The King v Teina Haddon Anthony Sutherland Stevie Ann Alekna
[2024] NZHC 3065
•18 October 2024
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2023-042-000010
[2024] NZHC 3065
THE KING v
TEINA HADDON ANTHONY SUTHERLAND
STEVIE ANN ALEKNA
Hearing: 18 October 2024 Counsel:
A R Goodison for Crown
T D A Harré for Defendant Haddon E J Riddell for Defendant Sutherland S J Zindel for Defendant Alekna
Sentence:
18 October 2024
SENTENCING NOTES OF LA HOOD J
[1] In relation to Ms Alekna, I just record that I have made an order vacating the guilty plea that she entered on 26 August 2024 to a charge of accessory after the fact to wounding with intent to cause grievous bodily harm. While there may have been grounds to amend the charge to a charge of attempting to pervert the course of justice,1 having considered counsel’s submissions, I accepted the Crown’s position that it
1 Campbell v Police [1990] 3 NZLR 9 (CA).
R v HADDON [2024] NZHC 3065 [18 October 2024]
would not be in the public interest to do so. Accordingly, I dismissed the charge on the grounds that the alleged principal offender, Mr Haddon, was acquitted of the principal charge and this is a case where accessory liability required conviction of the principal.2
[2] Mr Haddon, you appear for sentencing on one charge of unlawful possession of a firearm,3 and one charge of breaching release conditions.4
[3] Mr Sutherland, you appear for sentence on one charge of wilfully attempting to pervert the course of justice,5 and one charge of unlawful possession of a firearm.6
[4] In sentencing each of you today, I must apply the Sentencing Act 2002. The main purposes of sentencing in your case are to hold each of you accountable for the harm you have caused by your offending; to promote a sense of responsibility for, and acknowledgement of, that harm; to denounce and deter such criminal conduct; to protect the public; and to assist in your respective rehabilitation and reintegration into society.7 I must consider the gravity of your respective offending and your degrees of culpability.8 Each of your sentences must be consistent with other reasonably similar cases,9 and I should impose the least restrictive sentences appropriate in the circumstances.10
[5] I will deal with Mr Haddon’s sentence first, before turning to Mr Sutherland’s sentence.
2 Criminal Procedure Act 2011, s 115 and 147; Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151 at [54]–[55].
3 Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment or fine up to $5,000.
4 Parole Act 2002, s 71(1); maximum penalty one year imprisonment or fine up to $2,000.
5 Crimes Act 1961, s 117(e); maximum penalty seven years’ imprisonment.
6 Arms Act, s 45(1); maximum penalty four years’ imprisonment.
7 Sentencing Act 2002, s 7.
8 Section 8(a).
9 Section 8(e).
10 Section 8(g).
Mr Haddon
[6] You previously faced a charge of attempted murder, and wounding with intent to cause grievous bodily harm in the alternative, but the jury at your trial acquitted you of those charges.
[7] Prior to trial I gave you a sentence indication, in which I uplifted the sentence by six months for the lead charge of wounding with intent to cause grievous bodily harm to reflect the firearm charge. I indicated a twelve-month uplift to reflect the breach of release conditions and your previous convictions. I took into account that the Court of Appeal has recently said that “possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment”.11 You rejected the sentence indication and proceeded to trial, but nevertheless pleaded guilty to unlawful possession of a firearm when arraigned at trial.
[8]In order to decide what sentence is appropriate I will address three matters:
(a)First, I will describe the facts of your offending. Sentencing is a public process, so I have to talk about the detail of your offending in this public forum.
(b)Second, I will set a starting point having regard to the mitigating and aggravating factors of the offending.
(c)Third, I will apply any uplifts or reductions to that starting point to reflect your personal aggravating and mitigating factors.
