Nielsen v The Queen
[2021] NZCA 477
•22 September 2021 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA128/2021 [2021] NZCA 477 |
| BETWEEN | KANE BRIAN VOLUND NIELSEN |
| AND | THE QUEEN |
| Hearing: | 25 August 2021 |
Court: | Collins, Duffy and Peters JJ |
Counsel: | N M Dutch for Appellant |
Judgment: | 22 September 2021 at 9.30 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
B The appeal against sentence is allowed.
CThe sentence of three years, nine months’ imprisonment on the charge of discharging a firearm with intent to injure is quashed and a sentence of three years, four months’ imprisonment substituted.
DThe cumulative sentence of seven months’ imprisonment imposed on the charges of unlawful possession of a firearm and of ammunition is quashed and a concurrent sentence of the same length substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
Following a jury trial in September 2020, the appellant, Mr Nielsen,[1] was convicted of one charge of unlawfully carrying a firearm and one of discharging a firearm with intent to injure.[2] Also, at the outset of the trial, Mr Nielsen pleaded guilty to two charges, being one each of unlawful possession of a firearm and of ammunition.[3]
[1]In the District Court, the appellant’s name was spelled “Nielson”.
[2]Arms Act 1983, ss 45(1)(a); and Crimes Act 1961, s 198(2).
[3]Arms Act, s 45(1)(b).
On 16 December 2020, the trial Judge, Judge Cooper, sentenced Mr Nielsen to four years, four months’ imprisonment.[4]
[4]R v Nielson [2020] NZDC 26375 [Sentencing notes].
Mr Nielsen now appeals against conviction and sentence. The appeal against conviction is brought on the grounds that the jury’s verdict was unreasonable and that a miscarriage of justice has occurred. The appeal against sentence is brought on the ground the sentence is manifestly excessive.
Mr Nielsen required an extension of time to file his notice of appeal. This Court granted that extension on 27 April 2021.[5]
Background
Offending
[5]Nielson v R CA128/21, 27 April 2021.
The events giving rise to the offending of which Mr Nielsen was convicted were as follows.
Very late in the evening of 20 April 2019, Mr Nielsen and an associate, Mr Wilson, were at an address in Tokoroa. Mr Quaife, the victim, and his associate, Mr Zammit, were also present.
An argument developed when the parties were inside, and Mr Nielsen and Mr Wilson presented firearms, being a sawn-off shotgun and a sawn-off .22 rifle. The .22 was fired twice, one shot hitting Mr Quaife in the thigh.
After the offending, Ms Walters, who had driven Mr Nielsen to the address, drove him to Hamilton.
The police arrested Mr Nielsen in Hamilton on 27 April 2019. The police searched Mr Nielsen’s motor vehicle, locating a sawn-off .22 rifle in a bag on the back seat. The rifle had a strap and a magazine attached, the magazine containing seven rounds of .22 ammunition. In a vest, also in the vehicle, a further eight rounds of .22 ammunition were located.
The police charged Mr Nielsen with five offences. In relation to the events on 20 April 2019, the police charged Mr Nielsen with the offending of which he was found guilty at trial and, as an alternative, unlawful possession of the shotgun. The search of the vehicle led to the two charges to which Mr Nielsen pleaded guilty.
On 27 February 2020, Mr Wilson pleaded guilty to unlawful possession of a firearm and assault with a weapon, the latter charge arising from his striking Mr Zammit in the head with the butt of the firearm he was holding.[6]
Trial
[6]R v Wirihana-Wilson [2020] NZDC 3411.
The sole issue at trial was whether Mr Nielsen was holding the shotgun or the .22 rifle, and therefore whether he fired the shot that injured Mr Quaife.
The Crown called five witnesses, being Mr Zammit, Ms Harrison, Ms Lawry, Ms Walters and Detective Edgington. There was also an agreed statement of facts. Neither Mr Quaife nor Mr Wilson gave evidence. In its opening address, the Crown said Mr Quaife had refused to speak to the police and so would not be called to give evidence. There is nothing before us regarding Mr Wilson’s failure to give evidence at trial.
Mr Nielsen did not give or call evidence in his defence.
Evidence
The key points from Mr Zammit’s evidence, including evidence arising from a statement he made to the police shortly after the events occurred, are these. Mr Zammit, who was familiar with firearms, said he thought the firearm that Mr Nielsen was holding was a shotgun and not a .22. He also said he did not think the firearm Mr Nielsen was holding had either a strap or a magazine. As we have said, the .22 the police located in Mr Nielsen’s vehicle had both. Mr Zammit also gave evidence that he believed he would have blocked any shot Mr Nielsen fired in Mr Quaife’s direction given where he, Mr Zammit, was standing.
