R v McDonald

[2022] NZHC 2808

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-092-012375

[2022] NZHC 2808

THE KING

v

GEORGE MCDONALD

Hearing:

28 October 2022

Appearances:

C P Howard and C D Piho for the Crown

M W Ryan and J-A E Tulloch for the Defendant

Sentencing:

28 October 2022

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors/Counsel:

Crown Solicitor (Kayes Fletcher Walker Limited), Manukau Vulcan Chambers, Auckland

R v MCDONALD [2022] NZHC 2808 [28 October 2022]

[1]                 George McDonald, you appear today for sentencing having been found guilty by a jury on 30 May 20221 of wounding with intent to cause grievous bodily harm.2

[2]The maximum penalty for that offence is 14 years’ imprisonment.3

[3]                 Before I proceed, I note that, in one respect at least, you are a fortunate man. This was your third “strike” offence. Had the three strikes law not been repealed just days before you had originally been set down for sentence, there is a very real prospect that you would have been sentenced to serve the full 14 years of the maximum term of imprisonment.

[4]                 However, the three strikes law has been repealed so you will have the benefit of the repeal.4 Accordingly, I follow the orthodox approach to sentencing.

[5]This is the process I will follow:

(a)First, I will outline the circumstances of your offending.

(b)Secondly, I will consider your relevant personal circumstances as they have been put before the Court.

(c)Thirdly, I will explain the approach to setting the sentence and discuss the requirements of the Sentencing Act 2002 as they apply in this case and in accordance with decisions of the Court of Appeal and High Court.

(d)Finally, I will determine and impose the sentence I consider appropriate.

1      R v McDonald HC Auckland CRI-2019-092-12375, 31 May 2022 (Bench Note No 11 of van Bohemen J).

2      Crimes Act 1961, s 188(1).

3      Section 188(1).

4      Sentencing Act 2002, s 6 and sch 1AA, cl 14.

The offending

[6]                 Mr McDonald, you were charged in relation to events that occurred in the early hours of 10 November 2019 in connection with a party. Because this was largely a family party, I am going to set out what happened in some detail.

[7]                 On the night of 9 November 2019, a surprise 21st birthday party was held for a young Tongan man at Ōtara. The address was the home of the young man’s aunt and your brother, Henry.

[8]The guests were all or almost all Tongan. They were all part of a wider family

– first and second cousins of the 21-year-old whose party it was.

[9]                 A lot of alcohol was drunk by guests before and at the party. However, at least until sometime after midnight, the vibe at the party was good and people were having a good time.

[10]              At a certain point, you and some cousins and friends dropped by in your blue ute. You stayed a short time and then left. You drove around to Crown Crescent and parked up and continued to talk and drink.

[11]              Back at the party, at some time after midnight, an argument developed among some of the young women present. Things escalated into physical altercations. As more people got involved, a melee developed in the street in front of the house and spilled into Otamariki Park on the other side of the road.

[12]              At 2.39 am, your brother Henry called you. Within minutes, you and your friends were back at Cobham Crescent. You parked on the other side of the road from your brother’s house, next to Otamariki Park.

[13]              You got out of your ute, taking with you a sawn off shot gun. Some of the young men present, who were very drunk, challenged and mocked you and your friends but retreated back into the park and up the hill.

[14]You followed them into the park and up the hill.

[15]              You fired a warning shot into the ground which hit no-one. You kept walking towards the young men at the top of the hill. You fired a second shot which hit the victim in the leg.

[16]              A 111 call was made at 2.44 am. The significance of that time is that only five minutes elapsed between your brother’s call to you and the 111 call. In other words, it all happened very quickly.

[17]              You and some of your friends drove away. The following night, the Police found the blue ute burnt out in the carpark of the Upper Nihotapu Dam on Piha Road.

[18]              The victim was taken to hospital. He had a wound in his leg measuring about 15 by 18 cm in size. His leg muscles were severely damaged, and his bone was exposed. He underwent several surgeries in hospital to repair the wound to his leg, which included skin grafts. He was in hospital for 15 days.

The Victim Impact Statement

[19]              The victim says it took over six months to learn to use his leg again, and until the end of last year to feel he had recovered as much as he could hope to. But he is not fully recovered. He has issues when he tries to lift heavy objects or walks for long periods. He thinks his leg will never get its full strength again.

[20]              The victim says the incident cost him greatly financially and affected his family. While he could not work, he was unable to keep supporting his family. He was not able to go back to work full time until the end of 2020, a year after the shooting.

[21]              The victim says that, after the shooting he was stressed out because he feared your associates would do something to him or his family.

[22]              The victim says he has nothing to say directly to you about what you did. He says, however, that what was supposed to be a good night turned out to be a horrible year or so for him.

The trial

[23]              It is relevant to record some aspects of what happened at your trial which took place in May this year, some two-and-a-half years after the shooting.

[24]              First, the week before the trial, an associate of yours, Mr Pome’e, who looks nothing like you, went to the Police and confessed to being the shooter. The Police did not believe him, and the trial went ahead. Mr Pome’e came to Court and gave evidence that he was the shooter. The jury did not believe him because they convicted you of the crime. I am sure they were right to do so. The so-called confession was nonsense and inherently unbelievable.

[25]              Secondly, a number of the young people at the party who had made statements to the Police and had identified you from a photo montage told the Court they were so drunk at the time they could not remember anything and cast doubt on their identification of you. Whether they were just fearful of you because of your association with the Comancheros or had been leaned on, I can’t say.

[26]              What is evident, however, is that there were efforts to assist you in evading responsibility for your actions and you have continued to deny responsibility. Indeed, even as recently as July this year, you told the Corrections pre-sentence report writer that “someone got shot from one of the people in your group”. You also said you did not understand how you could have been found guilty because someone else had admitted to the crime.

[27]              As I shall discuss more fully in a minute, it seems from the cultural report prepared about your circumstances that you have had a change of heart. You may now accept that you are responsible for the shooting – although a straight-out acceptance of responsibility is glaringly absent from the report and from the letter you have written to me.

Personal circumstances

[28]              I now address your personal circumstances relevant to your offending, drawing on the Department of Corrections pre-sentence report and the cultural report prepared in accordance with s 27 of the Sentencing Act 2002.

[29]              The pre-sentence report does not contain a lot of detail. You told the report writer you did not want to address the Court through that report. I accept that. However, the Cultural Report prepared by Ms Shelley Turner, to whom you spoke by VMR, helpfully provides considerably more detail. What follows is taken principally from that report, as well as from your criminal and traffic history.

[30]              Mr McDonald, you are 31 years old. You were born in Auckland to Tongan parents. You were the youngest child of seven; you had three brothers and three sisters.

Growing up

[31]              You grew up in Glendene, initially speaking Tongan as your first language. Your mother was and is a devout member of the Mormon church and tried, apparently unsuccessfully, to raise you and your siblings in the values of the Church of the Latter Day Saints.

[32]              Your parents separated when you were about six years old. You told the report writer your father was absent for most of your childhood. You attribute much of the trouble you later got into to that absence. However, you also told the report writer you spent a chunk of your youth in Ōtara with your father’s family. So, there remained a connection with your father’s side of the family and your father did not go back to live in Tonga until three years ago.

[33]              In any event, I accept your father did not live with you in your formative years, that your mother was often absent as she worked several jobs to pay the mortgage and that you were left in the care of your older siblings. Given the number of siblings and your mother’s evident care for you, I find it more difficult to accept you were left at home alone as you told the report writer.

[34]              As you got older, you were sent to Australia to live with an older brother. Over there, you started showing signs of rebellion. You said you began sneaking out of home and going to parties. That was where you first tried alcohol.

[35]              You returned after a year and attended St Paul’s College, starting in year 10. You liken your time at school to being in a gang; you had a group called the “JDKs” (Junior Don Kings). Also at that time, you developed links with a youth gang based in Crown Crescent, Otara – just around the corner from where the shooting took place. They were known as the “CCB’s” (Crown Cres Boys).

[36]              Around 2007, when you were in year 11, you were sent to the United States to live with your sister. You were there for three months and spent a lot of time with the younger brothers of your sister’s husband. They were members of the Crips gang.

[37]              Upon returning to New Zealand, you lost your placement at St Paul’s. You ended up in an alternative education programme and did some courses.

Late teens / early adulthood

[38]              There you met a girl, who fell pregnant that same year. You were living with your sister but were kicked out. Your girlfriend returned home, and you lived at the “boy’s bullet shop” where cannabis was sold. Older youth gang peers guided you to live with your father and make it work to support your pregnant girlfriend.

