R v Kahui [2024] NZDC 3202 (16 February 2024)

Last Updated: 22 July 2024

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT GREYMOUTH I TE KŌTI-Ā-ROHE KI MĀWHERA

CRI-2022-018-000422 CRI-2022-018-000455 CRI-2022-018-000509 CRI-2022-018-000510 CRI-2022-009-007980 CRI-2023-018-000518

[2024] NZDC 3202

THE KING

v

BRADLEY MATENGA KAHUI (AKA) BRAD KAHUI and JASON ROBERT MCKENZIE

Hearing:	16 February 2024
Appearances:	A Mills for the Crown M Zintl for the Defendant Kahui A Williams for the Defendant McKenzie (via VMR)
Judgment:	16 February 2024

NOTES OF JUDGE S J O’DRISCOLL ON SENTENCING

[1] Mr Kahui and Mr McKenzie you both appear before me today for sentence.

R v BRADLEY MATENGA KAHUI [2024] NZDC 3202 [16 February 2024]

[2] It is my responsibility now to impose sentence on you on the charges that you have pleaded to and to set out as best I can the reasons for arriving at the sentence that I believe is appropriate in this case.

Mr Kahui sentencing

[3] Mr Kahui I will deal with you first. You appear for sentence on a number of charges. The first is one of doing a threatening act in relation to a dwelling house. It relates to [address 1] in 2021. There is a charge with injuring with intent to injure on 9 March 2022. There is a charge of burglary, injuring with intent to injure on 15 March 2022 and an associated charge of behaving threateningly. There are then three charges relating to May to June 2022, namely attempting to pervert the course of justice and conspiring to commit an assault with intent to injure. There are two of those charges.

[4] There are four summaries of fact that have been provided to the Court. In total they amount to some 31 pages.

[5] I will direct and allow the full summaries of fact to be made available to the media but I need to recite some of the more important and relevant aspects of the respective summaries.

[6] In respect of the threatening acts in relation to a dwelling house relating to you Mr Kahui. You were at the time the president of the Aotearoa Natives Gang. That summary relates to your actions and your gang taking over occupancy and renting the dwelling at [address 1], Cobden through extortion of the owner and establishing it as a gang pad for the Aotearoa Natives. That address remained as a gang pad or club house for a period of some (18 months) before it was burnt down in an accidental fire.

[7] [Address 1], Cobden was a section with a dwelling house that was at the time owned by a [victim A]. At the time the house at [address 1] was occupied by another person through an informal arrangement with [victim A].

[8] Following another fire at Thompson Street in late December 2020 to early 2021 members of the Natives Gang began living on the undeveloped sections at [address 2] and [address 3] without permission of anyone. A growing encampment formed and

spread closer to [address 1] with various gang members maintaining a constant presence wearing their patched gang vests.

[9] One member had a portable cabin delivered to the empty land effectively creating a permanent abode without seeking permission from any person. The summary indicates that the growing and continuous presence of patched gang members intimidated members of the neighbourhood.

[10] In January 2021 an Aotearoa Natives gang member went to [address 1] with an extension cord and demanded to be able to plug it in to power his cabin. The occupant then was told that the gang would be taking electricity from him whether he liked it or not, this being demanded in a threatening manner.

[11] [Victim A] made an inspection of the property and arranged for a plumber to make repairs. Near the end of that week that was spent repairing the property, Mr Kahui you entered the property unannounced wearing your patched gang vest. You told [victim A] that your old gang pad had burnt down and that the boys needed somewhere to stay. You told her that that house looked like the best place for a new pad and you wanted the boys close to your home.

[12] She told you that she did not want to rent the property to him and she was making plans to sell it. You became abusive and aggressive with her. She left the property briefly to obtain some supplies and when she returned an hour later she found you Mr Kahui walking around the house showing it to several of your gang members including Mr McKenzie.

[13] You indicated to her after she said that she was not renting the property, that she would rent the property to you. She did not want you there and told you that the house was not up to rental standards but you overrode every objection and said that you would make your own improvements. She was too scared to report the matter to the police or other officials due to the overt intimidation of you and other gang members.

[14] It appears that the next day you and other members of the gang started moving belongings into the address including bringing furniture on a trailer. There was a confrontation between you and [victim A] and you indicated that you could claim squatters’ rights and that if she went to the Tenancy Tribunal it would take 6 to 12 months to get them evicted.

[15] [Victim A] felt too scared for her personal safety to report the matter. Over the next few weeks [victim A] tried to make the most of her situation but was clearly concerned about her safety and then you and the other gang members became entrenched in the property.

