R v S
[2022] NZHC 2944
•9 November 2022
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 and keep it running.
[10] At this point events moved very quickly. The three gang members retrieved the shotgun from the boot and got out of the car, leaving Mr S and Mr H in the vehicle. The three men approached the front door of the house. Mr S then heard the firearm discharge three times3 and very soon after the three men ran back to the vehicle. One of them sat in the front passenger seat with the shotgun between his legs. He then shouted at Mr S to drive, which he did. From then on, Mr S followed the instructions of his passengers. He told police that he did so because he was afraid of what would happen to him if he did not do so.
[11] As the group were driving south along Fergusson Drive in Upper Hutt, a police car spotted their vehicle and activated its lights and sirens. The passengers again instructed Mr S to “go”. He then accelerated away, exceeding the applicable speed limits. A prolonged and dangerous chase ensued, during which Mr S drove in a dangerous and erratic manner to evade the police. This continued after Police had deployed road-spikes, with Mr S continuing to drive away from Police on the rims of the vehicle. Mr S says throughout this period the gang-members continued to shout orders at him to keep driving.
[12] Eventually the chase ended when Mr S pulled into a dead-end street in Petone. He fled from the vehicle and was not arrested at the scene. Police apprehended the four other men in the vehicle and located the shotgun inside. Nine days later, Mr S turned himself in to a Police station and was arrested. He voluntarily participated in a Police interview, providing a full and frank account of events.
3 It transpires that a bystander was struck in the abdomen by a number of pellets, and sustained more than 20 wounds.
Starting point
[13] There is no guideline case for accessory after the fact offending, partly due to the wide variety of circumstances in which it can arise, the varying seriousness of the principal offending, the nature and extent of assistance that may have been provided by the accessory, and the effectiveness of any assistance provided.4
[14] The charges that Mr S has pleaded guilty to are serious. He drove the principal offenders away from the scene knowing that they had just discharged a firearm three times into an apparently occupied suburban house. In my view, the aggravating features of the offending are the use of a firearm and Mr S’s sustained attempts to evade police in a high-speed chase, in which his vehicle became extremely difficult to control and endangered members of the public and police.
[15] Having said that, Mr S’s culpability is significantly lower than this bald outline of what occurred. The Crown accepts, responsibly in my view, that Mr S was unwittingly co-opted into being the group’s getaway driver, without knowledge of what they were planning to do until moments before the firearm was discharged.
[16] And while there may have been limited windows in which Mr S could in theory have escaped, it is questionable whether running away was ever really an option.
[17] The immediate presence of three Mongrel Mob members who were in possession of a firearm posed an obvious threat of violent retribution, either immediately or at some other time in the future. In those circumstances, it is difficult to criticise Mr S’s decision to comply with their demands.
[18] It also seems clear that events took an unpredictable and rapid change for the worse immediately before the aggravated burglary. I accept Mr S, as a 19 year old with no previous experience of gang-members or firearms, did not have time for calm reflection on his next moves as events at the address quickly unfolded. I consider his actions were predominantly motivated by fear of the gang members and self-preservation, rather than a desire to help his passengers evade the police. They are
4 R v Duff HC Rotorua CRl-2009-063-6473, 9 December 2010 at [11]; R v Sweeney [2013] NZHC 1413 at [11]; R v Tamihana [2014] NZHC 89 at [14]; and R v Pou [2021] NZHC 2519 at [37].
coloured by a significant element of duress. These factors significantly diminish Mr S’s culpability. It is also relevant that his actions did not actually enable the principal offenders to elude capture.5
[19] Crown counsel submitted a starting point of 15 months is appropriate. He referred me to a range of authorities: Kingston v R,6 Boyd v R,7 R v Ovalau,8 R v Graham,9 R v Moala,10 and R v Afamasaga.11 I have had regard to these cases in determining the starting point.
[20] I also note that in Boyd v R, Gendall J observed that the starting point for accessory after the fact to murder is typically in the range of 15 to 18 months, and that a starting point of lower than 15 months may be justified for less serious accessory charges, especially where a defendant’s culpability is diminished.12
[21] Having regard to the circumstances of the offending, and to the submissions and cases cited by counsel,13 I consider that a starting point of 10 months’ imprisonment is appropriate. This assessment adopts a notional starting point of 15 months’ imprisonment discounted by a third to reflect Mr S’s very much reduced culpability as a result of fear and perceived threat.
