R v Taitapanui [2018] NZHC 2592 (4 October 2018)

Last Updated: 1 November 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2017-087-131 [2018] NZHC 2592

THE QUEEN

v

RONALD FISHER TAITAPANUI

Hearing:	4 October 2018 (Heard at TAURANGA)
Appearances:	O M Salt for Crown L Smith for Defendant
Judgment:	4 October 2018

SENTENCING REMARKS OF LANG J

R v TAITAPANUI [2018] NZHC 2592 [4 October 2018]

[1] Mr Taitapanui, you appear for sentence today having been found guilty by a jury on charges of participating in an organised criminal group¹ and rioting.² The maximum penalty for the charge of participating in an organised criminal group is ten years imprisonment, whilst the maximum penalty for the other charge is two years imprisonment.

Background

[2] The charges were laid as a result of your participation in a series of incidents that occurred in and around Whakatane on the afternoon of 17 January 2017. On that date members of the Black Power gang, with whom you had been closely affiliated for many years, became aware that a funeral procession comprising members and associates of the rival Mongrel Mob gang was to pass through the Whakatane township on its way to a crematorium just outside the town. You and others then went to various locations where you thought the funeral procession might enter the town. You were seen present at the various gatherings as members of your gang awaited the arrival of the funeral procession.

[3] The incident that gives rise to the charges was sparked by another incident that occurred a short time earlier in a service lane near Valley Road. As the funeral procession was entering the township, members and associates of your gang threw missiles at the cars in the funeral procession from the cover of a service lane. You were not involved in that incident, but I am sure that you quickly learned what happened as a result of it.

[4] The Mongrel Mob responded to the attack on the procession by discharging several shots in the direction of the Black Power group who had been throwing missiles at them. A vehicle driven by members of the Mongrel Mob also endeavoured to run down members of the Black Power group as they fled from the service lane. At this stage you were with other members of the gang in the vicinity of Rex Morpeth Park. I have no doubt that word quickly spread of the fact that shots had been fired by the Mongrel Mob. You then went in a car driven by Mr Biddle to Arawa Road. I have

¹ Crimes Act 1961, s 98A.

² Crimes Act, s 87.

no doubt that you went there with others as part of a plan to provide a “show of force” to the Mongrel Mob in response to the fact that they had discharged shots at associates of your group.

[5] Your vehicle travelled down Arawa Road towards the intersection with Valley Road. At the intersection of Valley Road and Arawa Road, there was a very large group of Mongrel Mob members gathered. Your vehicle drove down the road and then turned so that it was side-on to the group of Mongrel Mob at the end of the street. Taunts were then heard emanating from your vehicle. At trial, you said you believed the taunts came from further up the street, but I have no doubt as a result of the evidence of at least two eye-witnesses that it was members of your group in the vehicle who issued the taunts at the Mongrel Mob.

[6] The vehicle then turned around and went back to where other members of the Black Power were gathered. You and Mr Biddle got out of your vehicle and walked over to where a silver Mitsubishi Galant was parked. The boot of the vehicle had been opened and firearms were being taken from it. You would have been able to see what was happening when this occurred. Members of the group then provided firearms to Mr Karaneihana Taipeti, who advanced towards the Mongrel Mob pointing the firearm in their direction. The first firearm that he presented at the Mongrel Mob did not fire and he was then given another firearm. He discharged that firearm on two occasions in the direction of both the Mongrel Mob and police officers who were in front of the Mongrel Mob trying to keep the two groups apart.

[7] At trial, you were charged with being a party to the use of a firearm against both the police and members of the Mongrel Mob. You were acquitted on those charges, so the jury cannot have been satisfied beyond reasonable doubt that you encouraged Mr Taipeti to actually use the firearm. Your culpability, instead, lies in the fact that you were prepared to become involved in a group that taunted the Mongrel Mob in circumstances where firearms were present and in fact were used on two occasions.

