R v S

Case [2022] NZHC 2944 9 November 2022

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT(S) PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-096-000207

[2022] NZHC 2944

THE KING

v

S

Hearing: 9 November 2022

Appearances:

M Page for Crown

R M Lithgow KC and A Jeremich for Defendant

Sentence:

9 November 2022

SENTENCING NOTES OF ISAC J

Solicitors
Luke Cunningham & Clere, Wellington for Crown

R v S [2022] NZHC 2944 [9 November 2022]

Introduction

[1]Mr S – you may remain seated. I will ask you to stand at the end.

[2] Mr S appears for sentence having pleaded guilty to a charge of being an accessory after the fact of aggravated burglary,1 and a charge of aggravated failing to stop for red and blue flashing lights.2

[3] On 23 September 2022, I provided Mr S with a sentence indication suggesting that if favourable reports were produced, and no further disqualifying matters arose, a discharge without conviction would be the appropriate sentencing outcome. Mr S subsequently accepted that indication and entered guilty pleas.

The offending

[4]First I will first outline the offending.

[5] On Monday 10 January 2022, Mr S was in Otaki working on a vehicle owned by a friend, Mr H. During the day, Mr H contacted Mr S and asked to be picked up from an address in Aotea, Porirua and driven to Upper Hutt.

[6] When Mr S arrived at the address in Mr H’s vehicle, he noticed there were red flags hanging off the houses on the road. Mr H was waiting for him outside and told Mr S to reverse into the driveway. Then, three men who Mr S did not know walked out of the house. Mr S believed that they were members of the Mongrel Mob due to their clothing, prominent facial tattoos and the way that they referred to each other. One of them was holding a twelve-gauge shotgun wrapped in a sheet, which Mr S recognised as a firearm.

[7] Mr H got into another vehicle, owned by his cousin. The other three men got into the vehicle with Mr S, and placed the shotgun in the boot. Mr S was the driver and, from then on, followed the instructions of his passengers.

1 Crimes Act 1961, ss 71, 232(1) and 312, maximum penalty five years’ imprisonment.
2 Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(3) and 114(2), maximum penalty $10,000 fine and six months’ disqualification.

[8] After dropping off the other vehicle in Plimmerton, and stopping to refuel in Mana, Mr S drove the group to an address in Upper Hutt. It is common ground that he did not know where or why he was going there.

[9] The group arrived at the address at approximately 11.00 pm. Mr S parked on the street outside the address as directed. He turned off the engine but was told to turn it back on…

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 S

Details

AGLC: R v S [2022] NZHC 2944
Case: [2022] NZHC 2944
Decision Date: 9 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Isac J sentenced S, who pleaded guilty to being an accessory after the fact of aggravated burglary and aggravated failing to stop for red and blue flashing lights. The court heard that S was unwittingly co-opted into being the getaway driver for three gang members armed with a shotgun. Although S drove the group away from the scene of a firearm discharge and evaded police, his actions were predominantly motivated by fear and self-preservation. The court determined a starting point of 10 months’ imprisonment, reduced by 45% due to S's early guilty plea, youth, and lack of previous convictions, resulting in an end sentence of five and a half months’ imprisonment. However, given the very low gravity of the offending and the disproportionate impact a conviction would have on S's future, the court granted S a discharge without conviction. The court also imposed a four-month disqualification from driving and ordered permanent name suppression to protect S's prospects of employment and self-worth.

The key legal issues in this case were determining an appropriate starting point for the charges, adjusting the starting point based on S's personal circumstances, and deciding whether a discharge without conviction, disqualification from driving, and name suppression were appropriate given the circumstances. The court carefully considered the facts and circumstances of S's offending, his level of culpability, and the potential consequences of conviction before determining the final sentence and orders.

Orders