Mongrel Mob member Tewe-Lance Wharewhiti was jailed for his involvement in the de-patching of a Barbarian Stormtrooper. Photo / NZME
Mongrel Mob member Tewe-Lance Wharewhiti was jailed for his involvement in the de-patching of a Barbarian Stormtrooper. Photo / NZME
An urgent hearing will be held to consider whether a miscarriage of justice has occurred after a member of the Mongrel Mob was jailed for a violent de-patching of a rival gang member.
Tewe-Lance Tokotahe Wharewhiti was sent to prison for two years and one month for his involvement inthe aggravated robbery of a Barbarian Stormtrooper’s patch.
On the evening of August 21, 2021, Wharewhiti, who was 22 at the time, and two associates came across the man who was alone in a carpark working on a motorcycle, a Court of Appeal decision, released last week, detailed.
The three men approached him and attacked him in an effort to remove his patch. Wharewhiti and one of his co-offenders struck the man repeatedly with punches and kicks to his head and body.
The third offender kept watch while holding a glass bottle to the man’s neck.
Associates of the Barbarian Stormtrooper arrived at the scene and attempted to thwart the attack by driving their vehicle toward the trio.
At this point, Wharewhiti and one of his co-offenders were dragging the man along the ground while continuing to strike him and remove his patch.
Wharewhiti will have his appeal heard in the Court of Appeal next year. Photo / File
After several more blows to the head and body, the third offender hit the man with the bottle and the patch was removed. The three then fled the scene.
Following a sentence indication, Wharewhiti and one of his co-offenders pleaded guilty to a charge of aggravated robbery. The third offender was declined a sentencing indication because he was facing another unrelated serious charge.
Wharewhiti was sentenced on March 25 this year in the District Court, where Judge Stephen O’Driscoll adopted a starting point of three and a half years of imprisonment.
Following a 17-month reduction for a guilty plea, time spent on electronically monitored bail and personal circumstances, Wharewhiti was jailed for two years and one month. He immediately filed an appeal.
The co-offender appeared before the same judge the following week and was sentenced to nine months’ home detention.
Judge O’Driscoll noted at the latter sentencing that while he had jailed Wharewhiti, the co-offender was given a greater discount for personal circumstances. This reduced his end sentence to a short-term of imprisonment, making him eligible for home detention.
The judge acknowledged Wharewhiti had filed an appeal and said he had “no doubt” the co-offender’s case would be put before the senior court considering the appeal, and a disparity argument would be advanced.
“But I have given you a greater discount than I gave Mr Wharewhiti because of the matters that are set out in your cultural report,’ Judge O’Driscoll explained.
The third offender’s sentencing did not take place until October this year.
Justice Cameron Mander went on to consider Wharewhiti’s appeal in the High Court.
The grounds of appeal were that the starting point was too high and that discounts should have been allowed for provocative conduct on the part of the victim, and for Wharewhiti’s youth.
Justice Mander held that having regard to the aggravating features of the offending — “an extended group attack rooted in gang rivalry and involving actual violence including the use of a weapon to strike the victim’s head” — the starting point was within range.
He also held that Judge O’Driscoll was correct to reject a submission that a racist epithet used by the victim amounted to operative provocation.
Justice Mander then concluded that the District Court’s refusal to extend credit for youth was not an error.
In dismissing the appeal, the High Court judge did not have the opportunity to consider the different sentencing outcome for the third offender, as that occurred following the appeal.
When that offender was sentenced, he was part way through a term of home detention for an unrelated wounding offence.
The judge cancelled his home detention and reimposed a sentence of six months’ community detention coupled with 18 months’ intensive supervision for both the wounding offence and the aggravated robbery of the patch.
Wharewhiti has now filed for leave to appeal with the Court of Appeal, arguing the lower courts had failed to allow for his youth and rehabilitation potential, creating a risk of a miscarriage of justice.
In an analysis of his application, the senior court found Wharewhiti had met the test for obtaining leave to bring a second appeal on the basis that a miscarriage of justice may have occurred.
It noted Wharewhiti was the youngest of the three offenders and the only one of them to be sentenced to imprisonment.
“His role in the offending was not more serious and arguably slightly less. He has a very limited criminal history, has worked continuously since the age of 16 and has a supportive family,” the decision said.
The Court of Appeal found there was “an argument worthy of ventilation” on appeal; that being the High Court placed “excessive weight” on one statement in the pre-sentence report about Wharewhiti being committed to the gang at the expense of other positive material.
“Material that arguably should have justified discounts for rehabilitative prospects and youth thereby rendering Mr Wharewhiti eligible to be considered for home detention.”
