R v McIntyre

[2019] NZHC 1162

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2017-027-000774

[2019] NZHC 1162

THE QUEEN

v

LINTON MCINTYRE

Hearing:	29 May 2019
Appearances:	S J Barnaart for the Crown A J Holland for L McIntyre
Judgment:	29 May 2019

SENTENCING NOTES OF POWELL J

[Redacted version]

R v MCINTYRE [2019] NZHC 1162 [29 May 2019]

[1]    Linton McIntyre you come up for sentence today after pleading guilty to a single charge of kidnapping.

[2]    You  pleaded  guilty  to  that  charge  along  with  three  other   offenders, Paul Johnson, Frank Rota and Jason Williams. You were due to be sentenced along with the other three on 10 May 2019 but for health reasons you were unable to be present on that day. By consent the other sentencings proceeded, and your sentencing was adjourned until today.

[3]    The charge of kidnapping to which you and the other offenders have pleaded guilty arose out of events that took place at a residential address in Paihia (“the Paihia property”) on 10 March 2017. Your guilty plea came at the end of three weeks of trial, at the conclusion of the Crown evidence. The summary which I will give as to what occurred represents my conclusions based on the evidence that I heard at trial, including the evidence of all four complainants, the Police and forensic evidence and the evidential interviews given by both yourself and Mr Rota.

[4]    The summary that I will provide goes into slightly more detail than is strictly speaking necessary, in order to address your own involvement. But it was the summary given to your co-offenders and provides the full context of your own offending for which I am sentencing you today.

What happened on 10 March 2017

[5]    On 10 March 2017 Victim A, Victim B and Victim C had just finished breakfast at the Paihia property, and Victim A and C were preparing to go to work later that morning.

[6]    You, together with Mr Rota, arrived at the property by car and came to the door. As you were a good friend of Victim B’s you and Mr Rota were invited in, despite Mr Rota wearing various Head Hunter related gang insignia.

[7]    You proceeded to have a conversation with Victim B about the whereabouts of Boy Marsh (“Boy”), a member of the Black Power gang who you and the others

accompanying you were trying to locate on behalf of Maurice Reti, an associate who at that time was serving a sentence of imprisonment.

[8]    Within a short time of  you  and Mr Rota  arriving  at  the  Paihia property,  Mr Johnson, Mr Williams and a further unidentified offender arrived in another vehicle and also entered the house.

[9]    Shortly afterwards, Victim A made preparations to leave the Paihia property and went to pick up her iPad and iPhone that were sitting in the lounge. However, Mr Rota placed his hand over the two devices and told her “You're not going anywhere”. At this point Victim A began to feel unsafe and realised she was not free to leave the house.

[10]   Victim A asked Victim C what was going on and he told her to sit down and that everything would be ok. From that point until after dark that evening, some 10 to 12 hours later, Victim A, Victim C and Victim B were effectively held captive at the Paihia property. They were confined to the lounge and kitchen area of the home and had to get permission to walk down the hallway to use the bathroom. Having heard the evidence presented in the course of the trial I accept they did not feel they were free to leave at any point and had justified fears for their safety if they were to try.

[11]   The initial focus of the offenders, including yourself, was the location of Boy but at various points the victims were also asked about another person of interest, Sarina, Mr Reti’s wife, who had not only gone off with Boy while Mr Reti was in prison shortly after she had married Mr Reti, but who it appears had made a determined effort to appropriate assets Mr Reti considered to be his own. However, the three victims did not know where either Boy or Sarina were, and did not know how to contact them.

[12]   After participating in the initial inquiries about Boy and Sarina, you took one of the vehicles to get petrol, and then were away from the Paihia property for an extended time – perhaps some six or seven hours in total.

[13]   During that period you indicated that you went to visit a friend to discuss what had gone on and, when he was not home, went back to your own property and had a sleep.

[14]   After you had departed Victim C was instructed to call his employer, Victim D, and tell him to come to the Paihia property. Victim C did not believe he had a choice in making that request and complied as directed. A short time later Victim D arrived at the Paihia property.

