R v MacKay
[2021] NZHC 3360
•8 December 2021
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 SchwaabJudgment:
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 what he said during the time you know that you are going to have to spend in custody as a result of what happened.
[4] I have to begin by summarising the circumstances in which these offences were committed. I do that now.
[5] At 11.30 am on 19 September 2020, Mr MacKay was at his home in Shirley. Mr Schwaab and another person arrived at the address. Mr Schwaab’s four year old son was with him. There were four CCTV cameras on Mr MacKay’s house which recorded part of what occurred there.
[6] Not long after they arrived at Mr MacKay’s address, another person arrived at the address, by arrangement, to do some welding work on Mr Schwaab’s car.
[7] Soon after that, Mr Schwaab removed a metal box containing a gun from the front passenger footwell of his car. Mr Schwaab, with his son, took the gun out and fired two shots at some sort of target.
[8] Mr MacKay was not seen to be interacting with Mr Schwaab at that time but neither was there any indication that Mr MacKay was concerned or uncomfortable with what had occurred. All three men appeared comfortable with each other’s company and with whatever was happening. Mr MacKay knew those shots had been fired.
[9] The metal box with the firearm was put in the footwell of the back seat of Mr MacKay’s car by the third associate. Both of you, Mr Schwaab and Mr MacKay, knew the firearm was there. The firearm was a sawn-off .22 rifle, with the stock of the firearm replaced with a pistol grip handle. It was a firearm that could be more easily concealed and could be used at close quarters. The magazine could take 10 shots which could be fired in rapid succession so, with the magazine, it was a semi- automatic rifle. None of you were licenced to hold such a firearm.
[10] Just after 12.00 pm, all three of you drove to Hell Pizza and, from there, to Mr Schwaab’s home at 479 Hereford Street to have lunch.
[11] At about 1.45 pm, Mr Schwaab went outside and was abused by an elderly person, Mr Graham, who lived some distance to the east along Hereford Street. Mr Graham began abusing Mr Schwaab for the fact a vehicle, it seems it belonged to the third associate, had been parked on the pedestrian verge close to Mr Schwaab’s home. There was then an altercation and further abuse between Mr Graham and Mr Schwaab as Mr Graham continued walking along Hereford Street with you, Mr Schwaab, following him. Mr Schwaab and Mr Graham were outside 502 Hereford Street, about 80 to 100 metres from where the altercation had started. Mr Graham again abused Mr Schwaab, and Mr Schwaab ended up assaulting Mr Graham.
[12] Following that altercation, Mr Schwaab began walking back towards his home. Mr MacKay, with the third person in the front passenger seat of Mr MacKay’s car,
drove east from where Mr MacKay’s car had been parked. Mr Schwaab got into the rear seat. They drove towards 502 Hereford Street.
[13] As Mr Graham was walking away from 502 Hereford Street, he was approached by Mr Wihongi. Mr Wihongi’s mother lived nearby. Mr Wihongi knew Mr Graham as an alcoholic who was inclined to be abusive. Mr Wihongi told him to mind his language given there was a park nearby and children could be there. Mr Wihongi understood there had been an altercation between Mr Graham and the other person, Mr Schwaab, who had got into the car that was coming towards him.
[14] Mr Wihongi is a physically imposing figure. He was not minded to walk away as the car, driven by Mr MacKay, approached. I accept he stood on the roadway or footpath in the vicinity of 502 Hereford Street in an imposing manner. He was not carrying anything. He was not in a position to be any danger to the men in the car.
[15] As they approached Mr Wihongi, Mr MacKay slowed the car and veered across the centre line. Mr Schwaab had the firearm. When the vehicle was adjacent to Mr Wihongi, Mr Schwaab fired four shots through the open window. The shots were all fired towards Mr Wihongi. None of those shots hit Mr Wihongi.
