R v Rewi HC Rotorua CRI-2009-063-5871 [2011] NZHC 1836 (23 November 2011)

Last Updated: 15 January 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2009-063-5871}

THE QUEEN

v

JARRAD REWI

Hearing: 23 November 2011

Counsel: F Pilditch for Crown

H Edward for Prisoner

Judgment: 23 November 2011

_{SENTENCING REMARKS OF LANG J}

R V REWI HC ROT CRI-2009-063-5871 23 November 2011

[1] Mr Rewi, you appear for sentence today having pleaded guilty to participating in an organised criminal group. The maximum penalty for that offence, as at the date upon which you committed it, was five years imprisonment.

[2] You were originally to be sentenced by Priestley J on 2 November 2011. On that date, however, the proposal was that you would serve a sentence of home detention at an address in Murapara. The Judge was not prepared to countenance that suggestion because of the fact that the events that have given rise to the charge occurred in Murapara, and there was a real risk of further offending if you returned there. For that reason the Judge adjourned sentencing so that a new home detention appendix could be prepared involving an address outside Murapara.

Background

[3] The events that gave rise to the charge occurred on the late evening of

2 October 2009 and the early hours of the following morning. On the evening of

2 October 2009 a number of your associates, all of whom were connected in one way or another with the Mongrel Mob, drove around Murapara making their presence widely known. In doing so, they engaged in a series of incidents with the occupants of the address at 60 Tawa Street, Murapara. That address was closely associated with a rival gang, the Tribesmen. Some form of social gathering was being held at that address, and taunts were directed by your associates to the occupants of the address. Subsequently, your associates endeavoured to engage the occupants of the address in some form of physical altercation, but they declined that invitation.

[4] At around this stage, you made your way to an address frequented by the Mongrel Mob at 24 Tawa Street. In the early hours of 3 October 2009 those present at the address of 60 Tawa Street made their way down the street to confront the occupants of 24 Tawa Street. As they made their way towards the address, they armed themselves with fence palings and other weapons.

[5] You and the other occupants of 24 Tawa Street became aware of the rival group outside the address. You then decided to take matters into your own hands by confronting them en masse. You exited the address led by some of your associates

driving a utility motor vehicle. The utility motor vehicle drove directly towards the group of people outside the address, and made as if it was going to run them down. You and a number of your associates followed the vehicle out of the address towards the group outside. Not surprisingly, the sudden appearance of a vehicle being driven at speed towards them caused the group outside the address to disperse and scatter in a number of directions. You and your associates then began pursuing various members of the rival group.

[6] The utility vehicle also gave chase to members of the group. At one stage, it obviously went out of control and became lodged in a house property across the road and up the street from 24 Tawa Street. You were around the vehicle at the time that the vehicle was dislodged from the building so that it could resume pursuit of the rival group.

[7] You then chased a member of the rival group away from the area and back towards 60 Tawa Street. Your associates, meanwhile, continued pursuing other members of the group that had arrived at 24 Tawa Street.

[8] The incident ended in a most serious way with three of your associates confronting one of the other members of the rival group further up the road. They then administered a serious beating that led to his death a short time later. Those three persons were ultimately convicted of murder and manslaughter, and are currently awaiting sentence.

[9] The Crown accepts that you were not part of the group that pursued the victim who was fatally injured. You were, however, definitely in the vicinity at that time and, by your own admission, had been pursuing another member of the rival group.

[10] This incident cannot be seen as a standalone incident. It was one of but many incidents involving violence that had occurred in the township of Murapara in the preceding nine or ten months. There had earlier been a fatal incident when a young person was killed early in 2009. I am told that there was then another incident in August 2009, in which the property at 24 Tawa Street was attacked and an occupant

badly injured. The incident that gave rise to the charge to which you pleaded guilty was simply one more incident in a long line of events involving hostility between the two rival groups, the Mongrel Mob and the Tribesmen.

[11] As the Crown points out, those incidents have created real fear within the township of Murapara. The sentences that the Court must impose need to reflect the fact that the message has to get through that violence of this type is not acceptable to the community.

[12] Your culpability lay in being a member of a group that embarked on an undertaking that was virtually certain to end in serious violence. The fact that you were prepared to become part of a group that used a motor vehicle as a form of battering ram takes the offending into a serious category. It is also clear that members of your group were armed with weapons of various types.

[13] Given the events that had occurred earlier that evening, serious violence was virtually inevitable as soon as you and other members of your group left the property to confront those waiting outside. Having said that, the Crown accepts that you were not part of the group that fatally injured the man further up the street.

Sentencing Act 2002

[14] In any case involving serious violence, issues of deterrence and denunciation are to the forefront. As I have said, the courts must demonstrate that violence of that type will not be tolerated. It is important, however, that the sentence that you receive is broadly consistent with that imposed in like cases.

Starting point

[15] The Crown has provided me with several cases in which the courts have imposed sentences on persons who have pleaded guilty to, or been found guilty of,

_{the charge that you now face.}[1] _{These demonstrate that a sentence of between two}

years and two years six months imprisonment is generally appropriate. Priestley J was of the view that a starting point of two years three months imprisonment was appropriate in your case. He was uniquely placed to reach that assessment because he presided over the trial of your co-accused and, in particular, those charged with fatally injuring the victim on that night. Counsel take no issue with that starting point, and I propose to adopt it.

