R v Yates
[2017] NZHC 2236
•15 September 2017
INTERIM SUPPRESSION ORDERS CURRENTLY EXIST: SEE [32]. IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2016-029-392
[2017] NZHC 2236
THE QUEEN v
RAWDEN YATES (NAME SUPPRESSED) CLARISSA JANE YATES
KYLE LEONARD OʼCALLAGHAN
Hearing: 15 September 2017 Appearances:
J P R Scott for Crown N S Leader for R Yates A Dooney for C Yates
D Blaikie for K OʼCallaghan
Sentence:
15 September 2017
SENTENCING REMARKS OF LANG J
R v OʼCALLAGHAN & ORS [2017] NZHC 2236 [15 September 2017]
[1] Mr Yates, you appear for sentence today having pleaded guilty to a charge of wounding with reckless disregard for the safety of others.
[2] Ms Yates and Mr O’Callaghan, you appear for sentence on the same charge having been found guilty by a jury on that charge.
[3] The maximum sentence in respect of the charge is one of seven years imprisonment.
Background
[4] The charges were laid as a result of an incident that occurred in the residential streets of Kaitaia in the early hours of 12 February 2016. I sentence Ms Yates and Mr O’Callaghan on the basis of the evidence given at trial. To the extent that those facts may differ, I sentence Mr Yates on the basis of a summary of facts that he agreed to prior to entering his guilty plea.
[5] The starting point for the events that gave rise to the charge was that Mr O’Callaghan went out to drink with friends or associates. During the course of the evening, he ended up in the company of Black Power members. Mr O’Callaghan is associated with the Tribesmen gang. An altercation occurred and he was physically assaulted as a result.
[6] He arrived back at his house and his mother was able to observe the injuries to his face. Sometime after that he went out again, despite her imploring him not to do so. It seems that he walked up the street and stopped outside a house occupied by a Mr Cole-Kuvarji. Mr Cole-Kuvarji has some connection with persons in the Black Power gang. Mr O’Callaghan must have done something to attract Mr Cole-Kuvarji’s attention, because Mr Cole Kuvarji went outside the property to speak to Mr O’Callaghan. There is little evidence about what then occurred, but whatever it was, it was sufficient in Mr Cole-Kuvarji’s eyes to send him to seek help. He drove to an address on the other side of Kaitaia where he enlisted the assistance of Mr Pater Waenga, another person associated with the Black Power gang. The two men then drove back to the street in which both Mr O’Callaghan and Mr Cole-Kuvarji lived. They drove to the end of the street and parked in the vicinity of Mr O’Callaghan’s
house. Mr O’Callaghan was still absent from the address at this time and his mother advised Mr Waenga and Mr Cole-Kuvarji of that fact. A short time later, however, Mr O’Callaghan arrived back at the address and was immediately confronted by Mr Waenga and Mr Cole-Kuvarji.
[7] The evidence about the events that occurred over the next few minutes is somewhat vague. My view of the evidence is that a standoff occurred in the vicinity of Mr O’Callaghan’s house. This involved Mr O’Callaghan taking a baseball bat to defend himself and taking up a defensive position. Mr Weanga and Mr Cole-Kuvarji then advanced upon him making threatening overtures. At some stage during this, Mr Cole-Kuvarji armed himself with some form of tomahawk or axe.
[8] It seems that the two men threatened Mr O’Callaghan for some time. He kept them at bay by brandishing his baseball bat towards them. At some stage during this incident, Mr O’Callaghan told Ms Yates, who was in the vicinity, to “call Boy”. Boy is a name by which Mr Rawden Bates is known. Mr Rawden Yates is Ms Clarissa Yates’ brother. He, too, is associated with the Tribesmen gang.
[9] The evidence established quite clearly that Ms Yates then used a cellphone she had borrowed from another person to call her brother. This was seen by several eyewitnesses and the cellphone records produced at trial confirmed the existence of the call as well. The call lasted for approximately six minutes. It began some minutes before a car driven by Mr Yates drove down the street.
