R v KEEFE [2016] NZHC 2569

R v KEEFE [2016] NZHC 2569 [27 October 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-009-7255[2016] NZHC 2569THE QUEENvAUGUST KEEFEEARL FRASER WAITOKIAJASON PHILLIP REWETIHearing: 27 October 2016Appearances: B Hawes for CrownM Sewell on behalf of R Glover for Defendant A KeefeA Davis and T Nicholls for Defendant E WaitokiaC Ruane for Defendant J RewetiJudgment: 27 October 2016SENTENCING REMARKS OF MANDER J[1] Whata Keefe and Jason Rewiti, you are each for sentence on charges of kidnapping and injuring with intent to cause grievous bodily harm; Mr Waitokia, you are for sentence on one charge of injuring with intent to cause grievous bodily harm, in respect of which I now formally enter a conviction.Three strikes warning[2] Before I proceed to the imposition of sentence I am required under theSentencing Act to give each of you what is described as the "three strikes warning".[3] Given your convictions on the stated charges, you are now subject to the three strikes law. I am going to give you a warning of the consequences of aconviction for another serious violent offence. You will also be provided with a written notice which contains a list of these serious violent offences.[4] The warning is this. If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.[5] I turn now to the sentencing exercise for this morning.Factual background[6] I first set out the factual background to the offending for which you are for sentence. I will refer to your particular involvement in greater detail when I come to assess your individual sentences.[7] The offending for which you are for sentence this morning was clearly gang- related. The victim, Dawson Reihana, had an association with the Mongrel Mob. You, as with your co-offenders, are either members of or affiliated to that gang.The Ajax Street offending[8] On 8 August last year, Mr Reihana was invited to an address of one of your co-offenders in Ajax Street. That invitation was a trap. Mr Reihana was attacked by three of your co-offenders and other unidentified associates. The attack involved him being struck with hammers to his head and knees. His hands and feet were bound and the beating continued while he was in that defenceless position. Mr Reihana was badly injured and bleeding profusely from a head wound.[9] A decision was made to take Mr Reihana to a different address. A gag was placed in his mouth and a rope tied around his legs. Mr Reihana was placed in theback of a van and driven to an address in Bowenvale Avenue where you were waiting for him to arrive.Bowenvale Avenue offending – the first assaults[10] After the van was reversed down the driveway of this address, Mr Reihana was taken from the back of the vehicle and was immediately attacked, including by both you, Mr Keefe, and you, Mr Waitokia. You were armed with knuckledusters. He was punched about the face with close attention paid to his eyes and jaw before being dragged inside. There the attack continued. Mr Reihana's ribs and head were targeted. Others joined in. Mr Reihana was kneed in the face, blows struck to his ribs, and his head kicked.[11] In his evidence Mr Reihana described how people would take turns to attack him while he lay injured and bleeding on the floor of this address, bound and defenceless. Periodically, threats would be made to kill him. These threats were interspersed or accompanied by further assaults. This continued over a number of hours, until a decision was made to put Mr Reihana back in the van for the purpose of having him point out addresses of his associates. The purpose of doing this is not clear, however, during Mr Reihana's captivity there appears to have been various unsuccessful attempts to contact his associates to obtain money or property. Mr Reihana was driven around in his bound state, guarded by you, Mr Rewiti, who was armed with a tomahawk and while holding a rope tied to Mr Reihana's leg.The Bowenvale offending – the subsequent assaults[12] Mr Reihana was returned to the Bowenvale address where in his injured and defenceless state he continued to be the subject of assaults before being left bound and tied on the floor overnight. When Mr Rewiti who was assigned to guard him fellasleep, Mr Reihana was able to obtain his guard's cell phone which he used tocontact police at around 5.30 am. The police located the address and cordoned off the property. At 7.00 am, all three of you, together with a number of your co- offenders, were located at the Bowenvale address and arrested.Effect on the victim[13] Mr Reihana received extensive facial bruising and swelling as a result of the violence committed upon him. These injuries were sustained both at Ajax Street and also at Bowenvale Avenue. Both of his eyes were swollen shut. The photographs of the damage to his face were graphic. He received multiple lacerations to his forehead and to the back of his head, and a gouge wound to his scalp, together with further cuts to his cheek area and forehead. His nose was fractured. He also suffered grazing and bruising to the back of both his wrists, and bruising to his knees and limbs.[14] In his victim impact statement to the Court, Mr Reihana has described that, apart from these immediate physical injuries, he has suffered longer lasting detrimental consequences to his life. He is concerned for his safety, his relationships with his partner and his family have suffered, and his daily life has changed. He has some emotional difficulties. He reports that he no longer trusts anyone and has required counselling. With good reason, he did not think he would leave the Bowenvale house alive.Approach to sentencing[15] The charge of kidnapping carries a maximum penalty of 14 years imprisonment. The maximum penalty for the charges of injuring with intent to cause grievous bodily harm is one of 10 years imprisonment.