R v Hakeke [2013] NZHC 865 (24 April 2013)

Last Updated: 9 May 2013

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-016-1916 [2013] NZHC 865

THE QUEEN

v

JOHN HAKEKE AND STUART MOKOMOKO

Hearing: 24 April 2013

Appearances: CWalker for Crown

V Thorpe for Mokomoko

T Epati for Hakeke

Judgment: 24 April 2013

_{SENTENCING REMARKS OF ALLAN J}

Solicitors:

Crown Solicitor Gisborne

V Thorpe, Gisborne

_{T Epati Gisborne}

R V HAKEKE AND MOKOMOKO HC GIS CRI-2012-016-1916 [24 April 2013]

[1] Mr Mokomoko, Mr Hakeke, you appear for sentence this morning on a charge of discharging a firearm with intent to cause grievous bodily harm, having been found guilty by a jury earlier this year. The maximum penalty is 14 years imprisonment.

Factual background

[2] On 25 April 2012, you were both socialising and drinking. Towards evening, you decided to go for a drive. You were joined by two young associates and the four of you drove around the streets of Gisborne for a time. Then someone suggested that you go looking for Mongrel Mob members or associates. You were all patched members or supporters of Black Power. The overall intention was to engage in some sort of confrontation.

[3] You ended up in a street in Kaiti where Mongrel Mob supporters were known to be found. Mr Mokomoko was in the front passenger seat, Mr Hakeke was driving. It was then about 6.30 pm and dark. You saw a Mr Dylan Donnelly standing on the footpath talking to another man, who proved to be a relative. Mr Hakeke made some challenging remarks as he drove slowly past. He brought the car to a halt some distance down the road. The evidence varied, but it seemed that the distance between Mr Donnelly and the car when it came to a halt was perhaps

50-70 metres.

[4] When the car stopped, Mr Mokomoko produced a sawn-off firearm from under the passenger seat, partially climbed out of the front passenger window, and having steadied himself on the roof of the car, fired two shots in Mr Donnelly’s direction. Fortunately, no-one was killed or injured, but there was ample evidence to show that the bullets were aimed in Mr Donnelly’s direction. The discharge of the firearm put him in peril, along with those nearby who included the uncle with whom he had been talking, and the occupants of a motor car parked by the side of the road very close to Mr Donnelly. Your car was then driven off.

[5] When you were later apprehended, each of you denied any knowledge of the offending. Neither of you gave evidence at trial but there was ample evidence to justify the jury’s verdict, including important evidence from the two back seat passengers in your car.

[6] This was a very serious incident. The jury’s verdict was that these shots were

fired at Mr Donnelly, with the intention that he suffer grievous bodily harm.

Personal background

[7] Mr Mokomoko, you are a 29 year old Maori who has been living with his mother, sister and niece in Wellington. It appears you have strong family support. I have been shown some more written material today which accords with that. You left school from form five without formal qualifications, but you have held a number of jobs, predominantly of a seasonal horticultural character. Although you are not a gang member, you accept that a number of your extended whanau are members. You have one child from a previous relationship and a partner who is currently expecting another. You seem to have impressed the pre-sentence report writer as having a high level of motivation to address your offending behaviour. In particular you are reported as having reduced your alcohol consumption significantly. It is said that the time you have now spent in custody has had a salutary effect on you. I have read your letter produced this morning which sets that out in quite some detail.

[8] Your offending record is very limited. There are just a few minor offences which I put aside for present purposes.

[9] Mr Hakeke, you are 30 years old, also Maori. You have been living with and caring for your grandparents. You have an eight year old son from an earlier relationship, and maintain contact with him every week. Like Mr Mokomoko you have chiefly been engaged in crop and fruit harvesting during the season, but have had periods of unemployment.