[10] Shortly before this happened, Mr O’Callaghan was in the vicinity of a ditch in the driveway of his property. Mr Waenga and Mr Cole-Kuvarji had got back in their vehicle and the evidence establishes that it drove towards him. I am not clear on the evidence whether it actually struck him, but in any event this incident ended with the vehicle in the ditch. At about that point, Mr Waenga began walking up the street towards Mr Cole-Kuvarji’s house.
[11] It was at about this time that a black vehicle driven by Mr Yates drove down the street. The evidence establishes that Mr Yates was still in cellphone communication with his sister at this time. The vehicle stopped outside an address in
the vicinity of which Mr Waenga was walking or standing. The summary records that Mr Yates yelled out something to the effect that people were messing with the Tribesmen. A burst of four shots then came from an automatic weapon. The bullets from the burst ricocheted off the footpath in the vicinity of where Mr Waenga was standing. Shrapnel from the bullets entered the lower part of Mr Waenga’s body and legs. Other pieces of shrapnel embedded themselves in a house behind Mr Waenga. This caused significant damage to the house.
[12] Mr Yates then drove his vehicle to the end of the street and turned it around. At that stage I am satisfied that Mr O’Callaghan got into the vehicle and it began to drive away. As the vehicle drove away, Mr Yates fired nine further shots into the air. The vehicle then departed from the scene.
[13] People from various properties then came to Mr Waenga’s aid. He was bleeding badly from the wounds to his legs. Unfortunately, for a variety of reasons, the emergency services did not attend Mr Waenga for approximately an hour. This was no doubt due largely to the fact that a firearm was involved and the emergency services had to ensure the scene could be safely approached.
[14] When ambulance staff attended Mr Waenga, it was found that he had extensive gunshot wounds to his leg and he was in a life-threatening position. He was then transferred to hospital where he underwent surgery. Included in his injuries was a broken femur. The injuries that he suffered were serious and required him to be hospitalised for a considerable period. The photographs produced at trial show that Mr Waenga will have significant scarring that will no doubt remain with him for life.
[15] When the defendants were ultimately located, they did not make any comment to the police.
[16] Against that background it is necessary to select starting points for the sentences to be imposed in respect of each of the defendants. I propose to start with Mr Yates, because his culpability for what occurred is obviously the most serious.
Mr Yates
Starting point
[17] It will be evident from what I have already said that Mr Yates responded to a call from his sister seeking assistance for Mr O’Callaghan, who was being threatened by two men, one of whom was armed with a tomahawk. He then took it upon himself to go to the address, taking with him an automatic weapon that fired bullets of 7.62 millimetre calibre. The exact type of weapon is not known because it was never recovered, but it seems that it was an AK47 or another comparable weapon. He then drove down the street and, without stopping to ascertain what was happening, he immediately fired bullets in the direction of Mr Waenga. The summary of facts records that he fired them “at Mr Waenga”.
[18] This caused Mr Waenga serious injury, as Mr Yates must have appreciated it was likely to do. In addition, it placed the occupants of nearby properties at grave risk. This is exemplified by the damage to the doors and windows of the property behind Mr Waenga. Anybody who had been in the vicinity of those doors and windows would have been at grave risk. Mr Yates then compounded the position by firing further shots before he left the street.
[19] As I have already indicated, the maximum sentence for this charge is seven years imprisonment. The Crown submits, relying on the case of R v Hapi, that a starting point for all three defendants is around four years imprisonment.1 Mr Leader on Mr Yates’ behalf endorsed that approach. I consider, however, that this offending was of a culpability well above the level at which the Crown pitches it.
[20] The Crown’s starting point would place the offending around the middle of the band of seriousness for this type of offending. I consider that the use of an automatic weapon in this way places it towards the top end of the range for offending of this type. I need to bear in mind the fact that the offence does not involve any intent to harm another person. Nevertheless, it involves an actual appreciation of the risk that somebody will be injured as a result of the act that is undertaken. Firing a burst of
1 R v Hapi CA304/03, 18 May 2004.
four shots from an automatic weapon at another person where residential properties are a close distance away, in my view, places the offending towards the top end of the range. In addition, the fact that serious injury was caused to Mr Waenga also tells against the starting point that the Crown suggests.
