R v Laurent
[2022] NZHC 3154
•29 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2021-092-9340
[2022] NZHC 3154
THE KING v
CHAUNTEL LAURENT
Hearing: 29 November 2022 Appearances:
S Arnerich for the Crown M Kan for the Defendant
Sentence:
29 November 2022
SENTENCE OF DUFFY J
Solicitors:
Kayes Fletcher Walker, Manukau Michael Kan Law, Auckland
R v LAURENT [2022] NZHC 3154 [29 November 2022]
[1] Chauntel Laurent, you come up for sentencing today having pleaded guilty to accessory after the fact to the offence of wounding with intent to cause grievous bodily harm.1
[2] In my sentencing indication of 30 September 2022, I indicated a starting point of 10 months’ imprisonment.2 The reasons for doing so are set out in the indication, which will be attached to, and form part of the sentencing notes. I also indicated that would be reduced by 25 per cent if you pleaded guilty. There was to be no uplift for any personal aggravating factors.
[3] The matters left to be considered today are whether you should receive any further discounts for personal factors, what credit should be given for time spent on electronically monitored bail (EM bail) and ultimately what sentence should be imposed on you.
[4]First, I will briefly set out the facts of your offending.
Facts
[5] At the time of the offending you were in a relationship with one of the principal offenders. He is a member of the 23 Blue Cartel faction of the Crips gang.
[6] On 15 August 2021, another person who was selling methamphetamine on behalf of the Blue Cartel, was robbed by two other persons. Members of the Blue Cartel conspired to seek retribution. It is not suggested you took part in the conspiracy; this is simply in the summary of facts.
[7] On 22 August 2021 those persons made various preparatory steps such as obtaining firearms and a vehicle. They obtained a vehicle which was driven to one of the member’s addresses at 2.52 pm. At 4 pm, you drove that vehicle from the address with one man whom you knew and an unknown man as passengers. You did not know what the men were doing, only that they had to do something for someone. You thought they were going to pick up money or something.
1 Crimes Act 1961, ss 71, 188(2) and 312. Maximum penalty five years’ imprisonment.
2 R v Laurent [2022] NZHC 2502.
[8] About an hour later, you and the men arrived at the victim’s address. You parked the car near the front entrance. The victim lived there with one of the men whom the people you associated with believed had robbed one of their group.
[9] The unknown man got out of the car and handed the man you knew a firearm. You told police this was the first time you had seen the firearm. The man began banging on the doors. The victim came to the door. There was an exchange between them. The man then shot the victim in his right leg, and he ultimately died from this wound. You stated to police that you were looking away the entire time. You heard a gunshot and someone yell, “I’ve been shot”.
[10] The two men then got into the car and told you to get out of there. You drove the two men back to the address of one of them. You went inside and the men stayed outside.
Sentence indication
[11] In the sentencing indication, I noted that your previous convictions of threatening behaviour (2017), driving while disqualified (2014) and aggravated robbery (2006) were not relevant to your present offending, therefore no uplift was imposed for that offending.
[12] I then considered a range of cases to set the starting point for your offending. I took into account the seriousness of the primary offending. I also considered the fact you rendered assistance in only one way, namely by driving the men away from the scene. You had little real opportunity to not assist when an armed man returned to the car and you were directed to drive away. Accordingly I set a starting point of 10 months’ imprisonment. I indicated that a guilty plea discount of 25 per cent was available if the indication were accepted. As the Judge who gave the sentence indication, what is set out above is binding on me.3
3 Criminal Procedure Act 2011, s 116(2).
Pre-sentence report
[13] A pre-sentence report was obtained on 8 November 2022. The report notes that you were born and raised in the United States of America and then moved to New Zealand when you were 12 years old. You have five children, the eldest four of whom were to a relationship you formed when you were 15 years old and ended due to that ex-partner being controlling. Your youngest child is to your most recent ex-partner who you have been residing with and who has been supporting you throughout current matters.
[14] Your negative associations have been identified as a factor related to your offending. You will need to distance yourself from these negative influences in the future. You stated you were using methamphetamine regularly during the time of the offence and you believe this could have influenced your behaviour at this time.
