A Mongrel Mob member involved in the violent de-patching of a rival gangster has walked free from jail after his sentence was quashed and replaced with supervision.

An urgent appeal took place last month to consider whether a miscarriage of justice occurred in the case of Tewe-Lance Tokotahe Wharewhiti.

The Court of Appeal, which heard the challenge, has now overturned Wharewhiti’s sentence, finding he should never have been jailed.

His two-year and one-month prison term was replaced with 12 months of intensive supervision which comes with it a number of conditions, including that he is not to associate with any Mongrel Mob members.

The events which led to the appeal kicked off on August 21, 2021.

That evening, Wharewhiti, who was 22 at the time, and two associates came across a Barbarian Stormtrooper who was alone in a car park working on a motorcycle.

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.

The Court of Appeal heard the man's case. Photo / NZME

Associates of the Barbarian Stormtrooper arrived at the scene and attempted to thwart the attack by driving a 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.

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.

Wharewhiti admitted a charge of aggravated robbery in relation to the attack and was sentenced in the District Court in March last year. Judge Stephen O’Driscoll adopted a starting point of three and a half years of imprisonment and then gave credit for the guilty plea, time spent on electronically monitored bail and personal circumstances.

After Wharewhiti was jailed, 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, making him eligible for home detention.

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.

But 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 ruled Judge O’Driscoll was correct to reject a submission that a racist epithet used by the victim amounted to operative provocation, and there had been no error in the refusal to extend credit for youth.

In dismissing the appeal, Justice Mander did not have the opportunity to consider the different sentencing outcome for the third offender, as that occurred following the appeal.

When that man was sentenced in October, 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 and 18 months’ intensive supervision for both the wounding offence and the aggravated robbery of the patch.

Wharewhiti then turned to the Court of Appeal, arguing the lower courts had failed to allow for his youth and rehabilitation potential.

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, and it ordered an “urgent” hearing be set down.

That occurred last month and the court’s reserved decision was released on Friday.

In it, Justices Christine French, Rebecca Ellis and Peter Churchman noted Wharewhiti was the youngest of the three offenders and the only one to be jailed.

“His role in the offending was not more serious than the others, while unlike them his criminal history was limited,” they found.

Wharewhiti did not have alcohol and drug issues and prior to 2021 he had only one conviction for careless use of a vehicle. He is considered a “loyal and hardworking” employee of the company he has been employed by for seven years and he has a supportive family.

His offending and its consequences had provided Wharewhiti with a “wake-up call”, the decision stated.

“He expressed a strong determination to avoid crime in the future and to turn his life around for the sake of his family and in particular his mother.”

After considering all material relevant to the appeal, the justices ruled greater discounts for rehabilitative prospects and youth should have been given when sentencing Wharewhiti.

“Only a slight increase in the discounts would have rendered Mr Wharewhiti eligible to be considered for home detention, a sentence which we consider is the sentence that should have been imposed.”

But because he has already served around 11 months in jail, home detention was not inappropriate, the findings concluded.

The justices instead imposed a term of intensive supervision subject to special conditions.

- Tara Shaskey, Open Justice