The offending
[9] Mr Haddon, you possessed a pistol capable of firing .25 calibre ammunition. The pistol had a silencer. At trial you gave evidence that you had fired it previously in a house, and that it had an easy trigger to pull. On the night of 30 December 2022,
11 Campbell v R [2022] NZCA 579 at [18]; Rawiri v R [2021] NZHC 1573 at [35]; and Torea v R [2011] NZCA 96 at [13]–[14] (starting point of two years and six months’ imprisonment appropriate where the single firearm was loaded and ready to use with obvious gang overtones).
you loaded and cocked the pistol and produced it to show to P for a potential illegal sale of the firearm to him. Your evidence was that due to his highly intoxicated state, P tried to grab the pistol, which resulted in it accidentally firing into his chest. He was seriously injured and required emergency surgery. The police have been unable to locate the firearm to date.
[10] The breach of release conditions relates to your actions in regularly associating with Black Power members. This was directly contrary to the special conditions of your release as directed by the New Zealand Parole Board, and which you were fully inducted to, and confirmed your understanding of, on 25 November 2022.
Starting point
[11] Mr Webber, in his written submissions and now Ms Goodison, for the Crown in person, submit that your offending sits at the upper end of the two to three year range on the basis the firearm was inherently illegal, was a pistol equipped with a silencer and you loaded and cocked the pistol, making it extremely dangerous.
[12] Mr Harré, your lawyer, takes no issue with the two to three year range, but submits that the starting point should be in the middle of that range, referring me to Campbell v R,12 Tangi v R,13 and Torea v R.14
[13] There is no tariff case for firearms offending given that the culpability level can vary greatly. None of the cases referred to me involved life-threatening harm to a person that would not have occurred but for the unlawful possession of the firearm. I consider this to be a significant aggravating factor.
12 Campbell v R, above n 11. On five charges of unlawful possession of firearms (two .22 rifles, two shotguns, and a sawn-off rifle) a starting point of two years and six months’ imprisonment was upheld on appeal and described as being on the “lenient side” (at [18]).
13 Tangi v R [2023] NZHC 1997. The offender had a loaded semi-automatic firearm (an AK-47) with 40 rounds of ammunition in two magazines. A starting point, reflecting charges for the possession of this firearm and the ammunition, of three years' imprisonment was described as “unobjectionable” (at [44]).
14 Torea v R, above n 11. The offender was sentenced on charges of unlawful possession of a pistol and unlawful possession of ammunition. A Webley .455 calibre pistol was found by police under a couch cushion where the offender was sitting, when the police were called to a disturbance. The safety catch was disengaged, there were three bullets in the chamber, and one bullet was lined up in the firing position –– it was a pistol ready to be used. The Court of Appeal upheld a starting point of two years and six months’ imprisonment uplifted by six months for the offender’s previous convictions and a further two months to reflect that the offender was on bail at the time.
[14] I consider that the aggravating factors of your offending are that the firearm was readily accessible; it was equipped with a silencer; you had previously fired it and knew it had an easy trigger to pull; you possessed it in a room of intoxicated people (including two young people) having cocked and loaded it, which was I accept an extremely dangerous thing to do; although you were acquitted of intentionally firing the pistol at P, the reality is that P would not have been shot and suffered serious injury if you had not handled the pistol in such a reckless way. I consider these serious aggravating features require a starting point of three years’ imprisonment.
[15] The Crown submits that the starting point should be uplifted by six months for fact that you were breaching your release conditions taken together with your history of offending.15
[16] At 35 years of age, you have a varied criminal history involving drug, driving and offensive weapon offending, and some serious violence offending. I accept your convictions for possession of offensive or restricted weapons and ammunition are for lower-level and reasonably historic offending.16 However, there is an inherent potential for violence in the possession of firearms for which a previous history of violence should be considered relevant.17 You were subject to release conditions at the time of the offending following a sentence of six years and nine months’ imprisonment for wounding with intent to cause grievous bodily harm in 2016. I consider your breach of release conditions, offending while subject to those conditions, and criminal history warrant an uplift of six months’ imprisonment.
Personal circumstances
[17] A credit is available for your guilty plea. Both the Crown and your lawyer submit that five per cent may be available. While the plea to the firearm charge came
15 Sentencing Act, s 9(1)(j).
16 Carrying an imitation firearm (2015); unlawfully possessing two ammunition cartridges (2013); and unlawfully possessing a restricted weapon, namely a taser (2011); possession of a knife in a public place (2011); and possession of an offensive weapon (2006).
