EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED. IN THE DISTRICT COURT AT TAURANGA CRI-2015-087-000856 [2017] NZDC 10353 THE QUEEN v GODFREY TE RITO TAMIHANA TUKAKI DESMOND RONGO NGAHEU Hearing: 16 May 2017 Appearances: P Attwood for the Defendant Te Rito M Bates for the Defendant Tukaki R Gowing for the Defendant Ngaheu Judgment: 16 May 2017 NOTES OF JUDGE T R INGRAM ON SENTENCING [1] Mr Te Rito, Mr Tukaki and Mr Ngaheu are for sentence today in respect of a number of charges. You were found guilty by a jury following a trial which ran for nearly two weeks. The charges are serious. [2] In your case, Mr Te Rito, there is a charge of wounding with intent to cause grievous bodily harm, one charge of injuring with intent to cause grievous bodily harm you being a party and a charge of common assault. [3] For you, Mr Tukaki, were found guilty in relation to two charges of wounding with intent to cause grievous bodily harm, one charge of injuring with intent to cause grievous bodily harm and a charge of assault with a weapon. R v GODFREY TE RITO [2017] NZDC 10353 [16 May 2017]
[4] You, Mr Ngaheu, have been found guilty in respect of a charge of injuring with intent to cause grievous bodily harm as a party to that offence and also a charge of male assaults female. [5] It is right that I acknowledge at this points the efforts made by your counsel throughout the trial to assist in the conduct of the trial. The trial was expeditiously run and I express my thanks to counsel for their obvious preparation and the economy with which the trial was able to be run. [6] Nevertheless, you all denied all the charges. [7] In your case, Mr Ngaheu, I recognise at this point that from the outset you accepted you were involved and from the outset you accepted that you had assaulted the two victims that you were eventually found guilty of assaulting, but you maintained not guilty pleas throughout the trial as is your right. [8] The facts of the matter are not complex but I need to take a few minutes to cover them. The three of you were together. That evening you had been drinking at another address. I accept from your counsel that there had been a disagreement during the course of the evening, which no doubt left all three of you in something less than a good mood. You were returning to your respective homes when you came across [victim 1] and [victim 2]. You did not obviously recognise him because, if you had, none of this would have occurred. Their son is, as you are, a member of the Mongrel Mob. I think it is very unlikely that there would have been any of the consequences of this evening had the matter not spiralled into violence almost immediately. [9] [Victim 2] and [victim 1] had only walked a short distance from the house where they had been when they came across you. Mr Te Rito, the evidence was that you were on the same side of the street as these two men and Messrs Tukako and Ngaheu were on the other side. Mr Te Rito, you attacked [victim 1]. He was punched and sworn at. Unsurprisingly, he was not prepared to accept that and retaliated. Then the other two ran over and got involved.
[10] That was when things got seriously out of kilter. [Victim 1] was punched to the ground. The evidence that was given by a number of witnesses established, unequivocally, that all three of you began kicking [victim 1] to his head and body. He knew what to do and curled himself up into a protective position and was able to do so to prevent himself from receiving any serious injury. The three of you were yelling out Mongrel Mob slogans as you repeatedly kicked a man in late middle years who was absolutely no threat to you. [11] That left [victim 2] and, unsurprisingly, he intervened. At that point you, Mr Tukaki, began to punch him and he was knocked to the ground. When that happened [victim 1] managed to get up, but the three of you knocked him to the ground again. [12] Mr Ngaheu kicked [victim 1] at least in the area of his head. He was kicked at least six or seven times. Mr Te Rito you leaned over him and punched him at least eight times. Then one of you yelled out, I m gonna stick you. [13] Mr Tukaki, the evidence established that you had a knife and [victim 2] was in your sight. You endeavoured to stab him and yelling out, Sieg Heil and this is the Mongrel Mob. Mr Te Rito also had a knife. [Victim 2] was punched and stabbed to the chest and back. [14] Fortunately his injuries were not serious and he managed to get up and went to his home address which was only a few steps away and alert others in the house, who set about looking for weapons to assist them with what was going on. [15] [Victim 3] became involved but, in the meantime, [victim 4], who is related to the complainants, came along in a car. She stopped and she yelled out to you three to leave the old men alone. Mr Ngaheu, you approached her and yelled in her face, Who the fuck are you, Mongrel Mob? and then struck her with a clenched right fist. During the course of her evidence she told us that the punch was not hard and it did not hurt, but I have no doubt at all that she was being as kind as she could be to you in the circumstances.
