R v Sellick
[2023] NZHC 743
•4 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2021-004-007141
[2023] NZHC 743
THE KING v
MANDAL FRANCIS SELLICK
Hearing: 4 April 2023 Appearances:
R M A McCoubrey for the Crown
D S Niven & C G Farquhar for Mr Sellick
Sentencing Notes:
4 April 2023
SENTENCING NOTES OF TAHANA J
Solicitors/Counsel:
Crown Solicitors, Meredith Connell, Auckland Sentinel Chambers, Auckland
R v SELLICK (Sentencing Notes) [2023] NZHC 743 [4 April 2023]
Introduction
[1] Mandal Sellick you appear today for sentencing. You pleaded guilty to one charge of unlawful possession of a firearm1 and one charge of possession of methamphetamine for the purpose of supply.2 Following a jury trial you were found guilty of manslaughter for fatally shooting Mars Rakeem.3
[2] I have previously acknowledged the family of Mr Rakeem, and I acknowledge them again, and the suffering they have experienced.
[3] I will outline my assessment of the facts based on the evidence I heard at trial. This summary reflects that assessment, subject to consistency with the jury’s verdict. I will acknowledge the victim impact statement that has been read to the Court today from Mr Rakeem’s mother.
[4] I will then outline the sentencing regime and the approach I have taken to your sentence. That includes considering the starting point for the manslaughter charge, and then any appropriate uplifts. I will then make any necessary adjustments to the starting point to reflect your personal circumstances. Finally, I will set out the end sentence.
Offending
Manslaughter
[5] On the evening of 1 October 2021 and into the early hours of the next day, you were at the home you shared with your partner at the time, Sandy Younes. Ms Younes had invited people over to socialise, including friends and family. Mr Rakeem was part of that group.
[6] For most of the evening you were in the bedroom upstairs from the lounge where people were socialising.
1 Arms Act 1983, s 45(1)(b).
2 Misuse of Drugs Act 1975, s 6(1)(f).
3 Crimes Act 1961, ss 160(2)(a) and 171.
[7] During the evening, Mr Rakeem and another left the house to buy drugs. When they returned some of the group snorted the drugs, and that included Ms Younes. The drugs were understood to be a mixture of MDMA and cocaine.
[8] After snorting the drugs, Ms Younes complained that it hurt her nose. She went upstairs and complained to you. You said she thought she had been drugged. I do not accept that Ms Younes was forced to take the drugs, however, I accept that she reacted to the drugs and witnesses that evening say that she complained that it was hurting her nose.
[9] Your evidence at trial was that after Ms Younes told you about the drugs, you got a loaded pistol which you kept in your bedside table. You tucked the pistol in your trousers with your t-shirt over it. You then went downstairs with the pistol concealed.
[10] You confronted the group, demanding to know who had given Ms Younes drugs. You did not believe the drugs were MDMA and cocaine and you thought it was “crack” or methamphetamine. I accept that you were very angry because Ms Younes had been given the drugs.
[11] Your evidence at trial was that you told everyone to leave. You say that after a short period, they returned and came back up the stairs. You say you were surrounded by people in the kitchen, those people did not include Mr Rakeem and you felt threatened.
[12] You said that you presented the pistol at Mr Rakeem when he came up the stairs. He was about a metre or two away from you. You said you told him to leave the house. You say there was a quick struggle, Mr Rakeem jumped at you and the gun, and the gun accidentally went off, shooting Mr Rakeem in the stomach.
[13] The jury did not accept that the shooting was accidental. I do not accept that there was a struggle. Mr Rakeem was unarmed and I accept that he did not threaten you.
[14] The jury also rejected self-defence. Your counsel, Ms Farquhar, says that the jury must have determined that you were acting in self-defence but that the force you used was excessive. Ms Farquhar refers to the jury’s question as to what constitutes reasonable force when considering self-defence and says that the jury could only have arrived at that question if they had first found that you were acting to defend yourself. The Crown says that self-defence should be rejected outright because your version of events was rejected by the jury.
