R v Mulvey [2016] NZHC 2568 (27 October 2016)

Last Updated: 1 December 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-7255 [2016] NZHC 2568

THE QUEEN

v

MATTHEW JOSHUA MULVEY LEON DELSHANNON TURNER PETER DAMIAN GILBERT

Hearing:	27 October 2016
Appearances:	B Hawes for Crown A S Greig for Defendants M Mulvey and L Turner M Sewell on behalf of R Glover for Defendant P Gilbert
Judgment:	27 October 2016

_{SENTENCING REMARKS OF MANDER J}

[1] Matthew Mulvey, Leon Turner and Peter Gilbert, you may remain seated while I pass my sentencing remarks. I will get you to stand at the end of my remarks when I formally pass sentence. The three of you are for sentence in accordance with the jury’s verdicts on charges of kidnapping and wounding with intent to cause grievous bodily harm. Mr Mulvey and Mr Turner, you are also for sentence on two charges of injuring with intent to cause grievous bodily harm. Mr Gilbert, you are for sentence on one charge of injuring with intent to cause grievous bodily harm.

Three strikes warning

[2] Before I proceed to the imposition of sentence I am required under the

_{Sentencing Act to give each of you what is described as the “three strikes warning”.}

R v MULVEY [2016] NZHC 2568 [27 October 2016]

[3] Given your convictions on the stated charges, you are now subject to the three strikes law. I am going to give you a warning of the consequences of a conviction for another serious violent offence. You will also be provided with a written notice which contains a list of these serious violent offences.

[4] The warning is this. If you are convicted of any one or more 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. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.

Factual background

[5] In turning to the sentencing exercise this morning, I must first set out the factual background to the offending for which you are for sentence. I will also refer to your particular involvement in greater detail when I come to assess your individual sentences.

The Ajax Street offending

[6] All three of you knew the victim, Dawson Reihana, through your mutual affiliation with the Mongrel Mob, of which you are either members or are associated.

[7] On the afternoon of Saturday 8 August last year, you, Mr Mulvey, arranged to meet Mr Reihana at your house in Ajax Street. It is apparent that invitation was a trap. On arrival, you told Mr Reihana you were waiting for some friends to arrive and at one point left him in the lounge. When you returned you were accompanied by Mr Gilbert and Mr Turner. As a group you immediately attacked Mr Reihana.

[8] Blows were struck with hammers to various parts of his body. His head and knees were targeted. After Mr Reihana fell to the floor, his hands and feet were taped together. In that defenceless state you continued to beat Mr Reihana about his face with your fists. He was kneed in the head and struck with an ashtray inside a

sock. Throughout various threats were made to him about stabbing him in the face

and going around to his family’s home.

[9] Mr Reihana was badly injured. A blow from one of the hammers had resulted in a gouge wound to his scalp and resulted in him bleeding profusely. Notwithstanding his wounded and helpless state you continued to attack him. It is apparent other people were present who also joined in.

[10] A decision was made to move Mr Reihana to a different address. A gag was placed in his mouth and a rope tied around his leg. Mr Reihana was put into the back of a van, where you, Mr Mulvey, guarded him with a knife and tyre wrench.

Bowenvale Avenue offending – the first group of assaults

[11] The victim was driven to an address in Bowenvale Avenue. The van was reversed down the driveway and Mr Reihana was taken from the back of the vehicle. He was immediately set upon by your co-offenders. They were armed with knuckledusters. He was punched about the face with close attention being paid to his eyes and jaw before being dragged inside. There the attack continued, with Mr Reihana’s ribs and head being targeted. Mr Mulvey, you then kneed Mr Reihana in the face and attacked his ribs. Mr Turner, you were kicking Mr Reihana in the head.

[12] In his evidence Mr Reihana described how people would take turns to attack him while he lay on the floor in his bound and defenceless state. He by this time was badly injured. Periodically threats would be made to kill him, including by you Mr Turner. These threats were interspersed with or accompanied by further physical assaults. This continued over some hours, until a decision was made to put Mr Reihana in the van for the purpose of having him point out addresses of his associates. The purpose of doing this is not clear, however, during Mr Reihana’s captivity there appears to have been a number of unsuccessful attempts to contact people in an endeavour to obtain money or property. Mr Reihana was driven around in his bound state, guarded by a co-offender armed with a tomahawk and tethered by a rope tied to his leg.

