IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2017-044-004671
[2018] NZHC 2355	

THE QUEEN	

v	

MOREHU RANGITOHERIRI	

Hearing:	7 September 2018	
Appearances:	E L Woolley for the Crown J N Olsen for the Defendant	
Sentence:	7 September 2018	

SENTENCING NOTES OF WYLIE J

Solicitors:
Crown Solicitor, Auckland
J Munro/J N Olsen, Auckland

R v RANGITOHERIRI [2018] NZHC 2355 [7 September 2018]

[1]	Mr Rangitoheriri – you appear today having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm, pursuant to s 188(1) of the Crimes Act 1961. The maximum penalty for that offence is one of 14 years’ imprisonment.

[2]	You had earlier asked for a sentence indication. That indication was given to you on 24 July 2018.1 You accepted the indication and pleaded guilty shortly after the indication was given.

[3]	The offence to which you have pleaded guilty is a qualifying offence under the three strikes provisions contained in the Sentencing Act 2002.2 You have already received a first strike warning. It was entered on 13 April 2017. You received a second strike warning upon entry of the conviction on your recent plea, warning you of the consequences of committing a further qualifying offence.3 As you were told in the course of the sentence indication, at sentencing you must be ordered to serve the full term of the sentence imposed without parole (in the case of a long-term sentence), or without release before the expiry of the sentence (in the case of a short-term sentence).4 If the Court would have otherwise ordered a minimum period of imprisonment, the Court must also state, with reasons, the period that it would have imposed.5

Relevant facts

[4]	You were charged along with four other persons. All are sentenced prisoners, being at the relevant time held in the maximum-security unit at Auckland Prison at Paremoremo.

[5]	The victim – Toka Vercoe – was also a sentenced prisoner, being held in the maximum-security unit.

[6]	You and one of your co-defendants are patched members of the Black Power gang. Two of your other co-defendants are members of the Crips gang and the fifth co-defendant is a member of the Killer Beez gang.

1	R v Rangitoheriri [2018] NZHC 1851.
2	Sentencing Act 2002, s 86A.
3	Section 86C(1)(a).
4	Section 86C(4).
5	Section 86C(6).

[7]	Mr Vercoe is a member of the Mongrel Mob gang. There is considerable tension between the Mongrel Mob gang and the Black Power and Crips gangs.

[8]	You, your co-defendants and Mr Vercoe were all housed on the same landing in the top west upper section of the Bravo block at Auckland Prison. There are 12 cells on the landing. Given your and your co-defendants’ security classification, under unit procedures, only six cells on the landing were unlocked at any one time. During this unlock period, the prisoners from the six cells could roam freely along the landing.

[9]	On the day of the offending, the cells occupied by you and your co-defendants and by Mr Vercoe were unlocked at the same time. Mr Vercoe went to stand outside another cell occupied by a fellow Mongrel Mob gang member.

[10]	You initially walked down the landing and had a conversation with your co- defendants. You then walked back down the landing and, without provocation, punched Mr Vercoe to the head, placed him in a headlock, and threw him head first into exposed piping on the wall. One of your co-defendants pulled out a 14- centimetre-long sharpened metal shank from his pants and approached Mr Vercoe as well. You and that co-defendant then punched and kicked Mr Vercoe to the abdomen and head.  Your  three other co-defendants came up and also assaulted Mr Vercoe.  Mr Vercoe was lying on the ground in a foetal position, attempting to shield himself from the attacks.

[11]	One of your co-defendants used the shank to stab Mr Vercoe nine times to the head, neck and upper back. You held Mr Vercoe at one stage, while one of the other co-defendants continued to kick him. Mr Vercoe was also further stabbed with the shank, and then kicked repeatedly. At one stage, the shank was handed to you. You held Mr Vercoe down by his head and used the shank to stab him to the upper back, neck and head, on seven separate occasions, before handing the shank back to one of your co-defendants. Mr Vercoe was also assaulted by others in the group. He suffered countless kickings and stabbings. He was stomped on and he was assaulted with a broom stick.

[12]	Various of the defendants took it in turn to cover the CCTV cameras on the landing while the assault took place.

[13]	A number of corrections officers arrived. They gathered behind a grill, awaiting specialist support and equipment to enable them to enter the landing and retrieve Mr Vercoe. They pleaded with you and your co-defendants to stop the attack so that they could assist Mr Vercoe.

[14]	During this interval, one of your co-defendants stabbed Mr Vercoe with the shank again, and then repeatedly kicked him to the head. You and another of your co- defendants then kicked and stomped on Mr Vercoe again, while yelling Black Power slogans and making Black Power related hand gestures towards the assembled guards. You taunted other Mongrel Mob prisoners who were locked in their cells. You then picked up a piece of a broken broom handle, and hit Mr Vercoe over the head with it. Mr Vercoe was also stabbed again, this time to the arms.