[16] Mr MacKay then drove a short distance further along Hereford Street, did a three point turn, came back towards Mr Wihongi and slowed to almost a stop when close to him. Four further shots were fired in quick succession. Three of those shots hit Mr Wihongi. There were two wounds to his lower back, one where the bullet went straight through and the other where the bullet lodged. Another shot hit him in the right forearm, hitting a bone and completely snapping it. He required surgery to remove the bullets and repair the damage to the bones in his forearm. There was a superficial wound to Mr Wihongi’s hip or flank.
[17] There was forensic evidence of shots that had been fired which struck a building and a tree in the vicinity of 502 Hereford Street. That damage was consistent with shots having been fired towards Mr Wihongi and towards the upper part of his body.
[18] From that point, Mr MacKay sped off, with the two other men in the vehicle, to Mr MacKay’s home in Shirley, approximately four kilometres away. There, Mr Schwaab took the firearm and attempted to conceal it in a rough area of vegetation just over a fence from Mr MacKay’s property.
[19] Following their arrest, both Mr Schaab and Mr MacKay initially denied any involvement in the shooting incident on Hereford Street. Both were charged with the offending and held in custody.
[20] In a subsequent interview, Mr Schwaab admitted to being the shooter. Mr MacKay admitted to being the driver but denied that he had known there was going to be a shooting or that he intended to assist Mr Schwaab with the shooting as it happened.
[21] At trial, it was the Crown case that Mr Schwaab was the principal offender and, from the way everything had happened, the jury could be sure that Mr Schwaab had shot at Mr Wihongi intending to kill him or at least with the required reckless intent. The defence for Mr MacKay was that everything happened very quickly, he had panicked in the situation that emerged, he did not know Mr Schwaab was going to shoot at Mr Wihongi, did not know that Mr Schwaab was going to wound Mr Wihongi or that, when Mr Schwaab shot at Mr Wihongi, Mr Schwaab was intending to kill Mr Wihongi.
[22] Mr MacKay did not give evidence but referred to statements he made in his interview as being consistent with that defence. That is his counsel referring to those statements.
[23] Mr Schwaab did give evidence. At several points he said he had only intended to scare Mr Wihongi. However, at the beginning of the second Police interview, when asked what happened after the three men were in the car and drove towards where Mr Wihongi was, Mr Schwaab said he had shot at Mr Wihongi.
[24] There is no guideline judgment as to sentences for attempted murder. The Court of Appeal has said that the guideline judgment in R v Taueki, for offences of wounding with intent to cause grievous bodily harm, can be relevant through analogy.1
[25] In line with the approach in Taueki, the Crown identified particular aggravating features which they said were significant. The first related to whether or not the shooting involved extreme violence. Both Mr McKenzie for Mr Schwaab and Ms Gray for Mr MacKay said that should not be an aggravating factor because this violence was impulsive, it happened over an extremely short space of time. They said it was not the sort of extreme, sustained violence that would be classified as extreme violence in terms of an aggravating feature, as referred in Taueki.
[26] My view is that shots were fired to Mr Wihongi’s body. A bone in his forearm was shattered. The wound to his back was to the lower back but to shoot someone to the body is an act of extreme violence. Even one shot could easily have been to a vital organ of the body or, for instance, to the spine where the consequences could have been much worse. In this case, it wasn’t just one shot that was fired at Mr Wihongi, eight shots were fired. I consider the element of extreme violence was present to a high degree.
[27] It was a seriously aggravating feature, as indeed counsel for the defence accept, that a firearm was used and a firearm which I note was in the nature of a sawn-off semi-automatic .22. I would comment here in relation to the submission made by Ms Gray for Mr MacKay that this was a perfect storm. The Court now knows of the background to each of you. It knows of factors that are likely major factors in the way that you reacted to the situation you were in. There was the unfortunate circumstance that you two particular men were confronted by an older alcoholic who was needlessly abusive. Other people would probably not have reacted to him in the same way.
[28] The crucial factor in the tragedy that happened on that day, especially for you, was that you had with you a sawn-off firearm. Had you not had that weapon, there would have been no shots fired at Mr Wihongi. He would not have had a smashed
1 R v Taueki [2005] 3 NZLR 372.
forearm and you would not now be before the Court having been convicted of attempted murder.