[16] I have gone into some detail about that matter because it sets out your attitude and the attitude of the gang in order to obtain possession of that property.

[17] The second matter relates to a charge of injuring with intent to injure involving a victim [name deleted – victim B].

[18] Throughout the time at the gang pad at [address 1] a caravan had been parked on the front of the section which police believed was used to sell cannabis.

[19] Different members and associates of the Aotearoa Natives kept a near permanent presence in the caravan each day. At about 9.35 pm on 9 March you were sitting in the caravan outside the gang pad. [Victim B] walked up to the caravan and as she approached it you opened the caravan door.

[20] She began remonstrating with you, telling you that she had received information that the gang was selling cannabis to her teenage daughter and telling him to stop.

[21] You grabbed her by her head with your right arm and smashed the right side of her face repeatedly onto the inside of the caravan’s doorway. She attempted to fight back and break free but she was described as being half your size and was easily overpowered.

[22] You were able to pin her arm to the side while maintaining your grip on her head and striking the caravan’s doorframe with her head on at least six occasions. You called her a name and demanded to know why she was there, who she was, who her daughter was and who had told her that information.

[23] She managed to free herself and flee the caravan. She suffered cuts, multiple bruises, swelling to her head and arms and concussion. There were two cuts behind her right ear about one centimetre and three centimetres in length. There was a reasonable flow of blood which required stitches.

[24] The next matter is an incident involving Mr Pointon who was one of your patched gang members. At about 10 pm on 15 March 2022 the victim (Ms Parker) was at her home address in Cobden.

[25] She had her two children aged 6 and 14, as well as two young people aged 14 and 15 who were living under her care at the time. She received a knock on her door and answered it to find Mr Pointon present. Ms Parker knew that he was a Native Gangs’ member as was evidenced by the word Native tattooed across his face.

[26] He told Ms Parker that he wanted to buy some P referring to methamphetamine and she told him that she did not sell or use the drug. There was an amicable conversation which resulted in Mr Pointon being invited inside as the victim wanted to display that she was living a clean life and not in the drug scene.

[27] Mr Kahui you barged through into the house. You arrived there forcibly unannounced surprising the victim and flinging her body aside from the force in which you opened the front door.

[28] You went up to Mr Pointon in the hallway beside the lounge and demanded that he give you his P pipe. You then punched him in the jaw several times. You produced a hunting knife in a sheath and held it in one hand keeping it sheathed while punching Mr Pointon with the other.

[29] The effect of this combined with your status as Pointon’s gang president deterred him from any resistance and he was assaulted by you and began to bleed from his face onto the floor and onto some furniture.

[30] The children and young people who were in the house aged 6 to 14 were all drawn into the commotion and witnessed the violence distressing them greatly. The victim screamed at you to stop and you took Mr Pointon away from the house.

[31] The two young people in Ms Parker’s care were sufficiently traumatised that they elected to no longer reside with her feeling unsafe in the house while her own children remained in the house but reported the same fears.

[32] The victim (Ms Parker) later provided a formal statement to the police about the incident but requested that the police delay following up with you until a sufficient safety plan could be put in place, as she lived only a block away from you and the gang pad and she feared violent reprisals from you and your members.

[33] The victim disclosed that fact to an associate who later breached her confidence and led to that information being given back to you.

[34] As far as the behaving threateningly charge is concerned at 9.50 am on Wednesday, 25 May Ms Parker pulled into the Z Energy Service Station in Greymouth. You were the front seat passenger in a vehicle driven by another associate.

[35] You immediately accosted Ms Parker exiting your car and demanding loudly to know if she had spoken to the police about you. She first ignored you which you took to be confirmation and you loudly accused her and started yelling at her.

[36] She told you that she had been traumatised and her children had been traumatised and you began giving various excuses and a different narrative of events as to what had actually occurred. That summary that I have read relates to the burglary, injuring with intent to injure and behaving threateningly charge.

[37] There is then a further summary relating to the attempting to pervert the course of justice and the two charges of conspiring to assault with intent to injure. There are two aspects to the summary.

• (a) One is in relation to the conspiracy and
  
• (b) the other is in relation to the attempting to pervert the course of justice.
  

[38] The summary indicates that on 25 May 2022, Mr Kahui was arrested by the police on a charge of aggravated burglary and was declined bail in the Greymouth District Court. Mr Kahui you knew that Ms Parker had made a statement about you when you had entered her house and without her consent armed with a knife and assaulted Mr Pointon. Mr Pointon had apparently not made a statement to the police or made a complaint and you were aware that the police case depended on the evidence of Ms Parker and her two children.