[21] I consider that the minimum starting point that could be selected for offending of this type is one of five years six months imprisonment.
Aggravating factors
[22] Mr Yates has a previous conviction for wounding with intent to cause grievous bodily harm. He was sentenced to three years six months imprisonment on that charge on 21 May 2004. It related to an offence that had occurred on 30 October 2002, and I have no details of that offending. Nevertheless, the sentence imposed suggests that it must have been reasonably serious.
[23] Ordinarily I would impose a modest uplift to reflect that offending, but the Crown does not press for an uplift because the offending is historic. For that reason I do not apply any uplift. Mr Yates can consider himself fortunate, however, that no uplift has been applied.
[24] The starting point, therefore, is one of five years six months imprisonment before taking into account mitigating factors.
Mitigating factors
[25] Mr Leader submits that I can take into account two mitigating factors. The first is that Mr Yates has expressed remorse in comments he has made to the person who prepared the pre-sentence report. He has also provided me with a letter today in which he expresses deep remorse for what he did.
[26] I hope that these expressions of remorse are genuine, but in my view they are too little and too late given the gravity of the offending and the overall circumstances in which the offending occurred. For that reason I do not propose to allow any discount for remorse.
[27] This leaves the discount to be applied in respect of guilty pleas. Mr Yates entered a guilty plea to the charge as soon as it was offered to him. He had previously faced alternative charges of attempted murder and causing grievous bodily harm with intent to do so. Those charges carried a maximum sentence of 14 years imprisonment. In my view, Mr Yates can count himself fortunate that the Crown was prepared to accept a plea to the lesser charge of wounding with reckless disregard because the facts may well have justified the more serious charges.
[28] I acknowledge, however, that Mr Yates entered his plea as soon as he had the opportunity to do so once the Crown agreed to accept a plea in respect of the lesser charge. Furthermore, his plea greatly shortened the trial and I accept the Crown may have had some difficulties in proving that Mr Yates was the person in the vehicle at the time that shots were fired. For those reasons I propose to provide him with a 25 per cent discount in respect of the guilty plea. This equates to a reduction of one year five months from the starting point I have selected. This produces an end sentence of four years one month imprisonment.
Minimum term of imprisonment
[29] In the ordinary course of events, this would see Mr Yates eligible to apply for parole after serving just 16 months of his sentence. The Court has the power whenever it sentences an offender to more than two years imprisonment to impose a minimum term of imprisonment.2 That can be done where the Court is satisfied that the ordinary parole provisions do not adequately recognise the sentencing principles of deterrence, the need to denounce the offending, the need to protect the community from further offending and the need to hold the offender responsible for his or her offending.3
[30] I consider the circumstances of the present case to be such that all of those criteria are satisfied. I do not consider it would be appropriate for Mr Yates to be eligible for parole after serving just 16 months of his sentence. For that reason I propose to impose a minimum term of imprisonment of two years.
2 Sentencing Act 2002, s 86(1).
3 Section 86(2).
Sentence
[31] Mr Yates, on the charge to which you have pleaded guilty you are sentenced to four years one month imprisonment. You are ordered to serve a minimum term of two years before being eligible to apply for parole.
Suppression
[32] There is in existence an interim order suppressing Mr Yates’ name from publication. This is to protect his fair trial rights in respect of other serious charges that he faces in this Court. I am told that these will go to trial in July 2018. I extend the interim order for suppression of Mr Yates’ name until determination of those charges.
Ms Yates
[33] I now need to determine the sentence to be imposed on Ms Clarissa Yates. For obvious reasons, I regard her culpability as being less than that of Mr Yates because she was not the person who pulled the trigger of the firearm that resulted in Mr Waenga being wounded. Nevertheless, she played a significant role in what happened because she was the person who called Mr Yates and asked him to come to the scene.
[34] Had matters ended there, the starting point I select would be lower because I would treat her as being largely in the same position as Mr O’Callaghan. The jury’s verdict makes it clear that both Mr O’Callaghan and Ms Yates knew that the infliction of injury on another was a probable consequence of their agreement to call Mr Yates to the scene. The issue I need to determine in relation to Ms Yates is whether, and to what extent, she anticipated what was likely to happen.