[10] It seems that you are now regretful for what occurred, and in particular lament the loss of regular contact with your son. Again I have been shown this

morning not only a letter of apology and expression of remorse from you, but a number of certificates attesting to the useful way you have spent your time in custody over the last year or two

[11] You have a long list of prior offending, mostly of a fairly minor nature entailing only one short prison term. Alcohol consumption is plainly a problem, as is your gang membership. You say you have now distanced yourself from the gang, and Ms Epati has emphasised that. Indeed, it seems the gang has disbanded in the Gisborne area.

[12] The pre-sentence report writer considers your risk of re-offending as being at a medium level, but much lower if you moderate your use of alcohol and put a distance between yourself and your gang associates. Again, it is relevant to note you seem to have a good deal of family support, and material has been shown to me which attests to that.

Purposes and principles of sentencing

[13] I have taken into account all of the relevant sentencing principles set out in ss 7, 8 and 9 of the Sentencing Act 2002. Of particular importance in this case, is the combination of pre-meditated violent offending and the underlying element of gang confrontation inherent in what happened. These are important problems in the Gisborne area. The Court is bound to take into account the need to deter you and others from behaviour of this sort, particularly in a gang context. This was mindless violence which, fortunately, caused no injuries or deaths. But I am sure that was simply the product of good fortune rather than intent.

Sentencing authorities

[14] There is no tariff case for this offending. That means there is no previous single authority which sets out guidelines for sentencing Judges, so it is necessary to identify similar recent cases in order to gauge appropriate sentencing levels. As in every case, I must commence by fixing a starting point that takes into account aggravating factors, those that make the case worse, and mitigating factors, those

that make it less serious. Then, it is necessary to consider factors which are personal to each of you, both mitigating and aggravating. That produces the final sentence.

[15] Both counsel and I have identified a number of earlier authorities, but many of them are of only limited assistance because the Court was sentencing for a range of offending. In some cases there was actual injury, so that renders those cases different from this.

[16] As has been discussed this morning, I consider the most helpful of the prior cases to be R v Katene.1 There, a middle aged father and his young adult son drove separate vehicles to the victim’s farm in order to confront him, as part of an on-going family feud. The senior offender first fired in the general direction of the victim’s property, and then towards the victim himself who was waiting in the driveway, but he hit neither the victim nor his vehicle. The young offender fired his rifle at the victim’s vehicle in an attempt to immobilise it. He then made off. The senior

offender drove his vehicle around the back of the property and continued to fire in the direction of two of the residents. It seems there may have been some return fire, but no-one was hit or injured by any of the shots. However, the victim then got into one of the offender’s abandoned vehicles and drove it at the older offender, causing him serious injuries.

[17] The offenders in Katene were charged with a variety of firearms offences, including the offence charged in this case. The younger offender pleaded guilty as a party to the charge brought in respect of the shots fired by his father. The fact that he himself was prepared to fire his weapon was an aggravating factor in that offending.

[18] Some points of difference between that case and this ought to be noted. There, an on-going family feud provided context for the offending. Indeed, there was a strong suggestion that the victim and his family had fired back at the offenders. Second, there was plainly an element of premeditation, in that the visit had been preceded by abusive text messages and phone calls, and the offenders arrived on the property in their own vehicles and with their own firearms. On the

_{other hand, all of the offending occurred on private property. There was no}

1 R v Katene [2010] NZCA 394.

suggestion that members of the general public were in danger and there appears to have been no underlying gang element in that case.

[19] In Katene the Court of Appeal upheld the starting points of five years imprisonment for the older offender and three and a half years for the younger.

Discussion

[20] Mr Walker submits that this case is more serious than Katene. He lists the following important factors in this case:

(a) The shooting was premeditated, in that you were driving around looking at random for a confrontation with someone associated with the Mongrel Mob, so the incident was gang-related;

(b) You had a firearm and ammunition;

(c) The shots were fired in a public place. There were a number of homes in the direct line of fire. It was dark and so there was no way of ensuring that innocent members of the public, other than the intended target, were not in danger. Those in immediate danger included not only Mr Donnelly, but also the relative to whom he was speaking on the roadside and the two occupants of the car beside which he was standing;

(d) Mr Donnelly himself had done nothing whatever to provoke the attack. He was simply standing on the street talking to his uncle. There is no suggestion of any incitement or provocation on his part;

(e) Two shots were fired, so increasing the risk that someone might be killed or injured.

