R v Cochrane
[2020] NZHC 1485
•26 June 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-009-009328
[2020] NZHC 1485
THE QUEEN v
ALISTAIR COCHRANE DANIEL FRENCH
TEREINA DELIA SULLIVAN
Hearing: 26 June 2020 Appearances:
P A Currie for Crown
J R Rapley QC and K H Cook for Defendant Alistair Cochrane D J Taffs for Defendant Daniel French
A J McKenzie and D Goldwater for Defendant Tereina Sullivan
Judgment:
26 June 2020
SENTENCING REMARKS OF GENDALL J
[1] Alistair Cochrane, Daniel French and Tereina Sullivan, you appear for sentence today following a jury trial in this Court, where the jury delivered its verdicts on 13 March 2020. The jury found you, Mr Cochrane, and you, Mr French, guilty of the murder of Luke Sears. It also found you, Ms Sullivan, guilty of one charge of attempting to pervert the course of justice, and four charges of unlawful possession of a firearm and one of unlawful possession of ammunition.
[2] Mr Cochrane you had pleaded guilty to four charges of unlawful possession of a firearm and one charge of unlawful possession of ammunition at the commencement of the trial.
R v COCHRANE [2020] NZHC 1485 [26 June 2020]
[3] Mr French you also pleaded guilty in the District Court to a number of drugs and other charges. Those charges have been transferred to this Court for sentencing. They are possession of methamphetamine for supply, offering to supply methamphetamine, two charges of unlawful possession of a firearm, two charges of unlawful possession of ammunition, and further charges of cultivation of cannabis, selling and supplying cannabis, possession of Ethylpentylone for supply, and theft.
[4]You may all remain seated until I ask you to stand shortly.
[5] Before getting into the detail of my remarks on this sentencing, can I please begin by acknowledging the presence of everybody here today. To the family and friends of the victim in this case, Mr Sears, who was tragically taken from you at a relatively young age, there is nothing I am able to say or do that can ever replace your loss.
[6] To everyone who is in some way connected to these sad events, there is also nothing I can say or do to change that, but the sympathy of this Court is with you all.
[7] At the outset of my remarks I need to say that I have carefully read and considered a considerable amount of material which has been provided to me for this sentencing. This includes Probation Reports, a number of references that have been provided for each of you, Mr Cochrane, Mr French and Ms Sullivan, and this includes a letter from you, Ms Sullivan, to the Court for this sentencing for which I thank you.
[8] Now we have all heard today read the victim impact statement of Ms Bardsley, Mr Sears’ mother, and this has emphasised the impact that your actions have had on her and on members of her family. I have read and carefully considered both this victim impact statement from Ms Bardsley and also one from Ms Lawson, Mr Sears’ fiancé. I thank you both. They make sad and distressing reading and illustrate the emotional and other harm caused to Mr Sears’ family and friends here.
[9] The principal charges for the sentencing today are the charges of murder against you, Mr Cochrane, and you, Mr French. On these there are a number of issues the Court must consider.
[10] Section 172 of the Crimes Act provides that everyone who commits murder is liable to imprisonment for life. This provision, however, is subject to s 102 of the Sentencing Act which provides that an offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
[11] If I am to sentence you, Mr Cochrane and Mr French, to imprisonment for life, I am also required to impose a minimum period of imprisonment. Any minimum period of imprisonment may not be less than 10 years and must be the minimum term of imprisonment that I consider necessary to satisfy a number of specified purposes set out in the Sentencing Act.
Background
[12] By way of background here I start with the facts. In doing so I intend to address in turn the background facts to each group of your offending here. It is appropriate that I do so in chronological order. First, I deal with your methamphetamine related offending, Mr French. On 19 July 2018 your car, Mr French, was involved in a car accident. It was being driven by your partner and co-offender, Amy-Leigh Ward and was involved in a serious crash. She was hospitalised for some months with very severe injuries. The car was examined by the Police Serious Crash Unit and personal items were recovered to be returned to their owners. Ms Ward’s backpack in the car was seized. It was found to contain $16,410 in cash and small plastic bags containing methamphetamine at a total weight of 18.5 g, including a tick book for dealing in controlled drugs, including methamphetamine. A large number of different sized zip lock bags (including bags apparently corresponding to “quarter ounces” and “half grams”), a set of working scales, plastic spoons, plastic straws and a methamphetamine pipe were also located in a backpack. Ms Ward’s cell phone was also located at the scene and text messages on the phone showed offers to supply methamphetamine on about 30 occasions.
[13] Further, between 29 March and 19 July 2018 you, Mr French, together with Ms Ward, offered methamphetamine for supply to a number of people on the 30 occasions I have mentioned, as outlined in the text messages and tick book entries
made by you both. The total quantity offered for supply is unknown, but the known individual amounts offered appear to vary from 0.5 g to 5 gs.
[14] You have acknowledged, Mr French, that you were fully involved in the methamphetamine dealing along with your partner, Ms Ward, who has been sentenced for that.
I turn now to the murder of Luke Sears
[15]Mr Sears was fatally shot on 13 October 2018.
[16] By way of background, Mr French, you were involved in a large-scale cannabis growing operation at Charing Cross in Selwyn. You also had a firewood business, and at the time of the murder you were in the process of setting up a pet shop type business in Rolleston. You had been employing Ms Sullivan at the pet shop for nearly a year. Shortly before the murder she had introduced you to Mr Cochrane, who then undertook manual labour work for the pet shop business. According to the Crown, none of you, Mr Cochrane, Mr French or Ms Sullivan, had any gang affiliations.
[17] The deceased, Mr Sears, was a patched member of the King Cobra gang. He had known you, Mr French, for about a year. He bought cannabis from you, and he also provided labour for your firewood business.
