R v Corbin [2016] NZHC 2570 (27 October 2016)

Last Updated: 21 December 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-7255 [2016] NZHC 2570

THE QUEEN

v

DYLAN RAYMOND SHANNON CORBIN ALBERT HOLLIS MAUHENI

Hearing:	27 October 2016
Appearances:	B Hawes for Crown T Fournier for Defendant Corbin P Allan for Defendant Mauheni
Judgment:	27 October 2016

_{JUDGMENT OF MANDER J}

[1] Dylan Corbin and Albert Mauheni, each of you are for sentence this morning on a charge of kidnapping which carries a maximum penalty of 14 years imprisonment. Given your conviction on that charge, you are now subject to the three strikes law. I am required by the Sentencing Act to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these “serious violent offences”.

[2] If you are convicted of any one or more serious violent offence other than murder committed after this warning and if the Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[3] 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

R v CORBIN [2016] NZHC 2570 [27 October 2016]

unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.

[4] Mr Mauheni, you pleaded guilty before trial to being a party to the kidnapping of Dawson Reihana. Mr Corbin, you were found guilty at trial to being a party to that unlawful detainment. You were found not guilty on a charge of injuring with intent to cause grievous bodily harm.

Factual background

[5] To provide context for your sentencing this morning it is necessary that I set out the factual background. I will refer to your particular involvement in the later part of these events when I come to assess your individual sentences. This offending was gang-related. The victim, Mr Reihana, had an association with the Mongrel Mob. Your co-offenders, as with yourself, were or are either members or associates of that group.

[6] On 8 August last year, Mr Reihana was invited to the address of one of your co-offenders in Ajax Street. There Mr Reihana was attacked by three of your co- offenders and other unidentified associates. The attack involved him being struck with hammers to his head and knees. His hands and feet were bound and the beating continued while he was in that defenceless position.

[7] A decision was made to take Mr Reihana to a different address. A gag was placed in his mouth and a rope tied around his legs. He was placed in the back of a van and transported to Bowenvale Avenue. Here he was physically held captive and subject to further physical attacks. This involved the use of knuckledusters and being attacked in the head.

[8] In the course of Mr Reihana’s detention, he was driven in the back of a van in a bound state for the purpose of having him point out addresses of associates, before he was returned to Bowenvale Avenue. Back at that property, Mr Reihana in his defenceless state was again the subject of assaults.

[9] I refer to this only as background to your subsequent involvement. You had no direct involvement or indeed any apparent knowledge of these events at the time they took place. You became involved in these events when the two of you arrived at the Bowenvale Avenue address at around 11.00 pm. You had effectively been directed to come to the address by the gang and you travelled there together.

[10] Both of you remained at the address clearly for the purpose of lending assistance and support to your gang associates in the continued unlawful detainment of Mr Reihana who was being held in a badly injured state, tethered by a rope with his hands bound on the floor of a backroom. You joined this joint criminal enterprise and remained at the house for the purpose of aiding Mr Reihana’s continued physical confinement at that location. You sent text messages advising that you would be staying at the Bowenvale address overnight.

[11] Early the following morning, Mr Reihana was able to contact police by gaining access to his guard’s cell phone. You were apprehended by the police outside the address as officers approached the house at around 7.00 am that morning. It is not clear whether you were leaving the address as a result of detecting the presence of the police, or you were leaving as a matter of choice.

[12] Mr Mauheni, I have noted what you have said to the pre-sentence report writer and which was repeated by your counsel today, that upon arrival at Bowenvale you felt powerless to influence the situation. The difficulty, of course, with that submission is that any pressure you may have felt to have been under at the time to assist and support Mr Reihana’s kidnapping derives from your membership of the gang which you choose or have chosen to be a part.

[13] After your arrival on the Saturday night it was Mr Reihana’s evidence that you, Mr Corbin, attacked him when you saw him restrained on the floor with his hands bound. There was evidence you punched him in the head and struck him with your foot. The charge of injuring with intent to cause grievous bodily harm which you faced at trial related to that event, and the Crown accepted the jury should only consider this charge on the basis of your involvement as a principal in this one event.

[14] You were acquitted on that charge of aggravated violence, however, as an incident of the unlawful detainment of Mr Reihana, I am sure you did at least assault Mr Reihana. I consider the jury, given the nature of the assault, could not be sure from your actions that you either had the necessary intent to cause grievous bodily harm, or could not be sure that any particular injury was caused as a result of what you did. By then Mr Reihana had suffered numerous injuries. Notwithstanding your acquittal on that charge it is clear the jury accepted Mr Reihana’s account of what happened to him. As part of the circumstances of your involvement in his unlawful

detainment I take into account that you did assault him while he was so detained.¹ I

proceed, however, as I must, on the basis that you had no specific intent to cause him serious harm, nor did you actually cause any injury as a result of your actions. What you did, however, was a clear demonstration in support of your co-offenders and the continued detainment of Mr Reihana, which emphasised to him that his position was helpless.

[15] Mr Mauheni, you pleaded guilty to the charge of kidnapping prior to trial. The Crown accepts you had no knowledge of events prior to arriving at Bowenvale Avenue, and that you had no direct involvement in any violence. I also accept that you, Mr Corbin, had no knowledge of what had happened to Mr Reihana prior to arriving at the property and I proceed to sentence you on that basis.