Adjusting the starting point for personal circumstances
[22] I now turn to consider adjustments to the starting point to reflect Mr S’s personal circumstances.
[23] First, as the Crown submits, Mr S would be entitled to a full 25 per cent early plea discount as a result of his guilty plea.14
5 R v Sweeney, above n 4, at [11].
6 Kingston v R [2010] NZCA 460.
7 Boyd v R [2015] NZHC 822.
8 R v Ovalau HC Auckland CRl-2006-092-10484, 13 March 2007.
9 R v Graham HC Christchurch CRl-2004-009-2224, 14 September 2004.
10 R v Moala HC Auckland CRl-2006-092-461, 12 December 2007.
11 R v Afamasaga [2014] NZHC 2142.
12 Boyd v R, above n 7, at [40], referring to a review of relevant authorities in R v Boskell [2015] NZHC 286 at Annexure B.
13 As was the approach taken by this Court in, for example, Boyd v R [2015] NZHC 822 at [39]; and
R v Colvin [2022] NZHC 468 at [9].
14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
[24] Second, Mr S is young—just 19 years of age—and has no previous convictions. I consider that combined these factors warrant a discrete discount of 20 per cent.
[25]Together, that amounts to a total discount of 45 per cent from the starting point.
[26] Having received and considered the pre-sentence reports, I am satisfied that a total discount of 45 per cent is appropriate to address all personal mitigating circumstances, including remorse.
[27] Applying the approach in Moses,15 an end sentence of five and a half months’ imprisonment is therefore appropriate.
Discharge without conviction
[28] As the end sentence is a short term of imprisonment, alternative sentence options are available.16 Mr Lithgow, on behalf of Mr S, submitted that despite this, a discharge without conviction under s 106 of the Sentencing Act was the appropriate sentence. He referred me to several helpful cases: R v Page,17 Nash v Police,18 Fifita v Police,19 and R v Taulapapa,20 and Churchward v R.21
[29] A Court may grant a discharge without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.22 The test for a discharge requires the court to consider three elements:
(a)first, the gravity of the offending, taking into account all aggravating and mitigating factors of the offending and the offender;23
15 Moses v R [2020] NZCA246, (2020) 29 CRNZ 381.
16 Parole Act 2002, s 4(1); and Sentencing Act 2002, s 15A(1).
17 R v Page [2020] NZHC 1019.
18 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.
19 Fifita v Police [2020] NZHC 973.
20 R v Taulapapa [2018] NZCA 414.
21 Churchward v R [2011] NZCA 531.
22 Sentencing Act 2002, s 107; and Criminal Procedure Act 2011, s 147.
23 R v Taulapapa, above n 20, at [22], citing Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
(b)second, the direct and indirect consequences of a conviction; and
(c)third, whether those consequences are “out of all proportion” to the gravity of the offending.
[30] In my assessment, the gravity of Mr S’s offending is very low. He is a 19 year old without previous convictions who appears to have been reluctantly co-opted into the offending by three gang members armed with a shotgun. His offending was the product of fear and a desire to avoid the obvious risk of consequences if he failed to follow their instructions.
[31] In relation to the direct and indirect consequences of conviction, a conviction as an accessory after the fact to an aggravated burglary is likely to have a profound impact on Mr S’s ability to gain and secure suitable employment. In addition, I understand he competes internationally in motocross to a high level. Convictions are likely to inhibit his ability to pursue a sport in which he clearly has ability. And I accept there will be other personal consequences of conviction in terms of self-perception and embarrassment. Given Mr S’s young age, these consequences are likely to have a disproportionate impact because their effects will be life-long.
[32] The Court has a received a PAC report for Mr S. It recommends a discharge without conviction, stating that “Mr [S]'s youth, lack of prior convictions, no identified rehabilitative needs and assessed low risk of further offending, would support this outcome”. The report discloses no issues which might make a discharge inappropriate. And, likely as a result, the Crown raised no objection to a discharge at this stage.
[33] I am therefore satisfied that the consequences of conviction would be out of all proportion to the gravity of the offending. I grant Mr S a discharge without conviction accordingly.
Submissions on sentencing
[34] The focus of the submissions at sentencing has been on two issues: first, whether Mr S ought to receive a disqualification from driving as I had previously
indicated, and second, whether a permanent or interim order for name suppression should be made.
