charged with attempted murder.
[3] Mr Waa was charged with being a party to causing grievous bodily harm with intent to cause grievous bodily harm. The Crown did not charge him with attempted murder. It considered, despite the ultimate actions of those he commanded, that the order to “hit them” was not necessarily a command to kill. Mr Waa pleaded guilty. Asher J sentenced him to eight and a half years’ imprisonment for this and other offending.
[4] Mr Hone pleaded guilty to his charge. Andrews J sentenced him to six years’ imprisonment.
[5] Messrs Pekepo and Nathan pleaded not guilty. The Crown called Mr Hone as a witness at the preliminary hearing. He did not co-operate. He was declared hostile and his videotaped statements were admitted in evidence. Messrs Pekepo and Nathan were committed for trial on the basis of that evidence.
[6] The joint trial of Messrs Pekepo and Nathan took place in April last year before Miller J. The Crown called Mr Hone as a witness. The Crown expected he would once again prove unco-operative. The likelihood was that he would be declared hostile. The Crown’s intention then was to admit into evidence his prior statements, which implicated both Mr Pekepo and Mr Nathan. That is exactly what did happen at trial.
[7] Miller J was satisfied Mr Hone’s prior videotaped statements were reliable. He admitted them into evidence. In due course, the jury found both defendants guilty of attempted murder.
[8] Miller J subsequently sentenced both men to ten years’ imprisonment. He also ordered that both men were to serve, as a minimum period of imprisonment (MPI), the maximum period available in law, namely two-thirds of the sentence imposed.[1]
[9] Both men now appeal against their convictions. In addition, Mr Pekepo appeals against his sentence, on the basis that it was manifestly excessive given his lesser role in the offending.
Issues on the appeal
[10] Mr Calver, for Mr Pekepo, and Mr Jefferson, for Mr Nathan, submitted there were two issues on the appeals against conviction. When properly analysed, however, their submissions in fact raise three issues.
[11] The first is whether the Judge’s ruling, immediately after a voir dire, that Mr Hone’s videotaped statements to the police were admissible was correct.[2]
[12] The second issue is, even if the ruling was correct, whether a miscarriage of justice later occurred because of how matters concerning Mr Hone’s evidence panned out. At the close of the Crown case, both accused sought a discharge under s 347 of the Crimes Act 1961 on the basis that Mr Hone’s evidence did not proceed as the Judge had envisaged when delivering the admissibility ruling, in that Mr Hone had refused to co-operate not only with Crown counsel but also with defence counsel. The Judge declined the application to discharge.[3] The appeal is not brought from that ruling itself. But Messrs Calver and Jefferson refer to the Judge’s reasoning in that ruling to demonstrate error. Their submission is that the trial developed in such a way that they were denied the right to present an effective defence on behalf of Messrs Pekepo and Nathan.
[13] The third issue is whether the direction given by the Judge under s 122 of the Evidence Act 2006 was adequate in the circumstances. Section 122 provides that, where the Judge is of the opinion that any evidence given in the proceeding may be unreliable, the Judge may warn the jury of the need for caution in deciding whether to accept the evidence and in deciding the weight to be given to it. Miller J did give a warning under that section, but counsel contend it did not go far enough.
[14] Mr Pekepo also appeals against his sentence. Mr Calver submitted that, since no one contended Mr Pekepo was the shooter, his sentence should have been shorter than Mr Nathan’s.
[15] We consider the issues in turn.
Was the Judge right to rule Mr Hone’s prior statements admissible?
[16] The trial opened on 21 April last year. Mr Collins, the Crown Solicitor at Napier, led for the prosecution. (Mr Collins also appeared before us on the appeal.) After three briefs of evidence were read by consent and evidence had been given orally by Detective Paul Buckley, Mr Collins called Mr Hone. It became obvious very quickly that Mr Hone’s trial evidence was to be as unhelpful to the Crown as his evidence had been at the preliminary hearing. After the examination had proceeded for a short time, Mr Collins advised the Judge he wished to make an application. The Judge sent the jury out. Mr Collins then sought an order under s 94 of the Evidence Act 2006 declaring Mr Hone hostile and giving Mr Collins permission to cross-examine him. The nature of the cross-examination was to be the playing of Mr Hone’s videotaped statements to the police in which he had implicated the accused.
