Black Power members from the Hāwera chapter gathered to support seven of its members and associates, who are not pictured, at their sentencing in July. Photo / Tara Shaskey
Black Power members from the Hāwera chapter gathered to support seven of its members and associates, who are not pictured, at their sentencing in July. Photo / Tara Shaskey
Three Black Power members involved in a pack attack on a mentally impaired man at a McDonald’s, all because he was wearing a red jersey, are arguing their jail terms are excessive given the beating was “60 seconds of madness” and caused limited injury.
But the Crown says the sentences handed down were appropriate.
Up to 13 Black Power members and associates took part in the attack against the middle-aged man, mistakenly believing he was a member of rival gang Mongrel Mob, inside the Hāwera McDonald’s in South Taranaki on September 12 last year.
It occurred as the victim, who was stabbed during the brutal bashing, was waiting for his food.
Prior to the attack, he had been walking to the restaurant, as he did every day, and was spotted by the Black Power members, who took exception to the red jersey he was wearing and followed him.
While some of the attackers remain unidentified, eight were arrested and charged for the beating, and in June, seven were sentenced in New Plymouth District Court, drawing a heavy gang presence to the courthouse.
The victim told the sentencing court he lived with his parents and suffered from a mental impairment. He kept to himself and was a regular at McDonald’s, where he once felt safe. The attack shook his world, he said.
Those sentenced included patched members Hohepa Rio, 35, Timothy William Dixon, 54, and prospect Gabriel James Hansen, 25, who were all jailed for three years and three months on admitted charges of participating in an organised criminal group and wounding with intent to injure.
On Wednesday, counsel for the trio appeared before Justice Helen McQueen in the High Court at Wellington to appeal the sentences, arguing they were excessive.
They all submitted the starting point of five years adopted by Judge Tony Greig, who sentenced the gang members, was too high.
Defence lawyers Nathan Bourke and Paul Keegan, for Hansen and Dixon respectively, argued the starting point should have been three years and six months, while defence lawyer Patrick Mooney submitted a starting point of three years was available to Rio.
When addressing the aggravating features identified by Judge Greig, Bourke told Justice McQueen that Hansen’s intent was only to punch the man, which he did four times.
The attack occurred at the Hāwera McDonald's while the victim was waiting for his meal.
While the victim was also stabbed in the torso, no one was sentenced for the stabbing as the Crown was not able to establish who was responsible or if any of them were aware one of their members had a knife.
Bourke, who watched the attack on CCTV, took issue with Judge Greig assessing it as a sustained attack, saying it was over within a minute.
“60 seconds of madness,” he described it.
It also involved 14 kicks and punches, which was “not trifling” but “not an enormous amount”, Bourke submitted, adding it matched the intent that the Crown agreed upon - that they were going there to “get a couple in each”.
The stab wound aside, the victim had only been left with a cut on his face and general bruising, Bourke said while addressing the level of harm.
He submitted the more relevant consideration was the extent of the assault rather than how many attackers were involved.
Bourke also disagreed with Judge Greig’s assessment of it being premeditated, submitting any premeditation was “extremely limited”.
“When a bull sees a red rag, it runs at it. It doesn’t indicate vigilante action or a high level of premeditation.
“The reality is that with gang life, unfortunately, there seems to be an equally instinctive reaction to challenge rival gangs when their colours come up.”
Bourke also suggested care should be taken when considering the victim’s vulnerability.
While acknowledging he was outnumbered, which was recognised in the aggravating feature of the group attack, the victim was a “grown man”, not elderly, “heavily built”, and his mental impairment did not make him more physically vulnerable, he said.
Keegan and Mooney largely adopted Bourke’s submissions for their own clients’ appeals.
But Keegan wanted to emphasise that no one was criminally culpable for the stabbing.
“That was an arrangement made by the Crown in order to facilitate the pleas, and the Crown must live with that.
“But in my submission, it doesn’t seem quite as though the sentencing starting point is in accord with that, it being too high.”
His client, Dixon, did not punch or kick the victim but was seen approaching him from behind, leaning over him and then turning and walking away. The assault then came to an end and all men fled the restaurant.
Mooney, whose client hit the victim twice, argued the court needed to consider the role of each individual.
He said Rio was not a part of his co-offenders’ initial confrontation with the victim, but later joined in and then stepped back.
“This is not a fine distinction. This is a level of involvement that takes him beyond what the initial instigators had begun.”
Crown prosecutor Holly Bullock submitted a starting point of five years was appropriate.
With respect to the extent of harm, she said the impact on the victim went beyond the physical injuries and he has been “severely traumatised” by the offending.
He was on the ground and outnumbered when he was attacked which increased his vulnerability, and the fact the offenders had different roles did not take away from their culpability, she submitted.
“All offenders here have gone into the restaurant and attacked the victim on the premise that he was wearing the wrong colour.”
Bullock said Judge Greig had taken account of the individual roles but made it clear by adopting the same starting point that there was no need to draw fine distinctions between them, given they all participated in the violence.
Bourke, Keegan and Mooney requested that in the case Justice McQueen allows the appeal and the end sentence is reduced to less than 24 months’ imprisonment, leave to apply for home detention be granted to all men, which Bullock opposed.
Justice McQueen reserved her decision.
The eighth man charged in relation to the incident, Tuma Hori, will be sentenced on October 13.
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff, where she covered crime and justice, arts and entertainment, and Māori issues.
