R v Merrin
[2021] NZHC 3549
•17 December 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-072-442
[2021] NZHC 3549
THE QUEEN v
WILLIAM JAMES MERRIN
JORDAN DAMIAN TOIHO PANAPA WILLIAMS
Hearing: 17 December 2021 Appearances:
B T Vaili and U Keller for Crown C Bean for Mr Merrin
J Tarrant for Mr Williams
Judgment:
17 December 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v MERRIN & WILIAMS [2021] NZHC 3549 [17 December 2021]
[1] Mr Williams, you appear for sentence having pleaded guilty to a representative charge of theft and a charge of injuring with intent to injure. The maximum penalty on the charge of theft is five years imprisonment and the same maximum penalty applies to the other charge.
[2] Mr Merrin, you appear for sentence on the same charges. You also appear for sentence having pleaded guilty to additional charges of obtaining by deception, being in unlawful possession of a firearm and ammunition and escaping lawful custody. The maximum penalties for those charges range between two and seven years imprisonment.
[3] The Crown has offered no evidence in relation to charges 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 17 in the current version of the Crown Charge Notice. I therefore make an order under s 147 of the Criminal Procedure Act 2011 discharging you on those charges.
The representative charge of theft
[4] This charge relates to a series of incidents between 17 and 20 November 2020 when you stole cash and motor vehicles from a complainant whom Mr Merrin had known in prison. At about 11 pm on 17 November you both went to the complainant’s address in Tamahere along with another associate. The address was occupied by the complainant, his partner, her father and his partner’s child. When the complainant came to the door you, Mr Merrin, said you had a gun in your vehicle. You asked whether you should “smoke” the father of the complainant’s partner. You also told the complainant you were there to “collect”, and that you knew he had money. You said he owed you money because you had looked out for him in prison. You told the complainant he needed to pay the sum of $5,000 each to you and Mr Williams along with drugs. You threatened to enter the house if he did not hand over the money.
[5]The complainant did not have $10,000. However, he gave you the sum of
$2,000 in cash and at your request he also gave you his cellphone number. You then left the address.
[6] On 19 November 2020 you, Mr Williams, went back to the address and made further threats to the complainant. Later the same day you sent threatening text messages telling him that he owed you money and that you were coming to take his vehicles. The complainant duly left the keys in two vehicles parked in his driveway. You both went to the address late that evening and drove away in a BMW and a Nissan Skyline motor vehicle. You subsequently sent a text message telling the complainant that Mr Merrin would keep the BMW whilst Mr Williams would keep the Nissan Skyline.
Obtaining by deception (Mr Williams only)
[7] Mr Merrin, you also face a charge of obtaining by deception. This charge was laid after an incident that occurred on the evening of Friday 20 November 2020. You went to the complainant’s address and demanded the keys to another vehicle parked in the driveway. You were wearing a red bandanna over your face and threatened to come inside if the complainant did not hand the keys over. The complainant duly gave you the keys to a Holden Commodore motor vehicle and you drove away in it. The complainant later sent you a text message saying he wanted the vehicle back and that he would give you money in its place. You arranged to meet him at a specified location. You arrived at that location and obtained the sum of $3,000 from him. You told him his vehicle would be waiting for him at another location. When he went there, however, there was no motor vehicle there. He had therefore paid you the sum of $3,000 to get his vehicle back and you never returned it.
Injuring with intent to injure
[8] You both pleaded guilty to a charge of injuring with intent to injure. This charge was laid as a result of an incident that occurred on the morning of Saturday 21 November 2020. On this occasion you were walking along a footpath when you encountered the complainant for this offending. He was not known to either of you. As you walked past the complainant, he bumped shoulders with Mr Williams. This resulted in the two of you mounting a concerted physical attack on the complainant. You kicked him In his lower legs and continued with the attack even though one of the complainant’s associates tried to pull you away.
[9] Mr Williams, you then walked a short distance away and picked up a piece of timber and struck the complainant on the back of the head with it. This caused him to fall into a nearby bush and left him dazed. You then continued to kick him whilst he was on the ground before leaving the scene. This incident resulted in the complainant suffering a large cut to the back of his head and a bruise to the right side and back of his neck. When the complainant recovered, he discovered some of his personal items had disappeared.
Unlawful possession of firearm and ammunition and escaping from lawful custody
[10] Mr Merrin, you have also pleaded guilty to charges of being in unlawful possession of a shotgun and ammunition. These were laid because the police ultimately located the stolen Holden Commodore motor vehicle at an address at which you were known. Whilst the police were at the address you arrived in a vehicle with your partner. You were found to be in possession of a loaded sawn-off shotgun along with a box of shotgun ammunition. You were arrested and taken to the Hamilton Police Station. Whilst being processed in the custody unit you escaped by running out an insecure back door. It took some time before you could be located. This led to the charge of escaping from lawful custody.
