R v McCulloch HC Invercargill CRI 2009-025-4683

[2010] NZHC 2193

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2009-025-004683

REGINA

v

BRIAN GILBERT MCCULLOCH SHANNON STANLEY DAVID GLASS LIAM JOHN MALONEY

Hearing:         3 December 2010

Counsel:         K Henry for Crown

P B McDonald for Mr McCulloch
S Vidal (on instructions from Mr H T Young) for Mr Glass
R G R Eagles for Mr Maloney

Judgment:      3 December 2010

SENTENCES OF PANCKHURST J

Brian McCulloch, Shannon Glass and Liam Maloney:

[1]      You are each for sentence in relation to the parts that you played in a group attack which was committed in the city on 4 November 2009.  You, Mr McCulloch, are for sentence upon two charges, one of aggravated burglary and one of wounding with intent to cause grievous bodily harm.  Mr Glass, you are for sentence upon a charge of wounding with intent to cause grievous bodily harm and you, Mr Maloney,

upon a charge of burglary and wounding with intent to injure.

R V BRIAN GILBERT MCCULLOCH AND ORS HC INV CRI-2009-025-004683  3 December 2010

[2]      The facts of the case are that the victim was a young vulnerable 19 year old youth. He suffered from various disabilities. The reports about him indicated that he functioned at about the level of an 11 or 12 year old.   Having observed him give evidence at the trial, I can understand that assessment and I can also understand that he was indeed completely out of his depth and vulnerable on this evening when the group arrived at his house.  He was living alone, having left his family home seeking some independence, but he enjoyed nonetheless the full support of his family and other agencies.

[3]      On this night, 4 November, a group of four of you went to Teviot Street.  It comprised  you,  Mr  McCulloch  and  Mr  Maloney,  and  two  young  boys  really, Matthew Evans-Kent and Miles Watkins who was also known as Sanson.   Teviot Street was your place of residence, Mr Glass, you being a boarder there.   I heard evidence about what occurred at the address.  There was some drinking and some discussion which turned to payback.  Somebody suggested that information had been provided to the police and that retribution was appropriate for this.  To my mind it was not altogether clear on the evidence whether the young victim, to whom I have already referred, was indeed identified in the discussion as the informer and the target, but nonetheless it was to his home you went and he became the victim on the night.

[4]      Matthew Evans-Kent was armed with a claw hammer.   He had stolen that earlier in the day and had it in his possession throughout and everyone, it seems, was aware that he had it.  During the course of the evening, Mr Glass you went out into the  garage  of  the  address  and  brought  back  a  tomahawk.    It  ended  up  in  the possession of Miles Watkins.  He concealed it down his trousers and retained it when the group set off from Teviot Street on foot bound for Bowmont Street where the victim resided.   You arrived there at a time which must have been approaching

11.00 pm.

[5]      Your victim was alone and in bed.  He woke on account of perhaps the noise of your approaching and certainly following a knocking at his door.  The evidence showed that at that point Mr Evans-Kent had the hammer out, holding it beside his body.  The door was opened, a ranch slider, and a blow was struck with the hammer.

That initial blow either missed or only glanced the victim’s upper body.  But then Messrs Evans-Kent and Watkins led the way inside and several blows were struck to the victim, to his head and upper body, with the hammer.

[6]      Some time into the attack Miles Watkins used the axe and he struck a blow to the lower back of the victim, causing a laceration which initially, it was feared, had compromised this young boy’s bowel; but it proved that it wasn’t quite as deep as that.  In any event the victim by then was on a couch, curled in a near foetal position as he endeavoured to protect himself.  It was at that point, Mr McCulloch, that you became involved in the violence itself and both kicked and punched the victim as he lay defenceless.  He commenced screaming and he was threatened with the hammer and  then  there  was  a  parting  blow  struck  with  the  axe,  occasioning  a  further laceration to his upper leg.   At about this point the group split into factions, left Bowmont Street and the hammer was discarded at a sports ground some distance away, while the axe was taken back to Teviot Street and eventually washed and returned to its place in the garage.

[7]      The victim suffered four injuries to his head which required to be stapled, 19 or 20 staples being necessary.   He had face and chest injuries which were less serious, but significant nonetheless.  From the axe blows he had the injury that I have already spoken about to his lower back and a 15 centimetre long laceration to the upper thigh.   Frankly how his injuries were not even worse I do not know and, fortunately, the long term effects are not as serious as one might have supposed.  He was admitted to hospital, underwent treatment and eventually surgery, but was then released from hospital within a day or so of that admission.

[8]      Nonetheless the consequences for him have been serious.  He has the scars of the wounds that I have just spoken of.  He has lost his independence and returned to his family home and he is, frankly, haunted by memories of this attack which is hardly surprising.

