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]      The victim suffered serious damage to his upper right arm which has required significant surgery.   He will remain disfigured.   The prognosis for the victim recovering full use of his arm is unclear.

[10]     In terms of what are known as the Taueki sentencing bands,1 the Crown and defence recognise the presence of aggravating factors of use of a weapon, premeditation and serious injury.   The Crown submits that the victim should be regarded as vulnerable and, for Mr McBride, Mr Surridge recognises that there were two offenders involved.

[11]     Both the Crown and defence suggest similar starting point sentences at the bottom or towards the bottom of Band 2.   Ms Feltham submits that the offending itself falls on the cusp of Bands 2 and 3 of Taueki, consistent with the 10 year starting point taken by Simon France J when sentencing Mr Schuster.   However, given the lesser role played by the Mr McBride – including the fact that he did not actually shoot at the victim, Ms Feltham submits that a starting point, as I have indicated, towards the bottom of Band 2 (the bottom being five years) would be appropriate.

[12]     I acknowledge, as Taueki emphasises, that this is not a question of assessing the number of aggravating features that are present.   I must exercise judgment in assessing the gravity of what happened.   I consider that the serious aggravating factors are the use of a weapon, the degree of planning and premeditation and the impact on the victim.  There were, I acknowledge, two offenders.  It is less clear to me here that the victim here should be regarded as being vulnerable, in the sense of that term in Taueki.   I think that aspect of the offending, namely the luring of the victim to a remote location, is reflected in the aggravating feature of planning and premeditation.

[13]     By my assessment, and very much in line with the submissions I have heard, I set the starting point sentence at five years, that is at the bottom of Band 2 of Taueki. In setting it at the bottom, rather than towards the bottom, I acknowledge Mr McBride’s action towards the end of the incident in telling the victim to run

away.

1      R v Taueki [2005] 3 NZLR 372.

[14]     Whilst  Mr McBride  does  have  some  previous  offending,  I  accept,  as submitted  by  both  the  Crown  and  defence,  that  that  offending  does  not  here constitute an aggravating factor.

[15]     In terms of mitigating factors I need to assess credit for Mr McBride’s guilty plea.   Here the Crown and the defence part company.

[16]     For Mr McBride, Mr Surridge has submitted that a full, 25 per cent, discount should be given.   For the Crown, Ms Feltham’s submission is that it was always possible for Mr McBride to plead to the lesser charge of wounding with intent to cause grievous bodily harm.  Therefore, the credit for a late guilty plea should be in the region of 10 per cent.

[17]     I acknowledge that Mr McBride was facing that lesser alternative charge from the outset and could, in theory, have pleaded to it.   I also acknowledge the reality, however, that there were discussions over a period of time relating to the statement  of  facts.    The  statement  of  facts  had  provided  that,  from  the  outset, Mr McBride had been a party knowing of Mr Schuster’s specific intention to kill.  It was not until very recently, when it was accepted by the police that Mr McBride may not have known of the specific intent to kill which Mr Schuster acknowledged when he pleaded guilty, that the matter was able to be set down for this sentencing indication.

[18]     I therefore think that the fair approach, balancing those considerations, is to allow Mr McBride the same credit as Mr Schuster, that is 20 per cent.

[19]     There being no other mitigating factors, the indication is of an end sentence of four years’ imprisonment. There will be no minimum term.

Sentence2

[20]     Mr McBride, you have now pleaded guilty to the charge of causing grievous bodily harm with intent to cause grievous bodily harm for which I have just given you a sentencing indication.  I enter a conviction against you accordingly.

[21]     That charge is what is called a serious violent offence.  I am required to warn you of the consequences of that conviction, that is consequences it may have in the future.

[22]     If you are convicted in the future of another serious violent offence except murder,  you  will  receive a  final  warning.    In  addition,  if  the Judge imposes  a sentence of imprisonment for that offence, other than life imprisonment for manslaughter or preventative detention, then you will serve that sentence without parole or early release.

[23]   If you are convicted of murder after today, you will be sentenced to imprisonment for life.   You must serve that life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence without parole you will not be released from prison.  If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[24]     The question of sentencing now arises.  The normal course is to get a report from the Corrections Department to see whether there are any factors personal to you, or any other matters, that I should take into account when I impose a sentence. Mr Surridge has confirmed that you want to proceed to sentencing this morning and that you have agreed to waive your right to have a pre-sentence report prepared.  I proceed on that basis.

[25]     In terms of the sentencing indication I have just given, you will be sentenced to a term imprisonment of four years. There will be no minimum term.

2      Mr Surridge then took instructions from Mr McBride.  Mr McBride’s instructions were that he would accept the indication and, accordingly, the charge was formally put to him and he entered his guilty plea.

[26]     You may stand down Mr McBride.

“Clifford J”

Solicitors:

Crown Solicitor, Wellington for the Crown. Mana Law, Wellington for the accused.