[15] In relation to the offending, you claim to have been naïve as to your co- offender’s intentions and did not think anything of the request by the man you knew to stop at the victim’s house. After you heard the gun shot, you said you realised something had happened and drove back to your address uncertain of what was going on.
[16] The report concludes that you have a low risk of re-offending but a moderate to high risk of harm based on the events and the outcome of the offending. Various sentences were suggested by the report writer which included home detention, community detention and intensive supervision.
Defendant’s submissions
[17] Your counsel submits that the Provisional Advice to Courts Report (PAC report) outlines your personal circumstances and remorse. You are a single mother of five children. The youngest is aged six and is in the custody of your partner. The others are teenagers. You are considered at a low risk of reoffending. Underlying offending factors are identified as including anti-social associates and substance use.
Victim impact report
[18] I have read the victim impact report, which has also been read out in Court today. Undoubtedly there was serious harm caused by the principal offending; that is very clear. However, your role in the offending was minor and that has to be recognised when it comes to sentencing you.
Credit for time served/on EM bail
[19] On 13 April 2022, Robinson J granted you EM bail.4 He noted you had been in custody since 17 December 2021. You were given a 24-hour curfew. Other conditions included not to consume drugs and alcohol nor interact with your co- defendants or the victim’s family.
[20] However, on 2 June 2022, you appeared in court for a breach of EM bail. Toogood J recorded that you were not present at your bail address on 19 May 2022 when the police carried out a check at 5.49 pm. You were located at another address in Papakura on 1 June 2022. You told police you were trying to find emergency accommodation and locate your son. You said you found him and went back to the Papakura address to collect your items and you were going back to the bail address. You were then detained in custody because the occupant of your EM bail address no longer agreed to you staying there due to the breach.
[21] On 10 June 2022, you were bailed on bail simpliciter to a different address by Downs J. At this point your curfew was overnight only, being 7 pm to 7 am.
[22] On 5 September 2022, your bail address was varied by Gordon J back to the original address, but all other conditions including the overnight curfew remained the same.
[23] Therefore, by my estimate you have spent approximately four months in pre- sentence detention, approximately one month and three weeks on EM bail and around five months on bail simpliciter with an overnight curfew.
4 R v Laurent [2022] NZHC 756.
[24] The pre-sentence detention will be dealt with at the end of the sentence because if you are sentenced to imprisonment, pre-sentence detention is deducted automatically by s 90 of Parole Act 2002, but if you are sentenced to home detention or a community sentence I would need to give you credit for time spent in custody.5
[25] In taking into account that you spent time on bail with an EM condition, I must consider:6
(a)the period of time that you spent on bail with an EM condition; and
(b)the relative restrictiveness of the EM condition, particularly the frequency and duration of any authorised absences from the EM address; and
(c)your compliance with the bail conditions during the period of bail with an EM condition; and
(d)other relevant matters.
[26] The time you spent on EM bail was relatively short. I have estimated it to be roughly one and a half months and today your counsel has provided me with an email from the Department of Corrections which sets it at 50 days.
[27] In Longman v Police, one month’s credit was given for two and a half months on EM bail,7 and in McKeeman v Police, no credit was given because the defendant was on EM bail for only 39 days.8
[28] The time you spent on EM bail, taking the Corrections estimate of 50 days seems to me to be a relatively short time, and there is also the question of your compliance. Taking all that into account I consider only a modest credit should be given.
5 Harris v Police [2022] NZHC 345 at [21]–[22].
6 Sentencing Act 2002, s 9(3A).
7 Longman v Police [2017] NZHC 2928.
8 McKeeman v Police [2022] NZHC 1033.
[29] In relation to your time on bail simpliciter I do not consider that you were then subject to a restrictive bail regime such that you should be given credit.
[30] In terms of your previous offending the most serious offence was in 2006 and the other less serious offences were in 2014 and 2017. I consider you deserve some credit for not offending since 2017 and because the character of your previous offending has decreased in severity over time. These two additional credits warrant reducing the sentence of imprisonment to seven months.
