R v McKay
[2023] NZHC 2103
•9 August 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8192
[2023] NZHC 2103
THE KING v
NICHOLAS VINCENT MCKAY KELLY ARCHBOLD
KEHANNA JOY CULLEN
Hearing: 4 August 2023 Counsel:
B Hawes and A M Harvey for the Crown J D Lucas for the Defendant McKay
A M McCormick and N J Hansen for the Defendant Archbold P N Allan for the Defendant Cullen
Date:
9 August 2023
SENTENCING REMARKS OF HARLAND J
Introduction
[1] Mr McKay, Ms Archbold and Ms Cullen you each appear before the Court for sentence, having pleaded guilty to one charge of being an accessory after the fact to discharging a firearm with intent to cause grievous bodily harm.1 The maximum penalty for this offence for each of you is a term of imprisonment for five years.
1 Crimes Act 1961, ss 71, 198)1)(a) and 312.
R v MCKAY, ARCHBOLD & CULLEN [2023] NZHC 2103 [9 August 2023]
[2] Each of you assisted Mr Smith and/or Mr Sparks after Connor Whitehead was shot and killed. I do not repeat what they did but note that it is outlined in my sentencing remarks for them and you are entitled to a copy to see what I said about that.2
[3] The remarks I also made about my approach to sentencing them equally apply to you.3
[4]I start by dealing with you Mr McKay.
MR MCKAY
[5] Because your plea of guilty was based on the sentence indication given by me,4 you have accepted that a starting point of 16 months’ imprisonment is appropriate. I left open the prospect of an electronically monitored sentence. This will be addressed by me shortly after I have considered what deductions would be appropriate for you by way of mitigation.
[6] I also note that when I delivered by sentence indication decision I said that, in any event, you would receive a deduction of between 23 and 25 per cent to reflect your early guilty plea. It was an early guilty plea because it was not only entered after the sentence indication I gave you, and very promptly, but it also followed, that is a sentence indication followed, a change in the nature of the charge that had been laid against you. So, although the original charge was being an accessory after the fact to murder, to which you pleaded not guilty, when it was changed and after the sentence indication you entered a very early guilty plea. I take that into account.
[7]I start by outlining your offending.
The offending
[8] Mr McKay, both Mr Smith and Mr Sparks went to your house after the shooting and, from there, left to hide the firearms that had been discharged at Heaphy Place.
2 R v Smith & Sparks [2023] NZHC 2102.
3 At [25]-[26].
4 R v Archbold, McKay & Cullen [2023] NZHC 156.
[9] Mr Sparks told you directly that he and Mr Smith had shot someone and they thought that someone had been killed. You therefore knew the seriousness of the situation for both you, Mr Sparks and Mr Smith. Mr Sparks’ vehicle was moved at your address so that it was not visible from the street, and you allowed Mr Sparks to use your cell phone to call Ms Archbold.
[10] Mr Smith also used your cell phone to call Ms Cullen. And your cell phone was used because it was anticipated, and this was in intercepted communications between Ms Archbold and Mr Sparks, that the Police would get hold of her phone and likely intercept their communications. I accept you may not have known about that or thought that was the case, but that was the reason why your cell phone was used.
[11] As well, you provided information to Mr Sparks, went to his house and cleaned up, and collected items from Ms Archbold and passed them on to Mr Sparks. You also lied initially to the Police about your knowledge of Mr Sparks’ location, but I accept that you later were upfront with the Police.
[12] I also accept that Mr Sparks arranged for Ms Archbold to approach you and requested that you go to the home and uplift the motor vehicle Mr Smith and Mr Sparks used while evading arrest. And I accept that you also were requested to provide a safe haven for him. You did so under the misguided guise of helping out a friend.
[13] The extent of your involvement and therefore assistance to them was as follows:
(a) first, you provided a place for Mr Sparks to stay immediately following the fatal shooting. This was done with the knowledge that there had been a fatality;
(b) secondly, you permitted Mr Sparks to use your cell phone to contact Mr Smith, his partner, and allowed Mr Sparks to store his car at your address;
(c) thirdly, you moved the vehicle into your backyard which meant it could not be seen from the road; and
(d) lastly, you collected a care package from Ms Archbold to deliver to Mr Sparks.
[14] You have since explained that, when Ms Archbold dropped Mr Sparks off at your place that evening, you were not sure what had happened, but you thought Mr Sparks had fired a gun in the air so you did not ask any further questions about what had happened. And you also said that you let Mr Sparks use your phone and when you got up in the morning he was gone. You accept that, when you travelled to the property to collect the vehicle, at that point was when you really discovered that “a young life had been taken”. But, as I have said, I think there was enough there for you to know, when Mr Sparks came to your place, that something serious with firearms had happened even if you didn’t know the full extent of what had happened until the next day. To an extent, this was wilful blindness in respect of a situation which should have been apparent to you.