[15]   After entering the house, and as he walked into the kitchen, Victim D was punched in the head by Mr Rota, causing him a blood nose and injuries around his eye. He received further punches  from  the  other  offenders’ present,  apart  from Mr Williams (who appears to have been largely carrying out duties as the lookout or perhaps as the ‘tech’ man). From that point Victim D too was held at the Paihia property and prevented from leaving.

[16]   Following the arrival and initial assault of Victim D the level of violence significantly increased as the remaining offenders, again apart from Mr Williams, continued to seek information about Boy and Sarina from the victims and in particular Victim B and D. Like the other victims, Victim D did not know how to get in touch with either Boy or Sarina. In addition to questioning the victims with regard to the whereabouts of Boy and Sarina, questions were also asked regarding a portable sawmill apparently owned by Boy and located on your property, which Victim B, Victim C and Victim D had expressed an interest in purchasing and in relation to which had visited your property the day before.

[17]   As the day wore on the offenders also became increasingly focused on whether there were significant quantities of illegal drugs at the Paihia property. All the offenders present appear to have spent some time searching the house and garage at various points. Victim D’s car was also searched, and the offenders went through the personal possessions of the victims, before proceeding to use what appears to have been relatively small quantities of drugs that they found on the premises. The apparent discovery of your wallet in Victim B’s room during the search activities in turn led to further questioning and violence towards him.

[18]   During this period there were a number of specific acts of violence for which, in addition to his initial punches, Mr Rota pleaded guilty to a charge of injuring Victim D with intent to injure him, and for which Mr Johnson pleaded guilty to three charges of injuring Victim D, Victim B, and Victim C respectively with intent to injure each of them.

[19]   It is clear from the evidence however that the specific violence charges to which Mr Rota and Mr Johnson have pleaded guilty do not capture the overall level of violence, both physical and psychological, that the victims were subjected to in the course of their detention by the offenders, and which provide an overall aggravating background to their detention on 10 March 2017.

[20]   It is no exaggeration to say that throughout the day the actions of Mr Johnson and the unidentified offender in particular, were both unpredictable and intimidatory and at times verging on sadistic, with the treatment of Victim B and Victim D at times, as the Crown has submitted, verging on torture. Victim B in particular had a glass bong broken over his head by the unidentified offender, who also repeatedly struck Victim B (and indeed forced him to strike himself) with the butt and barrel of a BB pistol to his shins, and also struck him with the shaft of the broken golf club. Likewise, in the course of the afternoon at different times Victim A, Victim D and Victim B were threatened with and/or burnt by a gas torch found at the property, with all three physically assaulted to different degrees.

[21]   Likewise, at least three of the victims were made aware that the power of the offenders over the victims was backed up by a firearm (described as a large silver revolver), and that Mr Rota and others fired a BB pistol indiscriminately around the lounge where the victims were being held.

[22]   Much of this violence occurred however while you were away and as time went on and you did not immediately return, Mr Johnson then took Victim A’s car to look for you on at least one occasion.

[23]   You eventually returned to the Paihia property late in the afternoon and during that period the violence did continue, and Victim B, in particular, was questioned over the presence of your wallet in his bedroom.

[24]   The ordeal for the victims finally ended when the offenders gave up attempting to coerce information with regard to Boy, Sarina or drugs. However in leaving, the offenders specified various payments the victims would have to subsequently make, as well as removing a number of items of property belonging to the victims, including but not limited to cell phones, clothing, medical and electronic items. There is however considerable doubt as to exactly what was taken or by whom, but there is no suggestion that you took any of that property.

[25]   After the offenders had departed the victims also left the property. After dropping Victim D home the other three took shelter at a friend’s place. Although all were suffering injuries to various degrees none sought immediate medical attention for fear of the consequences, nor did any immediately notify the Police as to what had occurred.

[26]   In the end the severity of Victim  B’s injuries and the effect it had on his   pre- existing medical conditions required his hospitalisation and required an operation to his knees, while Victim A and Victim C later also sought medical attention for various of their own injuries.