[15]	You and your co-defendants then approached the grill and taunted the corrections officers.

[16]	Mr Vercoe managed to stagger to his feet and walk past you and your co- defendants to the grill where the corrections officers were waiting. As he approached the grill, he was punched to the head and hit again with the piece of broken broom handle. The corrections officers were pleading with you and your co-defendants to stop, but you did not do so. Rather, one of your co-defendants stabbed Mr Vercoe a further three times to the upper chest and once to the rear of his neck. You took a bucket of water and tipped it onto the ground, making the ground slippery both for Mr Vercoe and the corrections officers.

[17]	The corrections officers were only able  to  enter  the  landing  and  extract Mr Vercoe some five minutes after the assault started.

[18]	You then placed your hand in a pool of Mr Vercoe’s blood, approached the locked cells of each of the Mongrel Mob prisoners on the landing, and smeared blood across their cell bars. You and your co-defendants retreated to the far end of the landing, hugging, high-fiving and congratulating each other, before returning to taunt the other prisoners locked in their cells, and eventually returning to your own cells.

[19]	Mr Vercoe’s injuries and blood loss were life threatening. He was airlifted to Auckland Hospital. He was treated at hospital for multiple stab wounds to his face, head, neck, back and side, including one under his eye, one that had caused a large wound to his ear, and another blow that narrowly missed his jugular vein. He required urgent surgery and a blood transfusion.

[20]	You were spoken to by the police, but you declined to make a statement.

Pre-sentence report

[21]	The report writer who interviewed you recorded that you exhibit little or no remorse for your offending. He considered that you lack insight into your behaviour. When you were asked for an explanation for your offending and what happened on the day, you said to the report writer that you could not remember anything. You claimed to have blacked out. You indicated that you had not given much thought to Mr Vercoe or to your offending.

[22]	You were assessed as posing a high risk of reoffending, and for obvious reasons given the nature of your offending, your risk of harm to others was assessed as high.

[23]	The report writer referred to your extensive list of convictions, many of which are for violence related offending. He noted that you have received sentences of supervision, community work and imprisonment, with release conditions, and that your reoffending suggests that you have not availed yourself of the opportunity to address your offending behaviour or attitudes. The view was expressed that your offending arises from your lack of insight, your propensity towards violence, your sense of self-entitlement, your entrenched criminal attitudes, and the fact that you deliberately engaged in activity which you clearly know is illegal and harmful.

[24]	You told the report writer that you did not know Mr Vercoe prior to the commencement of his sentence of imprisonment. You stated that you did not hate him, and that you did not want to hurt him anymore. You indicated to the report writer that you are willing to talk one-on-one with Mr Vercoe, and that he is no longer at risk. The only insight you displayed for Mr Vercoe was that you thought he was lucky to be alive.

Purposes and principles of sentencing

[25]	In sentencing you, I have considered the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002. I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for, and an acknowledgment of, that offending, and the need to denounce the conduct in which you were involved. I have also been mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending, the context in which it occurred, and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences.

Analysis

Starting point

[26]	I heard from Ms Woolley, on behalf of the Crown. I have read submissions from Mr Munro, on your behalf, and heard this morning from Mr Olsen, appearing on instructions from Mr Munro. It was common ground that the guideline judgment of the Court of Appeal in R v Taueki applies.6 In that case, the Court categorised the seriousness of this type of offending through three sentencing bands.7 It identified some 14 aggravating features which can be relevant in assessing what band such offending should fall within.8 Band one attracts sentences of between three and six years’ imprisonment. It is appropriate for offending at the lower end of the spectrum.9 Band two attracts sentences of between five and 10 years’ imprisonment. It is appropriate for offending which features two or three of the identified aggravating features.10 Band three attracts sentences of between nine and 14 years’ imprisonment. It is appropriate for serious offending which has three or more of the aggravating features and where their combination is particularly grave.11

[27]	Section 9 of the Sentencing Act also contains a range of aggravating features.

6	R v Taueki [2005] 3 NZLR 372 (CA).
7	At [34].
8	At [31](a)-(n).
9	At [36].
10	At [38].
11	At [40].

[28]	By reference to s 9 and the factors identified by the Court of Appeal in R v Taueki, I consider that the relevant aggravating features of your offending are as follows:

(a)	The offending involved significant violence. It started without provocation. You hit Mr Vercoe in the head, placed him a headlock and threw him head first into a wall. Mr Vercoe was punched, kicked and stomped on repeatedly. He was struck with a broom handle. He was stabbed on a large number of occasions by you and by one of your co- defendants, using a sharpened metal shank. The attack was prolonged. It lasted some five or so minutes, and continued despite corrections officers pleading with you and your co-defendants to stop and let them help Mr Vercoe.