Aggravating factors

[16] There are no aggravating factors, in the sense of previous convictions, that would operate to increase the starting point that I have selected.

Mitigating factors

[17] In terms of mitigating factors, Priestley J identified several. First, there is your age. You were only 17 years at the date of the incident, and you are just 20 years of age now. You have limited previous convictions, and you were in full employment at the time this incident occurred. Priestley J would have made an allowance of three months to reflect those factors and I take the same approach.

[18] It is also necessary to have regard to the fact that you have been either on bail under very restrictive conditions or in custody for considerable periods during your time on remand. You were originally released on bail, but between February and May 2011 you spent approximately four months in custody. You must bear some of the blame for this, because your remand in custody followed as a result of you breaching your bail conditions. Nevertheless, because I am going to impose an end sentence of home detention, it is necessary to give this factor some concrete recognition. Otherwise you would receive no credit for it, whereas it would have been taken into account in the event that I was to impose a sentence of

_{imprisonment.}

[19] You have also been subject to electronic bail between May and November

2011. This means that you have already served a significant period of what is effectively home detention under electronic monitoring conditions.

[20] Priestley J was prepared to make an allowance of approximately two to three months for this, although he said that perhaps more credit could be given for it. I am not sure that the Judge was aware of the fact that you had spent four months in custody when he made that allowance. I propose to provide you with an allowance of six months to reflect these factors.

[21] The final factor that needs to be taken into account by way of mitigation is the fact that you have entered a guilty plea, albeit at a relatively late stage. The Judge was prepared to make an allowance of five months, or approximately 20 per cent, for that factor and I propose to adopt the same approach. This means that from the end starting point of 27 months imprisonment, I need to deduct 14 months to reflect the factors to which I have referred. This leads to an end sentence of one year one month imprisonment.

Home detention

[22] As a result of that sentence, you are eligible to serve your sentence by way of home detention. That was clearly the form of sentence that Priestley J favoured, and I see no reason to take a different view.

[23] It is clear from the pre-sentence report that you became involved in this incident because of your allegiance to the Mongrel Mob and its associates. You have lived in Murapara for a very considerable period of time, and it is not surprising that you ended up siding with one faction in the ongoing dispute. You obviously felt a misguided sense of allegiance to your fellow associates, and felt the need to protect them on the night in question. You now appreciate that your loyalty was misplaced, and that you ought not to have become involved in the incident that occurred.

[24] The pre-sentence report makes it clear that you have real promise. You have an excellent reference from a previous employer who speaks highly of you. It is to

be hoped that you are able to follow through on those abilities because, if you do, then a path free of crime is open to you. It is essential, however, that you now sever your links with Murapara and the Mongrel Mob. As Priestley J noted on

2 November, if you do not, your future is bleak. If you return to that situation, the reality is that you will be tempted again to become involved in incidents of violence and next time this will inevitably lead to a sentence of imprisonment.

[25] I take the view that a sentence of home detention is appropriate. The proposed address is in Galatea, and has been recommended as being suitable in all respects for a sentence of home detention.

[26] In addition, I consider that it is essential that you serve a sentence of community work. I say this for three reasons. First, it will assist you to give something back to the community. That is particularly appropriate, because the community in Murapara has been traumatised by the events about which I have spoken. Second, it will provide you with the opportunity to engage in worthwhile activity whilst serving your sentence of home detention. Third, it will hopefully provide you with some further life and/or work skills that you can put to good use once you have completed your sentence.

Sentence

[27] Mr Rewi, on the charge to which you have pleaded guilty you are sentenced to six months two weeks home detention. In addition, you are ordered to perform

180 hours of community work. I hope that the community work will be of a type that is commensurate with the skills that you already have.

[28] Because the sentence of home detention is of more than six months duration, the standard post release conditions will apply for a period of 12 months following completion of your sentence.

[29] I consider in your case that it is appropriate to impose a special post release condition to ensure that you do not become tempted to return to Murapara as soon as you complete your sentence of home detention. As I have said, your severance from

that community is essential if you are to remain out of trouble and to begin a worthwhile life and work style.

[30] For that reason I impose a special post release condition that you are not to reside in Murapara for a period of nine months following the completion of your sentence of home detention. You are not to work in the Murapara township unless granted permission to do so by your probation officer. The latter condition is to enure for a period of 12 months following completion of the sentence of home detention.

[31] The sentence of home detention is on the following conditions:

1. You are to travel directly from Court to the address at 130 Grant

Road, Galatea.

2. You are to reside at that address for the duration of your sentence.

3. You are not to leave that address, other than to perform the sentence of community work that I have imposed, and in other circumstances with the prior approval of your probation officer.

4. You are not to be in possession of, or consume, illicit drugs and/or alcohol for the duration of your sentence.

5. You are to undertake such alcohol and other drug assessment programmes and to complete any recommended counselling and treatment for abuse of alcohol and other drugs as may be directed by your probation officer and the programme provider.

6. You are to undertake and complete a Tikanga Maori Programme subject to availability to the satisfaction of your probation officer and programme provider.

_{[32] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:

H Edward, Rotorua

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[1] R v Church (2008) NZCA 272; R v Smith HC Wellington CRI-2008-085-2762, 13 June 2008; R v

Mitford [2005] 1 NZLR 753; R v Te Tomo HC Rotorua CRI-2009-063-1915, 30 October 2009; R v

Pukeroa & Ors HC Rotorua CRI-2009-063-697, 10 December 2010.