Doctor v The King

[2024] NZHC 1878

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000205

[2024] NZHC 1878

BETWEEN

TEXAS JUNIOR DOCTOR

Appellant

AND

THE KING

Respondent

Hearing:	17 June 2024
Appearances:	J Seton for the Appellant M Nash for the Crown
Judgment:	10 July 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 10 July 2024 at 3 pm Registrar/Deputy Registrar

Solicitors:

M Nash, Meredith Connell, Auckland
J Seton, Barrister, Matai Chambers, Auckland

DOCTOR v R [2024] NZHC 1878 [10 July 2024]

Introduction

[1]    The appellant, Texas Junior Doctor, appeals the sentence imposed on him by Judge J Bergseng of four years and three months’ imprisonment in relation to the following offences:1

(a)one representative charge of discharging a firearm with reckless disregard;2 and

(b)intentional damage.3

[2]    The notice of appeal advanced five grounds. Three were sensibly abandoned before the hearing. The appeal focused on two grounds, arguing that the Judge erred in the following two respects:

(a)giving insufficient weight to the cultural matters in the s 27 report by granting a discount of only five per cent; and

(b)declining to allow a discrete discount for remorse.

[3]The Crown opposes the appeal.

The offending

[4]    Mr Doctor’s offending took place on 19 July 2022 (discharging a firearm with reckless disregard) and 12 August 2022 (intentional damage). Mr Doctor pleaded guilty to these charges.

[5]    The summary of the offending is set out in the Judge’s sentencing notes which I adopt:

[4]        The discharging of a firearm with reckless disregard from 19 July 2022 is the most serious of the charges for sentencing today. The background to this is that in July 2022 [Ms M] was residing at an address in… Glen Innes. In addition, there were her sons and three daughters there.

1      R v Doctor [2024] NZDC 8293.

2      Crimes Act 1961, s 198(2). Maximum penalty is seven years’ imprisonment.

3      Section 269(2)(a). Maximum penalty is seven years’ imprisonment.

[5]        Prior to 19 July there had been an ongoing disagreement between the Doctor family and [Ms M’s] son.

[6]        On 19 July [Ms M’s]’s three daughters took her out for the evening. Around 11.45 pm they all arrived back at [their] address. [Ms M] got out of the vehicle. She waved goodbye to her daughters from inside the house in the laundry, looking out the laundry window as they reversed out of the driveway.

[7]        As this was happening Texas Doctor and his son Wiremu together with others arrived at [the address]. They were in two vehicles. They got out the vehicles, two of them had shotguns. Texas Doctor shot at the house. Pellets went through the laundry window. That caused glass to fall into [Ms M’s] hair.

[8]        As her daughters were reversing onto the road Texas Doctor then shot at their vehicle and another defendant yelled out: “That’s what happens when you fuck with family.”

[9]        Those shots struck the vehicle. The two rear tyres were punctured by the shots. Texas Doctor then shot a car that had been parked in the driveway of [the address]. At that point the defendants got into their vehicle and left.

[10]      In respect of the charge of intentional damage, which arises 12 August 2022, so less than a month after the initial shooting, Texas Doctor and another defendant returned to the [same] address. They got out of the vehicle, walked to the front door, each was armed with a shotgun or another firearm. The pair fired 12 shots into the front door of the address. This caused extensive damage to a number of rooms in the house. At the time the house was empty. [Ms M] and her family had vacated the residence.

[6]    The Judge referred to the Victim Impact Statements from the two young women in the vehicle shot at by Mr Doctor. The first woman described the significant impact of the incident — the trauma she has suffered due to the events, including issues with anxiety and not being able to go out late or after dark. The first woman’s children have also been impacted, as she has taken them out of school on different occasions due to the trauma she has undergone. The second woman described feeling disturbed, physically and emotionally, which has resulted in being unable to go anywhere with her family at night and having to take unpaid leave from work, impacting her ability to provide with her family. She has also had to move addresses.

District Court sentencing

[7]    To set the starting point, the Judge first considered the lead charge of discharging a firearm with reckless disregard. The Judge, in considering comparator cases such as McAllister v R, noted that there was no tariff judgment for such

offending.4 The Judge arrived at a starting point of four years and six months’ imprisonment, noting the following aggravating factors of the offending: the two firearms identified; multiple shots fired; multiple potential victims; gang overtones; high level of recklessness; the significant impact on the victims; and the evident planning and premeditation.

[8]    Dealing with the second charge of intentional damage, the Judge imposed an uplift of 12 months before turning to the available personal mitigation. The Judge applied a total discount of 20 per cent as follows:

(a)Guilty plea: 15 per cent

(b)Section 27 report: Five per cent

[9]    The Judge declined to accept the plea in mitigation as to remorse. He then reduced the sentence by three months to credit for time spent on restrictive bail conditions. A further uplift was imposed of two months for relevant previous convictions. Accordingly, the end sentence was four years and three months’ imprisonment.

