Te Kahu v R [2012] NZCA 473 (16 October 2012)

Last Updated: 23 October 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA147/2012 [2012] NZCA 473

BETWEEN GLENN JUNIOR TE KAHU Appellant

AND THE QUEEN Respondent

CA399/2012

AND BETWEEN JEREMY DANIEL MITA Appellant

AND THE QUEEN Respondent

Hearing: 9 October 2012

Court: Stevens, Chisholm and Venning JJ

Counsel: A J S Snell for Appellant Te Kahu A Malik and A F Mclean for Appellant Mita D J Boldt for Respondent

Judgment: 16 October 2012 at 10.00 am

JUDGMENT OF THE COURT

1. In the case of Mr Mita, an extension of time to bring the appeal is granted.
2. The appeals against sentence by Mr Te Kahu and Mr Mita are both dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The appellants, Mr Te Kahu and Mr Mita, both entered pleas of guilty to a single charge of participation in an organised criminal group under s 98A of the Crimes Act 1961. The charge arose out of a violent confrontation between members of the Mongrel Mob in Wairoa on 10 August 2010. Both men were sentenced in the High Court by MacKenzie J to three years’ imprisonment.[1] They now appeal against that sentence on two grounds: first, that the Judge erred in setting the starting point and second, that the Judge failed to take into account relevant mitigating factors.
[2] As the elements of the charge are important to the disposition of the appeal we set out below the amended charge from the indictment to which guilty pleas were entered:

THE SAID CROWN SOLICITOR further charges that ... together with Rangi Tamati, Alexander Tamati, Sovite Sua, Wayne Hema, Ronald Rigby, Harry Minhinnick, Christopher Turei, and Claude Edwards on the 10th day of August 2010 at Wairoa, did participate in an organised criminal group, namely the Mongrel Mob, each knowing it was an organised criminal group and was reckless as to whether his conduct may contribute to the occurrence of any criminal activity, and was reckless as to whether the criminal activity may contribute to achieving the group’s particular objective.

[3] Mr Mita’s appeal was filed late. The Crown does not oppose an extension of time. We grant an extension of time to bring the appeal.

Factual background

[4] The background to the violent confrontation between the rival groups is conveniently set out in the summary given by MacKenzie J in his sentencing notes:

[2] The events of the morning of 10 August had their origins in a long standing leadership dispute within the Mongrel Mob Wairoa. The immediate catalyst was a fracas which developed at the Mongrel Mob pad on the afternoon of 9 August. There was a confrontation between Rangi Tamati and Claude Edwards on one side, and Kelly Gemmell, Saul Waihape and Vincent Monika on the other. A fight developed. Rangi Tamati’s patch was removed. He left, making clear his intention to return.

[3] Messrs Gemmell, Waihape and Monika anticipated a retaliation and made preparations to meet it. They obtained arms and ammunition and returned to the pad. The three of them, with others, spent the night at the pad. Early the following morning, they were joined by others, and there were then seven people inside the pad: They were armed with a .22 calibre pistol, a 20 gauge pump action shotgun and a 12 gauge double barrel sawn-off shotgun.

[4] Rangi Tamati made preparations for a retaliation. Early on the following morning, Tuesday, 10 August, a group of at least 17 Mongrel Mob members or supporters from Wairoa and Napier arrived in the backyard of the Mongrel Mob pad. They were armed with at least five weapons: a 7.65mm semi automatic pistol; two semi automatic .22 rifles; one bolt action .22 rifle; and a cut down pump action 12 gauge shotgun.

[5] A gunfight ensued. At least 25 shots were fired. The ESR firearms expert was able to identify trajectories of 21 shots fired from the outside to the pad, and four shots from inside the pad. Those inside fired the first shots. One of those was a shot from the .22 pistol fired by Mr Gemmell into Mr Edwards’ leg. Fire was returned from outside. In the course of the exchange of fire, Mr Gemmell was hit in the face by a shotgun shot. He was seriously wounded. Mr Edwards was hit again by some shotgun pellets. Mr Gemmell left the pad by a side door to seek medical help. Mr Edwards also left the scene but did not go to hospital to seek medical help until the next day.

[6] Mr Monika contacted police. They responded first from Wairoa, and then with further resources, including the Armed Offenders Squad, from Gisborne. A total of 23 men were arrested at or near the pad and subsequently charged. ...