Starting point
[15] It is accepted that your offending was slightly more serious than that of Ms Archbold and Ms Cullen. I was referred to several cases to help me adopt the starting point to reflect your culpability or blameworthiness for the offending and the seriousness of it.
[16] The Crown submitted, based on the cases, none of which were on all fours with your offending, a starting point of between 14 to 16 months would be appropriate, whereas your lawyer submitted it ought to be 15 months’ imprisonment.5
[17]I was referred to several cases to justify each nominated starting point.
[18] In two cases, R v Everitt and R v Duff, that involved an accessory after the fact to murder or manslaughter where the actus reus included hiding the offender from the Police, a starting point of 18 months was adopted.6 In both cases, the defendant drove
5 Paras [16] to [22] were not read out by me but were included in my sentence indication remarks. I indicated I would do so at this hearing.
6 R v Everitt CRI-2006-088-3601 (Whangarei HC) 28 February 2007; R v Duff CRI-2009-063-6473 (HC Rotorua) 9 December 2010.
the offenders away to avoid arrest and, in Duff, the defendant arranged accommodation for the offender as well. You assisted Mr Sparks in many ways, by giving him a place to stay, providing a cell phone, moving Mr Sparks’ car so that it was hidden from the street, collecting the care package from Ms Archbold and delivering it to Mr Sparks to enable him to avoid arrest for longer, and I have already referred to what he said to the Police initially and then subsequently. In my view, your assistance is most analogous to that in Duff, where the accessory also provided a phone, money and clothing in addition to transport and accommodation.
[19] In R v Sweeney, Mr Sweeney was an accessory after the fact to burglary and arson.7 The offending had also involved the murder of a teenager, but this was not known to Mr Sweeney when he gave assistance to the principal offender by driving him to dispose of items used in the offending. Although initially refusing to disclose anything to Police, he did so days later when he learned that the young teenager had been killed. The Judge found that, despite the fact the assistance was offered only for a day, it was determined to be significant and effective. Similarly, your assistance in providing a safe haven for Mr Sparks enabled him to escape arrest the day following the fatal shooting. The assistance you gave Mr Sparks also allowed Mr Sparks the opportunity to dispose of evidence, and I make reference to the brazier at your address where he had stayed and in which the Police found the burnt remains that included a shotgun brass head.
[20] However, I find your level of culpability to be greater than that of Mr Sweeney. You did not disclose important information to the Police as Mr Sweeney had, including where the items disposed of were to be found, until a later interview despite knowing the entire time that there had been a serious incident involving someone being shot. Nor is there any suggestion that you helped Mr Sparks because he was fearful of him, as was the case in Sweeney. The assistance provided by you, in my view, was voluntary and more practical.
[21] A starting point of nine to twelve months imprisonment was adopted in R v Sweeney.
7 R v Sweeney [2013] NZHC 1413.
[22] I consider your culpability to be somewhere between the culpability of the defendants in R v Duff and R v Sweeney. Bearing in mind parity with the other defendants, I adopted a starting point of 16 months’ imprisonment.
Personal and mitigating matters
[23] I now turn to consider your personal and mitigating matters. You have some criminal history but the Crown did not seek an uplift because of it. I agree with this. However, this means that there can be no deduction for previous good character.
Guilty plea
[24] As I have mentioned, you pleaded guilty at an early opportunity and my indication was that I would adopt a 23 to 25 per cent reduction. I adopt 25 per cent because, as I have said, as soon as the charge was amended, you sought the sentence indication and then pleaded guilty.
[25] As to your personal situation, you are 47 years of age and are employed as a forklift driver on-call. You have a close family and had a good upbringing. Your sister, who accompanied you to your interview with the report writer of the Provision of Advice to Courts (PAC) report, advised that you have always been a caring big brother and friend. You were described as a person with a calm demeanour, passionate and empathetic, and respectful.
[26] Your sister considers you have engaged with people that did not serve you well and that you are led by your heart. You explained that what you did was to help your friend Mr Sparks. I have read the letters that have been provided to me by your sisters that speak to your personal qualities and they speak to your gentle nature. They also indicate the support your sisters are prepared to offer you to help you get on a better path.
[27] The report writer has also noted and quoted you as saying “there is no end to it, these people have lost their son for no reason, I’ll never get over that”. I accept that you are extremely remorseful for your offending and that you were prepared to attend
restorative justice, and still would be prepared to do that if the family decide at some point they want that to occur.
[28] When you were initially arrested, you were remanded in custody for a short period of time. But I accept that, for someone like you, that would have been a very long time and rather a shock to the system. Since then, you have been on bail for a long period of time, including 18 months with a residential curfew from 10.00 pm to
6.00 am daily, and there are no instances at all where you have not complied with the very strict conditions of your bail. That is to your credit.
[29] At the time of your offending, you were living by yourself and unemployed. Your life appeared to lack structure. Since the offending, you have obtained a job and moved to a better address. Your employment is through a temping agency. It seems to me very important that you continue with some structure in your life.