[15] Jury deliberations are confidential and we do not know the jury’s reasoning process. The factual basis for sentencing is a matter for me. However, that factual basis must be consistent with the jury’s verdicts. I accept Ms Farquhar’s submission that the jury likely found that you were acting to defend yourself as it logically follows that they would not have asked about reasonable force unless they had first found that you were acting to defend yourself.
[16] I accept the defence submission that this is a case of excessive self-defence but subject to the following qualifications:
(a)I find that Mr Rakeem was unarmed and did not threaten you.
(b)The males in the kitchen who you say surrounded you and were aggressive did not include Mr Rakeem.
(c)The jury rejected your account that it was accidental. I do not accept that there was a struggle between you and Mr Rakeem.
(d)I find that you were very angry that Mr Rakeem had brought drugs to the house, which Ms Younes had then snorted.
(e)You felt threatened and deliberately shot Mr Rakeem in the stomach.
[17]After you shot Mr Rakeem, you were heard saying “take him to the hospital.”
[18] You then destroyed the closed circuit television (“CCTV”) cameras. I do not accept that you did this only to destroy evidence of methamphetamine extraction. The
CCTV cameras would have recorded the events of that evening and I accept you also destroyed the CCTV because of what happened to Mr Rakeem.
[19] The jury accepted you did not intend to kill Mr Rakeem, or in other words, that you did not have any murderous intent. They did so by returning a not guilty verdict for the murder charge. The jury however found you guilty of manslaughter, as a consequence of your unlawful act of carelessly using a firearm. You were extremely reckless in using the firearm in close proximity to Mr Rakeem and that had deadly consequences.
[20] You have pleaded guilty to the charge of unlawful possession of a firearm and possession of methamphetamine for supply. You have accepted the summary of facts in relation to that offending although I note that the purity of the methamphetamine is now contested, which I will refer to shortly.
Unlawful possession of a firearm
[21] On 3 October 2021, when the police examined the scene after the shooting of Mr Rakeem, they located a revolver shaped starter pistol that had been modified so that it was a functioning firearm. It was located directly behind the property on the roof of an industrial address.
Possession of methamphetamine for supply
[22] The police also located 2.2 kilograms of methamphetamine in a vehicle registered to Ms Younes and which was also used by you and I note that the purity of that methamphetamine is contested. Located within your address were broken empty avocado oil jars and glass jugs which contained traces of methamphetamine.
Victim impact statements
[23] I acknowledge the victim impact statement that the Court has heard today. Mr Rakeem’s mother, has provided a victim impact statement to the Court, which her son has read to the Court today.
[24] Mr Rakeem’s mother says that Mr Rakeem was caring, funny, clever, principled, and good at sports. She says he was a wonderful son and she is broken- hearted. She says the feeling of loss is so great it is visceral.
[25] Mr Rakeem’s mother says she is tormented thinking about how Mr Rakeem died. She says it plays out in her mind and she thinks about how things could have gone differently, how he could have been saved. She acknowledges and notes that he died without his loved ones around him.
[26] Mr Rakeem’s mother says she is incandescent with rage. She says she cannot comprehend why her son lost his life. She does not understand why the people involved did what they did.
[27] Mr Rakeem’s mother says that her outlook on life has changed. It is too painful to contemplate a future without her son, so she lives in the here and now. She thinks about her son all the time and will forever mourn him.
Purposes and principles of sentencing
[28] I will now turn to your sentence. The relevant purposes of sentencing which the Court may consider when sentencing include:4
(a)holding you accountable for the harm done to the victim and to the community by your offending;
(b)promoting a sense of responsibility for, and acknowledgment of that harm;
(c)denouncing and deterring your conduct; and
(d)assisting in your rehabilitation and reintegration.
[29] I note Ms Farquhar’s submission that research indicates deterrence has very little effect on reducing crime and that most people do not pause to consider the
4 Sentencing Act 2002, s 7.
possibility of imprisonment when they engage in criminal activity. I however, must have regard to the Court of Appeal’s decision in R v Taueki where it was recognised that deterrence and denunciation are important sentencing values in cases involving serious violent offending.5 This case is in that category.
[30] The principles of sentencing must be taken into account. Those of particular relevance to this case are:6
(a)the gravity of your offending;
(b)the seriousness of your offending in relation to other offences;
(c)the desirability of consistency with appropriate sentencing levels;
(d)the information provided to the Court concerning the effect of the offending on Mr Rakeem’s immediate family; and
(e)the need to take into account your personal, whānau, community and cultural background.
Approach to starting point for manslaughter charge
[31] The maximum penalty for manslaughter is life imprisonment.7 The Crown submits that the appropriate starting point for the manslaughter offending is eight to nine years’ imprisonment. Your counsel, on your behalf, submits a starting point of five years.
[32] There is no guideline judgment for manslaughter. This reflects the fact that manslaughter can occur in a variety of circumstances.8 Comparison to similar cases is therefore required. I am also able to refer to the guidance provided in R v Taueki.9
5 R v Taueki [2005] 3 NZLR 372 at [57].
6 Sentencing Act 2002, s 8.
7 Crimes Act 1961, s 177.
8 Everett v R [2019] NZCA 68 at [24].
9 R v Taueki [2005] 3 NZLR 372. The Court of Appeal has suggested that culpability may be assessed with reference to the Taueki bands, or by reference to comparable manslaughter sentences, or both: see for example R v Tai [2010] NZCA 598; and Waipuka v R [2013] NZCA 661 at [32]. Reference to Taueki bands will be most useful for serious violent offending where
[33] First, I will identify and evaluate the seriousness of any aggravating and/or mitigating features of your offending.10 I will then consider comparative cases. Finally, I will set a starting point for manslaughter.
Aggravating and mitigating features of the offending
[34] The Crown submits there are four aggravating features present in your offending:
(a)Use of the firearm.
(b)The extent of loss and harm was significant.
(c)There was a degree of premeditation.
(d)Impact on the victims.
[35] Ms Farquhar accepts that the offending involved use of a firearm and caused death but says it was not premeditated. Ms Farquhar submits the shooting was a spontaneous reaction to being threatened in your home. Ms Farquhar rejects impact on the victims as an aggravating feature as this is inherent in any offending causing death and should therefore not increase the gravity of your offending.
[36]I consider each of these factors.
- Use of a firearm
[37] The shooting was deliberate. You discharged the pistol very close to Mr Rakeem and at his stomach. That was extremely reckless. The cases consider the proximity of the firearm to the deceased as a relevant aggravating feature and I will refer to those cases shortly.
serious injury was a foreseeable outcome of the violence: see R v Jamieson [2009] NZCA 555 at [34]. However, comparable manslaughter cases will often be the best guide: Murray v R [2013] NZCA 177 at [27].
10 Sentencing Act 2002, s 9. See also R v Taueki [2005] 3 NZLR 372 at [30].
- Premeditation
[38] The Crown says that while this was not a premeditated attack in the true sense, neither was it spontaneous. The evidence at trial was that you armed yourself with the pistol, knowing it was loaded. You were very angry that someone had given Ms Younes “crack”. You confronted those at your address. I accept by arming yourself with the pistol before going downstairs and confronting others is relevant and I will refer to this further when considering comparable cases.
- Extent of loss and harm and impact on the victims
[39] I note that the fact of Mr Rakeem’s death is inherent in the manslaughter charge, and consistent with the case in R v Dodd, I do not take this into account as an additional aggravating factor.11
Mitigating features
[40]In terms of mitigating features, this is a case of excessive self-defence.
[41] In Taueki12 the Court held that excessive self-defence may be a factor that leads to a lower starting point. Where a party has acted out of self-defence but has responded with excessive and unreasonable force, the fact that the force used was initially an effort to defend themselves, can be seen as a factor which reduces the seriousness of the offending.