[31] Ordinarily for someone in your position a sentence of seven months’ imprisonment would be commuted to one of home detention. This was recognised by the PAC report writer. However, here the four months during which you were remanded in custody presents a problem which I will explain to you.
[32] By definition under the Parole Act 2002 a sentence of seven months’ imprisonment qualifies as a short term sentence; and pursuant to s 86 of that Act the release date of a short term sentence is the date on which the offender who is subject to the sentence has served half of it.
[33] Further, pursuant to s 90 of the Parole Act, a period spent in pre-sentence detention is deemed to be time served. Section 90(1) of that Act provides that for the purpose of calculating the key dates and the non-parole period of a sentence of imprisonment and an offender’s statutory release date and parole eligibility date an offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention. This effectively means that the four months you spent on remand in custody is deemed to have been spent serving any sentence of imprisonment that I might impose on you for this offending.
[34] Sentencing Judges do not take account of time spent in custody when imposing a sentence of imprisonment. This is because that adjustment is done administratively and is an automatic consequence under the Parole Act. But sentencing judges do take time spent in custody into account when considering whether to impose home detention because in that circumstance it is the sentencing Judge who gives credit for the time spent in custody.
[35] Here the sentence of seven months’ imprisonment that I have arrived at would mean that pursuant to s 86 of the Parole Act you would serve no more than three and a half months’ imprisonment. I am also aware that pursuant to s 90 of the Parole Act the four months you have already served in custody would be treated as time served.
[36] Put shortly, the sentencing indication and the other credits to which I consider you are properly entitled restrict the potential sentence of imprisonment to one of seven months. But if I sentence you to seven months’ imprisonment you will be eligible for immediate release from prison given the release date that would be calculated under s 86 and the credit given under s 90 for time spent in pre-sentence detention. And the fact you would be eligible for immediate release from prison if I sentence you to seven months imprisonment effectively bars me from considering any alternative sentence. In this circumstance, if I were to impose a non-custodial sentence it would not be the least restrictive sentence I could impose on you as it would not allow me to give you the proper credits to which you are entitled.
[37] In Harris v Police,Campbell J explained how credit is given for time spent in pre-trial custody when imposing a sentence of home detention.9 The case law he traversed shows that Judges do not rigidly apply a one-for-one discount in the way that is given automatically and administratively under s 90 of the Parole Act. But nonetheless such full equivalence is often given. In Longman v Police, Simon France J posed the question in this way:10
… what adjustment should be made to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment, for time actually spent in gaol in effect serving the same sentence seen that way, full equivalence should be the norm.
[38] In Harris v Police, Campbell J noted that many cases have adopted the default position proposed by Simon France J in Longman v Police.11 Further, that this position was consistent with two recent Court of Appeal cases, Williams v R12 and Diaz v R13 where in both cases the Court of Appeal effectively gave full credit for time spent in
9 Harris v Police, above n 5.
10 Above n 7, at [9].
11 At [26].
12 Williams v R [2021] NZCA 333.
13 Diaz v R [2021] NZCA 426.
custody against a sentence of home detention that otherwise would have been imposed.
[39] An offender can only qualify for home detention if he or she would have received a short-term sentence of imprisonment, which is a sentence of two years or less. I need to recognise that generally the length of sentences of home detention are 50 percent of the term of imprisonment that must first be assessed. This reflects the fact that with short-term sentences of imprisonment only fifty percent of the term is served. In your case, if I were to give this 50 percent recognition for a sentence of seven months’ imprisonment the sentence of home detention would be three and a half month’s imprisonment. That outcome would then mean I could not give you the proper recognition for the time you had already spent in custody, because if I did, once the four months were deducted from three and a half months the result would be in the negative as it would be less than zero.
[40] The only way that I could in fact impose a sentence of home detention would be if I were to depart from general sentencing principles when it comes to fixing the length of a sentence of home detention and the quantum of the credit I would give for time spent on remand in custody. If I reduced those credits from the quanta that is generally given, I could arrive at a sentence of home detention, but even then it seems to me it would be somewhere between two to three months, four at the most. But that would not be a credible sentence for the present offending, and it does not give you the full and proper credits to which you are entitled.
