R v Bell - [2024] NZHC 370

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-012-410

[2024] NZHC 370

THE KING

v

KALEB WILLIAM BELL

Hearing: 28 February 2024

Appearances:

C E R Power for Crown

J A Westgate for Defendant

Judgment:

28 February 2024

SENTENCING REMARKS OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

R v BELL [2024] NZHC 370 [28 February 2024]

Introduction

[1] Kaleb William Bell, you appear for sentencing having pleaded guilty to a charge of discharging a firearm with intent to cause grievous bodily harm.1

[2] You pleaded guilty to that charge on 19 December 2023 after I gave you a sentence indication on 12 December 2023.

Background facts

[3] I have set out in full detail the facts underpinning the charges in my sentence indication notes.2 I do not propose repeating them in full today. The sentence indication notes will be attached to, and form part of, these remarks.

[4] To summarize, you arranged to sell cannabis to another person and his associates. Either that person, who I see from the pre-sentence report you describe as a friend, or one of his associates, was armed with a sawn-off shotgun. You were threatened, stood over and robbed of your cannabis and, you say, of money. You told the author of the pre-sentence report you suffered a $20,000 loss. It is not clear whether you claim that was what was taken from you, or you are describing how that robbery impacted generally on your cannabis dealing. Before the persons who robbed you made off in their Mazda vehicle you managed to get hold of the sawn-off shotgun. Quite how you achieved that remains unexplained. You got into your car, your mother’s BMW and you pursued the Mazda. You eventually pulled up beside the Mazda on a busy Dunedin road just after 4.30 pm. There were significant numbers of members of the public in the immediate vicinity.

[5] From the driver’s seat, you aimed the firearm at the victim, who was sitting in the rear of the Mazda, and you fired a shot. That shot was fired at very close range. The shot hit the top of the doorframe of Mazda leaving a large hole. A single pellet hit the victim in the forehead but did not cause him any serious harm.

1 Crimes Act 1961, s 198; maximum penalty 14 years’ imprisonment.
2 New Zealand Police v Bell [2023] NZHC 3655 at [3] – [8].

[6] You then travelled north in the BMW, you did a U-turn and you waited for the Mazda to arrive. When it passed you, you fired a second shot. Some pellets hit the vehicle, smashing a rear window of the Mazda.

[7] It is now clear, although not referenced within the summary of facts, that another car, a vehicle belonging to a member of the public was struck with pellets incurring damage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bell

Details

AGLC: R v Bell [2024] NZHC 370
Case: [2024] NZHC 370
Decision Date: 28 February 2024

CaseChat Overview and Summary

Kaleb William Bell was sentenced in the High Court of New Zealand, Dunedin Registry, for discharging a firearm with intent to cause grievous bodily harm. Bell pleaded guilty to the charge after being given a sentence indication on 12 December 2023. The court established that Bell had arranged to sell cannabis to another individual and his associates, but was threatened, robbed, and stood over by the group, who were armed. Bell retrieved the sawn-off shotgun used against him and pursued the offenders, firing two shots at their vehicle at close range, despite the presence of members of the public and CCTV cameras. Although no one was seriously harmed, the court emphasised the gravity of the situation, considering the potential for fatal consequences and the risk posed to innocent bystanders.

The legal issues in this case involved determining the appropriate starting point for sentencing, considering the mitigating and aggravating factors, and assessing the impact of Bell's personal background on his culpability. The court had to balance the seriousness of the offence against the mitigating factors such as Bell's guilty plea, his young age, and the time he had spent on electronically monitored bail. Additionally, the court had to consider the relevance of Bell's personal background, including his dysfunctional upbringing, exposure to violence and substance abuse, and his struggle with addiction, in assessing his culpability and determining an appropriate sentence.

The court adopted a starting point of four years' imprisonment, acknowledging the serious nature of the offence but also considering the lack of premeditation and the element of provocation. The court allowed discounts for Bell's guilty plea, his age, and the time spent on electronically monitored bail, as well as a further deduction to reflect the personal factors outlined in the s 27 report. The court also made orders for reparation, a firearms protection order, destruction of the sawn-off shotgun, and confiscation of the vehicle used in the commission of the offence. Ultimately, the court sentenced Bell to two years and three months' imprisonment, emphasising the importance of denunciation, deterrence, and personal accountability in sentencing.

Orders