Ms Harrison was the occupant of the address at which the offending took place. Ms Harrison gave evidence that she heard a shot, that she subsequently saw what she described as Mr Wilson “reloading”, and that she did not see Mr Nielsen shoot anyone or reload his firearm.
Ms Lawry’s evidence was that she had seen Mr Nielsen shoot Mr Quaife.
Ms Walters’ evidence was that she had remained in her vehicle after Mr Nielsen went into the address. She then described being woken by yelling from inside the address, and that when Mr Nielsen emerged he instructed her to leave, and told her he had “just shot someone”.
All of these witnesses’ evidence was able to be, and was, attacked in one way or another by opposing counsel.
In closing, the Crown submitted to the jury that they should accept the evidence of Ms Lawry and Ms Walters and expressed reservations about Mr Zammit’s reliability, particularly because he said events were a “blur” after he was struck to the head.
The Crown also emphasised the finding of a spent .22 casing at the address, and of the .22 itself in Mr Nielsen’s vehicle a week later, on 27 April 2019. One of the agreed facts was an expert opinion that the probability of the spent .22 casing having been fired in that same firearm was “very high”, and the probability of the casing having been fired from another firearm was “so low, it was negligible”.
Defence counsel submitted to the jury that they should prefer the evidence of Mr Zammit and Ms Harrison. The significance of Mr Zammit’s evidence was that he thought Mr Nielsen was holding a shotgun and that it would not have been possible for Mr Nielsen to have had a direct line of sight to Mr Quaife. The important point from Ms Harrison’s evidence was her description of Mr Wilson as reloading, and that she did not see Mr Nielsen shoot anyone or reload.
Each counsel had anticipated that the other would be critical in his or her closing about the reliability of their preferred witnesses. For instance, each of Ms Lawry and Ms Walters were using methamphetamine at the time, and each had had romantic relationships with Mr Nielsen and Mr Wilson. Defence counsel submitted to the jury that their memories were adversely affected by their methamphetamine consumption, and also that each was aggrieved at how their relationship with Mr Nielsen had ended, and that their loyalties lay with Mr Wilson.
Appeal against conviction
Mr Dutch’s first submission was that the jury’s verdict was unreasonable, there being insufficient evidence to satisfy the fact-finder of guilt beyond reasonable doubt.
We do not accept this submission. It was open to the jury to accept the evidence of Ms Lawry and Ms Walters. There was also Mr Nielsen’s acknowledged possession of the .22 a week later. This was sufficient evidence for the jury to be satisfied beyond reasonable doubt that Mr Nielsen had been holding the .22 and had shot Mr Quaife.
Mr Dutch next submits that, in his summing up, the Judge undermined the “key” defence submission on the evidence when he gave the following direction:
In relation to witnesses generally, the Crown says you can rely on the evidence of the Crown except for what Mr Zammit tells you. Mr Hill says to you well Mr Zammit you know it’s a bit ironic that the Crown should put him up as a witness but then seek to undermine him. Actually, the Crown has an obligation to put him up as a witness because the Crown is here as a I guess as an instrument of justice. They are not here to give a necessarily slanted view of things and if there is evidence that’s relevant for you to consider, the Crown has an obligation to put it to you and that’s why Mr Zammit’s evidence has been given. He is an important witness because he was present at the time and it’s not a case really of the Crown putting him up and then trying to pull him down so to speak. The Crown have got that obligation to put it before you so you can consider it.
Mr Dutch submits that this direction was unfair and incorrect. He contends it presented the Crown to the jury as only having called Mr Zammit in the course of complying with its obligation to put all relevant evidence before the jury. Mr Dutch submits this was incorrect because, in fact, the Crown had chosen who it would, and would not, call to give evidence, as was apparent from its decision not to call or summons Mr Quaife.
Crown counsel on appeal, Mr Davie, submits that the Judge’s direction was a benign response to an objectionable statement that Mr Hill made to the jury in his closing remarks, which was as follows:
... it’s a little odd because on the one hand the Crown has produced Mr Zammit as a witness in order to prove the charge against Mr Nielson, but on the other hand, you’ve just heard submissions from the Crown prosecutor saying be careful what you do with his evidence. Don’t rely on it too much. So, in effect, they’re trying to undermine or impeach their own witness, because Mr Zammit’s evidence is a bit of an issue for the Crown because Mr Zammit is quite clear that the first shot was fired before he got into a wrestle or a fight with Mr Nielson. Mr Zammit is very clear that after the first shot was fired, he then got into a fight or a wrestling match with Mr Nielson. He said it a number of times.