[17] There was no dispute about Mr Hone’s hostility to the Crown. The point at issue was whether Mr Collins should be given permission to cross-examine Mr Hone by putting to him his videotaped statements which were inconsistent with the exculpatory evidence he was now attempting to give in the accused’s favour. In order to answer that question, the Judge, with the consent of all counsel, decided to have Mr Hone’s evidence tested in the absence of the jury. In taking this course, the Judge followed the suggestion made by the Supreme Court in Morgan v R,[4] the leading authority in this area. The purpose of the voir dire was for the Judge to assess whether the videotaped statements should be excluded under s 8(1)(a) of the Evidence Act. The relevant part of s 8 reads as follows:
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will –
(a) have an unfairly prejudicial effect on the proceeding; ...
(2) In determining whether the probative value of evidence is outweighed by the risk the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
[18] Two witnesses gave evidence on the voir dire: first, Mr Hone, and then Detective Todd Lee, who had interviewed Mr Hone in the two videotaped statements. The purpose of his evidence was to establish the circumstances in which the videotaped statements came to be made and to provide evidence that no inducements had been given nor threats made to Mr Hone prior to his agreeing to make the statements.
[19] The Judge declared Mr Hone to be hostile for the purposes of s 94. He gave the Crown permission to cross-examine Mr Hone and to put to him the videotaped statements. The first issue on the appeal is whether he was right to give such permission. Should the videotaped statements have been excluded under s 8(1)(a)?
[20] The Judge considered the statements were reliable. First, there was no doubt the statements had been made, which distinguished them, in the Judge’s mind, from many cellmate confessions, where generally there is significant dispute as to whether the alleged confession was even made. The Judge noted that the statements had been made in circumstances suggesting they were reliable, legal advice having been offered and rights explained.[5]
[21] Further, the statements were corroborated in many particulars. As well, the Judge was satisfied that no threats or inducements had been offered.[6] He accepted Mr Hone’s account as to who was involved had varied at times, but the Judge considered there was “persuasive evidence” that Mr Hone had decided to come clean in the end when “he believed the Mob had abandoned him”.[7]
[22] The Judge considered whether Mr Hone could be effectively cross-examined. Although he was manifestly hostile to the Crown on the voir dire, his attitude at that time towards the defence was quite different. The Judge said:
[15] ... He was able to remember details. He accepted that he would be able to tell defence counsel which parts of the statement were false after viewing it. While the task of defence counsel was not easy, requiring that the witness both resile from his police statement and give a credible account to the jury, it could be done.
[23] Mr Calver challenged only two parts of the Judge’s reasoning. First, he submitted the Judge was wrong to find the statements reliable. Secondly, he submitted there was no other evidence supporting Mr Hone’s contention that Mr Pekepo had been in the car. Mr Jefferson attacked the reasoning solely on the first ground. There was other evidence that Mr Nathan had been in the car.
[24] We do not accept those submissions, essentially for the reasons advanced by Mr Collins. First, the Judge’s reasons should be evaluated cumulatively, not in isolation. The nature of the statements and the circumstances in which they were given must be part of any assessment of the statements’ reliability. Those attributes are not to be ignored, as effectively they were in appellate counsel’s submissions.
[25] Secondly, we consider the Judge entirely justified in finding the statements reliable. The background to the first videotaped statement, made on 19 March 2007, was this. Detective Lee first spoke to Mr Hone about the shooting on 7 March. Mr Hone denied any involvement but said he was with Mr Pekepo on the night of 24 February.
[26] The next day the police seized Mr Hone’s vehicle pursuant to a search warrant. At that time, Mr Hone repeated that he had had no involvement in the shooting. He and his partner, Sarah Higgins, both maintained that he had been in the company of Mr Pekepo on 24 February. The police put to him on this occasion that his statement the previous day that he had also been with Hohepa Renata on the night of 24 February was untrue. Mr Hone then changed his story and said that the other person present was one Chester Valentine.
[27] From 8 March, Mr Hone knew he was the subject of close police interest. The police had his car. Other than his uncle, Ben Pekepo, telling him the police could detect gunshot residue and one visit from Mr Waa, Mr Hone appears to have received no contact, help or comfort from the Mongrel Mob fraternity. Detective Lee came to see him again on 19 March. The detective put to him that he had lied about the existence of Chester Valentine. He then confessed to his involvement and agreed to give the videotaped interview. Detective Lee gave the following account of what happened at the police station prior to the recording of the first videotaped interview. The detective was not cross-examined as to this account:
During our initial conversation [on 19 March], he [Mr Hone] disclosed to me that the trigger man was the accused, Karl Nathan, and that he was going to tell me the truth and that there would be no more lies and that now that he had made that decision, he wanted to speak with his partner, the previous witness, Sarah Higgins, who was at the time making a statement to Detective James in the same station. At that point, I took him through to that room and he walked into the room and spoke to his partner, Sarah Higgins. He told her, “It’s all right, baby, I’m going to tell the truth. You don’t need to lie for me.” At that point, she burst into tears and they embraced each other. She told him that he was doing the right thing and he broke down and started to cry as well.
