A sentence has been overturned and a retrial ordered for a Mongrel Mob “captain” who was jailed for using a golf club to attack a rival gangster in a KFC car park.
Vinnie Herewini, the leader of the Mongrel Mob in Flaxmere, was jailed for three-and-a-half years in January after he was found guilty of aggravated robbery and assault with a weapon.
But after his challenge to the Court of Appeal, that sentence was set aside in a decision released last week.
According to the judgment, the Napier District Court trial last November centred on an attack the Crown said was dished out by Herewini and fellow mobster Charlie Whiunui against Papakura Black Power member James Rivers in the KFC car park at Hastings.
On October 7, 2020, Rivers was sitting in his car outside KFC waiting for his order when it was alleged Whiunui and Herewini arrived in their vehicle.
He was wearing a hoodie emblazoned with Black Power insignia, a blue hat, and had facial tattoos showing his gang affiliation.
Rivers was out of his car when the two mobsters allegedly confronted him and told him to leave.
When he refused, the court heard how Whiunui and Herewini armed themselves with a tyre iron and a golf club.
During the ensuing attack, which was in full view of members of the public, Whiunui hit Rivers, who was armed with a knife, several times with the golf club.
Rivers was wrestled to the ground and Whiunui had him in a chokehold while Herewini allegedly hit him with the golf club until it snapped.
Herewini took the hoodie from Rivers, who then reached around and stabbed Whiunui under his left eye.
Another tussle followed and then Herewini, who was also stabbed during the melee, and Whiunui left with Rivers’ cap, hoodie and knife.
At trial, the Crown claimed the mobsters were bent on taking Rivers’ gang colours and succeeded in doing so.
Herewini maintained they confronted Rivers because he was in “their gang territory” and they wanted him to leave.
He argued they acted in self-defence when they fought with Rivers, fearing they might be stabbed.
But the self-defence claim was rejected as implausible by the trial judge and withdrawn from the jury.
The mobsters were found guilty on both charges and at Herewini’s sentencing, Judge Russell Collins criticised the “pathetic and juvenile” attitude that gang members can dictate what colour clothing people are entitled to wear.
Whiunui was sentenced six months after Herewini and received six months of community detention and 18 months of intensive supervision.
Herewini went on to challenge his convictions and sentence at a Court of Appeal hearing in August.
He claimed the trial miscarried on six grounds including that a recording of the attack played to the jury included audio of a distraught female, making it “unfairly prejudicial”, and that he was unfairly cross-examined on Whiunui’s statement.
Herewini also argued it miscarried because self-defence was improperly withdrawn from the jury and the summing up lacked balance.
His sentence was appealed on the basis that the starting point was too high and the outcome lacked parity with Whiunui’s sentence.
Hearing the appeal, Justices David Goddard, Christian Whata and Mathew Downs found the trial judge should not have withdrawn the defences of self-defence and defence of another from the jury.
“We have also identified that aspects of the summing up appeared to favour the Crown case, but we were not satisfied that the summing up was unbalanced overall,” their decision read.
“The other grounds of appeal lack any evident merit and do not add to the evaluation.”
Because the defence case on the assault with a weapon charge rested on self-defence or Herewini’s defence of Whiunui, the appeal against that conviction was allowed.
But the challenge against the conviction for aggravated robbery was dismissed.
In considering the appeal against the sentence, the decision stated the starting point was set based on two convictions.
But because the assault with a weapon had now been set aside, the present sentence could not stand, it said.
“As a consequence, the sentence on the aggravated robbery is set aside, with sentence to be refixed pending any retrial on the assault with a weapon charge.
“If the assault charge is not pursued or if Mr Herewini is found not guilty, then he must be resentenced on the aggravated robbery charge with the salient facts either agreed or resolved through a fact-finding hearing.”
A retrial was ordered on the assault with a weapon charge and, in the meantime, any question of bail was to be determined by the District Court, the judges ruled.
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.