...
Now, that total description is entirely inconsistent with the way Ms Lawry has described things. Entirely. They don’t match up at all. So someone is completely wrong. And that is the inconvenient thing for the Crown here. That they want you to believe what Ms Lawry is saying, but they understand that it runs in contrast to what Mr Zammit is saying.
Mr Davie submits this statement was objectionable because the Crown was entitled to express reservations about the reliability of Mr Zammit’s evidence, even if it had called him as a witness. Mr Davie submits that Mr Hill’s reference to the Crown “trying to undermine or impeach their own witness” arguably implied the Crown had breached s 37(4)(a) of the Evidence Act 2006, that is had offered evidence to challenge Mr Zammit’s veracity, and that another Judge might have rebuked Mr Hill for making such a submission.
Discussion
It may be that Mr Hill should not have submitted to the jury that the Crown was seeking to undermine or impeach Mr Zammit. However, we consider the whole issue relatively inconsequential and, for that reason, we do not accept Mr Dutch’s submission that the Judge’s direction was in error, let alone one giving rise to a real risk the outcome of the trial was affected.
First, the Crown would have anticipated Mr Zammit’s evidence at trial might prove unhelpful, given the content of the statement he made to the police when interviewed close in time to the events. Given that, it is not clear to us that the Judge’s statement as to why the Crown had called Mr Zammit as a witness was incorrect, even if the Crown chose not to call Mr Quaife.
Secondly, this direction assisted the defence. The Judge told the jury that Mr Zammit was an important witness and that his evidence was relevant. This was consistent with Mr Hill’s closing remarks.
Thirdly, even if this direction constituted an error, we would not accept that it gave rise to a real risk that the outcome of the trial was affected. It was a small part of a comprehensive summing up, in which the Judge summarised both parties’ cases fully and even-handedly.
Lastly, in his written submissions, Mr Dutch took issue with the Judge’s direction on inferences. The direction was as follows:
To give you another example, in this case we know that the defendant had possession of the firearm that shot Lance Quaife six or seven days afterwards. Now that is not enough by itself to enable you to say he must have been the shooter. … But nevertheless it is a very important piece of circumstantial evidence that you might want to put together with other evidence to ask the question, “was he the shooter?” So as Mr Hill has pointed out, the fact that he had it six days later doesn’t tell you by itself that he was the shooter. What the Crown is saying is that it’s one piece of evidence when you take it with everything else, points to him being the shooter.
Mr Dutch’s written submission was that, by using this example, the Judge gave implicit support to an important part of the Crown’s case, and that this was an error and the Judge ought to have chosen a neutral example of an inference for the jury.
In response to this submission, the Crown has referred us to a decision of this Court to the effect that an example taken from the case at hand will often be more helpful to a jury than an abstract scenario.[7] We agree. The Judge did no more than direct in the manner this Court has said will often be of most assistance to a jury.
Appeal against sentence
[7]Clement v R [2013] NZCA 414 at [26].
Discharging a firearm with intent to injure is a serious violent offence as defined in s 86A of the Sentencing Act 2002 (Act).
At the time he was convicted, Mr Nielsen had already committed a stage-1 offence, also as defined in s 86A of the Act. Thus, Mr Nielsen’s conviction for the offending against Mr Quaife was a stage-2 offence, and Mr Nielsen would be required to serve the sentence imposed without parole.[8]
[8]Sentencing Act 2002, s 86C(4)(a).
For the stage-2 offence, that is the discharging of the firearm, the Judge adopted a starting point of four years’ imprisonment. The Judge then uplifted this starting point by three months to account for the fact that Mr Nielsen was, at the time of offending, on bail for unlawful possession of a different firearm.[9]
[9]Sentencing Notes, above n 4, at [28].
The Judge then gave a discount of six months for personal and other matters identified in a report submitted to the Court pursuant to s 27 of the Act (report).[10] In percentage terms, this equates to a reduction of just less than 12 per cent.
[10]At [29].
This brought the end sentence on the lead offence to three years, nine months’ imprisonment.[11]
[11]At [30].
The Judge imposed a concurrent sentence of 18 months’ imprisonment on the charge of unlawful possession of a firearm.[12]
[12]At [30].
On the charge of unlawfully possessing the same firearm a week later, the Judge adopted a starting point of eight months’ imprisonment, reduced to seven months for Mr Nielsen’s guilty plea, to be served cumulatively on the lead sentence.[13]
[13]At [32].
