R v Fox HC Rotorua CRI 2009-063-697 [2011] NZHC 1152 (26 September 2011)

Last Updated: 20 October 2011

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI 2009-063-697}

THE QUEEN

v

CLAYTON FOX

Hearing: 26 September 2011 (Heard at Hamilton)

Appearances: L H Maynard for Crown

J Bergseng for Prisioner

Judgment: 26 September 2011

_{SENTENCE OF KEANE J}

Solicitors:

Crown Solicitor, Rotorua

J Bergseng, Rotorua

R V CLAYTON FOX HC ROT CRI 2009-063-697 26 September 2011

[1] Clayton Fox you appear for sentence for participating in an organised criminal group, the Mongrel Mob, between 27 January 2009 and 4 February 2009 at Murupara and Kawerau. You have pleaded to that offence just as your trial, in fact your retrial, is about to commence.

[2] You committed your offence within the context of a conflict between Mongrel Mob members from Murupara, Kawerau and other areas, and the Tribesmen chapter in Murupara on 26 and 27 January 2009, principally, but also in the days following.

[3] The conflict began on 26 January 2009. It escalated sharply on 27 January

2009 when the principal offender, Quentin Pukeroa, was assaulted by Tribesmen and his truck taken. He then went to 32 Tawa Street where Mongrel Mob members were present. Thirteen left that address armed with bats and weapons.

[4] They went first to 43 Matai Street, and then 10 Matai Street, each addresses at which the Tribesmen responsible were assumed to live. At the second they wrecked the house and in the midst of escalating violence Mr Pukeroa drove a Hilux utility on to the property at speed causing the death of a young boy, Jordan Herewini.

[5] After that happened Mongrel Mob members returned to 32 Tawa Street, the home of the local member, Terry Faataape, where they continued drinking. Throughout the night Tribesmen drove past and threw bottles, abuse was exchanged, and there was the potential for continuing conflict. Some Mongrel Mob went out looking to retaliate.

[6] During that aspect of the evening text messages were exchanged as to what was happening and what could happen; and, though that continued in the days following, your offence lay solely in participating that evening at 32 Tawa Street after Mongrel Mob members returned from Matai Street.

[7] There is no evidence linking you to Matai Street. Such evidence as there is, and it comes from text messages between you and one of your co-offenders, Jason

Iopata, confirms that if there were any further violence, you were willing to play your part. You were, as you then saw it, involved in the conflict and all that implied.

[8] You have waived your right to a pre-sentence report, and your counsel tells me, and I accept, that after being remanded in custody twice, first between 14

February and 18 September 2009 and then 10 December 2009 and 12 November

2010, 18 months in all, your life now is on a more positive footing.

[9] Your counsel tells me, and I accept, that in the last seven months you have been living in Kawerau in a new relationship; that you have the care of your young children; that you are working in your father's business as an electrician, as is your sister; that the two of you hope to take over the business, and that you have assumed responsibility for the care of a local marae.

[10] If all that is true, and I accept what your counsel says, that is a very positive advance. Your offending in recent years has involved serious violence for which you have been imprisoned.

[11] In the sentence I impose on you I must denounce what you have done, which was inherently serious and even more serious potentially. I must hold you accountable for it and impose on you a sentence which deters you and others. The sentence I impose must also be consistent with the sentences imposed by Wylie J on

10 December 2010 on your co-offenders after trial.[1]

[12] For Mr Pukeroa, the principal offender responsible for the murder of the young boy, whom he described as the lead player of the organised criminal group of which you were part, Wylie J took a starting point of three years. For Mr Aramoana, the next most serious offender, who also played an active part at Matai Street, he took a starting point of two years, six months.

[13] For Mr Faataape, whose house was the gang centre in Murupara and who was also involved in the days afterwards in exchanging consistent text messages, he took

_{a starting point of two years, three months. For Mr Iopata, who had left Murupara for}

Kawerau but was willing to return, and kept in contact in the days afterwards in case he had to, he took a starting point of two years.

[14] I agree with counsel that within that spectrum your culpability is closest to that of Mr Iopata and that the starting point of two years taken for him is proper for you. I agree also that your previous offending does not call for an uplift. I agree, finally, that if Mr Iopata obtained a one month discount for plea in the second week of trial, you should have a two month discount for plea on the first day of trial.

[15] The upshot is that I sentence you to imprisonment for 22 months, a sentence, I understand, as a result of the time you have spent in custody on remand, that you may have already served. If that is so, you are entitled to be released immediately but

_{that will have to be verified before you are released.}

P.J. Keane J

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[1] R v Pukeroa & Ors HC Rotorua CRI 2009-063-000697, 10 December 2010.