[5] Mr Mita and Mr Te Kahu were part of the group of people who accompanied Rangi Tamati to the Mongrel Mob pad as part of a band of supporters vowing revenge. Neither were implicated in any actual violence, nor were they involved in the planning and preparation of the incident.

Entering of guilty pleas

[6] There were three groups of participants involved in the 10 August confrontation that required to be sentenced. The first group comprised those who were present in the Mongrel Mob pad following the despatching of Rangi Tamati. They obtained firearms and fortified the pad against the anticipated retaliation. The second group comprised Rangi Tamati and others who returned to the pad and fired shots at those inside. The third group, of which the appellants and six others were part, stayed outside the pad but lent weight to Mr Tamati in numbers. All those who were sentenced faced a lead charge of participation in an organised criminal group under s 98A of the Crimes Act.[2]
[7] The trial of those in the third group started on 28 November 2011. The trial of the first group had taken place earlier. The trial of the second group overran its scheduled length and the jury were still deliberating when the third trial began. The indictment originally faced by the appellants alleged that each participant either “[knew] his conduct contributed to the occurrence of any criminal activity or was reckless as to whether his conduct may contribute to the occurrence of any criminal activity”, and either “[knew] that the criminal activity contributes to achieving the group’s particular objective or was reckless as to whether the criminal activity may contribute to achieving the group’s particular objective”. This wording mirrored the two available mental elements for the offence in s 98A(1)(b) and (c) involving participating in an organised criminal group.[3]
[8] On the second day of the third trial, the second trial concluded. The Crown failed to prove any specific charge against all of the accused in that trial. This caused the Crown to withdraw the specific charges in the third indictment. It also led to negotiations between counsel as to the wording of the s 98A charge, as a result of which the Crown amended the indictment so that it only referred to each accused being reckless as to whether his conduct may contribute to the occurrence of any criminal activity and reckless as to whether the criminal activity may contribute to achieving the group’s particular objective.[4] All the accused in the third category – including both appellants – then entered pleas of guilty to this amended charge.

Sentencing of the third group

[9] At the outset, MacKenzie J rejected any contention that the members of the third group had arrived at the pad seeking a peaceful resolution of the matter in dispute. The Judge was satisfied on the evidence that all of the accused had the requisite mental element for the offending. The Judge said:[5]

... Having heard the evidence at the first two trials, I am satisfied that all of those in the outside group came there at the behest of Rangi Tamati, or another, and in particular Alexander Tamati, intending to attack those inside the pad, and prepared to use the weapons which one or more of those in the outside group, who cannot be identified, had brought with them. I am satisfied on the evidence that all of those in the outside group must either have known, or been reckless in not knowing, that weapons were present, and likely to be used.

[10] The Judge then explained his approach to sentencing:

[12] I consider that none of you was actively involved in the planning or preparation for this incident. Your culpability lies in lending weight of numbers to the confrontation. You are to be sentenced on the basis that you were reckless as to whether, rather than knowing that, your conduct may contribute to the occurrence of any criminal activity and as to whether the criminal activity may contribute to the objectives of the group. There is no evidence to establish any active part by you in the events, beyond your presence as a member of the group. Counsel for the Crown has, with the knowledge of the sentencing today, submitted that there is nothing to suggest that your involvement, or the involvement of any of you, exceeds the level of that of Mr Minhinnick and Mr Sua [these were others who also accompanied Rangi Tamati to the pad]. I agree with that assessment and the starting point which I have adopted is consistent with the starting point which I have adopted [in regards to Mr Minhinnick and Mr Sua], having regard to their limited role. That reflects the point which all your counsel have made that you are to be sentenced on the basis of recklessness rather than knowledge. In the case of the other offenders the state of their knowledge was, in the light of the charge they face, either knowledge or recklessness. As I have indicated I consider that your level of culpability is to be assessed at the same level of that of Mr Minhinnick and Mr Sua. This is not a case where fine distinctions can be made.

[11] On that basis, the Judge considered that a starting point of three and a half years was appropriate. As all the accused had pleaded guilty to an amended charge at the first possible opportunity, he allowed a discount of six months (close to 15 per cent). The Judge then considered the aggravating and mitigating factors relevant to each accused.
[12] In the case of Mr Te Kahu, the Judge considered that his previous many convictions did not warrant an uplift, although he did not apply any discount.[6] For Mr Mita, the Judge similarly noted the appellant’s previous convictions for violence but did not apply an uplift. The Judge expressly declined to apply a discount for good family support.[7] The end sentence for both appellants was therefore three years’ imprisonment.

