R v H

[2023] NZHC 626

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-096-856

[2023] NZHC 626

THE KING

v

H

Hearing:	27 March 2023
Appearances:	G J Burston and M E Page for the Crown K R Smith for the Defendant
Date:	27 March 2023

SENTENCING OF COOKE J

[1]                 Mr H you are now to be sentenced as a result of your guilty plea to one charge of aggravated burglary as a consequence of your guilty plea following the acceptance of a sentencing indication.1 As you know you are to be discharged without conviction. But it is necessary to explain the full analysis on how that decision is reached, including the sentence you would have received if not discharged.

[2]                 I will first outline the facts of the offending. Next I will address the sentence that the Court would have imposed if you were not discharged without conviction.

1      Crimes Act 1962, ss 232(1) and 66; maximum penalty 14 years’ imprisonment.

R v H [2023] NZHC 626 [27 March 2023]

And then finally I will address why a discharge without conviction is the sentence appropriate.

Facts of the offending

[3]                 At the time of the alleged offending or the offending you were 18 years of age. Notwithstanding your schooling, and your promise as a sportsman, you became involved in criminal activity.

[4]                 On 10 January 2022 you and Bradley Harper-Brown were selling MDMA or ecstasy through connections with the Mongrel Mob. Bradley Harper-Brown was a newly patched member of the Mob. You were not a member.

[5]                 The two of you arranged to meet Akynn Eady to sell him drugs. Mr Eady and his associates were members of the Crips gang. When you met up in the Hutt Valley near the Haywards Interchange Mr Eady and his associates produced weapons and robbed Mr Harper-Brown and yourself.

[6]                 Mr Harper-Brown then began to plan retaliation. You and Mr Harper-Brown obtained Mr Eady’s address in Upper Hutt from an associate of yours.

[7]                 At 8.30 in the evening you then met up with Mongrel Mob member Justin McGoldrick at the Z Mana Esplanade petrol station. You discussed what you would do. You then travelled to Mr Harper-Brown’s address and were joined by another Mob member Teimana Tawhai. You then drove to an unknown location where a 12 gauge shotgun wrapped in a white sheet was obtained. You then returned to Mr Harper- Brown’s address at approximately 9.35 pm.

[8]                 You then contacted Mr S and asked Mr S to return to you your Toyota vehicle. Mr S duly did so at approximately 10.00 pm. The shotgun was placed in the rear of the Toyota.  After dropping  off another vehicle the group then made their way to   Mr Eady’s address in the Toyota, after first stopping off at Z Energy on Mana Esplanade. Mr S was driving.

[9]                 The group arrived at Mr Eady’s address at just after 11.00 pm where Mr Eady was hosting a birthday party. Messrs McGoldrick, Tawhai and Harper-Brown got out of the car leaving yourself and Mr S inside. Mr McGoldrick entered the house followed by the other two. An occupant walked towards the front of the house to investigate what was going on and Mr McGoldrick then fired three rounds down the hallway. Robert Aspinall, an occupant in the house was struck by a number of pellets in the left side of his abdomen causing more than 20 wounds. The three men then ran away from the address returning to the Toyota and the group then left in the car. Police were alerted to the incident and attempted to stop the vehicle which drove away at speed overtaking other vehicles and turning its headlights off. The vehicle was ultimately struck by tire deflation devices and yourself and the others were arrested.

Period of imprisonment

[10]             I now assess the period of imprisonment that would have been imposed if you were not discharged without conviction. I need to do that, in part because it is necessary to consider the seriousness of the offending and your role in it when determining whether a discharge without conviction should be given.

[11]             There is no tariff decision for aggravated burglary. But it is accepted that the Court of Appeal’s guideline decision for aggravated robbery in R v Mako applies,2 notwithstanding that this is an aggravated burglary.3 I consider the following aggravating factors identified in R v Mako generally arise in the present offending:

(a)there was planning and premeditation given that the offending was part of a gang related dispute resolution exercise, and your group armed yourselves beforehand;4

(b)there was use of a weapon and a person was wounded by its discharge;5

2      R v Mako [2000] NZLR 170 (CA).

3      See R v Watson CA 224/03, 24 October 2003; the Court of Appeal held that the principles expressed in Mako are applicable to aggravated burglary.