[29] There was evidence that the firearm you used is more difficult to aim accurately at an intended victim. Mr Schwaab you thus had less control over where exactly the shots went, increasing the danger not just to Mr Wihongi but also to others who might have been in the vicinity, whether by way of a direct shot or through a ricochet. This shooting occurred mid-afternoon on a Saturday on a busy street. There were other members of the public on the street and in cars. The potential danger of shots from a moving vehicle was high. The aggravating feature of the offending with a firearm was present to a high degree.
[30] In the context of this shooting, I accept Mr Wihongi was vulnerable. As counsel for you Mr Schwaab noted, he was not vulnerable in the way this Court often sees with people who might be physically vulnerable or who are in a situation where perhaps they are trusting someone particularly. But, nevertheless, he was unarmed. He was standing by himself near the street. He had no defence to the shots fired at him, although I accept he did not run away immediately after the first four shots. I accept he did attempt to move away after he had been shot in the arm. So, that element of vulnerability is present but to a medium degree.
[31] I next deal with the issue of premeditation. And, both Mr McKenzie for you Mr Schwaab and Ms Gray for you Mr MacKay urge me to deal with this case as if there was really no premeditation, that what happened was something impulsive and that simply occurred really on the spur of the moment when and after you decided to make that three point turn in the car and Mr MacKay you drove back towards Mr Schwaab [Wihongi].
[32] I consider that there was an element of premeditation in that, before the shots were fired and before Mr Wihongi was shot at, Mr Schwaab, or someone in the vehicle, had to put that firearm in the hands of Mr Schwaab. Mr Schwaab had to arm himself with it and position himself in the back seat of the vehicle so as to be able to fire at Mr Wihongi. It is accepted that Mr MacKay knew the firearm was in the vehicle. Even though he was in the front seat and Mr Schwaab was in the back, I am sure Mr MacKay
knew that Mr Schwaab had armed himself with the firearm and was in a position to use it, as Mr MacKay drove east along Hereford Street and then veered over the centre line to bring Mr Schwaab closer to where Mr Wihongi was standing.
[33] The Crown says there was premeditation, albeit to a relatively low extent. That is an accurate way of describing it. I accept, when the three men left Mr MacKay’s address initially with the firearm in the metal box in the footwell of the back seat, and when Mr Schwaab got into the vehicle after being picked up by Mr MacKay, there was, at that point, no joint plan to use the firearm to shoot at Mr Wihongi. Consistent with that, the Crown did not ultimately rely on s 66(2) as a basis for finding Mr MacKay guilty as a party to attempted murder. I proceed on that basis, despite the statements Mr Schwaab made in his second interview that this whole incident started with Mr Graham abusing all three of you and the last, according to you Mr Schwaab, you had seen of the firearm before getting back into the car was the third associate having it by his trousers. I note that was not the evidence you gave at the trial when giving evidence from the witness box. And also, what you said in your statement was not admissible evidence as against Mr MacKay.
[34] I also noted that, in your second interview Mr Schwaab, you said the firearm had been used to fire a number of shots at your house on Hereford Street before you all went outside onto the street. In your evidence at trial, you said you did not think this had happened on that day. And again, I note that what you said in your statement was not admissible evidence as against Mr MacKay. And, Ms Gray, in response to a question from me, reminded me that the Police confirmed there had been no calls to the Police or reports of shots having been fired in the vicinity of your Hereford Street home before what happened with Mr Wihongi.
[35] This shooting happened because Mr Schwaab was abused by Mr Graham, abuse which was not started by Mr Schwaab. In response, Mr Schwaab became angry with Mr Graham. When Mr Schwaab got into the back of the car, the firearm was there. In his anger, Mr Schwaab’s response was to shoot at someone who was, in effect, standing up to him, even though that person, Mr Wihongi, was not the man he had the argument with. Mr MacKay knew Mr Schwaab was angry, knew he was going to use a firearm and, in the heat of all that was happening, assisted and encouraged Mr
Schwaab by driving the vehicle as he did, particularly so with the three point turn, his coming back and slowing almost to a standstill for the further shots that were fired.
