R v Brown

[2018] NZHC 1486

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 1486

THE QUEEN

v

TUTEMAUNGAROA DIXON

Hearing:

21 June 2018

(Heard at TAURANGA)

Appearances:

O M Salt for Crown

N J Utting for Defendant

Judgment:

21 June 2018

SENTENCING REMARKS OF LANG J

R v DIXON [2018] NZHC 1486 [21 June 2018]

[1]                  Mr Dixon, you appear for sentence today having pleaded guilty to a charge of rioting. As I am sure you know, that charge carries a maximum sentence of two years imprisonment.

Background

[2]                  Your offending occurred on 17 January 2017. On that date you were part of a gathering of Black Power members who met in the morning at an address in Paul Street, Whakatane to discuss what you were to do in relation to a funeral procession comprised mainly of members or associates of the Mongrel Mob that you understood was to pass through Whakatane later in the day. You subsequently went with other members of the Black Power to a service lane in Valley Road. When the funeral procession went past the service lane, you joined with others in confronting the procession. Members of the group threw sticks, bottles and stones at vehicles within the procession. The Crown cannot specifically say what you did, but you acknowledge you participated in what occurred.

[3]                  The confrontation came to an end when a person within the procession stood up in a vehicle and discharged a firearm in the direction of the Black Power members. This caused them to scatter, and they were pursued by a car driven by a member of the Mongrel Mob.

[4]                  Other events then occurred later in the day in Whakatane, and these have led to other charges against members of your group. The Crown accepts you were not party to any of the later and more serious events.

Starting point

[5]                  I fix the starting point for your offending having regard to the starting point selected by Wylie J when sentencing one of your co-defendants, Mr Moeke.1 His role was much the same as yours with the only distinction being that he was described as a “full participant”, whatever that term may mean. I propose to select the same starting point in relation to your offending.

1      R v Moeke [2018] NZHC 1426.

Aggravating factors

[6]                  You have a reasonable criminal history for a person of the age of 22 years. You have had a number of previous convictions for offending involving violence. You also have convictions for wilful damage and disorderly behaviour. The most serious conviction is on a charge of aggravated robbery. You have already served a number of sentences of imprisonment for this offending.

[7]                  Having regard to your history, I propose to apply an uplift of two months to reflect your previous convictions. This is not to punish you again in relation to your previous convictions. Rather, it is because the courts view the present offending as more serious. Earlier sentences of imprisonment have not deterred you from offending in a violent way and the uplift reflects that fact.

[8]                  This means I am left with a sentence of 20 months imprisonment before taking into account mitigating factors.

Mitigating factors

[9]                  I have now received a very helpful pre-sentence report. This confirms that you have obtained employment with a logging company. I have received a letter from that company today, and it confirms that you are a valuable asset to the company and clearly have a future there.

[10]              The pre-sentence report says that you are at the cross-roads. You admit you are a member of a gang associated with the Black Power, and that you are a patched member. You say, however, that you have the option in the future of declining to take part in criminal activities by the gang. You say you do not want to engage again in criminal offending.

[11]              I consider that you are indeed at the cross-roads. If you continue to associate with the gang then I have no doubt that you will be back before the courts and further sentences of imprisonment will be inevitable.

[12]              I propose, however, to reduce your sentence by three months to reflect the fact that you have remained free of offending whilst on bail. You have not breached your bail and you have been able to find meaningful work whilst on bail.

[13]              I propose to reduce that sentence further by three months to reflect your guilty plea. This did not come at an early stage and for that reason I am unable to give a full reduction of 25 per cent. Nevertheless, I am satisfied that the plea represents an acceptance of responsibility on your part. This means that I am left with an end sentence of 14 months imprisonment.

[14]              This provides the options of either home detention or community detention. The Crown accepts a sentence of home detention may be appropriate, but does not accept that a sentence of community detention would adequately reflect the sentencing principles of deterrence and denunciation. Ordinarily I would agree with that, and would impose a sentence of home detention for that reason.

[15]              I consider, however, that it is important that you continue with your employment. This will obviously require you to work from different locations in forestry areas. Although persons subject to a sentence of home detention can work, they can only do so where their attendance at work can be electronically monitored. Your occupation as a forestry employee is likely to preclude that. I consider it would be highly unfortunate if you were required to serve a sentence of home detention that precluded you from continuing with your employment.

[16]              For that reason I propose to accept the recommendation in the pre-sentence report that you serve a sentence of community detention. This means you will be subject to a daily curfew between the hours of 8 pm and 6 am. You will also be subject to a curfew at weekends. Your current bail conditions have required you to maintain a curfew each night between the hours of 8 pm and 6 am. You have been able to adhere to those conditions without breach since September 2017. I am therefore satisfied you are likely to abide by any curfew imposed as a condition of community detention.

[17]              I also consider, however, that you should serve a sentence of community work. This can be performed during weekends. It is also appropriate that you be sentenced to supervision so that you have oversight and guidance over the coming months.

Sentence

[18]              On the charge of rioting, you are ordered to serve six months community detention. The sentence will be subject to the conditions set out in the pre-sentence report dated 12 June 2018. In addition, you are sentenced to 150 hours community work and 12 months supervision.

[19]Stand down.

Lang J

Solicitors:

Crown Solicitor, Tauranga

N J Utting, Barrister, Rotorua