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High Court of New Zealand Decisions |
Last Updated: 6 July 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU
ROHE
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CRI-2017-087-131
[2018] NZHC 1494 |
THE QUEEN
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v
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ERUERA POITETE HARE O’TOOLE
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Hearing:
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21 June 2018
(Heard at TAURANGA)
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Appearances:
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O M Salt for Crown
G Tomlinson for Defendant
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Judgment:
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21 June 2018
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SENTENCING REMARKS OF LANG J
R v O’TOOLE [2018] NZHC 1494 [21 June 2018]
[1] Mr O’Toole, you appear for sentence today having pleaded guilty to a charge of rioting.1 That charge carries a maximum sentence of two years imprisonment.
[2] Up until now you also faced a charge of participating in an organised criminal group. The Crown offers no evidence on that charge and you are discharged on it under s 147 of the Criminal Procedure Act 2011.
Background
[3] The charge was laid after you became involved at the tail end of a series of events that occurred in and about the Whakatane area on 17 January 2017. On that date a large number of cars filled with members of the Mongrel Mob and their supporters was due to arrive in Whakatane as part of a funeral procession. During the course of the day members of the rival Black Power group, with whom you sympathise, decided they would confront the funeral procession. Several incidents occurred before the one in which you became involved.
[4] The most serious of these occurred in Valley Road, and involved a member of the Black Power firing two shots towards both a line of police and members of the Mongrel Mob. Fortunately, no one was injured as a result of that incident.
[5] Shortly after that incident, however, you and other persons associated with Black Power went to an alleyway running from Valley Road through to Douglas Street. About ten to 15 Black Power gang members again confronted the funeral procession armed with sticks, bats and missiles. This disrupted the procession and brought it to a halt.
[6] The police became involved immediately and pursued the Black Power members down the alleyway. Police staff who came into the area saw the Black Power members and associates running out of the alleyway carrying sticks and bats. They discarded these once they saw the police approaching. You were seen running out of the alleyway and getting into a vehicle. The police arrested you at that point.
1 Crimes Act 1961, s 87.
[7] You told the writer of the pre-sentence report that your only involvement was to leave the scene in the vehicle. Your plea to the charge of rioting requires me, however, to sentence you on the basis that you were a participant in the events that occurred.
Starting point
[8] Several defendants have been sentenced as a result of an earlier similar incident in which members of the Black Power and their associates confronted the Mongrel Mob procession in a similar way. In each of those cases a starting point of 18 months imprisonment has been selected.2 The Crown suggests I should select the same starting point in relation to your offending. Your counsel disagrees. He submits that a starting point of no more than 12 months is appropriate.
[9] I take an approach that is in the middle of these two views. I accept that your involvement came late in the day, and after the most serious of the incidents. On the other hand, you must have known that the other incidents had occurred and the starting point must reflect your decision to become involved with that knowledge. I propose to select a starting point of 15 months imprisonment.
Aggravating factors
[10] You have a large number of previous convictions at the age of 22 years. These are for a variety of offences, but many of them involve violence. I propose to add an uplift of two months to reflect your previous convictions. This is not to punish you again in respect of earlier offending, but reflects the principle that your current offending is made more serious by the fact that you have not learned from earlier sentences imposed on you.
[11] This brings me to an end sentence of 17 months imprisonment before taking into account mitigating factors.
Mitigating factors
[12] The only mitigating factor I propose to take into account is your guilty plea. It was not at an early stage, and the Crown is probably correct in saying that a discount of just 15 per cent is warranted. I propose to round the discount up to three months, producing an end sentence of 14 months imprisonment.
[13] In that situation, sentences of home detention and community detention can theoretically be considered. The reality, however, is that you have spent approximately eight months in custody up until now. As a result the sentence of 14 months imprisonment will result in your immediate release. There is therefore no point in considering alternative sentences.
[14] Your counsel tells me that when released today, you propose to travel to the South Island and live with your family. That is welcome news, Mr O’Toole, because a return to the Bay of Plenty will inevitably see you in the same kind of trouble as you have been in over the last two years. I therefore hope that you make good on your promise and leave the district as soon as you can.
Sentence
[15] On the charge to which you have pleaded guilty, you are sentenced to 14 months imprisonment.
[16] The pre-sentence report recommends the imposition of special conditions. I do not consider it appropriate to impose those given the length of time you have been in custody. Ordinarily you would also be automatically subject to the standard release conditions set out in the Parole Act 2002. Given your imminent move to the South Island, I direct that the standard conditions are not to apply. I do so solely on the basis of your assurance that you are leaving the Bay of Plenty to travel to the South Island. I would hope, as I have said, that you make good on that promise.
Lang J
Solicitors:
Crown Solicitor, Tauranga Gowing & Co Ltd, Whakatane
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