[18] In the days leading up to the murder, Mr Sears was endeavouring to collect what he considered was a debt of about $40,000 he believed you, Mr French, owed to him or to his gang, the King Cobras. However, you believed he owed you $20,000, being the balance of a $60,000 debt for cannabis Mr Sears had earlier purchased from you.
[19] On 12 October 2018, Mr Sears and an associate went to the premises of the pet shop in an attempt to threaten you, Mr French, and to obtain payment of the claimed debt. An altercation took place and involved Mr Sears standing over you, Mr French, while he punched you. At this point, Ms Sullivan, you produced a shotgun and placed it on the table in an apparent attempt to scare off Mr Sears. There was then an argument about the weapon and a tussle over it. Mr Sears and his associate then left.
[20] Later that day, Mr Sears and his associate returned, again demanding payment of what he said was the debt due to him. Mr Sears produced a pistol, threatened you, Mr French, with it and punched you in the face. Ms Sullivan, you called the police as a result. The police arrived and escorted Mr Sears and his associate off the premises. As a result of the police being called, Mr Sears “taxed” you, Mr French, by increasing the debt he said you owed to him.
[21] Mr French, you said, too, that Mr Sears had threatened you and said you had to sign over a rural property you owned at Sheffield as part of the alleged debt repayment. Earlier that day Mr Sears and an associate had visited the Sheffield property and told your tenant, Mr French, that he would need to vacate. This caused obvious concern to the tenant and to you, Mr French, as you were contacted by the tenant as a result.
[22] The next day, 13 October 2018, you, Mr French, asked Mr Cochrane to accompany you to deliver a load of firewood and to act as a form of protection or “muscle”. This was in case the two of you were confronted by Mr Sears or other members of the King Cobra gang. The pair of you left the pet shop premises in your ute, Mr French, with you, Mr Cochrane, in the front passenger seat. Mr Cochrane, you had with you a loaded sawn-off shotgun in a bag.
[23] As you were driving along a rural road, you encountered Mr Sears driving the other way along with his fiancé, Ms Lawson. Both vehicles stopped and you, Mr French, and Mr Sears, got out and began to talk to each other on the road. A fight began between you both. Ms Lawson got out of Mr Sears’ car and tried to stop Mr Sears engaging in the fight. However, he told her to get back in the car. Mr Cochrane, you got out of the ute and walked around to confront Mr Sears with the shotgun. You pointed it at him and told him to leave Mr French alone. Mr Sears then walked towards you, Mr Cochrane, saying words to the effect of, “what are you going to do with that?”, facing the gun with his arms outstretched. You retreated, Mr Cochrane. Ms Lawson was pushed away by Mr Sears and again told to return to the car. Then, Mr French, you said, “Put the gun away” and “Let’s leave” and you, Mr Cochrane, may have said something too about leaving the scene.
[24] Mr Sears then moved to the driver’s door of the ute which was closed, though the driver’s window was largely open. At the same time, you, Mr Cochrane went to the front passenger’s door’s open window. Mr Sears leant through the driver’s door window to take the keys out of the ignition, saying “Youse are not going anywhere.” Mr Cochrane, you were still holding the shotgun, which was pointing through the car at Mr Sears, and you discharged the gun at him. Mr Sears was hit by one fatal shot in the right side of his chest. He died of his injuries shortly afterwards.
[25] Both of you, Mr French and Mr Cochrane, then got back into the utility and drove off. You went to your address, Mr French, where you gave Mr Cochrane the keys to another vehicle you had there and, Mr Cochrane, you drove off. Mr French, you spent several minutes at your home address before driving back to the scene of the shooting and contacting police.
[26] By 16 October 2018, three days later, police believed you, Mr Cochrane, were likely to be the shooter. By 18 October you had handed yourself in.
Next, I turn to the factual background relating, Mr Cochrane and Ms Sullivan, to your firearms charges.
[27] Sometime in October 2018, after the killing of Mr Sears, a search warrant was executed at your home address, Ms Sullivan. Mr Cochrane, you had also been living there with Ms Sullivan for some time. In the course of executing the search, police found four firearms together with a quantity of ammunition in a secret compartment constructed and hidden under a manhole in a bedroom wardrobe in the house. Two of the firearms were sawn-off shotguns fitted with pistol grips, a pump action shotgun and .223 calibre assault rifle.
Now, I turn, Ms Sullivan, to the facts relating to your charge of attempting to pervert the course of justice.
[28] Mr French, you had identified yourself to police as involved with the murder at an early stage. However, police remained unaware of the identity of the shooter. On the afternoon of 13 October 2018, after the murder, Ms Sullivan, you were spoken to by police. You told police that “Ali” was involved, that he had the last name “Wilson”, that he lived in Linwood, had links to Black Power and was from Blenheim.
[29] On 14 October, the next day, you were again spoken to by police. You gave a false story about only having met the man involved at a party some weeks earlier and you signed a statement giving his name as “Owl Yo”, “Elijah” or “Eleshia Wilson”. You also told police a false story about regularly picking him up to take him to work at the pet shop. This was all misleading because the man was Mr Cochrane and he was living with you at the time in your rented home.
[30] Ms Sullivan, you were again interviewed on 16 October 2018. By this time Mr Cochrane had been identified by police as the likely shooter. You stated you had known him for a few years but that you last saw him three weeks earlier. You again referred to “Owl Yo” and said this was not Mr Cochrane. You also said you did not know the whereabouts of Mr Cochrane, but he was possibly in Gisborne. That was clearly untrue.
[31] Ms Sullivan, you were interviewed again on 17 and 18 October and failed to provide any information about Mr Cochrane.
[32] But later, on 13 December 2018, Ms Sullivan, you conceded to police some of your earlier statements were, in your words, “bullshit”. You were asked about firearms which were found at your home and about your relationship with Mr Cochrane. You denied any knowledge about the firearms and of being in a relationship with Mr Cochrane. Finally, there was an intercepted phone call made by you, Ms Sullivan, from prison where you are recorded admitting to giving the police “a whole lot of bullshit” on the four occasions you spoke to them.