[16] The overarching offence is the unlawful detainment of Mr Reihana which as far as your involvement is concerned started with the arrival of Mr Reihana in the back of the van at Bowenvale Avenue on the afternoon of 8 August and continued overnight, until the following morning when the police cordoned off the address. During that period, Mr Reihana was subject to ongoing and prolonged violence. The kidnapping and violence charges are inextricably linked.1 The duration andcircumstances of Mr Reihana's detention, and in particular the violence inflicted on1 R v Hill HC Rotorua CRI-2005-063-3096, 27 October 2006, at [29]; R v Wharton (2003) 20 CRNZ 109 (CA).him while he was held as a prisoner means the kidnapping and violence must be viewed as being at the serious end of the scale.[17] Guidance on the appropriate approach to sentencing levels for serious violent offending such as this is to be obtained from the Court of Appeal's decision in R v Taueki, appropriately adjusted to reflect the lower maximum penalty of 10 years for the offence of injuring with intent to cause grievous bodily harm.2 The seriousness of your offending is apparent from relevant aggravating features which include:(a) The prolonged and gratuitous nature of the violent conduct.(b) The harm caused to Mr Reihana.(c) The use of weapons.(d) The attacking of the head: many of the assaults, including those with knuckledusters, were directed at Mr Reihana's head.(e) Multiple attackers: the disparity between the number of the attacking group and the sole victim.(f) Vulnerability of victim: from the outset Mr Reihana was effectively disabled and could do little to defend himself with his hands and feet either bound or tied.(g) Gang warfare: serious violence was perpetrated by members of a criminal gang.(h) Premeditation: it is apparent that both you, Mr Keefe, and you, Mr Waitokia, were aware that Mr Reihana was being brought to the Bowenvale Avenue address where you were waiting to immediately attack him upon his arrival. You, Mr Waitokia, had been in text2 R v Taueki [2005] 3 NZLR 372 (CA) at [9]; R v Hill, above n 1, at [32].communication with a co-offender about sending the van to Ajax Street to move Mr Reihana to Bowenvale Avenue.[18] When identifying these aggravating circumstances of the offending I note that care must be taken to ensure there is no repetition of the ingredients of the charges and that the assessment of these aggravating features does not result in any double- counting.[19] As part of the process of setting the appropriate sentence, in addition to the approach outlined in Taueki, I have also considered a number of similar cases.3Inevitably, the nature and combination of charges and the individual circumstances will vary from one case to the next. However, the cases provide a useful check and further guidance.[20] Both of you, Mr Keefe and Mr Waitokia, were involved in the attack on Mr Reihana immediately upon his arrival at Bowenvale. Each of you were responsible for the direct infliction of violence on Mr Reihana and you remained directly involved in Mr Reihana's continued detention over a prolonged period. Mr Rewiti, you were acquitted of being a party to the first series of attacks on Mr Reihana at Bowenvale Avenue and a number of the previously identified aggravating features do not have application to you. I assess your culpability as part of my review of each of your individual involvement in the offending which I now turn to.August Keefe[21] Mr Keefe, you were not involved in the Ajax Street attack, however, immediately upon Mr Reihana's arrival at Bowenvale Avenue you, together with others, attacked him when he was taken out of the van. Mr Reihana's hands werebound. You punched Mr Reihana in the face with knuckledusters, paying particular attention to his eyes and his jaw. You also punched him in the ribs and continued to attack him once he was inside the house. You remained at Bowenvale Avenue during3 R v Hill, above n 1; R v Shen [2007] NZCA 67; Simon v R [2016] NZCA 449; R v Mehana HC Auckland CRI-2007-004-23679, 11 December 2009; R v Moffatt CA193/01, 30 October 2001;R v Kimber HC Rotorua CRI-2003-070-6113, 17 June 2005; R v Ratana CA357/90, 25 February 1991; R v Wharton, above n 1.the period Mr Reihana was held as a prisoner there and were a party to the ongoing assaults. You were apprehended at the address the following morning.[22] You are described in the pre-sentence report as a senior member of the gang, although the level of influence you have is doubted by others who know you. The offending was clearly gang-related. There is no evidence that you had knowledge of what had occurred at Ajax Street, however, the way Mr Reihana was attacked immediately when he was taken out of the van suggests those, including yourself, at Bowenvale Avenue were awaiting his arrival. There is therefore a lesser element of premeditation but it is still present. You used a weapon on Mr Reihana in the form of knuckledusters, and you attacked him when he was already wounded and had his hands bound. Mr Reihana was in no position to defend himself and was therefore vulnerable to your attack. You were one of a number of assailants who together attacked Mr Reihana simultaneously.