[30] I am not persuaded that there should be any other deductions apart from in relation to your early guilty plea. The end sentence for you therefore, if imprisonment was the outcome, would be a term of 12 months’ imprisonment. The question is whether you should be sentenced to something less than that.
[31] I have carefully considered the PAC report, that is the latest one dated 27 July 2023. This is because you now have a suitable address for an electronically monitored sentence whereas previously you did not. The report writer has recommended a sentence of home detention with an alternative option of community detention and I agree that should be the appropriate outcome for you. My initial response was to sentence you to home detention because I considered that to be the least restrictive outcome given the seriousness of your offending. However, if you are to lose your job as a result, I am persuaded that would not be a good outcome for you.
[32] So, what I am intending to do is to impose a sentence of community detention and community work. It is likely that the community work may impact on your work opportunities but, in my view, that is the price you pay. I am going to sentence you to the maximum period of community detention, which is for a period of six months, and the curfew period will be from the time and at the address that is outlined in the PAC
report. I am also sentencing you to 100 hours’ community work that you will need to complete within a period of time.
[33] This sentence, I think, will assist you to carry on what you have started, which is a rehabilitative process and I acknowledge that, by your actions, you have shown that you are capable of leading a proactive, productive and prosocial life.
Result
[34]Mr McKay, if you could stand please.
[35] Mr McKay, I convict and sentence you to six months’ community detention on the conditions I have already outlined, and I sentence you to a period of 100 hours’ community work.
[36]Thank you. If you could please be seated.
MS ARCHBOLD
[37]I now turn to you Ms Archbold.
[38] You also pleaded guilty on the basis of a sentence indication given by me,8 and you accepted that a starting point of 12 months’ imprisonment to reflect your offending was appropriate. Again, as with Mr McKay, I left open the prospect of an electronically monitored or community-based sentence being imposed instead of imprisonment. You have since applied to be discharged without conviction.
[39] Because you pleaded guilty on the basis of a summary of facts, the facts upon which you will be sentenced are based on this and your explanation of what you did as outlined by you, and I refer to it, in the affidavit that you filed in support of your application for a discharge without conviction.
8 R v Archbold, McKay & Cullen, above n 4.
The offending
[40] As was the case for Mr McKay, your offending is limited to the assistance you provided to both Mr Sparks and Mr Smith after Connor had been shot. You provided assistance to Mr Sparks by collecting him from an agreed meeting point, providing comfort to him during phone calls, advising him of information as it became available to you and organising with Mr McKay to uplift a motor vehicle for transport. You also arranged for Mr McKay to meet Mr Sparks to give him money and food, and you organised a safety package for Mr Sparks, including clothes, food, water, money and medication, which you delivered to Mr McKay to be passed on to him during the Saturday after the incident, the party having taken place on the Friday.
[41] Your affidavit outlines more about the nature of your relationship with Mr Sparks. And, for reasons of transparency, even though your lawyer did not traverse all of these details, there are matters I need to refer to publicly to justify where I head with this. You consider you were psychologically, physically and sexually abused by him, such behaviours, you say, often being exhibited by him when he was affected by drugs, in the main, methamphetamine.
Application for discharge without conviction
[42] In order to decide whether to exercise my discretion to discharge you without conviction, I must go through a process which, first, requires me to consider the gravity of your offending, and then I must identify the direct and indirect consequences of a conviction on you and, finally, I must decide whether those consequences are out of all proportion to the gravity of your offending.
Gravity of the offending
[43] The gravity of your offending is assessed taking into account all aggravating and mitigating factors relating to it and to you. Your personal circumstances are therefore relevant.9
9 Z v R [2012] NZCA 599, [2013] NZAR 142; DC v R [2013] NZCA 255.
[44] Ms Archbold, you are 44 years of age. You were born, raised and have lived in Christchurch almost, if not all of your life. Since you left school, you have been employed as a hairdresser. You have had three significant relationships in your life, the last being that with Mr Sparks. All three of these relationships have unfortunately been with men who have or continued to use illegal drugs and, in two cases, unfortunately and sadly, were violent towards you. You have two adult daughters, the youngest of whom is 19 years of age, and I see is likely to be here in support of you today.
[45] Your relationship with Mr Sparks lasted about 10 or 11 years before he was arrested. You had known each other at school and, when you formed your relationship, he moved into your home. When you met him you knew he had a criminal history but he was not a member of a gang at that time. However, once you were in a relationship, you say he got to know the president of the Black Power gang, who lived along the same street. You yourself have had no contact with that organisation.
[46] You say you were controlled by Mr Sparks during your relationship, he would do as he pleased and, although there were some very good times early in your relationship, once he became a regular user of methamphetamine, and can I say from the Court’s perspective, unsurprisingly, his attitude and behaviour towards you deteriorated. You say he spent money you earnt on his drugs and social activities, and any money he earnt would be for his purposes first and foremost. You describe occasions, that I won’t outline but I need to mention the fact of them, where you have been physically and seriously assaulted, the property in your house has been destroyed and, on one occasion, you described Mr Sparks threatening to burn the house down if you left him. You describe your situation living with him becoming worse after COVID.
