A 17-year-old Mongrel Mob member who was involved in the murder of a young father must surrender himself to prison by the end of the week after his sentence of home detention was overturned on appeal.

Tana Ormsby-Turner was sentenced to 12 months of home detention following the murder of Rei Joseph Tumatauinga Maihi Marshall.

But in a judgment released today by the Court of Appeal, that sentence has been set aside and replaced with one of two years and 10 months’ prison time.

The teen was initially charged with the murder of Marshall but went on to plead guilty to reduced charges of being an accessory after the fact to murder and wounding with intent to cause grievous bodily harm.

Following Ormsby-Turner’s sentencing in July, before Justice Francis Cooke in the High Court at New Plymouth, the Crown immediately filed an appeal, arguing home detention was a manifestly inadequate outcome given the crime’s seriousness.

Marshall, a 23-year-old father-of-two, was hit a number of times in the head with a claw hammer by Ormsby-Turner, then 16.

Only moments prior, the teen’s brother, Turanganui Ormsby-Turner, who is president of the Mongrel Mob’s West Coast chapter, had stabbed Marshall, a prospect of rival gang Uru Taha, in the torso with a hunting knife.

While the hammer blows fractured the back of Marshall’s head, it was the stab wound that caused Marshall’s death on August 3 last year in Taranaki.

The teen also went on to cover up the murder by disposing of evidence at the instruction of his brother.

Earlier this month, the Crown’s appeal was heard by Justices Sarah Katz, Cameron Mander and Rob Osborne in the Court of Appeal.

Crown lawyer Ian Auld submitted the teen’s offending was “a very serious matter of wounding” that required a custodial sentence.

Auld said the starting point of seven and a half years’ imprisonment taken by Justice Cooke was too low and the 45 per cent credit he applied for mitigating factors was “excessive”. The teen also received a 25 per cent discount for his guilty pleas.

The murder occurred at a South Rd property in New Plymouth.

Justice Cooke had focused on Ormsby-Turner’s prospect of rehabilitation, which he said could not be achieved in prison, but Auld submitted that approach failed to address the teen’s continued desire to associate with the gang, which indicated there was no chance he could be rehabilitated.

While awaiting sentencing, the teen was patched into the Mongrel Mob, complete with the gang’s insignia tattooed on his back.

He and his family had also lied to report writers, who were collecting information to inform the sentencing, by claiming he had cut ties with the gang, in an attempt to manipulate the sentencing process.

Auld said that given those circumstances, it was wrong in principle to allow discounts for remorse and rehabilitation.

Defence lawyer Kylie Pascoe had submitted that no error had occurred at sentencing.

She said his sentence of home detention had been coupled with post-detention conditions, and a sentence with a rehabilitative focus was available for Justice Cooke to impose.

Despite the teen’s indoctrination into the gang, Pascoe said a report showed his moral compass was not damaged irreparably.

He had demonstrated genuine remorse for his offending against Marshall and he was not beyond being rehabilitated.

In the Court of Appeal’s decision, the justices found that given the number of aggravating factors, and their severity, a starting point of at least eight and a half years’ imprisonment was warranted.

When assessing whether the discounts applied to the teen’s sentence were appropriate, the justices ruled the evidence before them did not support a conclusion that Ormsby-Turner was genuinely remorseful at a level that would justify a sentencing discount.

While they found a modest discount to reflect his background was justified, they did not accept the teen’s trajectory into gang life was in any way inevitable as a result of his childhood or upbringing.

“This was not a case, for example, where gang membership or association provided a form of brotherhood or whānau support that was otherwise missing from Tana’s life.”

The justices found a discount for youth was appropriate but on the issue of rehabilitation, they said his rehabilitative prospects were currently poor given he significantly increased his commitment to the Mongrel Mob while on bail pending sentencing, and only a small discount could be justified.

“It is our view that Tana’s prospects of leaving the Mongrel Mob and adopting a more prosocial lifestyle are currently very low, regardless of whether he is sentenced to imprisonment or home detention.

“That is not to say that he has no rehabilitative prospects. He is obviously an intelligent young man with clear potential. He is not beyond redemption.”

Justices Katz, Mander and Osborne found the suitable discount for personal mitigating factors was 30 per cent, rather than the 45 per cent afforded by Justice Cooke.

They then said that based on their assessment of the appropriate starting point and discounts, home detention was not an available sentencing option.

While the Court of Appeal has the ability to maintain the home detention sentence even if they find it unsuitable, the justices said that was not appropriate in this case.

“This was very serious violent offending. Leaving the home detention sentence undisturbed would, in our view, be inadequate to meet the relevant purposes of sentencing.

“In conclusion, it is our view that the sentence of 12 months’ home detention was manifestly inadequate and was not in proportion with the gravity of the offending. A sentence of imprisonment should be substituted.”

While the justices found the appropriate sentence was three years and four months’ imprisonment, they allowed six months’ credit for the time Ormsby-Turner has already served on home detention.

The teen’s home detention sentence was then set aside and replaced with one of two years and 10 months’ imprisonment.

He was ordered to surrender himself to Mt Eden Corrections Facility to commence his sentence by 2pm on Friday.

Turanganui Ormsby-Turner was jailed in May for life with a minimum period of imprisonment of 10 years and six months for murdering Marshall.

A third person charged in relation to the killing, patched Mobster Hamiroa Laupama, was sentenced in December to five months of home detention for being an accessory after the fact. He was also initially charged with murder before it was reduced.

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.