[16] She then got out of the car and a fight occurred between her and Andrea O Toole. That matter has already been dealt with and needs to play no further part in my consideration of these matters. [17] [Victim 5] turned up with an axe and he began to swing it around. Mr Tukaki you attempted to stab him a number of times, but eventually the message managed to get through to you that these were [victim 5] and his family and they are, of course, Mongrel Mob supporters. [18] Mr Tukaki, that wasn t the end of the matter. You were yelling out, Who wants to be stabbed? and you approached [victim 3 ]. She lifted her arm up to protect herself and you cut her arm deeply. I saw photographs of the injury and she described it in the course of her evidence. The evidence is clear that she was quite badly hurt. She has ongoing trouble with her right hand because nerves in her arm have been severed. She was stabbed a further three times but they were not serious cuts. She ended up on the ground bleeding. Fortunately, an ambulance was promptly called and none of the complainants have received serious long-term injuries, although I do not wish to overlook the fact that [victim 3] will always have nerve damage, as a result of what has occurred. [19] You, Mr Ngaheu, as I have indicated when spoken to by the police accepted that you were there and you had a part of the assaults. Mr Tukaki and Mr Te Rito, you both denied involvement. That is relevant because you have both come before me and said we are remorseful, we are sorry for what we have done and we want to have recognition of that remorse in the sentence that is imposed by the Court. [20] The probation reports that I have received, unsurprisingly, recommend sentences of imprisonment and apart from that they simply recognise the reality that all three of you have, for many years, been involved with the Mongrel Mob in Kawerau. All of you have issues to do with alcohol and drugs. All of you owe allegiance to the gang which you are members of. [21] The Crown position in relation to these matters is that substantial sentences of imprisonment should be imposed.
[22] In your case, Mr Te Rito, the Crown says we should have a starting point of 10 or 11 years and there should be substantial uplifts to account for the fact the offending whilst on bail. The Crown says that there should be a minimum period of imprisonment imposed. [23] Likewise with you, Mr Tukaki, the Crown says a starting point of 12-13 years plus uplifts for your prior bad record is required. The Crown ask for a 60 percent minimum period of imprisonment. [24] Your offending, Mr Ngaheu, is somewhat less and the Crown has asked for a starting point in the range of three to four years and an uplift for your prior poor history. [25] To summarise the Crown position and I do not intend to go through all the details that have been put forward for my consideration, the Crown says that this is a pretty clear case of a concerted street attack and nobody sought to persuade me otherwise. The Crown says that there are at least three and, perhaps, four or five aggravating factors. The Crown says you should get no credit for your remorse and acceptance of responsibility, because you did not do so at any stage prior to trial and all you are doing is advancing very late a lame and weak excuse that you are sorry about what has happened. Which in all the circumstances is not worthy of recognition by me in relation to the trial. [26] Turning to the defence positions, I start with you, Mr Te Rito. A submission put forward on your behalf is that maybe a starting point of seven to eight years would be appropriate and there may need to be some uplift. Mr Attwood on your behalf has strongly advanced the proposition that whatever else might be said about it you now accept responsibility for what you have done. That you are remorseful about it. He points out that you were acquitted on some of the charges that you faced and you have accepted the verdict of the jury. He also says, essentially, you have applied yourself usefully in your time on remand and you have had to reflect what has got you to this position. He sought to persuade me that because you come from a background of gang life what has happened on this occasion is not really a concerted effort by a gang, rather it is just a part of who you and the others are
because that is the way life is in Kawerau for members of the Mongrel Mob. He says that there should be no express uplift here because this is a gang case. [27] On your behalf, Mr Tukaki, you counsel has been at pains to persuade me that you have accepted responsibility. Your remorse is genuine. He has emphasised that you and, indeed it is true of the others, behaved yourselves throughout the trial. He says there is a clear acceptance that you got yourself into this situation and you are prepared to take the consequences. He says this is just a case of some drunk and angry young men losing the plot on the night. He says there are clear signs in the probation report and in the letter that you have written of you having some insight into your own behaviour. [28] Finally, Mr Ngaheu, on your behalf your counsel has endeavoured to persuade me that the major charge here is one which could perhaps have been charged at a lower level. He says that there was no serious injury from any action that you took. You have also admitted that you were involved in the assaults. Your acceptance of responsibility