Starting point

[8] There is no dispute regarding the starting point to be selected in your case. I take that to be the same as in the cases of Messrs Biddle,³ Martin and Trent Taitapanui.⁴ Your culpability is the same as theirs. In each of those cases I took starting points of three years three months imprisonment. Your counsel accepts that this is an appropriate starting point to reflect your culpability in relation to this incident.

Aggravating factors

[9] It is now necessary to consider whether to increase the sentence to reflect the fact that you have relevant previous convictions. You have several previous convictions for disorderly behaviour. More importantly, you also have a conviction in 2007 for unlawful assembly. This resulted in a sentence of four months imprisonment, so it must have been reasonably serious offending of its type. I have little doubt that this would have occurred in a gang context because of your long-standing association with Black Power.

[10] Ordinarily, I would apply an uplift of around three months to reflect that factor. In the present case, however, I do not do so. I decline to apply an uplift because I accept the offending occurred around ten years prior to the present offending. Any uplift would in any event be offset by any credit I can give you for mitigating factors. For that reason I apply no uplift, so the end starting point before taking into account mitigating factors is a sentence of three years three months imprisonment.

Mitigating factors

[11] Your counsel urges me to give you credit for several mitigating factors. The first of these is your assertion that the actions of the Mongrel Mob in some way provoked what you did. I do not accept this submission. As I explained to your counsel during the hearing, the Mongrel Mob had a right to travel through the Whakatane township to the crematorium. Your gang does not own the town and had no power to say who should travel through it. The first provocative act in the series

³ R v Biddle [2018] NZHC 2264.

⁴ R v Martin & Taitapanui [2018] NZHC 2270.

of events that led to your offending was that of the Black Power, who attacked the funeral procession as it entered the township. I do not accept that any actions by the Mongrel Mob could be regarded as being provocative to the extent necessary to justify a discount from the starting point I have selected.

[12] Your counsel also submits I should apply a discount for remorse. She points out that when you were interviewed by the police in September 2017 you said that you were sorry for what had occurred. I regard that as a limited expression of remorse, and it does not feature at all in the pre-sentence report. It is clear from the pre-sentence report that you regard your offending as having been provoked by the actions of the Mongrel Mob and I do not detect any remorse in the report. I therefore decline to allow a discount for that factor.

[13] Your counsel also submits I should provide you with a discount to reflect difficulties you have had as a result of injuries you have received in the past. She refers me to a report prepared prior to the trial by a communications expert. The report indicates that you have some difficulties with language, but you were able to acquit yourself well when being interviewed by the police and also when giving evidence at trial. I do not consider any discount could realistically be applied to reflect this factor.

[14] Next, your counsel says you should receive a discount for the steps you took to ensure the trial was completed efficiently. I acknowledge that the trial was completed efficiently, but in large part this was due to the Crown electing not to call many of the witnesses who had given evidence at an earlier trial involving other defendants. I would be prepared to provide a limited discount for this, but that would be offset by the fact that I have not provided an uplift to reflect your previous convictions.

[15] Similarly, I acknowledge the support you have from your partner and other groups in the community. Again, however, any limited discount that I could provide for this is offset also by the fact that I am not applying a discount to reflect relevant previous convictions. It follows that I am not prepared to reduce the sentence from the initial starting point of three years three months imprisonment.

Sentence

[16] On the charge of participating in an organised criminal group, you are sentenced to three years three months imprisonment. On the charge of rioting, you are sentenced to nine months imprisonment. Those sentences are to be served concurrently, which means the effective sentence is one of three years three months imprisonment.





Lang J

Solicitors:

Crown Solicitor, Tauranga

Mrs L Smith, Barrister, Auckland

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-087-131 [2018] NZHC 1904

THE QUEEN

v

RONALD FISHER TAITAPANUI

Hearing: 20 July 2018


Appearances: R W Jenson for Crown
L Smith for Defendant

Judgment: 30 July 2018

SENTENCE INDICATION OF LANG J

[1] Mr Ronald Taitapanui faces charges of participating in an organised criminal group and rioting. He seeks a sentence indication in relation to those charges. He also faces charges of being a party to the discharge of firearms with reckless disregard for the safety of both the police and members of the Mongrel Mob. If he accepts the sentence indication, the Crown will offer no evidence on the other charges.

