Counsel: M A O'Donoghue and J Webber for Crown
R Lithgow QC and AJD Bamford for Accused McNaughton
G P Barkle for Accused Cunnard
H Riddoch for Accused Warren
JCS Sandston for Accused Gillbanks
R B Squire QC and D Russ for Accused Perry

Sentencing: 16 April 2012

SENTENCING NOTES OF MILLER J

[1] Gentlemen, you may remain seated while I read my sentencing notes. I will ask you to stand as I pass sentence upon each of you separately.

[2] You appear today for sentence today for crimes that you committed as you played your respective parts in the death of Troy Minto at Branford Park, Nelson, on
14 November 2009.

R V MCNAUGHTON HC NEL CRI-2009-042-004391 [16 April 2012]

[3] You were convicted after trial, the jury having found you guilty of all of the charges that you faced. Mr McNaughton and Mr Cunnard were found guilty of murder, the latter as a party. Messrs Warren, Gillbanks and Perry were found guilty of manslaughter as parties to the killing. The same three were found guilty of jointly possessing, with all the accused, the shotgun that Mr McNaughton used to kill
Mr Minto.1 Mr Cunnard had already pleaded guilty to that charge. Messrs Cunnard,

Warren and Gillbanks also pleaded guilty at an earlier stage to unlawful assembly.

The facts

[4] The facts matter a great deal. I agree with counsel that only by paying close attention to them can I settle upon a just sentence for each of you. I must consider your individual knowledge and commitment and leadership, what you did to further the group’s unlawful purpose, and how you contributed to Mr Minto being shot. I have reviewed the evidence, and what follows are my findings on the evidence admissible against each of you. I believe that they are consistent with the jury verdicts.

[5] I begin by putting your behaviour in context. What happened at Branford Park was an arranged fight between two groups of young men, aptly named the Warren group and the Proctor group. The Warren group appear before me today and the Proctor group do not. The law tends to categorise those involved in an incident such as this as criminals or victims, condemning the one and supporting the other. The real victims here are Mr Minto and his family. I will say something more about them in a few minutes time. The Proctor group have not earned the status of victims, although some of them seemed willing to claim it in evidence.

[6] It is true that the origin of the conflict lay in Mr Warren’s refusal to accept
that his girlfriend had left him for the principal protagonist on the other side, Shannon Proctor, but by the time of the killing that had ceased to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McNaughton

Details

AGLC: R v McNaughton [2012] NZHC 815
Case: [2012] NZHC 815
Decision Date: 16 April 2012

CaseChat Overview and Summary

The case of R v McNaughton involved several defendants charged in relation to the death of Troy Minto, which occurred during an arranged fight between two groups of young men. McNaughton and Cunnard were convicted of murder, while Warren, Gillbanks, and Perry were convicted of manslaughter as parties to the killing. The court had to decide on the appropriate sentences for each defendant, taking into account the legal principles and circumstances of the case. The court found that McNaughton and Cunnard were leaders in the group violence, with McNaughton using the gun to threaten others and subsequently shooting Minto. Cunnard was found to have brought the gun to the scene, knowing there was a possibility it would be used with murderous intent. The court sentenced McNaughton to life imprisonment with a minimum period of 10 years, and Cunnard to 10 years imprisonment, considering his peripheral role in the killing. Warren, Gillbanks, and Perry were sentenced to 4.5 years, 3 years and 3 months, and 12 months home detention, respectively, taking into account their varying levels of involvement and culpability in the crime.

Orders