R v Cotter HC Wanganui CRI 2009-083-2241

[2010] NZHC 786

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-083-0002241

THE QUEEN

v

JOSEPH EDWIN COTTER CHAD IAN MCRAE-TWEEDDALE KELLY MARGARET TYACKE

CRI-2009-083-0002894

THE QUEEN

v

CHAD IAN MCRAE-TWEEDDALE

Charges:         1.         Wounds with intent to cause gbh (Cotter)

2.        Wounds with reckless disregard (McRae-Tweeddale/Tyacke)

3.        Assaults with intent to injure (manually)

4.        Assaults with intent to injure (manually)

5.        Wounds with intent to cause gbh (oth wpn) (McRae-Tweeddale)

6.        Wounds with intent to injure (oth wpn) (McRae-Tweeddale)

Plea:               Guilty

R V COTTER AND ORS HC WANG CRI-2009-083-0002241  21 May 2010

Counsel:         H C Mallalieu for Crown

M J Bullock for Accused Cotter
R B Crowley for Accused Mcrae-Tweeddale
C P Brosnahan for Accused Tyacke

Sentence:       21 May 2010

1.        Six years imprisonment (Cotter)

2.One year imprisonment (McRae-Tweeddale) Nine months home detention (Tyacke)

3.        Nine months imprisonment (concurrent) (Cotter)

Six months imprisonment(concurrent) (McRae-Tweeddale) Nine months home detention (concurrent) (Tyacke)

4.Nine months imprisonment (concurrent) (Cotter) Six months (concurrent) (McRae-Tweeddale)

Nine months home detention (concurrent) (Tyacke)

5.        Two years imprisonment (concurrent) (McRae/Tweeddale)

SENTENCING NOTES OF MACKENZIE J

[1]      Joseph  Edwin  Cotter,  Chad  Ian  McRae-Tweeddale  and  Kelly  Margaret Tyacke you appear for sentence on a number of charges arising out of two incidents in August 2009.

[2]      In August 2009 you were all living at an address in Rimu Street Wanganui. You  Mr Cotter  and  you  Mr McRae-Tweeddale  have  some  association  with  the Wanganui chapter of the Hells Angels criminal gang.   You Ms Tyacke are the de facto partner of Mr McRae-Tweeddale.

[3]      In the evening of 15 August you Ms Tyacke and another woman became involved in a verbal altercation outside an address in Harper Street where a party was taking place.  You returned to your home and a short time later all three of you went to the Harper Street address.   You went in without invitation or authority.   You behaved confrontationally and aggressively, looking for the persons involved in the verbal altercation.   You Mr Cotter were carrying a pair of knuckle dusters.   You approached a group of party goers and punched the first victim in the head causing him to fall to the ground.  He received a broken nose, a cut to the bridge of his nose requiring three stitches, and a cut to the bottom of his nose which required a further

two stitches.   You then struck the second victim on the head with a closed fist causing him to fall to the ground unconscious.  You continued to punch and kick him several times around the head while he was on the ground.  You then confronted a third victim, a young woman.  You acted aggressively towards her and then punched her on the side of the head with a closed fist causing her to fall to the ground unconscious.  The three of you left the address once police had been called.  You each  face  three  charges  arising  from  that  incident.    Mr Cotter  as  the  principal offender and the others as party to that offending.

[4]      The second incident occurred on 28 August.   All three of you were again together, this time at an address in London Street Wanganui where a group of about nine persons, including yourselves, were socialising.   You were not known to the victim who was also a visitor to the address.   A verbal altercation arose which developed  into  a  fight.    You  Mr McRae-Tweeddale  intervened  in  that  fight  by striking the victim several times about the head before punching him at least once in the face.  The victim was rendered unconscious by the blow to his face.  He suffered a fractured nose, and four chipped teeth which had to be capped.   He received swelling to his face and a small cut under his left eye and general soreness.   He suffered  from  disorientation  and  headaches  from  concussion.    You,  Mr McRae- Tweeddale, face one charge arising from that incident.  The others do not face any charges from that.