[2] A sentence indication is an indication of the sentence the Court will impose if the defendant enters guilty pleas to charges within a short time after the indication is given. If the indication is not accepted, it is of no further force and effect. If a defendant proceeds to trial and is found guilty, the sentencing Judge will impose a sentence that reflects the circumstances of the offending as he or she perceives them to be.

The charges

[3] The charges arise out of an incident that occurred in Whakatane on the afternoon of 17 January 2017. On that date members and associates of the Black Power gang, with whom Mr Taitapanui identifies, were aware that a funeral procession comprising members of the Mongrel Mob and their associates was to pass through Whakatane. They took exception to this and decided to mount a show of force in relation to it.

[4] As the funeral procession approached a service lane leading off Valley Road, members and associates of the Black Power gang threw missiles, including sticks, rocks and bottles, at the procession. The Mongrel Mob responded by discharging shotgun blasts in the direction of the Black Power group. This prompted members of the Black Power group to mobilise and go to Arawa Road in Whakatane. They positioned themselves approximately 150 metres from the intersection of Arawa Road and Valley Road. By that stage the funeral procession had stopped, and about 200 members of the Mongrel Mob and their associates were gathered around the intersection of Arawa and Valley Roads. Members of the two groups began taunting each other and shouting gang slogans.

[5] At some stage a silver Mitsubishi Galant arrived in Arawa Road. Several firearms were taken from this and a member of the Black Power group, Mr Karaitiana
Taipeti, discharged a shotgun on two occasions in the direction of the Mongrel Mob members and police officers at the other end of the street.

[6] The Crown does not allege Mr Taitapanui was involved in handling the weapons or in discharging the firearm. Rather, his culpability arises because he joined the group of Black Power members in the knowledge that firearms had been brought to the scene and were likely to be used against the members of the Mongrel Mob gathered at the other end of the street. By his actions in continuing to taunt the members of the Mongrel Mob, he participated in the unlawful actions of the group.

Starting point

[7] Earlier today I gave a sentence indication in relation to two of Mr Taitapanui’s co-defendants, Mr Trent Taitapanui and Mr Rihari Martin.⁵ The Crown had suggested a starting point of three and four years imprisonment. My initial impression was that a starting point of around four years imprisonment was appropriate. Having reflected on submissions made on behalf of Mr Trent Taitapanui and Mr Martin, I concluded that a starting point of four years was too high and did not adequately reflect the difference in culpability between Mr Taipeti and those defendants. I therefore selected a starting point of three years three months imprisonment in relation to the charges they faced.

[8] Mr Ronald Taitapanui is in an identical position to Mr Trent Taitapanui and Mr Martin. I therefore select a starting point of three years three months imprisonment on the charges he faces.

Aggravating factors

[9] Mr Taitapanui has a long list of previous convictions for offending involving violence. I accept, however, that any uplift in relation to these must be proportionate. I would add an uplift of three months to reflect previous convictions. This results in a sentence of three years six months imprisonment before taking into account mitigating factors.

⁵ R v Martin & Taitapanui [2018] NZHC 1900.

Mitigating factors

[10] The only mitigating factor I can take into account at this stage is that for guilty pleas. Although pleas would be entered late, they have real value in reducing the scope of the forthcoming trial. I would therefore apply a discount of nine months, or just over 20 per cent, to reflect guilty pleas. This produces a sentence of two years nine months imprisonment.

[11] I may be able to provide Mr Taitapanui with a further reduction to reflect other mitigating factors that the pre-sentence report might disclose. I am also unaware of whether he has been subject to any restrictive bail conditions that might entitle him to a further discount. For that reason any further discount would need to await sentencing.



Lang J

Solicitors:

Crown Solicitor, Tauranga

L Smith, Barrister, Auckland