R v Duncan - [2012] NZHC 1814

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-082-0101 [2012] NZHC 1814

THE QUEEN

v

CHARLIE DUNCAN TERRENCE TAHURI

Hearing: 20 July 2012

Counsel: RJ Collins for Crown
J Verry for Prisoners

Judgment: 20 July 2012

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors: Elvidge & Partners, P O Box 609, Napier for the Crown
(Email: cwalker@elvidges.co.nz )
J Verry, P O Box 78102, Auckland 1245 for the Prisoners
(Email: jennyverry@slingshot.co.nz )

R V CHARLIE DUNCAN HC GIS CRI-2011-082-0101 [20 July 2012]

[1] Mr Tahuri, you appear for sentence having been found guilty by a jury of wounding Allan Hubbard with intent to cause him grievous bodily harm. [Ms Duncan, found guilty of assisting Mr Tahuri to avoid arrest or conviction, arrived late for the sentencing – see [11] – [13].)

The facts

[2] The facts are that in February 2011, you and Ms Charlie Duncan were living together at a house in Apatu Street, Wairoa. You, according to evidence given at the trial, were a patched member of the Black Power gang. In the house next door lived Theodore Ruawai who was a patched member of the Mongrel Mob.

[3] On 13 February 2011, Mr Ruawai returned to his house about 7.00 or

8.00 a.m. in the morning, having attended overnight a birthday celebration at the Mongrel Mob headquarters in Wairoa. He was accompanied by three other Mongrel Mob gang members, including Allan Hubbard. For reasons which did not emerge in evidence, an argument started between you and Mr Ruawai. You shouted abuse at one another over the fence. At one point you were seen leaning out the window of your house yelling at him.

[4] A short time later, a distinctive red and black car owned by Ms Duncan left your house, drove off and returned a short time later. You then appeared on the driveway of your house, close to the fence that separated your house from Mr Ruawai’s house. You were holding a shotgun. You fired two shots in quick succession towards the neighbouring house. Mr Hubbard, who was standing at the front of the house, was hit in the shoulder by one of the shotgun blasts. He sustained a serious injury to his right shoulder. He was taken to the local hospital where 84 shotgun pellets were removed. Surgery, including skin grafts, was required. The doctor who treated him confirmed that his injury was consistent with a close-range shotgun blast.

[5] You were seen to leave the house soon afterwards with Ms Duncan. Text messages from her phone show that the two of you took refuge from the police in nearby Frasertown. They made it clear that you both knew that the police were at the scene at Wairoa. Ms Duncan gave herself up to the police the following day and you followed suit a day later. You both admitted being at the house at the time of the shooting but said you were asleep.

[6] The jury accepted the evidence of eye witnesses who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Duncan

Details

AGLC: R v Duncan [2012] NZHC 1814
Case: [2012] NZHC 1814
Decision Date: 20 July 2012

CaseChat Overview and Summary

The case of R v Duncan, heard in the High Court of New Zealand, involved two defendants, Terrence Tahuri and Charlie Duncan, who were charged in connection with a shooting incident. Terrence was found guilty of wounding Allan Hubbard with intent to cause grievous bodily harm, while Charlie was found guilty of assisting Terrence to avoid arrest or conviction. The court was tasked with determining appropriate sentences for both defendants, considering the nature of their involvement and the impact of the crime on the victim and the community.

The legal issues before the court included determining the appropriate sentencing range for Terrence's crime based on the aggravating factors present, such as the extreme violence, premeditation, use of a firearm, and the context of gang warfare. For Charlie, the court needed to establish a sentence that reflected her role as an accessory, taking into account the seriousness of her actions and her status as a first-time offender. The court also had to balance the need for denunciation and deterrence with the potential for rehabilitation, especially considering the youth and background of the defendants.

The court began by establishing a starting point for Terrence's sentence, placing him in band 3 of the sentencing guidelines due to the multiple aggravating factors. The court accepted the Crown's submission for a starting point of 11 years, acknowledging the seriousness of the crime but also recognising mitigating factors such as Terrence's youth, lack of prior serious offending, and potential for rehabilitation. After considering these factors, the court reduced the sentence to 9½ years. For Charlie, the court compared her situation to previous cases involving similar charges and decided on a sentence of five months of home detention, considering her youth, lack of prior convictions, and good character references.

Ultimately, Terrence was sentenced to 9½ years imprisonment, and Charlie was sentenced to five months of home detention, with specific conditions to ensure compliance and safety. The court's decision aimed to appropriately reflect the seriousness of the crime, provide deterrence, and consider the potential for rehabilitation, especially for the younger defendant.

Orders