Lastly, I turn, Mr French, to your cannabis, theft and firearms offending and the facts relating to those charges.
[33] On the day of the murder, Mr French, you were the driver of the vehicle in which Mr Cochrane had the sawn-off shotgun in both his and your possession. That gave rise to the first charge of unlawful possession of a firearm.
[34] At some point in their investigations after Mr Sears was shot, police found in another vehicle at your address, Mr French, a second shotgun along with a number of shotgun rounds.
[35] Then, on 19 October 2018, police executed a search warrant at your address, Mr French. Police found shipping containers being used as concealed underground bunkers to grow cannabis. Thirteen mature plants between 80 cm and 100 cm in height were found in the first container. In the second, 50 mature plants between 30 cm and 70 cm were found. The plants were individually potted and placed directly under 600 watt sodium lights hanging from the roof of the containers. The lights were on a timer to run between 4 pm and 4 am each day. The plants were manually watered. A system of fans, filters and ducting was used to remove hot air from the containers. A room connecting the two containers was used as a drying and preparation room. In addition, 1399 g of dry cannabis was also found.
[36] Mr French, you had bypassed a power meter by making a connection into the power mains before the metering. This enabled you to take power for the cannabis growing operation without paying for it. This constituted the theft of $11,917.45 worth of power from Genesis Energy Ltd.
[37] Between October 2016 and 19 October 2018, evidence was provided, that you, Mr French had sold a large amount of cannabis plant to Mr Sears.
[38] Police in their investigations at your property, Mr French, also located eight snap-lock bags containing Ethylpentylone, with a total weight of 213 g.
Submissions
I now turn to consider the Crown submissions made with respect to each of these offences.
[39] Overall, Ms Currie for the Crown has submitted that for the murder of Mr Sears, Mr Cochrane and Mr French, you both should each be sentenced to life imprisonment with minimum periods of imprisonment of 12 years. And, Mr Cochrane, the Crown says you should be sentenced to a concurrent term, that means running at the same time, a concurrent term of two years and four months’ imprisonment for the firearms and ammunition charges you face. And Mr French, Ms Currie says you should be sentenced to a concurrent term of seven and a half to eight years’ imprisonment on the remaining charges you face. Finally, Ms Sullivan,
the Crown says you should receive an end sentence in the vicinity of three to three and a half years for all your offending here.
I turn first to the Crown submissions on the Murder charges.
[40] At the outset, the Crown says there is no basis on which the Court should conclude that a life sentence for you, Mr Cochrane, or you, Mr French, would be manifestly unjust in terms of s 102(1) of the Sentencing Act 2002. However, Ms Currie does confirm that the Crown accepts s 104 of the Sentencing Act, which provides for the imposition of a minimum period of imprisonment of at least 17 years in certain circumstances, is not engaged here. As such, a minimum period of imprisonment of at least 10 years, being the minimum term necessary to meet the specified sentencing purposes for murder, must be imposed, according to the Crown.1
[41] For the aggravating features of the offending leading to Mr Sears murder, Ms Currie identifies here use of a weapon, the fact that multiple offenders were involved, an agreement between you both, Mr Cochrane and Mr French, to carry the weapon in the car, and drug or gang connections relating to the homicide. She says there are no relevant mitigating features of your offending, saying that the jury clearly rejected the self-defence justification you had advanced. She says further, provocation is not an applicable mitigating factor in this case.2
[42] In justifying starting points for the 12-year minimum periods of imprisonment the Crown seeks here, Ms Currie cites the decision of Pakai v R. There, a 13-year minimum period starting point was adopted for gang confrontation involving methamphetamine and indiscriminate shooting.3 Mr Pakai shot the victim at close range in the course of a confrontation. The Court of Appeal did not disturb the starting point on the appeal.
[43] Ms Currie also notes a starting point of a 15-year minimum period was reached in a further case, Pukeroa v R. This sentence was left undisturbed on appeal.4
1 Sentencing Act 2002, s 103.
2 See R v Taueki [2005] 3 NZLR 372 (CA) at [32(a)].
3 Pakai v R [2016] NZCA 343.
4 Pukeroa v R [2013] NZCA 305.
However, the Court of Appeal allowed the appeal on the basis that a two-year discount should have been given for what it described as provocation there. That case involved a gang confrontation between Mongrel Mob and Tribesmen members. The offender, a member of the Mongrel Mob, was punched, thrown on the ground, kicked and hit multiple times with the blunt side of an axe by a group of Tribesmen. In a vehicle he then pursued two of the Tribesmen who had assaulted him. One tripped into the path of the vehicle and sustained injuries. The offender then drove at the other Tribesman, but that man managed to get away.
[44] Next, Ms Currie cites a decision of R v Pay where the offender stabbed someone, having been provoked by the victim in the street by words being said, an imitation gun being presented and a punch to the ground followed by further punching.5 The offender got back up to cross the road. The victim again punched him to the ground and the victim’s friend kicked him around the torso. At this point the offender pulled a knife out and stabbed the victim. This Court adopted a starting point of a minimum period of 10 years. The Court additionally found there was an element of provocation, though this could have no material effect in the face of the starting point falling at the mandatory minimum period.6
[45] Finally, Ms Currie refers to a decision R v Rapana, where this Court adopted a starting point of a minimum period of 10 years and six months.7 In that case the offender got into a fight with the victim at a birthday party. The victim’s brother grabbed the offender and put him in a headlock. The offender’s wife was punched in the head by the victim. The offender then pulled out a hunting knife and stabbed the victim’s brother. The victim came to his aid and the offender fatally stabbed him. The Court acknowledged there were elements of self-defence and provocation in the offending.