Elements of charge

[13] Section 98A(1) of the Crimes Act provides:

(1) Every person commits an offence and is liable to imprisonment for a term not exceeding 10 years who participates in an organised criminal group—

(a) knowing that 3 or more people share any 1 or more of the objectives (the particular objective or particular objectives) described in paragraphs (a) to (d) of subsection (2) (whether or not the person himself or herself shares the particular objective or particular objectives); and

(b) either knowing that his or her conduct contributes, or being reckless as to whether his or her conduct may contribute, to the occurrence of any criminal activity; and

(c) either knowing that the criminal activity contributes, or being reckless as to whether the criminal activity may contribute, to achieving the particular objective or particular objectives of the organised criminal group.

[14] In summary, the key elements for an offence under s 98A are:

• (a) Participation in an organised criminal group (which is defined in s 98A(2)).
• (b) Knowledge that at least three of the people in the group share at least one of a number of specified objectives (set out in s 98A(2)(a)–(d)). Such objectives include the commission of serious violent offences, or obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more.
• (c) Either knowledge that the accused’s conduct contributes to the occurrence of any criminal activity, or recklessness as to whether his or her conduct may so contribute.
• (d) Either knowledge that such criminal activity contributes to achieving the objectives of the organised criminal group, or recklessness as to whether it so contributes.

Starting point

Appellants’ submissions

[15] Counsel for both appellants submitted that MacKenzie J adopted a starting point that was too high. In particular, counsel argued that the Judge failed properly to distinguish between the appellants’ culpability and that of their co-offenders, particularly Mr Minhinnick and Mr Sua, referred to in paragraph [12] of the Judge’s sentencing remarks, quoted at [10] above.
[16] Counsel for Mr Te Kahu, Mr Snell, made submissions on the mental element for the charge. He accepted that either recklessness or actual knowledge could be a basis of guilt for a charge of participating in an organised criminal group under s 98A. He argued, however, that a reckless participant in an organised criminal group had a lesser culpability than someone with actual knowledge. Mr Snell therefore submitted that MacKenzie J erred in failing to distinguish between those who knowingly participated in the confrontation and those who were reckless, such as Mr Te Kahu. Counsel proposed a starting point of two and a half years’ imprisonment.
[17] Mr Malik, counsel for Mr Mita, made submissions as to the methodology a Judge should undertake when sentencing for a charge under s 98A. Mr Malik emphasised that in 2009 the maximum penalty for a conviction under s 98A of the Crimes Act doubled from five to ten years’ imprisonment. He therefore submitted that a two-step approach was appropriate in determining a starting point for this offence. First, the Judge should determine the starting point under the previous maximum penalty of five years’ imprisonment. Then, the Judge should apply an uplift having regard to the increase in maximum penalty. This approach would allow the Judge to consider case law from the time of the five year maximum.
[18] Taking this approach, and relying on a number of cases applying the earlier penalty, Mr Malik submitted that Mr Mita’s offending warranted a starting point of 18 months to two years’ imprisonment under the previous maximum penalty. He contended Mr Mita was at the very periphery of the confrontation and had no actual knowledge that violence was going to occur, although he was admittedly reckless. Taking into account the uplift, counsel proposed an ultimate starting point of three years.

Discussion – starting point

Methodology

[19] First we reject the two-step methodology to setting a starting point proposed by Mr Malik. We consider that approach would add an unnecessary complication to the sentencing process. There is no need for it. The doubling of the maximum penalty in 2009 reflected a view on the part of Parliament that the existing sentencing levels for participating in an organised criminal group were too low and an additional deterrent element was required. We consider it would be inappropriate for a sentencing Judge to be required to consider what the sentence would have been in the light of judgments given when a lower maximum penalty applied and then make an adjustment to reflect the doubling of the maximum penalty. Rather, a Judge should simply consider the appropriate sentence in the light of the new maximum in the current statutory regime.
[20] In the sentencing of the offenders in the second trial MacKenzie J observed on this point:[8]

[17] These cases [such as R v Mitford][9] suggest that, at a minimum, a starting point of at least half of the maximum penalty would be appropriate for participants in the group who might be described as followers rather than leaders. For those whose participation is as principal protagonists, a starting point considerably in excess of one half would be appropriate, to give proper effect to the purposes and principles of sentencing to which I have referred. The starting points from those cases must be increased to reflect the increased seriousness with which Parliament has viewed this offence. However, I consider that it is not appropriate simply to double the starting points suggested by the cases I have discussed. That might lead to starting points which are disproportionate to the incident, and might not appropriately recognise your acquittal on the more serious charge, having regard to relativity with penalties for that offence.

