R v Tamati [2012] NZHC 221 (15 February 2012)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

R v Tamati [2012] NZHC 221 (15 February 2012)

Last Updated: 6 May 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-082-518 [2012] NZHC 221

THE QUEEN

v

RANGI WAINOHU TAMATI ALEXANDER TAMATI SOVITE TIMOTHY SUA RONALD RANGI RIGBY

HARRY SANTANA MINHINNICK CLAUDE HAMILTON EDWARDS

Counsel: R J Collins and J E Rielly for Crown

C J Tennet for Rangi Tamati

B Crowley (for R Fairbrother) for Alexander Tamati

G M Fairbrother for Sua

J S Jefferson (for C B Wilkinson-Smith) for Rigby

J S Jefferson for Minhinnick

J S Jefferson (for N H Wright) for Edwards

Judgment: 15 February 2012

_{SENTENCING NOTES OF MACKENZIE J}

[1] All of you appear for sentence on one count of participation in an organised criminal group under s 98A of the Crimes Act 1961. You Rangi Tamati also appear for sentence on one count of attempting to pervert the course of justice. The charges arise out of a gunfight which took place at the Mongrel Mob pad 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

R V R TAMATI HC WN CRI-2010-082-518 [15 February 2012]

was a fracas which developed at the pad on the afternoon of 9 August. There was a confrontation between Rangi Tamati and Claude Edwards on one side, and Kelly Gemmell, Saul Waihape and Vincent Monika on the other. A fight developed. Rangi Tamati’s patch was removed. He left, making clear his intention to return.

[3] Gemmell, Waihape and Monika anticipated a retaliation and made preparations to meet it. They obtained arms and ammunitions and returned to the pad. The three of them, with others, spent the night at the pad. Early the following morning, they were joined by others, and there were then seven people inside the pad: Gemmell, Waihape and Monika and four others. They were 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, Tuesday, 10 August, a group of at least 17 Mongrel Mob members or supporters from Wairoa and Napier arrived in the yard of the Mongrel Mob pad. They were 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 a .22 pistol fired by Mr Gemmell into Mr Edwards’ leg. Fire was returned from outside. In the course of 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] I reject the submission that those in the outside group were there for peaceful purposes, for a meeting later that day. Having heard the evidence I am satisfied that all of those in the outside group came there at the behest of Rangi Tamati, or other of you, particularly Alexander Tamati, intending to attack those inside the pad, and

prepared to use the weapons which one or more of those in the outside group, who cannot be identified, had brought with them. I am satisfied on the evidence that all of those in the outside group must have known, or been reckless in not knowing, that weapons were present, and likely to be used.

[7] 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.

[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 have already said this morning, in sentencing Mr Waihape and Mr Monika, that I do not consider it appropriate to make any distinction, in terms of culpability between the two groups involved. Both groups must, in my assessment, bear equal responsibility for the gunfight. Members of both groups armed themselves with firearms, and members of both groups used those firearms. None of you bears direct responsibility for any of the many shots which were fired by members of the group

outside the pad. But your participation in the group which resorted to the use of firearms is in itself serious offending.

[11] 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.

[12] 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.

[13] The next situation involves the sentences imposed following a violent clash between Mongrel Mob and Tribesmen gang 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.

[14] 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

_{with 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 violent offences against a rival gang. A starting point of two and a half years was adopted.[3]

[15] Sentencing levels for this offending were considered by the Court of Appeal in 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 central, were upheld.

[16] 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.

[17] 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. The starting points from those cases must be increased to reflect the increased seriousness with which Parliament has viewed this offence. 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.

[18] With those general remarks, I now turn to consider each of you individually. I first fix a starting point, applying the principles I have stated, to reflect your individual level of culpability in this offending, taking into account all the circumstances of the offending. I then consider whether any adjustment to that

_{starting point is required to reflect any aggravating and mitigating personal factors.}

[19] Rangi Tamati, the Crown submits that you are the most culpable in this whole event. I accept that submission. I have already said that I consider that responsibility for this event rests primarily with you and with Mr Gemmell. When you were humiliated on the evening of 9 August, you made clear your intention to return and retaliate. The evidence satisfies me that you initiated the assembly of the considerable body of men who descended on the pad on 10 August. I am also satisfied that you were responsible for arranging for the presence of firearms. Your counsel submits that you went unarmed to peacefully resolve an issue created by Mr Gemmell. I do not accept that submission. He submits that there was no evidence of direct or indirect contact with firearms. The evidence satisfies me however that you were the directing mind behind these events and the presence of the firearms was a direct consequence of that involvement by you. Your counsel seeks to down play the seriousness of this incident. He submits that the objective was to be regarded as an unlawful assembly and that the sentences for that offence may be relevant. He also refers to the evidence of the neighbours and to the view which they may have taken of matters. I do not accept that view. This was a serious incident. As counsel for the Crown submits the criminality of it lies in the objective of serious violence which you had. Whether the people of Wairoa may have been inured to the notoriety of the gang activity in that town, it is not something which they should be required to endure. So I do not accept that this was a minor incident. It was, as I have already said, extremely serious. Having regard to your key role, I fix a starting point for you for the participation in a criminal gang charge of six and a half years.

