R v Crawford
[2022] NZHC 1588
•5 July 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-092-11754
[2022] NZHC 1588
THE QUEEN v
MICHAEL CRAWFORD
Hearing: 5 July 2022 Appearances:
J E Bragg and J R W Barley for the Crown Q Duff and W N Rhodes for the defendant
Judgment:
5 July 2022
SENTENCING NOTES OF POWELL J
R v CRAWFORD [2022] NZHC 1588 [5 July 2022]
[1] Michael Crawford you come up for sentence today having pleaded guilty to four charges of intentional damage,1 one charge of aggravated burglary,2 two charges of unlawful possession of ammunition or explosives,3 one representative charge of unlawful possession of a prohibited firearm,4 and one charge of participating in an organised criminal group.5
The offending
[2] The charges for which you have now pleaded guilty took place between 16 November 2020 and 2 December 2020. They all relate to a series of linked firearms incidents in Otara. Four of these incidents involved drive-by shootings while a fifth involved an armed home invasion. You were charged alongside 7 other defendants, all also members or associates of the Killer Beez gang.
[3] Your role in these offences was extensive, being directly involved in the preparation and planning of what occurred. The offending appears to have been intended to be retaliation after your Killer Beez patch and motorcycle were taken by members of the Tribesmen gang.
[4] Your involvement in the offending began on 16 November 2020. You and your gang associates arrived in a convoy of seven vehicles to an address in Johnstone’s Road in Otara. You were armed with firearms. Upon arrival, you were met by members of the Tribesmen gang, also armed with firearms, and you began firing at each other. Several members of the public were forced to take evasive action to get to safety. The shooting caused damage to no less than nine addresses and it was simply good luck that no one was injured or killed.
[5] You subsequently took a lead role in planning the shootings that are subject to the remaining intentional damage charges. It is clear from the outset that firearms
1 Crimes Act 1961, ss 66 and 269(1). Maximum penalty 10 years’ imprisonment.
2 Crimes Act 1961, ss 66 and 232(1)(a). Maximum penalty 14 years’ imprisonment.
3 Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment or a fine not exceeding
$5000.
4 Arms Act 1983, s 50A. Maximum penalty five years’ imprisonment
5 Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
were intended to be used and gang associates travelled from both Picton and Hamilton to your address in South Auckland in order to participate.
[6] On 20 November 2020, three convoys of vehicles departed your home with you personally leading the second convoy. Upon arrival at the address of a Tribesmen member on Otara Road, you got out of the car and fired multiple shots at the address. Immediately after this, you led the convoy to another Otara address on Pearl Baker Drive. Members of your convoy attempted to forcibly gain entry, before commencing fire at the house, which was at the time occupied by a woman and her two children.
[7] In the meantime, the first convey undertook a further shooting at Capstick Place, Otara, which gives rise to the fourth and final intentional damage charge. At the same time the members of the third convoy, also carrying firearms, unlawfully entered a house on Blampied Road, Otara, which has resulted in the aggravated burglary charge. They remained in the property for a few minutes, before leaving, albeit without causing any damage.
[8] On 22 November 2020 Police executed a search warrant of your home address, locating 71 assorted gauge shotgun cartridges and two .22 calibre rounds which has led to the first of the possession of ammunition charges. A few days later, on 2 December 2020 you were observed by Police removing a large object rolled in a blanket from an associate’s address, before going to another address and securing the object in the garage of the second property. A short time later Police attended this address and located three assault rifles, that were wrapped up in the blanket, which resulted in the possession of prohibited firearms charge. Also located was a stick of powder gel (explosive), a measure of gun-powder fuse, and an assortment of ammunition which has led to the second and final possession of ammunition charge.
Approach to sentencing
[9] Sentencing you today is a two-stage process.6 First, I must fix the starting point that this type of offending would attract. This involves identifying the aggravating and mitigating features of your offending, the matters that make your offending more or less serious, which enables me to arrive at an appropriate term of imprisonment. I must decide whether this starting point should be adjusted for totality considerations so that the overall offending is relative to the term of imprisonment. I must then at the second stage take into account any of your personal circumstances that are relevant, including your guilty pleas. I must determine whether the starting point should be adjusted through uplifts or discounts as a result of those personal circumstances to reach an end sentence.
