R v Bushell - [2016] NZHC 750

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2015-083-1232 [2016] NZHC 750

THE QUEEN

v

CARLOS DUANE BUSHELL

Hearing: 20 April 2016

Counsel:

M C Jaquiery for Crown
S J Burlace for D M Goodlet for Defendant

Judgment:

20 April 2016

SENTENCING NOTES OF ELLIS J

[1] Mr Bushell, as you probably know there are things that I have to say before I actually get to your sentence so you can stay sitting down while I say what I have got to say, but at the end I will get you to stand up, alright.

[2] Mr Bushell, you have pleaded guilty to one charge of being an accessory after the fact to using a firearm against a law enforcement officer.1 The maximum penalty for that is five years’ imprisonment. Ordinarily sentencing for offending of this nature would be dealt with in the District Court but because you were originally charged jointly with others who were alleged to have committed much more serious offences you are for sentence here today.

[3] There are some things I need to say before I tell you what your sentence will be, beginning with the background facts.

1 Sections 71 and 198A of the Crimes Act 1961.

R v BUSHELL [2016] NZHC 750 [20 April 2016]

The facts

[4] At around 2.15 in the morning of 19 August 2015 a car driven by Dolphy Kohu was seen in Wanganui by Police, who signalled for him to stop. Mr Kohu’s girlfriend, Ms Paul, was also in the car. Mr Kohu did not stop and was then pursued by two marked Police cars displaying flashing red and blue lights with sirens sounding. Sergeant Sean Jones and Constable Darren Barrow were driving the cars. They followed Mr Kohu around Wanganui then up State Highway 4 to Raetihi. Ohakune Police units were also called out.

[5] Throughout the pursuit Mr Kohu was driving in a highly dangerous manner. He twice managed to avoid road spikes. Just out of Raetihi on a section of rural road, Sergeant Jones managed to use his vehicle to push Mr Kohu’s car off the road and into a wire and baton fence, which made it difficult for Mr Kohu to get out of the vehicle through the driver’s door.

[6] Sergeant Jones approached the car with a Taser drawn. Mr Kohu presented a sawn-off semi-automatic .22 rifle and fired it directly at Sergeant Jones. The first shot was fired while Mr Kohu was sitting still inside the car. Sergeant Jones and Constable Barrow both ran for cover. As they did so, Mr Kohu got out of the vehicle through the open window and continued to fire at them. He fired five shots in total.

[7] The Police Officers went to a nearby house for assistance. Mr Kohu and Ms Paul then drove off in Sergeant Jones’ Police car. They continued to drive it until the car got stuck in a water table. Ms Paul managed to contact a friend who came and…

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 Bushell

Details

AGLC: R v Bushell [2016] NZHC 750
Case: [2016] NZHC 750
Decision Date: 20 April 2016

CaseChat Overview and Summary

The case of R v Bushell involved Carlos Duane Bushell, who was sentenced by the High Court of New Zealand at Wanganui. Bushell pleaded guilty to being an accessory after the fact to using a firearm against a law enforcement officer. The court was required to determine the appropriate sentence, considering both aggravating and mitigating factors. Aggravating factors included Bushell's willingness to assist a person who had shot at police officers, thereby frustrating the police investigation and potentially endangering the community. Mitigating factors included Bushell's guilty plea, his intention to protect his family, and his lack of a significant criminal history aside from minor dishonesty offenses. The court decided that a community-based sentence was appropriate, taking into account Bushell's otherwise law-abiding conduct and his desire to contribute to society. The final sentence comprised nine months of supervision under specific conditions and 250 hours of community work, reflecting a discount for Bushell's early guilty plea.

The reasoning behind the court's decision was influenced by the nature of Bushell's involvement, which was a one-off incident without active destruction or tampering with evidence. This placed his case at the lower end of the sentencing scale for accessory offenses. The court also emphasized the importance of holding Bushell accountable for his actions while acknowledging his efforts to stay out of trouble since the incident. The prescribed community work was intended to reflect the seriousness of the offense, ensuring that Bushell not only served his sentence but also made amends for the risk he posed to the public. The court further ordered the destruction of the firearm and related items found in the possession of the principal offender, Mr. Kohu, and in Bushell's car.

Orders