R v Teddy HC Rotorua CRI 2009-063-000697 [2011] NZHC 229 (18 March 2011)

Last Updated: 4 June 2011

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI 2009-063-000697}

THE QUEEN

v

LYNETTE VICTORIA TEDDY

Hearing: 18 March 2011

Counsel: F Pilditch for the Crown

M Simpkins for the Prisoner Teddy

Judgment: 18 March 2011

_{SENTENCING NOTES OF WYLIE J}

R V TEDDY HC ROT CRI 2009-063-000697 18 March 2011

[1] Ms Teddy you can remain seated until I tell you to stand. Ms Teddy, you are one of a number of persons who were involved in a gang-related confrontation which occurred in Murupara in late January 2009, and which culminated in the death of Jordon Herewini.

[2] Shortly after the trial commenced in October last year, you pleaded guilty to a count of participation in an organised criminal group.

[3] Participation in an organised criminal group is an offence pursuant to s 98A of the Crimes Act 1961. Although it has since been increased, at the relevant time, the maximum penalty was a term of imprisonment of five years.

Relevant Facts

[4] Your offending arose out of a confrontation between the Mongrel Mob and local residents of Murupara, many of whom were members of the Tribesmen gang.

[5] Mongrel Mob members arrived to attend a tangi in Murupara on or about Monday 27 January 2009. Various members of the gang stayed in the town at Mr Terry Faataape‟s home for several days thereafter. These members included Mr Pukeroa, Mr Aramoana and Mr Iopata. Tensions between Mongrel Mob members and local Tribesmen gang members gradually escalated, particularly after an incident in the township where Mr Pukeroa was assaulted by a number of locals. One of those locals was Mr Iwi Delamere. Shortly after the assault, another local took Mr Pukeroa‟s motor vehicle and it was later found burnt out near a nearby quarry.

[6] Mr Pukeroa informed other members of the Mongrel Mob about the incident. As a consequence, gang members armed themselves with weapons and formed a convoy of vehicles to go after the people they believed were involved. You drove one of the vehicles in this convoy and you directed where they should go. Mr Delamere was spotted. Mongrel Mob members believed he was associated with the events that had occurred. They pursued him to his house at 43 Matai Street.

Mr Delamere escaped, but several Mongrel Mob members went onto the property, smashing windows in the house, damaging vehicles located on the property, and entering the house and smashing various items of furniture. You were present, although you did not go onto the property or inflict any damage. You got out of the vehicle you were driving and stood in front of the house encouraging the Mob members and you also became involved in a verbal altercation with Mr Delamere‟s partner, Wai Rurehe.

[7] The Mongrel Mob members then went to another property at 10 Matai Street where one of the victims, Jamie Herewini, was attacked with a weapon, probably an axe. Subsequently, Mr Pukeroa got into Mahu Herewini‟s ute and ran down Jordan Herewini who was trying to escape. Jordan died en route to hospital as a result of injuries he received.

[8] The Crown does not suggest and I accept that you were not present when the subsequent events took place at the property at 10 Matai Street.

Victim Impact Statement

[9] When your co-accused were sentenced in December 2010, I received a number of victim impact statements. One of those victim impact statements is relevant to your offending. It was from Wai Rurehe. She described how scared and fearful she and her baby were when Mongrel Mob members forced their way into her home at 43 Matai Street. Indeed, she has since moved away from Murupara. The house was so damaged that she could not afford to replace things. She did not want to be there anyway, because there were so many unpleasant and horrible memories for her. She also described how Murupara was left in mourning following Jordan Herewini‟s death.

Pre-Sentence Report

[10] You are a 40 year-old woman of Māori descent residing in Murupara in rental accommodation. You were born in Rotorua and you are one of 10 siblings. Your

upbringing was „happy as can be‟ until you were 17 years old. At that age, one of your brothers died; your mother also passed away when you were 19.

[11] You state that you have only ever had erratic periods of employment, having spent most of your time raising your three children. You currently work part-time as a teacher‟s aide and you are supported by a benefit from Work and Income New Zealand. You have fines outstanding and enforcement costs of some $2,134.