[46] In the present case, Ms Currie submits a minimum period starting point of 12 years is appropriate for both you, Mr Cochrane, and also you, Mr French. She says your present offending shares similarities with that which occurred in Pakai and
5 R v Pay [2020] NZHC 99.
6 Sentencing Act, s 103.
7 R v Rapana [2015] NZHC 3331
Pukeroa because the situations involve existing hostility between two groups where there has been some form of assault met with a fatally violent response. She does acknowledge there were features of those cases, however, that were more serious.
[47] She argues the present case is more serious than that which was seen in the Pay and Rapana cases because of prior animus and use of a firearm. Ms Currie highlights the deliberate choice you made, Mr Cochrane and Mr French, to carry a loaded shotgun in the vehicle in the context of the altercation with Mr Sears the previous day. She says your purpose was to use the firearm to scare or to respond if necessary. While noting the previous incident, Ms Currie suggests that it was not a significant assault and was more of a scuffle. She submits while it was you, Mr Cochrane, who pulled the trigger, Mr French, your culpability was broadly similar so a 12-year minimum period was appropriate for both of you having regard to the cases she cited.
[48] Ms Currie says the Crown is not aware of any relevant aggravating or mitigating features that would apply to either of you. Life imprisonment, as I have said, with minimum periods of imprisonment of 12 years, she says, should be imposed for you both.
I turn now to Ms Currie’s submissions relating to your firearm and ammunitions offending, Mr Cochrane.
[49] Ms Currie, on this, notes first, that sentencing for the firearm/ammunition charges will be on a concurrent basis here, if life sentences are imposed, and that this offending has no tariff but will normally attract a custodial sentence.8 Ms Currie says a starting point in the vicinity of two to two and a half years is appropriate here. Given the guilty pleas were entered on the morning of trial only, a nominal discount, she says, is all that is appropriate. And a two-month discount is suggested, indicating an end sentence of two years and four months.
8 Iti v R [2012] NZCA 492.
I now turn to Ms Currie’s submissions relating to your remaining offending, Mr French.
[50] For the Class A drug offending, Ms Currie submits, Mr French, this was large- scale offending with a clear commercial element and significant harm to the community. She notes that your role was primarily in the sourcing of the methamphetamine and also in providing Ms Ward, your partner, with the use of your vehicle for distribution. She submits there was a significant amount of methamphetamine being distributed by the pair of you as a “team”. She notes too, for example, the tick book which records the significant number of instances of supply, the large orders made to obtain the methamphetamine for supply and the large amount of cash found in Ms Ward’s possession in the car. She says the possession for supply offending, where police found 28.1 g of methamphetamine inside the vehicle, falls within the low to mid end of band two of Zhang, under the expression “supply”.9 In relation to the offering to supply charge, where 30 offers through messages were made, this also falls within the low to mid end of band two under “supply”. Given the breadth of the offending, which she says falls within the low to mid end of band two, a starting point in the vicinity of three and a half years is submitted to be appropriate. Ms Currie notes this was the starting point adopted by Judge Gilbert in the District Court when he gave a sentence indication to Ms Ward for the same offending.
[51] For the cannabis offending, Ms Currie submits it falls squarely within band three of R v Terewi because there was large scale cultivation and supply.10 She highlights the cultivation operation was concealed in an underground bunker made up of shipping containers with the use of sophisticated equipment and with the ability to produce a valuable yield. The Crown submits a starting point in the vicinity of four years is appropriate.
[52] With respect to the firearms offending, Ms Currie submits an uplift of 18 – 24 months is appropriate in light of the concerning association between the drugs cultivation and supply and the firearms.
9 Zhang v R [2019] NZCA 507.
10 R v Terewi [1999] 3 NZLR 62 (CA).
[53] Finally, for the other charges of theft and possession of the 213 gs of Ethylpentylone moderate uplifts, she says, may be appropriate. The theft in this case relates to the cultivation and involves you, Mr French, stealing power from Genesis Energy Ltd, as I have noted, valued at over $11,900. The cumulative total, and overall starting point, of nine to nine and a half years is arrived at. The Crown suggests a totality adjustment is appropriate, leading to a suggested starting point of eight to eight and a half years.
[54] Turning then to your personal circumstances, Mr French, Ms Currie says an uplift of 12 months is justified to reflect your previous convictions in 2018 for drugs and firearms offences. This brings the sentence to one of nine to nine and a half years’ imprisonment, she says.
[55] The guilty pleas were not entered at the first opportunity with the matter progressing to pre-trial callovers, but the Crown says a discount of 20 per cent is appropriate. Therefore, an end sentence of between seven years and two months and seven years and seven months, according to the Crown, is appropriate.
I turn now to your offending, Ms Sullivan.
[56] Ms Currie, in her submissions, says that this Court should take a cumulative approach when sentencing you, Ms Sullivan, as the two sets of offending are not connected. First, on the attempting to pervert the course of justice charge, Ms Currie notes the lack of a tariff case. She cites the Court of Appeal decision in Miller v R where the Court said :11
The real focus in each case of an attempt to pervert the course of justice must be on the intention behind the attempt and on its potential effect. Because of its potential effect, deterrence of others as well as denunciation of the act itself must be the overriding sentencing principles.
[57] Ms Currie also goes on to note the Court of Appeal’s comment that interference with the course of justice by assisting those who commit homicide to escape arrest calls for a deterrent sentence.12
11 Miller v R [2014] NZCA 382 at [11].
12 R v Raroa [1987] 2 NZLR 486 (CA) at 495.
[58] In the present case, Ms Currie identifies what she says are the following aggravating features:
(a)waste of police time and resources in being forced to undertake extensive enquiries to identify the shooter;
(b)premeditation;
(c)the fact the actions were continuous and ongoing; and
(d)the perverting of the course of justice was to protect someone from arrest and investigation for murder, which is very serious offending.
[59] Ms Currie submits the intention to mislead police here by you, Ms Sullivan, was deliberate and calculated and she says, on the basis of authorities she referred to, a starting point of 18 months is appropriate for the charge of attempting to pervert the course of justice.