[47] In your affidavit you also explain in more detail what happened before and after Connor was shot.
[48] You said that Mr Sparks and Mr Smith became friends about four to five weeks before the incident and were inseparable. The evening Conor was shot, you described both of them working on scrap items in the garage while you were inside the house,
and you presumed that, in addition to drinking, they were both using methamphetamine because you said that was what they did. Mr Smith has now confirmed your suspicions were correct.
[49] You were aware of Nelson ringing his father because he rang and sent texts to you saying he wanted to speak to his father. During one of those calls, you handed Mr Sparks your cell phone through the window. He told you that there was trouble at a party his daughter was having and that he and Mr Smith would be going over to the house and would not be long.
[50] The next you heard was when he rang you a little later and asked you to come and get him as the car had run out of petrol. You were aware from what he told you that Mr Smith had done something and, by the words he used, you must have been aware that, whatever it was, it was serious. Mr Sparks told you that Mr Smith was not with him.
[51] You say you drove around trying to find where Mr Sparks was and that, during this time, he rang you six or seven times to see where you were and he was getting angry with you. You saw Police cars on the road, driving at speed with their lights and sirens on and you wondered if their activity had something to do with Mr Sparks. You say that, by chance, you saw him standing on the footpath by a corner and, when you pulled over, he and Mr Smith got into the car. But, you did not see any guns and, for the brief period Mr Smith was in the car, he did not say anything.
[52] It was at this point that you dropped Mr Sparks off at Mr McKay’s address. You say you asked him why he wanted to go there and were told that he and Mr Smith had been attacked at the party, that they had been “bottled” and that a person had been picking on Nelson, so he had tried to sort it out. Nothing was said to you at that time you say about anyone being shot.
[53] You became aware that some people associated with the Crips gang had been at the party and you were worried that, if there had been trouble at the party, you did not want to be home alone because of Mr Sparks’ gang involvement and people knowing where he lived. So, you stayed at your daughter’s overnight.
[54] The following morning, you say you found out what really happened at the party through your younger daughter. And it was after this that you had further conversations with Mr Sparks and, from what he said to you, you learnt that Mr Smith had shot a young person. Your subsequent phone calls and the assistance you gave to Mr Sparks were focused you say on preventing him from harming himself. You say this was the background to you agreeing to meet with him, even though that did not occurred.
[55] You say you did what you did because you felt you had no choice. You say you were not concerned about your safety, but you were concerned about Mr Sparks’ mental health. You thought if you did what he asked, then he would calm down and would still be alive when he was inevitably arrested by the Police or chose to hand himself in.
[56] When you were arrested, you spent nearly four weeks in custody before being granted bail. And, like Mr McKay, I observe that would have been a terrible experience for you. And you say that, since the time when you were arrested or prior to that, you have not spoken to Mr Sparks at all although he does still ring your daughter.
[57] Since your arrest, it is good to see that you have started ACC counselling but you have also been prescribed medication for anxiety, a condition you have developed since this incident. And you haven’t felt it possible to continue working because of it and, as a result, having worked all of your life, you now find yourself on a sickness benefit.
[58] Your younger daughter filed an affidavit in support of your application and she confirms the dynamics of your relationship with Mr Sparks and the impact that it has had on you and, no doubt, on her.
[59] The Provision of Advice to Court (PAC) report writer spoke to a friend of yours who confirmed the impact your remand in custody after the incident has had on you. The report writer records that, for their interview with you, you were in tears for most
of the interview as you were overwhelmed by the thought of a “couple having lost their son”.
[60] In assessing the gravity of your offending, I take into account not only what you did to help Mr Sparks but the fact that you display considerable remorse for being involved in helping him at all. I also take into account the dynamics of your relationship with Mr Sparks in my assessment. I have no difficulty in characterising your relationship as one in which his drug use, unpredictable, controlling and at times violent behaviour towards you impacted on your decision to become involved in helping him after the incident.
[61] When the charge was amended, as I have already referred, you sought the sentence indication and pleaded guilty at the very earliest opportunity.
[62] Further information about you and your background is included in the report of Dr Monasterio, a consultant psychiatrist. His report confirms the symptoms of generalised anxiety, panic attacks and insomnia you have suffered since Connor was shot. His report includes clinical and research findings about relationships referred to as “battering relationships”. And I mention this information for the victims. This includes victims of that behaviour, as he determines you to be, exhibiting behaviours that are often incomprehensible to lay people. For example, the research indicates that, while lay people would expect a victim to immediately report sexual assaults, research demonstrates that this is not common. In addition, victims of battering relationships often remain within and have difficulty breaking away from them, and not infrequently remain emotionally dependent on abusers. As well, Dr Monasterio’s report explains that it is not rare for victims of such relationships to become socially isolated which, in itself, can contribute to difficulties in breaking away from that relationship.