[12] You have been with your current partner (Mr Richard Faataape) for approximately 20 years. You state that your relationship is good and that you choose to live at different addresses. You have three children together aged 12, 15 and 18. Your two sons live between both houses, while your daughter lives with you.

[13] You state that you have not consumed cannabis since before your youngest was born. You also maintain that you rarely drink alcohol, and that the large amount you drank on the day of the tangi was an exception due to grief over your nephew‟s death. You report that you have no gambling issues and no direct gang affiliation.

[14] You have no prior convictions.

[15] You stated initially that you pleaded guilty to the charge on the advice of your counsel, and you maintained that you were not involved in the incident. According to your initial statement, you have never been a member of any gang and had not met the co-accused until the day of the deposition hearing. On the day of the offending, you stated that you had attended your nephew‟s tangi and you drank an uncharacteristic amount of alcohol. Your memory of the incident was that you stopped on the way to the liquor store to assist a woman who was screaming on her front lawn. You said that you waited there to assist the woman with her child, and that after the woman left, you drove to your niece‟s house and then to your partner‟s house. You stated that you were “gutted” and “shocked” upon hearing of what had happened that night. However, at least initially, you did not take any responsibility for the offending.

[16] The main factors contributing to your offending were the people you were associating with, as well as your level of intoxication which distorted your ability to reason. The pre-sentence report notes that you view your associates as people you grew up with rather than gang members. The Probation Officer assesses you to be as being at low risk of reoffending, given that this is your first conviction. But concern was expressed that your immediate family is involved with gangs.

[17] The officer recommended a sentence of community work and home detention.

[18] A home detention annexure has been completed for 54 Miro Drive, Murupara, and consent has been obtained from your daughter (aged 18). The Corrections Department considers that you are a suitable candidate for home detention.

[19] Additionally, the officer considered that you would benefit from counselling for alcohol use with the Te Ika Whenua Counselling Trust in Murupara. This would involve an initial assessment followed by six counselling sessions.

[20] I have this morning received various letters in support of you. There are letters from the principal at Rangitahi College where you are employed as a teacher‟s aide. The letter describes you as being honest, hardworking, always positive in your attitude and doing your best for the students at the college. You are involved in sporting activities, with fundraising ventures and in other ways. I have also received a number of others letters speaking about your efforts and support in the community and its affairs. Many of those who have written in support, state that you are a very supportive mother, and that you are passionate in helping your children to learn and achieve through the education system.

Submissions

[21] I now turn to the submissions I have received from Mr Pilditch and

Mr Simpkins.

[20] Mr Pilditch for the Crown submits that your offending justifies a starting point in the region of two to two and a half years‟ imprisonment. He acknowledges that I will then need to take into account mitigating factors personal to you, including your guilty plea. He also acknowledges that the possibility of home detention may arise, and does not oppose a sentence of home detention.

[21] Mr Simpkins on your behalf submits that your role was relatively minor in comparison to the overall events that occurred on the evening of 27 January 2009. He submits that you did not demonstrate any physical violence towards the victims, and that you were not in possession of a weapon. He acknowledged that some thought went into your behaviour, but notes that you were intoxicated at the time, and that such premeditation as occurred, occurred without detailed planning. He notes that you pleaded guilty at the commencement of the trial, and he points to various factors personal to you which mitigate your offending. He notes that you are genuinely remorseful about what has occurred, and refers to your willingness to participate in the restorative justice process. He submits that your situation is different to that of your co-accused, and argues that I should apply ss 8(g) and 16 of the Sentencing Act 2002, and resist imposing a sentence of imprisonment. He submits that home detention would hold you accountable for your part in the offending, and that a combined sentence of home detention and community work pursuant to s 19(8) of the Sentencing Act 2002 would adequately address your situation.

Purposes and Principles of Sentencing

[22] In sentencing you, I am required by the Sentencing Act 2002 to consider the purposes and principles of sentencing set out in ss 7 and 8 of that Act.