(b)	There was a degree of premeditation and planning. A shank was used. It had been fashioned out of available materials. Despite your denials to the writer of the pre-sentence report, the attack appears to have had some coordination. At various times, steps were taken to cover the CCTV cameras monitoring the landing. There was some limited premeditation, although not at a particularly high level.

(c)	There were serious injuries to Mr Vercoe. He had to be airlifted to Auckland Hospital, where he underwent emergency surgery and a blood transfusion. Mr Vercoe was very lucky that the injuries were not worse.

(d)	Weapons were used – the shank and the broomstick. This is a serious aggravating feature.

(e)	Mr Vercoe was attacked to the head. There were numerous and varied attacks to the head or head area, including punching, kicking, stomping and stabbing. A number of these blows and stabbings were inflicted by you. Throughout the offending, Mr Vercoe attempted to shield his head from the blows and stabbing. The fact that the attack was to the head area is also a serious aggravating feature.

(f)	There were multiple attackers. Mr Vercoe was outnumbered five to one. Again, this is a serious aggravating feature.

(g)	The offending was gang related. It occurred as a result of your, your co-defendants’ and Mr Vercoe’s gang affiliations.

[29]	There are no mitigating features to the offending.

[30]	Given the number of aggravating features to the offending, and their gravity in combination, in my view the offending falls into band three in Taueki. For band three offending, Taueki indicates that the appropriate sentence is in the range of nine to 14 years’ imprisonment.

[31]	To assist in working out where this case lies within band three, I have considered the various cases referred to me by counsel.12

[32]	In my view, the offending here in issue lies in the lower end of band three and warrants a starting point of nine years’ imprisonment.

Personal circumstances

[33]	I now turn to consider your personal circumstances.

[34]	You are only 27 years old but you have an appalling criminal history – much of it violence or dishonesty related. Notably, you have convictions for wounding with intent to cause grievous bodily harm and for assault with intent to injure – both in 2017. You also have a conviction for common assault (in 2012), and convictions for assault with a blunt instrument (in 2012 and in 2011), and another conviction for common assault (in 2008). This is another serious violence offence which has been committed in a relatively short timeframe, and concerningly represents a significant escalation in terms of this type of offending.

[35]	In my judgment, an uplift of six months’ imprisonment is appropriate, increasing the starting point to one of nine years and six months’ imprisonment.

12 R v Shepherd HC Auckland CRI-2007-044-9145, 19 October 2010; R v Rawiri Wereta [2014] NZHC 2555; R v Fitzgerald HC Auckland CRI-2008-044-8370, 14 May 2010; R v Damian Wereta [2015] NZHC 2248; R v Wereta [2015] NZHC 2683.

[36]	I take into account that you were serving a sentence of nine years and four months’ imprisonment for similar offending when this offending occurred. The Court of Appeal has noted that offending in the prison environment, particularly where the offending goes to the maintenance of discipline required to effectively manage a penal institution, demands a stern response.13 These comments were made in the context of attacks on prison officers, but they are equally applicable to attacks on fellow inmates who are confined and are entitled to protection.14

[37]	Mr Munro in his written submissions submitted that the Department of Corrections’ decision to co-locate Mongrel Mob gang members and members of the Black Power and Crips gangs together on the same wing was unwise. I can understand that submission but it does not justify the violence which occurred. Gangs do not control the prisons and an attack of this kind, in the prison environment, in my judgment, requires a stern response.

[38]	The Crown submitted, and Mr Munro at the time of the sentence indication accepted, that an uplift of six months’ imprisonment is appropriate to reflect the factor that the offending was in a prison environment. I agree. This takes my total starting point to one of 10 years’ imprisonment.

[39]	Mr Munro in his written submissions submitted that you should be entitled to a discount of 10 per cent to recognise your remorse and willingness to meet with   Mr Vercoe. Mr Olsen has reinforced those submissions today. He has also pointed out that you remain willing to participate in restorative justice or at least to meet with Mr Vercoe.

[40]	In view of the comments made by the report writer who prepared the pre- sentence report, I do not consider that you have expressed any real remorse or even understanding of your position at all. Rather, I suspect that you are simply regretting the circumstances in which you now find yourself. Your offending appears to have been simply mindless violence, with no thought for the consequences or the harm you have caused. There is nothing to suggest that you have any genuine regret for your actions.