4      R v Mako, above n 2, at [36].

5      R v Mako, above n 2, at [39].

(c)there were a number of participants;6

(d)and it involved a home invasion at night.7

[12]             In addressing comparable decisions there are two of immediate direct significance given that they relate to the same offending. In particular:

(a)I have sentenced Mr Tawhai for his role in the offending.8 I decided that in light of his role in the offending that a starting point of eight years’ imprisonment was appropriate, indicating it would have been higher if he had been the shooter, and lower but for the fact that the firearm was discharged causing the wounding. I also assessed a starting point for Mr McGoldrick of nine years’ imprisonment when he sought and then accepted a sentencing indication given that he was the shooter.

(b)Justice Isac also addressed the sentence for Mr S.9 Mr S’s name is suppressed, but I refer to him by name here for the purposes of clarity in this sentencing decision. Mr S faced a lesser charge of being an accessory after the fact of aggravated burglary and failing to stop for red and blue flashing lights. Justice Isac concluded that a starting point of 10 months’ imprisonment was appropriate, adopting a notional starting point of 15 months’ imprisonment reduced by a third to reflect reduced culpability as a result of fear and perceived threat.10

[13]             So much depends on your role in the offending. I accept that you had a lesser role. Whilst you were involved in planning the response to the robbery, and facilitated action by supplying Mr Eady’s address and arranging your vehicle, there is nothing to suggest that you had any desire to be personally involved in the response, let alone an incident involving discharge of a firearm. You are not a member of the Mongrel Mob, and you are young. You have no criminal record. You remained in the back of the

6 At [37].

7 At [58].

8 R v Tawhai [2023] NZHC 311.

9      R v S [2022] NZHC 2944.

10 At [21].

vehicle and did not participate in the actual offending itself. I proceed on the basis that you had no real control of events as they developed, and that you had got out of your depth in relation to gang retaliation associated with the drug dealing that you were involved in.

[14]             I nevertheless accept the submission that you had a more significant role than Mr S, which is reflected in you facing the more serious charge. Whilst you did not drive the car as Mr S did, you were both really acting under the direction of the others at that stage. I accept that you were frightened of the others. But you nevertheless got yourself involved in this because of your own actions — you decided to engage in drug dealing associated with the Mongrel Mob, and you took active steps to assist in the offending by supplying the address, and arranging for your vehicle to be involved, albeit I accept that you were fearful of what they would do to you if you did not cooperate.

[15]             There are factors that make this offending, and your involvement in this offending serious. The offending involved an actual discharge of a firearm which wounded another person. That clearly makes the offending more serious than other cases that have been referred to. Moreover, in terms of your role, you did involve yourself in drug offending, and you did not do that as a consequence of pressure or threats by others. This has led to matters developing beyond your control, but even in those circumstances you assisted in providing Mr Eady’s address and arranging your vehicle to be used.

[16]             In the circumstances I have agreed with the prosecution assessment that a starting point of four years’ imprisonment would have been appropriate.

[17]             You would then have been entitled to discounts arising from your personal circumstances.

[18]             First you would have been entitled to a discount associated with the guilty plea of up to 25 per cent. In the present case I would have seen no reason why a full 25 per cent discount would not be given.

[19]             You would then have been entitled to a further discount because you have been fully cooperative in relation to the investigation of the offending. You provided an interview recorded by DVD, and have also sworn an affidavit explaining your role in the offending. You are available as a prosecution witness. That has been at some personal risk. The usual approach is to increase the discount available for the guilty plea to reflect cooperation of this kind. That total discount has been up to 60 per cent in some cases.11 It may be that the cooperation here, whilst fulsome and open, does not provide as much substantial help as in other cases. But a substantial discount is still warranted. In my view that would have taken the total discount to 50 per cent.

[20]             You would also have been entitled to a discount for youth in accordance with the principles outlined by the Court of Appeal in Churchward v R given that you were only 18 at the time of the offending.12 You also have no previous convictions. You have been remanded on bail without incident. The evidence suggests you are of generally good character. You seek to apologise and participate in restorative justice. You indicate you are able to pay emotional harm reparation if that is appropriate. You indicate you have suffered whakamā, and acknowledge the loss of mana when disclosing the incident not only to police and the Court, but to your whānau and mentors.

[21]             You are very fortunate indeed not only having the loving support of his parents but also widespread support from the community both in New Zealand, and Australia. I will turn to that support later when explaining why you will be discharged without conviction.

[22]             These additional factors — youth, remorse and good character would have warranted a significant discount of a further 25 per cent.

[23]             All these discounts mean that I accept the view of the prosecution that total discounts of approximately 75 per cent would have been appropriate in his case. That would have brought your sentence down to one years’ imprisonment.

11     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [23].