17 I acknowledge that Mr Haddon’s previous convictions are personal aggravating circumstances. However, given their link to his breach of release conditions I have decided to treat them as relevant to the culpability of the offending here, which is slightly more favourable to him when applying the Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 methodology.
at the start of the trial, the plea to the breach of release conditions charge came at a much earlier date. I agree that a five per cent credit is appropriate in the circumstances.
[18] I have considered a pre-sentence report dated 8 October 2024. I have also considered the psychologist’s report of Dr Ahmad dated 10 June 2024. The findings of Dr Ahmad are somewhat limited given that she was unable to access corroborative information from your case worker or the psychiatrist who did a forensic report on you. But Dr Ahmad did have access to some medical records. You self-reported that you were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and Dr Ahmad considers that this was likely, identifying symptoms of hyperactivity and impulsivity. She notes that it is difficult to know whether these symptoms were due to your ADHD or due to your significant traumatic experiences throughout your life.
[19] Your mother died when you were 10 years old, and you had very little contact with your father. Your grandmother looked after you initially, but she died a year after your mother, and you went to boarding school from age 12 to 13. You report that you were subjected to physical and other abuse at school, you struggled forming relationships with others, and your brother would beat you up. At age 16 you moved in with your father, but were kicked out a year later. At that point you ended up living homeless, sleeping in parks, or on the beach, stealing food to survive. You also report that you had a head injury at age 21 as a result of an attack against you by gang members. The report outlines the extent of your drug addiction, having taken up marijuana from the age of 12 and methamphetamine from the age of 15. You began smoking methamphetamine consistently by the age of 24.
[20] I consider your traumatic past goes some way to explaining your offending. Mr Harré notes that your association with Black Power members on release in breach of your conditions is attributable to your lack of robust release plan, as you had nowhere else to go other than the gang pad. Your possession of the firearm is said to have been related to your earlier victimisation. While none of this does excuses your offending, it mitigates it to some extent. I consider that your background circumstances warrant a credit of 15 per cent.
[21] This results in a total credit of 20 per cent against an overall starting point of three years and six months’ imprisonment, which leaves an end sentence of two years and nine months’ imprisonment (rounding down in your favour).
Mr Sutherland
[22] Mr Sutherland, I will now sentence you for wilfully attempting to pervert the course of justice and the charge of unlawful possession of a firearm, which was a consequence of your guilty plea following the earlier sentence indication I provided.
[23]In explaining the sentence, I will impose upon you I will:
(a)First, outline the facts of the offending to which you have pleaded guilty.
(b)Second, I will set a starting point having regard to the aggravating and mitigating factors of the offending.
(c)Third, I will apply any uplifts or reductions from the starting point for your personal aggravating and mitigating factors.
[24] Your offending followed the incident I have already described in which P was shot with a pistol. Mr Haddon was charged with attempted murder for the incident, but as already mentioned he was acquitted of that charge at trial.
[25] In the days that followed the incident, you were told you were going to have to take the blame for what happened, because you were the one who had brought P to the address. A scenario of what you were to tell the police was discussed, namely that there was a struggle between you and the victim, P, that someone pulled a gun out and the victim was shot accidentally.
[26] The police commenced an investigation after the incident and while conducting that investigation, they found, not far from the scene of the incident, a .22 rifle cut down to pistol size lying next to a sock. The sock was found to contain the bolt for the pistol. Testing by ESR determined that the pistol could not have fired the bullet
that was found in P following the incident. A DNA sample from the grip of the pistol matched to your DNA.
[27] On 2 January 2023 a warrant was issued for Mr Haddon’s arrest in relation to the incident. Police received information that Mr Haddon was being assisted by associates in order to avoid arrest. A surveillance device warrant was granted that included your cell phone number. The data retrieved showed that you were clearly aware that Mr Haddon was wanted for arrest regarding the shooting incident. On Tuesday 3 January 2023, you were in contact with Mr Haddon and you agreed to meet him. You informed Mr Haddon that you had something for him and asked Mr Haddon if he needed anything that you could bring to him at your meeting.