[23] In my judgment, the following purposes of sentencing in s7 are particularly relevant in your case:

1. first, I must seek to hold you accountable for the harm you have done to the community by your offending;

b) secondly, I must seek to promote in you a sense of responsibility for, and acknowledgement of that harm, although I accept you already accept responsibility and acknowledge the harm you have caused;

c) thirdly, I must seek to provide for the interests of the victim of your offending;

d) fourthly, and importantly in this case, I must denounce the appalling conduct in which you and the Mongrel Mob members were involved; and

e) finally, I must seek to deter you and others from committing the same or a similar offence.

[24] Under s 8 of the Act, I have also taken into account the following principles of sentencing:

a) the gravity of your offending, including your degree of culpability;

b) the seriousness of the offence in respect of which you have been convicted;

c) the general desirability of consistency with appropriate sentencing levels for similar offenders committing similar offences in similar circumstances; and

d) finally, the information provided to me concerning the effect of your offending on the victim.

[25] I must not take into account by way of mitigation the fact that you were, or claim that you were, affected by alcohol at the time of the offending.

Analysis

[26] There is no tariff case in relation to the offending in respect of which you have been convicted, but there are a number of decisions which do help.

[27] I refer first to R v Church.[1] That case involved gang violence between Black Power and Mongrel Mob members in Wanganui. After an incident at a rugby league match, Mongrel Mob members gathered together and went to confront the Black Power members. They went to a Black Power house. It was entered and the occupants were assaulted. Vehicles driven by Mongrel Mob members were used to try to run over Black Power members. The violence culminated in a two-year-old girl being shot and killed while she was asleep. Three Mongrel Mob members were sentenced on the charge of participation in an organised criminal group. The Crown accepted that they had no idea that there was a firearm in one of the vehicles. However, they got into the vehicles knowing that they were heading towards a Black Power house, and that a gang confrontation was going to occur. In the High Court, Ronald Young J considered that the appropriate starting point for each offender was three years‟ imprisonment. He considered that Mr Church had made a deliberate decision to involve himself in the intended activity, knowing that a violent confrontation would follow. This starting point was reduced to two and a half years‟ imprisonment to recognise that he was involved on the periphery of the events. The

Court of Appeal[2] upheld the sentence in the High Court, stating that it was within the

acceptable range. Home detention was not considered appropriate given the need to

deter and denounce Mr Church‟s offending.

[28] In R v Smith,[3] Ronald Young J sentenced another prisoner for participation in a criminal group, and for various other offences, including the possession of ammunition. The participation charge arose out of the same incident as the Church case. He adopted a starting point of two and a half years. Two months were added

_{to the starting point to reflect, amongst other things, the charge of possession of}

ammunition. A one-month concurrent sentence was given for possession of the ammunition.

[29] R v Mitford,[4] involved two incidents. In the first one, Mr Mitford, Mr Epapara, and another went to a house demanding “compensation” from the owner. Apparently, the owner‟s sons had made what were considered inappropriate comments to a Black Power member. When compensation was refused the owner was assaulted and told to find the money. The second incident involved a gang confrontation. Mr Epapara was a close associate of the Black Power gang. After attending a party, he, along with three others, decided to visit Mongrel Mob members to exact retribution for an earlier shooting. They drove to two houses where Mongrel Mob members lived. They entered the first house, assaulted the victim and robbed him of his gang patch. At the second house, they induced the victim to come to the door and then shot him. Mr Mitford and Mr Epapara both pleaded guilty to participating in organised criminal groups. The starting point adopted by the High Court in Mr Mitford‟s case was one of two years‟ imprisonment. His role during the visit to the house was to observe one of his co- offenders in making demands and punching the victim. The Court of Appeal upheld the starting point adopted by the Judge. Again, home detention was dismissed as being an inappropriate sentence given the need to deter offences of this kind. In Mr Epapara‟s case, a starting point of three years‟ imprisonment was adopted. The High Court Judge had accepted that Mr Epapara‟s role in the offending was peripheral, but noted the wide scope of s 98A. The Court of Appeal upheld this

starting point. It commented as follows:[5]

Offending under s 98A with the objective of committing serious violent offences will tend to be viewed more seriously than offending with the objective of obtaining material benefits...