The Bowenvale offending – the subsequent assaults

[13] Mr Reihana was returned to the Bowenvale address where in his injured and defenceless state he continued to be the subject of assaults before being left bound and tied on the floor overnight. Sometime in the early hours of the next morning when his guard fell asleep, Mr Reihana was able to obtain his guard’s cell phone which he used to contact police at around 5.30 am. The police located the address and cordoned off the property. At 7.00 am, you, Mr Turner, were located at the Bowenvale address, together with a number of your co-offenders. Mr Mulvey, you had left the Bowenvale Avenue address the previous night to comply with conditions of your bail.

[14] There is some evidence of Mr Gilbert accompanying Mr Turner in a four wheel drive vehicle, following the van to the Bowenvale Avenue property, however, the Crown at trial accepted there was no direct evidence from Mr Reihana placing you at Bowenvale. Your conviction on the first of the injuring with intent to cause grievous bodily harm charges and your acquittal on the second of those charges, in my view, reflects the jury’s acceptance that you knew that Mr Reihana’s continued detainment at Bowenvale Avenue would result in further violence being committed upon him at the address. However, it is apparent the jury was not prepared to speculate for how long you anticipated the violence would continue in the absence of your presence at the address.

Effect on the victim

[15] Mr Reihana received extensive facial bruising and swelling as a result of the violence. Both of his eyes were swollen shut. The photographs of the damage to his face were graphic. He received multiple lacerations to his forehead and to the back of his head, and a gouge wound to his scalp, together with further cuts to his cheek area and forehead. His nose was fractured. He also suffered grazing and bruising to the back of both his wrists, and bruising to his knees, body and limbs.

[16] In his victim impact statement to the Court, Mr Reihana has described that, apart from the immediate physical injuries, he has suffered longer lasting detrimental consequences to his life. He says he is concerned for his safety, his relationships

with his partner and his family have suffered, and his daily life has changed. He has some emotional difficulties. He reports that he no longer trusts anyone and has required counselling. With good reason, he did not think he would leave the Bowenvale house alive.

Approach to sentencing and individual culpability

[17] The charges of kidnapping and wounding with intent to cause grievous bodily harm carry a maximum penalty of 14 years imprisonment. The maximum penalty for the charges of injuring with intent to cause grievous bodily harm is one of 10 years imprisonment.

[18] The overarching offence is the unlawful detainment of Mr Reihana which started at Ajax Street in the afternoon and continued overnight, until around 7.00 am the following morning when the police cordoned off Bowenvale Avenue. During that period Mr Reihana was subject to ongoing serious violence. The kidnapping and violence charges are inextricably linked.¹ The prolonged duration and circumstances of Mr Reihana’s detention, and in particular the violence inflicted on him during this period at both the Ajax and Bowenvale addresses where he was held as a prisoner means the kidnapping and violence must be viewed as being at the serious end of the scale.

[19] The leading case for serious violent offending such as this is the Court of Appeal’s judgment of R v Taueki.² The seriousness of your offending is apparent from relevant aggravating features which include:

(a) The prolonged and gratuitous nature of the violent conduct. (b) The serious harm caused to Mr Reihana.

_{(c) The use of weapons.}

¹ R v Hill HC Rotorua CRI-2005-063-3096, 27 October 2006 at [29]; R v Wharton (2003) 20

_{CRNZ 109 (CA).}

² R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); R v Hill, above n 1, at [32].

(d) The attacking of the head: many of the assaults, including with weapons, were directed at Mr Reihana’s head.

(e) Multiple attackers: the disparity between the number of the attacking group and the sole victim.

(f) Vulnerability of the victim: at an early stage of the attack Mr Reihana was effectively disabled and could do little to defend himself with his hands, and at times his feet, bound or tied.

(g) Gang warfare: serious violence was perpetrated by members of a criminal gang.

(h) Premeditation: the attack on Mr Reihana at Ajax Street was planned.

[20] Care must be taken to ensure there is no repetition of the ingredients of the charge and that the identification and assessment of aggravating features does not result in any double-counting.

[21] Each of you were involved in the attack on Mr Reihana from the very beginning. Each of you were responsible for the greatest level of violence that was inflicted on Mr Reihana, as is demonstrated by you having been found guilty of the serious charge of wounding with intent to cause grievous bodily harm, which was committed at Ajax Street. I turn now to review your individual involvement in the offending, although each of you were a party to the others’ actions. In terms of the attack at Ajax Street, you shared a common level of involvement in your attack on Mr Reihana and his violent detainment.

Matthew Mulvey

[22] Mr Mulvey, you were the person in communication with Mr Reihana who lured him to Ajax Street for the purpose of attacking him. It is apparent from other text messaging that you were in contact with Mr Turner, and that there was a plan in place to attack him when he was alone at that address.

