R v French - [2022] NZHC 2470

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-009-9328

[2022] NZHC 2470

THE KING

v

DANIEL GARY FRENCH

Hearing: 28 September 2022

Appearances:

P A Currie for Crown

A J Bailey for Defendant

Judgment:

28 September 2022

ORAL SENTENCING REMARKS OF OSBORNE J

Introduction

[1] Daniel Gary French, you are to be sentenced today having pleaded guilty to the manslaughter of Luke Sears.1

[2] I am going to ask you to resume your seat for the time being. I need to explain the sentence to you, so you may be seated.

1 Crimes Act 1961, ss 66(2), 160, 171 and 177 – maximum penalty of life imprisonment.

R v FRENCH [2022] NZHC 2470 [28 September 2022]

Facts

[3] The central facts of your offending were set out in a Crown summary of facts, as you know, which you have admitted. On your behalf, Mr Bailey has referred to additional matters, especially of background, which were in evidence at your trial in 2020 when you and your co-defendant, Alistair Cochrane, were found guilty of Mr Sears’ murder and Tereina Sullivan was convicted of unlawful possession of a firearm. Your conviction for murder has subsequently been quashed by the Court of Appeal, which led to the Crown reconsidering the charge against you.2 That led to your pleading guilty to the charge of manslaughter in June this year.

[4] The Court of Appeal, in its judgment, set out a narrative of events reflecting the evidence at trial and it is appropriate that I adopt it for the purpose of sentencing you.3

[5] You were involved in a large-scale cannabis growing operation at a property in Selwyn, Canterbury. You also had a firewood business and, at the relevant time, were in the process of setting up a pet shop business in Rolleston. You had been employing Ms Sullivan at the pet shop for nearly a year. Shortly before the events giving rise to Mr Sears’ death, Ms Sullivan had introduced Mr Cochrane to you. Mr Cochrane had been carrying out manual labour work for the pet shop business. The three of you — you, Mr Cochrane and Ms Sullivan — had no gang affiliations.

[6] Mr Sears had known you for about a year. He was a patched member of the King Cobra gang. In the days before his death, Mr Sears was trying to collect a claimed debt of about $40,000 that he said you owed to him or the King Cobras. You denied there was any such debt. Rather, you said that Mr Sears owed you $20,000, being the balance of a $60,000 debt for cannabis that Mr Sears had earlier purchased from you.

[7] On 12 October 2018, Mr Sears and an associate came to the pet shop to threaten you and to obtain payment of the claimed debt. An altercation took place, involving

2 French v R [2021] NZCA 702.
3 At [8]–[15].

Mr Sears standing over you and punching…

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 French

Details

AGLC: R v French [2022] NZHC 2470
Case: [2022] NZHC 2470
Decision Date: 28 September 2022

CaseChat Overview and Summary

The case of R v French was heard in the High Court of New Zealand, Christchurch Registry. Daniel Gary French, the defendant, had previously been convicted of the murder of Luke Sears, but this conviction was quashed by the Court of Appeal. French then pleaded guilty to manslaughter, admitting that he participated in an unlawful common purpose and failed to sufficiently withdraw from it before the shooting occurred. The central issue for the court was to determine the appropriate sentence for the manslaughter charge, taking into account the circumstances of the offence, the aggravating and mitigating factors, and the statutory purposes and principles of sentencing.

The court first considered the starting point for the sentence, which reflects the seriousness and culpability of the crime. The court found that the offending was at the higher end of Band 2, calling for a starting point of five to ten years' imprisonment, but adjusted downwards by 25% due to mitigating factors. These factors included the defendant's genuine steps towards withdrawal, the provocative conduct of the victim, and the defendant's co-operation with police. The court also considered comparable cases but found it difficult to find cases with similar circumstances.

Next, the court assessed personal factors that could result in uplifts or discounts from the starting point. The defendant received a 25% discount for his guilty plea and a 10% discount for his participation in a restorative justice conference. The court declined to grant a separate discount for remorse, finding that the defendant's genuine sadness about the outcome did not justify such an allowance.

Taking all these factors into account, the court determined an end sentence of four years' imprisonment for the manslaughter charge. However, considering the totality of the defendant's sentences, the court found it appropriate to sentence the defendant to three years' imprisonment for manslaughter, to be served cumulatively upon his existing sentences. This resulted in a total cumulative period of imprisonment of 10 years and three months on all charges.

Orders