[10] After the end sentence is determined I will then consider whether to impose a minimum period of imprisonment beyond your normal eligibility for parole which, as you are aware, normally arises after one third of the term of imprisonment has been served
[11] In sentencing you today, I must have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act. This Court must impose a sentence that holds you accountable for the harm that you have done, promotes in you a sense of responsibility for and acknowledgement of that harm, denounces your conduct, deters you and others from committing similar offences and protects the community from you as an offender. I must further consider the gravity of your offending and your degree of culpability, and the seriousness of that offending. In addition, and importantly your sentence must be consistent with other similar cases and I should impose the least restrictive sentence appropriate in the circumstances.
Setting the starting point
[12] In calculating the starting point, and as you have heard this morning, I have taken issue with counsel that the lead offending is represented by the intentional damage charges together with the participation in the organised criminal group. As
6 Moses v R [2020] NZCA 296.
you have heard Crown counsel has submitted a starting point in the region of eight years' imprisonment for both the intentional damage charges and the participation in organised criminal group; while your counsel, Mr Duff, has submitted that a starting point of seven years’ imprisonment would be appropriate for those charges before considering uplifts.
[13] Instead, as you have heard, I consider the lead charges are the three shootings that are the subject of the intentional damage charges in which you directly participated, while the participation of the organised criminal group and the other charges are matters that need to be considered in relation to whether those starting points need to be uplifted.
[14] In setting a starting point for the intentional damage charges, I note that there is no guideline judgment, but as both counsel have submitted is appropriate, I have considered the sentences imposed in a range of broadly similar cases. In particular I found the cases of R v Tamati,7 R v Jolley,8 R v Taipeti9 and R v Waihape10 discussed
7 R v Tamati [2012] NZHC 221: In this case a dispute arose between gang members, resulting in Mr Tamati’s patch being removed. Mr Tamati and a number of co-offenders made preparations for retaliation and assembled a considerable body of men, with gang associates travelling from around the country. A gunfight ensued where at least 25 shots were fired, with two men being injured, although Mr Tamati was not convicted in relation to the wounding. Mr Tamati was accepted by the Court to be the “directing mind” of the events that occurred, initiating the assembly of men and the presence of firearms. Having regard to this key role, a starting point of six and a half years’ imprisonment was adopted.
8 R v Jolley [2018] NZHC 93: In this case there was an altercation involving opposing gang members, where a number of gang members and associates armed with weapons and firearms descended on an address connected to the opposing gang. For three of the co-offenders, participating in an organised criminal group was the most serious charge faced and was therefore the lead charge. Katz J accepted that there was no evidence that the three defendants were involved in the planning or organisation of the attack, and therefore were essentially treated as foot soldiers in the attack, with a starting point of three years and six-months’ imprisonment adopted. This was the same as the starting point adopted Te Kahu v R [2012] NZCA 473, where the appellants were also deemed by the Court of Appeal to be “foot soldiers”.
9 R v Taipeti [2018] NZHC 1482: The offending in this case arose from series of inter-connected incidents involving rising gang tensions, resulting in the organised attack against persons participating in a funeral procession, which was considered to be the biggest aggravating factor. Furthermore, there was a collective intention to use firearms, and the attack occurred knowing that the targeted group would be protected by police officers, placing the officers at risk of physical harm. A starting point of 6 years’ imprisonment was adopted for the charge of participating in an organised criminal group with a one-year uplift for discharge of a firearm against a police officer and discharge of a firearm with intent to injure. Mr Crawford played a more active role in the planning than Mr Taipeti, however the offending here is absent the serious aggravating feature of targeting a funeral procession and the decision to discharge firearms at police officers.
10 R v Waihape [2012] NZHC 198: This case involved the same events a R v Tamati, although concerned the sentencing of the defendants on the opposing side of the dispute. Mackenzie J adopted a starting point of six years’ imprisonment, which reflected the total culpability involved in the participation in a criminal group charge, and three possession of an unlawful firearm
by counsel in their submissions, helpful in comparing how serious your offending was compared to other similar cases, and summaries of these cases will be found in the written version of these notes. At the same time none of these cases were totally comparable to the charges you are being sentenced for, and I note that in a number of cases the participation in an organised criminal group charge was the lead charge because of an absence of any other serious charge that properly reflected the offending.
That is not the case here, given the intentional damage charges.11
[15] Turning then to the intentional damage charges it is clear there are no mitigating factors relating to this offending. However, as both counsel are agreed, there are a number of aggravating factors, specifically:
(a)the brazen and reckless use of firearms in multiple suburban streets;
(b)the shootings occurred in broad daylight with an absolute disregard for the public who were in the community at the time;
(c)the shooting occurred on multiple days and at multiple locations, ultimately damaging more than nine properties and a vehicle; and
(d)the concentration of weapons and gang associates confirms a high degree of planning and premeditation.