[60] For the firearms and ammunition charges, Ms Currie identifies as aggravating features: the fact that there were four firearms involved, the modifications that were made to them (they were cut-down and had pistol grips in some cases), that ammunition was present near the firearms, and that the concealment of the firearms in bags in the trapdoor under the house was apparent.
[61]Ms Currie then cites a number of cases as being of assistance including:
(a)R v Richardson13 where the District Court adopted starting points of two years for two charges of unlawful possession of firearms, where a 12-gauge pump-action shotgun and a pistol were found. The shotgun, loaded with five rounds, was located in the boot of a vehicle being driven by the offender. And the pistol was found in the offender’s bedroom. The Court of Appeal upheld that two-year starting point.
13 R v Richardson CA450/02, 25 March 2003.
(b)She then referred to Herewini v Police14 where the District Court adopted starting points of two years and six months for charges of unlawful possession of a sawn-off shotgun, a crossbow, and three knives. The shotgun was located under the front passenger’s seat, the knives wedged between the front passenger’s seat and the centre console, and the crossbow in the back of a vehicle in which the offender was found. A third knife was found in the offender’s backpack. In that case, Moore J upheld the starting point, noting that a loaded firearm was readily accessible in the vehicle as the vehicle was being driven through a residential area.15 His Honour also viewed the fact of the shotgun being sawn-off as aggravating of the offending, because its modified state implies it was to be used for a criminal purpose.16
[62] Ms Currie submits that in the present case, Ms Sullivan, the presence of the SKS and the modifications to the shotguns increase the degree of seriousness in accordance with Moore J’s comment in Herewini.17 And in reliance on the Richardson decision, Ms Currie contends a starting point in the range of two years to two years and six months is warranted, where here there were four charges of unlawful possession of a firearm (compared to only two in Richardson) as well as a charge of unlawful possession of ammunition.
[63] Ms Currie said that no identifying or mitigating features relating to your personal circumstances, Ms Sullivan, were identified. In anticipation of a plea in mitigation on your behalf, Ms Currie says previous good character that you may have, Ms Sullivan, should only be given modest weight in cases like this which involve wilful attempts to pervert the course of justice and she referred to the decision of Churchward in support of that.18
[64] For the appropriate end sentence in your case, Ms Sullivan, Ms Currie summarises the Court should adopt starting points of 18 months for the attempt to
14 Herewini v Police [2014] NZHC 2396.
15 At [27].
16 At [27].
17 Herewini, above n 14, at [27].
18 R v Churchward CA439/05, 2 March 2006 at [15].
pervert the course of justice, and two years to two years and six months for the firearms and ammunition charges. These must be imposed cumulatively, resulting in an indicative sentence in the range of three years and six months to four years. With a totality adjustment, Ms Currie said the Court may wish to make, an end sentence should still be, in her submission, in the vicinity of three years.
[65] And finally, Ms Currie maintained that even if the indicative end sentence this Court was to reach was found to fall below two years, a sentence of home detention was not appropriate in this case in light of the need for the elevated importance of denunciation and deterrence in cases of undermining justice.
Lastly, by way of ancillary orders.
[66] The Crown seeks orders for destruction of all firearms located during the murder investigation, being the firearms and ammunition located at 775 Telegraph Road, and the firearms and ammunition located at 42 Gilberthorpes Road.
[67] It also seeks destruction of the drugs, equipment and associated paraphernalia located at 775 Telegraph Road.
[68] And, finally, the Crown seeks reparation of $11,917.45 for the power stolen from Genesis Energy Ltd.
I turn now to the submissions advanced for you, Mr Cochrane by your counsel.
[69] Briefly, Mr Rapley submits that it would be manifestly unjust to impose a minimum period of imprisonment of 10 years here. That is because, he maintains, the victim, Mr Sears, was the aggressor over the whole period in question, including over the previous days. Also, Mr Rapley says, the unplanned nature of the meeting suggests death or serious injury on 13 October was not contemplated by you, Mr Cochrane, at that stage. At worst, he says this was a reckless killing where any intention to kill was formed immediately before the act causing death, if at all. Mr Rapley contends that the act was quintessentially excessive self-defence. Thus, the overall circumstances mean this is, according to Mr Rapley, an “unusual” or “extreme” case which make it
manifestly unjust to impose a 10-year minimum period of imprisonment and a life sentence.
[70] Alternatively, Mr Rapley submits a minimum period of imprisonment, if no life sentence is to be imposed, of only the ten-year minimum, should be one considered by the Court. He says, Mr Cochrane, your culpability was low and, in the circumstances of this case with what he maintains is simply excessive self-defence, this must mean that, at the most, 10 years is the only appropriate minimum period. He distinguishes the decision in Pukeroa on the basis that you, Mr Cochrane, are not a gang member. He also draws on Pukeroa, however, for its discount of two years for the provocation present there. Mr Rapley suggests the provocation in this case was more serious and frightening and, further, that you, Mr Cochrane were justified in defending yourself, unlike in the case of Mr Pukeroa. Finally, Mr Rapley notes that regard should also be had to the pre-sentence report which notes the offending could be considered out of character, for you, Mr Cochrane, and, further, the many and important personal references put before the Court and the cultural report. He suggests these should be taken into account to ensure your sentence is an appropriate one, and, particularly with the cultural report, is as consistent as possible with tikanga Māori.
I turn now to the submissions advanced by your counsel for you, Mr French.
[71] Mr Taffs, your counsel, submits in relation to the murder charge that in the circumstances of this case, again, like that of Mr Cochrane, it would be manifestly unjust to impose a sentence of life imprisonment, and that a finite sentence which would be only 10 years is appropriate. In the alternative, he also submits a life sentence with a minimum period of imprisonment of 10 years could be considered.