[35] This issue is informed by two matters. The first is the fact that she remained on the cellphone to her brother for the entire period during which this incident occurred. She was speaking to him before he arrived, she remained on the phone during the shooting and then she remained in contact with him after he left. This satisfies me beyond reasonable doubt that she knew her brother was bringing a firearm to the scene. I am also satisfied beyond reasonable doubt that she must have advised
her brother the location of where events were occurring, because he was able to drive down the street and stop immediately in the vicinity of Mr Waenga.
[36] As I have already said, I take the view that this extended period of communication between Ms Yates and her brother was such that she knew that he was bringing a firearm to the scene. Her continued contact with him meant that she encouraged it, and in many senses, arranged it. I therefore view her culpability as being significantly greater than that of Mr O’Callaghan as I shall shortly outline.
[37] Secondly, several of the eyewitnesses said in statements to the police that Ms Yates said words to the effect “Get down, he’s got a gun” shortly before the shots were fired. During the trial these witnesses retreated to some extent, and said that the words may have been said after the firearm was fired. I do not accept that to be the position. I consider that the statements the witnesses made to the police shortly after the event are likely to be far more reliable than the concessions extracted from them during cross-examination. I also consider it unlikely that Ms Yates would have needed to call out to warn others that her brother had a gun if shots had already been fired. That fact would be self-evident to everybody in the vicinity.
[38] I am guided to some extent in selecting the starting point for Ms Yates by R v Hapi.4 In that case the appellant was a party to offending broadly similar to that which occurred in the present case. The principal offender was sentenced to seven years six months imprisonment on a charge of wounding with intent to cause grievous bodily harm. The Judge who sentenced the appellant, who was a party to the offending, took a starting point of four years imprisonment.
[39] As is always the case, there are obvious factual differences between the offending in the present case and that in Hapi. Nevertheless, I consider Ms Yates’ offending to be broadly similar to that of the appellant in Hapi. For that reason I select a starting point of three years nine months imprisonment in her case.
4 R v Hapi, above n1.
Mitigating factors
[40] The only mitigating factor that could be recognised in respect of Ms Yates is that of remorse. One could be forgiven for being sceptical about expressions of remorse given the fact that Ms Yates has never spoken about this matter to anybody before she spoke to the person who prepared the pre-sentence report. Nevertheless, there are glimmers in the report that Ms Yates is truly remorseful for her actions. Today she has provided me with a letter in which she amplifies these.
[41] Judges are always reluctant to give much weight to letters tendered at sentencing, because they are often constructed simply to assist in attempting to obtain a discount. For that reason they often do not demonstrate true remorse at all. There are, however, some issues raised in Ms Yates’ letter that make it clear she has thought about her position carefully, and has a considerable degree of insight into how these unfortunate events developed. I also recognise that she has been in a difficult position throughout, because her brother has been closely involved at all stages of the proceeding. For that reason I accept she has been constricted to some extent in the decisions she has been required to make. I consider that the factors raised in Ms Yates’ letter provide me with the ability to reduce her sentence to some extent to reflect her expressions of remorse. I propose to make an allowance of three months to reflect that factor.
[42] There is a further issue I need to take into account in respect of Ms Yates. This relates to the fact that she received a sentence of nine months imprisonment on 22 August 2016 in respect of a charge of being in unlawful possession of a firearm. This relates to a firearm found in Ms Yates’ possession on 23 March 2016 when she was arrested.
[43] I accept that if Ms Yates had been sentenced on all charges at the same time, totality principles would need to be taken into account. That should still be done in respect of the present sentence because it formed part and parcel of the same series of events. I therefore propose to reduce Ms Yates’ sentence by two months to reflect this factor. This means the end sentence will be one of three years four months imprisonment.
Sentence
[44] Ms Yates, on the charge on which you were found guilty you are sentenced to three years four months imprisonment.