[28] On 10 January 2023 you presented at the Nelson Police Station saying you wanted to talk about the shooting that had happened recently. You then told police that it was you who had shot P. You said that he claimed to have three guns and had pulled a firearm out of his pants. You said you tried to grab it off him, there was a struggle over the firearm and during the struggle it had discharged accidentally. You said that Mr Haddon was not present at the address at the time. The statement was untrue.
Starting point
[29] In my sentence indication, I took a starting point of two years and three months’ imprisonment for the charge of wilfully attempting to pervert the course of justice uplifted by six months for the unlawful possession of a firearm charge.18 I consider that that overall starting point remains appropriate for the reasons set out in the sentence indication, which I will not repeat here.
Personal circumstances
[30] I need to take into account the aggravating and mitigating factors that are personal to you. I have had the benefit of an alcohol and drug assessment report dated 1 October 2024 and a pre-sentence report dated 8 October 2024.
18 The relevant portions of which are attached as an Appendix.
[31] In my sentence indication I indicated a generous credit of 15 per cent for guilty plea would be available and that remains the case.
[32] You are a 34-year-old man, born in Whangārei and brought up in Nelson. The alcohol and drug report provides context to your upbringing. You had an unenviable childhood. Your mother used intravenous drugs during your upbringing, and you witnessed violence towards your mother by her various partners, and you were directly subject to violence by those men. Mr Bruce, the report writer noted:
Anthony appears to have three significant predisposing factors. Anthony’s mother appears to have had a serious drug problem; this indicates that Anthony has a genetic predisposition to all forms of addiction. Anthony also experienced serious physical violence as a child which is often a predisposing factor for developing addiction problems. It appears that Anthony might have ADHD. Having ADHD in childhood can often predispose someone to developing addictions.
[33] You started drinking alcohol from 10 years of age, consuming cannabis from 12 years of age, and methamphetamine from 13 years of age. Mr Bruce says that you are in sustained remission from your alcohol and drug addiction. Your schooling was short-lived and your engagement in the Youth Nelson programme precipitated an uptake in use of alcohol and drugs. You were introduced to gang-life from your early twenties and have periodically attempted to move out of the gang and drug scene but remain a patched member of the Mangu Kaha gang. You consider yourself an inactive gang member at the moment given your bail conditions not to associate with gang members.
[34] You have four children from a previous relationship, who live with their mother but with whom you maintain regular contact, although I have been told this morning that your eldest child, a 17-year-old, is now living in the North Island. Your three other children are aged four, six and 12, and I understand you have ongoing contact with them. You have been able to maintain a positive relationship with your mother, who no longer consumes drugs, and this is a protective factor. I have been given medical evidence this morning that indicates your mother is seriously unwell and I have been told that she has perhaps only a couple of years to live. The bail restrictions of not being able to consume drugs and alcohol also appears to be a significant protective factor for you. You have, it seems, generally demonstrated compliance
during your recent sentence of home detention and on EM bail for these charges, apart from some recent difficulties.
[35] I accept your background involves deprivation consisting of exposure to serious violence and trauma; exposure to drug abuse by your mother; and poor education and significant addiction issues mitigate your culpability. I also note the detrimental impact a period of imprisonment will have on your children, particularly the three that live in Nelson with whom you have ongoing contact. However, I do exercise some caution about this given the lack of detailed information about the role that you play in their lives.19 However, taking all these factors in combination I consider that a credit of 15 per cent is warranted.
[36] Applying those credits to the starting point of two years and nine months’ imprisonment, the notional end sentence is one year and 11 months’ imprisonment (rounding down in your favour). Given that notional sentence is below two years’ imprisonment, I must consider home detention, and whether it should be imposed instead of imprisonment.
Home detention?
[37] Home detention may be imposed where the offender is convicted of an offence punishable by imprisonment,20 when the Judge is satisfied that the purposes of the sentence cannot be achieved by any less restrictive sentence or combination of sentences,21 and the Judge would otherwise impose a short-term sentence of imprisonment.22 There is no presumption in favour of home detention being imposed where the jurisdiction arises.23 But also relevant, is s 16(1) of the Sentencing Act, which requires the Judge when considering a sentence of home detention to “have
19 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50]–[52]; Campbell v R [2020] NZCA 356
at [41]; Berkland v R [2022] NZSC 143 at [116]; Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
20 Sentencing Act, s 80A(1)(a).
21 Section 15A(1)(a)).
22 Section 15A(1)(b). A “short-term sentence” has the same meaning as in s 4(1) of the Parole Act 2002 which includes “a determinate sentence of 24 months or less”.
