R v Tie [2012] NZHC 2517 (27 September 2012)

Last Updated: 5 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-012004 [2012] NZHC 2517

THE QUEEN

v

JOSEPH TIE ROBERT LOGO (AKA FATU) ROSS LESLIE ROMANA OFISA ANDREW KOPELANI

Appearances: S L McColgan for Crown

J I S Kovacevich for Prisoner (Tie) M B Mortimer for Prisoner (Logo)

N S Leader and H Steele for Prisoner (Romana) L B Cordwell for Prisoner (Kopelani)

Judgment: 27 September 2012

_{SENTENCING NOTES OF COURTNEY J}

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – S McColgan

Counsel: J I S Kovacevich, P O Box 5316 Wellesley Street, Auckland 1141

Fax: [phone] – Email: [e-mail]

M B Mortimer, P O Box 210 Shortland Street, Auckland 1140

Fax: [phone] – [e-mail]

N Leader / H Steele, P O Box 90243, Victoria Street E, Auckland 1142

Fax: [phone]

L B Cordwell, P O Box 210 Shortland Street, Auckland 1140

_{Fax: [phone] – Email:} [e-mail]

R V TIE & ORS HC AK CRI-2011-004-012004 [27 September 2012]

[1] Ross Leslie Romana, Robert Logo, Joseph Tie and Ofisa Kopelani, you all appear for sentence today on charges arising from the kidnapping, blackmail and beating of two men on 18 December 2010. The offending was essentially a debt collection exercise that went beyond the bounds of what was lawful. You are all, or at least were at the time, members of the King Cobra gang. One of the complainants, Mr Han, was acquainted with members of that gang and had agreed to pay a sum of money, $10,000 or $20,000, for the gang to locate a person by the name of Johnson who owed him money. There is dispute over whether the agreement was contingent on Mr Johnson being able to pay Mr Han but that is something I do not need to resolve.

[2] Mr Tie, you met with Mr Han, showed him a photograph of Mr Johnson and asked for the $10,000. He could not pay you so that came to nothing. Mr Han said in evidence that later he met with Mr Romana and Mr Logo and that he agreed to pay them a figure of between $10,000 or $20,000. I note that Mr Romana in particular disputes that happening but it makes no difference in terms of sentencing. Mr Johnson was ultimately located but unfortunately had no money and could not pay Mr Han so Mr Han did not pay his debt to the King Cobras.

[3] As Christmas 2010 approached some of you began to consider how you might extract the money from Mr Han. There is evidence in the days preceding the kidnapping of communications between you, Mr Tie, and you, Mr Kopelani, consistent with the development of such a plan. I accept that it was not necessarily a plan to do something unlawful, that it was a plan to find Mr Han and persuade him to pay at that stage, but I also accept Mr McColgan’s submission on behalf of the Crown today that almost certainly it was anticipated that there would be an element of standover tactics that would be used if necessary and it would be expected that it would be necessary. So on 18 December, Mr Kopelani, you went to Mr Han’s house and persuaded him to go with you and talk to Mr Logo, including by having Mr Logo talk to him on the phone at that point while you were still at his house. You then took Mr Han with you, picked up Mr Logo from his home, and went on to some addresses in Ponsonby. Mr Han was then taken to a house in Bond Street that Mr

Romana occupied. He went in a van with you, Mr Kopelani and Mr Romana and

Mr Logo and Mr Tie went in another car.

[4] You all arrived at Bond Street about 2.30-3.00 o’clock in the afternoon. Whether Mr Han went to Bond St willingly or not there is no question that when he got there he was kept against his will. All four of you were there and in the tiny living room of the address at Bond Street you presented a formidable and frightening threat through size and numbers. Within a short time of arriving Mr Han was told that the money said to be owing had now increased, it was no over $50,000. There was absolutely no basis for that demand. Mr Han’s obvious terror at his situation is evident from the texts and telephone calls he made over the course of that afternoon and evening in an effort to obtain money or drugs in order to free himself.

[5] At about 4 o’clock Mr Han’s friend, Mr Wu, arrived at the house with another King Cobra member to whom he had gone, at Mr Han’s suggestion, for help. Mr Wu did not owe money to anyone and had no connection with the deal regarding Mr Johnson. Nevertheless, he was detained against his will as well.