[27]   Even more substantially, while by the time of the trial the victims’ physical injuries had healed, each of the victims remained traumatised to an extent at the time that each gave evidence. Victim B, Victim A and Victim C all ultimately fled the Bay of Islands region because of their ongoing fear for their own safety and the safety of their respective families, with Victim A in particular having to walk away from her job and  family.  It  was  clear  from  the  evidence  of  Victim   C  that  the  events   of  10 March 2017 had continued to have a significant effect on Victim A and indeed it was Victim A who first raised the issue with her family and the Police. Apart from their evidence, only Victim C has provided a victim impact statement and he has noted that the incident had affected him and that he is going to have to “watch his back” into the future, that he “cannot escape” what happened on 10 March 2017. Worst of all,

the difficulty for him is that he has to go back home for his three kids and he is frightened of the consequence of doing that.

Approach to Sentencing

[28]   The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case is to denounce your conduct,1 to provide for the interests of the victims,2 to hold you accountable for the harm that you personally have done,3 and to promote a sense of responsibility for your actions.4 Your sentence must also deter you and others from committing similar offences,5 protect the community,6 and to provide for your rehabilitation and reintegration into the community.7

[29]   The principles of sentencing that are of particular relevance in this case are the need to take into account the seriousness of your offending,8 the effect of the offending on the victims9 and to achieve consistency with appropriate sentencing levels,10 including what I have imposed on your fellow offenders in this case. It is also necessary to impose the least restrictive outcome that is appropriate in the circumstances.11

[30]   Determining your sentence involves three steps. First, the “starting point” must be determined. The starting point is a term of imprisonment reflecting the seriousness of the offending for which you have pleaded guilty. The second stage involves adjusting that starting point to take into account your relevant personal circumstances. Finally, I must consider whether a discount is appropriate for your guilty plea and, if so, how much.

1      Sentencing Act 2002, s 7(1)(e).

2      Section, 7(1)(c).

3      Section 7(1)(a).

4      Section 7(1)(b).

5      Section 7(1)(f).

6      Section 7(1)(g).

7      Section 7(1)(h).

8      Section 8(a).

9      Section 8(1)(8).

10     Section 8(e).

11     Section 8(g).

Assessment of starting point – kidnapping generally

[31]   Turning first to the assessment of the starting point generally. As you have heard the Crown and Mr Holland have referred to a number of authorities in their submissions to assist me in determining an appropriate starting point.12 I have also had regard to the cases referred to me by counsel for the other offenders in the earlier sentencing hearing. There is no dispute that there is no case setting out a clear tariff, or guideline in relation to kidnapping. On the contrary, the Court of Appeal has said that there can be “an infinite variety of circumstances which underlie the crime of kidnapping”,13 which in the context of this case is not a particularly helpful statement. It is however possible to compare kidnappings in terms of the length of detention, the extent of pre-meditation, the number of offenders involved, whether there has been gang involvement and the level of violence that has taken place.14

[32]   Overall a review of the relevant cases shows clearly that there is quite a divergence of approaches by different Judges in different courts in assessing a starting point. It seems, however, that it is the cases involving aggravated violence which tend to have justified starting points in excess of 10 years’ imprisonment.15 Cases involving moderate or lower level violence tend, generally, to have starting points ranging from around three years to just over seven years.16 Ultimately, as I have noted however, as the Courts have said many times, the cases are fact specific.17

[33]   Ms Barnaart for the Crown submitted in her written submissions that the offending in this case makes it more serious than two of the cases that she mentioned of Harema-Watts18 and Salt19 by virtue of the significant length of detention in this

12 Ridge Hemara-Watts v R [2017] NZCA 306; R v Salt [2017] NZHC 1979; R v Martin CRI-2006- 055-2734; Turner v R [2018] NZCA 175; and Fatu v R (2012) 26 CRNZ 106; R v Kaka [2013] NZHC 2151; R v Wharton [2003] 20 CRNZ 109; R v Warren [2017] NZHC 1465; and R v Hansen [2017] NZHC 449; R v Tozer [2010] NZCA 7; and Chahil Ors v R [2010] NZCA 244.

