R v Waihape [2012] NZHC 198 (15 February 2012)

Last Updated: 1 April 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-082-526 [2012] NZHC 198

THE QUEEN

v

SAUL WAIHAPE VINCENT JAMES MONIKA

Counsel: R J Collins and J E Rielly for Crown

NCH Hewat for Waihape

J C Mathieson for Monika

Judgment: 15 February 2012

_{SENTENCING NOTES OF MACKENZIE J}

[1] Saul Waihape and Vincent Monika, you appear for sentence on one count of participation in an organised criminal group under s 98A of the Crimes Act 1961, and three counts of unlawful possession of a firearm. The charges arose out of a gunfight which took place at the Mongrel Mob paid in Wairoa on 10 August 2010.

[2] The events of the morning of 10 August 2010 had their origins in a long standing leadership dispute within the Mongrel Mob Wairoa. The immediate catalyst was a fracas which developed at the Mongrel Mob pad on the afternoon of 9 August. There was a confrontation between Rangi Tamati and Claude Edwards on one side, and Mr Gemmell and yourselves on the other. A fight developed. Rangi Tamati’s patch was removed. He left, making clear his intention to return.

[3] The two of you and Mr Gemmell anticipated a retaliation and made preparations to meet it. You obtained arms and ammunition and returned to the pad.

R V WAIHAPE HC WN CRI-2010-082-526 [15 February 2012]

The three of you, with others, spent the night at the pad. Early the following morning, you were joined by others, and there were then seven people inside the pad: The three of you and four others. You were collectively armed with a .22 calibre pistol, a 20 gauge pump action shotgun and a 12 gauge double barrel sawn- off shotgun.

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

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

[6] You Mr Monika contacted police. They responded first from Wairoa, and then with further resources, including the Armed Offenders Squad, from Gisborne. A total of 23 men were arrested at or near the pad and subsequently charged. Of them, 22 faced trial, in three trials. Six of those were acquitted on all counts, and

16 are to be sentenced today. All of those to be sentenced today have been convicted on the charge of participating in an organised criminal group.

[7] You are the only two from inside the pad to have been convicted. Your four co accused were acquitted on the only charges they faced, the three charges of possession of firearms. You were acquitted on the most serious charge which you faced, of being a party, under s 66(2) of the Crimes Act 1961, to wounding with intent to cause grievous bodily harm. You both faced that charge in relation to the

wounds incurred by Mr Edwards. Those outside faced that count in relation to the wounds incurred by Mr Gemmell. All those accused were acquitted on that charge.

[8] The main purposes of sentencing which are relevant are those of denunciation and deterrence. These events deserve the strongest possible denunciation. The resort of the groups to firearms is deserving of the highest level of denunciation, and the starting point must reflect that, and the need to deter others from similar conduct. It is not acceptable, in a civilised society, for people to resort to a gunfight to settle their differences. That is what those involved on both sides of this dispute did. This resulted in two men being wounded by gunshots, one seriously. The fact that none of those involved has been convicted on the wounding counts does not lessen the seriousness of the conduct in participating in a criminal group.

[9] A relevant sentencing principle to be applied in this case is that the Court must impose a penalty near to the maximum if the offending is near to the most serious for such cases. I consider that preparing for and participating in this shootout is towards the serious end of the spectrum for the wide range of criminality which can be covered by the offence of participation in an organised criminal group.

[10] I propose to sentence you by fixing a sentence for the lead charge, that of participation in a criminal group, which reflects the totality of your offending including the firearms charges. The possession of firearms and their use in the course of this incident is the most serious factor raising your culpability for the lead charge and it is appropriate, I consider, to reflect that in fixing the penalty for that charge.

[11] I must first fix a starting point which is appropriate to reflect the circumstances of that total offending. In fixing that starting point, I must consider relativity between the two groups, those inside and those outside. I must also consider relativity within each group, having regard to different levels of involvement, and culpability, within the group.

[12] I do not consider it appropriate to make any distinction, in terms of culpability, between the two groups. Both groups must, in my view, bear equal

responsibility for the gunfight. Both groups planned, or anticipated, a retaliation following the fracas the previous evening. Those outside initiated the confrontation, but those inside fired the first shots. Either side could, by acting differently, have avoided what happened that morning. I consider that the leaders of the two groups, and the prime instigators or what occurred, were Kelly Gemmell and Rangi Tamati.