Effect on the victim

[16] In his victim impact statement to the Court, Mr Reihana has described that, apart from his physical injuries, he has suffered longer lasting detrimental consequences to his life as a result of this traumatic experience. He is concerned for his safety, he says his relationships with his partner and his family have suffered, and his daily life has changed. He describes having some emotional difficulties, and 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 that day.}

¹ Sentencing Act 2002, s 24; R v Mathieson CA209/02, 26 September 2002; R v Paul CA139 and

142/86, 5 November 1986.

Starting Point

[17] There are no mitigating factors relating to the circumstances of the offending itself. Kidnapping covers a multitude of circumstances and there is no tariff case for the offence.² In assessing an appropriate starting point I have considered a number of kidnapping cases.³ Inevitably, the individual circumstances of the offending vary from one case to another, however, the cases provide some guidance in setting the

starting point for your offending

[18] Having regard to your comparatively limited and late involvement in the unlawful detainment of Mr Reihana, I take a starting point of two years and three months for you, Mr Corbin, and one of two years in respect of you, Mr Mauheni.

Personal Factors

Dylan Corbin

[19] Turning to personal aggravating and mitigating factors. Mr Corbin, you are a

27 year old patched member of the Mongrel Mob. You have been in a long term relationship and are described as being a good father figure to your partner’s young child. Prior to this offending you worked fulltime as a forklift driver. Your employer speaks highly of you and there are others in the community who are prepared to vouch for your ability to live a constructive life. However, your criminal history is of concern.

[20] You have previous convictions for wounding with intent to cause grievous bodily harm, for which you were sentenced to five years imprisonment in September

2007. At that time you were also sentenced for unrelated charges of assault and injuring with intent to injure, and assault with intent to use a weapon.

[21] The present offending inherently involves violence, involving as it does the physical restraint of a badly injured person under threat of the further infliction of

_{violence, in fear of his life, and guarded by a person armed with a tomahawk. I}

² _{R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (CA).}

³ R v Wharton, above n 2; R v Kimber HC Rotorua CRI-2003-070-6113, 17 June 2015; R v Hill HC Rotorua CRI-2005-063-3096, 27 October 2006; R v Ratana CA357/90, 25 February 1991; R v Moffatt CA193/01, 30 October 2001.

consider a two month uplift to be appropriate to reflect your continued involvement in offending that involves the threat of violence to others. The increase would have been greater but for the positive aspects of your recent personal circumstances before you involved yourself in this gang-related offending.

[22] To the pre-sentence report writer you have expressed some insight into Mr Reihana’s position but I do not consider you have exhibited any substantive remorse for him, or towards him. I do not consider it necessary to impose a minimum period of imprisonment.

Albert Mauheni

[23] Mr Mauheni, you are 35 years of age and also a patched member of the Mongrel Mob. Prior to the offending you were employed as a plasterer, and your employer has provided a positive reference. You have family support. You advised the pre-sentence report writer that you wish to take your life in a more positive direction focussed on your trade, and a desire to move away from the gang. You have shown some insight into your offending and offered remorse towards Mr Reihana. I am advised you are prepared to engage in a restorative justice conference with Mr Reihana.

[24] Against those positive aspects is your criminal history which includes a previous conviction for male assaults female in April 2014, and a rape conviction and other related sexual offending for which you were sentenced to eight years imprisonment in August 2004. Taken together the personal mitigating and aggravating factors largely cancel each other out, however, I allow a two month credit for your demonstration of remorse and willingness to participate in restorative justice.

[25] While on remand on bail you have been subject to restrictive electronic monitoring for some nine months. I allow a credit of four and a half months to reflect that factor.

[26] Mr Mauheni, you pleaded guilty to the charge of kidnapping at a late stage in the week before trial. I intend applying a 15 per cent discount. This results in a final

end sentence of 15 months imprisonment. As a result, you are a candidate for home detention. The proposed address is with your parents. Also resident at the address are two children, aged nine and 10 years, and your adult brother. While on remand you were on electronically monitored bail at this address with no recorded breaches.

[27] However, the report provided to me expresses reservations as to the suitability of the address. Police have outlined concerns regarding a number of family violence incidents, and I have already noted your 2014 previous conviction for male assaults female, although it is not clear these domestic violence events involved you or other family members. The potential for overcrowding at the house has been noted, and it has also been reported a number of convictions for violence are held by various occupants of the address. Children, Youth and Family have been notified but no report has been received, nor information provided to the Court, regarding the position of the children at the address.

[28] Mr Mauheni, on the basis of the present information available to me, I do not have sufficient confidence the address is suitable for you to serve what would be a lengthy term of some seven months home detention. Otherwise, I would have substituted the sentence of imprisonment with one of home detention. I consider the appropriate course is to sentence you to a term of imprisonment but to grant you leave under s 80I of the Sentencing Act to apply to the Court for cancellation of the sentence of imprisonment in substitution of a sentence of home detention if you are able to find a suitable residence.

Sentences

[29] Could you now please stand.

[30] Mr Corbin, on the charge of kidnapping you are sentenced to a term of imprisonment of two years and five months.

[31] Mr Mauheni, on the charge of kidnapping you are sentenced to a term of imprisonment of 15 months with leave granted to you to apply for cancellation of the sentence of imprisonment if you are able to find a suitable residence for the purpose of serving a substituted sentence of seven months home detention.

[32] You may stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch

Timothy Fournier Barrister, Christchurch

Phillip Allan Barrister, Christchurch

Solicitors: