R v Byles
[2022] NZHC 2897
•4 November 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-043-1077
[2022] NZHC 2897
THE QUEEN v
ERRON JAMES BYLES
and
TYLA ZOE PIGOTT
Sentencing: 4 November 2022 Counsel:
R L Hicklin for the Crown S Tait for Mr Byles
K Pascoe for Ms Pigott
Sentencing Notes:
4 November 2022
SENTENCING NOTES OF GWYN J
Introduction
[1] Erron Byles you appear for sentence having pleaded guilty to a charge of discharging a firearm with intent to cause grievous bodily harm.1
[2] Tyla Pigott you appear for sentence having pleaded guilty to a charge of discharging a firearm with reckless disregard.2
1 Crimes Act 1961, s 198(1)(a) carries a maximum penalty of 14 years’ imprisonment
2 Sections 198(2) and 66(1) carry a maximum penalty of seven years’ imprisonment.
R v BYLES & PIGOTT [2022] NZHC 2897 [4 November 2022]
[3] In sentencing you today, I apply a law called the Sentencing Act 2002, which sets out the purposes and principles of sentencing. The purpose of sentencing in your case is to hold each of you accountable for the harm you have caused to the victim and to the community; to have you accept responsibility for, and acknowledge, that harm; to denounce your criminal conduct and deter you and others from similar offending; to protect the community; and to assist in your rehabilitation and reintegration into society.3 What that means in practice is that I have to look at the whole situation and do what I can to mark what you have done, but also to acknowledge each of you and your particular circumstances and background.
[4] I will first say something about your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I will set a starting point based on the offence each of you is charged with; and second, I will consider whether to apply any increases (uplifts) and discounts to reflect your personal aggravating and mitigating factors.
[5] Because sentencing is a public process, I have to talk about the detail of what happened.
The offending
[6] Mr Byles you and the victim know each other and have socially interacted with each other before. It is my understanding that now, after the offending, you and the victim are once again on good terms. At the time of the offending, tensions were running high between elements of the Taranaki criminal underworld and the victim. This meant that the victim and related associates were routinely armed.
[7] At about 2 am on 20 July 2021, Mr Byles you were being driven by Ms Pigott, who was your partner at the time. Mr Byles you were armed with a silenced .22 semi- automatic rifle, loaded with a magazine of .22 ammunition. After noticing the victim driving in the same area, you directed Ms Pigott to follow him.
3 Sentencing Act 2002, s 7.
[8] Ms Pigott, you followed the victim’s car into a cul-de-sac and attempted to block the car at the top of the cul-de-sac. At this point, Mr Byles got out of the car with his rifle. Meanwhile, Ms Pigott, you hit the victim’s car with your car to prevent him from driving off.
[9] Mr Byles, you moved towards the victim with the rifle in your left hand, pointing down. You had raised your right hand requesting the victim to stop. Your request was ignored. You feared you were going to be shot so you raised your rifle and fired a number of shots. The victim then drove forward and reversed at speed into the car in which Ms Pigott was seated. The victim then drove off.
[10] Mr Byles, you then ran after the victim as he was driving away and fired several shots at him, one of which reached the driver’s head rest. Another struck the side of a residential property.
[11]You both then returned home.
Personal circumstances
Mr Byles
[12] Mr Byles, before sentencing you today, I have read a report, dated 19 October 2022, prepared by the Department of Corrections (PAC report). I have also reviewed your criminal history.
[13] You are 43 years old. Your PAC report notes your extensive and varied criminal history spanning from 1997 to 2021. It is the 2021 offending you are being sentenced for today. Your first serious violence-related offending took place in 1999. Since then, you have served 19 separate sentences of imprisonment, been subject to most community-based sentences, including parole and release conditions, and participated in several alcohol, drug and violence prevention counselling programmes. However, the PAC report writer notes that the present offending represents a serious escalation in the actual violence in your offending as well as its frequency. All in all, your criminal record and the present offending indicated to the report writer that you
show a pattern of anti-social behaviour of concern, which means your risk of re- offending and risk of causing harm to others are both assessed as high.
[14] You told the PAC report writer that you had been using methamphetamine at the time of the offending. You realise that drug use was a contributory factor in your offending and you are motivated to address it. You also advised the report writer that your drug use is more of a social habit rather than an addiction. And, you are currently sober.
[15] You described the reason for your methamphetamine use at the time of the offending as the breakdown of your relationship with the mother of your three young children. Now, you seem to be on much better terms and maintain close and regular contact with your children. The report writer also said that you have considerable family support in New Plymouth.
[16] You have had trouble finding work since your recent move to New Plymouth. You had been living with friends at the time of the offending.
[17] By way of explanation for your offending, you told the report writer that you had been carrying a firearm for your own protection. Since your move to the region, you sensed trouble was brewing. You said that the victim was making threats towards you, was unpredictable and had army training. What you did was to send him and others a message so that you and Ms Pigott would be left alone. You did not consider going to the police to be a viable option.
Ms Pigott
[18] Ms Pigott, before sentencing you today, I have read a report, dated 1 November 2022, prepared by the Department of Corrections (PAC report), and considered your criminal history.