[72] As to the mitigating features that justify either not imposing a life sentence or, alternatively, imposing a life sentence but only with a mandatory minimum non-parole period of 10 years, Mr Taffs highlights the following:
(a)He says that you, Mr French, were only a secondary party to this murder and are less culpable than Mr Cochrane.
(b)He says, Mr French, you went to talk to Mr Sears unarmed before the events in question. Mr Taffs says you were fearful of Mr Sears at that time as a result of an intense and frightening campaign of threats and demands by Mr Sears against you and threats and demands made on behalf of the King Cobra gang.
(c)Mr Taffs says that you, Mr French, were assaulted by Mr Sears in the course of the confrontation on the road on 13 October which led to the shooting.
(d)Mr Taffs says the evidence is that you, Mr French, objected to the presentation of the shotgun by Mr Cochrane, you told him to put it away, and then you told him that you were both leaving.
(e)And finally, Mr Taffs noted that, Mr French, you called the police about the shooting and provided significant help to them throughout.
[73] As to your methamphetamine offending, Mr French, Mr Taffs notes that your partner, Ms Ward, received a final sentence of two years and eight months down from a starting point of seven years. He suggests this is an appropriate sentence for you also. This will ensure you are sentenced on a parity basis. However, at this point, I do need to say that this fails to recognise Ms Ward’s cumulative starting point of seven years involved different offending than that for which you, Mr French, are being sentenced for here alongside the common methamphetamine offending. It must be the starting point adopted by Judge Gilbert for the common methamphetamine offending alone, as I see it, that guides your sentencing today. Moreover, Ms Ward received a substantial discount of 22 months for her mitigating personal circumstances. This makes use of the end sentence for Ms Ward unhelpful in the present case.
Finally, I turn to the submissions advanced for you, Ms Sullivan.
[74] Mr Mckenzie, your counsel, submits first that the Court should impose an end sentence of not more than six months for the attempting to pervert the course of justice offending. He says you purged your attempt to pervert the course of justice by “coming clean…” “within days”. On this, Mr Mckenzie sites the decision of Forrest
v R,19 a case of contempt of court, where the defendant had an abusive outburst from the public gallery on hearing the jury’s verdicts on his brother’s guilt. In this Court, Dunningham J was of the view, in light of the defendant’s apology in that case, that a “genuine apology would normally at least halve the sentence that might otherwise be imposed for contempt for such an outburst.”20 Mr Mckenzie suggests before me that approach should be applied in the present case.
[75] For the firearms offending, Mr Mckenzie submits this Court should sentence you, Ms Sullivan, on the basis that you were merely the occupier of the home and not the active possessor of the firearms and ammunition. He submits a sentence of between 12 and 18 months’ imprisonment is appropriate.
[76] Given this would produce a cumulative starting point of some 18 months to two years’ imprisonment, a totality adjustment of “3 months or so” is required.
[77] Mr Mckenzie then notes what he says are your mitigating personal circumstances: your cultural background, your prospects of rehabilitation and your previous good character.
[78] In light of all these personal mitigating circumstances, Mr Mckenzie says your sentence, Ms Sullivan, should be converted to one of home detention.
[79]I turn now to my analysis in this matter
Alistair Cochrane and Daniel French
Looking, first, to the charges of murder.
[80] As I have noted, where an offender is convicted of murder, both the Crimes Act and the Sentencing Act require that the offender be sentenced to life imprisonment, unless there are special circumstances which mean that sentence would be manifestly unjust.
19 Forrest v R [2016] NZHC 3198.
20 At [14].
[81] The threshold to displace the presumptive sentence of life imprisonment is high and I refer to the decision of R v Rapira.21
[82] Excessive self-defence can, in some circumstances, constitute a situation where life imprisonment might be considered to be manifestly unjust. In its decision in Daken v R22 the Court of Appeal recognised this and stated as follows:
We accept the appellant’s basic thesis, consistent with or supported by these and other law reform materials, that excessive self-defence may fall within the second limb of s 102 so that a sentence of life imprisonment would be manifestly unjust. But the question for us is one of fact and judgment – whether in this case it does so fall. And we have concluded it does not.
[83] Despite these observations and the comments of the Court of Appeal Judges in cases such as Daken, it is clear the threshold of manifest injustice has been met in very few cases. It is clear that those cases in this country where special circumstances have been seen to exist to show a life sentence would be manifestly unjust, in my view, differ markedly from the present case. I do not, therefore, consider here it would be manifestly unjust to impose a sentence of life imprisonment in your case, Mr Cochrane and Mr French. I have reached this conclusion for the following reasons:
(a)You, Mr Cochrane and Mr French, were deliberately carrying a loaded shotgun with apparent intent to use it to defend yourselves if this proved to be necessary. That was the purpose you had it.
(b)Mr Sears was unarmed. He had no knowledge whether the shotgun was loaded or what real threat you posed to him.
(c)As to the use of the weapon, you, Mr Cochrane, shot Mr Sears with a sawn-off shotgun. It was a lethal weapon.
(d)There was an agreement between you to carry the firearm in the vehicle. You, Mr French and Mr Cochrane, both had made a plan to carry the loaded shotgun in the vehicle that day. This was a decision made in light of previous events. The jury found, no doubt, that the two of you
21 R v Rapira [2003] 3 NZLR 794 (CA).
22 Daken v R [2010] NZCA 212 at [68].
had formed the common intention which ultimately resulted in the death of Mr Sears.
(e)And, lastly, as to the loss here, the offending led to the ultimate loss of Mr Sears’ life and this has caused significant and ongoing harm to family and friends of Mr Sears as the victim impact statements I have carefully read make clear.
(f)And finally, the evidence does show that linked to all of this you, Mr French, were engaged in what was a large-scale drug operation and the tension building prior to the shooting related to a large extent with respect to drug debts.
[84] This is not a case, in my view, where a life sentence, as I have said, would be manifestly unjust for either of you, Mr Cochrane or Mr French. Therefore, both of you will receive the sentence of life imprisonment.23
[85] The question then is, what minimum period of imprisonment should be imposed for each of you. Before that question is answered, it needs to be stressed at this stage that the sentences today will be ones of life imprisonment. The minimum period of imprisonment is the absolute minimum period a person sentenced to life must remain in prison before they are eligible to be considered for parole. Once that minimum period is served, it is for the Parole Board to determine whether the person is suitable for release. A release then or at any later time is by no means guaranteed, and even where a person is released on parole, they will remain subject to recall for the remainder of their life.
[86] Starting with the features of the murder here that are common to both of you, Mr Cochrane and Mr French, first, it is clear none of the specified aggravating features for murder under s 104 of the Sentencing Act 2002 are present as the Crown has accepted. Therefore, a 17-year minimum period of imprisonment is not mandated in this case and I put it to one side.
23 Sentencing Act 2002, s 103.
[87] As I have already noted, aggravating features of your offending here are that both of you formed a common intention to bring a loaded shotgun in the utility knowing it could be resorted to in a confrontation between you and Mr Sears, and that you, Mr French, asked Mr Cochrane to accompany you with the loaded shotgun, as I have said, for the purpose of protection and “muscle”. It was in those circumstances that the jury found murder was a known consequence of the prosecution of the common purpose.24 In addition, there was no suggestion that Mr Sears was armed with any kind of weapon, yet you, Mr Cochrane, chose to use the shotgun to shoot him when he was outnumbered. Finally, the association of this murder with the supply of drugs and your large-scale cannabis cultivation operation, including supply of cannabis to Mr Sears, and the alleged debts resulting, all that, Mr French, increases, in my view, the seriousness of the offence.
[88] The Crown too, in my view, is right to submit that neither provocation nor excessive self-defence are relevant mitigating features in this case. Serious provocation is required, not merely a decision taken because of being incensed at the actions of the victim.25 As for self-defence, this was rejected by the jury as a complete defence, on the basis of the evidence given at trial.26 I do not consider the actions of an unarmed Mr Sears of reaching into the vehicle to grab the keys to prevent you both leaving created a threat which was of such a degree, that discharging a shot from a sawn-off shotgun at close range at him was in any way a reasonable or proportionate response.
[89] The cases cited by the Crown are not of great assistance in determining the appropriate minimum period of imprisonment. As Ms Currie has properly acknowledged, while there are some similarities with Pakai and Pukeroa, those cases have features that make them more serious than the present, including unlawful entry of the victim’s dwelling in Pakai and firing six indiscriminate shots at an opposing group before shooting the victim in Pukeroa. It is also right to say that the present case might be seen as a little more serious (in terms of the principal offending) than
24 Crimes Act 1961, s 66(2).
25 Taueki, above n 2, at [32(a)].
26 See Sentencing Act, s 24(1)(a).
that which prevailed in Pay and Rapana, where there was no prior animus between the parties and where the fatal violence was more spontaneous than contemplated.
[90] The Crown has submitted, as we have heard, a 12-year minimum period of imprisonment is appropriate for both of you, Mr Cochrane and Mr French. However, I consider there is sufficient difference in your culpability to impose different minimum periods. First, it was you, Mr Cochrane, who made the fatal decision to shoot Mr Sears. Whereas your liability, Mr French, is only established on the basis that you knew murder was a probable consequence of the prosecution of the common purpose. Moreover, you, Mr French, handed yourself in and generally co-operated with the police soon after the shooting. Mr Cochrane, you, however, avoided police for five days before handing yourself in. All these, and other differences apparent here, are sufficient, in my view, to warrant different minimum periods of imprisonment.
[91] Mr Cochrane, you have provided many commendable references from your family and others who know you well. I have taken these into account but, in all the circumstances here and having regard to all the cases discussed before me, I consider it appropriate in your case, Mr Cochrane, to impose a minimum period of imprisonment of 11 years.
[92] In your case, Mr French, again having regard to the cases, I consider it appropriate to distinguish your position somewhat from that of Mr Cochrane and to impose a minimum period of imprisonment of 10 years.
I turn now to the firearms and ammunition charges, Mr Cochrane.
[93] In the present case, the weapons found were multiple and dangerous – an assault rifle, a pump-action shotgun, and two cut-down, pistol grip shotguns. Also, some of these, in the case of the cut-down/pistol grip shotguns, were modified.27 A starting point of two years is appropriate for the firearms and ammunition charges. A discount of two months to reflect your guilty pleas, Mr Cochrane, being entered on the
27 See Herewini, above n 14, at [27].
morning of trial is appropriate. Thus, a concurrent sentence of one year and 10 months will be imposed on these charges.
I turn now, Mr French to your drugs, firearms and ammunitions charges.
[94] First, in terms of your methamphetamine offending, Mr French, both the possession for supply quantity of 28.1 g and the offering to supply consisting of 30 offers of between 0.5 g to 5 g, fall into the low to mid end of band two of Zhang under “supply”, given the nature of the operation.28 You played a key role in the offending, Mr French, by sourcing the methamphetamine for supply and by providing the vehicle for your co-defendant, Ms Ward, to use to distribute the drug, and you called yourselves a “team”. Ms Ward, on those charges, accepted the sentence indication, as we have said, where a starting point was adopted for the methamphetamine offending of three and a half years’ imprisonment. In those circumstances, I consider it appropriate a starting point of three years and six months is also adopted here.
[95] Next, your cannabis offending, Mr French, falls squarely into category 3 of Terewi. This was a sophisticated and large-scale growing operation. Based on the information you, Mr French, gave to police as to the quantity you typically grew and the value you sold it for, the value to you of one growing cycle was between $33,600 and $39,200. Given the clear commerciality of the offending, a starting point of four years is appropriate, consistent with the Terewi categorisation.