[30] In R v Wharewaka,[6] Baragwanath J sentenced various Black Power members and associates for drug-related offending. One member had pleaded guilty to participating in an organised criminal group and to unlawful possession of a firearm.

_{The object of the group was to obtain benefits from the manufacture of}

methamphetamine and the sale and cultivation of cannabis. His Honour adopted a starting point of 14 months‟ imprisonment on the firearms charge, and imposed a cumulative sentence of eight months‟ imprisonment for the charge of being involved in an organised criminal group.

[31] In R v Gledhill,[7] the prisoner pleaded guilty to wounding with reckless disregard for the safety of others and to participation in an organised criminal group. Ms Gledhill was travelling in a vehicle. She stopped when she saw rival gang members. She attacked them with a cricket bat. The Court of Appeal adopted a starting point of two years and 11 months in relation to the charge of participation in an organised criminal group.

[32] Turning back to the present case, I have considered the sentences I imposed on your co-offenders. Mr Te Tomo participated in the same organised criminal group as you.[8] He attended at 43 Matai Street, although there was nothing to suggest that he went onto the property. He accepted that he went to the property for a fight with members of the Tribesmen gang. There was no evidence to suggest that he attended at 10 Matai Street. I adopted a starting point of two and a half years in relation to the offence of participation in an organised criminal group. I considered the aggravating features of Mr Te Tomo‟s offending — in particular, that he was part

of a group that armed itself with weapons which were used to cause damage to the property at 43 Matai Street. I accepted there was no evidence that he personally had a weapon, but nevertheless, considered that he was part of a group which had armed itself, and then set out to achieve a criminal purpose. I also considered that there was clear premeditation, because Mr Te Tomo banded together with others and set out to attack the people whom he considered were responsible for the earlier events.

[33] Mr Faataape was sentenced to two years and four months‟ imprisonment. I

adopted an initial starting point of two years and three months. He had previous convictions for violent offending, and there were no mitigating circumstances.

[34] Mr Iopata was sentenced to 11 months‟ home detention, plus 150 hours of community work. I also ordered that he should attend an alcohol and drug rehabilitation programme. I took as my initial starting point, two years‟ imprisonment. There were no relevant aggravating features; he entered a guilty plea during the second week of the trial, expressed remorse, and enjoyed strong family support. He also played a very limited role in the offending which took place.

[35] Mr Aramoana was sentenced to two years, five months and two weeks‟ imprisonment. His involvement was extensive. My initial starting point was two years and six months‟ imprisonment. The only mitigating circumstance was a very late guilty plea.

[36] Turning to your position, I accept that your involvement was limited. However, you drove a vehicle in the convoy, you pointed out locations of interest, and you were present at the first incident at 43 Matai Street. You did not have a weapon, but you were part of a group which armed itself, and set out to achieve a criminal purpose. The likelihood of violence was high. Nevertheless, you and various Mongrel Mob members set out to exact revenge. There was a degree of premeditation involved.

[37] In my view, the appropriate starting point, given your level of involvement, is one of two years and three months‟ imprisonment.

Aggravating and Mitigating Factors Personal to You

[38] There are no aggravating factors personal to you that I am aware of. [39] There are, however, a number of mitigating factors.

a) First, I take into account your previous good character. This is your first offence. It is appropriate to allow you a discount of three months, to recognise your previous good character.

b) Secondly, you have not only expressed remorse, but you have taken active steps to try and remedy matters in your local community. You have endeavoured to participate in the restorative justice process. As I understand it, you have been anxious to attend a meeting with those affected by your actions, and various attempts have been made to orchestrate a meeting, both from Mana Social Services, and also through a local kaumātua, Mr Pem Bird. No meeting has occurred, but that is not of your making. Section 8(j) of the Sentencing Act requires me to take into account any outcomes of a restorative justice process that has occurred, or that I am satisfied are likely to occur.

You have offered to participate in the restorative justice process, and you have taken active steps to advance that process. Mr Pilditch has suggested that I should impose a condition requiring that you attend any restorative justice process and that can be arranged subsequent to sentence. Mr Simpkins on your behalf has noted that such condition is acceptable to you.