[63] I found Dr Monasterio’s report particularly helpful as it provides an explanation about why you assisted Mr Sparks after Connor was shot. Dr Monasterio considers that your response was significantly influenced by your prior relationship with Mr Sparks. He considers that you are likely to require psychotherapy to deal with
the impact of relationship trauma and, for at least 12 months, medication to help you with the generalised anxiety disorder you have developed since.
[64] When I provided your sentence indication, as you know, I considered your assistance to be in the low to mid range of offending of this kind and that the starting point of 12 months’ imprisonment was appropriate to reflect the gravity of your offending. I remain of the view that the 12 months starting point is appropriate but, given the mitigating factors I have referred to relating to you personally, I assess the gravity of your offending overall to be near the low end of that range.
[65] Taking into account all of these matters, as well as a deduction of 25 per cent for your early guilty plea, I would allow a further 15 per cent deduction to reflect your lack of previous convictions and prior good character, that would be five per cent, and the impact your relationship with Mr Sparks had on your decision to provide him with assistance, the impacts on your mental health as a result of the incident and your significant remorse as encompassing 10 per cent. So, those percentages make up the 15 per cent deduction in addition to the 25 per cent I have allowed for your early guilty plea. That would, if imprisonment was the appropriate outcome, result in a sentence of seven months’ imprisonment rounded down. I mention this to give an indication of the gravity of your offending which is the first step I am required to assess when considering your application for discharge without conviction. But I say right now that I do not agree that a sentence of imprisonment is the appropriate outcome for you.
Direct and indirect consequences of conviction
[66]I now turn to the direct and indirect consequences of conviction.
[67] You accept that a conviction will not prevent you from working and there are no other immediate direct consequences that you have been able to identify. You are however concerned that a conviction will be confirmation to the community that you willingly helped Mr Sparks avoid arrest. You are concerned that the community will associate your acts in assisting him as knowledge of what happened or what he did. You hope that a discharge without conviction will result in people recognising that your involvement was complicated by the nature of your relationship with him and that it would further help to explain that you were not to blame for any of the events
surrounding Connor’s tragic death. Such a consequence in my view, although I have no doubt about the sincerity with which you feel it, is objectively tenuous. I am not satisfied that there is a real and appreciable risk of such a consequence occurring.
Proportionality assessment
[68] Based on the reasons I have given, I am not able to conclude that the consequences of a conviction will be out of all proportion with the gravity of your offending and so I must dismiss your application for discharge without conviction.
Should a sentence less than imprisonment be imposed?
[69] But, as I have indicated, I am not persuaded that an appropriate outcome for you is imprisonment. You are a person who has no prior convictions, you have experienced significant harm yourself in your relationships, and including your relationship with Mr Sparks. You are remorseful for what has happened and I am satisfied that your remorse goes much deeper than just your guilty plea.
[70] I am satisfied that the experience of being charged, initially remanded in custody and the response of others to your offending have held you accountable for it. By your guilty plea, you have taken responsibility for your part in this tragic incident. In my view, the least restrictive outcome for you is a sentence of community detention and supervision. I do not consider home detention is justified in your case. To be clear, I consider the purposes and principles of sentence will be met by a sentence of community detention and supervision.
Result
[71]Could you please stand Ms Archbold.
[72] Ms Archbold, you are convicted and sentenced to community detention for a period of four months at the curfew address referred to in the PAC report with a daily curfew period from 9.00 pm to 7.00 am.
[73] You will also be sentenced to supervision for a period of nine months, with the recommended special conditions that you attend an assessment for any counselling,
programme or treatment as directed by a Probation Officer and to do so at the satisfaction of that Probation Officer. The supervision is actually there to help you and to recognise that you are already on a path that will take you into a better place than you are now.
[74]Thank you. Could you please be seated.
MS CULLEN
[75] Ms Cullen, you pleaded guilty to the charge following a sentence indication I gave to you, in the same way as your co-defendants did.10 The term of imprisonment I adopted for the starting point was one of nine months. Although I was able to address the discount that would be available to reflect the early guilty plea and your lack of previous convictions, given the information before me, I did not feel able at that point to consider what further deductions might be available to you.
[76] You signalled at the sentence indication hearing that you wanted to apply for a discharge without conviction and that is the application you advance today. The Crown do not oppose a non-custodial sentence but submit, in all the circumstances, that a discharge without conviction is not appropriate. And you also apply today for permanent suppression of your name.
The offending
[77] As with the others, because you pleaded guilty to the charge, the facts upon which you are sentenced are based in a summary of facts.
[78] At the time Connor was shot, you and Mr Smith were living in the same house, you were in a committed relationship but one you described as fragile.
