R v Gallagher - [2021] NZHC 920

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-009-3630

[2021] NZHC 920

THE QUEEN

v

BRENDON JOSEPH GALLAGHER

Hearing: 28 April 2021

Counsel:

C E Martyn for Crown T Aickin for Defendant

Sentenced:

28 April 2021

Charges:

Discharging a firearm with reckless disregard

SENTENCING NOTES OF BREWER J

R v GALLAGHER [2021] NZHC 920 [28 April 2021]

Solicitors:

Raymond Donnelly & Co (Christchurch) for Crown

Mr Gallagher, on 2 March 2021, Dunningham J gave you a sentence indication on the charge of discharging a firearm with reckless disregard for the safety of others.1 Later that day, you accepted the sentence indication and entered a plea of guilty.

Justice Dunningham, at your request, did not enter a conviction, nor give you a first strike warning. So, the first job I have today is to complete those actions. Accordingly, I now formally enter a conviction in respect of the charge of discharging a firearm with reckless disregard for the safety of others. I also have to give you the first strike warning. I do not expect it will mean much to you, but the law simply requires me to give it to you, and so I will:

Given your conviction for discharging a firearm with reckless disregard for the safety of others, you are now subject to the three strikes law. I am now going 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’.

If you are convicted on any one or more 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.

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.

When Dunningham J gave you the sentence indication, she not only considered a starting point but the Judge also took into account what she knew of your personal factors in reaching a final sentence indication of 23 months’ imprisonment.

R v Gallagher [2021] NZHC 342.

As the sentencing Judge, I have to look at the sentence indication to see whether it should be changed. If I had decided it should be changed in a way adverse to you, then I would give you the chance to change your plea. But, I agree with the sentence indication. A copy of it is to be attached to these sentencing notes and form part of them.

There are no victim impact statements for me to take into account, but I have read the pre- sentence report. It describes you as being at a low risk of reoffending and a low risk of harm to the community. So,…

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 Gallagher

Details

AGLC: R v Gallagher [2021] NZHC 920
Case: [2021] NZHC 920
Decision Date: 28 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Brendon Joseph Gallagher was convicted for discharging a firearm with reckless disregard for the safety of others. The case was presided over by Justice Dunningham, who provided a sentencing indication, and Justice Brewer, who finalized the sentencing. Gallagher had previously pleaded guilty to the charge after Dunningham J provided a sentence indication of 23 months' imprisonment. The primary legal issue before the court was whether the sentence indication should be confirmed or altered. The court was also required to formally enter a conviction and provide the first strike warning as mandated by law.

In delivering the judgment, Justice Brewer noted that the sentence indication provided by Dunningham J took into account both the starting point and Gallagher's personal circumstances. There were no victim impact statements, but the pre-sentence report indicated Gallagher was at a low risk of reoffending and posed a low risk to the community. Given the circumstances, Brewer J agreed with the sentence indication and sentenced Gallagher to 23 months' imprisonment, effective immediately. The court also formally entered the conviction and issued the first strike warning, highlighting the consequences of future serious violence convictions under the three strikes law. The judgment emphasized the importance of adhering to legal procedures, including the prohibition on publishing the judgment until sentencing was finalized.

Orders