[21] We respectfully agree with this approach.

Mental element

[22] With respect to any difference between actual knowledge and recklessness as a basis for guilt under s 98A in sentencing, we do not accept the sharp distinction that Mr Snell seeks to draw. Importantly the statute makes no distinction in penalty depending upon the type of mens rea of a particular accused.[10] It will be for the sentencing Judge to assess all of the conduct of an accused, including any evidence relevant to mens rea, when imposing sentence.
[23] On whatever basis of mens rea guilt is established, the mental element for participating in an organised criminal group is high. In R v Mitford, this Court quoted[11] the following passage from the Select Committee report that amended s 98A of the Crimes Act in 2002:[12]

We [the Committee] 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.

(Emphasis added.)

[24] Later in Mitford, this Court observed:

[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.

[25] As Mr Boldt observed, the appellants pleaded guilty to the amended indictment, thereby acknowledging that they knew that the group of which they were a part of was an organised criminal group, and that they deliberately ran the known risk that their conduct may contribute to a violent confrontation. It is therefore wrong to equate the appellants’ culpability with mere negligence: both men appreciated that criminal activity may occur and nevertheless by their presence lent support to the armed raid on the Mongrel Mob premises.
[26] Mr Boldt submitted that irrespective of whether the mental element was knowledge or recklessness, in each case those involved were prepared to participate in a violent confrontation. Those with knowledge knew what might occur, whereas those in the reckless category might not be sure but were nevertheless prepared to take the risk. We accept that any differences are best left to the sentencing Judge when considering all relevant culpability factors. These will include relevant conduct, what was said and what was done as well as the mental element of the participants. Fine distinctions are not necessarily appropriate in this context.

Roles of co-offenders

[27] Counsel for both appellants placed considerable reliance on the respective roles of Mr Minhinnick and Mr Sua, who were part of the second group of participants supporting Rangi Tamati. When sentencing Mr Minhinnick MacKenzie J stated:[13]

[40] Harry Minhinnick, the Crown submits that you were there at the direction of others and that your culpability is materially less than that of Rangi Tamati. The Crown however rightly notes that the willingness of people such as you to be the foot soldiers for such gangs and to provide the numbers when needed is what allows gangs such as the Mongrel Mob to operate in a criminal way. I agree with those submissions. That is what the offence of participation in an organised criminal group recognises. Your counsel submits that you are to be sentenced for choosing to involve yourself knowing there was going to be a violent gang confrontation but not being part of the planning of the incident. I consider that that accurately describes your situation. The text which you sent while travelling to Wairoa supports that view of your position. For your part in the offending, I consider that a starting point of three and a half years is appropriate.

[28] When the Judge was sentencing Mr Sua he stated as follows:[14]

Sovite Sua, I regard your involvement in these events as unfortunate. I think it is fair to assess you as having gone to Wairoa because you did not feel able to say no to Alexander Tamati. The Crown makes the same submission for you as for Mr Minhinnick, to which I have referred. Your counsel notes Mr Monika’s evidence which suggested that you had been caught up in the events and that it was out of character for you. You have acknowledged in your letter to me that there was no good reason for you to be there other than a reluctance to say no to a senior Mongrel Mob member. Having regard to the circumstances of the offending and before considering your personal circumstances I cannot distinguish you from the others in the group who were there providing support by their presence in weight of numbers to this enterprise. I consider that a starting point of three and a half years is appropriate for you. You too have quite a lengthy list of previous convictions.

[29] With respect to the submission that Mr Minhinnick could be said to have had actual knowledge, we do not consider that too much emphasis should be placed on the nature of the concession made by his counsel at sentencing. Both Mr Minhinnick and Mr Sua were convicted of the offence under s 98A of the Crimes Act based on an indictment where the alternative mental elements were available to the jury.