[79] The summary of facts records that, at about 2.30 am on Sunday 7 November 2021, that is some time after the shooting, you arranged to meet Mr Smith behind a dairy near your home, and you picked him up and took him to an unknown location.
10 R v Archbold, McKay & Cullen, above n 4.
[80] Later that afternoon, you brought him back to the home you shared. Both you and he were at your home when smoke plumes were seen by the Police and they approached your house. You came out of the house with the children and told the Police that Mr Smith was not at the address, even though he had been there. You say you said that because you thought he had run away from the house and you hadn’t seen him after he went and had a shower. I accept that that is what happened. However, as we know, he was found by the Police hiding inside a car at your address. And in the fireplace the Police found remnants which were considered by them to be burnt evidence. I accept and it cannot be suggested, in my view, that you were responsible or knew about the burnt evidence.
Starting point
[81] When I adopted the starting point of nine months’ imprisonment for you, I did it on the basis that, while you helped Mr Smith avoid detection and arrest, your assistance, in my view, was not premeditated and it was limited. I determined your actions to be at the lower end of the scale after having considered the cases provided to me by counsel.11
Application for discharge without conviction
[82] I have already outlined the process that needs to be followed in relation to an application for discharge without conviction and I don’t intend to go through that again.
The gravity of the offending
[83]So, I first need to address the gravity of your offending.
[84] I accept that Mr Smith attempted to engage you and meet up with you, and that you were reluctant to do so. But, the fact remains that you did pick him up with the knowledge of what had happened to Connor and that it was possible Mr Smith had shot him. You told the Provision of Advice to Courts (PAC) report writer that you
11 R v McKenzie HC Christchurch CRI-2005-009-6159, 10 March 2006; R v Te Koha Pou [2021] NZHC 2519.
were unwittingly involved in a situation where Mr Smith had called you to meet him and you did not completely understand the wider context of the situation around this request. And you said, and again repeated through your counsel today, that had you known what had happened, you would have gone straight to the Police. This was particularly so had you known that Mr Smith was evading the Police.
[85] I have a difficulty with this explanation to be honest. In my view, it is more likely you turned a blind eye to what was happening. I do not consider it plausible that you were completely unaware of the possibility Mr Smith was involved in the shooting that happened at Heaphy Place, although I do accept that you didn’t want to know about it and possibly therefore blocked the possibility of it out.
[86] So far as your personal circumstances are concerned, you appear before the Court also for the first time at the age of 37. And we have heard you have two children, one aged 16 and the other aged six years. The younger child is shared with Mr Smith and your elder child considers him to be a father figure as well.
[87] You too were remanded in custody initially and you have spent over a year subject to curfew conditions. You state, and I accept, that your life has been shaken to its core and you have worked hard to retain stability over the period since you were charged so that you and your children can move on and be together. You have completed a social work degree and are currently involved helping other people.
[88] As well as the PAC report, I also for you received a s 27 report to help me better understand your background and the person you are. I also carefully read the references that were provided, including one from your son which, might I say, was extremely touching and outlined the impacts all of this has had on him as well. Can I say that his reference also displayed a level of maturity beyond his years.
[89] While you grew up living with both your parents, unfortunately and sadly you also frequently witnessed domestic violence within your family home and, during your formative years, suffered both physical and sexual abuse. I say these matters not to shame you but to help others to understand and to explain your situation. Your family moved around frequently and you attended several different schools. You were
brought up for a large part of your childhood in Australia, but at some point came back to New Zealand to live with your mother. But, when you were 14 years of age, still a child, your mother left you alone in New Zealand and travelled back to live in Australia, effectively abandoning you to care for yourself.
[90] You have some ongoing health issues and, unsurprisingly, suffer from depression and post-traumatic stress disorder.
[91] Despite the number of schools you attended, you were a good student and achieved to a relatively high standard. And after school, you were employed working in a variety of jobs, including holding positions of responsibility. These things are a credit to you.
[92] But, you met Mr Smith and moved to Christchurch to be nearer to your mother after the 2011 Christchurch earthquake.
[93] As with Ms Archbold, Mr Smith’s methamphetamine abuse led to him being violent towards you. You sought a protection order and moved yourself and your children away. After spending time in prison however, Mr Smith followed you to Christchurch and you made a decision to try and work on your relationship.
[94] Leading up to the offence, you say Mr Smith began exhibiting strange behaviour leading you to suspect he was using methamphetamine again. And you were right. After his arrest, you learnt that he had been associating with gang members. And you yourself, as with Ms Archbold, have never had any association with gangs.
[95] As your counsel has submitted, your remand in custody is what you have described as being a frightening and surreal experience. But, refreshingly, it has reinforced your desire to continue to work in social services.
[96] Your former partner is also very supportive of you, that is the father of your eldest child. He provided a reference for you. He describes you as a wonderful mother
and considers your offending to be very much out of character. He confirmed his awareness of your relationship with Mr Smith and that it had been tumultuous.
