R v Johnson

[2022] NZHC 2560

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-043-1356

[2022] NZHC 2560

THE KING

v

LACHLAN ALEXANDER JOHNSON

Hearing:	26-29 July 2022
Appearances:	J M Marinovich and L A Blencowe for Crown P M Keegan and N Bourke for Defendant
Sentence:	4 October 2022

SENTENCING OF CULL J

[1]    Mr Lachlan Johnson, you have been convicted by a jury for the manslaughter of Mitchell Craig Mosen,1 and you have pleaded guilty to the unlawful possession of a prohibited firearm.2 You appear for sentence on these charges today. While I read my sentencing notes you may sit down, and I will ask you to stand again at the end when I formally sentence you. You may be seated.

[2]    In sentencing you today, I will first describe your offending. I will then outline the sentencing regime for manslaughter and the approach I will take to your sentence, the starting point I have adopted and why, and the adjustments I have made to this starting point. This does involve, as you have heard Counsel speak to me this morning,

1      Crimes Act 1961, ss 171 and 177; maximum penalty of life imprisonment.

2      Arms Act 1983, ss 50A(a) and (b); maximum penalty five years’ imprisonment.

R v JOHNSON [2022] NZHC 2560 [4 October 2022]

taking into account the aggravating features of your offending, and circumstances personal to you.

Background

[3]The background to your offending is as follows.

[4]    You and Mrs Mosen were neighbours living in a rural area in New Plymouth. Your properties were approximately 200 metres apart. Mr Mosen was living with his mother at that property. He had been diagnosed with brain cancer and was undergoing treatment and surgery. While for a period of time the relationship between you and Mr Mosen had been positive, it deteriorated after Mr Mosen’s diagnosis and subsequent surgery.

[5]    On 22 August 2020 at around 6.15 pm, you had parked your car on the side of the road on which you live and were lighting Chinese lanterns to float above the valley below. You have done this before as it was something that the children in the area enjoyed. You had been drinking much of that day and you were drunk. During this time, Mr Mosen decided to go for a ride on his quad bike and came across you. Mr Mosen took exception to what you were doing, as he thought in your description they were “spy cameras,” and he physically attacked you. You describe being beaten up by him. Mr Mosen then left on his quad bike and headed back home.

[6]    Following the altercation, you were enraged. You have said you had “never been so mad [in your] life”. Fuelled by alcohol and your rage, you drove back to your home, retrieved your semi-automatic shotgun and ammunition belt, and then drove the short distance to Mr Mosen’s house with the intention of shooting Mr Mosen in the foot.

[7]    You drove through a gate at the entrance to the house and got out of your vehicle with the loaded gun. You entered the house through the sliding door at the front deck and pushed past Mrs Mosen. Mrs Mosen heard you say “I’m gonna slow him down”. Mr Mosen, upon being confronted by you in his home, grabbed a baseball bat it appears from the evidence. A brief verbal exchange ensued before you shot Mr Mosen in his right foot.

[8]    Following this shot, Mr Mosen made a grab for the firearm. A struggle ensued, with both of you struggling for the control of the weapon. You were discharging the firearm in order to spend the rounds in the gun so it would not be used on you. One shot ricocheted and hit Mr Mosen’s left leg. Three of the shots fired at a low angle, hitting pot plants, a wooden beam and the outside of the house. One shot, the fatal shot, hit Mr Mosen in his chest. Mr Mosen fell to the ground.

[9]    You did not know that in the struggle, this shot had hit Mr Mosen in the chest. Nor did anyone else. Mrs Mosen’s evidence was that she told you she needed to call an ambulance and that you could have killed her son, to which you responded “nonsense, I just shot him in the foot”. You left the premises. You returned home and then called 111, telling the operator that you had “only shot him in the foot”. It was later that you found out about the chest wound, and that Mr Mosen had died at the scene.

[10]   The jury accepted that you did not intend to kill Mr Mosen or that you had any murderous intent. They did so by returning a not guilty verdict for the murder charge. The jury however found you guilty of manslaughter, as a consequence of your unlawful act of carelessly using a firearm.

Victim impact statements

[11]   I have heard and received victim impact statements from Mr Mosen’s mother, Mrs Patricia Mosen and his father. Mrs Mosen has spoken of the difficult and courageous battle her son was fighting against his brain cancer diagnosis, and his hopes for his future. You have heard her speak of the memory that is frozen in her mind, having witnessed the final moments of her son’s life.

[12]   You have also heard from Alister Mosen. He also expresses his deep concern and upset at the soul debilitating news of Mitchell’s violent death. Both Alister and Patricia Mosen say that your actions have caused significant emotional upset and that that is something that they will not easily get over. They both grieve the death of their precious son, Mitchell.

