R v Stone [2012] NZHC 227 (15 February 2012)

High Court of New Zealand

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

---

R v Stone [2012] NZHC 227 (15 February 2012)

Last Updated: 20 March 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-96 [2012] NZHC 227

THE QUEEN

v

TERRY STONE

LADDIE PAORA TE APATU TAMATI GLEN JUNIOR TE KAHU BRADLEY JOHN NGARONOA JEREMY DANIEL MITA

PAUL STANLEY JOHNSON PETER RIKI LAVU LAVU

FREDERICK GEORGE DICK BLANFORD

Counsel: R J Collins and J E Rielly for Crown

V L Thorpe for Stone AJS Snell for L Tamati P J Jensen for Te Kahu

R B Philip for Ngaronoa

A Malik for Mita

V L Thorpe (for D D Rishworth) for Johnson

A M Sceats for Lavu Lavu

V L Thorpe (for A Clarke) for Blanford

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 each pleaded guilty to that charge, shortly after the beginning of your trial. The charges arise out of a gunfight

_{that took place at the Mongrel Mob pad in Wairoa on 10 August 2010.}

R V STONE HC WN CRI-2011-485-96 [15 February 2012]

[2] The events of the morning of 10 August 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 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] Messrs Gemmell, Waihape and Monika anticipated a retaliation and made preparations to meet it. They obtained arms and ammunition 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: 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 backyard 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 the 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 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] 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.

[7] I have earlier said in sentencing the other group who were outside the pad that I reject the claim that those in the outside group were there for peaceful purposes, for a meeting later that day. Having heard the evidence at the first two trials, I am satisfied that all of those in the outside group came there at the behest of Rangi Tamati, or another, and in 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 either have known, or been reckless in not knowing, that weapons were present, and likely to be used.

[8] The main purposes of sentencing which are relevant are those of denunciation and deterrence. These events deserve the strongest possible denunciation. 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. 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.

[9] A relevant 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 most serious end of the spectrum for the 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 the others, that I do not consider it is appropriate to make any distinction, in terms of culpability between the leaders of 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 represents the offence to which you have pleaded guilty.

[11] Those general remarks apply to the offending as a whole having regard to the most serious level of participation in it. I must consider the position of each of you and I must adopt a starting point which reflects the level of your involvement. I have in my sentencing remarks for the other members of the who were outside the pad described the approach which I have adopted and the comparable cases that I have considered in fixing starting points for them. I do not propose to repeat what I said there. What I do is take into account the starting points which I identified for that group in the light of those authorities and I apply them to your level of culpability as I assess it.

[12] I consider that none of you was actively involved in the planning or preparation for this incident. Your culpability lies in lending weight of numbers to the confrontation. You are to be sentenced on the basis that you were reckless as to whether, rather than knowing that, your conduct may contribute to the occurrence of any criminal activity and as to whether the criminal activity may contribute to the objectives of the group. There is no evidence to establish any active part by you in the events, beyond your presence as a member of the group. Counsel for the Crown has, with the knowledge of the sentencing today, submitted that there is nothing to suggest that your involvement, or the involvement of any of you, exceeds the level of that of Mr Minhinnick and Mr Sua. I agree with that assessment and the starting point which I have adopted is consistent with the starting point which I have adopted, having regard to their limited role. That reflects the point which all your counsel have made that you are to be sentenced on the basis of recklessness rather than knowledge. In the case of the other offenders the state of their knowledge was, in the light of the charge they face, either knowledge or recklessness. As I have indicated I consider that your level of culpability is to be assessed at the same level of that of Mr Minhinnick and Mr Sua. This is not a case where fine distinctions can be made.