[6] At various times during that afternoon and evening Mr Han and Mr Wu were threatened and beaten in an effort to obtain money or drugs in payment of the debt. The beatings resulted in injury to Mr Han and wounding to Mr Wu particularly to their heads and faces. Some of you left from time to time and returned again. But you were all there for the significant periods, including when the violence was being dished out and the threats made. It was clear that there was never a time when Mr Han and Mr Wu were free to leave until the Police arrived at about 9 o’clock that night, having been alerted to their predicament by Mr Han’s girlfriend. It is clear that by the time the Police did arrive things were very tense and the atmosphere menacing. When the Police arrived they found both men injured and terrified.

[7] A search of the address turned up a quantity of methamphetamine which gave rise to the additional charge of possession for supply against you, Mr Romana.

[8] Mr Han and Mr Wu have both provided victim impact statements in which they detail not only the physical injuries they suffered, but also the significant emotional and psychological effects of these offences against them. Both graphically describe the trauma of that day and the ongoing fear and distress they experience even now as a result of what happened. They are afraid to go outside. They feel suspicious. They have difficulty sleeping.

[9] Mr Wu, in particular, has an ongoing fear of you and gave a moving account of the week before he gave evidence which was obviously an ordeal for him.

Approach on sentencing

[10] Kidnapping and blackmail are regarded with the utmost seriousness in this court. Each carries a maximum penalty of 14 years imprisonment. Although offences are committed, such as these in a wide range of circumstances, imprisonment is virtually inevitable. In sentencing on these offences, the other violent offences which you have committed and the supply offence, the main objective is denunciation and deterrence. Other relevant considerations for me today are the need for consistency in sentencing and parity between you all as co- offenders.

[11] What I intend to do is consider the position of each of you separately. In doing so I will identify the term of imprisonment that would fairly reflect the offending itself. That is referred to as the starting point. From that I will make adjustments to reflect your personal circumstances.

Ross Romana

[12] I begin with you, Mr Romana. Can you stand please. You were found guilty on two counts of kidnapping, three of blackmail, one of injuring with intent to injure, one of wounding with intent to injure and one of possession of a Class A controlled drug – that is methamphetamine – for the purpose of supply.

[13] Although there was no evidence of your involvement in a plan to hold and extract money from Mr Han before you arrived at Bond Street, I am satisfied that you played the prime role in the course of the afternoon and evening. Mr Han and Mr Wu were very clear in their evidence that you were the person who increased the amount said to be owing, who demanded that Mr Han produce either money or drugs in payment and played a direct role in the violence meted out to them. Your denials when you gave evidence were implausible and, in my judgment, rightly rejected by the jury. You were the only one to have been found guilty on all counts of blackmail.

[14] I have considered the cases that counsel have referred to and which give some assistance in terms of an appropriate starting point for offending of this kind.[1]

I consider that a starting point of five-and-a-half years would fairly reflect the offending I have described on both the kidnapping and blackmail charges. The wounding with intent related to the quite serious wound sustained by Mr Wu. That charge should attract a term of two-and-a-half years imprisonment. The injuring with intent related to injuries sustained by Mr Han and that should also attract a term of two-and-a-half years imprisonment. All of these charges should be served concurrently.

[15] The possession for supply charge was completely unrelated to what was happening to Mr Han and Mr Wu and the discovery of the methamphetamine was just purely coincidental. The Police located 9.3 grams of methamphetamine hidden in a hole in the wall of your bedroom. Your explanation that you did not know about it and that the substantial amount of cash found on you was from a T-shirt business was implausible. The amount found falls at the lower end of band 2 of the Court of Appeal decision Fatu which provides guidance on sentencing in methamphetamine

cases and attracts a starting point of between three and nine years imprisonment.[2]

The appropriate starting point, however, given the relatively low amount found is three years.[3]

[16] Because this offence is of an entirely different nature and unrelated to the other offending it would be usual to impose a cumulative sentence in respect of it. However, imposing a cumulative sentence for the possession for supply charge would bring the total term of imprisonment to ten years. This would, I think, be too long overall. I therefore impose the three years imprisonment for the possession for supply charge concurrently with the other terms.