[28] Many parts of Mr Hone’s videotaped statements were consistent with matters which were not in dispute at the trial. That supports the statements’ reliability. In addition, there was other evidence that supported Mr Hone’s videotaped statements that Mr Nathan was in the car with Mr Hone that evening. Among that evidence was the fact that Mr Nathan was captured on CCTV footage in the Waipukurau Mobil Service Station with Mr Hone shortly after the shooting.
[29] There is less external evidence that Mr Pekepo was also present, but the following facts are relevant. First, Mr Pekepo was Mr Hone’s cousin and lifelong friend. Secondly, Mr Hone was consistent in all his pre-trial statements that Mr Pekepo was with him on the night of 24 February. Thirdly, on 8 March 2007, Ms Higgins said Mr Pekepo was in the company of Mr Hone that night. Finally, there was evidence, admittedly not of much weight, from another witness, Sam Tupaea, who said he thought Mr Pekepo was in the Honda Concerto that night with Mr Hone.
[30] For these reasons, we agree with the Judge that the videotaped statements could be regarded as reliable. Given all the other factors the Judge mentioned, we are quite satisfied that he was right not to exclude these statements under s 8(1)(a). We consider that the Judge correctly analysed the situation in the manner outlined by the Supreme Court in Morgan.[8]
[31] The first ground of appeal accordingly fails. The Judge was right to rule Mr Hone’s prior statements admissible.
Did a miscarriage of justice later occur because of how matters concerning Mr Hone’s evidence panned out?
[32] As we have said,[9] the Judge, when he made the admissibility ruling, considered that defence counsel were going to be able effectively to cross-examine Mr Hone. That is because, on the voir dire, Mr Hone had demonstrated that, while clearly hostile to the Crown, he was prepared to be very helpful to the defence.
[33] Messrs Calver and Jefferson submitted, however, that events panned out differently at trial from what the Judge had expected. Their argument is really summed up by this passage from Mr Jefferson’s written submissions:
Mr Hone’s refusal to answer questions put by the defence precluded realistic cross-examination and Mr Hone’s evidence was thereby unfairly prejudicial.
[34] They submitted, as they had on the s 347 application, that this failure to be able to cross-examine effectively had removed one of the legs on which the admissibility ruling had relied. In retrospect, therefore, the admissibility ruling had turned out to be wrong (even if right originally), with the consequence that the trial had become unfair. Without Mr Hone’s videotaped statements, the Crown had no chance of proving its case beyond reasonable doubt. Accordingly, both accused should have been discharged.
[35] Miller J, in the s 347 ruling, accepted that Mr Hone had proved “less co-operative with defence counsel before the jury than he had been in the voir dire”.[10] The Judge nonetheless concluded that the accused had not been “denied the right to present an effective defence” for four reasons.[11] Messrs Calver and Jefferson challenge the Judge’s reasoning.
[36] The Judge’s first reason for concluding the trial had been fair was that “defence counsel [had] established clearly that Mr Hone was not a reliable witness, and specifically that his statements to the police [contained] lies”.[12] Both Mr Calver and Mr Jefferson attacked this reasoning. They said that Mr Hone’s unreliability should have led to the case being withdrawn from the jury. With respect, counsel have missed the point the Judge was making. Certainly Mr Hone had lied. But that did not make the trial unfair. On the contrary, Mr Hone’s recantation had enabled defence counsel to sail with a tailwind. The issue was, however, whether the recantation was truthful. The recantation clearly enabled defence counsel “to offer an effective defence”. That is to say, they were able to submit to the jury either that Mr Hone’s courtroom denials of Messrs Pekepo’s and Nathan’s involvement should be accepted or, alternatively, that Mr Hone was so unreliable that no weight should be accorded to any of his evidence. The Crown rejoinder, of course, was that the recantation was contrived. The Crown submitted to the jury that the defence could not provide a logical basis as to how and why the videotaped statements were lies. In our view, the Judge’s first reason holds good.