12     Churchward v R [2011] NZCA 531 at [77].

[24]             That means that the sentence were you not discharged without conviction, would be a sentence of one year imprisonment. That compares with Mr S’s ultimate sentence which would have been five and a half months’ imprisonment if he had not been discharged without conviction.13

Discharge without conviction

[25]The final step is to address discharge without conviction.

[26]             A court may grant a discharge without conviction under ss 106 and 107 of the Criminal Procedure Act if it is satisfied that the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offence. The test for a discharge requires the Court to consider three elements:14

(a)First, the gravity of the offending taking into account all aggravating and mitigating factors of the offending and the offender.

(b)Second, the direct and indirect consequences of a conviction.

(c)Third, whether those consequences are “out of all proportion” to the gravity of the offending.

[27]             Numerous affidavits have been filed in support your application for a discharge. They are from people from New Zealand, and from Australia. The short point is that as a consequence of bail decisions, you have moved to Australia and effectively re-established a new life there. You obtained employment as a part-time security guard and more recently in the building industry, and are making good progress with your promising sporting career in baseball and rugby league. Affidavits have been filed showing you have the guidance of mentors and others in Australia. You also have the support in New Zealand, not only of your family, but also of others who are generally supportive of your sporting future. The pre-sentence report now available further supports your discharge without conviction.

13     R v S, above n 9, at [27].

14     R v Taulapapa [2018] NZCA 414 at [22].

[28]             A striking feature of your case is that you have been able, at a relatively young age, to leave the country where you face significant criminal charges and establish a new life. The fact that you have been able to do so is a reflection of the close relationship between Australia and New Zealand. You have made a very serious error that has jeopardised your life in this country. The offending that you have committed has been associated with the Mongrel Mob in New Zealand. By relocating to Australia you put yourself in the best position to put this behind you, and start a new life. The affidavits that have been filed demonstrate that you are taking that opportunity. This fresh start could be put at jeopardy if you have to return to New Zealand to face a sentence, even if that sentence was home detention.

[29]             In applying the criteria required under the authorities I have already assessed the seriousness of the offending. This was significant offending, and you played a material role in it. It was not offending that you had any desire to participate in and you were dragged into it because you had made the mistake of getting involved in drug dealing. The comparatively light sentence that you would have faced notwithstanding the seriousness of the offence is a reflection of all the circumstances of your involvement, and your age and stage.

[30]             The second step involves assessing the direct and indirect consequences of a conviction. Based on what I have received I am satisfied that not only your employment in Australia would be at jeopardy, but also your prospects of further progress in your promising sporting career, but more profoundly that your new life that you have begun to re-establish for yourself in Australia would be put at jeopardy. You would have to leave that life to return to New Zealand to serve either a short prison sentence, or more likely a short home detention sentence. There would be some possibility of you returning to Australia to re-establish those connections after serving that sentence to some extent, but I accept that many of the aspects of your new life may be significantly compromised, such as your employment, and potentially also important aspects of your sporting career given that a conviction could compromise your ability to travel and take up opportunities in other countries such as the United States. That is relevant to your promise as a baseball player in particular.

[31]             That takes me to the final step, whether those consequences are out of all proportion to the gravity of the offending. It seems to me that that would be so. There would not seem to be much point for the new life free from offending which you have established with strong support systems around you to be put at jeopardy so that you can return to New Zealand to serve a short prison sentence, or a short sentence of home detention. There is no public interest involved in doing so, and the adverse effects on you would be out of proportion.

[32]             It is unusual for a person to have got himself involved in drug dealing, and then participated in this serious offending, to receive a discharge without conviction. But you are a person without previous convictions, you are young, and there is a real prospect that you can now start your new life with the love and guidance of those who are seeking to support you both Australia and New Zealand. The criminal justice system needs to address cases like this with the sensitivity they deserve. There is a public benefit in taking steps to prevent people like you from entering the criminal justice system and prison systems. That is particularly so for young people. Once those systems are entered it becomes hard to stop a decline into a criminal lifestyle, highly influenced by gang culture. Whilst this is serious offending, it can be said that this is the very kind of case that a discharge without conviction provision is most effectively directed to.

[33]             Finally there is the question of name suppression. I agree that it would be appropriate for your name to be suppressed for the same reasons as Justice Isac explained in the case of Mr S.15 I accept it would cause extreme hardship if your name were to be published in the circumstances as it would undermine the efficacy of the discharge without conviction. That will be an order until further order of the Court to ensure your cooperation as a witness in relation to the other defendants.

[34]             Mr H on the charge of aggravated burglary I discharge you without conviction. The bond previously paid can be released.

Cooke J

15     R v S, above n 9, at [42]–[45].