[9]      I have read as well the victim impact statement from his mother and she is equally a victim of this attack.  Not only has her son lost his chance of independence, but he is in need of special care which she has obviously provided.  Her work life has

been disrupted, her income has been affected and she has on her hands a disabled boy who is in need of special attention, even now as a result of what occurred over

12 months ago.

[10]     The outline I have just given is really an overview of the incident.  It is also necessary for me to assess your individual contributions or involvements.   At the same time I will refer to your personal circumstances.  As I have already said it was Matthew Evans-Kent, who was aged 15 at the time, who had the hammer and Miles Watkins who had the axe and there is no doubt that they were the principal offenders who  inflicted  the most serious  of  the injuries.    Evans-Kent,  to  his  credit,  gave evidence and in doing so supplied what impressed me as a forthright account as to pretty much exactly what had occurred on this evening.

[11]     Mr McCulloch, you added to this young man’s injuries but at least you were not responsible for the major blows that were struck with the weapons.  All of you have been convicted of the wounding charge on the basis that you were parties.  That is, that you joined in this group enterprise, you went to the address and by your very presence and lending support, that you encouraged and assisted these 15 year olds in what they did.

[12]     In your case, Mr McCulloch, you added insult to injury by joining in at the very end of the attack with the two weapons.  You dealt some parting shots to this young man when he was defenceless, injured and in his most vulnerable state.  Then you left, it seems with Liam Maloney, a little before the main offenders left the address.  It is important to note that it is accepted by the Crown, and was included in the summary of facts after you pleaded guilty at the commencement of the trial, that you  did  not  have  knowledge  of  the  axe  until  it  was  produced.    Hence,  your knowledge of a weapon was limited to the hammer.

[13]     You are now 20 years of age.  You were 19 at the time of the attack.  I note from the pre-sentence report that you have previous convictions incurred between

2007 and last year for burglary, driving with excess breath alcohol, wilful damage and breach of community work.  In relation to these you have received community- based sentences.   The pre-sentence report is hardly positive Mr McCulloch.   It

reveals you haven’t worked for an extended time.   You have got, in the report writer’s opinion, a problem with drink and also with managing your own anger. Generally it seemed  to  me,  reading that  report,  your life has  just  been  drifting without direction.  The report writer said as well that you did not demonstrate any remorse or understanding of the plight of your victim, but rather you were self- focused on your own problems.  In fairly emphatic terms Mr McDonald has refuted that, based on his exposures to you over the past several months in representing you in the build-up to today.  He has also drawn my attention to medical reports which were obtained soon after the incident itself, at which time your condition caused concern  to  a  psychiatric  nurse,  resulting  in  your  being  seen  by an  experienced psychiatrist, who concluded that you suffered from a degree of depression at that point.

[14]     Mr Glass, your involvement is that you supplied the axe in the circumstances to which I have already referred.   You were originally charged with aggravated burglary as well.  The victim gave evidence that you were within the house, but not involved in the violence.  Whereas, Mr Evans-Kent, in giving sworn evidence as a witness in the trial, said that he had no recollection of you in the house.   Nor of seeing you after the event and that he understood you were outside when the attack itself occurred.  This led me to conclude that it was unsafe for the jury to consider the burglary charge which you then faced.  I discharged you in relation to that matter on the footing that there was no sufficient evidence to show that you had entered the house.  And so, it follows that your culpability for the purpose of sentencing is in providing the axe and also a measure of encouragement and support to the group because  you went with them, albeit belatedly,  behind the group for  part of the journey, and you went at least to the doorstep or the near vicinity of the flat in which the victim resided.

[15]     As to your personal circumstances, you are older than any of the others at

34 years of age.   You are also different to the extent that you have a number of previous convictions, 19 in total for what might be termed offences of dishonesty, of disorder and driving-related matters.   In 1996 you served a short term of imprisonment for an offence of arson, but otherwise you have received community- based  sentences.    You  have  no  previous  convictions  for  offences  of  violence.

Indeed, it is a curious factor about this case that all of the five people involved in these acts do not have previous convictions for violent offending.  How, as a group, you committed this offence is really almost unfathomable.

