R v McGoldrick
[2023] NZHC 731
•4 April 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-096-856
[2023] NZHC 731
THE KING v
JUSTIN JAMES EDWARD MCGOLDRICK
Hearing: 4 April 2023 Appearances:
M E Page for the Crown
C J Tennet for the Defendant
Judgment:
4 April 2023
SENTENCING OF COOKE J
[1] Justin McGoldrick you are now to be sentenced as a result of your guilty pleas to one charge of aggravated burglary1 and one charge of aggravated wounding.2
[2] Your guilty pleas follow an earlier sentencing indication. In order to explain your sentence I will address three matters:
(a)First I will describe the facts of the offending.
(b)Secondly I will outline the approach that is taken in assessing a starting point for offending of this kind together with any uplift for personal
1 Crimes Act 1961, s 232(1) and 66; maximum penalty of 14 years’ imprisonment.
2 Section 191(1)(a) and 66; maximum penalty of 14 years’ imprisonment.
R v MCGOLDRICK [2023] NZHC 731 [4 April 2023]
aggravating circumstances. That is an assessment I have already undertaken in the sentencing indication.
(c)Finally I will address discounts from that starting point arising from your guilty plea and other matters personal to you given further information now available.
The offending
[3] First the facts. On 10 January 2022 two young associates of yours were robbed by Akynn Eady a Cripps gang member. They then planned retribution and obtained Mr Eady’s address. They then met up with you at approximately 8.30 that evening.
[4] Your group then went to another address and were joined by Mr Tawhai. The group then went to another address in Porirua to pick up a pump action shotgun.
[5] A Toyota vehicle was then obtained and the shotgun was placed in the back of that car, and after stopping off at the Z Mana Esplanade at approximately 10.40 pm your group drove to the address of Mr Eady.
[6] At the time Mr Eady was hosting a birthday party with at least eight other persons, one of whom was the victim, Mr Aspinall.
[7] You exited the vehicle with the shotgun along with Mr Tawhai and one other. Mr S and Mr H stayed in the car. You approached the address and opened the front door brandishing the shotgun at the occupants inside in the hallway. Mr Aspinall hearing the commotion walked to the front of the house to see what was happening. As that happened you fired three rounds down the hallway as the occupants ran for cover. Mr Aspinall was struck by a number of pallets in the left side of his abdomen causing a number of wounds.
[8] The three of you then ran from the address to the car which drove off. You were spotted by a marked police car which attempted to stop the car, which drove away at speed, overtaking other vehicles and turnings its lights off in an attempt to deter police.
[9] The car was then struck by tire deflation devices and came to a stop in Petone where you and the others were arrested.
The starting point
[10] I now address the starting point for this offending. As I have explained in the previous sentencing decisions concerning this offending I proceed on the basis that the aggravated burglary is the lead charge, with the aggravated wounding treated as an aggravating circumstance.
[11] There is no tariff decision for aggravated burglary. But it is accepted that the Court of Appeal’s guideline decision for aggravated robbery in R v Mako applies,3 notwithstanding that this is an aggravated burglary.4 I consider the following factors as aggravating as referred to in R v Mako arise in the present offending:
(a)first, there was planning and premeditation given that the offending was part of a gang-related dispute resolution exercise, and that you and your co-defendants armed yourselves beforehand;5
(b)secondly, there was use of a weapon and you wounded a person by its discharge;6
(c)thirdly, there were a number of participants;7 and
(d)finally it involved a home invasion at night.8
[12] When sentencing the others involved in this offending I have assessed comparable cases including Hay v R,9 R v Poole, Perry and Murphy,10 and R v Stade.11
3 R v Mako [2000] NZLR 170 (CA).
4 See R v Watson CA 224/03, 24 October 2003; the Court of Appeal held that the principles expressed in Mako are applicable to aggravated burglary.
5 R v Mako, above n 3, at [36].
6 R v Mako, above n 3, at [39].
7 At [37].
8 At [58].
9 Hay v R [2015] NZCA 329.
10 R v Poole, Perry and Murphy [2014] NZHC 1126.
11 R v Stade [2015] NZHC 2611.
Those other sentences can be considered to more fully understand how I have assessed the starting point given these authorities. The sentences I have then reached have been influenced by the respective roles that each defendant has had in the offending. In particular:
(a)For Mr Tawhai I decided that in light of his role in the offending that a starting point of eight years’ imprisonment was appropriate, indicating it would have been higher if he had been the shooter, and lower but for the fact that the firearm was discharged causing the wounding.12
(b)For Mr H, who had a lesser role and who remained in the car with Mr S I concluded a starting point of four years’ imprisonment was appropriate.13
(c)Justice Isac addressed the sentence for Mr S who faced a lesser charge of being an accessory after the fact of aggravated burglary and failing to stop for red and blue flashing lights.14 He concluded that a starting point of 10 months’ imprisonment was appropriate, adopting a notional starting point of 15 months’ imprisonment reduced by a third to reflect reduced culpability as a result of fear and perceived threat.15
[13] As I have previously indicated given your role as the shooter a starting point of nine years’ imprisonment is appropriate.