[20] I need also fix a starting point for the charge of attempting to pervert the course of justice. I consider that it is appropriate to apply a cumulative sentence. These offences, though connected, are different in kind. While you were apprehended at the road block you sent a text message attempting to have your partner create a false alibi for you. Your counsel submits that this must be seen as a minor charge in that it is not a case involving witnesses but was an attempt to avoid investigation by police at an early stage. I do not accept that view of the seriousness of this charge. You sought to pervert the course of justice by having another person lie to protect you. I am satisfied also that you were confident that you could rely on the gang code of silence to provide further protection for you. I consider that a

starting point for that charge should be one year. That gives a starting point for the totality of your offending of seven and a half years. I must consider whether the totality principle would require any adjustment to that starting point. I consider that it does not.

[21] As to your personal circumstances, you made your first Court appearance in

1978 at the age of 17 and have accrued 35 previous convictions for a wide range of offences. The most relevant is a charge of obstructing the course of justice, for which you served a substantial term of imprisonment. That justifies an increase in the starting point for the attempting to pervert the course of justice count of three months.

[22] I do not propose to make any upward adjustment to reflect your other previous convictions. In your case, and in the case of all others to be sentenced today, I bear in mind that you are all gang members or prospects. A number of previous convictions, for a range of offences, is an almost inevitable consequence of any gang association. The offence for which you are to be sentenced relates directly to gang involvement. It carries, as I have said, severe penalties. The starting point, for sentencing purposes is the sentence considered appropriate for an adult offender. The personal circumstances of the offender are then taken into account to adjust that starting point. All adult offenders convicted of this offence are likely to have previous convictions. I therefore consider that caution is required before making any uplift to allow for previous convictions as an aggravating personal factor. Overall, in assessing your personal circumstances, I do not consider that any further uplift is required.

[23] Your counsel seeks to see a positive aspect to your offending which he described as moderate for someone holding office in a gang and at your age. He also refers to positive remarks in the references you have produced, and in the pre- sentence report, about work done for your community and hapu. I accept that there are positive aspects in your personal circumstances but these are outweighed by the negative of your leading role within the Mongrel Mob. I consider that your circumstances do not justify any discount from the starting point.

[24] Your counsel submits that there should be a credit to reflect the 11 months which you have spent on restrictive bail conditions. The authorities on that issue are discussed by the Court of Appeal in the decision in Keown v R.[5] Based on those authorities I would allow you a discount of three months on that account.

[25] Accordingly I sentence you as follows:

(a) On the count of participation in a criminal group, you are sentenced to a term of six years and three months imprisonment.

(b) On the count of attempting to pervert the course of justice you are sentenced to a term of one year and three months imprisonment.

(c) Those terms are to be served cumulatively. [26] You may stand down.

[27] Alexander Tamati, I am satisfied that you too played a key role in organising the raid on the pad. The Crown submits that you played a crucial role in organising “numbers from Napier”. I consider that that submission is amply justified by the evidence. Your counsel submits that you had experience and history to believe that the group was capable of resolving internal conflicts according to established protocols. I do not find in the evidence any basis for a finding that you were attempting to seek a peaceful resolution of the dispute between Rangi Tamati and Kelly Gemmell. You were integral in the arrangements to assemble a large number of Mongrel Mob members from Napier, to travel to Wairoa to arrive at the pad in the early morning. The circumstances of the arrival at the pad are quite inconsistent with this being an attempt to arrange a peaceful resolution.

[28] Counsel for the Crown submits that your culpability falls only a little short of Rangi Tamati. I agree with that assessment. I fix a starting point for you of five and half years. As to your personal circumstances you began offending in 1972 at the

_{age of 15 and you have accumulated 51 convictions largely for drug, theft, non}

compliance, and sex related offences. You are assessed at being at medium risk of reoffending. On the positive side, you have had a leadership role assisting the community. I consider that your personal circumstances are not such as to require any adjustment to the starting point.

[29] Accordingly, you are sentenced to five and a half years imprisonment. [30] Stand down.

[31] Claude Edwards, you were involved in the fight which triggered the events of

10 August. Counsel for the Crown describes you as Rangi Tamati’s right hand man in the course of these events and your culpability as only marginally less than his. Based on the evidence at trial, I accept that assessment. You were shot in the course of the incident and left the scene. I do not consider that lessens your level of culpability. I consider that the appropriate starting point to reflect your level of culpability in the offending is five and a half years.

