McNeilly v R
[2011] NZCA 481
•22 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA282/2011 [2011] NZCA 481 |
| BETWEEN PHILIP JOHN MCNEILLY |
| AND THE QUEEN |
| Hearing: 8 September 2011 |
| Court: Glazebrook, MacKenzie and Asher JJ |
| Counsel: M A Stevens for Appellant |
| Judgment: 22 September 2011 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of four years imprisonment on each of the two counts of using a firearm in the commission of an offence is quashed and a sentence of three years and two months is substituted. All other components of the sentence imposed are confirmed.
REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
The appellant pleaded guilty in the District Court at Oamaru to two counts of threatening to kill, two counts of using a firearm in the commission of an offence and one count of intentional damage. He also pleaded guilty to several summarily laid matters including threatening to kill, unlawful possession of a firearm, being intoxicated while in possession of the firearm and driving with excess breath alcohol. He was sentenced by Judge O’Driscoll on 20 April 2011 to four years imprisonment, and other related penalties.[1] He appeals against the sentence, on the grounds that it is manifestly excessive.
The offending
[1] R v McNeilly DC Oamaru CRI-2010-045-920, 20 April 2011.
All charges arose from events in the afternoon and evening of 7 October 2010. The appellant had been in a relationship with the female victim for about seven years and that relationship had ended in early 2010. She had formed a relationship with a new partner, the male victim. He had made derogatory statements about the appellant, suggesting that he was a sex offender. Those comments triggered the events of 7 October.
At about 3.00 pm on that day, the appellant sent the female victim four text messages threatening to blow her new partner’s head off. Shortly after that, the appellant, with an associate, Mr Cunningham, drove to the male victim’s work premises, where the female victim also was. The appellant was in possession of a sawn-off double barrelled shotgun. On arrival outside the rear of the premises the appellant spoke to the female victim, while he was still sitting in the car. He had the shotgun in his lap pointing up towards her. He yelled to her, “You go get him or I will blow your head off”. An argument ensued between the appellant and the female victim during which the appellant got out of the car holding the shotgun, partially covered with a cloth. In the course of the argument, Mr Cunningham was yelling out to the appellant, “Blow her head off, blow them all away”. The appellant waved the firearm around while yelling abuse before getting back into the car and driving off.
An hour or so later, the appellant and Mr Cunningham drove to a social gathering where the male victim was. Initially, Mr Cunningham remained in the vehicle with the shotgun, while the appellant went inside the social gathering. The male victim tried to smooth over his differences with the appellant. After some time, Mr Cunningham became impatient and went inside to speak to the appellant but was told to return to the vehicle. Mr Cunningham did so, muttering something about firing off a shot. Within minutes he fired a shot outside the premises. The appellant immediately ran outside and took the shotgun from Mr Cunningham, abusing him for his actions. The appellant then took the shotgun into the premises where the male victim and others were. He showed it to them, before leaving.
At about 10.30 pm on the same evening, the appellant phoned the female victim and said, “I’ve just blown a big hole in the floor at his place and your head’s next”. He then drove to the male victim’s home and fired one shot from the shotgun at the living room window. Shot pellets peppered the windowsill (smashing the window) and the wall and ceiling of the living room, and also damaged property inside the room. Police were contacted and shortly after midnight they stopped the appellant while driving. A double barrelled sawn-off shotgun was found in his vehicle situated between the driver’s seat and hand brake. On examination it was found to be locked and loaded with live shells in each barrel. A spent shell was found in the passenger foot well and the appellant had nine more live rounds on his person. He was heavily intoxicated and a subsequent breath test gave a breath alcohol reading of 843 micrograms per litre of breath.
The sentencing
The Judge noted as aggravating features of the offending: the threatened use of violence, the use of the firearm (which was discharged), that threats were made against two persons and the offending occurred over a period of some seven hours. He described it as clearly a prolonged and premeditated incident. The Judge described as a personal aggravating factor some 94 previous convictions. Some were for violence, including assault with intent to injure. Other relevant convictions were those for possession of an offensive weapon and threatening to kill, 14 previous convictions for drink driving, and previous charges (relating to the female victim) of threatening to kill and being unlawfully in a building. The present offending occurred whilst the appellant was subject to a community-based sentence for that offending. The Judge noted as the major mitigating feature the pleas of guilty, which were entered immediately to the summarily laid charges and following committal for the indictably laid charges. The Judge noted that the appellant had had rehabilitative sentences in the past which had clearly not worked and he described him as a recidivist offender. He described protection of the community as the paramount purpose of the sentencing. He said:
[19] The starting point for sentencing must reflect the nature of the charges, particularly the charges involving the firearm, and the commission of the offence, namely threatening to kill with the firearm. This is not a threat which has been made via a text message or over the telephone. It is a threat which has been made in person whilst you were in possession of a firearm.