[5]      An aggravating feature of this offending is the element of intimidation and confrontation which is inherent in both incidents, particularly the first.  Your victims are fearful of retaliation to an extent which had to be addressed by giving consideration to anonymity orders if a trial had been necessary.

[6]      I deal first with you Mr Cotter.   You have pleaded guilty to one count of wounding with intent to cause grievous bodily harm, with respect to the first victim in the 15 August incident, and two counts of assault with intent to injury, in respect of the second and third victims of that incident.   You have sought to justify the offending by claiming that the first victim had thrown a bottle at you.  With respect to the third victim, who was only 16 years old, you said that you did not realise that she was that age but thought she was older.  You said that the situation happened

really fast and you did not at any stage consider the consequences of your actions. You have expressed regret for your situation, rather than any genuine remorse for the victims.

[7]      Your have been in a relationship for six years and have two sons from that relationship as well as a child of your partner.  You also have two sons of a previous relationship.   Your partner remains supportive of you and I have read the letter which she has submitted.  You also have family support which is evident from the letter from your mother.  You are supported by your mother and younger brother and sister but have never met your father.  You have been employed previously but were unemployed for a spell prior to your remand in custody.  You deny being a member of the Hells Angel gang but acknowledge contact with them.  There are protection orders in place against you in relation to both your current partner and a former partner due to previous incidences of domestic violence.   You have an extensive criminal history spanning 12 years.  You have ten convictions for common assault, five for possession of an offensive weapon, and five for wilful damage, together with a smattering of dishonesty and driving related offences and breaches of community based sentences.   The factors identified as contributing to the offending are a propensity to use violence, an attitude supportive of offending behaviour, an unhelpful lifestyle balance and criminal associates.  You recognise your propensity for  violence  and  say that  you  want  to  try and  fix  it.    You  are  still  subject  to community work requirements amounting to 145 hours.  You are assessed as being at high risk of reoffending particularly because of your ongoing affiliation with a criminal gang.  You also have over $14,000 in outstanding fines.  You have written a letter expressing remorse towards your victims and I have taken that into account.  In that you recognise that your offending has harmed not only your victims but also your family and a wider community.   You claim to have a motivation and commitment to change the pattern of your offending and it is indeed to be hoped that you can, at this stage, make an effort to turn your life around.

[8]      Before you pleaded I gave an indication of the likely sentence.  I intend to follow that indication.  I take as the lead charge the count of wounding with intent to cause grievous bodily harm.  I need to fix the level of that offending within the bands

in R v Taueki.[1]    There are a number of aggravating factors including the use of the knuckle duster as a weapon.  There is a degree of premeditation in that you three had all gone to the address spoiling for a fight.   There was a considerable degree of violence and moderately serious injury.   The offending involved an attack to the head.  There is also the fact that you had gone uninvited to the dwelling house where the offending took place.

[1] R v Taueki [2005] NZLR 372.

[9]      I have indicated that I place the offending in band 2 of R v Taueki.  It falls towards the lower end of that band.   Counsel for the Crown submits that, on that basis, an appropriate starting point would be in the range of five to seven years. Your counsel submits that it is in the five to six year range.  Having reflected further on the precise placing subsequent to giving the indication and in light of all the material,  I adopt a starting point of six years for that offending.

[10]     There must be an uplift to reflect the other two offences.  I had indicated that an uplift would be required in the one to two year range perhaps towards the lower end of that range.  Again, having reflected further in the light of the full material now available, I fix an uplift of one year to reflect that offending.

[11]     As to personal factors, your previous record is such that an uplift of six months is appropriate.   Your counsel submits that your remorse would justify a reduction which would cancel that out or at least reduce it.  I have reflected on that. I consider that this is serious offending.  It follows a serious history of violence.  I consider that more is necessary by way of remorse and a positive indication of a willingness to make the effort to turn your life around before a reduction would be justified.  Accordingly, I adjust the uplift of six months by leaving that intact.  The only other factor requiring reduction then is the discount for the guilty pleas.  Prior to that I would have a sentence of seven and a half years to reflect the starting point and the uplifts I have indicated.