Personal aggravating factors
[14]I now deal with personal aggravating circumstances.
[15] You have a lengthy criminal history that includes violence and weapons offending. Uplifts for previous offending can be warranted if they bear upon the offender’s character and culpability, where there is an indicator of a pattern to offend in a specific way and the need to protect society by the imposition of a deterrence
12 R v Tawhai [2023] NZHC 311.
13 R v H [2023] NZHC 626.
14 R v S [2022] NZHC 2944.
15 At [21].
sentence.16 Authorities provide limited assistance on whether there should be such uplifts because the circumstances vary.17
[16] I accept that there is a pattern of behaviour arising from your prior offending. You also involved other young men with limited criminal histories in the offending here which is relevant to the pattern of your conduct, your culpability, and the impact on the community. I note that you have said that you were not a leader of the group, but given the age and very early stage of involvement with the Mongrel Mob of most of the others compared with you I do not accept that.
[17] The Crown suggests an uplift of three months would be appropriate and I agree. That takes the starting point to nine years three months’ imprisonment.
Personal mitigating circumstances
[18] Next there are the personal mitigating circumstances. The first discount arises from your guilty plea. This discount is significant because by admitting your guilt you remove the need for the victims to give evidence at a trial or trials. That is important in this kind of case. There is agreement that there should be a 25 per cent discount here.
[19] I have also had the advantage of a pre-sentencing report, a drug and alcohol report, and a s 27 cultural report.
[20] All those reports assist in getting a better understanding of you and your background. You are of Samoan and Pakeha background. Your father was strict and you had what is sometimes described as a traditional Samoan upbringing. In any event your background had a level of physical violence. It is also apparent that the Mongrel Mob was a significant part of your family life, which was also heavily influenced by drugs, and the taking of drugs. You have taken methamphetamine from an early age, and frequently and were doing so at the time of this offending.
16 Reedy v Police [2015] NZHC 1069 at [19].
17 Ripia v R [2011] NZCA 101.
[21] I accept that there is material cultural deprivation that has contributed to where you are now. It is not uncommon for families that have come from the islands to have found it very difficult to adjust to life in New Zealand, and in your case the violence, the drugs, and the gang life are somewhat typical examples of social and cultural deprivation, and the way in which gang culture provides a replacement for a sense of community and identity. I accept that this background provides the causal connection in accordance with the principles set out in Solicitor-General v Heta.18 But it is not the kind of deprivation at the really high end that can be involved with offenders who have had really terrible lives. You have had things hard, but you have still made your own bad choices, including those that you made on coming back to New Zealand from Australia after a promising start with your sporting career.
[22] You are very fortunate to have the support and love of your whanau, and particularly your partner who has known you for a long time, and who supports you again. It is pretty clear that if you are to really move on from this life of gangs, drugs, and violence you will need to think more about her, and the support that she provides you, more than the other influences on your life. I can see from the reports that have been provided to me you probably understand that. I have read your letter of remorse. But it is easier to say things than it is to actually do them. You have made other rehabilitation attempts that have not been successful. Your future will remain in your own hands. It is up to you whether you have the strength of character to introduce changes to your life. It will be hard, but you and your partner will be better for it.
[23] In the circumstances I accept that a 10 per cent discount on the sentence would be appropriate for social and cultural deprivation and remorse. I do not think any separate discount on the starting point is warranted for diminished culpability for drug and alcohol reasons or for remorse, but I have taken those factors into account when assessing a further discount of 10 per cent. The total discount is accordingly 35 per cent.
[24] I note that in the pre-sentence report it is recommended that you be referred to the PACT organisation in Lower Hutt to complete a residential alcohol and drug
18 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; Berkland v R [2022] NZSC 143.
programme when this fits in to your release conditions. That is not for me to determine at this stage but it is something that seems to me to be appropriate to be considered at that point.
Sentence
[25] Justin McGoldrick would you please stand. On the charges of aggravated burglary and aggravated wounding I sentence you to six years’ imprisonment on each charge, to be served concurrently, meaning that your effective sentence is six years’ imprisonment.
Cooke J