[23] The combination of these aggravating features coupled with your continued involvement in Mr Reihana's ongoing unlawful detainment at the address, whichonly came to an end as a result of the intervention of the police, means your offending falls into the most serious category. Making an appropriate adjustment for the type of violence charge you have been convicted of, which carries a maximum penalty of 10 years imprisonment, your offending falls into the most serious band, which attracts a sentence in the range of six and a half to 10 years imprisonment.4Taking into account the kidnapping charge and the two violence charges together, a starting point of six and a half years, in my view, adequately reflects your culpability.[24] At 57 years of age you have 92 previous convictions, although over recent years the seriousness and frequency of that offending has been reducing. The majority of your previous offending is for dishonesty, driving or drug offending. You do have previous offences for violence but they are a significant time ago and I do not consider the starting point requires any uplift to reflect your criminal history.[25] You have been in a long term relationship with your partner for some 20 years and have children and grandchildren, but are noted as having a problem4 R v Hill, above n 1.with alcohol abuse. Despite representing a willingness to engage in restorative justice, you have shown no remorse for your involvement which you continue to deny. I have read a psychiatric assessment which details your past. It makes for sad reading but concludes there is no cognitive or psychiatric condition that bears on your conduct. There are therefore no personal mitigating factors that warrant a reduction in the sentence.[26] This type of offending requires to be denounced and deterred and I have given careful consideration to the imposition of a minimum period of imprisonment in respect of you, Mr Keefe. When the Court sentences an offender to a determinate sentence of imprisonment of more than two years it may order an offender to serve a minimum period of imprisonment in relation to that sentence. However, I must be satisfied the minimum period of imprisonment that is otherwise applicable under the Parole Act is insufficient.[27] Your offending involves serious violence in respect of which the sentencing objectives of denunciation and deterrence need to be achieved. In such cases minimum periods of imprisonment will not be rare or uncommon.5 I have concluded, however, having regard to your age, the fact that the frequency and nature of your offending has steadily reduced over the last 10 years, and the apparently stabilising influence of your family, that it is not necessary in your case to impose a minimum period of imprisonment.Earl Waitokia[28] Mr Waitokia, you pleaded guilty to one charge of injuring with intent to cause grievous bodily harm. You entered your plea after the Crown withdrew charges but on the basis of an unchanged factual narrative which describes your involvement from the time Mr Reihana was taken from the van at Bowenvale Avenue until you were arrested the following morning at that address.[29] You were waiting for Mr Reihana when he arrived in the van. It is clear from your communications with your co-offender, Leon Turner, about sending the van to5 R v Taueki, above n 2.Ajax Street that your attack on Mr Reihana was premeditated. You, together with others, punched Mr Reihana with knuckledusters immediately upon him exiting the van at Bowenvale Avenue. The attack targeted his eyes and face when his hands were bound by tape and he was vulnerable. Once inside the house, you, Mr Waitokia, continued to attack Mr Reihana's head, punching him in the face withknuckledusters. This attack lasted for a prolonged period of time.[30] It is apparent from Mr Reihana's evidence that you were in a position of some authority at the address. You ordered others to guard Mr Reihana and were a central figure at the Bowenvale house. You frequently threatened Mr Reihana and periodically assaulted him over the period of his ordeal. You were described as the person coming up with the ideas about what to do with him and with what appear to be unsuccessful attempts to contact his associates to obtain money or property.[31] There are a significant number of aggravating factors which apply to your offending. You were the primary resident or person in control of the Bowenvale Avenue address at the time. I am satisfied you would have been involved in the decision to bring Mr Reihana to the address which demonstrates the centrality of your involvement and premeditation. Serious violence was directly perpetrated by you on the victim. You attacked him with a weapon and targeted his head. There were, of course, multiple attackers and it was gang-related. Your victim, already badly injured at the time of your involvement, was defenceless and vulnerable throughout his ordeal. As I have already observed, you, Mr Waitokia, appear to have been a ringleader, or at least one of the leaders, at the Bowenvale address, issuing threats to Mr Reihana and directing others.[32] Although, as a result of the entry of your plea, you were only convicted of the one charge, your actions are at the serious end of the range of culpability and clearly fall within the most serious band of the moderated scale for this charge based on the Court of Appeal's decision in Taueki.6 Having regard to the level of your involvement in Mr Reihana's unlawful detention at the Bowenvale address and theongoing violence in which you had a direct part, I am satisfied a starting point of six years and six months is appropriate.6 R v Taueki, above n 2.