[41] In all the circumstances, therefore, I consider I have no alternative but to impose a sentence of seven months’ imprisonment. I do that being aware that administratively the credits you will receive under the Parole Act will effectively mean that the time you have already spent on remand in custody will essentially be the sentence you have served.
[42] The difficulties in arriving at an appropriate sentence that I have identified are the result of you being remanded in custody for as long as you were, given the nature of your offending and personal circumstances. The time spent in custody has effectively become the sentence for the offending. However, it has also to some extent
removed the opportunity the Court would otherwise have had to tailor a sentence that would have assisted with your rehabilitation and kept you in the community.
Result
[43] I now come to the point where I pass formal sentence. Would you please stand, Ms Laurent. For the offence of accessory after the fact I sentence you to seven months’ imprisonment. I do so, knowing that the time already spent in custody will exceed the time to be served under this sentence. Were it not for this factor, I would have had no hesitation in imposing a non-custodial sentence for this offending. With the release will come standard conditions, and in addition I impose the special release conditions that are set out in the PAC report. Hopefully those conditions will go some way to assist you with rehabilitation.
[44]Please stand down.
Duffy J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-092-009340
[2022] NZHC 2502
THE KING v
CHAUNTEL LAURENT
Hearing: 30 September 2022 Appearances:
C Best for the Crown
M Kan for the Defendant
Indication:
30 September 2022
SENTENCE INDICATION OF DUFFY J
Solicitors:
Crown Solicitor, Manukau Michael Kan Law, Auckland
R v LAURENT [2022] NZHC 2502 [30 September 2022]
[1] Chauntel Laurent is charged with accessory after the fact to the offence of wounding with intent to cause grievous bodily harm.1 She seeks a sentencing indication, which is set out below.
Factual background
[2] Ms Laurent was at the time in a relationship with [Redacted] who is a member of the 23 Blue Cartel faction of the Crips gang.
[3] On 15 August 2021, Amit Singh, who was selling methamphetamine on behalf of the Blue Cartel, was robbed by Irene Ting and Zahrn Rasmussen. Members of the Blue Cartel conspired to seek retribution (it is not suggested Ms Laurent took any part in the conspiracy); this is simply currently in the summary of facts.
[4] On 22 August 2021, [Redacted] and associates made various preparatory steps such as obtaining firearms and a vehicle. The obtained a vehicle registration CKM205 which was driven to [Redacted]’s address at 2.52 pm.
[5] At 4 pm, Ms Laurent drove that vehicle from the address with [Redacted] and an unknown man as passengers. Ms Laurent did not know what the men were doing, only that they had to do something for someone. She thought [Redacted] was “just going to pick up bill money or something”.
[6] About an hour later, the group arrived at Zahrn Rasmussen’s address. Ms Laurent parked the car near the front entrance. He lived with his grandfather, Peter Rasmussen, the deceased.
[7] The unknown man got out of the car and handed [Redacted] a firearm. Ms Laurent told police this was the first time she had seen the firearm. The man began banging on the doors.
1 Crimes Act 1961, ss 71, 188(2) and 312. Maximum penalty five years’ imprisonment.
[8] Peter Rasmussen came to the door. There was an exchange between them. The man then shot Peter Rasmussen in his right leg, and he ultimately died from this wound.
[9] Ms Laurent stated to police that she was looking away the entire time. She heard a gunshot and someone yell, “I’ve been shot”.
[10] [Redacted] yelled at the other man to get into the car then told Ms Laurent to get out of there. She drove the two men back to [Redacted]’s address. She went straight inside and the men stayed outside.
Factual circumstances
[11] The factual circumstances I have taken from the police summary of facts that is attached to the Crown submissions dated 21 September 2022 for the purpose of a sentencing indication. That summary of facts applies to all offenders. However, at paragraph 42 under the heading “Defendant’s comments” there is an account of the event that led to the wounding of Mr Rasmussen, given by Ms Laurent. It is set out at paragraph 42(i) to (x). The Crown accepts that this account serves the basis for the factual summary supporting the charge of accessory after the fact.