[35] Mr Lithgow requested that the Court reconsider the indicated sentence of disqualification from driving.24 He points to my finding in the sentencing indication that Mr S’s actions were “predominantly motivated by fear of the gang members and self-preservation, rather than a desire to help his passengers evade the police”, and Mr S’s culpability was therefore significantly diminished. He says that Mr S has obtained permanent employment at a [ ] in
Palmerston North, which is about a three hour daily commute from Kapiti (although a friend who also works at the workshop is able to drive him there, at least for the time being). As well as driving himself to work, Mr Lithgow submits that a disqualification would prevent Mr S from shifting vehicles at the workshop and testing them on an actual road.
[36] In terms of name suppression, Mr Lithgow seeks that name suppression be granted permanently or, alternatively, at least until the proceedings of all the other co- accused have been completed. He notes that one other co-accused has sought Mr S’s sentence indication, and accepts the indication could be provided subject to the redaction of identifying particulars.
[37] Mr Page on behalf of the Crown opposed any reduction to the indicated term of disqualification in written submissions, but acknowledged that in light of the matters raised by Mr Lithgow, a reduction of some kind might be warranted. Mr Page submitted that while Mr S’s culpability was significantly diminished by the circumstances, some degree of consequence or punishment is necessary to denounce the offending, and reinforce that citizens must not break the law, even when under some pressure to do so. Disqualification would serve as that punishment and, while inconvenient, would not prevent Mr S attending work.
24 He noted that because a discharge is an acquittal under s 106 of the Sentencing Act 2002, the issue of whether to impose disqualification, including the duration of any such sentence, is a matter entirely at the Court’s discretion under s 106(3).
[38] The Crown opposed permanent name suppression on the basis that extreme hardship is not made out, especially given Mr S’s name is already known to at least one of the offenders, who can communicate it to the others. Likewise, his name will need to be referred to at the other defendants’ trial, leaving no basis for continued name suppression throughout that time. The Crown suggests that suppression continue until the commencement of the co-accused’s trial, with the issue to be further argued at that time.
Disqualification from driving
[39] Turning to the question of disqualification, I am satisfied that a disqualification from driving remains an appropriate consequence in the circumstances. Notwithstanding the pressure of the situation and Mr S’s reduced culpability as a result, the offending was serious and gave rise to a risk to the public. There must be some consequence to reflect the gravity of his actions.
[40] While no doubt inconvenient given his place of work, a disqualification is necessary to hold Mr S accountable for his actions and denounce his conduct. All things considered, it is a lenient sentence.
[41] I disqualify Mr S from driving for a period of four months.25 This is a reduction from my sentence indication reflecting the changed working circumstances and the impact of disqualification on Mr S as a result.
Name suppression
[42] Finally, I turn to the question of whether Mr S’s name should be suppressed, permanently or temporarily. It does not follow from a discharge without conviction that a suppression order should be made; one of the threshold requirements in s 200(2) of the Criminal Procedure Act 2011 must be met.26
25 Pursuant to under s 106(3)(c) of the Sentencing Act 2002 and ss 52A(1)(a)(ii), 52A(3) and 114(2) of the Land Transport Act 1998.
26 W v Police [2019] NZHC 1165; and Allied Press Ltd v Police [2017] NZHC 2773, [2017] NZAR 1655.
[43] I accept that there may be limited utility in suppressing Mr S’s name for the purpose of preventing his identity from becoming known to the other defendants. However, the real concern in my view is that the effect of the discharge without conviction, which is deemed to be an acquittal,27 would be undermined if name suppression were not also ordered. Without suppression orders, a simple internet search by anyone, including potential employers, could reveal Mr S’s connection to the offending and his guilty plea.
[44] Given Mr S’s young age, the impact of publication on his prospects of employment and knock-on effects on self-worth are likely to be significantly magnified. The reasons that lead me to conclude that the direct and indirect consequences of conviction are out of all proportion to the gravity of the offending also persuade me that Mr S will suffer extreme hardship as a result of publication.
[45] In light of that, I am satisfied that the appropriate course at this juncture is to make a final order suppressing Mr S’s identity in connection with the offending.
Conclusion and result
[46]I make the following orders:
(a)Mr S is discharged without conviction;
(b)he is disqualified from driving for a period of four months commencing tomorrow, 10 November 2022; and
(c)his identity is suppressed.
[47] The charge of unlawfully carrying or being in possession of a firearm is withdrawn by leave.
Isac J
27 Sentencing Act 2002, 106(2).
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