[36]Premeditation was present but to a low degree.
[37] The offending here was analogous to band two offending in Taueki, justifying a starting point sentence in the range of five to 10 years.
[38] The Crown suggests a starting point of 10 years’ imprisonment for Mr Schwaab. They acknowledge Mr MacKay’s culpability was less than Mr Schwaab but say that is to a small degree. They suggested a starting point sentence for Mr MacKay should be eight years’ imprisonment.
[39] I consider the distinguishing feature of this case is the suddenness with which the events occurred. Mr Schwaab your decision to use the firearm and Mr MacKay your decision to assist him were decisions made in the heat of the moment and acted upon immediately, without any time for reflection or judgement as to what you were doing. Of course, neither of you should have needed time. No rational and responsible person could have thought that, because someone had been angry and abusive to Mr Schwaab, it was appropriate to use a firearm to shoot whether at him or at someone who, as Mr Wihongi was, had simply been talking to Mr Graham.
[40] Both defence counsel highlighted the fact that the crucial shooting was the shooting that occurred after the three point turn. I accept the guilty verdicts as to attempted murder had to be based on what the jury inferred from the three point turn, the slow drive back to where Mr Wihongi was standing and the further four shots fired at very close range, the first of which shattered the bone in his arm.
[41] The attack however on Mr Wihongi was not as long as the attack in Marsters.2 There, the Court of Appeal considered it had been open to the sentencing Judge to find that the attack there displayed “a high level of sustained violence”. That is not how I would view all that happened on Hereford Street with the two of you and Mr Wihongi
2 Marsters v R [2011] NZCA 505.
or even with Mr Graham. There was not, in this case, the same extent of harm to the victim as there was in Marsters.
[42] Although there was premeditation, it was not to the same extent that was important and has been important to the Court when arriving at a starting point for the sentences for the offending involved in other cases the Crown referred to, and they will be referred to in my remarks.3
[43] It is however important and necessary for me to recognise the jury’s verdict. They were obviously sure that, at the time shots were fired, Mr Schwaab intended to kill Mr Wihongi. The fact the jury found Mr MacKay guilty of attempted murder would indicate that they were sure of this and that Mr MacKay knew at that point that was Mr Schwaab’s intention when Mr MacKay helped Mr Schwaab through driving as he did.
[44] Mr Schwaab, your counsel suggests an appropriate starting point on the attempted murder charge is seven years’ imprisonment.
[45] Mr MacKay, your counsel submitted that a starting point in the vicinity of six years’ imprisonment is appropriate for you. That submission was made on the basis that I should accept your intention to assist Mr Schwaab with the shooting began only when you did the three point turn or after that, so as being for an even briefer period of time. As I have indicated, I am satisfied that you knew Mr Schwaab was going to use a firearm as you drove towards Mr Wihongi at 502 Hereford Street and before the first four shots were fired. But you had that knowledge and acted on it to a point where you could be found guilty of attempted murder only when you decided to make the three point turn and immediately returned the very short distance to where Mr Wihongi was standing.
[46] It was you Mr Schwaab who armed yourself with the firearm and who was prepared to use it. Had you not done so, I accept Mr MacKay would likely have done nothing further to encourage or assist you with a shooting. I also recognise that Mr
3 Marsters v R, above n 2; R v Jackson HC Whanganui, CRI-2006-083-1891, 17 February 2007; R v Huata [2012] NZHC 2735; Huata v R [2013] NZCA 470; Howard v R [2018] NZCA 633.
Schwaab’s involvement in the shooting was an escalation of his violent reaction to the verbal abuse he was subjected to by Mr Graham. I proceed on the basis Mr MacKay was not involved with that initial abusive exchange. On that basis, it is appropriate to adopt a different starting point for each of you.