13     R v Hall CA296/05, 28 February 2006, at [26], citing R v Wharton CA374/02, 27 March 2003.

14     R v Liev & Ors [2017] NZHC 2253 [18 September 2017] at [25].

15     For example, see R v Shen [2007] NZCA 67; R v Li CA299/05, 1 November 2006; and R v Hall

CA296/05, 28 February 2006.

16 For example see, R v Wyatt [2009] NZCA 464; R v Martin CRI-2006-055-2734; Cook v R [2010] NZCA 87; Ridge Hemara-Watts v R [2017] NZCA 306; R v Salt [2017] NZHC 1979; R v Kaka [2013] NZHC 2151; R v Warren [2017] NZHC 1465; R v Hansen [2017] NZHC 449; R v Tozer [2010] NZCA; and R v Hill HC Rotorua CRI 2005-063-3096.

17 R v Martin CRI-2006-055-2735 at [24].

18 Ridge Harema-Watts v R [2017] NZCA 306.

19 R v Salt [2017] NZHC 1979.

case, the clear gang connections and use of them in the offending, as well as the number of offenders. In Ms Barnaart’s written submissions, a global starting point should have been applied to all offenders of around five years imprisonment.

[34]   The injuries suffered, and the degree of violence in this case were not as serious as in a number of the cases that were identified by counsel. However, I consider the unpredictable, somewhat capricious and occasionally sporadic nature of the violence in this case, together with the prolonged period of detention, significant aggression and violence, make it a serious case of kidnapping by detention.

[35]   The kidnapping charge includes aggravating factors of an unlawful presence in Victim B’s house; the use of violence and weapons; the presence of a firearm; a gang connection (although I indicated at the previous sentencing hearing that this was a relatively minor aggravating factor in this case); and the extent of harm to the victims. The Crown has also submitted that there was a degree of premeditation and planning. However, although I accept there was an overall plan to recover property for Mr Reti, what eventuated at the Paihia property was ultimately quite different and more serious than anything envisaged by that plan. I have therefore reached the conclusion and advised counsel at the other hearing, as I do now, that I do not therefore consider that the kidnapping was premeditated.

[36]   Importantly in this case there were multiple offenders involved in the kidnapping and each played a different role, making the facts of this case difficult to compare with those in other kidnapping cases. Because liability under s 66(2) of the Crimes Act 1961 was not permitted20 this meant your liability as a party to the kidnapping must be considered under s 66(1) alone. In those circumstances I accept, as I accepted at the other sentencing hearing, that there was not equal culpability between each of the offenders with regard to the seriousness of the kidnapping but that you and the other offenders must be sentenced on what you have each individually done, and the steps that you and the others have each taken to aid and abet what others did at the Paihia property on 10 March 2017. In this regard it is important to note again the contribution of the unidentified fifth offender who conducted a significant

20     R v Johnson & Ors [2019] NZHC 489.

part of the violence and intimidation but who was never located or charged, despite being somewhat improbably accompanied by some sort of lap dog in the course of the incident.

Starting point – specific offending

[37]This takes me to my assessment of your individual starting point.

[38]   As noted, the Crown submitted that you Mr McIntyre were part of a plan to detain the victims. Specifically, Ms Barnaart submitted in her written submissions, that you provided the information to the other offenders as to Victim B’s potential link to the persons that they were searching for and it was your relationship with that victim that allowed the other offenders to gain entry to the property. Furthermore, it was submitted that, although you were stood over, you never contacted the Police or other persons who could have assisted the victims in the time that you were away from the property.

[39]   Mr Holland, in his written submissions on your behalf, accepted that you were asked to go to the house because you knew Victim B personally and that you would be in the best position to ascertain the whereabouts of Boy and Sarina. As you have heard, he submitted any suggestion that you were being used as some sort of decoy to allow the other defendants to enter the house is not a fair inference to draw from the evidence and I accept that submission. Furthermore, as to the criticism that you did not alert the Police, Mr Holland submitted that you were clearly uncomfortable and at the time that you left the premises to get the petrol, it was unclear exactly what was going on at the time.

[40]   In consequence Mr Holland submitted that a starting point of no more than 18 months imprisonment is appropriate in respect of your liability on the kidnapping charge.