[39] On 22 May 2022 you were remanded in custody to the Paparoa Christchurch Men’s Prison as a remand prisoner. The summary indicates that on that day you began using a mobile phone without authority and making several calls to your partner.

[40] On 4 June you text Mr McKenzie citing concerns that you were looking at a lengthy prison sentence for aggravated burglary and stated that Ms Parker needed to drop her statement or get a mean as bash.

[41] Overnight on 5 - 6 June 2022 Ms Parker discovered that a vehicle belonging to her had been damaged while parked in her driveway overnight. It was found to have a triangular hole in the right rear window appearing by its shape to have been caused by an axe blade.

[42] There are two charges then in relation to conspiring to commit an assault with intent to injure. One relates to you making a phone call to your partner where there was reference being made to send the boys, that is your gang members, around to an address in Greymouth when an associate of the Mongols Gang was staying.

[43] You instructed your partner that the boys were to go over to the place, give that person a hiding and take back his colours from him referring to the Mongols Gang clothing and specifically listing a t-shirt.

[44] The summary indicates that on 14 June you Mr McKenzie text updates to you saying that they had not managed to find this other person but assuring Mr Kahui that he was trying. Mr McKenzie sought Mr Kahui’s help identifying where this other person was. The summary indicates that there was no evidence to suggest that that conspired offence was actually committed.

[45] The other charge of conspiracy relates to another person who was allegedly a Nomads Gang member and it is alleged that he had encouraged Ms Parker to make her statement against you regarding the aggravated burglary charge.

[46] Mr Kahui you told Mr McKenzie that you believed that this was part of a conspiracy by the Nomads Gang to take over the Cobden and wider Greymouth area from the Aotearoa Natives.

[47] Mr Kahui you texted Mr McKenzie that this other person was living at a motel with other Nomads Gang members and you instructed Mr McKenzie to take other gang members there and seriously assault them.

[48] Mr McKenzie agreed to do that assuring Mr Kahui that you would go to each Nomad Gang member in Greymouth one by one and seriously assault them. It appears that Mr McKenzie struggled to get support from other gang members and the assault did not take place.

[49] As far as the attempting to pervert the course of justice is concerned on 10 June 2022 Mr McKenzie had sent texts to you Mr Kahui regarding Mr Paterson trying to do what is described as the other mission and failing only resulting in breaking windows. The timing of that suggests that that would relate to when Ms Parker found that her car window was broken.

[50] The summary refers to various texts and it appears that at 3.15 Mr Paterson approached Ms Parker’s home which was about 250 metres from the gang pad. The summary describes what Mr Paterson did in setting fire to Ms Parker’s car. An explosion was caused and Mr Paterson fled the area.

[51] The vehicle was set alight and the flames pushed against the house with the heat cracking the window of Ms Parker’s 14-year-old son’s bedroom and damaging the roof eave above.

[52] Ms Parker hesitated in fleeing the house despite the apparent risk of fire because she feared whoever had set the fire might have been waiting outside to ambush her.

[53] A neighbour also noticed the fire and came to the door and gave her confidence to leave the house with her children and wait outside for a fire and emergency volunteer crew to arrive. The blaze was brought under control but Ms Parker’s vehicle was entirely destroyed.

[54] Fire and Emergency staff advised that the exterior cladding of the house being a fibre cement board was not particularly susceptible to fire but had the cladding been wooden it would most likely have caused fire.

[55] The summary refers to various texts that were made with the result that later that day various texts were given which caused Mr McKenzie to text you Mr Kahui that the car got done. So those are the basic summaries in relation to the various sets of charges.

[56] In addition to that I have heard from Ms Parker today and she has read her victim impact statement to me. That sets out the physical, emotional and psychological consequences that your offending Mr Kahui has had on her. They also set out the effects and consequences that your offending has had on her children. They are victims of the gang culture that you presided over which was a culture of intimidation, violence and what I would describe as terrorism.

[57] Ms Parker has stood strong throughout this whole episode. She has not backed down at all and in my view she is an extremely strong and courageous woman. Her children have seen things that they should not have seen and they have also been subject to the fear and intimidation of reprisals from your gang. Their lives were put at risk.

[58] In my view the Greymouth and Cobden community should be very proud of Mrs Parker and her children for standing up to you and the gang. Hopefully this will be the last time that she will have to read a victim impact statement to the Court. She has previously done that when I sentenced Mr Paterson. Hopefully after today Ms Parker and her children will be able to put this whole sad set of affairs behind her and her children and can move on from today.

[59] I have read and considered the presentence report Mr Kahui dated 13 November 2023. You are aged 35. You have five previous convictions for assault, your most recent being assaulting a person in a family relationship in May 2019.