[42] Excessive self-defence in the context of manslaughter was considered in R v McKee.13 In that case, Mr McKee and the deceased knew each other and there was animosity between the two. The deceased was sleeping in his car at his friend’s place. Mr McKee visited the address and had a pistol in his bag. When Mr McKee realised the deceased was there, he woke him up by yelling. He was holding the gun. The deceased jumped up and challenged Mr McKee to a fight. The deceased told Mr McKee to put the gun down and started taunting him.14
11 R v Dodd [2018] NZHC 3432 at [36].
12 R v Taueki [2005] 3 NZLR 372 at [32].
13 R v McKee [2017] NZHC 2286.
14 At [10].
[43] Mr McKee drew the weapon up as the deceased swung at him. Mr McKee fired the gun, hitting the deceased in the lower abdomen. Muir J did not accept that Mr McKee deliberately discharged the weapon with the intention of shooting the deceased in the chest or abdomen, rather he considered that Mr McKee intended to inflict a non-fatal injury. The Court adopted a starting point of seven years and six months’ imprisonment noting that Mr McKee’s actions were not premediated and there was an element of excessive self-defence. Against that, Mr McKee had taken a loaded firearm to a domestic dwelling and deliberately discharged it.
[44] Mr Sellick, the jury rejected your account that there had been a struggle and the firearm accidentally discharged. You deliberately discharged the firearm at Mr Rakeem’s stomach. Further, there was no evidence that Mr Rakeem had challenged you to a fight or had threatened you. The evidence was that you were very angry. I consider that while some elements of McKee are more serious (in that Mr McKee went to the deceased), the conduct of Mr Rakeem was not as aggressive as the deceased in that case, and you were not challenged to a fight by him.
[45] I have also considered the cases referred to by both counsel.15 I consider that your offending is less serious than the offending in in R v Johnson16 and R v Olley,17 and more serious than the offending in R v Pira,18 R v Kirk19 and R v Harris.20 Your offending in my view, is most analogous to the offending in R v McKee,21 R v Flavell22 and R v Christie23 where the offending involved discharge of a firearm and the Court adopted starting points of seven years and six months’ imprisonment. I discuss my reasons for this conclusion and refer to those cases.
15 R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004; R v Johnson [2022] NZHC 2560; R v Olley [2012] NZHC 40; R v Harris [2016] NZHC 1687; R v Flavell [2014] NZHC 3373; R v McKee [2017] NZHC 2286; R v Pira HC Rotorua CRI-2006-063-000329, 13 December 2006; and R v Kirk [2016] NZHC 1249.
16 R v Johnson [2022] NZHC 2560.
17 R v Olley [2012] NZHC 40.
18 R v Pira HC Rotorua CRI-2006-063-000329, 13 December 2006.
19 R v Kirk [2016] NZHC 1249.
20 R v Harris [2016] NZHC 1687.
21 R v McKee [2017] NZHC 2286.
22 R v Flavell [2014] NZHC 3373.
23 R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004.
Caselaw
[46] In R v Flavell,24 Mr Flavell was at a party with his girlfriend. The deceased approached Mr Flavell as he was leaving with his girlfriend. The deceased punched Mr Flavell in the head twice through the open car window. While he was walking away, Mr Flavell removed a shotgun, loaded it and pointed it at the deceased’s chest. Mr Flavell fired the shotgun once at close range. The deceased was shot in the upper chest and died. The Court adopted a starting point of seven years and six months’ imprisonment.
[47] In R v Christie,25 Mr Christie was living in a bach at the rear of the property. He entered the house and went into the dining room. The gun discharged and the bullet entered the abdomen of the deceased. The Judge identified the aggravating features as premeditation, caching the firearm and ammunition ready for use in the family home, deliberately taking the loaded firearm to use in a confrontational dispute, deliberating intending to discharge the firearm into the ground and failing to assist the deceased immediately following the shooting. The Court adopted a starting point of seven years and six months’ imprisonment.
[48] Comparatively here, the deceased came to your home. You armed yourself with a loaded pistol which you concealed. You confronted the persons in your home about the “crack” that had been given to Ms Younes. The jury decided you deliberately discharged the firearm. The jury rejected your account that there was a struggle and the firearm accidentally discharged.