[39]Your daughter was born in 2008.  You became a teenage dad.

[40]              You started working. You devanned for a few months. When your daughter was born, your girlfriend’s father employed you to powder-coat at his company. But you lost the job after eight months for being “in party mode” too much after receiving your first holiday pay.

Trouble and prison start

[41]              Your relationship ended at that time too. You began living rough, often on the streets, with the Crown Cres Boys or in a shack behind your aunt’s house. You started

getting into trouble. In December 2009, you were sentenced to two months’ imprisonment after being convicted on a variety of charges, including assaulting a female, disorderly behaviour, other threatening behaviour, two counts of excess breath/blood alcohol and resisting the Police.

[42]              You say you welcomed going to prison. At the time, you were “hard out into the street gangs and stuff”. You believed doing a little jail time would make you a superstar when you got back the hood. When you got out, you went harder and faster after the gang lifestyle. You were back in jail within six months.

[43]              This time, you were sentenced to 10 months’ imprisonment for possessing an offensive weapon, assault with a blunt weapon, unlawful assembly and disorderly behaviour, as well as breach of supervision conditions.

First strike offence

[44]              In January 2011, you were arrested for what would be your first strike offence, commission of a crime with a firearm. In March 2012, you were sentenced to two years and six months’ imprisonment for that offence and various other offences, including assault with intent to injure and resisting the Police.

[45]              You were not released on parole but served the full term. You say you were young and not willing to do “programmes and stuff”. While in prison, you continued to associate with fellow gang members.

[46]              You were released in 2013. You say you were now “even more of a superstar”. You took on a more senior role in the gang and went deeper into the gang lifestyle.

Second strike offence

[47]              You were arrested again within two years of release from prison, after committing your second strike offence in October 2015. This time, the offence was wounding with reckless disregard for the safety of others. The facts of that offending were in evidence at your trial in May this year. They bear remarkable similarities to what happened in November 2019.

[48]              On that occasion, you were at another 21st birthday party. An altercation broke out and you became involved. You went to your car, took out a shotgun, fired a warning shot into the air, and then fired a shot in the direction of the group who had been opposing your associates. One person was shot in the lower right leg and suffered significant injuries.

[49]              You pleaded guilty on that occasion. In September 2016, you were sentenced for that offence, and for unlawful possession of a firearm, to two years and four months’ imprisonment. Again, you served your full sentence.

Third strike offence

[50]              You were back in the community in 2018. You say you tried to take it easy for a bit but then went back to living the same life. You got into some relatively minor trouble. Then, in November 2019, the shooting in Cobham Crescent took place. In May 2022 you were convicted of your third strike offence.

[51]              All up, it took you from January 2011 to November 2019 – just under nine years – to commit three serious offences that could have resulted in your spending the next 14 years in jail. You spent over half of that nine years in jail.

Gang affiliations

[52]              As I have said, you grew up around the influences of the Crown Cres Boys, whom you describe as “all [your] dad’s family”. In that sense, your family was the gang and the gang led you to crime. Crime led to prison, and to a more hardcore gang.

[53]              In prison, you met “501” deportees who had been sent back from Australia. Through these connections, you joined the Comancheros, many of whom are Tongan. You say the Comancheros were what you were looking for in a street gang. You were evolving but the boys in the hood did not want to grow. So, you went with the Comancheros. The report writer says they helped fill a void that had been part of growing up as a New Zealand-born Tongan.

[54]              You told the report writer you are an active member of the Comancheros, but Mr Ryan advised me to believe that you have left the gang.

Drug and alcohol use

[55]              As I have already mentioned, you first tried alcohol when you were in Australia when you were quite young. You say your first experiences with cigarettes and cannabis were about the same time - when you were 12 or 13 years old.

[56]              The first time you got really drunk was when you were in the United States. When you came back to New Zealand, you deepened your engagement with alcohol, with gangs, and with violence. You say it was about dominance; trying to be the baddest.

[57]              Over the years, you expanded your drug repertoire to include methamphetamine and MDMA.

[58]              You told the report writer that, at the time of the shooting, you were intoxicated and had consumed cocaine. That was not in evidence at your trial. You say the cocaine contributed to the reaction you had.