included an apology given before the trial. He emphasises too, that you are someone who enjoys support both in your family and in the wider community. [29] When I stand back and look at this matter it seems to me there are some pretty straightforward features. Firstly, there is no doubt that this was a concerted street attack by three men. Punching and kicking older men who presented absolutely no threat to any of you. I have discussed with counsel and I am firmly of the view that what really transpired on that evening was that somehow the three of you saw [victim 1] and [victim 2] as representing some threat to the dominance of the Mongrel Mob in the streets of Kawerau. You were not prepared to brook any resistance from anybody. [30] That is particularly clear in relation to you, Mr Ngaheu, with you punching a young woman who said what a cowardly attack this is, the three of you attacking some old men. Your response was to punch her and assert the dominance of the Mongrel Mob.
[31] I accept that in relation to a single punch in the face that might not ordinarily require a substantial sentence of imprisonment but, in all the circumstances, that occurred on that night I consider that the gang behaviour is a feature which I simply cannot ignore. The individual facts here require me to approach the R v Taueki 1 sentencing guidelines in a flexible fashion. The first point I would make is that I consider this could never be anything other than a band 3 example of offending, at least in relation to the stabbings. [32] There are in my view several factors which point to that. Firstly, the level of violence without any proportion to any threat that these men could have possibly have represented. The use of knives in the circumstances, in my view, fairly comes within the description of extreme violence. I do not accept that it was premeditated because it was a chance encounter. Nevertheless, the injury that occurred to [victim 3] was a serious injury in my view and it is only by the Grace of God that the other injuries received by both [victim 1] and [victim 2] were not as serious as they could have been. [33] There can be no argument with the proposition that weapons were involved and, clearly, there were multiple attackers. This was not a case of gang warfare but it was a case of a gang exercising what the members on the night considered to be the prerogative of gang members on a Saturday night in Kawerau to brook no resistance from any person. Whilst I accept that alcohol and drugs may well have had something to do with it that is not a mitigating feature. The gang aspect of it, in my view, deserves recognition in assessing the combination of factors that I am required to determine under the principles explained in R v Taueki. [34] Accordingly, I accept that this is a straightforward band 3 case where, at least in relation to [victim 3], her injury will have an ongoing impact on her enjoyment of life. I accept that all the victims here were vulnerable on that night being faced by three fit strong young men who were well capable of doing them serious damage. I take note too of the observation in R v Taueki that minimum periods of imprisonment are not rare in relation to serious violence and this is serious violence. 1 R v Taueki [2005] 3 NZLR 372 (CA)
[35] The Sentencing Act 2002 requires me to hold you accountable for what you have done, promote a sense of responsibility in you. I have given careful consideration to the responsibility which is now acknowledged and, in the end, I have come to the view that there is something in what defence counsel have been arguing. All three of you have been at pains to impress upon me that you are sorry for what happened. I have no doubt about that. It was clear to me during the course of the trial that you were sorry about what had happened because, clearly, if any of you had known who was involved it never would have happened at all. [36] Each of you has taken at least some step to demonstrate to me that you accept responsibility for your part in it and you accept that you should be held to account for the damage that you have done. [37] I further need to consider the interests of the victims. I need to denounce your conduct and deter you and others. This is no minor aspect of the sentence here. When violence in this level is meted out, knife crime, which this is a straightforward example of, needs to be deterred and the deterrence needs to be clear and unequivocal. The community requires protection from people who will use knives or otherwise engage in serious violence, as you have done. [38] All three of you need rehabilitation and I would expect the Parole Board in each case to bear that steadily in mind when the time comes for them to see you and assess your prospects for parole. [39] I turn to s 8 Sentencing Act. I am required to have regard to the gravity of the offending and the comparative seriousness of the offence. It is necessary under s 8(1)(d) for me to consider the need to impose a penalty near to the maximum if the offending is near to the most serious case. If this case had been any more serious we would have been talking about attempted murder or, indeed, murder. [40] I need to be consistent with sentences imposed on others in similar circumstances, consider the effect on the victims and impose the least restrictive outcome which is appropriate. Which clearly here is a substantial sentence of imprisonment for all three of you.