[16] As I have noted it is also not disputed that you had a significant role in the planning and execution of the shootings that form the basis of the intentional damage charges.
[17] Taking these various matters together I am satisfied that a starting point on the intentional damage charges in which you were directly involved is six years’ imprisonment.
charges. The defendants were close to that of principal protagonists, both knowingly and actively participating in the planning for the anticipated retaliation, although were not themselves the leader.
11 Tamati, above n 7, at [11] and Taipeti, above n 9. In Taipeti, although the most serious charge was using a firearm against a law enforcement officer it was not the lead charge because the shooting in that case was not directed towards police but rather by Black Power against the Mongrel Mob.
Uplift for remaining charges and totality
[18] It is now necessary to consider whether the starting point should be increased (or uplifted) to take into account the other charges that you have pleaded guilty to. Having considered the other charges I conclude that a range of uplifts are warranted
[19] First it is appropriate to uplift to recognise your participation in an organised criminal group. Specifically, and as Mr Duff accepts, you are a member of the Killer Beez gang and all the offending has been carried out within that context and in the context of inter-gang violence. As counsel have submitted with regard to starting point, had the charge against you been limited to participation in an organised criminal group the starting point would have been similar to that for the lead offending and given that position I conclude that an uplift of two years is appropriate.
[20] Likewise, I accept that there should be an uplift to take into account the remaining intentional damage charge and the aggravated burglary charge which occurred at the same time as the other intentional damage charges. As with the other intentional damage charges you played a key role in organising this offending and have pleaded guilty as a party, although you did not participate personally in the offending as it unfolded. In such cases the courts have recognised that a reduced starting point is appropriate.12
[21] The Crown submitted that on a standalone basis,13 the aggravated burglary charge itself could have attracted a starting point of around four and a half years' imprisonment, which would recognise aggravating factors including the fact that there were multiple offenders, entry into a private dwelling, use of firearms and a high degree of premeditation and planning.14
12 See Walker-Dahlburg v R [2020] NZCA 661. At [41] the Court of Appeal adjusted the starting point to three years and six months’ imprisonment for the appellant, instead of four years and six months’, to reflect the much greater culpability of the principal offender of the aggravated burglary. In that case, Ms Walker-Dahlberg travelled with the principal offender to the location where the burglary occurred, and yelled abuse at the victims. The burglary involved the discharge of a firearm. I note that in Mr Crawford’s case he was not present at the property where the burglary occurred, and no firearm was discharged.
13 While there is no tariff case for aggravated burglary, the Court of Appeal has held that sentencing for aggravated burglary can proceed by way of analogy to R v Mako [2000] 2 NZLR 170 (CA) the tariff case for aggravated robbery.
14 See R v Karaitiana [2020] NZHC 91. Similar aggravating factors were considered by Thomas J, although in that case actual violence was used, with the victim being shot in the leg, albeit
[22] Mr Duff accepts the aggravated burglary charge in isolation may have attracted a starting point of 3 years’ imprisonment15 but that an uplift of two years’ imprisonment would be appropriate having regard to the principle of totality.
[23] Having considered the submissions of counsel, and having regard to the totality of your offending, I consider an uplift of 2 years is appropriate for the final intentional damage charge and the aggravated burglary charge to which you have pleaded guilty.
[24] Finally, I accept the Crown submissions that an uplift is also warranted for the firearms and ammunition charges. In relation to the firearms charges, the Crown has submitted that a starting point in the vicinity of two to three years' imprisonment would be warranted.16 Recognising there is some overlap between the charges, and adjusting the uplift for totality, the Crown submitted there should be an uplift of 1 year for those charges.
[25] Mr Duff submitted that these charges have been taken into account as an aggravating feature of the overall offending, and therefore submits that a further uplift would be considered “double counting”. In Mr Duff’s submission those charges on the firearms and ammunition should be dealt with by way of a conviction and discharge only.
[26] Although Mr Duff was quite correct that the use of firearms was an aggravating factor in considering the starting point for the lead charges, I conclude the firearms charges here are separate and relate to the possession of firearms and ammunition/explosives on dates subsequent to the intentional damage offending, and that therefore an uplift should be applied.17 The firearms charges have not been
accidentally, and property was stolen. A starting point of five and half years’ imprisonment was adopted. I consider that Mr Crawford’s offending is significantly less serious than this.