Personal circumstances
[12] Ms Laurent is 34 years old. She has three previous convictions: threatening behaviour (2017), driving while disqualified (2014) and aggravated robbery (2006).
[13] The Crown accepts that there is no comparable offending relating to this offence. Accordingly, I see no reason for uplifting the choice of starting point to take account of any aggravating features relating to the offender.
Starting point
[14] There is no tariff case for this type of offending; however, the widely-adopted dictum of Lang J in R v Duff observes that accessory offending can range from destruction of evidence thwarting prosecution at the top end to an isolated one-off
incident of assistance at the lower end.2 Also of assistance is Moore J’s observation in
R v Tito that in accessory offending:3
[20]Two factors predominate in determining the seriousness of the offending:
(a)the first is the seriousness of the crime which the defendant has assisted; and
(b)the second is the level of assistance which has been provided.
Case Law – Crown Submissions
In its submissions the Crown refers to the following comparator cases.
[16] R v Bracken:4 where the defendant was charged with accessory after the fact to wounding with intent to cause grievous bodily harm; a starting point of 14 months’ imprisonment was adopted. Ms Bracken went to the street from her residence after hearing a car crash. She witnessed the primary offender shoot at two police officers, killing one of them. Holding the gun, he told her to drive her away. She tried to get into a car, but finding it locked, ran inside and returned with the keys. She drove the offender to his associate’s house. Venning J highlighted that:
(a)Ms Bracken directly observed the offender’s actions and their seriousness.
(b)She did not take the opportunity to run away or stay inside the house once she had returned to it to get the keys.
(c)The offender was able to avoid arrest and remove his firearms from the scene, giving him the chance to use them again or dispose of them.
[17] R v Keepa:5 the defendant was charged with accessory after the fact to murder; starting point 14 months’ imprisonment. Mr Keepa was visited by the primary offender
2 R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2012 at [11]. See also R v Te Poono [2020] NZHC 308 at [20].
3 R v Tito [2015] NZHC 2969.
4 R v Bracken [2021] NZHC 2615.
5 R v Keepa [2019] NZHC 3042.
at his home; the offender was bloody and bruised. He drove the offender to the scene of the stabbing and demanded the offender’s patch from people at the scene. He drove away from the scene but returned a few minutes later, again asking for the patch. At this point a member of the public informed him the victim had died. Mr Keepa then drove home and returned to the scene for a third time with the offender, waiting in the car while the offender retrieved items dropped in the fight. When the police arrived and told them to stop, he fled by car with the offender. The offender disposed of evidence during the drive.
[18]Grice J highlighted:
(a)Mr Keepa provided assistance in three ways: driving the offender to the scene, helping him escape from police at the scene and enabling him to dispose of evidence while driving away.
(b)The assistance was comparatively limited, noting however the above. He helped him search for his items and acted as a lookout for police.
(c)The aid was of significant assistance to the offender who evaded the police for several days and disposed of evidence.
(d)Returning to the scene three times indicated some measure of premeditation on the latter two occasions.
(e)By the time the police arrived Mr Keepa knew how serious the offending was.
[19] Duncan v R:6 the defendant charged with accessory after the fact to wounding with intent to cause grievous bodily harm; there was a starting point 12 months’ imprisonment. Ms Duncan saw her partner, the primary offender, shoot a neighbour in the shoulder across the fence. She promptly drove him away from the address with the shotgun. The Court of Appeal noted that the crime was serious and that the appellant had provided prompt and effective assistance to the offender.
6 Duncan v R [2013] NZCA 354.
[20] R v Duff:7 a defendant charged with accessory after the fact to murder a starting point of 18 months’ imprisonment was adopted. Ms Duff assisted her brother, the primary offender, by taking him to Auckland, arranging residence there, providing him with money and clothing, warning him police had executed a search warrant (but telling him to turn himself in), and providing him with a new phone. Lang J highlighted that:
(a)The offending occurred over a long period of time;
(b)Assistance was provided in multiple forms;
(c)The assistance caused police to expend considerable time and resources looking for the offender over 27 days;
(d)Police had warned Ms Duff to not provide assistance; and
(e)She provided further assistance after the search warrant was executed.