23 R v Stacey [2008] NZCA 465 at [21].
regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”.24
[38] The address proposed for an electronically monitored sentence is your mother’s address where you have been living on a combination of electronically monitored bail and home detention since 11 April 2024 (that is the last six months). Your mother consents to you residing there and the address has been assessed as technically suitable for electronically monitoring by the pre-sentence report writer. The writer raises a few instances of recent non-compliance with electronic monitoring between 30 August and 7 September 2024. That is where you deviated from your approved absence or left your address without approval. This does raise some concern about your ability to comply with a sentence of home detention.
[39] The Crown opposes home detention on the basis that these are serious offences of their type given the gang context, and the sentencing purposes of deterrence, denunciation and accountability require a term of imprisonment. I consider there is some force in those submissions, especially in light of your recent electronic monitoring compliance issues. However, I consider imposing a sentence of imprisonment at this time would be a backwards step in your rehabilitation. I therefore consider that the purposes of sentencing can be achieved by a sentence of home detention. But, Mr Sutherland, it is important that you understand that you will be expected to strictly comply with your sentence of home detention and any failure to do so is likely to result in cancellation of that sentence and replacement with a term of imprisonment.
Result
[40] Mr Haddon, on the charge of unlawful possession of a firearm I sentence you to two years and nine months’ imprisonment. On the charge of breach of release conditions, I sentence you to six months’ imprisonment, to be served concurrently. That means it will not add anything to your overall sentence.
24 Sentencing Act, s 16; Faaliga v R [2023] NZHC 2901 at [15].
[41] Mr Sutherland, on the charge of wilfully attempting to pervert the course of justice and the charge of unlawful possession of a firearm, I sentence you to 12 months’ home detention with the following special conditions, which are also to apply as special post-detention conditions for a period of 12 months following the detention end date. You are to:
(a)Undertake and complete appropriate treatment/counselling to the satisfaction of a programme provider and a probation officer. The details of the treatment or counselling to be determined by a probation officer.
(b)Not to communicate or associate, directly or indirectly, with any person known to you to associate with the Black Power or Mangu Kaha gangs unless you have the prior written approval of a probation officer.
(c)Not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.
[42] I also make an order discharging the post-detention conditions which apply to you following your previous sentence of home detention.25 I make an order for destruction of the firearm.
[43]You may both now stand down.
La Hood J
Solicitors:
Crown Solicitor, Nelson
Zindels, Nelson for Defendant Alekna
25 Sentencing Act, s 80R(3)(b).
Appendix Sentence indication – Anthony Sutherland
[1] As noted above, Mr Sutherland seeks a sentence indication on the charges of wilfully attempting to pervert the course of justice,26 and unlawful possession of a firearm.27
Stage one – the starting point
[2] There is no guideline judgment for sentencing on a charge of perverting the course of justice. This type of offending can be highly variable in terms of circumstances, which makes case comparison of limited assistance, but the Court tends to adopt starting points of 18 months to two years in cases on the less serious end of the spectrum.28 However, starting points of three and a half years’ imprisonment have been adopted for cases where the culpability is considered to be in the mid-range. The Court of Appeal’s decision of Miller v R is an example of a such case.29 In that case the Court noted:
[10] ... there is no tariff decision in this area of offending, for obvious reasons. The variety of factual scenarios in which an attempt to pervert the course of justice might occur precludes such an approach. ...
[11] The real focus in each case of an attempt to pervert the course of justice must be on the intention behind the attempt and on its potential effect. Because of its potential effect, deterrence of others as well as denunciation of the act itself must be the overriding sentencing principles.