Mr O’Callaghan
[45] This leaves me to deal with Mr O’Callaghan. As I have already foreshadowed, I view his offending in a somewhat different light to that of the other two defendants. The jury’s verdict makes it clear that the jury accepted that he knew that a probable consequence of calling Mr Yates to the scene was the infliction of violence on others. I need to make some factual findings, however, about the extent to which he has is likely to have had knowledge about the events that occurred.
[46] The Crown submits that Mr O’Callaghan knew Mr Yates would be bringing a weapon with him to the scene. I do not consider I can satisfied beyond reasonable doubt regarding that issue. I accept that Mr O’Callaghan would have known that, in general terms, Mr Yates had access to firearms. That fact is evidenced from the firearms that were found at a property in Taipa that was apparently frequented to some extent by Mr Yates and other members of his wider family. Mr O’Callaghan was found at that address when the police executed a search warrant in respect of it.
[47] There is no evidence to suggest, however, that Mr O’Callaghan knew Mr Yates was coming from the Taipa address at the time these events unfolded. Nor is there any other evidence from which I could infer that Mr O’Callaghan knew Mr Yates would be bringing a firearm with him to the scene.
[48] I am satisfied beyond reasonable doubt, however, that Mr O’Callaghan knew that if Mr Yates came to the scene he would be bringing a weapon with him. This would have been obvious from the fact that Ms Yates was calling her brother to come to the scene and would have told him that Mr O’Callaghan was being threatened by two people, one of whom was brandishing a tomahawk.
[49] In setting the starting point for Mr O’Callaghan, I proceed on the basis that he was in a very difficult position because he was faced with two potential attackers, one
of whom was carrying a weapon. He did not seek to attack them. Rather, he was brandishing the baseball bat to keep them at bay. It also seems that he was later the subject of the incident involving the car.
[50] For those reasons I adopt a starting point that is significantly lower than that which I have taken in relation to Ms Yates. I adopt a starting point, in his case, of two years six months imprisonment.
Aggravating factors
[51] Mr O’Callaghan has a previous conviction for wounding with intent to cause grievous bodily harm. That conviction relates to events that occurred on 28 October 2011. He was sentenced to two years four months imprisonment on that charge on 4 April 2012. I have no knowledge of the circumstances surrounding that offending, however, so I am unable to pass comment on it. Ordinarily, offending of such recent vintage would justify an uplift to the sentence I am now required to impose. In the present case, however, Mr O’Callaghan is subject to the provisions of s 86A of the Sentencing Act 2002 because of the earlier conviction. For that reason I am not going to add any uplift to reflect it.
Mitigating factors
[52] Mr O’Callaghan has expressed some remorse and a degree of insight into the circumstances that led to the present offending. I do not consider that the expressions of remorse are sufficient to result in any reduction on their own, but I do see in material before the Court a desire by Mr O’Callaghan to remove himself from the environment in which he has found himself. He says he wishes to leave this area and go to another to start a new life. I would encourage him to do that, because it is clear he was enmeshed in gang affiliations at the time of this offending and this led to difficulties for him. I am prepared to provide a discount of three months to reflect the fact that Mr O’Callaghan has decided to take a fresh start once he is released.
[53] Mr Blaikie raises a further issue, and this relates to the sentence that was imposed on Mr O’Callaghan in respect of firearms that were in his possession when the police arrested him. This resulted in him receiving a sentence of one year one
month imprisonment on 30 June 2016. Mr O’Callaghan has now served that sentence and will receive no credit in respect of the present sentence for doing so.
[54] I agree that, had Mr O’Callaghan been sentenced on all charges at the same time, the Court would have been required to apply totality principles to ensure the end sentence was not out of all proportion to the overall culpability of Mr O’Callaghan’s offending. That is not an easy task in the present case, but I propose to allow three months to reflect totality principles. This results in an end sentence of two years imprisonment.
Sentence
[55] Mr O’Callaghan, on the charge in respect of which you were found guilty, you are sentenced to two years imprisonment. I direct under s 86A of the Sentencing Act 2002 that you are to serve that sentence in full and without parole.
[56]Stand down.
Lang J
Solicitors:
Crown Solicitor, Whangarei