[23] You were directly involved in the physical attack on Mr Reihana at Ajax Street which involved, as I have said, striking him with a hammer to his head and knees. You were also directly involved in binding his hands and feet, and continued to attack him, including with a weapon, while he was in this defenceless position.

[24] At Bowenvale you continued to be physically involved in the ongoing attack upon Mr Reihana. As I have observed, you left the address at some stage during the night in order to comply with your curfew, but you did so in the knowledge that Mr Reihana was going to continue to be held captive and be subjected to violence as part of the ongoing joint enterprise. The jury’s verdicts reflect those findings.

[25] It follows that your offending was premeditated, involving as it did a plan to unlawfully detain Mr Reihana and subject him to an intense beating. You played a direct and significant role in the ongoing serious violence which included the use of weapons and attacks to the victim’s head. You were one of multiple attackers on a victim who was significantly outnumbered. You continued to be directly involved in the attack on Mr Reihana after he was bound, and therefore defenceless and vulnerable. The offending was clearly gang-related and continued over a long period. A further aggravating feature is that Mr Reihana was never released and had to be rescued by the police. It is not clear what would have happened to him if he had not been able to raise the alarm.

[26] These features of your offending mean your culpability sits well within the most serious band of sentences for serious violence.

Leon Turner

[27] Mr Turner, you were also involved in the attack from the very beginning and were in communication with Mr Mulvey before arriving at Ajax Street. Your presence at the address was clearly part of a plan. You used a hammer on Mr Reihana and you attacked his head, both at that address and subsequently at Bowenvale Avenue where you also kicked and assaulted him. Your involvement and the level of violence you employed is indistinguishable from that of Mr Mulvey. The same factors I have identified in respect of his offending equally apply. The attack was premeditated, a weapon was used, the victim’s head targeted, and you

were one of multiple attackers who continued to assault Mr Reihana when he was prone, bound and defenceless. As already noted the offending was gang-related.

[28] After following the van in which Mr Reihana was being transported in, you continued to be directly involved in the violence and detainment of Mr Reihana until apprehended at the Bowenvale address by police the next morning. In addition to the violence you inflicted on Mr Reihana, you also throughout threatened and abused him. You accessed his phone and you, together with others, appear to have been involved in attempts to take advantage of Mr Reihana’s position by contacting his associates or other people in an attempt to obtain money or property. The taking of Mr Reihana in the van for him to identify associates’ addresses appears to be related to this.

[29] The combination of these aggravating features coupled with your continued and direct involvement in Mr Reihana’s unlawful detainment at the Bowenvale house, which only came to an end as a result of the intervention of the police, means that your offending falls into the most serious category.

Peter Gilbert

[30] Mr Gilbert, you were also involved from the outset. Your presence at Ajax Street was for the specific purpose of attacking and detaining Mr Reihana. You were directly involved in the attack which involved weapons and the targeting of the victim’s head. You wielded a hammer and made threats to Mr Reihana. You continued with the attack after he was bound and defenceless. You were one of a number of attackers at Ajax Street involved in this gang-related offending.

[31] The charges of injuring with intent to cause grievous bodily harm relate to the events at Bowenvale Avenue. Notwithstanding the Crown case not being based on you being present at that address, you were found guilty of one of those charges on the basis you were a party to what initially happened at Bowenvale as part of the joint enterprise to kidnap Mr Reihana and continue his unlawful detention and the associated violence at that location.

[32] Your offending also places you within the most serious band of violent offending because of the number of aggravating factors that are present.

Starting Point

[33] There are no mitigating factors relating to the circumstances of the offending itself. In assessing an appropriate starting point I have, in addition to the approach outlined in Taueki, also considered a number of similar cases.³ Inevitably, the nature and combination of charges and the individual circumstances of the offending vary from one case to another, however, the cases provide a useful check when applying the sentencing guidance provided by Taueki.

[34] In relation to Mr Mulvey and Mr Turner, I take a starting point of 10 years imprisonment. In respect of you, Mr Gilbert, I take a starting point of nine years imprisonment.

Personal factors

[35] I have considered the pre-sentence reports prepared in respect of each of you and the submissions that have been made on your behalf by counsel. I have also had regard to your previous criminal histories.

Matthew Mulvey

[36] Mr Mulvey, you are aged 35 years. You are a patched member of the Mongrel Mob and have been for some 12 years. You are assessed as presenting a high risk of harm and reoffending. In December 2009, you were sentenced to six years and six months imprisonment on two charges of aggravated robbery, and were on parole at the time of this present offending. Your criminal record is extensive. A six month uplift is warranted to reflect the ongoing risk of violence you present to

_{the community.}

³ R v Hill, above n 1; R v Shen [2007] NZCA 67; Simon v R [2016] NZCA 449; R v Mehana HC Auckland CRI-2007-004-23679, 11 December 2009; R v Moffatt CA193/01, 230 October 2001; R v Kimber HC Rotorua CRI-2003-070-6113, 17 June 2005; R v Ratana CA357/90, 25 February

1991; R v Wharton, above n 1.

