The Queen v Colin Todd McCorkindale

IN THE COURT OF APPEAL OF NEW ZEALAND

CA414/01

THE QUEEN

COLIN TODD MCCORKINDALE

Hearing:	20 March 2002
Coram:	McGrath J Robertson J Durie J
Appearances:	E R Fairbrother for the Appellant B J Horsley for the Crown
Judgment:	21 March 2002

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

This is an appeal against sentence only. Mr McCorkindale was sentenced to ten months’ imprisonment in the High Court at Gisborne on 30 November 2001 having been found guilty after trial on one count of discharging a firearm with reckless disregard for the safety of others. At the same trial he was acquitted by the jury on two other counts which arose out of the same incident, namely wounding with reckless disregard for the safety of others and using a firearm while committing a crime of wounding with reckless disregard for the safety of others. The defence at trial was self-defence.
He appeals on the basis that the sentencing Judge erred in finding that there were not special circumstances to justify the Court imposing less than a fulltime custodial sentence or, if that was not an error, then the Judge erred in declining to suspend the term of imprisonment imposed.
The three charges arose out of an incident which occurred at about 8:30 a.m. on 1 March 2001 in Queen Street, Wairoa. The previous night there had been a stag party at the clubrooms of the Wairoa branch of the British Motor Cycle Club. Two persons named in the charges, Te Hira Charles Whati and Thomas Whati, had attended the function. A fight had broken out in which the appellant and the Whati brothers were involved. It was eventually broken up and everyone left the party.
The next morning the Whati brothers drove to the front of Mr McCorkindale’s home, banged on the door and indicated that the altercation the previous night was not over and they wanted to finish it off.
The appellant got out of his bed where he had been sleeping with his partner who was in an advanced stage of pregnancy. He had a firearm’s licence. He went to a locked cupboard in the bedroom which contained three firearms. He took a Browning semi-automatic shotgun, loaded two bullets and went on to the porch and fired a shot at close range at the vehicle. It went through the windscreen and hit Thomas Whati injuring him quite significantly.
The Whati brothers decided to retreat and began to reverse out of the property onto the road and take off in the direction from which they had come. Mr McCorkindale moved from the porch on to the lawn and fired another shot in the direction of the fleeing vehicle which passed through the small quarter window behind the seats where the two men were seated. Fortunately it did not hit either of the occupants.
Self-defence was not disproved in respect of the first shot fired by Mr McCorkindale and he was convicted only in relation to the second shooting.
It was common ground at trial that s5 of the Criminal Justice Act 1985 applied. Consequently a fulltime custodial sentence was mandated unless there were special circumstances. The Judge considered the detailed background contained in a sympathetic pre-sentence report with regard to Mr McCorkindale’s domestic and work situation and various references which were provided. The Judge noted that his prior offending (much of which had been alcohol related) had ceased in 1995. None of it had been violent offending.
The Judge analysed a number of decisions of this Court and the High Court which have dealt with the effect of s5 of the Criminal Justice Act. He also considered the particular factual circumstances of this case. On balance the Judge concluded that there were no special circumstances to justify a non-custodial sentence nor were there circumstances which would justify a suspended sentence. The Judge said:
There are, however, mitigating factors here which in my view are properly to be taken into account in considering the length of the sentence to be imposed. I need not refer to them again, but they include importantly that Mr McCorkindale is clearly not a person who is likely to re-offend, and he has strong family connections and the ability and the will to be an excellent father and partner to his family.
For the reasons I have set forth, I impose on you Mr McCorkindale a sentence of 10 months imprisonment. I grant leave for you to apply for home detention. In the light of the advice that the firearm used in this offending was not your property but belonged to your father, I make no order for its forfeiture.
The appeal is advanced by a repetition of the various factors which were urged in the High Court on each limb.
In a nutshell the appellant’s position is that the jury accepted there had been a legitimate level of self-defence in the initial incident even though it involved a high level of violence and a shot at very close quarters causing injury. The second was really a continuation of the first, that it was necessary to reflect this continuum in sentencing even though the jury was satisfied that the second shot was not fired in self-defence.