[32] You have a moderately long list of previous convictions, now mostly reasonably historical. Your counsel submits that in more recent years you have become more of a family with your partner and have not offended since the birth of your four year old son. Those are positives but they do not outweigh the previous history. I consider that there is nothing in your personal circumstances which requires an adjustment either way to the starting point.

[33] You are sentenced to a term of five and a half years imprisonment. [34] Stand down.

[35] Ronald Rigby, the Crown submits that you were at the least a senior member of the Wairoa chapter but that your influence was not equal to that of Rangi Tamati. It submits that your culpability is less than his, but not by a significant margin. Your counsel submits that you were in a vehicle the greatest distance from the confrontation and did not advance from where your vehicle was parked and you then left the scene. Your counsel notes that when you arrived in the vehicle with

Mr Hema which may have arrived separately from the “convoy”. Mr Hema was acquitted and your counsel submits that the jury’s verdict must indicate they considered you held a more senior position in the gang and therefore knew more about the situation. I consider that there is force in that submission. I consider that you actively and knowingly participated in the events of that morning. I consider that an appropriate starting point to reflect your level of culpability is four and a half years.

[36] You have a lengthy list of previous convictions. Your counsel submits that you have made progress to break from your criminal past and you have also made reference to that. There has been no violent offending since 1992. You have voluntarily turned in your patch as you recognised your association with the gang has placed in your present situation and you have taken other steps to renounce your contact. Your letter to me describes the efforts you are making to turn your life around. I consider that some modest allowance and encouragement for that is appropriate. I allow a discount of three months.

[37] Your counsel has also raised the issue of fines and asked that they be remitted. I consider that that is a matter that must be addressed in the appropriate way elsewhere from here.

[38] You are sentenced to a term of four years and three months imprisonment. [39] Stand down.

[40] Harry Minhinnick, the Crown submits that you were there at the direction of others and that your culpability is materially less than that of Rangi Tamati. The Crown however rightly notes that the willingness of people such as you to be the foot soldiers for such gangs and to provide the numbers when needed is what allows gangs such as the Mongrel Mob to operate in a criminal way. I agree with those submissions. That is what the offence of participation in an organised criminal group recognises. Your counsel submits that you are to be sentenced for choosing to involve yourself knowing there was going to be a violent gang confrontation but not being part of the planning of the incident. I consider that that accurately describes

your situation. The text which you sent while travelling to Wairoa supports that view of your position. For your part in the offending, I consider that a starting point of three and a half years is appropriate.

[41] You are a young man, with a number of previous convictions, mainly for relatively minor offending though the convictions include assaults with intent to injury and male assaults female. There are some positive aspects but I do not consider that there is anything in your personal circumstances which requires an adjustment either way, to the starting point.

[42] You are sentenced to three and a half years imprisonment. [43] Stand down.

[44] Sovite Sua, I regard your involvement in these events as unfortunate. I think it is fair to assess you as having gone to Wairoa because you did not feel able to say no to Alexander Tamati. The Crown makes the same submission for you as for Mr Minhinnick, to which I have referred. Your counsel notes Mr Monika’s evidence which suggested that you had been caught up in the events and that it was out of character for you. You have acknowledged in your letter to me that there was no good reason for you to be there other than a reluctance to say no to a senior Mongrel Mob member. Having regard to the circumstances of the offending and before considering your personal circumstances I cannot distinguish you from the others in the group who were there providing support by their presence in weight of numbers to this enterprise. I consider that a starting point of three and half years is appropriate for you. You too have quite a lengthy list of previous convictions. There is however evidence, as your counsel submits, of efforts to turn your life around. There have been no convictions since 2006, in contrast to regular Court appearances until then. Your counsel advises that you have handed in your patch and renounced your gang membership. You have a supportive partner, and you have provided support to your mother, and your children. You have been employed and your employer has provided a reference. I have taken into account all of that material. I consider that some allowance to reflect these positive aspects and to provide you with some incentive to continue your efforts to turn your life around, is appropriate.

I consider the appropriate discount to allow is one of six months. Your counsel had made a strong and well expressed submission that you should be sentenced to home detention. The view which I take of the matter leaves me at a point which is beyond the range where home detention is a possibility. I also take into account that I do not consider that, except in very exceptional circumstances, such a sentence would be appropriate. In Mitford, the Court of Appeal agreed that home detention is inappropriate for such offending, which requires a deterrent sentence. I consider that that comment must be reinforced by the subsequent raising of the maximum penalty.

[45] Accordingly, you are sentenced to imprisonment for a term of three years.

[46] Stand down.

“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] Keown v R [2010] NZCA 492.