[60] Clearly this offending is your most serious to date and derives from your role as president of the gang. You have accepted in the presentence report the summary of facts but it is also clear that you have attempted to minimise your involvement.

[61] As far as the intimidation of [victim A] is concerned you indicated to the probation officer that you were doing her a favour fixing up her property; fixing her house and tidying up her property.

[62] You indicated that you never instructed Mr Paterson to harm Ms Parker. You were at the time subject to a sentence of community work. 120 hours community work was imposed on you on 21 January 2022. This offending occurred later in 2022 while you were subject to sentence. You currently owe over $20,000 in reparation and

$2,400 in fines. The recommendation in the presentence report is for a sentence of imprisonment.

[63] I have read the s 27 report. It is a cultural report that has been prepared about you which sets out your background and personal circumstances as has been

self-reported by you. You have reported that your father was a member of Black Power, that alcohol and drug use was prevalent when you grew up and violence in your house was common. You struggled at school. You were taken into care on multiple occasions. Your father was imprisoned. You joined the Crips Gang at 14. You first went to prison in 2006. You joined Black Power. You started using methamphetamine at the age of 20 and then joined the Aotearoa Natives.

[64] The s 27 report indicates that the likely factors contributing to your offending are the instances of your housing and deprivation; going into State care, your experience of physical violence, your limited education, and your involvement in the gang.

[65] The Crown have filed written submissions which I have read before coming into Court today. It amounts to some 127 paragraphs.

[66] The Crown submit that in relation to the threatening acts, in relation to the dwelling house, the appropriate starting point would be a sentence of 18 months’ imprisonment.

[67] On the burglary, injuring and threatening charge involving Mr Pointon, three to four years’ imprisonment.

[68] On the injuring with intent involving [victim B], two and a half years’ imprisonment.

[69] The attempting to pervert the course of justice five years’ imprisonment and the conspiracy to commit an assault with intent to injure, nine to 12 months’ imprisonment.

[70] If those figures are added up the Crown’s starting point would be in the vicinity of 13 to 14 and a ½ years’ imprisonment and the Crown accepted that should then be reduced to take into account the totality principle.

[71] The Crown then submit that there should be an uplift of 10 per cent for your previous convictions, a discount of some 15 to 20 per cent for your plea of guilty. The

Crown submits that care should be taken with the s 27 report because it is self-reported because you now have a conviction and I am sentencing you on a charge of attempting to pervert the course of justice and you have a previous conviction for similar offending.

[72] I have also read your counsel’s submissions before coming into Court today. That amounts to some 92 paragraphs.

[73] Mr Zintl on your behalf has submitted that the appropriate starting point on the attempting to pervert the course of justice would be a sentence of three years’ imprisonment.

[74] On the assault with intent to injure and/or the burglary three and a half years’ imprisonment or on the injuring with intent to injure two years’ imprisonment and on the threatening act and speaking threateningly, imprisonment for six months.

[75] Overall when those figures are added up it amounts to 10 years’ imprisonment and it is submitted that taking into account the totality principle that that should be reduced by 12 months meaning that there should be an effective starting point of nine years’ imprisonment. It is submitted that there should not be an uplift for your previous convictions.

[76] In terms of mitigating factors Mr Zintl asks that I give you a discount of 25 per cent for your plea of guilty, 20 per cent for the cultural report, five per cent for remorse, five per cent for your steps towards rehabilitation and 10 per cent because of the effects on your children meaning that there should be an effective discount of 65 per cent from the nine years’ imprisonment.

[77] In terms of the aggravating factors Mr Kahui, I take your position as president of the gang as a significant aggravating factor. You held a position of authority. You had the ability to control and direct offending both while you were in the community and while you were in custody. You were not a minor player following orders. You were directly involved in offending yourself and directed offending while in custody.

I also take into account that your offending involved actual and threatened the use of violence.

[78] I take into account that the offending was clearly premeditated. I also take into account that the offending occurred over a period of time. I take into account that some of the victims were clearly vulnerable, [victim A] and Ms Parker. I take into account again as an aggravating factor that your offending has had a significant effect on your victims. I also take into account that the offending occurred while you were subject to sentence.

[79] In terms of the mitigating factors Mr Zintl has indicated that you are now at a crossroads, that you have left the gang, that the gang is now defunct and you have handed your patch in. I do not know who you would have handed your patch into.

[80] It is submitted that you now want to be a father to your children. It is submitted that while you knew something may have been going to be done by Mr Paterson you did not know that it was going to be an arson. I will take into account and will accept the guilty plea as a mitigating factor. That did save a trial but a significant period of time elapsed while resolution discussions took place.

