McDonald v The King
[2023] NZCA 172
•16 May 2023 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA684/2022 [2023] NZCA 172 |
| BETWEEN | GEORGE MCDONALD |
| AND | THE KING |
| Hearing: | 3 May 2023 |
Court: | Gilbert, Thomas and Woolford JJ |
Counsel: | K E Tuialii for Appellant |
Judgment: | 16 May 2023 at 9.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Following a trial by jury in the High Court at Auckland, Mr McDonald was found guilty of one charge of wounding with intent to cause grievous bodily harm, having shot the complainant in his leg causing a large wound that required several surgeries. Mr McDonald was convicted and sentenced by van Bohemen J to six years and three months’ imprisonment.[1] The Judge ordered Mr McDonald to serve a minimum period of imprisonment of two years and nine months.[2]
[1]R v McDonald [2022] NZHC 2808 [Sentencing judgment] at [123].
[2]At [124].
The sentence was constructed by:
(a)adopting a starting point of eight years’ imprisonment;[3]
(b)applying an uplift of nine months for previous convictions for violent offending;[4]
(c)allowing a discount of seven per cent for cultural factors;[5]
(d)allowing a discount of five per cent for financial reparation made to the complainant;[6]
(e)allowing a discount of five per cent for rehabilitative prospects;[7] and
(f)deducting 12 months for over two years spent on electronically monitored bail.[8]
[3]At [91].
[4]At [96].
[5]At [106].
[6]At [110].
[7]At [111].
[8]At [115].
Mr McDonald appeals against his sentence. He contends that the Judge ought to have allowed a greater discount for cultural factors and he should have allowed further discounts for rehabilitation, addiction, and remorse. Having reviewed all the relevant materials and reflected on the submissions, we have reached the conclusion that the Judge made no error in his careful assessment of the available discounts for mitigating factors. As we agree with his thoughtful analysis and the end sentence he imposed, our reasons for dismissing the appeal can be kept relatively brief.
Personal background
Before describing the facts of the index offending, it is helpful to briefly set out Mr McDonald’s background. This will provide the relevant context for the offending and the main drivers of it — limited education, negative influence of peers, early exposure to drugs and alcohol, proclivity for violence, early incarceration, successive and increasing periods of imprisonment, and entrenchment in gang lifestyle (as a member of the Comancheros motorcycle gang).
Mr McDonald is of Tongan descent and is the youngest of seven children. His parents separated when he was aged six and he remained in the care of his mother, who was a good role model. Despite being given the opportunity, Mr McDonald achieved only a limited education. He was exposed to alcohol and drugs from a young age. He was living rough before the age of 16 and became immersed in the world of street gangs where violence was normalised. He is now institutionalised, having spent much of his adult life in prison, primarily for violent offending of increasing seriousness.
Mr McDonald’s sentences of imprisonment commenced when he was aged 18:
(a)Age 18 — two months’ imprisonment for male assaults female, driving with excess breath alcohol, disorderly behaviour, other threatening behaviour, resisting police, and failing to answer court bail.
(b)Age 19 — 10 months’ imprisonment for assault with a blunt instrument, possession of an offensive weapon, unlawful assembly, disorderly behaviour, and breaching conditions of intensive supervision.
(c)Age 20 — two years and six months’ imprisonment for assault with intent to injure, commission of a crime with a firearm, wilful damage, and resisting police. Mr McDonald received his first warning under the three strikes regime for this offending.
(d)Age 25 — two years and four and a half months’ imprisonment for wounding with intent to injure and unlawful possession of a firearm. Mr McDonald received his second warning under the three strikes regime for this offending.
(e)Age 28 — the index offending — six years and three months’ imprisonment (with a minimum period of imprisonment of two years and nine months). This was Mr McDonald’s third strike offence meaning he would have been facing 14 years’ imprisonment without parole had the three strikes regime not been repealed shortly prior to sentencing.[9]
The facts
[9]The three strikes regime was repealed as from 16 August 2022 by s 5 of the Three Strikes Legislation Repeal Act 2022. This was after Mr McDonald’s trial, but before he was sentenced on 28 October 2022.
The Judge summarised the facts in his sentencing judgment as follows:
[7] On the night of 9 November 2019, a surprise 21st birthday party was held for a young Tongan man at [an address in South Auckland]. The address was the home of the young man’s aunt and your brother ...
[8] The guests were all or almost all Tongan. They were all part of a wider family – first and second cousins of the 21-year-old whose party it was.
[9] A lot of alcohol was drunk by guests before and at the party. However, at least until sometime after midnight, the vibe at the party was good and people were having a good time.
[10] At a certain point, you and some cousins and friends dropped by in your [ute]. You stayed a short time and then left. You drove around to [a nearby address] and parked up and continued to talk and drink.