[41] The aggravating factors obviously are the seriousness of the violence and the use of the weapons. [42] In relation to you, Mr Te Rito, you were on bail. [43] The extent of the harm resulting is substantial. The victims were vulnerable. All of you have got bad prior records. None of you get any benefit in terms of pleas or acknowledgement of involvement. The only factor that I can reasonably consider it seems to me is your remorse and acceptance of responsibility. Having reflected on that matter I have come to the view that I should make a small allowance for remorse in each case. [44] I am satisfied on the basis of the application authorities and there are many and quite a number have been cited to me, I have taken particular assistance from r R v Rapana 2 which most counsel have addressed me on. Likewise in relation to Kulimoeanga v R 3. Both of those cases have formed my decision but I stress that I have endeavoured to work from first principles in relation to the observations in R v Taueki in each case. [45] Gang violence is prevalent in Kawerau, as one witness in this trial said in her evidence. Every night the Mongrel Mob are barking and carrying on in the streets of Kawerau. It has to be said to all three of you, this was a cowardly attack on two older men. It was absolutely senseless. They posed no threat to you and no challenge. The fact that knives were used and then the three of you left the scene and returned. An attack was then made with a knife on an older woman, who was trying to help the victims of your earlier violence. In my view, that is pretty close to as serious as it gets in relation to violence of this kind. [46] I turn to deal with each of you in turn. Mr Ngaheu, your counsel has submitted on your behalf an appropriate starting point would be something in the order of two to two years for the incident that you were involved, in kicking the hapless victim as he lay on the ground. I do not accept that. There was clear and 2 Rapana v R [2014] NSCA 231 3 Kulimoeanga v R [2016] NSCA 129
unequivocal evidence that you did your best to get into a good position to kick him in the head. Fortunately to the extent that it connected he appears to have been substantially uninjured. I consider that an appropriate starting point for a case of this kind where you have three young men kicking an older man on the ground, three years imprisonment is an appropriate starting point. [47] I turn then to the fact that you were involved in the unprovoked attacked on the young woman who pointed out to you that you were involved in a cowardly attack on two harmless old men. You simply could not tolerate her challenge to the gang s authority and so you punched her. I agree with her. This was a cowardly and senseless attack on two older men. You should have known better. It seems to me at very least a further nine months should be imposed, to account for that unprovoked attack on a female who dared to challenge you in the circumstances. Your record is poor and I consider that the minimum I can do is increase that by three months to account for your prior bad record. That takes me to four years. After reflecting on the matter I have come to the view that your acknowledgement at the time that you were involved, your subsequent acknowledgement that you were in the wrong and your expressions of remorse, justify me in giving you a modest discount. I allow six months for your remorse. [48] Accordingly in relation to the charge of injuring, you will be convicted and sentenced to imprisonment for a period of three years and six months. In relation to the charge of male assaults female, you will convicted and sentenced to imprisonment for a period of nine months. That is to run concurrently. [49] I turn now to deal with you, Mr Te Rito. I consider that the initial assault involving the knife is worth at least 18 years starting point. In my estimation people who are involved in threatening and then using knives in circumstances such as these should expect a starting point in the order of ten years imprisonment. Your prior record is extremely poor and that would justify an uplift of a further six months, which would take me to 10 years and six months. [50] That brings me to the injuring charge. As I have already indicated it seems to me that an uplift of three years would be perfectly justified and a year for the assault.