[17] I must, however, make a further adjustment so that the end sentence fairly reflects the fact that you have a number of previous convictions and the totality of all the offending that I am sentencing on. For totality I increase the sentence imposed on the blackmail charges, those being the most serious in the circumstances of this case. I consider that an increase of 15 months fairly reflects the totality of the offending. A further increase needs to be made for the fact that you have 38 prior convictions, have offended consistently in a variety of ways since 1994 and of particular relevance to today’s sentencing is the fact that you were imprisoned for concurrent terms of nine years in 2001 on aggravated robbery charges. The end sentence for offences against Mr Han and Mr Wu are therefore to be increased by a further three months to reflect your previous history. This would bring the starting point and totality uplift to seven years.

[18] In terms of mitigating features I note that you have declined to co-operate in providing a pre-sentence report so I know very little about you Mr Romana. However, your lawyer has explained to me that you were on bail for a significant period of time, much of that under lengthy curfew and the Crown accepts that an allowance should be made for that and I allow six months reduction to reflect that time on EM bail.

[19] The end sentence is therefore six years on each of the blackmail charges, five-and-a-half years on each of the kidnapping charges, two-and-a-half years on the wounding charge, two-and-a-half years on the injuring charge and three years on the possession for supply charge, all to be served concurrently. You may sit.

Robert Logo

[20] Robert Logo, you were found guilty on two counts of kidnapping, one of blackmail, one of injuring with intent and one of wounding with intent to injure. You were very much involved in the events of 18 December 2010. You drove with Mr Kopelani and Mr Han from your house into Ponsonby and were at present at the Bond Street address on and off during the day and evening. The verdicts show that your involvement was less than that of Mr Romana but the evidence was absolutely clear that you were, nevertheless, deeply involved in the events that unfolded that day. You directly inflicted violence on Mr Han and Mr Wu. It is evident from the jury’s verdict that you also threatened to cut off one of Mr Han’s fingers with a knife if the payment that had been demanded was not made.

[21] I take a starting point of five years for each of the kidnapping and blackmail offences and two years for each of the wounding with intent and injuring with intent offences. The terms imposed on the blackmail charges are, however, to be increased by six months to reflect the totality of the offending and there will be a further increase of another six months to reflect your prior offending. You have 40 prior convictions dating back to 1996. Of particular concern is the fact that you were imprisoned in 1997 on an aggravated robbery charge and again in 2001 on aggravated robbery charges. The sentence that time was one of ten years. This prior offending is serious and led to long-term imprisonment and must be recognised by an uplift of six months. That would be bring the sentence to six years.

[22] Like Mr Romana you have declined to participate in an interview for the pre- sentence report. Your lawyer’s submissions, however, suggest that your life, like that of so many others, has been badly affected by your gang association. I encourage you to continue the efforts that your lawyer has mentioned to move away from that life and from those associations. The only discount I can give in mitigation is the time spent on EM bail which, like Mr Romana, was lengthy and restrictive and I allow six months for that factor.

[23] The end sentence is therefore five-and-a-half years made up of five-and-a- half years on each of the blackmail charges, five years on each of the kidnapping

charges, two-and-a-half years on each of the wounding with intent and injuring charges, those terms to be served concurrently. You may sit thank you.

Joseph Tie

[24] Joseph Tie, you were found guilty on one count of kidnapping, one of blackmail and one of wounding with intent to injure.

[25] I overlooked entering a conviction at trial on the wounding charge, count 7, and I do that now. I am also required to give you a first strike warning in relation to that charge, which I do now. If you are convicted of any serious violent offence except murder committed after you receive this warning you will receive a final warning. If the judge imposes a term of imprisonment you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning you will be sentenced to imprisonment for life and must serve that sentence without parole unless it would be manifestly unjust. If you receive a life sentence without parole you will not be released from prison. If serving the sentence without parole would be manifestly unjust the Judge will have to specify a minimum term of imprisonment.

[26] I turn now then to the sentencing for today.

[27] I am satisfied, as the jury clearly was that you were involved in the plan to take Mr Han away and persuade him to pay the money you thought he owed you. This is clear from the text message data put in evidence in the trial. I know you maintain that the debt was legitimate and you were simply on a debt recovery exercise. But I am satisfied that from the time you got to Bond Street and could see that Mr Han was not going to be let go, you knew that things had gone beyond normal persuasion of somebody to pay a debt. You were present for most of the day and when you were there you lent your support and encouragement to your co- offenders through your presence. The jury, through its verdict, accepted that you gave direct encouragement in Mr Logo’s threat to cut off one of Mr Han’s fingers if he did not pay.