[11] Back at the party, at some time after midnight, an argument developed among some of the young women present. Things escalated into physical altercations. As more people got involved, a melee developed in the street in front of the house and spilled into [a park] on the other side of the road.
[12] At 2.39 am, your brother … called you. Within minutes, you and your friends were back at [the address]. You parked on the other side of the road from your brother’s house, next to [the park].
[13] You got out of your ute, taking with you a sawn off shot gun. Some of the young men present, who were very drunk, challenged and mocked you and your friends but retreated back into the park and up the hill.
[14] You followed them into the park and up the hill.
[15] You fired a warning shot into the ground which hit no-one. You kept walking towards the young men at the top of the hill. You fired a second shot which hit the [complainant] in the leg.
[16] A 111 call was made at 2.44 am. The significance of that time is that only five minutes elapsed between your brother’s call to you and the 111 call. In other words, it all happened very quickly.
[17] You and some of your friends drove away. The following night, the Police found [the ute] burnt out in the carpark [in West Auckland].
[18] The [complainant] was taken to hospital. He had a wound in his leg measuring about 15 by 18 cm in size. His leg muscles were severely damaged, and his bone was exposed. He underwent several surgeries in hospital to repair the wound to his leg, which included skin grafts. He was in hospital for 15 days.
It took almost a year for the complainant to recover. He had to learn to walk again and still has issues lifting heavy items or walking for lengthy periods. Apart from the physical injury, he has suffered emotionally and financially. He returned to work on a part-time basis in mid-2020 but was not able to resume full‑time work until the end of that year.
Was the discount for cultural factors adequate?
The Judge acknowledged that social, cultural, or economic deprivation having a nexus with offending may be raised as a mitigating factor regardless of the specific ethnicity of the offender. The Judge also accepted that gravitation to the gang world and its associated life of alcohol, violence and crime can be the consequence of social, cultural, or economic deprivation, including for new migrants struggling to make their way in a different world.[10] However, the Judge considered that Mr McDonald’s position was as much the consequence of the poor choices he had made as cultural deprivation and the absence of a father.[11] Mr McDonald’s mother was a devout Mormon. She worked several jobs to maintain the family and seemed to have tried to instil good values in her children. The Judge did not accept that Mr McDonald could place any responsibility on his mother for his offending.[12]
[10]Sentencing judgment, above n 1, at [103].
[11]At [104].
[12]At [104].
For these reasons, the Judge did not consider Mr McDonald’s situation was at all comparable to cases where discounts of up to 30 per cent have been allowed for factors associated with serial deprivation.[13] The Judge considered it relevant that Mr McDonald’s offending occurred within his own community and against his own people. He acknowledged that Mr McDonald had become institutionalised and enmeshed in the gang world, but he could not overlook that Mr McDonald was a “willing recruit” who actively welcomed the status that he believed prison and gang membership conferred.[14]
[13]At [105].
[14]At [105].
This finding was supported by statements Mr McDonald made to the cultural report writer. For example, Mr McDonald commented on the status he felt he had achieved with his first sentence of imprisonment:
For me it was pretty cool at that age. I thought that was part of my building my name and stuff. Doing a little jail time makes you a superstar when you get back to the hood. So you go harder and faster in the lifestyle pretty much. I was back [in jail] within 6 months.
Mr McDonald explained that he served the whole of his third sentence of imprisonment (two years and six months) because he was “not willing to do programmes”. When he was released in 2013, he described himself as “even more of a superstar” and was back in prison within a year. Mr McDonald says he has always been drawn to “the hood” in South Auckland where he has “street cred” and a “street rep”, which reinforces his lifestyle and gives him a sense of importance and worth. He described his progression to the Comancheros in this way:
I think it’s just what pretty much sealed the deal for me was the brotherhood. I think that’s what I was looking for in my street gang. When I was evolving, they weren’t evolving with me. So that’s pretty much … I kept growing and my boys in the hood didn’t want to grow. Then these boys come along and they’re Tongan boys as well. I got along so well with them. It just felt right, so I just went with the flow.
Now aged 32, Mr McDonald says he aims to be a good family man, supporting his partner and their young child as well as being a responsible father for his other two children (aged around 15 and 11). He considers he can achieve this and still be a member of the Comancheros, but not living off crime.
Ms Tuialii, for Mr McDonald, submits that the Judge was wrong to view him as a willing recruit who welcomed the status that he believed prison and gang membership would confer on him. She submits that Mr McDonald did not make this choice willingly, rather it was because he had no other choices. She contends that the discount the Judge gave of seven per cent was inadequate and that 15 per cent would have been more appropriate.