[19] You are 24 years old. You are about to have a baby. You have a relatively short criminal history, made up of relatively minor violence and driving-related offences. But the offending you are being sentenced for today represents an escalation, so the report writer has assessed you as having a medium risk of re-offending and of causing
harm to others. The report writer says you can reduce your risk by changing your anti- social lifestyle, by not resorting to violence and stopping the use of alcohol and drugs.
[20] The report writer also considered that with the imminent birth of your first child, you have been motivated to address your offending-related factors. You have not been taking drugs or drinking alcohol. You have a plan to return to the hairdressing industry, for which you hold a qualification. And, importantly, you recognise the harm your offending caused and have expressed remorse about your association with the anti-social group, being the driver that night and being involved with weapons. You said to the report writer that after the incident, once you understood the seriousness of the situation, you felt misled and that it was out of character for you to have got involved.
[21] Ms Pigott, the report recommends a sentence of home detention. The report also recommends you attend rehabilitative programmes relating to alcohol and drug use and a violence prevention programme, specifically designed for women.
Starting point
[22] Now I will talk about the way I have decided to approach the starting point of the sentence for each of you. I will refer to some other cases that involved similar charges, as they provide a useful comparison.
[23] The Crown cites R v Hakeke as a similar case.4 The case involved a drive-by shooting in a residential street in a gang context after a verbal exchange between members of rival gangs. The sentencing Judge found in that case that the offenders had travelled to a particular area to look for rival gang members with the intention of “engag[ing] in some sort of confrontation”.5 Two shots were fired. No one was injured. The Judge adopted a starting point of four years and six months’ imprisonment for each of the two offenders.
[24] Mr Byles and Ms Pigott, your case involved less premeditation than was the case in Hakeke. I accept that you did not go looking for the victim but happened upon
4 R v Hakeke [2013] NZHC 865.
5 At [2].
him and took the opportunity to “send him a message”, as Mr Byles described it. Your case also does not involve a gang element to it, which was the main motivation for the offending in the Hakeke case. However, as in Hakeke, it was luck and not a lack of intention that meant no one was hurt, or worse, killed. And the number of shots fired was greater than in Hakeke by some margin, including one which hit the victim’s car headrest and one which reached a residential property. Both the victim and members of the public were at risk.
[25] The two of you were not equal participants in the offending. Ms Pigott, while you were driving the car and followed the victim into a cul-de-sac, you were acting on Mr Byles’ instructions. It was Mr Byles who was in control of the firearm at all times and who fired all the shots. Once Mr Byles had got out of the car with his firearm, Ms Pigott, you had no effective influence on him and he was acting alone.
[26] So the starting point for you Ms Pigott will reflect the lesser role you played in the offending. But I note that although you were a secondary participant, you were still an active participant. You were aware throughout that Mr Byles had a gun and you attempted to block the victim from driving away by hitting his car with yours after you had tried to block him at the top of the cul-de-sac.
[27] To reflect your secondary role in the offending and the lesser charge you have pleaded guilty to, Ms Pigott, I adopt a starting point of two years six months’ imprisonment.
[28] Mr Byles, to reflect your role as the principal offender, I adopt a starting point of four years six months’ imprisonment.
Personal aggravating and mitigating factors
[29]I turn now to your personal aggravating and mitigating factors.
Previous convictions
[30] The law says that I can impose an increase to the starting point because of your previous convictions.6 The thinking behind that is that those convictions “are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending”.7 Uplifts are not to be applied as a matter of course.8 Before applying an uplift, I have to consider whether any uplift will have the desired deterrent effect.
[31] Mr Byles, it is plain that the sanctions of criminal law have had little deterrent effect on you. You have over 60 convictions, you have served 19 separate terms of imprisonment and today you are being sentenced for offending which represents an escalation in your offending.
[32] I am not sentencing you on your criminal record—that would amount to punishing you twice for the same crime. However, your criminal record shows a tendency to use violence, with your most recent conviction for violence-related offending in 2020. This is recent and relevant to your present offending.
[33] This shows me that you may well offend in a violent manner again and I have to uplift your sentence by three months for the protection of the community.9 In applying this uplift, I also send you a message that your pattern of continual violent offending is not acceptable. As the PAC report writer described, you have identified the changes you need to make to keep yourself and the community safe from violence. You have a positive working relationship with the mother of your children and you are maintaining good contact with your children. To sustain this, you will have to stay out of prison. I hope that can be the motivation you need to not offend again.
[34] Ms Pigott your two previous convictions from 2016 and 2017 do not warrant an uplift.
6 Sentencing Act, s 9(1)(j).
7 Orchard v R [2019] NZCA 529 at [39].
8 O’Connor v R [2014] NZCA 328 at [41].
9 At [41]; and Blackmore v R [2014] NZCA 109 at [12].
Guilty plea
[35]I turn now to your guilty pleas.10
[36] Mr Byles, your counsel says a 15-20 per cent discount is appropriate despite the late plea because COVID-19 related difficulties delayed resolution. The Crown says 10 per cent is appropriate. I note here that the agreed summary of facts, to which you have pleaded guilty, says that an unfired round was located in the victim’s car, indicating the presence of a firearm. I also note that your charges were amended from the much more serious charges you were facing originally. This means the strength of the Crown case was not such as to make convictions inevitable. In these circumstances, I adopt a discount of 15 per cent.