[16]     The dominant factor in your pre-sentence report is your addiction to alcohol. There is also an alcohol and drug assessment that was obtained some time ago.  You have a longstanding problem with drink.  You describe yourself as an alcoholic and in fact I have the impression that you hide behind that label as if it in some way excuses your behaviour.  You claimed to the pre-sentence report writer that you were simply too intoxicated on the night to remember very much of what happened, and you displayed in his view little empathy for the victim.  You, too, have not been in work for an extended time and nor are you reported as being motivated to undertake treatment for your addiction.   Your attitude was rather that you would serve your sentence and then go back into the community and, the indications were, revert to your previous lifestyle.  This led Mr Young in his written submissions to describe you as in a “contemplation stage”.  He suggested that the best hope was that, if the Parole Board dealt with your case, they would only release you subject to requirements that you undertake treatment.  He may well be right.

[17]     Mr Maloney, you are 18 now and you were 17 at the time.  Your involvement was that you were with the group, went to Teviot Street; heard what went on there and witnessed as well what went on there, and then went on foot to the flat.  Once inside there is some dispute in the evidence as to exactly what you did.  You told the police that you went to the fridge looking for something to drink and found nothing and that that was about as much as you were involved in.  The victim described you as having gone to other rooms in the house, while the attack was unfolding, and of then returning and saying, “there’s nothing here”, which can only be interpreted as a remark to the effect that there was nothing worth taking.  Whatever you actually did it is plain that you weren’t involved in the actual violence and that you left in the first wave of those who departed from the house.

[18]     Your personal situation is that you left school at a very young age, having been suspended, and then excluded.   To your credit in recent times you have undertaken studies with the YMCA and obtained passes in relation to certain NCEA

subjects.  As a consequence you have been in receipt of a training benefit in recent times while you have been trying to better yourself.   I note you have only one previous conviction and that is for wilful damage.

[19]     In your case, after the verdict, and particularly when you were found guilty of wounding with intent to injure rather than with intent to cause grievous bodily harm, I called for a home detention appendix.  With reference to that verdict I agree with Mr Eagles’ assessment.   The jury must have been in doubt that you had an appreciation that violence at the level of grievous bodily harm was contemplated. Accordingly, in your case, the jury took the view, which I must adopt as well, that you at least had knowledge that injury was intended, if not grievous injury.

[20]     Reverting to the home detention appendix, the address that was proposed was that of your mother who is in court today.   However, the report writer expressed some reservations as to the suitability of the address essentially on account of your mother’s past.  She, too, has served a sentence of home detention.  The report writer did not obtain access to the underlying offences which resulted in the imposition of that  sentence   and  as   a  result  the  recommendation  was  for   a  sentence  of imprisonment, rather than home detention.   I was left with the impression that the writer  saw  your  mother  as  uncooperative  in  revealing  her  past  convictions. However, I have spoken to her.  After counsel made submissions I interviewed Mrs Maloney in chambers but in the presence of counsel for the Crown and your counsel. She has explained her past, the sentence that she got, her present associations and I have also had some opportunity to gauge her, particularly her motivation in relation to you.

[21]     You entered a plea to the offence of burglary in the course of trial.  That was done as a result of a ruling I gave that you could not be a party to aggravated burglary; and Mr Eagles immediately pointed out that you had always been prepared to plead guilty to a lesser charge.  I have now seen that in the form of a letter dated

21 January 2010.  Not only were you prepared to plead to a burglary-related charge, other than aggravated burglary, but you also offered a plea at that stage to the offence upon which you were ultimately convicted.   It follows that you must be viewed as having been prepared to plead guilty at a much earlier stage than was the

case in relation to Mr McCulloch.  I will come back to the significance of that in a moment.

[22]     Before I can turn to the assessment of your individual penalties I need to refer to the sentencing of your two co-offenders.  They pleaded guilty at an early stage. Both were sentenced by Judge Phillips on 20 May last.  In the case of both of them a starting-point   for  their  sentencing  of  11   years’  imprisonment  was   adopted. Mr Watkins, in the end result, received a sentence of four years’ imprisonment. Major deductions were made on account of his age, on account of initiatives of a youth justice kind which had been undertaken and of one-third for his guilty plea at the first reasonable opportunity.

[23]     In relation to Mr Evans-Kent, an even larger deduction was made on account of his absence of previous convictions, his age and again youth justice initiatives in which he had been involved.  In the end result he received a sentence of two and a half years’ imprisonment.   There was also in his case an allowance made for assistance which he had provided, including his preparedness to give evidence. Happily he honoured that promise, and vindicated the decision that Judge Phillips made to discount his sentence on that account.

[24]     In one sense those sentences of four and two and a half years set the scene for your sentencing, but they also provide something of a complication.   These two offenders got what can only be described as very merciful sentences which reflected their extreme youth at 15 years of age, their guilty pleas and what I have already referred to youth justice initiatives in which they had been involved and, in one case, assistance which was and has been provided.