[81] The Crown have also pointed out that you have received the benefit of some of the charges being reduced. You claim to have left the gang. Whether that will continue and you do not join another gang while in prison only time will tell. I am told that you want to have your tattoos removed. While again time will tell if that occurs.

[82] I have the s 27 report. That is a self-reporting exercise. The Crown have asked me to be careful because I am sentencing you on a charge of attempting to pervert the course of justice and you have a previous conviction for attempting to pervert the course of justice.

[83] It is well-known by most people who are due to appear for sentence that favourable s 27 reports can result in considerable discounts. The Crown have submitted that your offending was not caused by addiction or mental health. The

Crown submit and in effect say that your offending was to control the community and to exercise control and authority over other gang members and you responded to threats by the use of violence and threatening violence and little weight should be attached to the s 27 report.

[84] Sentencing you Mr Kahui is not an easy exercise and it is difficult to know where to start because of the nature and extent of your offending and the period of time over which your offending took place.

[85] As I have previously said, you were the president of the gang and you used violence and used gang members to intimidate and threaten violence over a significant period of time. You led by example and others have been in prison because they have followed you.

[86] I have no doubt that your actions frightened, and the actions of your gang frightened many in the Cobden and Greymouth area, particularly parading around in gang patches and some of your victims are likely to have scars for many years.

[87] Your leadership in the gang in a small community involved the most extreme form of intimidation. You took over someone’s property so that it could become a gang pad. You used violence against someone who wanted to confront you to stop you dealing in drugs. You used violence against your own gang members. You attempted to use violence against other members of gangs other than the Aotearoa Natives, and you intimidated witnesses who attempted to assist the police. I regard your culpability as high. I regard your offending as serious and the gravity of the offending is at the higher end of the scale.

[88] It is true as is stated in the decision of Hessell v R that the sentencing task is complex and there can be an infinite variety of factual circumstances that need to be considered and weighed.1 Sentencing is an intentionally individualised factual evaluation and a sentencing Judge needs to do justice in any individual case. While consistency is important in sentencing I have not been able to find any case which

1 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

could be said to be comparable to your case taking into account the totality of your offending.

[89] I have been given a variety of cases by both the Crown and the defence in relation to the individual and specific offences, some which involve tariffs and some which do not involve tariffs but in my view your offending needs to be seen in a holistic way taking into account the background of your offending and the matters that led to the offending taking place.

[90] In terms of the purposes of sentencing today it is to denounce your conduct. I am not sure whether sentencing will deter you and others. It has not deterred other gang members in the past, but one of the other purposes of sentencing is also to protect the public.

[91] In terms of the principles of sentencing I am required to impose the least restrictive sentence on you. I take into account all the purposes and principles of sentencing in the Sentencing Act 2002.

[92] On the charge of doing threatening acts in relation to a dwelling house involving [victim A], I find that that was prolonged intimidation. I find that it was intimidation at its worse, taking over someone’s property and that being done in a gang context. On that matter I take a starting point of 18 months’ imprisonment.

[93] On the burglary charge, the injuring with intent charge and the speaking threateningly charge involving Mr Pointon, the burglary charge I should say is part of the injuring charge. It is not a classical burglary of someone going into a dwelling house to take property. I take into account the Nuku decision.2 Your assault on Mr Pointon involved an attack to the head and possession of a knife. It was gang related. It occurred in Ms Parker’s home and it involved the presence of children who witnessed the violence. On those matters, in my view, the appropriate starting point is one of three years’ imprisonment.

2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

[94] On the charge of injuring with intent to injure involving [victim B], that involved an assault to the head, an attack to the head slamming her head against the caravan door. She was vulnerable. She had gone there in an endeavour to stop drug-dealing taking place. The violence was completely gratuitous and unnecessary. In my view the starting point for that charge is one of three years’ imprisonment.

[95] On the charge of attempting to pervert the course of justice, Ms Parker was targeted as a person who had made a complaint to the police about you. There had been a previous attempt to damage her car. The fire-bombing of her car took place in a gang context in order to prevent her from or attempting to persuade her through fear to retract her statement or not give evidence against you. That had a significant potential for tragedy. The view that I have taken when looking at all the matters in relation to that is that the appropriate starting point is one of five years’ imprisonment.

[96] On the charge of conspiring to commit an assault with intent to injure, that occurred while you were in prison. Again it was for gang purposes. There are a variety of circumstances that led to those offences not actually occurring. Had they occurred then you would have been facing other charges but the charge is one of conspiracy and the conspiracy was instigated by you. On those two charges the starting point would be one of 12 months’ imprisonment.