[59]              You have engaged in a number of programmes addressing your alcohol and drug use while on EM bail awaiting trial. Your counsel, Mr Ryan, has provided a number of reports attesting to your attendance at these programmes. I give you credit for finally realising there are better things in life than being a gang superstar in prison.

Violence

[60]              The report writer says violence was commonplace in your childhood; at home, in the neighbourhood or at school. It was especially prevalent in Ōtara, where you spent time with your father’s side of the family. You say liquor and violence and being toughest was how you made your name and status in the hood. You say the winner was “pretty much the man”.

[61]              The report writer says that experience, as well as the fact you lived rough and had youth gang affiliations, normalised violence as a mode of behaviour for you. She also says it was likely your reputation and status as a gang member that led your brother to reach out to you to sort out the situation that had developed at the party that night. The report writer says you resorted to resolving the conflict in the only way you knew how. She considers that also the pervasive inter-gang rivalry at the time may have been another factor in your poor decision-making.

Pathway forward

[62]              You told Ms Turner that, if you could have changed, it would be your ties to “the hood” in Ōtara. There, you have “street cred” and a “street rep”. They give you a sense of importance and worth. You also said your path could have been different had you not experienced neglect and the absence of your father in your childhood. You now recognise your mother was trying to get you on a more positive path by sending you to Australia and the United States, but you did not take those opportunities.

[63]              You have been with your current partner for five years. Together, you have a rental property in Blockhouse Bay. Your partner recently gave birth to your son, who is named after your father. Until today, you have not been able to hold him. You say his arrival has given you a new sense of direction and you want to be there for him. You have acknowledged you have not been a responsible father for your other two children and you were determined to make up for that.

Approach to sentencing

[64]There are two stages to this sentencing:5

(a)First, I must determine the appropriate starting point, adjusting for any aggravating and mitigating features of the offending itself.

5      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

(b)Secondly, I must adjust that starting point for any aggravating and mitigating circumstances relevant to you personally and for your guilty plea.

[65]              In sentencing you, I must take into account the purposes and principles of sentencing as set out in the Sentencing Act. I must impose a sentence which holds you accountable for the harm you have done to the victim and promotes you taking responsibility for that harm.6 I may also consider the need to provide for the interests of the victim, provide reparation, denounce your conduct, deter you or others from committing the same or similar offence and protect the community.7 The sentence must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.8

[66]              On the other hand, I must be mindful of the need to assist in your rehabilitation and reintegration into the community and I must impose the least restrictive outcome that is appropriate in the circumstances.9

[67]              I must also take into account your personal, family and cultural background. In considering that background, I must take into consideration any report prepared in accordance with s 27 of the Sentencing Act, unless satisfied there is some special reason that makes this unnecessary or inappropriate.10

[68]              The Crown also submits a minimum period of imprisonment is appropriate. I must, therefore, also consider whether to impose one, and if so, for how long.

Stage one: starting point

[69]              My first task is to set an appropriate starting point. The Court of Appeal has given a guideline judgment for this kind of offending in R v Taueki.11 The judgment sets out three sentencing bands:

6      Section 7(a) and (b).

7      Section 7 (c)–(g).

8      Sentencing Act 2002, s (8)(a)–(e).

9      Sections 7(1)(h) and 8(g).

10     Sections 8(i) and 27(2).

11     R v Taueki [2005] 3 NZLR 372 (CA).

(a)Band 1, from three to six years, is appropriate for offending involving violence at the lower end of the spectrum of offences involving grievous bodily harm.

(b)Band 2, from five to 10 years, is appropriate where the offending involves two or three aggravating factors.

(c)Band 3, from nine to 14 years, normally involves serious offending which has three or more aggravating factors, where the combination of these factors is particularly grave.

Aggravating features of the offending

[70]              The Crown submits there were four aggravating factors to your offending: use of a weapon; serious injury; premeditation; and gang involvement / vigilante action.

[71]              Mr Ryan says there are only two aggravating factors: use of a weapon and serious injury.

[72]              It is apparent there are at least two aggravating features: use of a weapon and serious injury. I consider there is also a third factor: premeditation.

[73]              As the Court of Appeal has said, premeditation may vary “from full-scale planning and orchestration… to a period of a few minutes or so after a perceived slight during which the offender decides to take revenge.”12 Your case is close to the latter example, although your actions were less spontaneous.

