Stirling v Police HC Nelson CRI-2011-442-37

[2011] NZHC 1974

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-37

BETWEEN  LEWIS GORDON STIRLING Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 December 2011

Counsel:         C Stevenson for Appellant

M A O'Donoghue for Respondent

Judgment:      8 December 2011

JUDGMENT OF MILLER J

[1]      Mr Stirling appeals his sentence of two years and two months imprisonment on one charge of discharging a .22 calibre air rifle at a person with reckless disregard for the safety of others, contrary to s 198(2) Crimes Act 1961.

[2]      The facts were that a road rage incident occurred about 12.30 am on 1 July

2011.   It involved two cars, one of which contained the victim and the other the appellant, both of whom accompanied by friends.  It is a reasonable inference that both sides were guilty of hotheadedness.  The cars stopped and the victim and an associate got out and approached the appellant’s car.  There the appellant presented the loaded air rifle at them and fired it.  The appellant’s friend was co-operative, but the appellant took steps to avoid apprehension, twice ringing police communications to give false addresses before being arrested a day later.

[3]      The  pellet  from  the  weapon  lodged  in  the  victim’s  arm  and  cannot  be removed unless it caused more damage.  He has suffered loss of movement in his arm and cannot return to work as a fisherman.   He says that he has lost about

$10,000 of earnings, and he suffers anxiety.

LEWIS GORDON STIRLING V NEW ZEALAND POLICE HC NEL CRI-2011-442-37 8 December 2011

[4]      The appellant was 20 at sentencing on 13 September.   Notwithstanding his relative youth, he has an extensive list of previous convictions beginning in 2008, including a number of convictions for assault, numerous driving offences, offences of dishonesty and possession of an offensive weapon.  He has a conviction for failing to answer bail and another for driving while disqualified.  He had been sentenced to imprisonment on one occasion, on 28 March 2011.  The pre-sentence report recorded that he claimed to have been extremely intoxicated at the time of the offending.  His compliance  with  previous  community-based  sentences  had  been  poor,  and  this offence was committed within one month of his release from prison.

[5]      The District Court Judge began by refusing to adjourn the sentencing.  An adjournment had been sought because a home detention appendix had not been prepared.   Counsel urged that a sentence of two years imprisonment or less was appropriate.  The Judge made it clear that even if the sentence was two years or less the aims and objectives of sentencing could not be achieved by anything short of a term of imprisonment, so there was no point waiting for an appendix.  Further, it was difficult to see how a sentence of two years or less could be achieved.

[6]      Having regard to the facts, including the deliberate use of the rifle, the risk of injury and harm and the actual harm to the victim, a starting point of two years, nine months imprisonment was adopted, the Judge referring to R v Gathergood.  That was increased by six months for the history of violent offending involving weapons.  Full credit  was  given  in  mitigation  for  an  early  guilty plea,  but  the  only additional allowance made for age and expressions of remorse was three months.  That resulted in the sentence of two years and two months imprisonment.

[7]      The appeal is advanced on the grounds that the Judge erred by refusing an adjournment to allow a home detention appendix to be completed.   However, the prior question is whether the sentence was manifestly excessive.  Unless it was, no question of home detention arises.

[8]      There is no tariff case for this offence, but the maximum penalty is seven years imprisonment.  This case is at the serious end of the spectrum. A .22 air rifle is a potentially lethal firearm, and this one may have been aimed at the victim.  If not it

was certainly aimed in close proximity to him.  There may have been an element of provocation, but no question of reasonable self-defence arose.  Having regard to R v Gathergood and the cases cited in it, I am satisfied that the starting point chosen was well within the available range.[1]   Gathergood involved a heavier weapon, a shotgun, which was used in similar circumstances, but no one was hurt and the offender concerned  was  not  the  shooter.    In  this  case the offender also  sought  to  avoid

[1] Gathergood v R [2010] NZCA 350

apprehension.

[9]      The uplift of six months for personal aggravating factors was also warranted, if stern.  Mr Stirling’s criminal history is serious, and he had only recently completed a four-month sentence for, among other offences, possessing an offensive weapon and possession of a knife in a public place.  I am told that his Youth Court history includes four warnings for violent offending.   His adult offending history is also notable for his diligence; he has offended very frequently since September 2008. The pre-sentence report was unattractive, noting Mr Stirling’s history of offending while subject to community-based sentences. The reoffending risk was high.

[10]     In the circumstances, the discount given for youth was more than strictly necessary.  As has been said many times, youth does not always earn a discount, and in this case Mr Stirling was nearly 20 when the offence was committed.  An appropriate discount was given for the guilty plea.  The only other consideration that might have warranted a discount was a drug and alcohol screening which suggested not only a harmful pattern of alcohol abuse but also cognitive impairment with memory and concentration.   Unfortunately he had not co-operated with the report writer by following up his appointments and the potential for rehabilitation which will reduce the reoffending risk remains unknown.  I am not satisfied that the Judge erred by not giving specific credit for this consideration.  In any event, the sentence is plainly not excessive when viewed in the round.

[11]     That being so, there is no room for Mr Stevenson’s submission that a positive home detention appendix might have swayed the Judge sufficiently to reduce the

sentence to two years or less.  Nor was the Judge obliged to wait until an appendix

was prepared; he was entitled to sentence on the assumption that an appendix would confirm there was a suitable address.

[12]     The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Respondent