[37] Ms Pigott, the Crown accepts that you are entitled to the full 25 per cent guilty plea discount. Any delays in your entering of a plea were caused by the delayed resolution of the charges against Mr Byles. You had indicated an intention to plead guilty at the earliest stages. Therefore, I adopt a discount of 25 per cent.
Personal mitigating factors
[38] In sentencing you today, I must take into account your personal, family, community, and cultural background.11
[39] Mr Byles, I have read a cultural report, prepared by Dr Jarrod Gilbert, to enable me to have a better understanding of your background. I have also read an alcohol and drug report prepared about you. The cultural report details your background of considerable abuse and disadvantage. You witnessed and were subject to serious family violence at a young age. The neglect you suffered extended even to you becoming homeless for a period of time when you were about 10 years old. Once in state care, you suffered further physical abuse as well as sexual abuse. Substance abuse followed for you and an early introduction to the criminal world, leading to your first term of imprisonment at the age of 17. The report tells me you have four children and you have worked hard to build better relationships with them. The report also
10 Sentencing Act, s 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
11 Sentencing Act, s 8(i).
describes your desire to now feel part of the community, including your plan to join a rugby club and make pro-social friends.
[40] I have no doubt that your background has diminished your opportunities and shaped the choices you made. That does not relieve you of personal responsibility for your actions, but it does help me to understand how you got to the point where you became involved in this offending and to that extent it modifies your culpability.
[41] I accept that the social, cultural and economic deprivation that you have experienced has a connection with your present offending. Based on your personal mitigating factors, I apply a discount of 15 per cent to your sentence.
[42] Ms Pigott, I have also read your cultural report, prepared by Dr Gilbert. It says that while you describe your childhood as “perfect”, you did experience some bullying and physical discipline. Most significantly, the report says that in later years you experienced coercive control in your intimate relationships, including in your brief relationship with Mr Byles. You reported being afraid of him. The coercive control you experienced, says Dr Gilbert, contributed to your offending.
[43] The report says that you are now in a supportive and stable relationship. Your pregnancy has been a positive motivating factor for you. And you have moved away from the anti-social circle you were previously part of.
[44] Ms Pigott, at 24 years of age you are young and have the possibility of a positive life in front of you. You do not have an extensive criminal record by any means and I see that your remorse for the current offending is genuine. You showed a desire and willingness to participate in a restorative justice programme, and, as I noted before, you made no attempt to minimise or dispute the summary of facts. You have also relocated out of New Plymouth, where the offending took place and have dissociated yourself from Mr Byles and the anti-social group you were previously friends with. It seems to me that you find yourself at cross-roads here with the upcoming arrival of your first baby. I believe that you want to lead a better and pro- social lifestyle to meet your future goals. To account for your remorse, youth and other personal mitigating factors, I apply a discount of 25 per cent to your sentence.
This discount also takes into account the period of 14 months you have spent on restrictive bail conditions.12
Summary
[45] Mr Byles, I adopted a starting point for your offending of four years’ six months’ imprisonment. This is uplifted by three months to signal the need to protect the public from repeated violent offending. This was discounted by 15 per cent for your guilty plea and a further 15 per cent for your personal mitigating factors to arrive at an end sentence of three years and four months’ imprisonment.
[46] Ms Pigott, I adopted a starting point for your offending of two years six months’ imprisonment. This was discounted by 25 per cent for your guilty plea and further discounted by 25 per cent for your personal mitigating factors. I arrive at an end sentence of one year and three months’ imprisonment.
[47] Ms Pigott, with the imminent birth of your child, my focus is on your rehabilitation. You have made significant changes to your lifestyle since the offending, for which you show genuine remorse, and you are demonstrating a motivation to keep going down that path. I do not want to interrupt your progress. This is especially important considering the impact you will have on your child—who will be dependent on you. In these circumstances, the appropriate and least restrictive sentencing decision for you is intensive supervision, for which you are eligible under s 54B of the Sentencing Act.
Result
[48]Mr Byles and Ms Pigott, please stand.
[49] On the charge of discharging a firearm with intent to cause grievous bodily harm, Mr Byles I sentence you to three years and four months’ imprisonment.
12 Longman v Police [2017] NZHC 2928.
[50] On the charge of discharging a firearm with reckless disregard, Ms Pigott, I sentence you to intensive supervision for a period of eighteen months with the following conditions:
(a)To attend an assessment for an appropriate Departmental Programme as directed by your Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)To attend an assessment for an appropriate Alcohol and Drug (AOD) Programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(c)To attend and complete any other counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(d)Not to possess, consume or use any alcohol or drugs not prescribed to you.
[51]I order the destruction of the rifle and ammunition.
Gwyn J
Solicitors:
Crown Solicitor, New Plymouth Nicholsons Lawyers, New Plymouth
Copy to:
Mr Tait, Manukau
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