[13] As to relativity between the two of you, I do not make any distinction between you in assessing your culpability. You both knew that a violent confrontation was likely, and you prepared and armed yourselves for that. Both of you participated actively in the preparations, and during the gunfight. I consider that both of you are equally culpable. Your culpability is at a level only a little below that of Mr Gemmell. You claimed that you were acting in self defence, and the jury’s verdict on the wounding charge suggests that the jury may have accepted that. But your acquittal on that charge does not reduce your culpability on the charges on which you are to be sentenced.

[14] The task of fixing the starting point for the offending is difficult, because there are few comparable cases, and even fewer where the participation in an organised criminal group stands alone, without a sentence for a serious offence forming part of the objective of the criminal group.

[15] One comparable situation is reflected in a number of sentencing decisions in an incident which led to the death of a two year old girl in Wanganui in May 2007.[1]

In the course of tensions between the Mongrel Mob and Black Power, a group of Mongrel Mob members gathered with the intention of confronting and inflicting serious harm on members of Black Power. The home of a Black Power member was targeted. Shots were fired from a car towards the house, one of which hit the little girl. The principal offenders were sentenced for murder and manslaughter. The relevant comparators for this case are four offenders sentenced only for participation

_{in an organised criminal group. They were sentenced on the basis that none of them}

knew of the firearm in the lead car. Starting points of two and a half and three years were adopted, and upheld on appeal.

[16] The next relevant case involves sentences imposed following a violent clash between Mongrel Mob and Tribesmen members in Murupara in January 2009, which resulted in the death of a rival gang member, who was deliberately run over.[2] The principal offender was sentenced for murder. Four others were sentenced for participation in an organised criminal group. They had been present during a number of incidents between the gangs, including that in which the death occurred. Starting points of between two and two and a half years were adopted.

[17] In a third case, in which a young man was beaten to death in a gang incident in Murupara, several offenders were convicted of murder or manslaughter, as well as of participation in a criminal group. One offender, who was sentenced only on that charge, was found to have been knowingly engaged in conduct which was intended to commit serious violence against a rival gang. A starting point of two and a half years was adopted.[3]

[18] Sentencing levels for this offending were considered by the Court of Appeal in R v Mitford.[4] Starting points of two and three years for offenders in two incidents, who faced only a s 98A count, and whose involvement was peripheral rather than control, were upheld.

[19] In applying those authorities, it is necessary to bear in mind that all of these predate a doubling of the maximum penalty, from five to ten years, from December 2009.

[20] These cases suggest that, at a minimum, a starting point of at least half of the maximum penalty would be appropriate for participants in the group who might be described as followers rather than leaders. For those whose participation is as

_{principal protagonists, a starting point considerably in excess of one half would be}

appropriate, to give proper effect to the purposes and principles of sentencing to which I have referred. However, I consider that it is not appropriate simply to double the starting points suggested by the cases I have discussed. That might lead to starting points which are disproportionate to the incident, and might not appropriately recognise your acquittal on the more serious charge, having regard to relativity with penalties for that offence.

[21] I find that your level of participation in this incident was close to that of principal protagonists. I consider that Mr Gemmell was your leader, but that you both knowingly and actively participated in the planning for the anticipated retaliation, and in the gunfight which developed. I accept that neither of you was responsible for the shot or shots which injured Mr Edwards. But both of you were actively involved in handling the firearms, and both of you fired shots in the course of the shootout.

[22] Making the best assessment that I can I consider that the appropriate starting point, for both of you, is six years. That starting point reflects the total culpability involved in both the s 98A charge, and the firearms charges.