[49]I consider that your offending is more serious than the offending in Pira,
Harris and Kirk.26
[50] In Pira27 the defendant had driven to the deceased’s house with a shotgun. There was a fistfight with the deceased and then wrestling for the firearm. The firearm went off and shot the deceased. In Pira the defendant was considered to have been
24 R v Flavell [2014] NZHC 3373.
25 R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004.
26 R v Pira HC Rotorua CRI-2006-063-000329, 13 December 2006; R v Harris [2016] NZHC 1687; and R v Kirk [2016] NZHC 1249.
27 R v Pira HC Rotorua CRI-2006-063-000329, 13 December 2006.
reckless by not checking whether the firearm was loaded or the safety catch on. The Court adopted a starting point of 6 years’ imprisonment.
[51] Your offending can be contrasted with Pira in that you armed yourself with a loaded pistol and the jury rejected your evidence that there was a struggle and the firearm accidentally discharged. I accept that your offending is more serious than in Pira given that in that case the firearm was discharged during a struggle.
[52] In Harris28 the deceased had taken his children possum hunting. Mr Harris was on his quad bike and confronted the deceased and his children at an intersection. There was a physical struggle, during which punches were exchanged and the air rifle was pointed at Mr Harris. Mr Harris pulled away and grabbed a knife from his quad bike. He stabbed the deceased once in the chest. The deceased got into his vehicle and told Mr Harris to leave. Mr Harris then drove at the deceased on his quad bike. The Court adopted a starting point of six years and nine months. By contrast, in your case, you were armed with a loaded pistol and again I refer to the fact that the jury rejected your evidence that there was a struggle and the firearm accidentally discharged.
[53] In the case of Kirk,29 the deceased was Mr Kirk’s mother’s partner and there was a history of family violence towards his partner and others. The deceased became verbally abusive and violent towards Mr Kirk and others. The deceased armed himself with a large meat cleaver. Mr Kirk retrieved a firearm from his bedroom to scare the deceased. He fired six shots in rapid succession, one of which hit the deceased in the chest. The Court accepted this was a case of excessive self-defence. Mr Kirk was faced with an aggressive confrontation with the deceased who had a meat cleaver. The Court adopted a starting point of four years’ imprisonment.
[54] In your case, there is no family violence, Mr Rakeem did not threaten you, and he did not arm himself with a weapon, and the firearm was deliberately discharged.
28 R v Harris [2016] NZHC 1687.
29 R v Kirk [2016] NZHC 1249.
[55]I consider that your offending is less serious than the offending in R v Johnson30
and R v Olley31 relied on by the Crown.
[56] In the case of Johnson,32 Mr Johnson had earlier been assaulted by the deceased. Mr Johnson went to the deceased’s house, had an altercation with the deceased and randomly fired shots which hit the victim’s leg. The Judge identified the aggravating features as premeditation, serious injury, use of weapons, and home invasion. While the judge accepted provocation was a mitigating feature, the Court considered it was more serious than in the case of Christie because Mr Johnson had entered the victim’s home. The Court adopted a starting point of eight years and six months’ imprisonment which included a six-month adjustment for the deceased’s conduct.
[57] Here, there was no home invasion. There is also no evidence that Mr Rakeem had assaulted or threatened you prior to the shooting. I accept that your offending is less serious than in Johnson given it occurred in your home.
[58] In Olley33 there was an altercation between the deceased and Mr Olley. The deceased had consumed methamphetamine and another resident had intervened and taken a knife off the deceased. The resident, going to leave, looked back and saw Mr Olley fatally stab the deceased. The Judge determined that the aggravating features were the use of a lethal weapon, premeditation, the vulnerability of the deceased, and the fact the stabbing injury constituted a single act of extreme violence. A starting point of nine years’ imprisonment was adopted.
[59] The points of difference between this case and Olley which make the offending in Olley more serious are the level of violence used and the vulnerability of the deceased as compared to Mr Olley.