We are unable to accept this submission. It is not disputed that Mr McDonald’s mother was a good role model who worked hard to maintain the family home and provide stability for her children. Mr McDonald was given the opportunity of a proper education, but he chose to rebel. He was also offered employment opportunities, but he told the cultural report writer that he preferred to be “in party mode”. We consider that the allowance given by the Judge for cultural factors was within the available range in all the circumstances.
Should additional discounts have been allowed for addiction, remorse, and rehabilitation?
Addiction
The Judge referred to the evidence concerning Mr McDonald’s prior use of alcohol and drugs from a young age,[15] but there is no mention of addiction in the sentencing judgment. This appears not to have been raised as a potential mitigating factor, nor could it properly have been because there was no evidence to support it. Addiction is not referred to in the cultural report, the pre-sentence report or in any other material submitted to the Judge for the purpose of sentencing.
[15]At [55]–[59].
Mr McDonald told the probation officer that prior to the offending he had consumed alcohol and approximately two grams of cocaine, but he was adamant he had not consumed enough to be impaired, noting that he was driving that night. His voluntary drug consumption cannot be taken into account as a mitigating factor.[16]
[16]Sentencing Act 2002, s 9(3).
The Judge acknowledged Mr McDonald’s efforts to address his alcohol and drug use.[17] He made no error in not allowing a further discount for addiction. None was asked for and none could be justified. Addiction was not a driver of this offending.
Remorse
[17]Sentencing judgment, above n 1, at [59].
The Judge was clearly entitled not to allow any discount for remorse. Mr McDonald appears not to have accepted responsibility for his offending, even now. In his letter to the Judge at sentencing he said, “I have come to accept the outcome of [the] trial”. This is not the same as expressing an acknowledgement of responsibility for the offending, let alone remorse. Mr McDonald told the probation officer that he could not understand how the jury could have found him guilty because someone else had admitted to the crime. The Judge explained the relevant circumstances (which included that Mr McDonald was at the time of trial facing his third strike offence and 14 years’ imprisonment without parole if convicted):
[24] … [T]he week before the trial, an associate of yours, … who looks nothing like you, went to the Police and confessed to being the shooter. The Police did not believe him, and the trial went ahead. [The associate] came to Court and gave evidence that he was the shooter. The jury did not believe him because they convicted you of the crime. I am sure they were right to do so. The so‑called confession was nonsense and inherently unbelievable.
[25] … [A] number of the young people at the party who had made statements to the Police and had identified you from a photo montage told the Court they were so drunk at the time they could not remember anything and cast doubt on their identification of you. Whether they were just fearful of you because of your association with the Comancheros or had been leaned on, I can’t say.
[26] What is evident, however, is that there were efforts to assist you in evading responsibility for your actions and you have continued to deny responsibility. Indeed, even as recently as July this year, you told the Corrections pre‑sentence report writer that “someone got shot from one of the people in your group”. You also said you did not understand how you could have been found guilty because someone else had admitted to the crime.
In light of this the Judge concluded:
[108] … [T]he reality is that you refused to acknowledge your responsibility right through the trial and beyond. Whether at your behest or connivance or otherwise, another man stood up or was put up to take the fall for you so you could avoid the consequences of the three strikes regime. And witnesses were either pressured or so frightened of you and your associates [that they] were reluctant to give honest evidence. It is a tribute to our jury system and to the witnesses who told the truth, despite being fearful, that justice was done in the end.
We entirely agree with the Judge that there was no basis for any separate discount for remorse.
Rehabilitation
The Judge gave Mr McDonald a discrete discount of five per cent to reflect his willingness to change:
[111] … [E]ven though I am sceptical, I want to take you at your word that you do want to change, and you do want to be a father for your new son. So, this is my way of saying to you that the system has heard you and wants to encourage you. Now it is for you to follow through on what will be a long and difficult road.
We agree that Mr McDonald’s engagement in rehabilitative treatment prior to trial is a credit to him. However, the Judge was entitled to be sceptical about the genuineness of Mr McDonald’s expressed motivation to change given his intention to remain an active member of the Comancheros and in view of the other steps he was taking at that time to avoid the inevitability of a very lengthy period of imprisonment under the three strikes legislation if convicted. Despite Ms Tuialii’s careful submissions, we are not persuaded the allowance given by the Judge of five per cent, together with the other discounts he applied, meant that the end sentence was excessive in all the circumstances.
Conclusion
We have not been persuaded that there was any error in the sentence or that a lesser sentence ought to have been imposed in all the circumstances.[18] We note that there is no challenge to the imposition of a minimum period of imprisonment. The appeal against sentence must accordingly be dismissed.
Result
[18]Criminal Procedure Act 2011, s 250.
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Manukau for Respondent
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