[21] I accept Mr Walker’s submission that this was a random drive-by shooting on a residential street. It was by luck and not lack of intention that Mr Donnelly, or someone nearby, was not shot and killed or seriously injured.

[22] Having said that, I do not accept that this case is more serious than Katene. A significant feature of that case, not present to the same degree here, was the extent of the planning and premeditation involved. The offenders had assembled vehicles, firearms and ammunition, had organised drivers – a total of three cars were involved, and they had arranged for neighbours of the victims to be absent so that the confrontation would occur without affecting those not involved.

[23] I do accept however, that Katene provides a helpful comparison to this case.

[24] Ms Epati submits that you, Mr Hakeke, are less culpable than Mr Mokomoko, because it was he who fired the rifle. Mr Hakeke was not charged as a party to a common enterprise, rather, the charge was laid under provisions of the Crimes Act 1961 which make it an offence to assist or encourage the principal offender.

[25] I do not think that any proper distinction can be made between the two of you. Mr Hakeke, you challenged Mr Donnelly as you drove past him, and you brought the vehicle to a halt some distance down the road. That enabled Mr Mokomoko to climb out of the window and to fire the weapon. Although it has been suggested that your purpose in bringing the car to a halt was simply to enable you to disembark and to engage physically with Mr Donnelly, I consider that the evidence establishes that you intended to facilitate the use of the weapon. When Mr Mokomoko drew it out from under the passenger seat there was a brief tussle, because you wanted to be the one who fired the shots. After Mr Mokomoko had returned to the interior of the vehicle, along with the others in the car, you were in a celebratory mood, joining with Mr Mokomoko in self-congratulation. It seems to have been thought immediately after the shooting that someone may have been hit. The evidence of your two associates satisfied me that you were, in every way, an equal participant in what occurred and that you must be treated accordingly.

[26] As Mr Walker submits, you each may have played different roles in achieving your goal, but the role each of you played was equally important to achieving it.2

[27] In that respect, the case is different from authorities like Katene, where the offenders were in different vehicles and the younger and less culpable offender was not so closely associated with the shots fired by his father. Moreover, the younger offender made good his escape at a time prior to the firing of further shots by his father.

[28] I consider an appropriate starting point for each of you to be four years six months imprisonment. I am prepared to allow a discount of six months for each of you, in order to recognise what appear to be the glimmerings of self-knowledge. Each of you accepts that you need to do something about your alcohol intake, and have indicated that you will be co-operative in that respect.

[29] Mr Mokomoko, you say that your first term of imprisonment is teaching you a salutary lesson. Mr Hakeke, you are recognising that your gang associations are a continuing obstacle to an offence-free life, and you say you are doing something to sever your relationship with the gang.

[30] I must of course take these assurances at face value, but I consider it to be appropriate to make some allowance for your expressed commitment to some important lifestyle changes. I am reinforced in allowing what might be thought to be a generous discount by the various materials handed up to me today, showing each of you took various courses while in custody, and each has a family network standing behind you.

Minimum period of imprisonment

[31] The Crown has asked the Court to consider the imposition of a minimum period of imprisonment. Such an order, if made, would restrict your parole

_{entitlements until the stipulated period had expired. However, although the}

2 As to the principle of equal starting points for parties, see eg, Pekepo v R [2011] NZCA 305 and R v

Huata [2012] NZHC 2735.

submission is properly made I am satisfied this is not a case which calls for the imposition of any such order.

Stage one warning

[32] Given your convictions on this charge, you are each now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the “serious violent offences”.

(a) If you are convicted of any serious violent offences other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release;

(b) If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.

Sentencing

[33] On the charge of discharging a firearm with intent to cause grievous bodily harm, you are each convicted and sentenced to a term of imprisonment of four years.

C J Allan J