This gave Mr Nielsen an end sentence of four years, four months’ imprisonment, three years, nine months of which Mr Nielsen was required to serve without parole.[14]
Submissions on sentence
[14]At [32]–[33].
Mr Dutch submits the Judge’s reduction for the personal and cultural matters identified in the report was insufficient, and that the Judge also erred in making the sentence for possession of the firearm on 27 April 2019 cumulative on the sentence for the lead offending.
Report
Several matters appear from the PAC report, and also the s 27 report.
The first is that Mr Nielsen is dyslexic. This was not addressed, or not sufficiently, when he was at school and, as a result, Mr Nielsen did not progress well and made an early exit from the education system. His diminished literacy skills have affected his employment options since, even though he is plainly not without ability. Mr Nielsen’s wish, expressed in both reports, is to apply himself to improving his literacy skills and that of course is to be encouraged.
Secondly most, if not all, of Mr Nielsen’s male family members were in some way connected with gangs and drugs. Mr Nielsen has himself been associated with both the Nomads and the Mongrel Mob. That said, from time to time, he has managed to distance himself from whatever gang he has been associated with at the time, and has had periods of employment.
Thirdly, Mr Nielsen, aged 25 at the time of the offending, has been consuming drugs, particularly methamphetamine, since he was 16 or thereabouts.
At sentencing, Mr Hill sought a reduction of 30 per cent for these matters, Mr Nielsen’s prospects of rehabilitation, the conduct of Mr Quaife on the evening concerned (whatever that meant), and Mr Nielsen’s guilty pleas to the two charges to which we have referred.
The Judge was not persuaded to give a discount of anything like 30 per cent. He was not satisfied there was a nexus between the matters identified in the report and the offending. The Judge considered the offending had occurred because Mr Nielsen had made a deliberate choice to be part of a gang when he might have followed a different path. This was a reference to Mr Nielsen’s prior employment.
That said, the Judge was satisfied that he could give what he himself described as a modest reduction for the “destructive or dysfunctional” aspects of Mr Nielsen’s upbringing, and that Mr Nielsen’s early exposure to the gang lifestyle had a part to play in his criminal history, hence the six-month discount.[15]
[15]At [18] and [29].
In support of his submission to us for a reduction of more than six months, Mr Dutch referred us to Carr v R.[16] In that case, this Court said that a credible account of, amongst other matters, dislocation, drug abuse, and educational underachievement ought to be taken into account on sentencing. This is because these matters might be considered to have impaired choice and diminished moral culpability, and this in turn must have an effect on the sentencing outcome. The Court is not required to be satisfied the matters identified in the report are the proximate cause of the offending, simply that there is a causal linkage.
[16]Carr v R [2020] NZCA 357 at [65].
The Crown submits the Judge’s six-month discount was sufficient for the reasons the Judge gave.
Discussion
That Mr Nielsen has had periods of withdrawal from the gang lifestyle does not negate a causal linkage between the matters identified in the report and his offending. In fact, that Mr Nielsen has managed to withdraw on occasions, and his periods of employment, might be viewed as a positive sign for his future.
In our view, a greater reduction was required, not only for the matters identified in the s 27 report, but also to encourage Mr Nielsen’s rehabilitation, particularly given his relatively young age. We have considered what would be an appropriate reduction and have settled on 20 per cent, being 15 per cent for Mr Nielsen’s diminished culpability and five per cent for his prospects of rehabilitation.
The effect of this is to reduce the sentence on the stage-2 offending to three years, four months’ imprisonment.
Cumulative sentence
Mr Dutch submits the Judge was wrong to impose a cumulative sentence for unlawful possession of the firearm and ammunition on 27 April 2019, given Mr Nielsen’s conviction and sentence for carrying that same firearm on 20 April 2019.
Although the Crown submits it was open to the Judge to proceed as he did, there is force in Mr Dutch’s submission. In essence, the possession offending was a continuation of the possession on 20 April 2019 and, in those circumstances, a concurrent sentence was more appropriate.
Result
The appeal against conviction is dismissed.
The appeal against sentence is allowed.
We quash the sentence of three years, nine months’ imprisonment on the charge of discharging a firearm with intent to injure and substitute a sentence of three years, four months’ imprisonment, to be served without parole.
We quash the cumulative sentence of seven months’ imprisonment imposed on the charges of unlawful possession of a firearm and of ammunition on 27 April 2019, and in its place impose a concurrent sentence of the same length.
All other sentences are unchanged.
Solicitors:
Crown Law Office, Wellington for Respondent
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