[28] Your culpability in the events of that day is, however, less than that of Mr Romana and Mr Logo. You were not directly involved in any of the violence and you were found guilty only in relation to the offences committed against Mr Han. For that reason, I consider that a starting point of three-and-a-half years on each of the kidnapping and blackmail charges is appropriate and a term of two years on the wounding with intent charge. There must be an increase of three months on the blackmail charge to reflect the totality of the offending. Although you have an extensive criminal record, it does not include offences that are relevant to today’s sentencing and I do not increase the sentence on that account. The only factor that I can take into account by way of reduction is the time you spent on EM bail which the Crown accepts was restrictive and justifies a reduction, and I reduce that by six months.

[29] The end sentence is therefore three years three months made up of three years three months on the blackmail charge, three years three months on the kidnapping charge and two years on the wounding with intent charge, all of these to be served concurrently.

Ofisa Kopelani

[30] Ofisa Kopelani, you appear for sentence on two counts of kidnapping, one of injuring with intent to injure and one of wounding with intent to injure. You pleaded guilty to these charges during the course of the trial.

[31] Your involvement was slightly different to that of your co-accused. You were involved at a very early stage when the plan was formed to find a way of persuading Mr Han to pay the money that he owed to your King Cobra associates. On instructions, likely from Mr Tie I find, you went to Mr Han’s house and persuaded him to go with you to Mr Logo’s house to discuss the matter and you then drove Mr Han and Mr Logo into Ponsonby and eventually on to the Bond Street address. You remained there throughout that afternoon and were there when Mr Wu arrived and through your presence you assisted in detaining him as well as Mr Han. However you did not claim to be owed any money and there was no evidence that

you actually said anything or that you did anything, so the encouragement you gave was at the lower end of the spectrum.

[32] In terms of an appropriate starting point on the kidnapping charge I consider that a starting point of three-and-a-half years is appropriate, with two years on each of the wounding and injuring charges.[4] I uplift that by three months to reflect the totality of the offending and by a further three months to reflect your previous convictions. You have 10 previous convictions, six of which involve violence. Of particular concern is your conviction in 2006 on manslaughter and wounding with intent charges. They arose from events that had very similar features to the present insofar as the part that you played. So this leads to a sentence of four years before a

reduction for the mitigating features that your lawyer has discussed.

[33] The first mitigating feature is your guilty plea which was made two weeks into the trial and after both the complainants had finished giving their evidence. In these circumstances any discount could only be very small but I accept the Crown’s submission that acceptance of responsibility for offending even at a late stage is still worthwhile. I also accept from the letter that you have provided to me that you are genuinely and deeply remorseful for the way that you acted on that day. I therefore allow a reduction of three months for these factors. That brings me to a final sentence on these charges of three years nine months which will be made up of three years nine months on each of the kidnapping charges and two years on each of the wounding and injuring charges, all to be served concurrently. Stand down.

[34] You can sit, thank you, except for Mr Romana. Mr Romana, I am sorry but counsel is right that I did make a mistake. I think that came about because of the changes I was making as I heard counsel’s submissions on the reduction for the EM bail. But the sentence that I intended to impose and I do impose is one of six-and-a- half years which is made up of six-and-a-half years on each of the blackmail charges,

_{five years nine months on each of the kidnapping charges, two-and-a-half years on}

each of the wounding with intent and injuring with intent charges, all to be served

_{concurrently. I am very sorry for the confusion.}

P Courtney J

---

[1] R v Rangitaawa HC Christchurch CRI-2004-0090-14066, 11 August 2005; R v Mehana HC Auckland CRI -2007-004-023679, 11 December 2009.
[2] _{R v Fatu [2006] 2 NZLR 72 at [34].}

[3] Compare R v Wilson HC Auckland CRI-2010-057-1676, 13 September 2011; R v Turner HC Auckland CRI-2009-063-005375, 24 June 2011; R v Goodhue HC Auckland CRI-2008-090-4802, 21

August 2009; R v Ui’understand HC Auckland CRI-2007-004-9815, 4 March 2008.

[4] R v Rangitaawa HC Christchurch CRI-2004-0090-14066, 11 August 2005; R v Snowden HC Auckland CRI-2008-004-023774, 28 April 2009.