[37] The Judge’s second reason was that relevant police witnesses and Ms Higgins were able to be, and were, cross-examined about the reasons why Mr Hone might have felt pressured to falsely name the accused.[13] Messrs Calver and Jefferson accept this was right, but submit it was irrelevant. Only Mr Nathan could explain why he had falsely named the accused, and he would not answer questions concerning that. With respect to counsel, that is not an answer to this reason the Judge gave. We deal with the topic counsel raised in a moment when discussing the Judge’s third reason. The fact is defence counsel were able to cross-examine police witnesses and Ms Higgins effectively and were able to get them to concede that Mr Hone had lied. This was all part of presenting an effective defence. That the defence was not accepted by the jury does not mean that a defence had not been able to be put.
[38] The Judge’s third reason for concluding the trial had been fair was that Mr Hone had given evidence exculpatory of the accused. The Judge added:[14]
While it would have been helpful had he been more co-operative, counsel did not identify any specific propositions that they wanted to establish through him, but could not.
[39] Mr Calver accepted that Mr Hone had given evidence exculpatory of Mr Pekepo. That being so, Mr Calver submitted, the case should not have gone to the jury, since Mr Hone was the only witness implicating Mr Pekepo. With respect, that submission misses the point for the same reason Mr Calver’s submission on the Judge’s first reason misses the point. This is not an appeal from the s 347 ruling. This is not an appeal on the basis that the verdict of the jury should be set aside on the ground that it was unreasonable.[15] This is an appeal on the basis that a miscarriage of justice occurred because counsel were not able to present an effective defence owing to a witness’s unwillingness to answer questions. Mr Calver did not tackle that point. We return to it shortly.
[40] Mr Jefferson also accepted that Mr Hone had given evidence exculpatory of the accused. His complaint was, however, that Mr Hone’s “refusing to answer questions created unfair prejudice to Mr Nathan by limiting the jury’s ability to fairly evaluate Mr Hone’s reliability in respect of naming Mr Nathan”. The jury had sat through two and a half hours of videotaped interviews of Mr Hone detailing his account of events and implicating Mr Nathan. Mr Jefferson’s cross-examination, on the other hand, had continued for only ten minutes “before Mr Hone refused to answer any more questions”.
[41] Mr Collins took us carefully through both defence counsel’s cross-examinations. He was able to show us that the Judge’s conclusion that counsel had not been able to identify any specific propositions they wanted to establish through Mr Hone but could not was correct. In fact, they did get answers to their questions, and those answers were favourable to the accused. Mr Hone did give an explanation about why he had named the accused. In effect, he was under pressure because he knew the police had his car and that his partner’s fingerprints were on the steering wheel. He alleged the police had told him that Ms Higgins would “be facing a long time in Arohata Prison”. The gist of his evidence was that he had made up some names so as to get his partner “off the hook”. Whether that was a plausible explanation was, of course, a matter for the jury. But it was the best he could presumably come up with in the circumstances.
[42] Mr Collins submitted that in fact it suited defence counsel very well for the cross-examination to appear to be cut short for non-co-operation. They had established all that they realistically could expect to establish with Mr Hone. First, he now exculpated the accused. Secondly, he was an unreliable witness, who admitted to having little regard for the truth. Thirdly, he had given an explanation of sorts as to why he had falsely named the accused as being involved.
[43] Finally, the Judge noted that it was open to the accused to call evidence. Counsel submitted that this reason offended against “the right to silence”. That again misses the point the Judge was making. He was looking to see whether Mr Hone’s performance in the witness box had undermined the accused’s ability to present an effective defence. All the Judge was saying was that, if the accused had been falsely implicated by Mr Hone, they were able to produce alibi witnesses. The Judge noted, for instance, that Mr Pekepo had given an alibi notice, but had elected not to call the witnesses.[16] Mr Hone’s evidence did not preclude an alibi defence if the defence wanted to pursue that.
[44] We accept the Judge’s reasoning. We do not consider that Mr Hone’s reluctance as a witness led to the trial becoming unfair. The videotaped statements remained admissible; the slightly changed circumstances from what was anticipated at the time of the voir dire did not render the earlier admissibility ruling inappropriate. The Judge was right not to call a mistrial or to discharge the jury. The second ground of appeal also fails.
Was the Judge’s direction under s 122 of the Evidence Act adequate in the circumstances?