15 Referring to Walker-Dahlberg v R, above n 12.
16 See Police v Cranch [2022] NZHC 461 and Manapori v Police [2020] NZHC 627. In Cranch, given the sheer volume and seriousness of firerams and ammunition found, a starting point of between three and a half to four years’ imprisonment was deemed appropriate. In Manapori a starting point of 30 months’ imprisonment was upheld on appeal, to recognise the combination of drug and firearms offending. The firearms offending here is less serious than in Cranch and the link to drug offending is not relevant here.
17 Compare to R v Mackay [2021] NZHC 3360: no uplift for possession of a firearm was imposed because the charge was sufficiently taken into account through being an aggravating feature of the leading attempted murder charge. The possession of a firearm charge was related to the weapon used in the attempted murder. A sentence of imprisonment was imposed but was to be served
considered in setting the starting point, and again, having regard to the totality of your offending I conclude a further and final uplift of six months’ imprisonment is required and is imposed.18
[27] Adding the various uplifts identified to the initial starting point gives a sentence of 10 years and 6 months’ imprisonment prior to taking into account factors personal to you, including your guilty pleas.
Personal factors
[28] I therefore turn to your personal circumstances, with particular reference to your criminal and bail history, the Provision of Advice to the Court or PAC Report and the section 27 report that was prepared for your sentencing before Judge Moala in July 2021 for offending carried out in 2018. As a result of that sentencing you are currently serving a term of two years and eight months’ imprisonment, and you are currently before the courts for sentencing for your eighth time. You have one previous violence conviction in 2015 for assault with a blunt instrument and convictions for being a party to wounding with reckless disregard and discharging a firearm near a dwelling house. I note that the PAC report writer considered you to be at high risk of re-offending, and posing a high risk to others. Taking these various matters into consideration I conclude that 5 per cent uplift for previous offending is appropriate due to the heightened need for deterrence and community protection.
[29] It is also necessary for me to take into account the fact that the present offending was committed while you were on EM bail in respect of the 2018 offending for which you were sentenced by Judge Moala. This is a further aggravating factor relating to you personally. Again a 5 per cent uplift is appropriate to reflect this.
[30] Against these matters, Mr Duff submitted that I should apply the same discount adopted by Judge Moala when she sentenced you last year. As noted that discount was in relation to the 2018 offending for which you were sentenced after the present
concurrently with the sentence on the attempted murder charge.
18 Jenner v Police [2020] NZHC 62 at [57]. Churchman J found that the trial Judge had “double counted” by using the additional charges to justify the starting point for the lead offending, and then using them as an aggravating factor to uplift the sentence. The trial Judge then imposed separate sentences for the additional charges. There is no such “double counting” here.
offending had been committed. The discount applied by Judge Moala reflected the undiagnosed ADHD that her Honour considered was likely to have played a causal role in leaving your supportive family for the gang. I agree that this discount should be applied consistently in this case, albeit it is very much on the generous side, noting that there are otherwise no personal factors that would give rise to a discount. I note in particular that there is no sign on your part of any genuine remorse for your offending, let alone any indication that you are ready to start making the changes in your life that are going to be necessary if you are to avoid spending much of your life in prison.
[31] On the issue of the guilty pleas, the Crown accepted that a 20 to 25 per cent discount for early guilty pleas is appropriate. Although it cannot be said that you pleaded guilty at the earliest possible stage, I accept Mr Duff’s submission that Covid had a significant effect in terms of delaying the resolution of these matters and I therefore accept that the delay was not your fault. Given this position, and noting you pleaded guilty as soon as a resolution had been agreed, I am satisfied that the full guilty plea discount of 25 per cent is appropriate.
[32] Applying these various uplifts and discounts for the personal factors that I have identified results in a net 30 per cent discount. When this is deducted from the adjusted starting point this results in an end sentence of seven years and four months’ imprisonment.
Minimum period of imprisonment
[33] The final part of the sentencing exercise is to determine whether it is necessary to impose a mandatory period of imprisonment. Pursuant to s 84(1) of the Parole Act 2002 you will be eligible for parole after serving one third of your sentence, being some two years and five months in your case. As you have heard me discuss with counsel the Court may impose a minimum period of imprisonment beyond that prescribed in the Parole Act where it is satisfied that the sentence imposed is otherwise insufficient for the purposes of accountability, deterrence, denunciation or to otherwise protect the community.19
19 Sentencing Act 2002, s 86(2).
[34] In this case, I would have felt the need to impose a minimum period of imprisonment but for one reason, that is had it not been for the fact that you have been in custody since 3 December 2020 on the 2018 charges, and you remain a serving prisoner at the present time and for some time to come before you commence serving the current sentence.20 In those circumstances I consider it would be excessive to apply a minimum period of imprisonment but note that had you been coming to this Court without that background of your earlier sentence I would have imposed a minimum period of imprisonment of around four years.