[47] I have carefully read and had regard to the sentencing remarks in R v Garlick, a case referred to me by Ms Gray.4 The starting point adopted for attempted murder there was five and a half years’ imprisonment, where there was considerably greater premeditation and a background of harassment over weeks in the context of a break up of a domestic relationship. There was however a significant difference to this case in that, through the intervention of others, no actual shot was fired at the intended victim and no one was actually hurt. Only one shot was fired. As Ms McManus pointed out for the Crown, the rifle used in that case was a legal rifle, not modified in the way this one was.
[48] The starting point sentence I adopt for you Mr Schwaab is eight years’ imprisonment. For you Mr MacKay, the starting point sentence I adopt is six years’ imprisonment.
[49] Both of you have also been convicted of possession of a firearm. That, in itself, is a serious offence, especially so given the lethal nature of this firearm. With it being cut down and converted to a pistol grip, it was clearly a firearm not intended for lawful or normal recreational use.
[50] However, on the evidence, I accept that Mr Schwaab had control of the firearm and responsibility for it to an extent greater than Mr MacKay. Mr MacKay’s assistance in having control of it came from the fact he knew it was in his vehicle and thus assisted Mr Schwaab in having possession of it.
[51] The Crown suggested an uplift of three months’ imprisonment for the charge of unlawful possession of a firearm would be appropriate, taking into account that the possession of the firearm has also been recognised as an aggravating feature of the main charge.
4 R v Garlick HC Nelson CRI-2008-042-1111, 13 March 2009.
[52] Mr Schwaab, through your counsel, you accept that an uplift of three months would be appropriate. For you Mr MacKay, I consider the possession of a firearm has sufficiently been taken account of through that being an aggravating feature of the attempted murder charge. This means there does not need to be an uplift on account of that charge in establishing a starting point sentence for you. To acknowledge the conviction on that charge, there will be a sentence of imprisonment but it will be concurrent with the sentence on the attempted murder charge.
[53] So, the starting point sentence for you Mr Schwaab is eight years and three months’ imprisonment.
[54]For you Mr MacKay, the starting point is six years’ imprisonment.
[55] I now begin to consider aggravating or mitigating factors relating to each of you personally.
[56]Mr Schwaab, I begin with you.
[57] The Crown accepts that, although you have an extensive criminal history, you have no previous convictions for violent offending, so no uplift on account of your previous criminal offending is required.
[58] Your counsel refers to the detailed information provided in the s 27 report from Dr Gilbert as to the way this offending is connected with the particular start you had in life. I also have a detailed, well written and carefully considered letter from your mother. The information she provides in that letter and the observations she has made as to how your offending reflects the start you had in life was also referred to in detail by Dr Gilbert.
[59] You were adopted by German parents from an orphanage in Russia at the age of two. During the vital first two years of life, I accept you had none of the nurturing or even the basic care that was needed for you to develop as a healthy person, both mentally and physically. You were adopted by your parents who could provide for
you materially in the way you needed but, even with their commitment to you, they were not able to make up for the damage you had initially suffered.
[60] Your parents separated in Germany when you are eight. You came to New Zealand with your mother. She says that all your life you have been unable to read or understand the way other people appeared or communicated with you, despite your intelligence. As a result, on coming to New Zealand, you were different from the other children at school in the relatively small community where you then lived with your mother. There were continuing behavioural problems with you. It is consistent with what she perceived to be your situation that you were initially diagnosed as suffering from Aspergers. When you were 13, you went back to your father in Germany. He was a strict disciplinarian. He was violent to you. You say there were times when you were locked in a cellar while he attended to his business. You say he broke your nose with punches several times. He hit you with a bottle leaving a scar on your face.
[61] You came back to your mother when you were about 15 but began getting into trouble, skipping school and stealing bicycles. You were held in custody in the Youth Prison, Te Puna Wai, for six months. There, you were a target for bullying and violence. You joined up with the Bloods gang. You learnt how to steal cars. As the s 27 report put it, on release from Te Puna Wai, you have been in and out of prison ever since.