Case Law – Independent Research
[21] There are other cases that I also consider relevant. In R v Rodgers:8 accessory after the fact to reckless discharge of a firearm; starting point of 10 months was adopted. Mr Rodgers was driving slowly on the motorway. A car containing persons known to Mr Rodgers and his associates pulled past them. He accelerated and tail- gated their vehicle. His associate leant out the passenger window and fired two shots at the vehicle. Both vehicles then accelerated heavily to around 200 kmph. Mr Rogers followed the victims’ vehicle before turning away. It was accepted he did not know his associate was going to shoot at the victims.
[22]Gwyn J considered:
(a)R v Bracken (14 months) starting point was more serious because the charge of wounding with intent is more serious; Ms Bracken observed
7 R v Duff CRI-2009-063-6473 (HC Rotorua) 9 December 2010.
8 R v Rogers [2022] NZHC 1942.
the primary offender’s actions before assisting him and the primary offending killed a police officer.
(b)In contrast in Duncan v R (12 months; accessory to wounding with intent) Ms Duncan was an “active and willing participant”.
(c)Mr Rogers did not know about the firearm or that it would be used.
(d)He did not provide extensive assistance.
(e)He was on a road where it was difficult to stop so driving on was an understandable and safe course of action.
[23] R v Boskell:9 a defendant charged with accessory after the fact to murder; a starting point 10 months’ imprisonment was adopted. Ms McCormack was present in the car after her co-defendants murdered the deceased. That decision contains an appendix of accessory after the fact to murder sentencing decisions. They reveal that each case turns on its circumstances.
[24] R v McKenzie:10 accessory after the fact to wounding with intent; 10 month’s imprisonment starting point was adopted. Mr McKenzie’s brother stabbed another man who later died. Mr McKenzie later took his brother on “a reasonably lengthy car journey” to enable him to avoid arrest.
[25] R v Afamagasa:11 two defendants (brothers) were charged with accessory after the fact to murder; for both a starting point of nine months’ imprisonment (cumulative on a lead charge of cannabis offending) was adopted. Gang-related retribution had been planned by the primary offender. Sosaia Laloni was present at the time of the shooting, led the offender away from the scene and arranged for his brother Edgar Laloni to pick them up in the car and get rid of the bullets. Both brothers snapped their phones’ sim cards. The Judge highlighted that Edgar’s culpability was low because he did not know about the shooting until he was in the car driving away. The Judge also
9 R v Boskell [2015] NZHC 286.
10 R v McKenzie HC Christchurch CRI-2005-009-6159, 10 March 2006.
11 R v Afamagasa [2014] NZHC 2142.
noted that Sosaia led the offender away from the scene and arranged a pickup with knowledge of the shooting but acted in large part out of self-preservation, so considered his culpability the same as his brother’s.
[26] R v Te Koha Pou:12 accessory after the fact to wounding with intent; nine months’ imprisonment starting point. Mr Te Koha Pou became aware, a day after the fact, of his uncle’s assault on his partner (punching and gouging her eye). He drove his uncle to a remote piece of rural land owned by the uncle and assisted him to set up a camp on lower ground surrounded by trees. Gordon J found:
(a)The offending was deliberate but there was no premeditation.
(b)Mr Te Koha Pou did not conceal any weapons or dispose of any evidence, nor did he provide assistance over an extended period.
(c)But he did help his uncle avoid detection and arrest by transporting him from the scene of the incident as soon as the police were called.
[27] R v Tito:13 accessory after the fact to wounding with intent to injure; a 10 month starting point was adopted. Ms Tito assisted the primary offender in avoiding detection and assisted in disposing of incriminating evidence including the knife. Moore J noted:14
I am of the view that a starting point of 12 months’ imprisonment is slightly on the high side. This is because the cases cited by the Crown all relate to accessories after the fact of murder. While Mr Herkt has now been convicted of murder, the charge which you pleaded to incorporates a lesser offence. And, as the Crown accepts, it must attract a lesser sentence. In my view the principled approach is to recognise this in setting the starting point.