[96] The presence of a shotgun and ammunition at your address, Mr French, is a concerning feature linked as it is to your large-scale cannabis operation. An uplift of 18 months is required.
[97] An uplift of six months separately for the theft and the possession of Ethylpentylone is also appropriate.
[98] The cumulative starting point would then be around 10 years for all of your additional offending, Mr French. An adjustment for totality is necessary. As a result, a starting point of eight years, in my view, would be appropriate.
28 R v Zhang, above n 9.
[99] Next, a 12-month uplift for your previous convictions, Mr French, for firearm and drug charges will be made, indicating an adjusted sentence of nine years.
[100] Finally, a 22-month (which is about 20 per cent) discount for your guilty pleas, Mr French, will be made. This brings the end sentence to one of seven years and two months.
Tereina Sullivan
I turn now to your offending Ms Sullivan.
[101] The Court must take an approach consistent with the heightened importance of the need for deterrence and denunciation in cases such as the one you face here of attempting to pervert the course of justice, particularly in a homicide investigation.29 Your attempt in this case, Ms Sullivan, was planned, and was continuous and ongoing conduct, not merely a one-off misleading statement to police. A starting point of 18 months for this offending is appropriate, having regard to the cases cited by the Crown.
[102] For the firearms charges, these are serious given, too, your connection to one or more of the guns through purchasing them earlier, Ms Sullivan. A starting point of two years is appropriate for the reasons outlined in relation to Mr Cochrane’s sentence for this offending. Thus, an overall starting point of three years and six months is reached. A totality adjustment to bring that to three years would be appropriate here.
[103] At this point I need to note that I have carefully read and had the benefit of a pre-sentence report and a detailed s 27 cultural report prepared by Dr Jarrod Gilbert for you, Ms Sullivan. It is evident from these that, Ms Sullivan, your upbringing was marked by poverty, an unstable homelife and by being a direct witness to domestic violence. Despite the trauma and instability of those early years, until now, Ms Sullivan, you have avoided any criminal record. I also accept that despite the negative influences prevalent in your early life, Ms Sullivan, for the most part you have, through your own endeavours, sought a better life for yourself. You have also
29 Raroa, above n 12, at 495.
assumed a protective role in relation to those close to you, most noticeably your protection of younger siblings from witnessing the domestic violence and you also assumed a parental role to keep the family together at a young age when your father was at a separate address on home detention and your mother was in prison.
[104] A discount, in my view, is appropriate to take account of your previous good character, Ms Sullivan, and to reflect your challenging upbringing which you have largely been able to rise above. A discount of six months will apply. This brings your end sentence to one of two years and six months. While not within the range of conversion to home detention, which in any event in my view is inappropriate here given your offending, a two years and six months’ prison term means, Ms Sullivan, you may be eligible to be considered for parole after suffering a lesser period. Hopefully, this will ensure rehabilitation, which appears to be a highly realistic prospect, is given its best chance.
[105]Mr Cochrane, Mr French and Ms Sullivan, would you please stand.
Sentence of Alistair Cochrane
[106] Alistair Cochrane, for the murder of Luke Sears you are sentenced to life imprisonment with a minimum period of imprisonment of 11 years.
[107] This being your first strike offence for a serious violent offence, I am now required to give you your Stage-1 warning under the three strikes regime.30 Where on any future occasion, Mr Cochrane, you commit one or more serious violent offences other than murder, you will be required (absent manifest injustice) to serve the full term of imprisonment without being eligible for parole.31 If you commit murder, you will be sentenced to life and required to serve that sentence without being eligible for parole (again, absent manifest injustice).32 You and your counsel will receive a written notice of this warning following this hearing.
30 Sentencing Act, s 86B.
31 Sentencing Act, s 86C.
32 Sentencing Act, s 86E.
[108] Mr Cochrane, on the remaining charges, four of unlawful possession of firearms and one of unlawful possession of ammunition, you are sentenced to one year and 10 months’ imprisonment, to be served concurrently.
Daniel French
[109] Daniel French, for the murder of Luke Sears, you are sentenced to life imprisonment with a minimum period of imprisonment of 10 years.
[110] This being your first strike offence, Mr French, for a serious violent offence, I am also now required to give you your Stage-1 warning under the three strikes regime.33 Where on any future occasion, Mr French, you commit one or more serious violent offences other than murder, you will be required (absent manifest injustice) to serve the full term of imprisonment without being eligible for parole.34 If you commit murder, you will be sentenced to life and required to serve that sentence without being eligible for parole (again, absent manifest injustice).35 You and your counsel will receive a written notice of this warning following this hearing.
[111] Then, for the drugs charges, the methamphetamine, cannabis and related charges, the firearms and theft charges, Mr French, you are sentenced to seven years and two months’ imprisonment, to be served concurrently.
Tereina Sullivan
[112] Tereina Sullivan, on the charge of wilfully attempting to pervert the course of justice and the remaining firearms and ammunition charges, you are sentenced to two years six months’ imprisonment.
Ancillary orders
[113]Ancillary orders here are sought by the Crown. I now make orders for:
33 Sentencing Act, s 86B.
34 Sentencing Act, s 86C.
35 Sentencing Act, s 86E.
(a)The destruction of all firearms located during the murder investigation, being the firearms and ammunition located at 775 Telegraph Road and the firearms and ammunition located at 42 Gilberthorpes Road; and
(b)I make orders for the destruction of drugs, equipment and associated paraphernalia located at 775 Telegraph Road.
(c)I also make an order against you, Daniel French for reparation for stolen power in the sum of $11,917.45 which is payable to Genesis Energy.
[114]Mr Cochrane, Mr French and Ms Sullivan, would you please stand down.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Barristers:
James Rapley QC, Barrister, Christchurch Kerry Cook, Barrister, Christchurch Douglas Taffs, Barrister, Westport
Andrew McKenzie, Barrister, Christchurch David Goldwater, Barrister, Christchurch
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