[97] The report writer suggests that your early life experiences, which have continued to affect your self-esteem and confidence, are likely to have contributed to your offending because you tend to put others first at your own expense. As well as this, as I have mentioned, you have been the victim of domestic violence at the hands of Mr Smith which also may have influenced your decision to remain in the relationship with him, despite your suspicions about his renewed use of drugs.
[98] However, I am not necessarily persuaded that this is a direct enough nexus to your offending to justify a discount of any significant degree. The difficulty with the report writer’s approach in your case is that you maintain you did not know anything about what had happened before you agreed to help Mr Smith by picking him up and taking him to the other location and back to your house. And I have already said I do not find this plausible.
[99] I take into account your early guilty plea, your previous good character and lack of previous convictions, and that you are assessed as unlikely to reoffend. I also accept your remorse and your own personal frailty which are no doubt a result of your life experiences.
[100] When I consider the overall gravity of your offending and bearing in mind these matters, I remain of the view that it is at the very lower end of the scale.
Consequences of conviction
[101] Your main concern is about the consequences a conviction will have on your career prospects but as well as the impact it will have on your mental health and your children.
[102] So far as your future career is concerned, I received a reference and a report from the principal tutor at the programme you have been attending. And, as we have heard today, you were considered to be a better than average student, solution based, professional and appropriate in your response to service user situations. Although the
tutor considers it would be extremely unlikely for you to be able to obtain employment in this field if you were convicted, his concerns really relate to what opportunities would be available to you. In other words, it did not seem to me, from reading what he said, that a conviction would be a complete bar to you working in your chosen field of endeavour but, nonetheless, a hurdle which you would have to overcome.
[103] Given the background circumstances I have referred to, which no doubt would be submitted to assist any future employer understand how you found yourself in this position, it is hard to see how this could evoke anything other than a compassionate response. My sentencing notes could also be provided to help explain the context and your role in the overall offending. But, I do not find this consequence, which I consider a possibility rather than an inevitability or even a probability, to be out of all proportion to the gravity of your offending. The work you have done since examining your role in all of this will also be relevant to any future employer.
[104] The next consequence submitted was the impact on your mental health. And I agree with the Crown that this is more appropriately dealt with in your application for final name suppression. But, just to be clear, I do not consider that consequence to also be out of proportion to your offending.
[105] So far as your children are concern, you have made it clear that you have no intention of reconciling with Mr Smith and so the separation from him will inevitably be felt by your children. But I do not agree that this consequence is solely to do with your conviction. It also arises, and I want you to hear this, predominantly so from Mr Smith’s conviction.
Proportionality assessment
[106] I recognise that you are a person of good character reflected by your lack of previous convictions but more particularly by the voluntary work that you have done and your remorse which is significant.
[107] However, when I consider all of these matters individually and in the round, I am not persuaded that they are out of all proportion to the gravity of your offending. And for that reason, the application for discharge without conviction must be declined.
[108] I am however satisfied that a sentence of community work will meet the purposes and principles of sentence in your case and you will have heard the interactions I had with your counsel about that today. But, by a narrow margin, I am not persuaded anything further needs to be imposed in terms of community detention. You are less culpable for the offending than the other defendants and, in my view, a term of community work is the appropriate outcome.
[109] It is difficult to translate community work to an end term of imprisonment and I also take into account your parental responsibilities which will make a sentence challenging for you. But, in the end, I have decided I should convict and sentence you to 100 hours’ community work.
Application for permanent suppression of name
[110]I now consider the application for permanent suppression of your name.
Legal principles
[111] There are a number of legal principles that apply to this and the starting point is the presumption of open justice.12 This is because the business of the courts should be conducted publicly and any departure from this general rule ought only to be “to the extent necessary to serve the ends of justice.”13
[112] There is a two-step enquiry required.14 Firstly, whether any of the threshold grounds outlined in s 200(2) of the Act are met. And, secondly, if the court is satisfied that one of the thresholds has been met, it must determine whether to exercise its discretion nonetheless.15 The presumption of open justice is considered at that stage and to displace the presumption, the balance must clearly favour suppression.16
12 Robertson v Police [2015] NZCA 7; D (CA443/2015) v Police [2015] NZCA 541, (2015) 27
CRNZ 614.
13 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
14 D (CA443/2015) v Police, above n 12, at [10].
15 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 12; D (CA443/2015) v Police, above n 12.
16 D (CA443/2015) v Police, above n 12, at [17].
[113]Relevantly, s 200 provides:17
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(e) endanger the safety of any person; or
…
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 16B of the Victims’ Rights Act 2002.
[114] Section 200(2) talks about “would be likely to” and this means more than a mere possibility, but it is not so high a threshold as to require an applicant to show that it is more likely than not to occur.18
[115] But extreme hardship under s 200(2)(a) is a very high threshold.19 The Court of Appeal has held that “hardship” without more means “severe suffering or privation”, while “undue hardship” indicates something more and “extreme hardship” something more yet again.20 In short, it denotes a very high standard and the level of
17 This section was not read out by me but was included in my written draft sentencing remarks. It is now included to provide context to what follows.
