R v S HC Timaru CRI 2009-045-631
[2009] NZHC 2496
•4 November 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2009-045-000631
REGINA
v
S
and
S
Hearing: 4 November 2009
Appearances: T M Gresson and K Cotton for Crown
B Farnan for Accused S
J Westgate for Accused S
Judgment: 4 November 2009
JUDGMENT OF FOGARTY J
[1] Ms Farnan sought a s 347 discharge in respect of Count 2 on the grounds of insufficient evidence. But as matters have developed it became apparent to me, which I had not appreciated, that Mr S has already pleaded guilty to an information laid by the police under s 198A(1) of the Crimes Act:
That he used a firearm against Stefan Boyd Witehira a member of the Police acting in the course of his duty knowing that that person was a member of the Police so acting.
In the schedule in the jury materials booklet that was expanded by saying he
Pointed and fired from car, pointed while fleeing cross country
R V S AND ANOR HC TIM CRI 2009-045-000631 4 November 2009
[2] The first phrase “pointed and fired from car” is obviously referring to the incident as the Land Rover passed across the road spikes. At that time the Land Rover was attempting at an estimated 100 kilometres per hour. That calculates at covering 27 metres per second. It is clear on the evidence that Constable Low was only a few metres away, about a car length, from Constable Witehira. It is also clear from the evidence, and it was never suggested otherwise (by the Crown) that one shot was fired.
[3] I am satisfied that the plea of guilty in respect of the charge of using a firearm against Constable Witehira was intended to cover both the pointing and the firing, and the word “used” was a general word covering that conduct. We are talking about a conduct of a split second. It is not possible in my view to create two offences against that (Crimes Act 1961 s 10(4)). For example, the information could have easily been amended to ‘use a firearm against Stefan Boyd Witehira and Darrin Francis Low’ and we have made no essential difference to the charge.
[4] I have informed counsel, and in the presence of the accused Mr S , that I regard the sentencing in respect of that plea of guilty when addressing his culpability to have been putting at risk the lives of both police officers, both of whom dived for cover.
[5] I have been advised by Ms Farnan, who has taken instructions, and who will be given an opportunity to confirm her instructions after hearing this minute, that Mr S having heard the evidence at trial appreciates these points better, that that is the consequence of that plea of guilty.
[6] That raises, however, the second question which is that Constable Low is, as Mr Gresson fairly points out, a victim and there is no count against Constable Low understood to be in respect of pointing of the rifle by Mr S at Constable Low after the crash. The evidence is quite clear that he did that. Constable Low is quite clear on it. It is my understanding that Mr S will, through his counsel, agree to plead to guilty to a count that he did point a rifle in the direction of Constable Low in the course of his moving away from the car after the crash. That would be consistent with the evidence that I have heard.
[7] Ms Farnan has raised a concern on his part as to the effect of the timing of this guilty plea. I am currently of the view that the discount that he would get, if any, in respect of that offending would be similar to discount he gets, if any, for the late pleas that he entered into at the start of the trial. For what we are really doing here is unscrambling some, what lawyers call, “pleading issues” which will ensure that at the end of the day when it comes to sentencing the appropriate offences have been pleaded to which cover the culpability of the conduct of Mr S , which is the prime concern of the Sentencing Act 2002 of fixing penalty.
Solicitors:
Gresson Dorman & Co, Timaru, for Crown
J Westgate, Dunedin, for Accused S
Farnan Garthwaite Law, Dunedin, for Accused S
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