Our evaluation

[30] We consider that MacKenzie J, as both the trial and sentencing Judge, was ideally placed to assess the relative culpability of the various participants. He took particular care to distinguish between those who planned the raid or helped organise it in some way and those who were the “foot soldiers”. It was within his judgment to assess the culpability of the “foot soldiers” – whether they had knowledge of what would occur or were reckless. Both appellants foresaw the risk of violent confrontation and still took part in the raid. We are satisfied that their culpability was not materially different from those participants who had actual knowledge.
[31] In any event, we do not consider that a starting point of three and a half years – one third of the maximum penalty – could be said to be manifestly excessive in all the circumstances. The appellants were prepared to lend their weight as foot soldiers and the success of the planned raid was in part dependent on there being sufficient numbers to support Rangi Tamati. This first ground of appeal fails.

Mitigating factors

Mr Te Kahu

[32] Mr Snell argued that the Judge erred by failing to take account of the three to four months Mr Te Kahu spent on bail subject to a 24 hour curfew and a further 12 months on bail subject to a curfew (although not a 24 hour one). Other mitigating factors advanced included that Mr Te Kahu had been complying well with a sentence of community work imposed in July 2011 and had attempted to distance himself from the Mongrel Mob. He also had considerable community support.
[33] However Mr Te Kahu has an extensive criminal history. Over a 17 year period he has amassed over 50 convictions relating to driving related matters, dishonesty offending, non-compliance and drugs offending. The pre-sentence report demonstrates that Mr Te Kahu showed limited insight into his current offending. He claimed that he was simply “in the wrong place at the wrong time”. He was assessed was having a medium risk of reoffending. We consider he was fortunate that the Judge did not to apply an uplift for previous offending. It is against this background that other factors personal to the appellant have to be weighed.
[34] The strongest point advanced is the time the appellant spent on bail subject to a curfew. However, any discount for time spent on restrictive bail conditions as a mitigating factor is very much a discretionary matter for the Judge to decide.[15] The comments of this Court in Bennett v R are apposite:[16]

[25] Finally, our attention is drawn to the fact that the appellant spent six months on bail, subject to a 24 hour curfew, which he carefully observed. It is suggested that a discrete deduction of one month should have been allowed on that account alone. We accept that in principle it will often be appropriate to reflect a significant period spent on 24 hour curfew, but we do not agree that we ought to interfere with a sentence on that ground alone. We take that view because we are satisfied that all of these mitigating factors, considered together, were adequately reflected in the six month discount allowed by the Judge.

(Footnotes omitted.)

[35] While the Judge made no allowance for the time spent on bail, we are satisfied that the end sentence of three years’ imprisonment for Mr Te Kahu is not manifestly excessive.

Mr Mita

[36] Mr Malik argued that the Judge failed to take into account, as a mitigating factor, the appellant’s contribution for work he has done in the community. Letters of support demonstrated the appellant’s involvement in his local community, such as through volunteering and mentoring of young children. However, we note first that Mr Mita – although aged only 23 – already has an extensive criminal background extending back to 2005. He has already been imprisoned for a range of offences including injuring with intent to injure and aggravated robbery. At the time of the offending on 10 August 2010, Mr Mita was still subject to a sentence for injuring with intent. We consider Mr Mita was somewhat fortunate that the Judge chose not to apply an uplift for previous offending.
[37] As to the appellant’s positive community involvement, we consider this be balanced against the fact that the pre-sentence report stated that Mr Mita remained a patched member of the Mongrel Mob gang and showed little remorse or insight into his offending. He was assessed as having a high risk of re-offending. The Judge did not err in not making an allowance for personal mitigating factors. Further, Mr Mita has not shown that the end sentence of three years’ imprisonment is manifestly excessive.

Result

[38] Both appeals are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Stone [2012] NZHC 227.
[2] For some it was the only charge.
[3] Section 98A(1) is set out at [13] below.
[4] The wording was as set out at [2] above.
[5] At [7].
[6] At [18].
[7] At [19].
[8] R v Tamati [2012] NZHC 221.
[9] R v Mitford [2005] 1 NZLR 753 (CA).

[10] A comparison can be made with the elements for a charge of murder, defined in s 167 of the Crimes Act 1961. For, example, a person commits murder when he or she “means to cause the death of the person killed” (s 167(a)), but is also guilty of murder if he or she “means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not” (s 167(b)). In either case, the offender is liable for life imprisonment: s 172(1).
[11] At [38].
[12] Transnational Organised Crime Bill 2002 (201-2) (select committee report) at 4–5.
[13] R v Tamati, above n 8.
[14] Ibid, at [44].
[15] See Schuster v R [2011] NZCA 343 at [10] and [12].
[16] Bennett v R [2012] NZCA 173.