[3] Ms Riddell, for Mr Sutherland, referred me to the following cases in submitting that a starting point of 15 months’ imprisonment is appropriate:
(a)In R v Dodds,30 a false statement was made to police by Ms Dodds, the mother of a shooter in a homicide investigation, about her son’s whereabouts at the time of the killing. The Judge considered that it was
26 Crimes Act, s 117(e); maximum penalty seven years’ imprisonment.
27 Arms Act, s 45(1); maximum penalty four years’ imprisonment.
28 R v McFarlane [2021] NZHC 1332 at [16]–[18].
29 Miller v R [2014] NZCA 382.
30 R v Dodds [2024] NZHC 871.
a premeditated attempt to obstruct a police investigation,31 and adopted a starting point of 18 months’ imprisonment.32
(b)In R v McFarlane,33 Mr McFarlane provided statements to the police misrepresenting how his uncle was stabbed in a fight. Mr McFarlane initially told the police that his uncle had fallen on the knife during the struggle, but a few weeks later he told the police that his father was responsible for stabbing his uncle. The Court adopted a starting point of 18 months’ imprisonment.34 In the case of his father, the stabber, who had also lied to the police to protect himself by saying that the victim fell onto the knife, the Court took a starting point of 22 months’ imprisonment.35 The offending in the stabber’s case was more serious as he lied to protect himself.36
[4] Ms Riddell submits that Mr Sutherland’s statement to police had no effect on the police decision to charge Mr Haddon, and so the obstruction to the police investigation was negligible. In fact, Mr Sutherland’s false statement actually helped police identify a key independent witness who has provided a statement. Ms Riddell says that Mr Sutherland’s culpability is reduced by the fact he was directed by others to make the statement.
[5]The Crown refers me to a number of cases, including:
(a)In H(CA6/2016) v R the offender, who was sitting in the public gallery during a trial, made a “shut your mouth” gesture to a witness during their evidence. It was brief in the extreme and entirely unsophisticated. The Judge adopted an 18-month starting point which was not disturbed on appeal.37
31 Appendix, at [13].
32 This was reached at a sentence indication given in R v Dodds [2024] NZHC 241 and accepted by the offender. The issue on appeal in Dodds v R [2024] NZCA 362 was whether the Judge erred in deciding not to commute the end sentence of 14 months’ imprisonment to home detention. The Court dismissed the appeal.
33 R v McFarlane [2021] NZHC 1332.
34 At [10].
35 R v McFarlane [2021] NZHC 2943.36 At [30].
37 R v [H] [2015] NZHC 3222; H (CA6/2016) v R [2016] NZCA 101.
(b)In R v Potter,38 the offender, Ms Potter, was the partner of a man charged with sexually assaulting a 14-year-old girl, a relative who lived with Ms Potter and her partner for some years. Ms Potter encouraged the complainant to untruthfully retract her allegations, which she initially did, but she later retracted the retraction and explained why she had made it. Ms Potter gave evidence for the defence, contradicting the complainant at her partner’s trial. There was a hung jury. The offender later pleaded guilty to the sexual offending on a reduced charge. Ms Potter was charged with attempting to pervert the course of justice. The Court of Appeal treated the offending as falling at least in the mid- range of seriousness, requiring a starting point of around three and a half years’ imprisonment.
(c)In R v Kingi,39 the offender had been charged with aggravated robbery and participating in an organised criminal group. He engaged in a course of conduct designed to deter two witnesses from giving evidence against him. This involved arranging for others to approach and threaten one of the two witnesses. He then made other attempts to have someone “sort it out”. The Court adopted a starting point of three and a half years’ imprisonment.
[6] The Crown submits that a starting point in the vicinity of three years’ imprisonment is appropriate relying on the statement from Miller v R quoted above that the focus should be on the intention behind the attempt to pervert the course of justice. The Crown also submit that R v Dodds is of little assistance as the starting point was not challenged on appeal (the sole issue was whether home detention should have been imposed) and the starting point appears not to have been compared to other cases.
[7] The aggravating features in this case are that Mr Sutherland acted in a premeditated way, by presenting himself to the police station and providing his false statement to the police. He offered a narrative of the offending which excluded
38 R v Potter [2015] NZCA 25.
39 R v Kingi [2017] NZHC 3020.
Mr Haddon and exculpated himself with the clear intention of preventing Mr Haddon from being charged by the police with a serious offence. The potential effects included the wrong person being charged, the wrong charges being laid (based on the false self- defence scenario), and the statement being used to undermine any charge eventually brought against Mr Haddon.
