A Black Power trio involved in a vicious gang attack on a mentally impaired man at a McDonald’s, all because he was wearing a red jersey, will remain behind bars after a senior judge ruled the punishment fit the crime.

Patched members Hohepa Rio, 35, Timothy William Dixon, 54, and prospect Gabriel James Hansen, 25, appealed against their sentence of three years and three months’ imprisonment, arguing it was excessive.

They requested if the appeal was allowed and the sentence reduced to less than 24 months’ imprisonment, that leave to apply for home detention be granted.

But Justice Helen McQueen, who heard the challenge in the High Court at Wellington, has dismissed the appeal, ruling the jail term was a suitable consequence for the men.

“It is my opinion that, in light of the seriousness of the offending, involving an unprovoked group and gang-related attack during the daytime in a public place, that a sentence of imprisonment is a proper and appropriate outcome, given the sentencing principles of deterrence and accountability,” she said in her recently released reserved decision.

Up to 13 Black Power members and associates took part in the attack against the middle-aged man 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.

Before 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.

They mistakenly believed he was a member of the rival gang Mongrel Mob.

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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 eighth man was jailed last month.

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 Rio, Dixon, and Hansen, who were all jailed on admitted charges of participating in an organised criminal group and wounding with intent to injure.

At their appeal in September, counsel for the men argued the starting point of five years adopted by Judge Tony Greig, who sentenced the gang members, was too high, and the result was manifestly excessive.

It was also argued that their relative roles in the attack had not adequately been taken into account, and that Hansen should have been given a discrete discount for matters raised in a cultural report about his upbringing.

The Crown opposed the appeal, submitting the sentence they received was appropriate.

In her ruling, Justice McQueen was satisfied the starting point adopted by Judge Greig was not manifestly excessive.

She said the aggravating factors identified in the offending justified a starting point of four and a half years to five years’ imprisonment, and it was not appropriate to make fine distinctions between their roles in the attack.

While Justice McQueen agreed the matters raised in Hansen’s cultural report warranted a discount of 5 per cent, she ruled such a reduction would amount to “tinkering”.

“It follows that I consider that the sentences imposed upon the appellants were not manifestly excessive,” she said, dismissing the appeals.

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.