[97] All those sentences should be cumulative with each other. Although they have common threads they are separate and discrete sets of offending, but when they are made cumulative that means that there is an effective sentence of 13 ½ years’ imprisonment.

[98] I am required and am mindful of the totality principle. The Courts have said that when cumulative sentences of imprisonment are imposed the Court needs to stand back and look at the totality principle. I do that and reduce that sentence by three years to then mean that there is a sentence of 10 ½ years’ imprisonment.

[99] I then intend to increase that by six months to take into account that the offending occurred while you were subject to sentence. That then increases the sentence to one of 11 years’ imprisonment. I am not going to increase that sentence

due to your previous convictions. You have a number of previous convictions but I see your offending here as being all gang related. I am not sure about the background of your other convictions.

[100] I am then required to consider what discounts should be given to you. I have been asked to consider a discount for remorse. You have written a letter of remorse, but I find that there is little remorse on your part in that you continued to offend while you were in prison.

[101] If you want to do something in terms of being a good father and looking after your children then actions speak louder than words written in a letter. I give you no credit for remorse. This was prolonged offending over a significant period of time.

[102] As far as the s 27 report is concerned, that is a matter of weighing the matters up in the report. The question is how much of your background has really caused and contributed to your offending?

[103] I accept that you did not have the easiest of lives but many people do not have easy lives and do not resort of violence. Your offending, in my assessment, was primarily caused and contributed to by the fact of your gang membership and your position in the gang. It was caused by your desire to control your gang and your desire to control your community. You knew the boundaries between right and wrong. In saying that I think that your background has caused and contributed to some extent to your offending and I am, therefore, prepared to take the matters in the s 27 report into account and reduce the sentence by 10 per cent.

[104] You have indicated that you have left the gang. You want to remove your tattoos, that you have done some courses while you are in prison. I am being asked to give you a discount in terms of steps towards rehabilitation.

[105] You will need to do whatever you can while you are in prison Mr Kahui to convince the Parole Board that you are not at undue risk when and if released, but I am prepared to reduce the sentence by five per cent to take into account your rehabilitative prospects.

[106] You seek a discount for the effects that prison will have on your children. It is a sad reality of life that the children are always the ones who are punished for not having an appropriate role model around them when they are growing up and when they most need a father figure.

[107] You went into this offending Mr Kahui with your eyes wide open and with the offending occurring over a period of time. It is somewhat ironic that you want me to give you a discount for the effects that imprisonment will have on your children when I have clearly heard the effects that your offending has had on Ms Parker’s children who witnessed your violence.

[108] I exercise my discretion in taking into account the nature and extent of your offending. I am not prepared to give you a discount for the effects that imprisonment may have on your children.

[109] You are entitled to a discount for your guilty plea. It was not at the first available opportunity. There was a lengthy period of time before there could be resolution and some of the reduction in charges helped you as would have the amended summary of facts but your guilty plea did save the victims from having to come to Court and to be retraumatised so I am prepared to reduce the sentence by 20 per cent.

[110] That then means that there is an effective discount of 35 per cent. So from 11 years’ imprisonment I reduce that by 35 per cent which is 35 months to then mean that there is a sentence of 97 months’ imprisonment. I round that down to 96 months with is an effective sentence of 8 years’ imprisonment. I calculate that then this way:

• (a) On the attempting to pervert the course of justice you will be sentenced to five years’ imprisonment.
  
• (b) On the burglary and injuring with intent three years’ imprisonment. That will be cumulative meaning there is the eight years’ imprisonment.
  
• (c) On the threatening act charge you will be sentenced to 18 months’ imprisonment; and

• (d) on the conspiracy on each of those 12 months’ imprisonment. They will all be concurrent; and
  
• (e) on speaking threateningly one month’s imprisonment. That will be concurrent.
  

[111] So the effective sentence is a sentence of eight years’ imprisonment. The outstanding community work is cancelled.

[112] I will cancel the outstanding fines but I am not prepared to cancel the reparation.

Mr McKenzie’s sentencing

[113] Mr McKenzie you appear before me today for sentence on four charges. There is a charge of attempting to pervert the course of justice, two charges of conspiring to commit an assault with intent to injure and behaving threatening under the Summary Offences Act 1981.

[114] I begin by stating your position in relation to this offending. Mr McKenzie you were a patched member of the Aotearoa Natives Gang based in Greymouth. You were promoted to vice president by Mr Kahui just prior to the offences being committed. Mr Kahui was remanded in custody on 25 May 2022.