Approach to sentencing

[13]   I will now turn to your sentence. The principles and purposes of sentence must be taken into account, as a Judge must also take into account the victim impact reports, but ultimately the Court is guided by both the Sentencing Act and by guideline judgments for this type of offending.

[14]The principles and purposes of sentencing that are relevant to you include:

(a)holding you accountable and responsible for the harm done;

(b)to promote in you a sense of responsibility for and an acknowledgement of that harm;

(c)to provide for the interests of the victim’s family;

(d)to denounce your conduct;

(e)to deter you from committing similar offences;

(f)to protect the community from you; and

(g)to assist in your rehabilitation and reintegration.

[15]   Bearing these principles in mind, my approach will be as follows. Manslaughter is of course the most serious offence and I am treating that as your lead charge. I will determine an appropriate starting point for manslaughter by assessing your culpability. I will do this by taking into account the features of your offending. Next, I will adjust that starting point by looking at factors and circumstances personal to you. This will assist me in reaching the end sentence. I will then consider your unlawful possession of a firearm charge, and impose an appropriate sentence for that to be served.

Starting point

[16]   There is no tariff or guideline decision for the crime of manslaughter, because the crime of manslaughter can occur in a wide-ranging set of circumstances.3 There is guidance however, on how the Court should approach serious violent offending and

3      Everett v R [2019] NZCA 68 at [27]; and Iota v R [2013] NZCA 235 at [25] and [28].

where serious injury is foreseeable.4 Counsel have referred to a case called Taueki and I will refer to that as the guideline case. The preferred approach in these circumstances then is to consider comparable cases of manslaughter having regard to the guidance where relevant.5

Aggravating and mitigation features of the offending

[17]   Your offending carries aggravating features which are encapsulated in s 9 of the Sentencing Act 2002. They are also reflected in the guideline case. I consider the following features of your offending to be the aggravating features here:

(a)Premeditation: you approached Mr Mosen with a loaded firearm that you retrieved from your home, and there was an intention to shoot him in the foot with it. In those circumstances there was premeditation in the way you acted following the altercation with Mr Mosen and in your intention to inflict some kind of harm to him. I accept however that this was present to a moderate degree, given the proximity in time to the incident and that impulsive violence or a violent reaction to an unexpected event is generally seen as less culpable.6

(b)Serious injury: your actions caused serious injury to Mr Mosen, leading to his death.7 In presenting a loaded firearm there was a very foreseeable risk of very serious injury, notwithstanding you did not intend the subsequent shots to be fired.

(c)Use of weapons: you presented a loaded firearm intending to use it. That is a lethal weapon and was an unlicensed firearm. The more lethal a weapon used, the greater the aggravating factor will be.8 The intention to use such a weapon also contributes to the severity of this aggravating factor.

4      R v Taueki [2005] 3 NZLR 372 (CA).

5      See R v Tai [2010] NZCA 598 at [12]; and R v MacDonald [2021] NZHC 224 at [23].

6      R v Taueki, above n 4, at [31(b)]; Sentencing Act 2009, s 9(1)(i).

7      At [31(c)]; Sentencing Act 2009, s 9(1)(d).

8      At [31(d)].

(d)Home invasion 9 Your offending involved entering Mr Mosen’s home without permission. The sanctity of the home is recognised by the Courts, and where the offending involves the invasion of the home, that is a significant aggravating factor.

[18]   I turn to the fifth factor which the Crown has raised. You will have heard Mr Marinovich say that the Crown considers you acted out of revenge. He says it was the only reason you approached Mr Mosen and that is an aggravating factor. I do not accept that submission. I consider that given the close proximity of the events and the rage you felt, this was your reaction to the altercation, rather than contemplated or cold revenge. It is not, as envisioned in the guideline case, an action to be viewed through the lens of “vigilante action”.10

[19]   I consider then the mitigating factors of your offending. Your Counsel submits that the conduct of the victim is a mitigating factor in your case. The Crown reject this. Conduct of the victim or provocation is regarded as a mitigating factor and can justify a lower starting point. I need to be satisfied however that there was serious provocation which was an operative cause of the violence inflicted by you and which remained an operative cause throughout the commission of the offence.

[20]   Our Court of Appeal has observed that consideration of victim conduct concerns the following question: “whether the behaviour of the victim has materially reduced the culpability of the defendant in responding to it.”11 This requires an evaluation of all the circumstances, including that:12

[T]he nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances.