Sentence
[35]Mr Crawford, would you please stand.
[36] On each of the charges 1, 2 and 4, being the charges for intentional damage at Johnstone’s Road, Otara Road and Pearl Baker Drive, Otara respectively you are sentenced to 7 years and four months’ imprisonment.
[37]On the remaining charges you are sentenced as follows:
(a)Charge 3, the intentional damage at Capstick Road Otara you are sentenced to 2 years’ imprisonment;
(b)Charge 5, the aggravated burglary at Blampied Road, you are sentenced to 2 years’ imprisonment;
(c)Charge 6, unlawful possession of ammunition, 1 years’ imprisonment;
(d)Charge 7, unlawful possession of a prohibited firearm, 2 years’ imprisonment;
(e)Charge 8, unlawful possession of ammunition and explosives, 1 years’ imprisonment; and
20 Applying the principles set out in Sullivan v R [2016] NZCA 100 and Williams v R [2019] NZCA 199.
(f)Charge 9, participating in an organised criminal group, six years’ imprisonment.
[38] A schedule showing the calculation for the remaining charges is annexed to the written version of these notes. All sentences are to be served concurrently.
[39] Orders are made for the forfeiture of the firearm, ammunition and explosives seized on 22 November 2020 and 2 December 2020.
[40] Finally, it is necessary to give you a second first strike warning this morning. Although you have previously received a first strike warning for wounding with intent to injure the current charges for which you were sentenced today pre-date your first strike warning, hence a second first strike warning must be given and I do so in the following terms:
Mr Crawford, in relation to the charges that you have been sentenced on this morning, I am required to give you a second first strike warning in terms of the three strikes law and specifically to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences:
(a)First, if you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
Powell J
Schedule
Remaining charges (all to be served concurrently)
Charge Sentence Charge 3 Intentional damage 2 years imprisonment21 Charge 5 Aggravated burglary 2 years’ imprisonment22 Charge 6 Unlawful possession of ammunition 1 year imprisonment23 Charge 7 Unlawful possession of a prohibited firearm (representative) 2 years’ imprisonment24 Charge 8 Unlawful possession of ammunition/ explosives 1 year imprisonment25 Charge 9 Participating in an organised criminal group 6 years’ imprisonment26
21 Calculated on the same basis as that of the leading intentional burglary charges, prior to the consideration of uplifts. Further discount is made for the fact that Mr Crawford was charged as a secondary party, thus a reduction must be made to reflect his decreased culpability, as the Court of Appeal observed in Walker-Dahlberg v R [2020] NZCA 661 in relation to aggravated burglary.
22 See Walker-Dahlberg v R above, where the Court set a starting point of three years and six months’ imprisonment to reflect party liability, where culpability is lower than the principal offender. Mr Crawford’s offending did not involve the discharge of a firearm, and he was not actually present at the property where the burglary occurred. A starting point of three years’ imprisonment is appropriate.
23 See R v Walker-Haturini [2021] NZHC 1208 where a starting point of seven months’ imprisonment on the lead charge of possessing ammunition was appropriate, relating to five live rounds of ammunition. Here, the possession of ammunition charge related to 71 shotgun cartridges and two .22 calibre rounds. An 18-month starting point is appropriate.
24 See Police v Cranch [2022] NZHC 461: given the sheer volume and seriousness of firearms and ammunition found (22 firearms and 2500 rounds of ammunition) a starting point of between three and a half to four years’ imprisonment was deemed appropriate. Aggravating factors for this offence included the number of weapons, the seriousness of the types of individual weapons, and whether weapons are found with ammunition. The firearms offending in this instance is less serious than in Cranch, although multiple highly dangerous firearms were involved. A three-year starting point is appropriate.
25 See R v Walker-Haturini, above n 23. Again, the possession of ammunition/ explosives is more serious in this instance, involving a stick of power gel (explosive), a measure of gun-powder fuse, and an assortment of ammunition.
26 See R v Tamati [2012] NZHC 221: a starting point of six and a half years’ imprisonment was adopted by the Court for the “directing mind” of a gunfight between gang members, involving a considerable number of men and the use of firearms. Mr Crawford’s actions were more serious than this, as they involved multiple shootings and a greater risk to the public. A starting point of 7 years’ imprisonment is appropriate.
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