[45] Messrs Calver and Jefferson accepted, as they had to, that the Judge had given a warning under s 122 of the Evidence Act. But Mr Calver submitted the warning was “inadequate” and that it “could hardly be described as a strong warning”.
[46] We begin our discussion by setting out what the Judge in fact said to the jury in his summing-up:
[34] The defence case, by way of overview, is that the shooting happened, undoubtedly, although not necessarily just as described in Mr Hone’s statement or in the police case, and that explains the forensic evidence, such as the gunshot residue. But the Crown cannot satisfy you beyond reasonable doubt that these two accused were there or that they played the roles described by Mr Hone in his police statement. The Crown’s case, on this critical point, depends almost entirely on the statement of a wholly unreliable witness.
[35] And it is undoubtedly the case that the Crown case does depend heavily on the statement of Mr Hone. That statement is evidence for you to consider, even though he now disowns it. You heard the statement and you heard him say it was not true; you heard him explain why he made the statement and why he named these two accused. It is for you to decide whether to accept that, or any part of it, or what weight to give to the statement, or the evidence that he gave here before you. But I do need to caution you about it.
[36] Mr Hone is, by his own admission, an accomplice in this crime. He has pleaded guilty and been sentenced. The fact that he’s been convicted and sentenced is not evidence against the accused, and I want to emphasise that, but his statement is evidence. You will need to think carefully about it and the direct conflict between what he said here and what he said to the police. There is absolutely no doubt that he has lied; the real question is when. And when a witness has lied that can obviously affect your view of his credibility; that is whether you can rely on anything that he says.
[37] You will bear in mind that Mr Hone may have had an incentive to lie to the police. In particular, it was suggested that he may have been led to implicate the accused by expectation of bail or a reduced sentence, or fear that his partner would be charged – and the last of those things assumed particular importance in the evidence. It may be that he’s now unwilling to name the real offenders because to do so would be to nark, contrary to the gang culture. On the other hand, the Crown says that he eventually told the truth because Mr Waa had first got him involved in this very serious crime, because he knew that the police would link him to the crime through his car, and because it dawned on him that Mr Waa had abandoned him. You’ll have to evaluate all of that. You can rely on his evidence but it’s sensible for you to look for other evidence independent of him that tends to prove or disprove the version of events that you have heard.
[47] The first point we make is that neither Mr Calver nor Mr Jefferson complained about this warning at the end of the summing-up or sought any additional comment to be made.
[48] Mr Calver submitted that the Judge could have made the following points concerning Mr Hone’s reliability: [17]
(a) the fact that the statement to the police was not made on oath;
(b) Mr Hone’s reluctance to be sworn before giving evidence; and
(c) Mr Hone’s distinct lack of co-operation not only to the Crown but also to counsel for the accused, which made it extraordinarily difficult to effectively test the veracity of the statements to the police.
[49] The first point to be made with respect to these submissions is that the Act does not require any particular form of words to be used.[18] We accept the Judge could have mentioned that the videotaped statements were not made on oath, but that would have added little. One thing was crystal clear: Mr Hone had little respect for oath-taking. It must have been obvious to the jury that all of Mr Hone’s evidence, whether given out of court or in court, had to be looked at sceptically. That was exactly what the Judge was saying in the warning he gave.
[50] As to Mr Calver’s second point, Mr Hone’s reluctance to be sworn would simply have cast doubt on the evidence given in court. But that was the evidence on which the accused relied, because it was that evidence which, if accepted, exculpated them. We fail to see how highlighting that aspect would have assisted the defence.
[51] As to the third point, we have already observed that Mr Hone’s lack of co-operation, while undoubtedly hindering the Crown, did not in fact hinder the defence. The defence got from Mr Hone all they could realistically expect, namely a recantation of his pre-trial assertions that Messrs Pekepo and Nathan were with him on the night of the shooting. Mr Calver did not articulate any proposition that he wanted to get from Mr Hone but was unable to achieve.
[52] We do not accept the Judge’s direction under s 122 was inadequate. This ground of appeal also fails.
[53] All grounds of appeal against conviction have failed. Both appeals against conviction are therefore dismissed.
Was Mr Pekepo’s sentence manifestly excessive?