Approach to appeal

[10]   Mr Doctor’s appeal against sentence must be allowed if the Court is satisfied that for any reason there was an error in the sentence imposed and a different sentence should have been imposed.5 He must demonstrate that there was a material error that has resulted in a manifestly excessive sentence being imposed.6 The focus is on the end sentence rather than the process by which it is reached. The Court will not interfere where the sentence is within the range that can properly be justified by accepted sentencing principles. The concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.7

4      McAllister v R [2023] NZHC 3705. The Judge also considered Sharifi v R [2024] NZHC 672 and

R v Jolley [2018] NZHC 93.

5      Criminal Procedure Act 2011, s 250.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

7 At [35].

Submissions

[11]   Counsel for Mr Doctor submits that insufficient weight was given to the factors set out in the s 27 report. He points to reported family violence; family instability and parental incarceration; historic substance use; and grief and mental distress from the passing of Mr Doctor’s grandfather. He submits that the hardship encapsulated in the report is causative of the offending in the sense described by  appellate  authority.  Mr Doctor faced hardship directly due to  these  factors,  leading  him  to  offend.8 Mr Seton submits that the discount of 15 per cent which ought to have been applied is well within the range identified in Solicitor-General v Heta.9

[12]   The second submission is the Judge erred by declining to give a discrete discount for remorse. Mr Doctor provided a letter of remorse to the Court at sentencing. Expressions of remorse were recorded in both the PAC report and by the interviewer for the s 27 report. Mr Seton submits that in those circumstances, the Judge erred by failing to allocate a discrete discount.10

[13]   If these submissions are accepted on appeal, the end sentence would be reduced to three years and six months’ imprisonment. In short, a nine-month reduction from the current sentence imposed.

[14]   The Crown submits that a higher discount is not justified because no “operative” or “proximate cause” of the offending is shown on the material before the Court.11 The Crown says there is inconsistent evidence about the genuineness of his remorse, particularly seen against the background of continued membership of the Rebels gang.12

Analysis

[15]The Judge dealt with the s 27 submission in this way:

8      Counsel relies on the discussion in Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

9      Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

10     Salt v R [2022] NZCA 611 at [44].

11     Berkland v R, above n 8, at [107].

12     Moses v R [2020] NZCA 296, [2020] 2 NZLR 583 at [24]; Sentencing Act 2002, s 24(2)(d).

[52]       In terms of any other deductions, I acknowledge the factors that are set out in the cultural report that has been prepared for you. I accept that your life has been difficult in terms of having to raise your three children when your partner, their mother, has been heavily addicted to methamphetamine has not been easy.

[53]       To your credit there is a decade between 2011 and 2021 where you were outside of the criminal justice system. So it seems that clearly your focus was on your sons and raising them.

[54]      Ultimately you made a decision that to best protect your family, the way to achieve that was to become a patched member of the Rebels. Since then the outcome of that decision has seen you spending significant time remanded in custody and ultimately about to be sentenced to a term of imprisonment. While there are some causative contextual factors to your situation the most significant of those factors is the deliberate decision that you made, at about the age of 42, to join the Rebels. Limited discount is available, therefore, for cultural factors that is limited to five per cent.

[16]   The Judge’s approach was orthodox. I find no error in it. I too agree that the appellant’s history indicates that he has agency, overcoming hardship during his life and staying out of the justice system. The proximate cause of this offending is his decision to join the gang and exercise vigilante justice. I therefore reject this aspect of the appeal based on the factors in the s 27 report.

[17]    As for a discrete deduction for remorse, it is now well established that it can be appropriate where a “proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful.13 A discrete discount of between five and  15 per cent may be available if justified in the circumstances.

[18]   The material on which the appellant relies to assert remorse is mixed but here I respectfully depart from the Judge. Mr Seton’s submission is well made. I accept that the appellant gained insight into his offending, accepted accountability and that the remorse he expressed in a letter to the Court and to the PAC interviewer, combined with the offer to attend a restorative justice conference, are illustrative of that genuinely held remorse. His remorse is closely linked to consideration of “family”, a keen driver for him.

13     Kohu v R [2023] NZCA 343 at [40], citing Hessell v R ]2010] NZSC 135, [2011] 1 NZLR 607 at [64].

[19]   Similarly, while the Judge rejected a discount for remorse because the appellant appears to have chosen to remain in the gang, the appellant explained this as the only option to protect himself and his family in a troubled community. That was the appellant’s misstep in the first place which led to this offending. However, many defendants voice the intention to remove themselves from the gang environment to mitigate sentence. While expressing that intent may assist a remorse discount in appropriate cases, I am not satisfied in the circumstances of this case that the reverse should apply.

[20]   Thus, while there is no stated acceptance that handing in his gang colours is crucial to rehabilitation that does not necessarily take the matter very far since stating it and doing it are two very different things. I also view the statement about his belief that the dwelling was empty at the time of offending is ambiguous rather than a sign of minimising of his offending, once seen in the round.

[21]   Having had the benefit of more extensive submissions than were before the District Court Judge, it follows that I find that a modest discrete discount of five per cent for remorse is warranted, reducing the overall end sentence by three months. I am satisfied that this does not amount to tinkering with the sentence.

Result

[22]I allow the appeal.

[23]   I quash the sentence of four years and three months and substitute a sentence of four years.

............................................................

Walker J