[33] Turning to personal aggravating and mitigating factors. You are 39 years of age. You are a patched member of the Whanganui chapter of the Mongrel Mob. While you are described as having a supportive family there is nothing in your personal background which would warrant a reduction in your sentence. You have a concerning criminal history. In 2009, you were sentenced on four charges of assault with intent to injure and one charge of being armed with a firearm with intent to commit burglary for which you were sentenced to five years imprisonment. In 2008, you were convicted of a charge of assault with intent to injure, and in 2005 there were further convictions for assault and robbery. You have been assessed, unsurprisingly, as presenting a high risk of harm and of reoffending based upon an increasing pattern of violent conduct. An uplift of 6 months imprisonment is warranted to recognise this feature.[34] It is apparent you remain committed to your gang lifestyle. While you have acknowledged and taken responsibility for your involvement in this offending, you have only very belatedly made a representation of remorse through your counsel. You are entitled to a discount for the entry of your guilty plea which came in the week before trial, after the Crown withdrew other charges. I consider a 15 per cent discount is appropriate.[35] In my view, the imposition of a minimum period of imprisonment is required in your case. You led events at the Bowenvale address, and I consider your level of culpability to be high. I do not consider the minimum period of imprisonment that would otherwise apply under the Parole Act to be sufficient to hold you accountable for the harm you have caused and the role you played in what happened to Mr Reihana at the Bowenvale house. Your conduct needs to be denounced. Having regard to your record of violence there is a need for deterrence and protection of the community.Jason Rewiti[36] Mr Rewiti, you were convicted of charges of kidnapping and a charge of injuring with intent to cause grievous bodily harm which, on the Crown case, relatesto events that occurred after Mr Reihana was taken in the van to identify associates'addresses. You were acquitted of being a party to that same offence when Mr Reihana arrived at the address in the first part of his detainment at Bowenvale Avenue.[37] Your role in the offending against Mr Reihana was to physically guard him. I am satisfied on the evidence that when Mr Reihana was driven around you were instructed to guard him in the back of the van, armed with a tomahawk, while he was tethered by a rope and his hands bound. Mr Waitokia's order was that if Mr Reihanamade a noise you were to use the tomahawk on him.[38] More importantly, back at the house you remained with Mr Reihana, armed with the tomahawk, and continued to guard him when he was periodically subject to further physical attacks as he lay on the floor, bound and injured, in a back room of the address. You, together with your co-offenders, were arrested at the address the following morning.[39] Mr Reweti, you were directly involved in Mr Reihana's unlawful detainmentat Bowenvale Avenue. While a party to the later attacks that occurred after Mr Reihana was returned to the address, it does not appear you directly used violence against him or caused him injury. You appear to have been following instructions, such was your position in the hierarchy of the gang, and you had no role in deciding what was to happen to Mr Reihana. Having acknowledged those features, you were a party to the kidnapping and played a direct role in Mr Reihana'sdetainment. While a foot soldier, you demonstrated no unwillingness to be involved and to play your part. The charge of violence to which you were a party involved multiple attackers targeting a vulnerable and defenceless person in a gang-related context.[40] In my view, your involvement places you within the adjusted second band ofTaueki and attracts a starting point of four years and six months imprisonment.7[41] Mr Reweti, you are 33 years of age. Prior to this offending you were in fulltime employment. It is apparent your gang association was a significant factor in7 R v Hill, above n 1.your offending. You have completed drug and alcohol courses while on remand. You, however, continue to deny involvement and have shown little remorse for Mr Reihana, being more concerned with your own predicament. I am unable to discern any feature in your background that would warrant a reduction in your sentence.[42] You have numerous previous convictions, however, these are largely for driving and dishonesty offending. You do not have a history for violence. Because of the nature of your role in the offending and your personal background and history, I do not consider a minimum period of imprisonment is required.[43] If you would all please now stand.SentencesAugust Keefe[44] Mr Keefe, you are sentenced on each of the charges of kidnapping and the two charges of injuring with intent to cause grievous bodily harm to a term of imprisonment of six years and six months.[45] All sentences are to be served concurrently.Earl Waitokia[46] Mr Waitokia, on the charge of injuring with intent to cause grievous bodily harm you are sentenced to a term of imprisonment of six years with a minimum period of imprisonment of three years.Jason Rewiti[47] Mr Rewiti, on the charges of kidnapping and injuring with intent to cause grievous bodily harm you are sentenced to a term of four years and six months imprisonment.[48] Both sentences are to be served concurrently.[49] You may stand down.Solicitors:Raymond Donnelly & Co, ChristchurchRupert Glover Barrister, ChristchurchClark Boyce, ChristchurchCraig Ruane Barrister, Christchurch