18 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17].
19 SSB v R [2017] NZHC 2590 at [10] and [20].
20 Robertson v Police, above n 12, at [48].
hardship must go well beyond that which is ordinarily associated with the consequences of publication.21 But the cumulative effects of all the pleaded hardship must be taken into account in my assessment.22
[116] As well, in determining whether extreme hardship is likely to be caused by publication, a real and appreciable risk of such a consequence is required to be demonstrated.23 In other words, the risk of harm must be a real and appreciable consequence or possibility that cannot be dismissed or ignored as remote or fanciful.24
Defendant’s submissions
[117] Mr Allan in his sentencing submissions referred to the grounds he had submitted before Osborne J when he considered your application for interim name suppression. These were employment prospects, mental health, and the impact on your children. And he also referred me to the affidavits that were filed at that point which I have also read and considered.
[118] Mr Allan submitted that it had been accepted by Osborne J that, because you had no convictions and that because of the nature of the offending, there was little scope for further evidence, allegations or suspicion falling on others at that time. However, he did note that this did not discharge the presumption in favour of open justice nor the victims’ interests that your name be published.
Crown submissions
[119] The Crown opposes your application for final suppression. Mr Harvey highlighted and in the written submissions for the Crown noted case law that states, if a consequence is reasonably to be expected, then it is harder to argue extreme hardship because it involves a hardship that affects all or most people in such circumstances.25
[120] In relation to your mental health, the Crown submitted with referred to case law26 that, if the proceeding itself rather than the publication causes the stress, the
21 At [49].
22 X v R [2020] NZCA 387 at [40].
23 D (CA443/2015) v Police, above n 12, at [30].
24 Beacon Media Group Ltd v Waititi, above n 18, at [21].
25 K v Inland Revenue Department [2013] NZHC 2426 at [25].
26 D (CA443/2015) v Police, above n 12.
opinion of medical professionals need not be deferred to, and other support structures available will be relevant to the assessment.27
[121] It was also submitted by the Crown that, as you are no longer preparing a defence for trial, the balance has shifted in favour of publication. The Crown acknowledges that publication will cause you hardship but submits that anxiety and stress are ordinarily associated with the trial process and the health concerns you have can be mitigated by treatment.
Analysis
[122] Ms Cullen, I accept you will face significant consequences having been convicted. But that is not the threshold to be met under s 200(2)(a). The consequences must equate to extreme hardship which is a very high threshold and, as noted by the Court of Appeal, stress, embarrassment and adverse personal and financial consequences that usually attend criminal proceedings and publication are not enough.28 Something “out of the ordinary” is required.29
[123] For the reasons I have already expressed, I am not satisfied that any employment consequences for you meet the threshold of extreme hardship.
[124] I now consider your mental health. Given your past history, it can be inferred that you are likely more vulnerable to mental health difficulties than a person without this history would be. I take into account the matters referred to by Dr Hamilton in her affidavit and her opinion, but I am not persuaded that even these matters meet the extreme hardship threshold.
[125] As to the impact on your children, largely for the same reasons, I do not consider that any impact on them will amount to extreme hardship. I accept it will amount to some hardship, but I also accept that you have been handling and dealing with these matters in an extremely positive way. Reference was made in your affidavit to your son being assaulted outside the same school he formerly attended which, as we have heard, was the same school Connor attended. You described this as being a
27 D (CA443/2015) v Police, above n 12, at [30].
28 P v R [2018] NZCA 302 at [13].
29 At [13].
“random attack” and it transpired that it was not connected to this case at all. But I accept, having read your son’s reference, that his awkwardness about all of this was one of the factors that was very powerful in the decision for him to move school. But, since that time, your children appear to be settled, which is a credit to you and what you have decided to do for them about school has worked in their best interests.
[126] I note that the victims’ views must also be taken into account. Their views were strongly expressed and, without any disrespect to them, without full knowledge of all of the circumstances relating to you or perhaps to any of the other defendants. But, in relation to suppression, certainly without knowing all of the factors relating to you. Nonetheless, they oppose the final name suppression and I am required at law to acknowledge those views and take them into account. While I do acknowledge those views, they do not form a significant part of my decision to decline name suppression. The reason I have decided to do so is because I am not satisfied that the extreme hardship threshold has been met.
[127] Ms Cullen, your application for final suppression of your name is therefore declined.
Result
[128]Could you please stand.
[129]Ms Cullen, I convict and sentence you to 100 hours’ community work.
[130]Your application for final suppression of your name is declined.
[131]Could you all please stand down.
[132] I will grant interim and continued suppression of [Ms Cullen’s] name for a period of two weeks.
[133]Thank you very much. You can stand down now.
Harland J
0
5
0