[115] There is a detailed summary of facts before me amounting to some 12 pages. I do not intend to go through the summary in details. The summary can be made available to the media but I need to set out the main aspects in the summary.

[116] It appears that on 1 June 2022 Mr Kahui started communicating regularly with you through his mobile phone through regular text messages and the occasional audio call. I have previously mentioned that on 4 June Mr Kahui texted you citing concerns that he was looking at a lengthy prison sentence for aggravated robbery and stating that Ms Parker needed to drop her statement or “get a mean as bash”.

[117] Overnight on 5 June 2022 and 6 June Ms Parker discovered that her motor vehicle had been damaged while parked in her driveway overnight. She found a triangular hole in the rear right window appearing by its shape to have been caused by an axe.

[118] I have also previously gone through when sentencing Mr Kahui, the summary of facts in relation to the conspiring to commit the assault with intent to injure. On 8 June Mr Kahui made a phone call to his partner which was subsequently intercepted. He gave instructions about going over to try and find a person who was associated with the Mongols Gang. It appears that Mr Kahui’s partner relayed instructions to you and to others in the gang.

[119] Mr Kahui texted you later on the evening of 8 June asking if that gang member had been located and you indicated that you were trying to find him but he appeared to have moved to Westport.

[120] On 14 June you texted updates to Mr Kahui saying that you had not managed to locate him but assured him that you were trying. Again there is no evidence that that offence was committed of actual assault with intent to injure.

[121] The same applies to the other charge of conspiring to commit the assault with intent to injure. That involved a member allegedly of the Nomads gang. You texted other members indicating that they would go to some motels in Cobden. It appears that you went there but were unable to get the support of other members of your gang and the assault did not take place.

[122] You later sent texts claiming the lack of courage and loyalty of the junior members for their inability to carry out the attack. You promised that you would do it the following day but it did not take place and again it appears that there is no evidence that that did take place.

[123] As far as the attempted to pervert the course of justice is concerned, you sent texts on 10 June to Mr Kahui regarding Mr Patterson trying to do the other mission

and failing, only in resulting in breaking windows. Again the summary indicates that that relates to the time when Ms Parker found her car window broken.

[124] On 21 June 2022 you texted Mr Patterson telling him that you had been to the gang pad and he was not there. You said that he had better do that car tonight and warned him not to make you to come out looking for him.

[125] At 3.15 am it appears Mr Patterson then approached Ms Parker’s home. I have already gone through in detail what happened but her car was set alight. The fire in the vehicle burned fiercely and it woke Ms Parker and her children. The flames pushed up against the wall with the heat cracking the window of her 14-year-old son’s bedroom and damaging the roof eave above.

[126] Ms Parker hesitated in fleeing the house despite the risk of fire because she feared whoever had set it might have been wating outside. The blaze was brought under control but Ms Parker’s vehicle was entirely destroyed. Fire and Emergency staff indicated that had the cladding of the house been wooden it would most likely have caught fire.

[127] The summary then refers to various phone calls and texts made between you and Mr Patterson and at 6.51 pm later that day there was a call between you and Mr Kahui with you texting Mr Kahui saying that the car got done.

[128] The summary of facts indicates that you have been Mr Kahui’s right-hand man since he was remanded in custody.

[129] It states that you have acted as a general in Kahui’s absence ordering other gang members about like soldiers in the commission of other offences and conspiring to commit offences.

[130] It is said that your status as the vice president and influence over other gang members as well as a willingness to commit offences yourself was crucial to Mr Kahui being able to assert his influence from prison.

[131] There is also a behaving threatening charge which relates to 22 July. That is a Summary Offences Act charge where you told the victim to vacate his sleepout otherwise he would be physically removed.

[132] There is a pre-sentence report which I have read before coming into Court today. Mr McKenzie you are aged 43 you have 45 previous convictions. The report writer says that it is difficult to assess your appreciation of the serious harm caused and the potential harm of arson.

[133] Your risk of re-offending is assessed as high. Your risk of harm to others is assessed as high. It is said that you are remorseful for this offending, that you no longer wish to be in a gang, that you wish to focus on your children and you have applied to have your facial tattoos removed. The recommendation in the pre-sentence report is a sentence of imprisonment.

[134] The Crown submissions are that you played a pivotal role in orchestrating the arson of Ms Parker’s car. The Crown’s position is that you knew that Ms Parker needed to step away from her statement that she had made to the police about Mr Kahui.

[135] The inference is that you forced Mr Patterson to go through with the arson and it was a campaign by you and the gang to dissuade a witness from giving evidence.