[21]   I have listened to two trials of these facts. You have repeatedly expressed that the victim’s actions in attacking you in an unprovoked manner led you to being the

9      At [31(j)]; Sentencing Act 2009, s 9(1)(b).

10     At [30(m)].

11     Wairau v R [2015] NZCA 215 at [31].

12     At [29(c)] quoting Hamidzadeh v R [2012] NZCA 550, [2013] NZLR 369 at [62].

angriest you have been in your life. You said this to the 111 operator caller. You have reported that the reason you shot Mr Mosen was because he had “stomped” on your back and that “you’d been looking after [your] back and he put [you] back to square one. I note also that you have suffered from chronic back injury for some years.

[22]   After some consideration I accept that the actions of Mr Mosen were provocative and that that was the operative cause of your own conduct. This reduces your culpability to an extent. It is not a complete answer to your disproportionate response but justifies an adjustment to the starting point in my view.

[23]   In assessing the aggravating factors against the guideline judgment, there are four aggravating factors present. This as the Crown have submitted places your offending in Band Three, which attracts 9–14 years’ imprisonment. I consider your offending is at the lowest level of Band Three, without adjusting for the mitigating factor of provocation.

[24]   Before I do so, I consider the comparable manslaughter sentencing cases. The Crown and your Counsel have referred me to cases comparable to your offending and involving manslaughter offending. The starting points in these cases have ranged from six to ten years’ imprisonment. I am going to describe four of the most comparable of these cases to help you understand how I have arrived at my starting point.

[25]   In the first case,13 a defendant and the deceased had ongoing issues between them. On a particular day the defendant was in a vehicle at a property with a sawn- off .22 rifle between his legs. He had that rifle because of the ongoing antagonism between himself and the deceased. The deceased approached him in an aggressive manner and the two exchanged abuse through the open window. A struggle ensued, the firearm went off and fatally wounded the deceased. The defendant did not know that he was fatally wounded, as he was last seen walking down the driveway as the defendant drove off. A starting point of six years’ imprisonment was adopted in that case. The aggravating features included that he had deliberately obtained the firearm and intended to use it, to threaten the deceased and make him go away at the very least.

13     R v Pira HC Rotorua CRI-2006-063-329, 13 December 2006.

[26]   In another case,14 the defendant and the deceased were brothers who had a confrontation with each other. They were living in the same proximity on the same property. The defendant had deliberately taken a firearm to confront his brother, intending to “freak him out.” A single shot was fired which proved to be fatal. A starting point of eight years’ imprisonment was adopted. The Court identified a number of aggravating factors including planning and premeditation, deliberately taking a loaded firearm and ammunition ready to use in a confrontational dispute, extreme recklessness, deliberately intending to discharge the weapon, and failing to assist the deceased immediately after the shooting.

[27]   In the third case,15 the defendant was a street-level drug dealer, who was unable to complete a deal involving a gang member. The deceased was asked to assist in obtaining the purchaser’s money. The deceased took the defendant’s car. The defendant attempted to resolve the situation by paying money and handing over drugs to the deceased. The deceased refused to return the car. The defendant became increasingly angry. He obtained a firearm and ammunition, pointed the firearm at the deceased, and told him to put his keys on the table. The deceased said something dismissive and began to walk away. The defendant then fired at him twice, resulting in the death of the deceased. The Court of Appeal upheld the starting point of ten years’ adopted in that case.

[28]   In the fourth and last case,16 the defendant stabbed the deceased repeatedly with a plastic ballpoint pen, causing significant injuries. This, combined with the deceased’s methamphetamine toxicity and pre-existing heart disease, caused his death. The Court adopted a starting point of ten years. The aggravating factors identified were the extreme violence involved, targeting the deceased’s face and head, the serious injuries caused by the assault, the use of a weapon, the vulnerability of the deceased, the element of home invasion and breach of trust, and gang involvement given both the defendant and the deceased were patched gang members.

14     R v Christie HC Gisborne, CRI-2003-016-006522, 28 October 2004.

15     Jefferies-Smith v R [2020] NZCA 315.

16     R v Edwards [2022] NZHC 2209.

[29]   Having regard to these cases, I believe your offending is less serious than the last two I have mentioned. For those cases a starting point of 10 years was within range. I consider your offending to be closer to the first two cases I discussed but in particular I consider your case is similar to the confrontation between the two brothers with your deliberately taking a firearm with you for the purposes of a confrontation with Mr Mosen. That case had a starting point of eight years, but did not involve a home invasion by a stranger.

[30]    Weighing the several aggravating factors, adjusting for the mitigating factor of provocation, and taking into account the comparable cases, I consider the appropriate starting point is eight and a half years. This I consider is consistent with the guideline case. I consider this offending is at the lower level of Band Three and is adjusted by six months for the factor of provocation. Flexibility is encouraged even in tariff decisions.

Personal circumstances

[31]I will now look at circumstances personal to you.

[32]   The Court has received a PAC report and a cultural report prepared under s 27 of the Sentencing Act.