30 R v Johnson [2022] NZHC 2560.
31 R v Olley [2012] NZHC 40.
32 R v Johnson [2022] NZHC 2560.
33 R v Olley [2012] NZHC 40.
Conclusion on starting point for manslaughter
[60] I have discussed these cases because I must consider the need to be consistent with other cases in generally similar circumstances. Taking those cases and the aggravating and mitigating factors present in your offending into consideration, I consider that a starting point of seven years and six months’ imprisonment is appropriate.
[61] I now need to consider appropriate uplifts for the other offending to which you have pleaded guilty.
Uplift for possession of methamphetamine for supply
[62] The Crown submits an uplift of seven to eight years’ imprisonment for the methamphetamine offending. Defence counsel submit an uplift of five to six years’ imprisonment.
[63] Before considering the appropriate uplift, I explain my approach. First, I will consider the appropriate starting point for the drug offending on a standalone basis. I will then apply any guilty plea discount noting that Mr Sellick has pleaded guilty to this offending. I will then make any appropriate adjustment to take into account totality.
Standalone starting point
[64] The total amount of methamphetamine found was 2.2 kilograms as recorded in the summary of facts and I will refer to the issue of purity later. This is within band five of Zhang which indicates a penalty in the range of 10 years to life imprisonment. However, I also need to consider your role in the offending. The Supreme Court has helpfully confirmed that these factors, quantity and role, are tools to “aid evaluation” and should not to be treated as a “straitjacket”.34
[65] The Crown submits that your role falls between “significant” and “leading” and defence submits that your role falls at the lower end of “significant.” Your counsel
34 Berkland v R [2022] NZSC 143 at [65].
submits that you were a “storeman”, that there was no manufacturing process involved and the drug was not packaged for sale.
[66] I consider that your role falls in the middle of “significant” rather than at the upper end or in the “leading” category for the following reasons:
(a)The drugs were stored in a car. There were scales, other drug paraphernalia and multiple mobile phones. This equipment supports you being involved in commercial supply.
(b)Witnesses at trial gave evidence that Mr Rakeem had hoped to obtain 10 ounces on tick from you. You did not agree to Mr Rakeem’s request. This suggests that your role was more than limited and the quantity requested suggests you were more than a street level dealer.
(c)Your evidence at trial was that the methamphetamine had been extracted from the avocado oil bottles by you and an associate, and that the drugs belonged to your associate. This indicates that you had some awareness of the scale of the operation.
(d)Your evidence at trial was that you only received $5,000 to store the methamphetamine. This suggests that the financial rewards were minimal compared to the volume of methamphetamine found at your address. It does not explain the volume of methamphetamine found or the extent of CCTV surveillance installed at your premises.
(e)Your evidence was that you armed yourself with a pistol to protect the drugs. This indicates that you were aware of the potential significant value of the drugs.
(f)Your counsel says the house was monitored by CCTV, which was able to be monitored remotely and that others were involved. Your counsel refers to a witness statement from a neighbour who observed others bringing boxes to your house in “high end” cars. I consider this
evidence indicates that the scale of the operation (as is evidenced by the number of avocado bottles that were found at the premises) was not minor and you had a role in that operation.
[67] For these reasons, I consider that your role was “significant” and falling in the middle of that range.
Purity
[68] Your counsel also submits that a lesser sentence should be applied because the Crown has failed to prove that the purity levels of the methamphetamine are greater than 60 per cent. Your counsel refers to the ESR report which identifies that two of the packages contained MSM (dimethylsulphone) a dietary supplement powder which can be used to “cut” controlled substances. The total weight of those two packages was close to 1.8 kilograms.
[69] Your counsel referred to the decision in Wratt v R.35 In that case, the purity of the methamphetamine was at issue prior to sentencing. Mr Wratt claimed it was below 60 per cent. The methamphetamine was destroyed after he pleaded guilty but prior to the disputed facts hearing. The Crown conceded that Mr Wratt should be entitled to some benefit of the doubt regarding the purity.
[70] In this case Mr McCoubrey today submitted that the volume of methamphetamine that was located indicates that it was significant and indicates commercial supply rather than street level use. In those circumstances, it is appropriate that your offending falls within band 5 of the Zhang bands.