[20] In assessing and reaching the starting point, I take into account the gravity of the offending, the seriousness of the offending, your culpability and the need to protect the public.
[21] I do not agree with the starting point of the Crown. In my opinion, the Crown’s starting point is lower than I think is necessary in order to achieve the starting point. When looking at all matters before me, I have decided the appropriate starting point is a sentence of four years’ imprisonment. Taking into account your previous convictions and the fact this offending occurred while you were subject to a community-based sentence, I intend to increase that by nine months. The provisional sentence is therefore one of four years and nine months’ imprisonment.
[22] I intend to reduce that provisional sentence to take into account your pleas of guilty. There are always difficulties with the appropriate discount for a plea of guilty when there are summarily laid matters and indictably laid matters, when pleas are entered on different occasions and where the odd amendment or two has been made to the indictment before the Court. I have decided the appropriate discount for the pleas of guilty is one of nine months’ imprisonment.
The Judge then imposed a sentence of four years imprisonment on the two counts of using a firearm in the commission of an offence, with concurrent sentences on the other counts. The appellant was disqualified from driving for two years and there was an order for forfeiture of the firearm and motor vehicle. The Judge delivered a first warning under s 86B of the Sentencing Act 2002.
Mr Cunningham was separately charged and sentenced for his part in the offending in the District Court at Timaru by Judge Maze who delivered a sentencing indication on 15 July 2011. Judge Maze referred to the sentence which had been imposed on the appellant in these terms:
[18] The Crown’s starting point is based upon the outcome of Mr McNealy’s [sic] sentencing and of necessity, urges a starting point of between three to four years and also seeks an uplift for previous convictions.
[19] The defence submits a starting point of two to two and a half years is appropriate to reflect the lesser involvement and the lower number of charges overall.
[20] It does appear to be conceded by both counsel that for Mr McNealy [sic] there was an entire day involved in violence in one form or another. It included in fact, damaging a dwelling by discharging the firearm at one point. So there is no difficulty in accepting that this is a lower scale of offending.
[21] There was of course risk to members of public in what is alleged against Mr Cunningham, but there was no actual harm or injury to anyone. The threat to the female complainant of course requires me to have regard to the impact upon her. It is a serious matter, that is a serious incident because the principal offender was in a highly unstable state at the time.
[22] So overall there are two separate incidents both of which have a distinctly nasty, for want of a better word, element to them. I consider that a starting point of two and a half years for the overall offending would be appropriate. …
The issues on appeal
Mrs Stevens argues three points in support of the appeal:
(a)the starting point was too high;
(b)the discount for the guilty pleas was too low; and
(c)there was unjustified disparity with the co-offender Mr Cunningham.
It is convenient to deal with the first and third issues, namely the starting point and the comparison with the co-offender, together, before addressing the discrete issue concerning the discount for the guilty plea.
The submissions
Mrs Stevens submits that the starting point of four years took into account the appellant’s age, that he had no firearms licence, that he was intoxicated, that he made threats with the firearm, that he was on a sentence of supervision, the apparent lack of effect of earlier rehabilitative sentences, and the appellant’s recidivist offending and record of previous convictions. She submits that the starting point of four years fixed, taking those matters into account, was a severe starting point and too high for the level of offending, and that the addition of nine months for previous convictions and offending while subject to supervision was in effect a double counting.
The Crown submits that the starting point is perhaps “stern” but within the available range having regard to a number of authorities.[2] The Crown submits that these cases broadly establish a range of sentences for offending involving possession of a firearm ranging from two years to five years. The Judge took a global or totality approach and the appellant’s offending encompassed more than one serious violent offence committed with a firearm over a prolonged period. The Crown submits that there was no double counting of personal aggravating factors and refers to [19] and [20] of the sentencing notes, set out above, as to the factors taken into account in fixing the starting point.
[2]Freakley v R [2010] NZCA 497; R v Rapana CA7/06, 22 May 2006; R v Hetherington CA227/01, 27 September 2001; R v Epplett HC Christchurch T17/90, 17 May 1990.
As to disparity with the co-offender, Mrs Stevens notes that Mr Cunningham was charged with commission of a crime with a firearm, threatening to kill, unlawful possession of a firearm and careless use of a firearm. She submits that the differences between the two offenders are slight, the most significant being the number of other charges the appellant faced and his role as principal. Mr Cunningham also had a large number of previous convictions. She submits that the appellant would justifiably feel a sense of grievance at Mr Cunningham receiving a sentence 18 months less than his. She submits that a six month distinction is all that is justified.