(a)PAC Report: You have expressed to the report writer that you have acknowledged your actions were stupid and that you regret them every day. You lost your father six months prior to the offending and this had led you to increase your alcohol consumption. You have since then completed an Alcohol and Drug workshop while in remand to address your excessive consumption. You have been noted to present with a positive attitude and are adhering well to prison rules.

(b)Cultural report: Your cultural report provides a background to you and your family. You have limited familial ties but are developing a closer relationship with one of your sons. You presented as “open, honest, and respectful”. You expressed your shock when you were told that Mr Mosen had died and you repeated that to the report writer. You say you

have not been given the opportunity for restorative justice with Mrs Mosen, however you express you “feel for her big time” and that you would “apologise profusely.”

[33]   As you have heard, your Counsel has asked that the Court take into account your remorse, the steps taken to shorten the proceedings, and your early indication to plead guilty to manslaughter. These would serve as mitigating factors and could reduce your sentence. The Crown agrees that your indication to plead guilty should warrant a discount but disagrees that remorse or steps taken to shorten the proceedings are mitigating factors.

[34]   I view that your early and consistent readiness to plead guilty to manslaughter is deserving of a discount to your sentence. The Court offers a discount for early guilty pleas because it spares the victims from having to give evidence and saves the time and expense for a defended hearing.17 While that did not occur in your case and you have had to withstand two trials, it was not as a result of your actions. There can be no compulsion in the matter of pleas, as they are an acceptance of responsibility for one’s actions. You are not compelled to plead guilty to an offence you did not commit, as evidenced by your conviction for manslaughter and not murder.

[35]   The Supreme Court has said as a matter of general principle, the offender who is convicted of an offence for which he has earlier communicated a willingness to plead guilty should receive the maximum reduction available at the stage of the proceedings when that willingness was communicated.18 The reason for that is, as I have stated, that the defendant has done all he can do to acknowledge responsibility at the earliest time.19 Of course this must be balanced against the fact that the Crown is fully justified in proceeding with a murder charge.20 In these circumstances I consider you are entitled to a full 25 per cent discount for your readiness to plead guilty. It was communicated clearly and consistently both before and at the first and second trials, publicly and to the jury. I note that the the Court of Appeal has quashed a discount of 10 per cent and substituted it with a discount of 20 per cent for an early indication of

17     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [28].

18     Above, n 17 at [41].

19 At [42].

20 At [42].

plea.21 Your case in my view differs from that because there the indication was not formally communicated by instructed Counsel and a very long trial proceeded. In this case I am satisfied that 25 per cent should be discounted.

[36]   While I accept you took steps to shorten the proceedings, by consistently offering a guilty plea for manslaughter, I am not able to accept your Counsels’ submissions that there should be additional credit for steps taken to shorten the proceedings. I accept that Counsel acted very responsibly in your trial on both occasions, but in the absence of any significant actions beyond compliance with customary procedural aspects of trials, there is no ground for further discount in my view.

[37]   I turn then to remorse. I have listened to the Crown’s submission on remorse and from your Counsel as well. I do consider a discount for remorse is warranted here. You have expressed an understanding of your actions and in particular the effect they will have had on Mrs Mosen. You had a friendship with Mrs Mosen and I could see that in the 111 call, and in the evidence I heard, and I see it also in your s 27 cultural report. I accept, as Mr Marinovich has said, that the comment that you made in the PAC report does seem somewhat compromised but in light of your comments to the  s 27 report writer, and the expressions of what you have said in the evidence in the trial, I can accept it is a somewhat blunt comment, but does express disbelief. I do not think it retracts from your remorse for this incident and I am prepared to give you a discount for that. I consider a discount of five per cent is available for that.

[38]   Accordingly, I grant a discount of 25 per cent for your readiness to plead guilty, and five per cent for your remorse. This brings your end sentence to six years’ imprisonment.

Firearm offending

[39]   I consider the firearm offending to warrant a term of imprisonment of six months, which will be served concurrently.22

21     Above, n 15.

22     This is consistent with R v Christie, above n 14.

No uplift for conviction history

[40]   As the Crown recognises, no uplift for your previous conviction history is warranted.

[41]   I note the recommendation by your Probation Officer that you take every opportunity while in prison to continue to address your alcohol use to ensure it can be managed long term on your release. Attending such rehabilitative programmes would also be of assistance as part of your release conditions into the community as the Parole Board determines.

Result

[42]   Mr Johnson will you please stand. On the charge of manslaughter, I sentence you to six years’ imprisonment. On the charge of unlawful possession of a firearm, I sentence you to six months’ imprisonment to be served concurrently with your sentence for manslaughter.

[43]   I also make an order for the destruction of your firearm and the ammunition retained by the Police.

Cull J