R v MacKay - [2021] NZHC 3360

CERTAIN ASPECTS OF THESE SENTENCING REMARKS ARE SUPPRESSED AND HAVE BEEN REDACTED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-009-007656

[2021] NZHC 3360

THE QUEEN

v

JOSHUA JAMES MACKAY ANDREJ MICHAEL SCHWAAB

Hearing: 8 December 2021

Appearances:

S M H McManus for the Crown

K J Gray for the Defendant MacKay
A J McKenzie and D Goldwater for the Defendant Schwaab

Judgment:

8 December 2021

SENTENCING REMARKS OF NATION J

[1] Mr Schwaab, you are aged 28. Mr MacKay you are 26. You are to be sentenced on charges of attempted murder and unlawful possession of a firearm. A jury found you both guilty of those charges, Mr Schwaab you pleaded guilty to unlawful possession of a firearm. The jury’s verdicts were reached when they had before them, as an alternative, the charge of wounding with intent to cause grievous bodily harm.

[2] I will just begin by recording what has just happened. The victim of your offending was Mr Caleb Wihongi. He had not made any statement to the Police. He had not initially answered his witness summons and had to spend a night in custody

R v SCHWAAB & MACKAY [2021] NZHC 3360 [8 December 2021]

before coming to Court and giving evidence. He was clearly a person who did not wish to be involved in a trial but, on being in the witness box, I consider he gave honest evidence, answered the questions in the way that he knew he had to. But, there was no malice in his evidence towards either of you. He had not provided or assisted in preparing a victim impact statement but, during the morning after I had heard all the submissions from counsel, he came to Court and wished to make a statement. I will have that statement transcribed. It was an insightful, sensitive and measured expression of his view as to how destructive it often is for people who have made serious mistakes to have to be sentenced to imprisonment. He was not asking at all for any sort of harsh sentence but he spoke to you of how important it was for you to not make mistakes, to be available for your children and to make something of your lives. And, he ended by saying you should not be defined by what happens today.

[3] I just want to say to each of you that you have been most fortunate to have the victim of your offending come to Court and speak to you directly in the way he did. I know that you both have said that you wished already to participate in a restorative justice meeting with him but I suspect, in a way, what he said to you in Court today should carry much greater weight than it would have if it was just between the two of you. He spoke to you but wanted the Court to hear what he had to say. Don’t forget…

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 MacKay

Details

AGLC: R v MacKay [2021] NZHC 3360
Case: [2021] NZHC 3360
Decision Date: 8 December 2021

CaseChat Overview and Summary

Joshua James MacKay and Andrej Michael Schwaab were convicted of attempted murder and possession of an illegal firearm. The sentencing remarks of Nation J outline the circumstances of the shooting, which involved a firearm being used to shoot at Caleb Wihongi, who was left with serious injuries. Schwaab was the shooter, while MacKay was driving the vehicle and assisting in the shooting. The court identified several aggravating factors, including the use of a firearm and the impulsive nature of the shooting. The court also considered mitigating factors, such as the defendants' backgrounds and the lack of premeditation. The court sentenced Schwaab to six years and seven months' imprisonment for attempted murder and three months for illegal possession of a firearm, to run concurrently. MacKay was sentenced to four years and five months for attempted murder and two months for illegal possession of a firearm, also to run concurrently. The court also provided a three strikes warning for future serious violent offences.

Orders