[62] Your offending is extensive, mainly for offences of dishonesty, breaching Court orders, burglary and unlawful taking of motor vehicles. Relevantly, you had a conviction in the Youth Court from 2009 for unlawful possession of a firearm. In 2010, you had convictions in the District Court for possession of a knife in a public place and for unlawful possession of a firearm.
[63] At the age of 20, you flew to Thailand to meet an online partner you had established a relationship with. You lived there for one year, subsequently married and now have two children to her.
[64] On returning to New Zealand, your offending became more serious. The s 27 report told me you became involved in selling methamphetamine. But, as an
indication of your intelligence, you said you were not a user of it. You were also selling cannabis. It was in that context you referred to carrying a gun, although the report says, after initially carrying a gun for protection, you disposed of it. You obviously had no aversion to guns when you acquired the firearm used in the Hereford Street shooting.
[65] In 2017, you were subjected to an incident of serious violence when you were kidnapped and assaulted by a rival gang. You were in a situation where you probably feared for your life. As a result of that incident, which you have difficulty talking about, you have been diagnosed as suffering from post-traumatic stress disorder.
[66] Your mother’s letter explains, in a compelling way, why the start you had in life has made it difficult for you to interact with others in a pro-social, positive way. This has led to you forming associations with a gang that has led to further offending. Through that, you first came to have possession of a firearm. All of that ultimately helps to explain how you were in possession of the semi-automatic cut down rifle that you had with you on 19 September 2020.
[67] Your background, in particular the intensely harsh first two years of your life in a Russian orphanage, ultimately explains the impulsive and dangerous way you reacted after being abused initially by someone who, in reality, was no threat to you.
[68] Your mother explains how, at the age of nine, you were diagnosed with Asperger’s disorder. You were then diagnosed with ADHD. When you went back to Germany and while in your father’s care, you were diagnosed with reactive attachment disorder. When you came back to New Zealand, your mother arranged for you to have therapy for that disorder, but that came to an end when you were held in custody at Te Puna Wai. That was despite her efforts to have that continuing therapy available to you and a willingness to pay for it. She laments the fact that you did not have appropriate therapeutic assistance and intervention at that stage in your life. You have been diagnosed as suffering from post-traumatic stress disorder because of what happened in 2017.
[69] The sad fact is that, despite the support you had from your mother, with all the difficulties you faced as a teenager, you decided to throw in your lot with a gang. That has led to your further offending, and ultimately explains how you came to be in possession of a dangerous firearm and why you chose to use it as you did on 19 September 2020. But, it is a significant feature of this offending, especially when looking at other cases the Crown suggested were relevant, that what occurred with you and Mr MacKay was not gang related.
[70] I consider it appropriate to recognise how you were damaged in the first years of your life and the associated mental disabilities you suffer from. Your counsel suggested a discount for such matters of 20 per cent would be available. I consider an appropriate discount would be 15 per cent.
[71] Your counsel suggests there should also be a discount for remorse of 10 per cent, on the basis you are genuinely sorry for having shot the victim and that you have demonstrated your remorse for what happened through offering to participate in restorative justice with the victims of your offending. The Crown submit there should be no discount for remorse because you have not accepted that you were rightly convicted of attempted murder and were found to have intended to kill the victim. You did not plead guilty to either of the charges you were facing in relation to that. So, obviously, you receive no credit that might have been available for you had you avoided the need for a trial. The Crown acknowledge that it was your right to deny the charges and to require the Crown to prove the particular elements of the charges which they had chosen to put before the Court. But, as Mr McKenzie pointed out for you, you were prepared to accept that you were, in some way, criminally responsible for what happened. It is clear from the second interview that you accepted you were the person who used the gun and it has been indicated again in your pre-sentence report that you accept responsibility for what occurred.
[72] I do accept that you recognise it was wrong of you to fire the gun at Mr Wihongi and you genuinely wanted to apologise to him for that. I will give you a credit of five per cent for that remorse. This means that, against the starting point of eight years and three months, with total discounts of 20 per cent, your end sentence would be a little over six and a half years’ imprisonment.