Starting point
[11] The first stage in the sentencing process is to set a starting point for your offending. I take the lead, or most serious charge, to be that of injuring with intent to injure. All counsel have discussed the appropriate starting point for this charge. In a case called Nuku v R, the Court of Appeal identified bands of offending for the charge of injuring with intent to injure.1 The Court said that in cases involving three or less of the aggravating features in another case called Taueki v R, a starting point of up to three years imprisonment will be appropriate.2 I consider the offending on the second complainant has two to three of the aggravating features identified in Taueki. The first is that it involved an attack on an individual by two attackers who acted in unison. Secondly, it involved an assault with a weapon because Mr Williams struck the
1 Nuku v R [2021] NZCA 584, [2013] 2 NZLR 39.
2 R v Taueki [2005] 3 NZLR 372 (CA)
complainant on the head with the plank. An attack to the head is also an aggravating factor identified in Taueki.
[12] I therefore place the culpability of this particular offending towards the upper end of Band 2. I propose to distinguish between the two of you because Mr Merrin did not strike the blow that injured the complainant. Nevertheless, he was involved in the overall attack on the complainant. For Mr Williams, I would select a starting point on that charge of two years nine months imprisonment. For Mr Merrin, I would select a starting point of two years imprisonment.
[13] The representative charge of theft also needs a discrete uplift. This had several aggravating features. The first of them was it involved direct threats to the wellbeing of the complainant and members of his family. It involved a threat to use a firearm to injure a member of the complainant’s family. It resulted in the first occasion on the complainant handing over $2,000 in cash. It resulted on the second occasion in you brazenly taking two motor vehicles. These thefts had all the hallmarks of standover tactics. There was also a gang overtone because gang -related threats were also made to the complainant.
[14] I consider the theft charge requires an uplift in the case of Mr Williams of nine months. For Mr Merrin the position is more serious because he was also involved in the offending relating to the Holden Commodore motor vehicle and the extortion of
$3,000 from the complainant for the return of the vehicle that never eventuated. I would add an uplift of 12 months for Mr Merrin to reflect that factor.
[15] So far as Mr Merrin is concerned it is also necessary to add a further uplift to reflect the charges relating to being in unlawful possession of a shotgun and ammunition. The unlawful possession of a firearm is always a serious matter. That is particularly so when it is a firearm such as a shotgun and when it is loaded, and ammunition is nearby. On its own charges such as this could easily carry a starting point of 18 months to two years imprisonment. I propose to apply totality principles and add an uplift of nine months to reflect these charges. I also consider an uplift needs to be applied to reflect the charge of escaping from custody. This caused considerable inconvenience to the police and was brazen in nature. I think the starting
point of six months suggested by the Crown is too high. I therefore apply an uplift of three months to reflect this factor. This means that I have selected an overall starting point for Mr Williams of three years six months imprisonment, and for Mr Merrin four years imprisonment.
Aggravating factors
[16] It is now necessary to consider whether to increase the sentences to reflect aggravating factors personal to you. These are present in the form of your criminal histories which, in both cases, show several convictions for offending involving violence and also dishonesty. I add a modest uplift in each case of three months to the starting points I have selected to reflect this factor.
Mitigating factors
[17] This brings me to the final stage of the sentencing process, which is to apply discounts to reflect mitigating factors personal to you. In your case, Mr Williams, I apply a discount of 11 months to reflect your guilty pleas. I also apply a discount of one month to reflect the fact that you have complied with EM bail for a period of approximately three months. I apply a discount of two months to reflect the expressions you have made that you are determined to engage in rehabilitative efforts. This means I have identified discounts for mitigating factors amounting to 14 months. This will reduce your end sentence to one of two years seven months imprisonment.
[18] Mr Merrin, from the sentence of four years three months imprisonment, I apply a discount of one year one month to reflect your guilty pleas. I have also received a report tendered to me by your counsel under s 27 of the Sentencing Act 2002. This demonstrates that you had an appalling upbringing in which violence and the use of drugs and alcohol were both endemic in your household. There were gang-related influences, and this means you have had very little in the way of education or any means by which to gain a meaningful occupation. I have no doubt that the offending in which you engaged was driven to some extent by the factors identified in that report. I propose to apply a discount of six months to reflect this factor. This includes any discount for remorse through a letter you have tendered to me today.
[19] This means I have identified discounts of one year seven months to be taken from the starting point of 51 months imprisonment. For you this means an end sentence of two years eight months imprisonment.
Sentence
[20] Mr Williams, on the charge of injuring with intent to injure you are sentenced to two years seven months imprisonment. On the charge of theft, you are sentenced to seven months imprisonment. Those sentences are to be served concurrently.
[21] Mr Merrin, on the charge of injuring with intent to injure you are sentenced to two years eight months imprisonment. On the charges of theft and obtaining by deception, you are sentenced to nine months imprisonment. On the chargse of being in unlawful possession of the firearm and ammunition, you are sentenced to six months imprisonment. On the charge of escaping from custody you are sentenced to two months imprisonment. All sentences are to be served concurrently. This means you will serve an effective sentence of two years eight months imprisonment.
Order for destruction
[22] I make an order for the destruction of the firearm and ammunition that was found in your possession.
Lang J
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