[41]   Having heard the evidence that I have summarised this morning, including as noted, your EVI, I do conclude that you level of culpability is at the very lowest level, and contrary to the Crown’s  submission,  below  even  that  of  your  co-offender  Mr Williams. It is clear from the intercepted phone calls made by Mr Reti, that from

the beginning you were a reluctant participant in the asset realisation programme, and not only were you not trusted by either side (Mr Reti/Boy and Sarina), but you were also vulnerable to, and lost property to, both. Your own evidence was that you had yourself been physically assaulted and indeed, subsequent to this incident, were stabbed by at least one of the other offenders and you throughout, you were desperately trying to avoid any further involvement in any aspect of the recovery of Mr Reti’s assets.

[42]   Against this background there was in fact nothing illegal about going with  Mr Rota to talk to Victim B about Boy and/or Sarina’s whereabouts, and I am satisfied you had not envisaged the possibility of kidnapping anyone, let alone four victims, at the time you arrived at the Paihia property.

[43]   It is also clear that within a short time of the detention beginning you were concerned about what was happening. While you did not do anything to stop this, you took yourself away for a prolonged period, before finally returning late in the afternoon. Your concern for what had occurred to both Victim B and Victim D was however tempered by the purported discovery of your wallet in Victim B’s room and you outwardly acquiesced to what was going on before eventually leaving the premises for the second time.

[44]    In those circumstances while it is clear that your actions in the course of the day did aid and abet the offending, it is at a much lower level than submitted by the Crown and as you have heard me discuss with Ms Barnaart this morning, the fact that you did not seek assistance for the victims is not of itself an aggravating factor. Taking these various matters together I conclude that a starting point of 12 months imprisonment is appropriate to reflect your culpability in respect of the kidnapping.

Personal circumstances

[45]   Turning now to your personal circumstances. In your pre-sentence report you are described as feeling “traumatised, confused and mixed up” while the offending was taking place and your fear for your own safety overrode your desire to do anything about the offending. You were described as being terrified of the consequences to yourself if you had tried to intervene and that was the impression that I gained from

the evidence at trial. You were described as being very tearful and anxious at the interview, however, it was not possible for the interviewer to gage whether the anxiety was the result of events that happened or because of the consequences that you were now facing.

[46]   The pre-sentence report notes that your most recent convictions are all drug related offending, and one wilful trespass offence in 2018. Your risk of re-offending is assessed as moderate due to your history of offending to date and the nature of the current offence. Your ability to comply with sentences in the community is assessed as high as you have been subject to community-based sentences in the past and in the context of this trial have, as Mr Holland noted, spent nearly two years on bail, including 10 months of restrictive bail before trial and restrictive bail conditions in the course of the trial which, while onerous, you complied with throughout.

[47]   You have no previous convictions for violence and I therefore do not consider any uplift is warranted for your criminal history. I do consider a discount is warranted for both your prospects of rehabilitation and the amount of restrictive bail you have already been subject to. I note that since 10 March 2017 you have endeavoured to remove yourself from undesirable associates and have relocated to Auckland. Taking these matters into consideration I conclude a discrete discount of four months’ imprisonment is appropriate. This results in an end sentence of 8 months’ imprisonment subject to any discount for your guilty plea.

Guilty plea

[48]   In relation to the guilty plea the Crown has accepted that a limited discount for a guilty plea is available for you, as for your co-offenders. As noted at the outset, your guilty plea occurred at the conclusion of the Crown case.

[49]   The orthodox response to a guilty plea on the morning of trial is 10 per cent.21 Similarly where a case had been abandoned and a defendant sought a sentence

21     Harris v R [2018] NZCA 632 at [43].

indication and pleaded guilty prior to a retrial, a 15 discount was considered “more than adequate”.22