[73] What you can do now to show real remorse and for you to show the commitment and love which your mother says you have for your two children, and really what Mr Wihongi talked to you about in relation to the importance of being a father and a parent to your children, what you can do now is to take advantage of such programmes that should be available to you in prison, to break away from the associations that have been a major factor in your offending and to deal with all the other issues which you will have to to ensure that nothing like this happens again for you, for anyone else who might suffer from the sort of thing that occurred.
[74]Mr MacKay, I turn to you.
[75] You have never previously been sentenced to imprisonment. You have only six previous convictions, a number of those are connected with driving offences. For your previous offending, the sentences have been a fine or supervision, on one occasion with community detention and a disqualification. You do not have the history of a serious criminal offender.
[76] The Crown accepts there is no need for an uplift for previous criminal offending.
[77] Mr MacKay, I have information as to your particular background through the pre-sentence report and a s 27 report. The s 27 report is presented as a cultural report. Your father was not part of your life from birth. In that sense, you were abandoned by him. You were brought up initially by your mother and stepfather. Although you identify as Māori and the report recognises that you would benefit from building on that connection in the future, the fact is that you were not encouraged as a young person to think of yourself as Māori. The s 27 report really just describes, in Māori terms, the way you have suffered in your early years and in your general upbringing, rather than suggesting that you suffered in this way because you were Māori.
[78] Importantly, I do have a report from the consultant psychiatrist, Dr Monasterio, that was prepared when you sought a sentence indication. You told Dr Monasterio of the way you were submitted to serious physical punishment from your [step]father. You said your mother failed to protect you from that and was seemingly uncaring
towards you. [redacted] Dr Monasterio says that, in your intermediate years at school, you were picked on and bullied by other children because you were anxious and socially awkward.
[79] You left school at the age of 16 without achieving any formal academic qualifications. You stopped work in 2014 after you suffered a lower leg injury and when you were diagnosed with a mental condition. You lost contact with your biological family over the past eight years, although you have some correspondence with your biological father who lives in England. You began using cannabis at the age of 13 and became a regular user from the age of 16. Dr Monasterio says you report a range of psychiatric symptoms that commonly occur as a consequence of impaired attachments and severe trauma in childhood. He says you describe symptoms consistent with post-traumatic stress disorder, insidiously developing from the age of six [redacted].
[80] Disclosed clinical notes refer to you first presenting to the psychiatric emergency service in June 2014. You were assessed by a psychiatrist at that time with chronic, severe generalised anxiety disorder with social isolation and social avoidance, a history of cannabis dependence and longstanding fluctuating symptoms of depression. You had a further brief contact with community specialist mental health services in December 2016. You also presented with persisting cannabis dependence and anxiety in the context of social stress when you were assessed by the Watchhouse specialist mental health service in January 2019.
[81] That information explains how you came to be associated with your co- offender Mr Schwaab and why you would have wanted to support and assist him with the angry response he had first to Mr Graham and then with what he wanted to do with Mr Wihongi.
[82] I do not necessarily take everything you told Mr Monasterio at face value. You told him that, from your earliest years at school, you came to the attention of school authorities for behaviour disturbance and “compulsive lying”. You told Dr Monasterio that you were startled by the initial number of loud bangs you heard when Mr Schwaab was in the car, that you turned your car around while in a heightened emotional state
and that you did a three point turn to drive past where the shots had been fired to determine whether anyone was hurt. You told him that, after leaving Mr Schwaab’s house, you only drove towards Mr Schwaab to stop him fighting with the person with whom he was arguing and to assist him to get away from a dangerous situation. I do not accept that you were telling the truth about these matters. Mr Schwaab was not fighting with Mr Graham at the time Mr Schwaab got into your car. Your case at trial was that your involvement was all the result of the panicked choices you made in the situation in front of you. In your second Police interview, you said nothing about doing the three point turn and driving back to check if anyone was hurt.