[25]     There is no escape from the fact that this was a very serious offence.   The aggravating  features  of  it  are  self-evident  and  significant.    This  was  extreme violence.  There was planning of sorts, and the motivation was revenge.  The injuries were serious, but thankfully not disabling, or I would hope of lifetime significance. There were blows struck to the head using weapons.  This young man’s house was entered at night.  He obviously was a very vulnerable target as well.  So it follows that the sentencing must be approached with those features in mind as is required by

the leading case of R v Taueki.[1]    The major issue for me is fixing your personal criminality or culpability.  As I have already commented to counsel I find that quite a difficult exercise in this case.

[1] R v Taueki [2005] 3 NZLR 372.

[26]     In Taueki at [42] the Court of Appeal said that where there are multiple offenders involved in group violence there is no requirement to draw “fine distinctions” based on who it was who struck the worst of the blows, and who didn’t, and I must be guided by that comment of the Court of Appeal. The Sentencing Act, however, in s9(2)(d) requires that where there is limited involvement on an offender’s part, that too must be taken into account. Whether your lesser involvement can be described as limited may be debatable, given the circumstances to which I have referred.

[27]     Mr McCulloch, could you stand up please?   The Crown has suggested that the  starting-point  for  your  involvement  should  be  nine  years’  imprisonment. Mr McDonald did not seriously dispute that evaluation.  He argued, however, that your plea, which had been indicated some week or more before trial and was entered at the commencement of the trial of your two co-prisoners, deserved recognition, as did the mental health issues to which I referred a moment ago.  He has also argued that  your age,  coupled  with the fact that  you  have no  previous  convictions for violence  and that  you  have not served  a sentence of imprisonment in the past, warranted significant recognition as well.

[28]     After considerable thought and reading a number of decisions that have been referred to by counsel, I have reached the view that I should adopt a starting-point of seven  years’  imprisonment  in  your  case.     I  accept  in  large  measure  what Mr McDonald has said on your behalf as to the allowances for the plea; for the absence of previous convictions and for your age and I deduct from the starting-point an allowance of three years to arrive at an end sentence of four years’ imprisonment. That is imposed in relation to the wounding charge and in relation to the burglary, the concurrent term is 12 months’ imprisonment.

You may sit down.

[29]     Mr Glass, could you stand up please?  Your culpability as I have already said was in providing the axe and in allowing its removal from Teviot Street following a discussion as to what it was to be used for.  It does seem that you had some thoughts about your involvement in this, at least at the point that you got to the Bowmont Street address.  I proceed on the basis that you disassociated yourself at that point and did not witness or encourage by your presence or anything else, the violence as it was occurring.  The Crown has suggested a starting-point of four years in your case. Ms Vidal, in making submissions today in Mr Young’s absence, suggested that it should be as little as two and a half years.  In my view the appropriate starting-point for your culpability in this affair is three and a half years’ imprisonment.  I allow you a reduction of six months to recognise the fact that you have no previous convictions for violence, but otherwise there is no scope for reduction and the end sentence is three years’ imprisonment.

You may sit down.

[30]     Mr Maloney, the contentions as to a starting-point in your case were four years by the Crown and three years by Mr Eagles.   I must bear in mind that as a result of the view formed by the jury the maximum penalty which you face is half that of any of your co-offenders.  Mr Eagles argued that you should be allowed a

25 per cent deduction for your guilty plea and also that there should be an allowance made for your age of six months, given that you were 17 at the time of the offending. On this basis, from the starting-point he suggested, an end sentence of one year and nine months was indicated.   He then submitted that home detention was an appropriate sentence.  The Crown does not accept that.  It is something which has concerned me as well and I have indicated already the steps I took to speak to your mother in the presence of counsel.

[31]     You have no relevant previous convictions and, indeed, only one for wilful damage.  Your pre-sentence report is the most positive of those that are before me today.  It seems you have taken some steps to better yourself since you left school at a very young age, by undertaking study as I have described.

[32]     On  balance  I have  concluded  that  a  sentence  of  home  detention  can  be imposed in your case.  You are sentenced to nine months’ home detention upon the conditions that you are to travel direct to the address of 17 Ottrey Street, Invercargill and  there  await  the  arrival  of  a  probation  officer  and  the  monitoring  company official.  You are to reside at that address and not change it without the prior written approval of the probation officer and it is a further condition, and an important one, Mr Maloney, in view of the content of the report, that you don’t possess or consume alcohol or drugs for the duration of your sentence.

[33]     I make a further special condition that you are to undertake an alcohol and drug assessment at Drug and Alcohol Specialist Services; and that you are to undertake and complete appropriate counselling, including if necessary residential treatment as recommended and considered appropriate by your probation officer and that you complete those obligations to the satisfaction of that officer.