[50]   In this case, as you will be aware from the notes of the previous sentencing, it would normally be difficult to see any basis for a significant discount given that each of the complainants was required to give evidence and each was extensively, if somewhat schizophrenically; cross examined. Almost without exception, each victim was accused of making up what happened on 10 March 2017, but then was cross- examined by the same counsel on what particular defendants present had or had not done. However, in this case there was a real risk that the trial may have had to be aborted. The risk arose following the loss of a jury member early in the trial and the impending loss of one more juror at the end of the third week with everything then left hanging on whether a third heavily pregnant juror, could complete the trial. Given this uncertainty there was a reasonable likelihood that the trial may have had to have been aborted had the guilty pleas not occurred when they did. Furthermore, you as with the other defendants all pleaded guilty at the first available instance after the ruling I gave that the Crown was not able to rely on s 66(2) of the Crimes Act as a basis for liability against you and the other offenders. This removed your liability, or potential for your liability, as part of any overarching conspiracy and for the acts of each and every other defendant. As a result, you, along with the other offenders, then promptly accepted responsibility for the charge for which you are now being sentenced.

[51]   Taking these factors  into  account,  I  consider  a  guilty  plea  discount  of  15 per cent was appropriate in each  case  including  your  own.  This  leaves  you Mr McIntyre with an end-sentence of seven months’ imprisonment.

Community Sentences

[52]   Because I have arrived at a sentence of seven months’ imprisonment this gives me jurisdiction to consider a community-based sentence, either community detention or home detention. In considering sentencing options, given the serious nature of the offence and the traumatic experience of the victims, your pre-sentence report recommends a sentence of home detention.

22     R v R [2017] NZCA 462.

[53]   As I have already discussed, the pre-sentence report notes your ability to comply with community-based sentences as high given that you have been subject to community-based sentences in the past and have  not  incurred  a  conviction  or  non- compliance on any of them. I also note again your compliance with onerous bail conditions during the trial and earlier periods of restrictive bail.

[54]   As you have heard, Mr Holland submits, that a sentence in the community such as community work or community detention would be appropriate and he relies on the sentencing of Mr Singh in Chahil to support the submission that such a sentence is appropriate. In that case, the Court of Appeal commuted the offender’s sentence to one of six months imprisonment for two charges of kidnapping after the aggravated wounding conviction was set aside.

[55]   In turning now to determine which of the two sentencing options is the most appropriate, I note Ms Barnaart’s submission that it is home detention rather than community detention that is most appropriate. Having considered that submission I record that I do not consider that you are a danger to society and note my earlier conclusions that your offending is at the very lowest end of the scale for an offence of this type. You have endeavoured to remove yourself from the undesirable associates by relocating to Auckland and you now have a real opportunity to get your life back in order. As Mr Holland has noted, you have some real artistic skills and indeed Victim B spoke about that in the course of the trial and drew the Court’s attention to some of your work that was sitting in the house in Paihia.

[56]   Taking all of these circumstances into consideration I am satisfied that the most appropriate and least restrictive sentence that meets the various needs that have been identified under the Sentencing Act is that of community detention.

[57]   If imprisonment had been imposed for a period of seven months you would have automatically been released on parole after three and a half months. As community detention does not provide for an early release date it is customary to halve the period to be spent on community detention to reflect that. As a result, your final sentence is three and a half months community detention.

Sentence

[58]   Mr McIntyre can you please stand. Mr McIntyre, taking into account the various figures that I have mentioned and applying a guilty plea discount, you are sentenced to three and half month’s community detention. The sentence is to be served at your current bail address. Following this sentencing you are to travel directly to the community detention address and await the arrival of the supervising probation officer and or the electronic monitoring company.

[59]   The curfew period for the sentence of community detention is from 7.30 p.m. to 7 a.m. Monday to Sunday inclusive and the first curfew is to begin tonight – being 29 May 2019.

[60]   In addition, you are to attend an assessment for a departmental programme to attend and complete an appropriate departmental programme as recommended by the assessment to the satisfaction of the probation officer and programme provider. The details of the appropriate programme are to be determined by a probation officer. You are also to undertake and complete any appropriate treatment counselling including employment training and education to the satisfaction of the probation officer and treatment provider. The details of that treatment and counselling are to be determined by a probation officer.

[61]   Finally I confirm my previous order that the names of each of the four complainants are to be permanently suppressed.

[62]Mr McIntyre you may stand down.

Powell J