Discussion
[28] Here, the Crown submits that the case is more serious that Bracken because Ms Laurent drove the men to the scene and saw the male pass a firearm to [Redacted];
12 R v Te Koha Pou [2021] NZHC 2519.
13 R v Tito [2015] NZHC 2969.
14 At [12]. The cases cited by the Crown were R v Duff, Duncan v R, R v Graham, R v Tavita and R v Granich.
being wilfully blind to what occurred next. I disagree that the present case is more serious. In Bracken, the primary offending was more serious, having caused the death of a police officer. Fourteen shots were fired at two officers. Additionally, in Bracken, Ms Bracken had an opportunity to run away or stay inside the house. Here, Ms Laurent was inside the car when an armed man, unknown to her, had returned. There is no evidence that she knew the firearm was in the vehicle until the vehicle had reached the Rasmussen address. There is also no evidence that she directly saw the primary offender shoot Mr Rasmussen, she simply heard a gunshot and heard a man say, “I’ve been shot”.
[29] In my view Ms Laurent had little real opportunity to not assist. Further, in Bracken Ms Bracken witness the shooting and here, as I have said, Ms Laurent did no more than hear the deceased yell that he had been shot.
[30] I also disagree with the Crown’s submission that the offending is similar to Keepa. Keepa is clearly more serious, with the defendant rendering assistance in more than one way (including facilitating the disposal of evidence), returning to the scene with knowledge of the offending, and assisting the offender to flee with the police present. Ms Laurent only provided assistance in one way, being driving the men from the scene. Further, the defendant in Keepa was charged with accessory after the fact to murder. The difference in charge (despite the lead offender being charged with murder) engages Moore J’s comment in Tito as set out above that a lower starting point should recognise the different charge.
[31] Culpability in my view is probably similar to Rogers, McKenzie, Afamagasa and Te Koha Pou, which would indicate nine to ten months’ imprisonment as a starting point. The victims in McKenzie and Afamagasa died, as was the case here. However, Ms Laurent has not been charged as an accessory after the fact to murder. Most of these cases relate to the defendant driving the offender away from the scene.
[32] Although there is reference in paragraph 42 of the summary of facts to Ms Laurent driving the offenders to the scene where the offending occurred, in my view, that is not directly relevant to the sentencing exercise before me. She has not been charged as a party to the offending that took place, which indicates to me the
Crown accepts that she did not have the necessary criminal intent to support a charge under s 66 of the Crimes Act 1961. The charge of accessory after the fact is directly focused on what has happened after the primary offending has occurred, and that is what I have taken into account here.
[33] Whilst in an exchange with the Crown today, there was some discussionabout whether the starting point should be higher than 10 months, and I had contemplated perhaps an increase to 11 months, I consider overall when I stand back and look at the matters that I have canvassed, that the appropriate starting point should be 10 months’ imprisonment. As I have mentioned earlier the Crown accept here there are no aggravating features relating to the offender and, therefore, there would be no increase on that starting point.
[34] In terms of any decreases, both the Crown and the defence are agreed that a guilty plea discount of 25 per cent should be given. I see no reason for departing from that. There is still a significant amount of time until trial and therefore I consider that Ms Laurent is entitled to a 25 per cent discount.
[35] In terms of the time spent on EM bail, I consider that is something that is more appropriately left to the sentencing Judge. As to other personal mitigating circumstances, they cannot be determined now because I do not have a Provisional Advice to Courts (PAC) report available to me, and it is not appropriate for the Court to be considering personal circumstances when it is not properly informed of the relevant considerations to be taken into account for that exercise.
Result
[36] The result is a sentence indication which has a starting point of 10 months’ imprisonment with a 25 per cent discount for a guilty plea. Whether there are other discounts relevant to time spent on EM bail or other personal circumstances will be determined at sentencing.
Duffy J
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