[71] Ms Farquhar submits that on a standalone basis, offending involving this quantity and a role at the lower end of “significant” would usually attract a starting point of under 10 years’ imprisonment. She submits that given the question as to purity, this should be reduced to eight years, if being sentenced on this charge alone. The Crown submits that in isolation, this charge would attract a starting point of at
35 Wratt v R [2021] NZCA 128.
least 10 years’ imprisonment. I accept that the issue of purity is relevant to totality, and I propose that it is dealt with when addressing totality.
[72] Given my finding that your role was in the mid range of “significant”, I consider a starting point of 10 years’ imprisonment is appropriate.
Presence of firearm
[73] The Crown argues that an uplift of 12 to 18 months’ imprisonment is appropriate for the presence of the firearm and refers to the decision in Mills v R36 where the Court acknowledged that uplifts have been applied for firearms offending associated with drug dealing.
[74] Your counsel submit that no uplift should be applied because the firearm has already been taken into account when considering the starting point for the manslaughter charge.
[75] I consider that it is appropriate that I consider the firearms charge consistently with other manslaughter cases. In Christie and Johnson each of the offenders pleaded guilty to the firearms charge and were sentenced to six months’ imprisonment, to be served concurrently.37 I adopt the same approach. The sentence for the firearm offending is six months’ imprisonment to be served concurrently. I do not therefore apply any uplift having regard to the fact that there was a pistol present.
Guilty plea
[76] You pleaded guilty to the drug offending so it is appropriate that the guilty plea be taken into account.
[77] Your counsel submit that a discount of 10 to 15 per cent (or 10 to 15 months, which I understand to assume a starting point of ten years) should be applied and say that you should receive a similar guilty plea discount as Mr Younes. In Ms Younes’ case, the guilty plea was made after discussions between Crown and defence counsel
36 Mills v R [2016] NZCA 245.
37 R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004 at [39]; and R v Johnson [2022] NZHC 2560 at [39].
which indicate the timing was linked to those discussions and not because Ms Younes had not pleaded guilty at the earliest opportunity.
[78] I agree that you deserve some credit for the guilty plea in that the resources required to prove the offending were reduced, although not significantly. In Flavell38 the Court awarded a five per cent discount for an offer to plead guilty the week before trial. I note that you offered to plead guilty two weeks prior to trial.
[79] I consider that a discount of 10 per cent for your guilty plea is appropriate. From a starting point of ten years’ imprisonment that results in a starting point of nine years before taking into account totality.
Totality
[80] Defence counsel submit that a significant discount should be applied to take account of totality and refer to the decision in R v Jeffries-Smith39 where approximately 60 per cent of the sentence for the drug offending was applied as the uplift.
[81] The Crown acknowledge that the drug offending would ordinarily attract a starting point of at least 10 years’ imprisonment and submit that seven to eight years is appropriate taking into account totality.
[82] I consider an uplift of no more than six years for the drug offending is appropriate taking into account totality. That is approximately 67 per cent of the sentence (nine years’ imprisonment).
Global starting point
[83] I therefore adopt a global starting point of 13 years and six months’ imprisonment (seven years and six months’ imprisonment for manslaughter with an uplift of six years for the drug offending).
[84]I now consider your personal circumstances.
38 R v Flavell [2014] NZHC 3373.
39 R v Jefferies-Smith [2019] NZHC 2067.
Personal circumstances
Aggravating factors personal to Mr Sellick
[85] The Crown says aggravating factors personal to you that justify a further uplift of 12 months’ imprisonment are:
(a)the offending occurred while you were subject to bail conditions for unlawful possession of explosives at the time of the offending; and
(b)your previous convictions for violence, the Crown refers to your convictions in Australia which include robbery with actual violence.40
[86] Your counsel submits that previous convictions for burglary are irrelevant and that an uplift of no more than three months is appropriate.
[87] I understand the Crown’s submission to be that the violence aspect of the previous burglary charge is relevant. I accept that submission and do not take account of the other Australian convictions.
[88] Taking into account that you were on bail while the offending occurred, that you have previous convictions for possession of explosives and you have a previous conviction from Australia for robbery with actual violence, and again it is the violence aspect of that conviction that is relevant, I consider a six-month uplift is appropriate.