[37] You have taken responsibility for the offending but have expressed no remorse for your victim and contest the account that was given by him at trial. At your mature age there is nothing in your background which would warrant reducing your sentence.

Leon Turner

[38] Mr Turner, you are 41 years of age. You claim to no longer be a member of the gang, however, your risk of reoffending is assessed as being high. That is unsurprising having regard to your lengthy criminal history. That said, while you have some convictions for violent offences they are now of some vintage. Your past offending mainly comprises drug, driving and dishonesty convictions. Your last conviction for violence was in 2002, in respect of which you were sentenced to nine months imprisonment. I do not consider it necessary to impose an uplift for your criminal history.

[39] There are, however, no personal mitigating features. I acknowledge your violent childhood and difficult upbringing, but do not consider at your age that can bear on your present conduct. You do not present as remorseful.

[40] I have received today a letter from your partner that speaks of your relationship with your family and the effect of your offending on them. Your partner remains supportive of you, but the stupidity of your actions are underscored by the sad consequences for them which results from your offending and consequential imprisonment.

Peter Gilbert

[41] Mr Gilbert, you are 46 years of age and a member of the gang. You are assessed as being at a high risk of reoffending. Your long criminal history includes convictions for breaking and entering with a weapon, wounding with intent to cause grievous bodily harm and kidnapping for which you were convicted in August 2004 and sentenced to nine years imprisonment. The present offending falls into a similar category of seriousness. A six month uplift is warranted to reflect the continuation of your violent offending and the resulting serious risk you present to the community.

[42] Notwithstanding your lengthy previous periods of incarceration, you have maintained a long term relationship with your present partner and have family support. However, your affiliation to the gang is clearly very strong. You deny the offending and express no remorse.

[43] There are no features of your personal background which warrant a deduction.

Minimum period of imprisonment

[44] Because I am sentencing each of you to a sentence of more than two years imprisonment, I am required to consider whether you should serve a minimum period of imprisonment.⁴ I am required to impose a sentence which will denounce your conduct, hold you accountable for the harm you have caused, and deter both you and others who may be minded to commit similar offences. I am also required to have regard to the need to protect the community.⁵

[45] I am not satisfied that the otherwise applicable eligibility date for your parole would be sufficient to meet these objectives. The Court of Appeal has recognised that in cases of serious violent offending denunciation and deterrence are important principles and minimum periods of imprisonment will not be rare or uncommon.⁶

[46] For those reasons and because of the circumstances of this offending, marked by serious aggravating features, and in the case of you, Mr Mulvey and Mr Gilbert, your violent histories, it is necessary to impose minimum periods of imprisonment. Could you now please stand.

Sentences

Matthew Mulvey

[47] Mr Mulvey, you are sentenced on the charges of wounding with intent to cause grievous bodily harm and kidnapping to concurrent terms of imprisonment of

⁴ _{Sentencing Act 2002, s 86(1).}

⁵ _{R v Nguyen [2009] NZCA 239 at [33]-[34]; R v Gordon [2009] NZCA 145.}

⁶ R v Taueki, above n 2, at [57].

10 years and six months with a minimum term of imprisonment of five years and three months.

[48] On the two charges of injuring with intent to cause grievous bodily harm, you are sentenced to concurrent terms of imprisonment of six years.

[49] All sentences are to be served concurrently.

Leon Turner

[50] Mr Turner, you are sentenced on the charges of wounding with intent to cause grievous bodily harm and kidnapping to concurrent terms of imprisonment of

10 years with a minimum term of imprisonment of five years.

[51] On each of the charges of injuring with intent to cause grievous bodily harm you are sentenced to concurrent terms of imprisonment of six years.

[52] All sentences are to be served concurrently.

Peter Gilbert

[53] Mr Gilbert, on the charge of wounding with intent to cause grievous bodily harm and kidnapping, you are sentenced to concurrent terms of imprisonment of nine years and six months with a minimum term of imprisonment of four years and nine months.

[54] On the charge of injuring with intent to cause grievous bodily harm you are sentenced to six years imprisonment.

[55] All sentences are to be served concurrently.

Solicitors:

Raymond Donnelly & Co, Christchurch

Tony Greig Barrister, Christchurch

Rupert Glover Barrister, Christchurch