[23] I must make adjustments to that starting point to reflect personal factors, both aggravating and mitigating. That requires separate assessment for each of you. But there is one mitigating factor which applies equally, in my view, to you both. This is your assistance to the prosecution. I am satisfied that you decided to break the gang code, by cooperating with police and giving evidence against members of the other group, for your own reasons and not out of any real sense of remorse for your actions, or any real spirit of public service. But the fact remains that your evidence was of assistance to the prosecution and indeed crucial. Counsel for the Crown acknowledges that you both made frank and full admissions regarding your roles in the incident, and that without your cooperation, and your evidence in the other trial, the charges against those in the other group could not have been brought. I also recognise, in fixing the level of discount for your assistance, that you have exposed yourselves to considerable risk. I consider that a significant discount is appropriate

to reflect your assistance. In R v Hadfield,[5] the Court of Appeal allowed a discount of 60 per cent for an early guilty plea and considerable assistance to authorities. The Court of Appeal confirmed the approach of giving a combined discount for these factors, and noted that a 60 per cent discount will be warranted only where the guilty plea is at first reasonable opportunity and the assistance to authorities is substantial.[6]

That comment suggests that a discount for assistance, standing alone without a guilty

plea, would not exceed 30 per cent. There is, as counsel for the Crown has noted, a considerable level of discretion to a sentencing judge on this account. I take into account the strength of the gang code which you broke. I acknowledge the difficulty which you must have found to break it and I note, as I have said, the danger to which this is likely to have exposed you. As your counsel, Mr Monika, has said, you fear for your life as a consequence. Having regard to that I consider that a discount of one third is appropriate. I allow a discount of two years.

[24] Saul Waihape, for you I do not consider that there are any aggravating personal factors. You have a serious history of previous offending. But you are a gang member, and judged against that standard your record does not stand out. As your counsel has said, there has been a considerable reduction in your offending in recent years. Your membership of the gang is necessarily reflected in the starting point I have adopted. I do not consider that I should uplift your sentence because of your past history. Your situation is unfortunate. You have positive attributes which you have, in recent years, been able to demonstrate more clearly. Those do not, as counsel for the Crown submits, fit with your level of violent offending. Counsel for the Crown observes, in my view, correctly, that whatever your views may be of the gang, the gang has not been good for you. But the outcome of that consideration is that there are, in your case, no other mitigating personal circumstances which require a reduction and no aggravating factors which require an increase.

[25] For you, on the count of participating in an organised criminal group you are sentenced to a term of four years imprisonment. On each of the counts of possession of a firearm you are sentenced to one year. All of these terms are to be served

_{concurrently.}

[26] Vincent Monika, for similar reasons, I do not find any increase is necessary to reflect your previous convictions. You are entitled to a credit for your guilty pleas to the firearm charges. They were entered after committal, about two months before trial. Those pleas did not avoid the need for a trial, because of the other two counts. I allow a modest discount, of three months.

[27] You are also to be sentenced on an unrelated charge of offering to supply methamphetamine. Text messages disclosed regular offering to supply small and medium quantities over a six week period. I treat your offending as falling at the top of band 1, requiring a starting point of four years. You pleaded guilty at an early stage, justifying a discount of one year.

[28] The sentence for this offending needs to be cumulative. That would give a total end sentence of six years nine months. When regard is had to the totality principle, I consider that is on the high side. I would allow a discount of one year to reflect that.

[29] On the charge of participating in an organised criminal group you are sentenced to three years and nine months. On each of the charges of possession of a firearm you are sentenced to one year. These sentences are all to be served concurrently. On the charge of offering to supply methamphetamine, you are sentenced to two years. That is to be served cumulatively on the other sentences to give you a total sentence of five years nine months.

“A D MacKenzie J”

---

[1] R v Wallace & Ors HC Wellington CRI-2007-083-001608, CRI-2008-085-002762, CRI-2008-

085-002981, 20 February 2009; R v Church & Ors HC Wellington CRI-2008-085-2762, 23 May

2008; R v Box & Anor HC Wellington CRI-2008-085-2762, 11 July 2008.
[2] R v Pukeroa & Ors HC Rotorua CRI-2009-063-000697, 10 December 2010; R v Teddy HC Rotorua CRI-2009-063-000697, 18 March 2011.
[3] _{R v Taoho & Ors HC Rotorua CRI-2009-263-163, 12 December 2011.}
[4] R v Mitford [2005] 1 NZLR 753.

[5] _{R v Hadfield CA337/06, 14 December 2006.}

[6] Hessell v R [2010] 2 NZLR 298 at [23].