That would take me to 14 years and six months. That seems to me that on a totality basis that would be too high. If I look at the matter in the round it seems to me that a total sentence of 11 years is justified bearing in mind the starting point for the grievous bodily harm charge and then the involvement in the other matters. A sentence of 11 years, in my view, would be in accordance with the totality of your involvement and give due recognition to your prior bad record. [51] I need to allow for your remorse and I have not mentioned that in your particular case. Again, I find myself persuaded by your counsel submission that I should allow something for your remorse. It seems to me that can properly be deducted from the 11 years that I have reached, which would leave a sentence of 10 years and six months. [52] Accordingly in relation to the grievous bodily harm charge, you will be convicted and sentenced to imprisonment for a period of 10 years and six months. [53] On the injuring charge, you will convicted and sentenced to imprisonment for a period of three years. In relation to the assault charge, I consider that that a concurrent sentence of one year is appropriate. All those sentences are to be served concurrently. [54] In your case, Mr Tukaki, again I start with the 10 years imprisonment that I had indicated. Then there was the fact that you returned to the scene and use the knife on a defenceless woman, who was doing no more than trying to help an injured victim of your earlier crime. It seems to me that in relation to that matter a substantial uplift is required. After reflecting on the matter I have come to the view that an uplift of five years is well justified. Then a further uplift is required for your separate conviction in relation to the charge of assault with a weapon. If I put all those matters together however that would produce a sentence in the order of 16 years particularly if I increase the sentence to allow for your prior record. [55] Having reflected on that matter it seems to me that in totality that would be too long. It seems to me that I should reduce it to 12 years as being the bare minimum sentence that could be imposed, having regard to the totality of the
situation. Again, I find myself persuaded by your counsel s argument that I should allow a reduction for your remorse and the effort that you have made in prison. [56] In relation to all three of you I accept that you did not intend this to happen. That it was an accidental and chance meeting. I accept that ever since you have troubled yourselves about the fact that you are involved in inflicting injury when you certainly should not have. Given all those matters it seems to me, Mr Tukaki, that a sentence of 11 years and six months is appropriate. [57] Accordingly you will serve 11 years and six months. The injuring charge will attract a sentence of three years imprisonment. The assault with a weapon, one year. All of those to be served concurrently. [58] The net result therefore: (a) Mr Te Rito, is that you get a sentence of 10 years and six months imprisonment. (b) Mr Tukai, you get a sentence of 11 years and six months imprisonment. (c) Mr Ngaheu, you get a sentence of three years and six months imprisonment. [59] I turn to the question of non-parole. The Act requires me to consider three matters whether or not the sentence that I have imposed is sufficient denunciation and deterrence if the sentence imposed produced an outcome of parole at the statutory minimum. I have given considerable consideration to that: (a) In relation to you, Mr Te Rito and you Mr Tukaki, I am satisfied that a release after one-third would simply be insufficient in terms of denunciation and deterrence. You were both involved in the knife attacks on defenceless people and it seems to me that in the circumstances a release after a relatively short period is not appropriate. The Crown has asked for 60 percent minimum period of
imprisonment in relation to you, Mr Tukaki, having regard to your extremely bad record for violence. Having reflected on the matter I not persuaded that a 60 percent increase is required. (b) I consider in relation to both you and Mr Te Rito that a minimum period of imprisonment of 50 percent is justified. Accordingly, your sentences will be served with a 50 percent minimum period of imprisonment. (c) In relation to you, Mr Ngaheu, I am not satisfied that any minimum period of imprisonment is required, because I am not satisfied that further denunciation and deterrence is required in the circumstances. T R Ingram District Court Judge