[12]     That leaves a total sentence, prior to the discount for the guilty plea, of seven and a half years.

[13]     Your guilty plea came at a point where a discount in the range of 10 to

20 per cent is appropriate under the guidelines in R v Hessell.[2]    The stage at which the  plea  was  entered  would,  by  itself,  suggest  a  discount  somewhat  less  than

[2] R v Hessell [2009] NZCA 450

20 per cent.  However, an important consideration here is that you have spared your victims the ordeal of a trial.   They would have approached trial with real concern because of a fear of retribution.  That has influenced me to adopt a discount at the top of the range.   That  is not to reward  you  for your gang connections or for intimidation.  I have taken those factors into account as features in fixing the starting point for the lead offence. I have indicated that I would, in the circumstances, adopt a discount at 20 per cent.    That gives a discount of 18 months from the seven and a half years which I have identified.

[14]     You are accordingly sentenced to six years on the lead charge and to nine months on each of the other two charges.   All of those terms are to be served concurrently.

[15]   The probation officer has suggested the cancellation of the outstanding community work hours may be considered appropriate.   I think that that is appropriate.  I treat that as an application and those hours are cancelled.

[16]     Mr McRae-Tweeddale I come now to you.  You are to be sentenced on one count of wounding with reckless disregard and two counts of assault with intent to injure.  Those counts reflect your participation as a party in Mr Cotter’s offending on

15 August.  You are also to be sentenced on one count of wounding with intent to injure in respect of the incident on 28 August.  I have also given to you a sentence indication which I intend to follow.  Your personal circumstances are that you were raised predominantly by your mother but moved frequently among other relatives during your childhood.   You had been working as a shepherd until you were imprisoned following a motor vehicle accident in 2007.  Since being released from jail you have not been in regular employment.  You have family connections with the Hells Angels gang but you deny being affiliated to them.  You have expressed regret for your actions.  You have a limited previous history.  You have no directly violent convictions.   You served a prison term following convictions for reckless

driving offences arising from a motor vehicle accident in 2007 which involved the death of one victim and serious injury, subsequently causing death, to a second victim.   Your other convictions are minimal and unrelated.   Factors assessed as contributing to your offending are a propensity for violence, alcohol use, and the pro-criminal influence of associates.  You claim that you are not a violent person and that this offending had nothing to do with alcohol but you did accept that you had been associating with the wrong crowd.  You are assessed at having a high risk of re- offending which is likely to remain high if you continue with current associates. Your counsel has submitted on your behalf that you have the potential to turn your life around;  that a significant issue with your offending is your associations;  that things go bad when you are not working and associated with others.   I think that there is force in the submission that you do have the potential to turn your life around.   You should take lessons from this and mend your ways and move on.   I think that you have the capacity to do that.

[17]     The Crown had submitted that the appropriate starting point for the lead offence should be at least 18 months.  I consider that that is the appropriate starting point.  An uplift to reflect the involvement in the 15 August offending is required to reflect your supportive participation in that incident.  I consider that an uplift of one year is appropriate.  That gives a starting point for the totality of the offending of two and a half years.  Your previous record is not such as to require any uplift.  The only personal factor requiring a discount is the guilty plea.  Consistent with the approach which I have adopted for Mr Cotter, I allow a discount of 20 per cent, or six months. That leads to an end sentence of two years.  That term of imprisonment is such that a sentence of home detention would be a possibility.   An appendix has not been requested.  I do not consider that a sentence of home detention would be appropriate having regard to the nature of your offending.  Your offending in the second incident is an important factor in that decision.