[13] On that basis, I consider that a starting point of three and a half years is appropriate for each of you. There is one mitigating factor which is common to all of you, and that is your guilty plea. Yours was to be the last of three trials of offenders involved in this incident. You all also faced a charge of being party to wounding Kelly Gemmell with intent to cause grievous bodily harm. The jury in the earlier trial of those who, like you, were in the group outside the pad returned its verdicts after the first day of your trial. All those facing trial were acquitted on the wounding count. The Crown indicated, following that verdict, that it did not propose to proceed with that count against you. You all indicated a willingness to plead guilty to the remaining count of participation in an organised criminal group. Your guilty pleas thus came at a late stage, but they came at the first opportunity for a plea of guilty, which would avoid the need for a trial. For those reasons, counsel for the Crown accepts that a meaningful discount should be given for the guilty pleas. Your counsel argue for a significant and meaningful discount. I agree that this is a case where, in somewhat unusual circumstances, a significant discount is appropriate. I consider that a discount in the range of ten to 15 per cent would be appropriate and I go towards the top of that range. I allow a discount of six months.

[14] That leaves an end sentence, before consideration of other personal circumstances which may affect the sentence, of three years. What I must now do is consider the position of each of you and assess whether any further adjustment for personal circumstances is appropriate. Before doing that I make one further general observation. The level of sentence which I have indicated is beyond that at which a sentence of home detention would be a possibility. I should add that, in any event, I do not consider that a sentence of home detention would be appropriate even if the

length of sentence did make it available. In the case of Mitford,[1] the Court of Appeal

agreed that home detention is inappropriate for this category of offending, which requires a deterrent sentence. That case pre-dated the increase in penalty and I consider that reinforces that view of the matter that home detention is generally inappropriate. Accordingly the assessment of your personal circumstances which I

_{must make is as to whether there is anything in those circumstances which justifies}

an increase or a decrease in the term of imprisonment which I must impose, or whether some other sentence would be appropriate.

[15] Terry Stone, you began offending at the age of 17 years and have served a number of terms of imprisonment for threatening to kill and possession of offensive weapons, assault with a blunt instrument, behaving in a threatening manner, and possession of methamphetamine for supply. You have a number of other convictions which have led to community based sentences.

[16] I do not think that those convictions, or anything else in your personal circumstances, justifies an increase in the starting point. I do not consider that there are special mitigating features which would justify any reduction. You have served a substantial period, some 15 months, in custody and so will soon be eligible to apply for parole. That will follow in the ordinary course.

[17] Laddie Tamati, your counsel notes as features of the pre-sentence report that you have been ensconced in the gang culture since birth; that you are still relatively young and immature and prone to poor decision making; that you have been in a stable relationship for seven years and expecting your first child; and that you have been in employment since you were 15 years old. Your counsel notes that you have been described as able to demonstrate insight as to how your gang association is impacting on your life. These are positive features but in assessing whether there should be any alternation to the end point of the sentence I consider that the aggravating the mitigating balance one another out and that there is nothing to justify a departure from the point that I have identified.

[18] Glen Te Kahu, you too have a range of previous convictions but again, in my view, those do not require an uplift. Your counsel’s submission is that you acted through a motivation of family loyalty. That you had limited involvement and that you participated through reckless behaviour. Those submissions are consistent with the view that I have taken in fixing the starting point and do not require any downward adjustment. Your counsel submits that the objectives of denunciation and punishment can be met by a sentence short of imprisonment. For the reasons I have given I do not accept that submission.

[19] Jeremy Mita, you too have previous convictions for violence but I accept your counsel’s submission that they do not justify an uplift to the starting point. You have good family support but this does not, in my view, require any reduction from the starting point.

[20] Paul Johnson, you too have previous convictions but not such as to require an uplift. There are no factors which would justify any reduction. You too have been in custody for about 15 months.

[21] Peter Lavu Lavu, you have a relatively modest list of previous convictions of a relatively minor nature. There is nothing which would justify an uplift that outweigh any personal mitigating factors which might otherwise operate in favour of some reduction. So again I consider that they cancel each other out.

[22] Frederick Blanford, you have a number of previous convictions but not, in my view, such as would justify an uplift. There are no mitigating factors which require any downward adjustment.

[23] Bradley Ngaronoa, you too have previous convictions. But again I do not consider that any increase is justified. There are no other personal factors requiring a reduction.

[24] For these reasons the outcome is that each of you is sentenced to a term of imprisonment of three years.

[25] Thank you, stand down.

“A D MacKenzie J”

---

[1] R v Mitford [2005] 1 NZLR 753