R v Baker

[2024] NZHC 3152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-092-004586

[2024] NZHC 3152

THE KING

v

JOSHUA BAKER

Hearing:	30 October 2024
Counsel:	A Al-Janabi and CM Fountain for Crown SJ Taylor-Cyphers for Defendant
Judgment:	30 October 2024

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Manukau. SJ Taylor-Cyphers, Auckland.

R v BAKER [2024] NZHC 3152 [30 October 2024]

Introduction

[1]                 Joshua Baker, you are for sentence on two charges of unlawfully getting into a motor vehicle,1 and much more seriously, two of discharging a firearm with reckless disregard for the safety of others.2

Background

[2]                 Your offending forms part of intergang hostility between the Tribesmen and Killer Beez. In May and June of 2022, no fewer than 20 shooting incidents and nine of arson occurred between the two gangs.

[3]Your offending occurred 24 May 2022.

[4]                 At approximately 6.50 pm, you and three others drove to the home of a member of the Tribesmen in Flat Bush. Your group had at least three firearms: a 20-gauge shotgun, a 12-gauge shotgun, and a third unspecified firearm. Your group fired at least eight shots toward the home. A car in the driveway was hit, as was the home itself. Those in the home returned fire resulting in bullet damage to nearby properties and cars.

[5]                 You and  the  others  fled  in  a  car  specifically  stolen  for  the  purpose.  You abandoned that car, then got into another which was waiting for you at an arranged meeting point. You and your group drove away at speed.

[6]                 Later the same night, at approximately 11.18, you and two others went to a home in Henderson in a second stolen car. Your group was armed with at least two firearms. As with the first home, you went to the second believing it to be occupied by a member of the Tribesmen gang. But that occupant was not living there. His partner was, with her young children.

[7]                 Your group drove down the driveway to the home, then revved the car’s engine. The female occupant approached the bedroom window. When she did, your group

1      Crimes Act 1961, s 226(2); maximum penalty, two years’ imprisonment.

2      Section 198(2); maximum penalty, seven years’ imprisonment.

fired repeatedly toward the home. At least four shots were fired. One entered the window, narrowly missing her head. Another hit the window frame. As with the first shooting, your group then drove away at speed.

[8]                 You later admitted to Police you were a passenger in the first car. You said you pointed a shotgun out the window and pulled the trigger, but the weapon jammed. You admitted being present at the second home, but you denied shooting. Indeed, you said you did not have a firearm. That said, you admitted to Police knowing firearms were present, and their intended purpose.

Aggravating factors

[9]At least three things make your offending more serious.

[10]             First, it was gang related. More particularly, it involved intergang warfare; a matter of significant public concern.

[11]             Second, it was premeditated, meaning planned. You were part of a group specifically targeting homes believed to be connected to an opposing gang; you used stolen cars to minimise risk of detection; and the “hit” on each home had clearly been planned.

[12]             Third, there was a high risk of serious harm or worse to an occupant, neighbour, or someone who merely happened to be present. That is especially true of the second shooting, in which an occupant’s attention was attracted by the revving of the engine, and shots then directed toward the bedroom.

Starting point

[13]             I have been referred by the lawyers to a variety of somewhat similar cases, and I thank them for their assistance.3 Confrontations of this nature can give rise to myriad charges. No cited case involves identical charges or facts on all fours with yours. That said, your offending is a bad example of its kind for the reasons I explained a little

3      McAllister v R [2023] NZHC 3705; Hutchinson v R [2020] NZCA 655; R v Jolley [2018] NZHC 93; R v Waihape [2012] NZHC 198; and R v Tamati [2012] NZHC 221.

earlier, and of course, the fact you participated in two distinct shootings in the one evening.

[14]             The Crown invites me to adopt a starting point of four years in relation to the first shooting, with an additional two and a half years for the second. Your lawyer, Ms Taylor-Cyphers, also invites me to adopt a starting point of four years in relation to the first, but says the additional period for the second should be 18 months, not two and a half years.

[15]             The proposed lower starting point for the second shooting recognises what is called the totality principle. Sometimes this principle permits significant discount; sometimes moderate discount; and sometimes little, if any, discount. Level of reduction depends on circumstance. There is no prescription.