[74]              You took a gun to the fight when called by your brother. You took the gun out of the car when you arrived. Within minutes of arrival, you had shot the gun twice, the second time at the victim. These factors, coupled with the fact you committed a similar offence in a similar situation four years earlier means this cannot be passed off as a spur of the moment thing, even if you say cocaine was involved.

12 At [30].

[75]              I agree your presence at the offending was linked to your gang membership – for the reasons set out by Ms Turner in the Cultural Report, however, I do not consider that this amounts to gang vigilantism.

[76]In my view, that means there are three aggravating factors present.

Relative seriousness of offending

[77]              Both the Crown and Mr Ryan make submissions as to the appropriate starting point by reference to comparable sentencing decisions. They are all are Band 2 cases. I agree that your case also comes within Band 2, towards the upper end.

[78]The Crown refers to two decisions, Nuku v R and Fukofuka v R.13

[79]              In Nuku, the defendant shot a taxi driver in the shoulder at close range after a debit card was declined for paying the fare. The defendant got out of the taxi and pointed the gun at the driver’s window, demanding that the driver exit the car. When he refused, the defendant shot him at very close range.

[80]              The High Court held there were four aggravating factors, including a degree of premeditation, and assessed the offending as at the upper range of Band 2. It set a starting point of nine years.14 The Court of Appeal dismissed the defendant’s appeal. It said there were two additional aggravating features and held that a starting point of nine-and-a-half to ten years’ imprisonment could not have been criticised.

[81]              The Crown submits your offending is slightly less serious than Nuku. In Nuku, the shooting to the shoulder involved a higher risk to vital organs such as the heart than a shooting of the leg. And the offending in Nuku was committed in apparent furtherance of a crime.

[82]              In Fukofuka, the defendant was at a nightclub with friends. He went outside with a friend who wanted to leave. Once outside, he became involved in a number of physical skirmishes. He was punched in the head, fell to the ground and was punched

13     Nuku v R [2019] NZCA 319; Fukofuka v R [2019] NZCA 290.

14     R v Nuku [2018] NZHC 2609.

again. He then left and returned with a .22 firearm. Firing shots as he walked, he approached two of the men he had been fighting. He shot one through the right knee and the other through the right thigh. Both were hospitalised. The sentencing Judge placed the offending in the middle of Band 2 and adopted a starting point of 8 years’ imprisonment.15 That was upheld on appeal.

[83]              The Crown submits your offending was of comparable gravity to Fukofuka. Although there were two victims, they were not injured as severely as your victim. In addition, the defendant had been subjected to violence prior to the shootings, suggesting a degree of provocation.

[84]              Having regard to those decisions, the Crown submits a starting point of eight years’ imprisonment would be appropriate.

[85]              Mr Ryan refers to a more recent High Court decision: Stehlin v R.16 In that case, the defendant and some associates were travelling in a motor vehicle when they observed two people, a man and a woman, walking along the footpath. They were intoxicated and the woman fell to the ground. The defendant believed the man may have been assaulting his partner. He got out of the vehicle carrying a shotgun and became involved in a verbal altercation with the man. The two men pushed each other before the defendant pointed the shotgun at the victim and shot his left leg from close range. The victim suffered serious injuries and required multiple surgeries, with a risk his leg may have to have been amputated.

[86]              The defendant pleaded guilty to a charge of wounding with intent to cause grievous bodily harm and unlawful possession of a firearm. The sentencing judge considered the offending fell at the upper end of Band 2 and adopted a starting point of eight years’ imprisonment.17

[87]              On appeal, Lang J identified use of a weapon and victim impact (serious injury and mental harm) as the aggravating features. He considered a starting point of eight years was within the available range “albeit at the very upper end”.

15     R v Fukofuka [2018] NZDC 15482.

16     Stehlin v R [2022] NZHC 1619.

17     R v Stehlin [2022] NZDC 12480.

[88]              Based on that decision, Mr Ryan submits a starting point between six and 7.5 years’ imprisonment is appropriate.

The appropriate starting point

[89]              Having considered the three decisions, I consider your offending to be less serious than that in Nuku and about the same level of seriousness as in Fukofaka and Stehlin.

