R v McBride - [2015] NZHC 385

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-004415 [2015] NZHC 385

THE QUEEN

v

TEARIKI TERRY McBRIDE

Hearing: 6 March 2015

Appearances:

K Feltham for the Crown
P Surridge for the defendant

Sentence:

6 March 2015

SENTENCE INDICATION AND SENTENCE OF CLIFFORD J

Indication

[1] Mr McBride currently faces charges of attempted murder and, in the alternative, causing grievous bodily harm with intent to cause grievous bodily harm. His trial is to commence on Monday (9 March 2015). Mr McBride was charged originally together with John David Schuster. Mr Schuster has pleaded guilty to the charge of attempted murder, and has been sentenced by Simon France J to eight years’ imprisonment.

[2] For Mr McBride to be found guilty of attempted murder, the Crown would have to prove beyond reasonable doubt that he knew Mr Schuster acted with the specific intent to kill. The Crown acknowledges that, whilst there was a clear plan
between Mr McBride and Mr Schuster to inflict really serious harm on their victim,

R v McBRIDE [2015] NZHC 385 [6 March 2015]

Mr McBride may not have been aware that Mr Schuster had the specific intention to kill.

[3] On that basis, if a plea were to be entered to the alternative charge, the Crown would not now seek to continue to trial on the attempted murder charge.

[4] In that context, Mr McBride has asked for a sentencing indication on the basis that he would plead guilty to the alternative charge of causing grievous bodily harm with intent to cause grievous bodily harm, pursuant to s 188(1) of the Crimes Act 1961.

[5] The facts for the purposes of this sentencing indication are that, in collusion with Mr Schuster, Mr McBride took the victim to a beach on the Makara coast on the pretext of a fishing trip. Mr Schuster had gone there earlier, armed with a shotgun. When the victim went past the hiding place, Mr Schuster emerged. After a brief exchange of words Mr Schuster shot him from close range. There was a second shot when the victim fell to the ground but it did not hit him.

[6] The victim managed to get up and ran back along the beach towards Makara. Mr McBride picked up the shotgun and ran after the victim. He caught up with the victim approximately 400 metres from the Makara Beach car park, and pointed the shotgun at him. The victim grabbed the shotgun from Mr McBride and a struggle ensued. They both fell to the ground, and the victim gained control of the shotgun.

[7] Mr McBride then stated to the victim “he made me do it”, referring to Mr Schuster. Mr McBride told the victim to run, which he did. The victim dropped the shotgun and ran towards the settlement at Makara Beach.

[8] The victim went to a house at Makara Beach. The occupants of the house phoned the police. Mr McBride and Mr Schuster were apprehended a short time later.

[9]…

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 McBride

Details

AGLC: R v McBride [2015] NZHC 385
Case: [2015] NZHC 385
Decision Date: 6 March 2015

CaseChat Overview and Summary

In the case of R v McBride, the defendant, Teariki Terry McBride, faced charges of attempted murder and causing grievous bodily harm with intent to cause grievous bodily harm. The case was heard in the High Court of New Zealand Wellington Registry. McBride was alleged to have conspired with John David Schuster to attack a victim on a Makara beach, with Schuster shooting the victim and McBride assisting by holding the victim at gunpoint. The victim suffered severe injuries, and both McBride and Schuster were apprehended shortly after the incident.

The court needed to determine the appropriate charge McBride would plead guilty to, considering whether McBride was aware of Schuster's intent to kill. The Crown agreed that McBride might not have known Schuster's specific intent to kill, thus potentially dismissing the attempted murder charge. McBride requested a sentencing indication if he pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm under section 188(1) of the Crimes Act 1961.

The court assessed the aggravating factors, including the use of a weapon, premeditation, and serious injury, and the mitigating factor of McBride's role in the crime being less direct than Schuster's. The court determined the starting point of the sentence at the bottom of Band 2, which is five years, considering McBride's actions towards the end of the incident. The court also assessed the credit for McBride's guilty plea, deciding on a 20% discount, which led to an indicated sentence of four years' imprisonment with no minimum term.

The court sentenced McBride to four years' imprisonment for causing grievous bodily harm with intent to cause grievous bodily harm. McBride accepted the indication and pleaded guilty to the charge. The court also provided McBride with the mandatory warnings regarding future convictions of serious violent offences.

Orders