[16]             I approach things somewhat differently to the way the lawyers have. I treat the second shooting as the lead offence given that shots were directed at the bedroom and the grave risk of harm to the female occupant. I adopt a four and a half year starting point on the basis you were present but not the leader, and in the very least, you encouraged what occurred by your presence irrespective of whether you had a firearm or not. I add 18 months for the first shooting. A greater uplift is probably available given the seriousness of that offending, but you are still young.

[17]So, the overall starting point is six years.

Guilty plea discount

[18]             You were charged 13 August 2022. You  pleaded  guilty  4  October  2024. Ms Taylor-Cyphers says your guilty plea should attract discount of 20 percent as the Crown amended the charges 8 August 2024 and your guilty pleas were then swift.

[19]             Guilty plea discount depends on several things including, unsurprisingly, timing. Strength of the Crown case is also relevant,4 as is whether you benefitted from amended charges.5

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 [58]–[60].

5 At [62].

[20]             I adopt 20 percent in this case because I am satisfied of two things. First, you entered pleas swiftly once the Crown amended the charges. Second, and more importantly, that one of your co-defendants is the alleged leader of the criminal enterprise and there are constraints upon someone in your situation entering a guilty plea because that would result in the Crown offering your plea as evidence at the other’s trial. In other words, there is a particular mix that warrants 20 percent notwithstanding the fact your pleas were objectively rather late.

Personal circumstances

[21]             I now turn to your personal circumstances. I am reliant here on a brief affidavit filed this morning from your partner, and an unsworn affidavit which, absent opposition I treat as sworn, filed by you also this morning. I note that your pre- sentence report tells me nothing beyond biographical detail as the probation officer was not able to interview you through no fault of yours. There is no cultural report either.

[22]You were 21 when you committed these offences. You are now 23.

[23]             Ms Taylor-Cyphers “invites discount of 10 percent for youth and other background factors”.

[24]             Discount for youth is not automatic. It turns on circumstance, including, for example, whether the offending reflects youthful impulsivity or immaturity; direction from an older offender; or some other feature referrable to young age.

[25]             I am not persuaded given the material before me that there is a basis for a discount having regard to your age. However, I am satisfied even on the limited material that you have placed before me, that your background has contributed somewhat to your offending in that as a young person you used methamphetamine and drifted into a gang. I constrain your discount to 10 percent because there are obvious public policy considerations in giving greater discount: the offending involves intergang warfare.

[26]             Let me pause to speak to you directly, and I acknowledge this is a departure from the script. You have your partner in court with your child. Imagine they had been in the bedroom that night. Imagine they had been at risk. That is what you need to think about. Understood?

Uplift for previous offending

[27]             You have an extensive criminal record, particularly given your age. The Crown seeks an uplift of four months. Ms Taylor-Cyphers says an uplift is not warranted.

[28]             I accept the Crown’s submission. In April 2021, you unlawfully possessed a firearm or perhaps ammunition. You have two Youth Court notations for possession of some form of offensive  weapon.  You  are,  therefore,  no  stranger to  weapons. In May of 2020 you unlawfully took a car. You did the same in December 2018. And, as observed, you have an extensive criminal record for someone of your age.

The sentence

[29]             Let me explain what this all means. From a global starting point of six years’ imprisonment, I deduct 20 percent for your guilty pleas and 10 percent for personal circumstances, including your prospect of rehabilitation and background. This produces a figure of 50.4 months’ imprisonment, which I round down to 50 months. I add four months for your history. Your sentence is, therefore, 54 months’ imprisonment, or four years and six months.

[30]Mr Baker, please stand.

[31]             On the reckless discharge of firearm offences, your sentence is four and a half years’ imprisonment. In relation to the unlawful entry of motor vehicle offences, your sentence is 12 months’ imprisonment. Those sentences run at the same time, so as I have said your sentence is four years and six months’ imprisonment.

[32]             This sentence is lower than what it might otherwise have been in recognition of your background and the prospect of rehabilitation. I strongly encourage you to

think about what I said in relation to your partner and child — they could have been in that bedroom.

[33]Stand down.

……………………………..

Downs J