[83] You told the probation officer that your associates with this offending were not your real friends. You told her they are “just superficial contacts who use and abuse me”. In your second Police interview, you spoke of Mr Schwaab as being someone who always had your back and someone who had given you money, food and smokes when you needed them because you could not make ends meet. The way you spoke of him in your second interview was of someone who you thought was a true friend to you.
[84] I have read the letter you wrote on 17 November 2021. I note you say in that letter that you do not accept the jury’s findings and that you were devastated by the verdict and I could see that you were. You said you did not do the three point turn to help Mr Schwaab, you did not know what was happening and did the three point turn out of shock. Despite this, you say you are sorry towards the victim and have no ill- will towards to Mr Wihongi. You say you still have flashbacks of him being injured, that you know the shooting was out of all proportion to what had occurred only minutes earlier with Mr Graham. You say that, if you could turn back time, you would.
[85] Your letter does provide me with information which indicates that, because of your experiences growing up, you will find the prison environment particularly hard. You have suffered from intense anxiety over a number of years. With what happened to you as a child, I accept that anxiety is likely to become more intense with your prison sentence.
[86] I have also read the letter from your partner. She told me of the love you have for your baby and the commitment and kindness you showed towards your child as a father.
[87] As with Mr Schwaab, I am going to give you a 15 per cent discount for such matters.
[88] Your counsel has also asked for some credit on account of your remorse. I accept you are sorry for the fact Mr Wihongi was shot. You are sorry for your involvement in what happened and you have genuinely wanted to convey your apology for all of that through attempting to engage with Mr Wihongi using the restorative justice service. For that, you can receive some credit given that there is no credit for a guilty plea.
[89] The Crown says there should be no credit for remorse given you do not acknowledge and take responsibility for your involvement in the offending. That, in my view, does not preclude some allowance for remorse, as with Mr Schwaab, in circumstances where you are not getting any credit for a guilty plea but still genuinely regret what happened when considering what the consequences were for the victim. I acknowledge the way in which, for others as well as yourself, you wish you could have turned the clock back to avoid both the shooting and the way Mr Wihongi was shot. The credit I give you for remorse is five per cent.
[90] So, that is a total discount of 20 per cent on the starting point sentence of six years, bringing your sentence, rounded down, to four years and nine months’ imprisonment.
[91] You were on EM bail from 4 November 2020 until the time of your trial which began on 6 October 2021. Throughout that time, it was a condition of EM bail that you reside at the specified address 24 hours per day, seven days per week, except for certain approved purposes. There was thus a considerable restriction on your freedom. The credit I allow for that is four months. That brings your end sentence to four years and five months’ imprisonment.
[92]Mr Schwaab and Mr MacKay, please stand.
[93] Mr Schwaab, on the charge of attempted murder, you are sentenced to six years and seven months’ imprisonment. On the charge of unlawful possession of a firearm, you are sentenced to imprisonment for three months, concurrent with the sentence for attempted murder.
[94] Mr MacKay, on the charge of attempted murder, you are sentenced to four years and five months’ imprisonment. On the charge of unlawful possession of a firearm, you are sentenced to imprisonment for two months, concurrent with the sentence for attempted murder.
[95] You will remember that following your conviction I gave you a three strikes warning as to what the consequences would be for a further serious violent offence. Bear that warning in mind.
[96] I make a direction that the s 27 reports for both of you, Dr Monasterio’s report and the letter to the Court from Mr MacKay’s [Schwaab’s] mother are to be provided to the Department of Corrections and hopefully they will be of assistance in ensuring that you do have the opportunity to participate in programmes and to benefit from them from this prison sentence that it has been necessary for me to impose.
[97]You can both now stand down.
Solicitors:
Raymond Donnelly & Co., Christchurch K J Gray, Barrister, Christchurch
A J McKenzie, Barrister, Christchurch D Goldwater, Barrister, Christchurch Public Defence Service, Christchurch.
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