[18]     On  the  count  of  wounding  with  intent  to  injure  on  28 August  you  are sentenced to two years imprisonment.   On the wounding with reckless disregard charge you are sentenced to one year.  On each of the assault with intent to injure charges  you are sentenced to six months.   All of those terms are to be served concurrently.

[19]     Turning to you Ms Tyacke, you face one count of wounding with intent to injure and two counts of assault with intent to injure.  All three counts reflect your involvement in Mr Cotter’s offending on 15 August.  You are 18 years of age and currently  residing   with   Mr Chad McRae-Tweeddale’s   parents.      Your   parents separated when you were very young and your care has alternated between your mother and your father over the years.  I have the benefit of a letter from your father which explains much of the background and is helpful.   You say that you have a close relationship with all your family.  Your schooling ended at age 13 because of truancy.  You have worked intermittently.  Since you moved to Wanganui you have been undertaking further education and say that you have a goal to do an early childhood course.   Your supervisor in that placement has written a letter which speaks well of you and is encouraging that you too may be able to turn your life around and make better of it.   Your criminal history includes two excess breath alcohol offences, two driving while disqualified offences and two breaches of community work.  You are assessed at low risk of re-offending though concern is expressed at your recent convictions.  A disturbing feature of your offending is that it appears to coincide with the start of your relationship with Mr McRae-Tweeddale.

[20]     The offending is such that any sentence of imprisonment which might be considered would be within the range where home detention is available.   Both counsel note the decision in R v Gledhill as supporting the proposition that home detention may be appropriate for this type of offending.[3]    I see your case as being quite similar to that case in several respects.  A home detention appendix has been completed.  The address proposed is suitable and the occupants of that address are considered  to  be  suitable.    The  possible  continued  association  with  Mr McRae- Tweeddale is of some concern to me.  I do not elevate that to a level which would

[3] R v Gledhill /2009 [2009] NZCA 415.

make home detention inappropriate.   Indeed, I think that there may be some hope that your potential good influence on him may outweigh his potential bad influence on you.  You both need to take the opportunity to attempt to turn your life around. You had breached a previous community work sentence at the start but then completed that without further incident.  You are currently doing community work, and as I have indicated the kindergarten which you are doing that work are very

satisfied with your work and have encouraged you to enrol in the early childhood course.   That is to be encouraged  and rehabilitation is an important sentencing purpose in your case.  I consider that home detention is appropriate.

[21]     Before  allowance  for  your  guilty  plea,  I  would  regard  the  maximum  of

12 months as appropriate.  You are entitled to a discount for your guilty plea.  Your counsel submits that you should receive credit for a first opportunity guilty plea once the lead charge was reduced from wounding with intent to cause grievous bodily harm.  That was done just before the plea was entered.  The Crown submits that a full discount is not appropriate.  I do not consider that the circumstances justify a full one third discount.   The first reasonable opportunity principle could apply only to one of the charges that you faced, albeit the most serious.  There was not an earlier indication of willingness to plead to the lesser charge.  I must also consider relativity with your co-offenders, particularly Mr McRae-Tweeddale who also pleaded guilty to one reduced charge.   I consider that a slightly higher discount for you is appropriate.  He faced a count in respect of the second incident for which no first opportunity discount could have been sought.   I allow, in your case, a 25 per cent discount, or three months.

[22]     You are sentenced to nine months home detention on each count.  I impose the following conditions:

a)       To travel directly from the Wanganui District Court to 105 Waimutu Road, Marton and await the arrival of the probation officer and a representative from the monitoring company.

b)To reside at 105 Waimutu Road, Marton for the duration of home detention.

c)       To attend any counselling and/or programme (directed at reducing your risk of re-offending and your rehabilitation and re-integration into the community), as may be directed by the probation officer.

d)Not to consume or possess alcohol and/or illicit drugs for the duration of home detention.

e)        To attend any employment/training with the prior approval of the supervising probation officer.

f)        Not   to   communicate   or   associate   with   any  specified   persons, designated in writing by the probation officer.

[23]     That is all you may all stand down.

“A D MacKenzie J”