[54] The Judges sentencing the culprits in this offending, namely Messrs Waa, Hone, Pekepo and Nathan, all adopted a ten year starting point. We have no doubt that that starting point was appropriate for Messrs Waa, Hone and Nathan. Mr Waa was the President of the Hawke’s Bay Chapter of the Mongrel Mob and was the one who gave the young prospects the instructions to “get” Mr Tweeddale and the other Hells Angel who had had the temerity to enter Mob territory. Mr Hone was the driver of the Honda Concerto who had chased the motorcyclist at very high speed. And Mr Nathan had the gun and was the shooter. Asher J was correct to pitch Mr Waa’s starting point at ten years and Andrews and Miller JJ were right to conclude that the involvement of Messrs Hone and Nathan were on a par and of equal culpability to Mr Waa’s.
[55] Mr Calver submits, however, that Mr Pekepo’s involvement was secondary and should have attracted a lower starting point. At sentencing, the Crown had agreed with that suggestion. Miller J had referred to Mr Collins’s submission and had described it as “powerful”.[19] The Judge said, however, somewhat enigmatically in response:
But I take a more malign view of Mr Waa’s behaviour than did Asher J, who sentenced him. Parity of treatment with him leads me to adopt a starting point of ten years for both of you.
[56] The Judge found that “Mr Pekepo’s encouragement was very active indeed; he not only urged Mr Nathan repeatedly to get Mr Tweeddale but swapped places in the car between shots to facilitate that”.[20]
[57] We acknowledge immediately the advantages a trial judge has when it comes to assessing the respective culpability of participants in a group attack. We have no doubt that Mr Pekepo did provide active encouragement both to Mr Hone to drive faster and to Mr Nathan as the prospective shooter. But it surely cannot be denied that, in all probability, the incident would have occurred even if Mr Pekepo had not been present. Messrs Hone and Nathan were, after all, under orders from Mr Waa to “get them”. Mr Pekepo had not received any such orders. We find it impossible to accept that Mr Pekepo’s actions rendered him equally culpable with the driver, whose actions made the shooting possible, and with the shooter himself. In our view, the Crown’s submission at sentencing was sound and should have been adopted the Judge.
[58] We are somewhat puzzled by the passage in the sentencing notes cited above at [55]. Even if the Judge did take “a more malign view of Mr Waa’s behaviour than did Asher J”, we fail to see how that is an answer to the proposition advanced both by Mr Calver and by Mr Collins at sentencing that Mr Nathan’s behaviour was more culpable than Mr Pekepo’s. We might also add that we have no doubt that Mr Waa’s behaviour was more culpable than Mr Pekepo’s. Mr Waa was a much older man in a position of authority, at least over Messrs Hone[21]nd Nathan.21
[59] We accept that this Court has frequently said that fine distinctions should not be drawn in group situations. At the same time, where one participant’s role is clearly secondary, that should be recognised in the starting point adopted.
[60] In the circumstances, we consider the starting point for Mr Pekepo should have been eight and a half years’ imprisonment. We agree with the Judge that there were no mitigating factors. That therefore becomes the substituted sentence. It follows we allow the appeal against sentence.
[61] Mr Calver did not direct any submissions on the MPI. We consider the Judge was justified in fixing MPIs for Messrs Pekepo and Nathan at two-thirds. Given that we have reduced Mr Pekepo’s headline sentence, it is also necessary to adjust his MPI. We fix Mr Pekepo’s MPI at five years, eight months.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Nathan and Pekepo HC Napier CRI-2008-020-4688, 11 June 2010 [“Sentencing notes”].
[2] R v Pekepo
and Nathan HC Napier CRI-2008-020-4688, 21 April 2010 (Reasons given 26
April 2010) [“the admissibility
ruling”].
[3]
R v Pekepo and Nathan HC Napier CRI-2008-020-4688, 26 April 2010
[“the s 347
ruling”].
[4]
Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508 at
[42].
[5] The
admissibility ruling at
[9].
[6] At
[13].
[7] At
[13].
[8] At
[40]–[42].
[9] At [22]
above.
[10] At
[3].
[11] At
[6].
[12] At
[7].
[13] At
[8].
[14] At
[9].
[15] Crimes
Act, s
385(1)(a).
[16] At
[10].
[17] In effect,
only Mr Calver presented submissions on this question. Mr Jefferson was content
to submit solely that “the judicial
accomplice warning given could not and
did not remedy the unfair prejudice” arising from what was said to be
“the absence
of realistic cross-examination of Mr
Hone”.
[18]
Evidence Act, s
122(4).
[19]
Sentencing Notes at
[18].
[20] At
[16].
[21] We are uncertain of Mr Waa’s control of Mr Pekepo, as Mr Pekepo was part of another Mongrel Mob Chapter presided over by his father.
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