[8] Ms Riddell notes, and the Crown accept, that Mr Sutherland was directed to make the statement. That appears to be because he was seen (presumably by Mr Haddon) as bearing some responsibility for the shooting, having brought the victim to the property. There appears to be elements of gang code and culture behind the offending, but this needs to be considered in the context of Mr Sutherland’s acceptance of that culture as a patched member of the gang. However, I accept the Crown submission that there is some reduction in culpability because the plan was not Mr Sutherland’s idea. I also accept the Crown submission that the focus should be on the intention behind the attempt and on its potential rather than actual effect.
[9] I do not consider this case to reach the same level of seriousness as Potter and Kingi, which involved concerted attempts to interfere with witnesses, but I also consider it to be more serious than the fleeting and unsophisticated offending in H(CA6/2016) v R, or the 61-year-old mother lying to protect her son in R v Dodds.40 It involved a premeditated gang strategy to pervert a police investigation to protect gang members from being charged with serious offending. I agree with Mr Webber that selection of a starting point is a difficult exercise, but taking all matters into account, I consider that a starting point of two years and three months’ imprisonment is appropriate.
[10] The Crown seek an uplift of six to 12 months for the firearm charge. The Crown note that the charge is connected in time but not connected to the circumstances of the perverting the course of justice charge. The Crown submit it is aggravating that the firearm is a rifle, sawn-off to make it a pistol. Such a firearm is easily concealed and transported. There is illegality over and above the fact that Mr Sutherland possessed it without a lawful purpose. The defence note that it was unloaded, was not
40 The Crown also refers to R v Yates [2021] NZHC 2466 and Miller v R [2014] NZCA 382.
the firearm used in the principal offending and was found in public where it would have inevitably been alerted to police attention, and therefore an uplift of six months is appropriate.
[11] As already noted, possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.41 With totality in mind, and taking into account that it was unloaded and not used in the principal offending, I consider that an uplift to the two year and three month starting point of six months is appropriate.
Stage two – aggravating and mitigating circumstances
[12] Having adopted a starting point of two years and nine months’ imprisonment, I now go on to take into account factors, aggravating or mitigating, that are personal to Mr Sutherland.
[13] I indicate a credit of 15 per cent for guilty plea for the reasons already outlined for Mr Haddon. Given the generosity of the starting point, I consider no further credit is required to reflect that Mr Sutherland was charged later.
[14] Further credit from the starting point I have indicated may be possible depending on the information about Mr Sutherland’s personal circumstances that may be available to the Court at the time of sentencing.
[15] Defence counsel notes that there is a causal connection between Mr Sutherland’s background of deprivation and his gang membership and offending, such that further credit would be available. Defence counsel also raises that Mr Sutherland has young children whom he plays a role in parenting which must be taken into account when considering the least restrictive outcome. I accept that these are likely to be relevant factors at sentencing depending on the information that may
41 Campbell v R [2022] NZCA 579 at [18] citing Rawiri v R [2021] NZHC 1573 at [35] citing R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41] (loaded shotgun in the boot of car, offender claimed it was for protection, court accepted the two year starting point but considered it at the lower end) and Torea v R [2011] NZCA 96 at [13]–[14] (starting point of two years and six months appropriate where the single firearm was loaded and ready to use with obvious gang overtones); and Herewini v Police [2014] NZHC 2396 at [26]. See also Bowring v Police [2021] NZHC 3198 at [17]–[22].
become available. Whether they will be of such significance to bring the sentence into the range of a non-custodial alternative to imprisonment (which the defence submit is the least restrictive sentence appropriate) will need to be addressed at sentencing.
Result for Anthony Sutherland
[16] Subject to any further credit that may be available, my sentence indication, giving credit of 15 per cent for guilty plea against a starting point of two years and nine months’ imprisonment, is a term of 28 months’ imprisonment (rounding down in Mr Sutherland’s favour).
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