[136] The Crown submits that your sentence in terms of a starting point should be similar to Mr Kahui namely, five years’ imprisonment and there should be an uplift of some 9 to 12 months for the two further conspiracies to assault with intent to injure. The Crown submit that there should be an uplift of 10 per cent for your previous convictions and accept that there should be a discount of some 15 to 20 per cent for your plea of guilty.

[137] I have read the submissions filed by Mr Williams on your behalf before coming into Court. He has emphasised that Mr Kahui is the primary offender and he was the person who had something to gain from the offending not you. It is submitted that you were simply a subordinate and acting under instructions from Mr Kahui.

[138] It has been pointed out that neither assault with intent to injure was committed and the two charges are conspiracy charges rather than substantive charges. It is submitted that there is no evidence that you gave specific directions to Mr Patterson as to how to damage Ms Parker’s vehicle.

[139] It is submitted that the starting point for you should be lower than Mr Kahui and Mr Patterson. It is submitted that no more than three months should be uplifted for the conspiracy charges and 15 per cent discount should be given in relation to the cultural report.

[140] In terms of the purposes of sentencing they are to hold you accountable and to denounce your conduct and I also find as a purpose of sentencing is to protect the public.

[141] In terms of the principles of sentencing I am required to impose the least restrictive sentence. There is a need for consistency between your case and other cases. I am required to take into account the seriousness of the offending, the gravity of the offending and take into account your culpability.

[142] Again, while I have been given various cases that look at conspiracies and look at charges of attempting to pervert the course of justice, again I need to put your offending into the proper context in which it occurred which involved gang intimidation over a significant period of time and a real attempt to prevent a witness from giving evidence against a gang president.

[143] You were an integral part of the gang, being a vice president. You were the person on the outside receiving orders from Mr Kahui. You passed those orders on. you knew that Ms Parker’s car was going to be extensively damaged. You knew that the previous attempt to damage resulted in a broken window and that there must have been a more significant and substantial act which was going to occur against her car.

[144] I accept that there is no evidence that you ordered the arson against the car. I accept that there is no direct evidence that you knew that an arson was going to occur but I find it difficult to accept that in your position as vice president and the person

who was in charge on the outside, that you had absolutely no idea of what was going to occur. After the damage had occurred to the car you then passed on to Mr Kahui that the car had been done.

[145] I assess your role in the attempting to pervert the course of justice charge, your culpability as being at the higher end of the scale. As far as the conspiracies are concerned I accept that the violence was not carried out. That was for a variety of reasons, you could not find one of the victims and you could not get support. Had that actually occurred then you would have been charged with something else but again that needs to be seen in the gang context which is an aggravated factor relating to that offending and all of the offending.

[146] I regard your offending Mr McKenzie as being serious. Your culpability is high and as I have said your role in the gang was that of vice president and the head person outside the prison after Mr Kahui had been imprisoned.

[147] In respect of the attempting to pervert the course of justice charge I take as a starting point on that charge a sentence of four and a half years’ imprisonment, that is 24 months’ imprisonment.

[148] I uplift that by 9 months on each charge for the two conspiracy charges, they are concurrent with each other but the nine months will be added to the 54 months. That then means that there is a provisional sentence of 63 months’ imprisonment.

[149] I do not uplift for your previous convictions because I think that this offending occurred within the specific gang context related to what happened in Cobden and Greymouth.

[150] In terms of any discounts from the 63 months’ imprisonment I intend to reduce the sentence by five per cent to take into account your rehabilitative prospects.

[151] What you do in prison in relation to your association with other gangs and with tattoos is a matter for you, but I intend to reduce the sentence by five per cent to take into account your rehabilitative prospects.

[152] I also intend to take into account the cultural report and your personal circumstances. Again I accept that you were exposed to violence at any age and I intend to reduce the sentence by 10 per cent to take that into account.

[153] I also intend to reduce the sentence by 20 per cent to take into account your plea of guilty. It did save a trial and did not mean that the victims had to come Court to give evidence.

[154] That then means that there is a 35 per cent discount from the 63 months’ sentence. That 35 per cent equates to 22 months and when that is reduced from the 63 months, that then means that there is a sentence of 41 months’ imprisonment, a sentence of three years and five months’ imprisonment.

[155] The way that I intend to impose that is by imposing three years, five months’ imprisonment on the attempting to pervert the course of justice and on the two conspiracy charges, nine months’ imprisonment.

[156] That will be concurrent with the effective sentence of three years, five months’ imprisonment and on the intimidation charge you are convicted and discharged.

Judge S J O'Driscoll

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 21/02/2024