The Crown submits that the differences between the respective positions of the appellant and Mr Cunningham are such that the appellant has not made out a “gross or unjustified disparity” such that reduction of his sentence should result, by the application of the principles stated in R v Lawson.[3]
Discussion
[3] R v Lawson [1982] 2 NZLR 219 (CA).
This was a difficult sentencing exercise. It involved a series of connected but discrete events over a period of some hours. There was little, if any, assistance available to the Judge from the authorities. At the time the appellant was sentenced, Mr Cunningham had not been dealt with. He had been involved in some, but not all, of the appellant’s offending. These factors lead us to the view that the proper approach on this appeal is to consider afresh the starting point, having regard to the matters relied upon by the Judge, and also to the sentence subsequently imposed on Mr Cunningham.
A comparison with the cases referred to by the Crown provides some assistance. In Freakley v R,[4] where a starting point of three years was upheld, the victim was threatened in her own home with a shotgun for a period, but no shots were fired. That offending was more serious in terms of the nature of the threat, but less serious in that no shot was fired. In R v Rapana,[5] a sentence of two years was imposed for unlawful possession of a pistol and ammunition, where the pistol was found loaded in a vehicle in the course of a road side stop. We regard that offending as considerably less serious than this. R v Hetherington[6] involved more serious offending than this, including a charge of kidnapping, and we do not regard that as of significant assistance here. In R v Epplett,[7] a sentence of three years after a guilty plea was imposed for firing a weapon at a house which the offender must have known to be occupied.
[4] Freakley v R [2010] NZCA 497.
[5] R v Rapana CA7/06, 22 May 2006.
[6] R v Hetherington CA227/01, 27 September 2001.
[7] R v Epplett HC Christchurch T17/90, 17 May 1990.
In this case we accept Mrs Stevens’ submission that the appellant must be taken to have known that the house at which he fired was unoccupied. The appellant was initially charged, for this event, with recklessly damaging property in circumstances where he knew, or ought to have known, that danger to life was likely to result. The appellant maintained that he knew that the male victim was not at home at the time, and that there was no one in the house. The prosecutor accepted that, and the charge was amended to reckless damage to property in which he had no interest.
Our assessment, having regard to the circumstances of the offending, and deriving such limited assistance as is provided by those authorities, leads us to conclude that the starting point of four years adopted by the sentencing Judge, viewed in isolation from the co-offender’s sentence, is at the top of, but not outside, the available range.
That conclusion needs to be reviewed having regard to parity with the co-offender. Judge Maze adopted a starting point of two and a half years. We accept Mrs Stevens’ submission that a difference of 18 months between the starting points of the two offenders is excessive. Mr Cunningham’s offending was also serious. He provided encouragement to the appellant, including encouraging him to use the firearm, and also made a threat himself to fire a shot. The appellant had been incensed by the male victim’s alleged remarks about him. The co-offender had no similar reason for a loss of control, such as might mitigate his culpability. We are not suggesting that Judge Maze’s sentence, viewed in isolation, was outside the available range. A combination of starting points near the bottom of the available range for one co‑offender, and near the top for the other, has led to an unjustified disparity. We consider that a difference of 12 months between the two starting points is a more appropriate reflection of their respective levels of culpability than the difference of 18 months actually adopted.
For these reasons, we consider that a starting point of three years and six months for the offending by the appellant is appropriate, having regard to parity between the offenders.
The Judge imposed an uplift of nine months to reflect the appellant’s previous history and the fact that this offending occurred while the appellant was subject to a community-based sentence. We adopt the same uplift, while observing that the uplift could well have been higher.
The final issue on appeal is the extent of the discount for the guilty pleas. Pleas were entered at the first reasonable opportunity for the summarily laid matters. Mrs Stevens submits that, for the indictably laid matters, there were issues to be resolved as to the appropriate charge for the firing of the shot into the male victim’s house. As we have noted, the Crown ultimately accepted that it could not establish the more serious charge originally laid under s 269(1) of the Crimes Act 1961, and substituted the lesser charge under s 269(2)(a). The plea was entered at the first reasonable opportunity after the amendment. We consider that, in these circumstances, the maximum discount under Hessell v R for a guilty plea of 25 per cent should be allowed.[8] From the uplifted starting point of four years and three months, a discount of 25 per cent (13 months) should be allowed for the guilty pleas.
Result
[8] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
That gives an end sentence of three years and two months. The appeal is allowed. The sentence of four years imprisonment on each of the two counts of using a firearm in the commission of an offence is quashed and a sentence of three years and two months is substituted. All other components of the sentence imposed are confirmed.
Solicitors:
Crown Law Office, Wellington for Respondent
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