Mitigating factors personal to Mr Sellick
[89] I have already taken into account your guilty plea when determining the uplift for the drugs offending and when considering the appropriate sentence for the firearms charge.
Section 27 report
[90]I have reviewed the comprehensive s 27 report from Dr Jarrod Gilbert.
40 Mr Sellick’s Australian conviction history includes a suspended sentence of three years for an offence date of 2014 and a result date of 2015 of “Robbery with actual violence/armder/in company/wounded/used personal violen”.
[91] First, I acknowledge the loss of your father at age 12, on the cusp of your teenage years. You describe that as the saddest moment of your life. The report notes that you experienced significant trauma from the loss of your father and notes that this has played a part in shaping who you have become as an adult.
[92] Your mother described your early years in New Zealand as a “very privileged life.”. You moved to Australia and it was while you were living in Australia that your father passed away. From there, things became more difficult for you and you started getting into trouble with the law.
[93] The report identifies your loss of a parent, your status as a 501 deportee, your gang connections and concerns about your mental health as factors that have likely contributed to your offending.
[94] I also note your efforts to educate yourself while you have been in prison. This includes courses to deal with alcohol and drug addictions. You have also written a letter to the Court noting that this is the first time you have sought help and you are reaching out to counsellors and support people. Your mother has described you as “gifted”, a “big reader” and “incredibly bright.” I encourage you to continue to take the opportunity to further your education and rehabilitate yourself. It will help you to find an alternative positive pathway for your life.
[95] Your counsel submit a discount of 15 per cent is appropriate for the matters arising from the hardship in your background and your efforts at rehabilitation.
[96] I note that your background relative to other defendants does not disclose the level of hardship that warrants a 15 per cent discount. However, taking into account the matters in the s 27 report and your efforts in educating yourself and addressing your issues, I consider that a discount of 10 per cent is appropriate.
[97] Your counsel also argue that a further discount should be applied given the difficulties you have faced because of your previous gang connections. No cases are cited in support of this discount and I do not consider it a factor that warrants a further discount.
Remorse
[98] You offered to engage in restorative justice but that offer was not taken up. The PAC report records that you expressed remorse for your actions and you hoped Mr Rakeem’s family receive closure. You have also written to Mr Rakeem’s mother and to the Court expressing your remorse. I note that Mr Rakeem’s mother does not consider that you are remorseful and I acknowledge the grief she is experiencing.
[99]I consider that a discount of five per cent for remorse is appropriate.
Minimum period of imprisonment
[100] I agree with the Crown that a minimum period of imprisonment is not required in your case as the end sentence will denounce your conduct and deter others from similar offending.
End sentence
[101] In conclusion, I have adopted a global starting point of 13 years and six months’ imprisonment:
(a)I apply an uplift of six months for your offending while on bail and previous convictions, and because of your previous convictions that I have referred to; and
(b)I apply a total discount of 15 per cent (10 per cent for s 27 report and rehabilitation matters and five per cent for remorse).
[102] That results in an end sentence of 142 months (rounded down to the closest month) or 11 years and 10 months’ imprisonment.
Sentence
[103]Mr Sellick. Please stand.
[104] On the charges of manslaughter and possession of methamphetamine for supply, I sentence you to 11 years and 10 months’ imprisonment.
[105] On the charge of unlawful possession of a firearm, I sentence you to six months’ imprisonment to be served concurrently.
[106]I make the following orders:
(a)Forfeiture orders for the following cash located and seized by police:
(i)$3,275.00 in total cash seized by police from 19 Saintly Lane on 3 October 2021;
(ii)$40.90 in cash seized from the BMW motor vehicle registration NRQ673 on 3 October 2021; and
(iii)$1,350.00 in cash seized by police from Mr Sellick on 3 October 2021.
(b)Destruction orders for the drugs and firearms seized. This includes the shotgun and shotgun ammunition that was recovered from the neighbouring address but has not been attributed to any person.
[107]You may stand down.
Tahana J
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