R v Taylor

[2018] NZHC 2284

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 2284

THE QUEEN

v

BUTLER TAYLOR

Hearing:

30 August 2018

Appearances:

O M Salt for Crown

B Hesketh for Defendant

Judgment:

30 August 2018

SENTENCING REMARKS OF LANG J

R v TAYLOR [2018] NZHC 2284 [30 August 2018]

[1]                  Mr Taylor, you appear for sentence today having pleaded guilty to charges of participating in an organised criminal group,1 using a firearm against an enforcement officer2 and discharging a firearm with reckless disregard for the safety of others.3 Those charges carry maximum sentences of ten years, 14 years and seven years imprisonment respectively.

[2]                  The Crown has offered no evidence on the remaining charges that you face and I now make an order discharging you on those charges under s 147 of the Criminal Procedure Act 2011.

Background

[3]                  Your offending occurred as a result of a series of events that took place in and around the Whakatane township on the afternoon of 17 January 2017. On that date the Black Power gang, with whom you were then closely affiliated, learned that a funeral procession comprising members and associates of their rival gang, the Mongrel Mob, was to travel through Whakatane. The procession was to make its way through the town en route to the crematorium on the outskirts of the town. This occurred against a backdrop of increasing tensions between the two gangs because of a series of incidents that had occurred during the previous two weeks.

[4]                  The Black Power members were angry that the Mongrel Mob would trespass on what they considered to be their territory. For that reason they gathered at various points around Whakatane township where they believed the procession might enter the town. You were seen in a gathering of Black Power members near Rex Morpeth Park at the intersection of Valley Road and Gorge Road.

[5]                  The incident that gave rise to the charges occurred as a result of another incident that took place in a service lane just off Valley Road. The Mongrel Mob procession arrived in Whakatane using Valley Road and intended to travel along Valley Road to Gorge Road. A short distance before the intersection with Arawa Road, several members of the Black Power group attacked the funeral procession by

1      Crimes Act 1961, s 98A.

2      Crimes Act, s 198A(1).

3      Crimes Act, s 198.

throwing missiles at it. These comprised rocks, sticks and bottles. Predictably the Mongrel Mob responded in a violent way. Shots were discharged from the procession in the direction of the Black Power members who had ambushed the convoy. Vehicles driven by Mongrel Mob members also chased the Black Power members down the service land, and in one instance endeavoured to run a Black Power member over.

[6]                  Word got out very quickly that shots had been fired against the Black Power, and I have no doubt you learned of this whilst you were in the vicinity of the intersection of Gorge Road and Valley Road. Black Power members then decided to put on a show of force in Arawa Road. You were one of several persons who went to Arawa Road for that purpose. Your group gathered near the intersection of Te Tahi Street, approximately 150 metres from the intersection of Arawa and Valley Roads. The ambush in the service lane had caused the funeral procession to stop, and approximately 200 members of the Mongrel Mob were gathered at the intersection of Valley and Arawa Roads.

[7]                  At or about the time of your arrival at Arawa Road, a silver Mitsubishi Galant motor vehicle arrived. Almost immediately the boot was opened and several firearms were taken out of it. You were one of the persons who took firearms out of the boot of the vehicle. You gave a loaded firearm to Mr Karanaihana Taipeti. He then subsequently used it to fire two shots towards the Mongrel Mob at the other end of the street. Police officers were also in front of the group of Mongrel Mob members in an effort to keep the two groups apart. You also took a firearm yourself and waved it in the air. You say you did that because you were scared by the large number of Mongrel Mob members at the other end of the street. That was obviously the wrong thing to do because it increased the risk that firearms would be used by the Mongrel Mob against you and your associates. As soon as the two shots had been fired, the Black Power group dispersed.

Starting point

[8]                  The starting point to be selected in your case needs to be considered against sentences imposed by other offenders in your group. Your offending is very similar to that of Mr Stuart. I took a starting point of five years six months imprisonment in his

case. 4 Mr Stuart was another person who removed firearms from the boot. Mr Stuart gave a firearm to Mr Taipeti, but this malfunctioned and could not be fired. You then provided Mr Taipeti with the firearm that he ultimately discharged.

[9]                  I do not draw any distinction between you and Mr Stuart on the basis that you provided him with an operable firearm, whereas Mr Stuart provided him with an inoperable firearm. That was really a fortuitous event and has nothing to with the culpability of either of you.

[10]              Where I see your offending  as  being  slightly  more  serious  than  that  of Mr Stuart is the fact that you were prepared to brandish a firearm yourself. That act had the potential to raise tension even further, and risked the prospect that the Mongrel Mob would retaliate by discharging a firearm in your direction. I therefore select a starting point of five years nine months imprisonment to reflect the overall culpability of your offending.

Aggravating factors

[11]              You have a number of previous convictions including convictions for violence. These occurred, however, in a family context. I see that as being a different type of conduct from that which occurred here. For that reason I do not propose to add an uplift to reflect your previous convictions.

Mitigating factors

[12]              It is now necessary to consider the extent to which the sentence should be reduced to reflect mitigating factors personal to you. I have the benefit of several sources that tell me a great deal about your personal situation. Perhaps the most important of these is the pre-sentence report which speaks of you in positive terms. Importantly you have now removed yourself from your association with the Black Power gang. You have handed your patch back, and I am told by your counsel that the gang has accepted your resignation.

4      R v Stuart [2018] NZHC 2105.

[13]              In addition, you have the ability to hold down a steady job. You have also expressed sincere remorse for your offending. Furthermore, you also have the strong support of your partner and family members. Obviously this is going to be necessary in the months and years to come. All of these are extremely positive factors, and I propose to allow a discount of seven months, or approximately ten per cent, to reflect them.

[14]              You were on restrictive EM bail conditions for a period of approximately six months before your trial. I propose to give you a credit in respect of this, but it cannot be on a month for month basis. I propose to allow a discount of three months for this factor.

[15]              This produces a sentence of four years 11 months, before taking into account your guilty pleas. These were not entered at an early stage, but the Crown nevertheless accepts you should receive a discount of 20 per cent. I therefore propose to apply a discount of 12 months to reflect your guilty pleas. This reduces the sentence to one of three years 11 months imprisonment.

Sentence

[16]              On the charge of participating in an organised criminal group, you are sentenced to three years 11 months imprisonment. On the remaining two charges, you are sentenced to two years imprisonment on each. Those sentences are to be served concurrently with each other and with the sentence imposed on the other charge. This means you will serve an effective sentence of three years 11 months imprisonment.

Lang J

Solicitors:

Pollett legal Ltd, Tauranga Adams Law, Tauranga