[90]              In Fukofaka, the injuries were less serious but there were two victims and there was an element of provocation. In Stehlin, the injury was considerably more serious and had a devastating impact on the victim. However, there at least, there was a semblance of justification for the defendant getting involved. He thought he was protecting someone. There was no such justification in your case. You took a gun to a family party made up mostly of young people from the Tongan community.

[91]              Having regard to the circumstances of your case, the guidance in R v Taueki and the decisions referred to by counsel, I am satisfied that a starting point of eight years’ imprisonment is appropriate.

Stage two: aggravating and mitigating personal circumstances

Uplift for previous convictions

[92]              The Crown submits there should be an uplift for your previous convictions of nine months, or just over 10 per cent of the starting point. Mr Ryan accepts an uplift of between six and nine months would be appropriate.

[93]              The Crown says your previous sentence has clearly done little to deter your violent firearms offending and there is a heightened need today for personal deterrence and community protection.

[94]              It is well accepted that uplifts for previous convictions may be necessary to deter and to protect society.18 I am satisfied that an uplift is appropriate in your case.

18     Reedy v Police [2015] NZHC 1069 at [19(b)(iii)].

[95]              I appreciate that any uplift on a starting point of eight years will look daunting to a person who has only been sentenced to significantly shorter terms of imprisonment. However, the sad reality is that what you did in November 2019 demonstrates you learned little from your previous times in prison. The three separate strike offences you committed over that nine-year period show an escalating level of seriousness, all involving firearms and thus serious risk to others.  For these reasons, I consider some uplift is warranted having regard to the sentencing principles of deterrence and community protection.

[96]              I consider an uplift of 12 months could have been justified. However, having regard to the fact you served the full terms of your first two strike offence sentences, I limit the uplift to nine months. That results in an adjusted starting point of eight years and nine months or 105 months in total.

Mitigating circumstances

[97]                Mr Ryan has put forward various sets of personal mitigating circumstances: cultural issues; compensation to the victim and return of dangerous firearms; remorse; and time spent on restrictive electronically monitored bail conditions. Mr Ryan also provides certificates showing your participation in courses and provides letters in support. Overall, Mr Ryan submits a discount in the range of 20 to 30 per cent is warranted for personal mitigating circumstances.

[98]              The Crown accepts there should be a discount to take account of cultural factors but says this should be limited, given the nature and seriousness of the offending. It also accepts there should be a discount for time spent on restrictive EM bail conditions.

[99]I will deal with the EM bail discount at the end.

Cultural factors

[100]          In her report, Ms Turner identifies a number of factors as causative of your offending. These include:

(a)the absence of your father in your early life and being exposed to violence at home, at school and in the community;

(b)your mother being busy with work and the church so you were left to fend for yourself;

(c)the negative influence of your peers, particularly in Ōtara, where you gravitated to be with your father’s side of the family and got drawn into the gang world;

(d)becoming a teenage father;

(e)living rough in Ōtara and getting dragged more deeply into the gang world and its culture of alcohol, violence and crime;

(f)being incarcerated and cycling in and out of prison ever since;

(g)becoming institutionalised and even more entrenched in the gang world, switching from the Crown Cres Boys to the more hardcore Comancheros.

[101]          Mr Ryan says these facts establish a clear nexus to your offending. He also refers to the observations of Ellis J earlier this year in R v Fantham-Baker where Her Honour discusses the role of gangs as substitute families and anchors in an otherwise anchorless world.19

[102]          I understand Mr Ryan’s point, but I see your situation as a Tongan New Zealander, who has lived in a Tongan New Zealand community for most of your life, as being rather different from that of Māori who underwent a particular form of cultural, social and economic deprivation through colonisation, land loss, loss of reo and marginalisation.

19     R v Fantham-Baker [2022] NZHC 278.

[103]          I accept that, as the Court of Appeal has acknowledged, social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation, regardless of the specific ethnicity of the offender.20 And I accept that gravitation to the gang world and its associated life of alcohol, violence and crime can be the consequence of the social, cultural or economic deprivation that can attend new migrants struggling to make their way in a different world.

[104]          At the same time, there are many Tongans in New Zealand who live good and productive lives, anchor to their families, communities and churches while still dealing with the challenges of migration. I consider that where you have fetched up is as much the consequence of your poor choices as cultural deprivation and the absence of a father. I do not accept you can hang any responsibility on your mother.