Mr Fairbrother submitted that there was an understandable transition from fear to anger and that the realities of the incident included:
(a)The Appellant’s forbearance the previous evening
(b)The immediacy of the actions of the Complainants to their earlier unremitting threats
(c)The immediate circumstances in which the Appellant found himself; that is, awoken from slumber by men he believed to be armed with a firearm; his belief they were endeavouring to invade his house; the Complainants aggressive arrival at his property; present with him in bed and equally exposed to the threat was his partner in the final stages of their first pregnancy
(d)The aggravating actions of the Complainants leaving the property and continue to “yahoo” in the short time before the second shot was fired.
It was also noted that no injury was suffered in the offence on which the appellant was convicted and the danger to people was theoretical rather than actual.
The Crown as against this approach listed as aggravating features:
(a)The degree of force and the range of it;
(b)The weapon used was confirmed in evidence by a Police Armourer to be potentially within a lethal range;
(c)The direction and the force of the shot which passed through the vehicle at high speed, and through the windows immediately behind the seats of the driver and the passenger;
(d)Mr McCorkindale moved from his front porch on to the front lawn between the firing of the two shots to bring himself within better range to execute the second shot;
(e)There was a risk to the public at 8.30 in the morning. Queen Street is a major thoroughfare in Wairoa. Mr McCorkindale may not have been aware of it, but there were people including school children and two persons at Williams & Kettle opposite, who heard the first shot and crouched down before the second shot was fired.
We are not persuaded that the Judge was in error in finding that there were not special circumstances. This was a man who was not unfamiliar with firearms and who, having used the firearm to protect himself or others, then used it again unnecessarily in an aggressive manner. It was fortuitous that nobody was injured but that was good luck not good management. We are not persuaded that when a firearm is used in those circumstances what occurred was in any way out of the ordinary so as to make it inappropriate to apply the required custodial sanction. People who resort to the use of firearms in self-defence do so at their peril and on the basis that any unjustified violence will see them called to account.
The second prong of the appeal was that the term of imprisonment of ten months should have attracted suspension that being jurisdictionally available.
There is no challenge to the fact that the exercise undertaken by the sentencing Judge was in conformity with the decision of this Court in R v Wright and Malcolm (CA390/94, CA391/94, 23 February 1995):
Thus if s.5 applies but the Court is minded to consider a suspended sentence the first enquiry must be whether there are special circumstances within the meaning s.5; if not that is the end of the matter. If there are, the Court has to consider whether their quality is such that they justify avoiding a full-time custodial sentence only by the exercise of the s.21A power and by no other sentencing option.
Mr Horsley submits that the aggravating features referred to above necessarily required a deterrent sentence and that the approach of the sentencing Judge cannot be faulted. Reference has been made to the decisions of this Court in Solicitor-General v Hines (CA12/99, 12 March 1999) and R v Granger (CA172/86, 30 September 1986) the result of which, it was submitted, is that the assessment made by the trial Judge who had heard all the evidence was clearly available.
This is an unusual case, as self-defence was not negated on the first and more serious incident when actual injury was inflicted, but we are not satisfied that it has been shown that the exercise of discretion in either of the two areas in which it was required was in error. There was no need for the second shot. This was by that stage nothing but gratuitous violence directed towards people who were fleeing. Further it was delivered in circumstances that meant others were inevitably placed in jeopardy. The abuse of firearms in our community is abhorrent. The Courts have a clear duty to express society’s condemnation and denunciation of those who resort to their use.
The appeal is accordingly dismissed. Mr McCorkindale was granted bail pending the hearing of this appeal. He now must surrender himself to the Wairoa Police Station by noon on Monday 25 March 2002.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 26

21 March 2002