I have also received today a letter from you addressed to Ms Rurehe. In that letter you apologise to Ms Rurehe and to her whanau for the pain and suffering your actions caused them.

I am satisfied that the remorse you have shown is genuine and I accept that you are deeply sorry for the pain and suffering that has occurred. You have made every reasonable effort to make amends and I am prepared to allow you a discount of three months to take into account the fact that you have tried, and will continue to try to take part in the restorative justice process.

c) Finally, there is your guilty plea. While it was entered relatively late in the day, nevertheless, you have ultimately accepted responsibility for your part in the offending which occurred. I allow you a further discount of one month for that guilty plea.

[40] Ms Teddy, the result is that my end point is a sentence of 20 months‟

imprisonment.

[41] That is a short-term sentence of imprisonment, as those words are defined in the Sentencing Act, and in the Parole Act 2002. A sentence of home detention is available to me, provided I am satisfied that the purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences. Here the offending in respect of which you have pleaded guilty and have been convicted is serious. It is important to denounce the conduct in which you were involved. In my view, the purposes for which you are being sentenced cannot be achieved by any less restrictive sentence. I am however prepared to impose a sentence of home detention, together with a sentence of community work. The community is rightly affronted by gangs who take the law into their own hands, and by those who assist them and it cannot and should not be expected to put up with the lawless mayhem which occurred on the night of 27 January 2009 in Murupara.

[42] Given your limited role, I am satisfied that home detention and community work will be a sufficient deterrent to you, and will sufficiently denounce your conduct. I accept the submissions made on your behalf, that there was an element of tit-for-tat, because of a previous assault on your son. I accept that you are a long- standing member of the local community and that you are committed to making an active contribution to that community. I also note Mr Pilditch‟s submission, which I have taken into account, that it is important for the community of Murupara to be able to move forward and leave these sad events behind it. In my judgment, a sentence of home detention, together with a sentence of community work will assist in that process.

Sentence

[43] Ms Teddy will you please stand.

[44] In respect of the conviction for participating in an organised criminal group, you are sentenced to home detention for a period of 10 months. The sentence is to be served at 54 Miro Drive, Murupara.

[45] While you are serving the sentence, you are to be subject to the standard conditions set out in s 80C(2) of the Sentencing Act. In addition, I impose the following conditions:

a) You are to remain in Court while the particulars of sentence are drawn up in the form of an order. You are to be detained in custody for this purpose for a period not exceeding two hours.

b) Upon your release from Court, you are to travel directly to 54 Miro Drive, Murupara, and await the arrival of a probation officer and a security officer, and the installation of the electronic monitoring equipment.

c) You are to reside at 54 Miro Drive, Murupara for the duration of this sentence.

d) You are not to possess or consume alcohol and/or illicit drugs for the duration of the sentence.

e) You are to report to the probation officer as directed.

f) You are to attend and complete an appropriate drug and alcohol rehabilitation programme to the satisfaction of the probation officer and the programme provider. Details of the appropriate programme are to be determined by the probation officer.

g) You are to attend any restorative justice processes that are arranged subsequent to sentence and during the 10-month period by either the local community, Probation, or Mana Social Services.

[46] Following the conclusion of the sentence, the standard post detention conditions are to apply. Further, you are to undertake and complete any remaining rehabilitative programme, counselling, treatment, and maintenance follow-up programme as directed by the probation officer.

[47] In addition to the sentence of home detention, you are sentenced to 100 hours of community work.

_{[48] Ms Teddy you may stand down.}

_{Wylie J}

Distribution: F Pilditch:

M Simpkins:

---

[1] _{R v Church HC Wellington CRI-2008-085-2762, 23 May 2008.}
[2] _{R v Church [2008] NZCA 272.}
[3] R v Smith HC Wellington CRI-2008-085-2762, 13 June 2008.
[4] _{R v Mitford [2005] 1 NZLR 753 (CA).}
[5] _{Ibid, at [61].}
[6] R v Wharewaka HC Auckland CRI-2004-092-4373, 28 April 2005.
[7] _{R v Gledhill [2009] NZCA 415.}
[8] R v Te Tomo HC Rotorua CRI-2009-063-1915, 30 October 2009.