13	Tryselaar v R [2012] NZCA 353 at [18].
14	R v Wereta, above n 12, at [20].

Guilty plea

[41]	Mr Munro in his written submissions submitted that you should be entitled to a full 25 per cent discount for your guilty plea. Ms Woolley, for the Crown, has accepted that that is appropriate.

[42]	I agree with counsel. Your guilty plea was entered relatively promptly. You were originally charged on 15 December 2017. You sought a sentence indication at your case review hearing on 19 April 2018. You accepted that indication on the day it was given. The trial was not scheduled for some time. A 25 per cent discount equates to two years and six months’ imprisonment. That results in a sentence of seven years and six months’ imprisonment.

Totality

[43]	I now turn to totality.

[44]	As I have noted, on 13 April 2017, you were sentenced to nine years and four months’ imprisonment on a charge of wounding with intent to cause grievous bodily harm. The sentence which I am imposing today will be cumulative on that existing sentence. It has no factual connection to the earlier offending. As a result, I must take into account the totality principle to ensure that the combination of the sentence I am imposing and the sentence you are already serving does not result in a total period of imprisonment wholly out of proportion to the gravity of your overall offending.15

[45]	There has been some legal debate about the effect of the three strikes regime on totality. While sentencing generally takes place without consideration of parole eligibility, the fact that a defendant has to serve a cumulative sentence without parole can be relevant in exceptional cases.16

[46]	In my view, this is not an exceptional case. You were sentenced as recently as April 2017 and for similar offending. You have numerous other convictions for violent offending. It has been acknowledged by the Courts that Parliament passed the three

15	Sentencing Act, s 85(2).
16	Barnes v R [2018] NZCA 42 at [79]. See also Dibben v R [2018] NZCA 134 at [66(c)]; Palalagi v Police [2015] NZHC 1832 at [57]-[61].

strikes law, amongst other things, to respond to offending of this nature.17 The fact that you have to serve your end sentence without parole is not the focus of my consideration. Rather, the focus is on whether the end sentence would be out of all proportion to the gravity of your overall offending.

[47]	In my view, adding a cumulative finite sentence of seven years and six months’ imprisonment to your current sentence of nine years and four months’ imprisonment would result in an overall sentence which would be out of all proportion to your overall offending. If both offences had been considered at the same time, you would likely have received a reduction for totality.

[48]	The Crown suggested that the end sentence should be discounted to one of six years’ imprisonment to recognise totality. Mr Munro in his written submissions submitted that the end sentence should be discounted to one of four years’ imprisonment.

[49]	The Crown accepted that a total sentence of 14 years’ imprisonment would be appropriate.

[50]	In my judgment, the appropriate sentence allowing for totality is one of four years and eight months’ imprisonment in relation to your recent conviction. As I have indicated, this sentence will be cumulative on your existing sentence. This will mean that you will serve a total sentence of 14 years’ imprisonment for your offending, including the offending in respect of which you are currently in custody.

Sentence

[51]	Mr Rangitoheriri, will you please stand.

[52]	In respect of the charge of wounding with intent to cause grievous bodily harm, I sentence you to four years and eight months’ imprisonment.

17	R v Vagaia [2018] NZHC 1225 at [16].

Minimum period of imprisonment

[53]	It is also necessary to state the minimum period of imprisonment that I would have imposed but for the three strikes regime.18

[54]	In my view, the appropriate minimum period of imprisonment would be 50 per cent of the sentence which I would impose – namely a minimum period of imprisonment of two years and four months. That minimum period of imprisonment is required to hold you accountable for the harm done to Mr Vercoe and to the prison community generally, to denounce your conduct and, to the extent it can do so, to deter you and others from committing the same or similar random acts of gratuitous violence in the prison setting.

General

[55]	Finally, Mr Rangitoheriri, I have received a letter from your eldest brother. The letter makes sorry reading. He tells me that you had a promising youth and you were a good sportsman in your younger days. He tells me that he led you into life in the gangs. He has been imprisoned for some time. Recently he has tried to turn his life around – to leave the gang and to try and make a fresh start. He expresses the hope that you will be able to do the same, although he does warn that it will not be easy.

[56]	Mr Rangitoheriri, I would echo your brother’s thoughts and sentiments. If you remain in the gang, your future frankly is bleak. You need to break the cycle and try and turn your life around. You have an eight year old daughter. By the time you are ultimately released, she will be in her early 20’s. If you are going to play any part in her life at all, you need to turn things around. You may stand down.

Wylie J

18	Sentencing Act, s 86C(6).