[105]          For these reasons, I do not see your situation as coming anywhere close to the serial deprivation that, together with other factors, has been recognised as justifying discounts as high as 30 per cent.21 It is also highly relevant that your offending occurred within your community and against your own people. I accept that you have become institutionalised to a degree and, as a consequence, further enmeshed in the gang world. But I cannot overlook the fact you were a willing recruit and actively welcomed the status you believed prison and gang membership conferred on you.

[106]          Taking these factors together, I am satisfied that a discount of no more than   7 per cent is warranted for cultural factors.

Remorse

[107]            I do not accept there is any genuine remorse. I think you have realised you have come to the end of the road and have few other options for keeping the sentence as low as possible. It speaks volumes that, in a letter to me asking that I show mercy to you and impose a sentence that reflects your current mindset and character, you still do not say openly and squarely that you did the shooting. Nor do you say you are sorry you did it.

20     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].

21     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

[108]          Even if I am wrong about your lack of genuine remorse, the reality is that you refused to acknowledge your responsibility right through the trial and beyond. Whether at your behest or connivance or otherwise, another man stood up or was put up to take the fall for you so you could avoid the consequences of the three strikes regime. And witnesses were either pressured or so frightened of you and your associates were reluctant to give honest evidence. It is a tribute to our jury system and to the witnesses who told the truth, despite being fearful, that justice was done in the end.

[109]Given these circumstances, I see no case for any separate discount for remorse.

Other factors

[110]          Despite what  I have just  said,  I propose to make two further discounts  of   5 per cent or 10 per cent in total. There are two reasons for this. First, I think, and the Crown agrees, there should be some recognition of the money you have provided in compensation to the victim, even if I doubt the genuineness of your remorse. I have also taken account of the advice that dangerous firearms have apparently been surrendered to the Police.

[111]          Secondly, even though I am sceptical, I want to take you at your word that you do want to change, and you do want to be a father for your new son. So, this is my way of saying to you that the system has heard you and wants to encourage you. Now it is for you to follow through on what will be a long and difficult road.

[112]          This means a discount of 17 per cent or 18 months to the adjusted starting point of 105 months. That reduces the sentence to 87 months.

[113]          From that, I need to make a deduction to reflect the time spent on restrictive EM bail conditions.

Time on EM bail

[114]          You have spent two years and some months on EM bail. Mr Ryan submits a discount of one year in recognition of that period is appropriate. The Crown agrees you should receive some discount.

[115]In your case, I accept a discount of one year is appropriate.

End sentence

[116]            Taken together, an adjusted starting point of 105 months, a deduction of 17 per cent or 18 months and the further deduction of 12 months produces an end sentence of 75 months or six years and three months’ imprisonment.

[117]          That is less than half the period you could have been required to serve if the three strikes regime had not been repealed. You might reflect on that if you are unhappy at the sentence I am about to impose.

Minimum period of imprisonment

[118]          The Crown says I  should  impose  minimum  period  of  imprisonment  of  50 per cent or more. Mr Ryan says no minimum period is warranted.

[119]          Under s 86 of the Sentencing Act, I may impose a minimum period of imprisonment if I am  satisfied that the non-parole period for your sentence under     s 84(1) of the Parole Act 2002 is insufficient to hold you accountable for the harm to the community from your offending or to denounce your conduct, or to deter you and others from committing similar offending.22

[120]          Without a minimum period of imprisonment, the non-parole period on your sentence would be two years and one months’ imprisonment. There could be no guarantee, of course, that you would be granted parole at that point. I am satisfied, nonetheless, that a non-parole period of that duration would be insufficient, having regard to considerations of accountability, denunciation and deterrence. This is, after

22     Sentencing Act, s 86(2).

all, your third offence involving firearms and your second offence involving serious injury to another person.

[121]          For these reasons, I consider a minimum period of imprisonment of two years and nine months or 44 per cent of the term of your sentence to be appropriate.

Sentence

[122]Mr McDonald, please stand.

[123]          On the charge of wounding with intent to cause grievous bodily harm, I sentence you to a term of six years and three months’ imprisonment.

[124]          I also impose a minimum period of imprisonment of two years and nine months; that is, 44 per cent of the term of your sentence.

Please stand down, Mr McDonald.

G J van Bohemen J