The Queen v Kerryn Robert McDonald
[2000] NZCA 117
•10 July 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA108/00 CA109/00 CA110/00 CA111/00 CA114/00 CA115/00 |
THE QUEEN
V
KERRYN ROBERT MCDONALD
CHRISTIAN KARL DOLLMAN
CLINTON GLEN THOMPSON
LYALL BRYAN ANDERSON
DALLAS CHARLES LADBROOK
SHANE DEAN ADAMS
| Hearing: | 31 May 2000 (at Auckland) |
| Coram: | Tipping J Williams J Goddard J |
| Appearances: | D G Slater and M Guest for the Appellants McDonald, Dollman and Thompson H Young for the Appellant Anderson W N Dawkins for the Appellants Ladbrook and Adams K Raftery for the Crown |
| Judgment: | 10 July 2000 |
| JUDGMENT OF THE COURT DELIVERED BY GODDARD J |
The appellants, who were all members of the Road Knights gang in Invercargill, were each convicted by a jury on four counts of unlawful possession of a pistol (ss 51(a) and 45(1)(b) Arms Act 1983) and one count of possession of an explosive, namely a detonator (s 45(1)(b) Arms Act 1983). The four firearms charges carry maximum penalties of three years imprisonment and/or a fine of $4,000. The charge concerning the detonator carries maximum penalties of four years imprisonment and/or a fine of $5,000.
The trial Judge determined the appellants’ overall criminality as justifying a total sentence of three years imprisonment, arrived at by the imposition of concurrent sentences of two years imprisonment on three of the firearms charges with a further 12 months imprisonment imposed cumulatively on the fourth firearm charge (a Winchester shotgun found separately). In addition, a concurrent sentence of six months imprisonment was imposed for possession of the detonator. Thus the total sentence was three years imprisonment. An exception was made in the case of the appellant Anderson, who received a sentence of 2½ years imprisonment. Anderson’s sentence comprised 21 months imprisonment for the three firearms charges, nine months cumulative for the charge relating to the Winchester and three months concurrent for the detonator. His lesser culpability was assessed on the basis that he was 20 years old and a prospect of the gang at the time, rather than a patched member.
Each appellant has appealed against his sentence on the grounds that it is manifestly excessive in all the circumstances and not in accordance with established authority; that the Judge erred in finding the Winchester shotgun operable and imposing a cumulative sentence in relation to it; and on the grounds of unjustifiable disparity between the appellants’ sentences and those imposed on two co-offenders, Messrs Pearsey and Richardson. Messrs Pearsey and Richardson did not undergo trial but pleaded guilty on arraignment following depositions and were sentenced to 18 months imprisonment by a different Judge.
Additional grounds of appeal were advanced by the appellants Anderson and Thompson. Anderson argued that the discount of six months allowed him was insufficient in the circumstances. Thompson pleaded that steps he had taken to dissociate himself from the gang and reform his life following his arrest on these matters should have been taken into account by the Judge and his sentence reduced to reflect his rehabilitative efforts.
The Facts
On 1 March 1999 a prospect for the Road Knights gang was seriously assaulted at the gang’s headquarters in Invercargill. The appellant Ladbrook, who was president of the gang at the time, summoned an ambulance. The ambulance officers then requested police assistance. The police conducted a search of the headquarters pursuant to warrant and in a pile of bricks adjacent to one of the buildings located three firearms. These were a Webley pistol loaded with six rounds of ammunition and wrapped up with two boxes of .22 ammunition; a sawn-off Lasordra double barrel shotgun wrapped up with six shotgun shells; and a cut down .22 Lakefield rifle with one round of .22 ammunition wrapped up with it. Approximately 15 rounds of .22 ammunition had fallen down among the bricks. A search inside one of the buildings revealed a live detonator above a doorway. The next morning police found a cut down Winchester semi automatic 12 gauge shotgun hidden in a drainpipe buried in the garden. It was loaded with two shells in the magazine and one in the chamber. All of the firearms found were defined as pistols by virtue of their length and all were operable.
The trial Judge accepted that the .22 Lakefield required some oiling and adjusting to make it fire. However, although it had no magazine, it was possible to load one round at a time in its chamber without a magazine.
The Sentencing Judgment
The Judge considered the verdicts reflected knowledge on the part of the appellants of the presence and availability of the firearms and detonator at the gang premises. He described the circumstances in which the firearms were found as follows:
The aggravating features of these offences are plain enough. Here was a virtual arsenal of weapons designed for one purpose and for one purpose only, to inflict bodily injury or death upon people. Two of the shotguns were loaded [as was the revolver]. The rest of the firearms were stored with ammunition immediately available and all firearms were in the vicinity of the clubhouse and all available for ready use. It is an aggravating feature of these offences that these firearms were possessed in the context of gang violence and inter gang conflict which had occurred in the recent past. The jury was told that in the mid 90’s such conflict had manifest[ed] itself in bombings, shootings, car rammings and murder, although I think on reflection that the murder must have been earlier than the mid 90’s.
Whilst acknowledging as a mitigating factor that no gang conflict was current at the time the weapons were found (it having subsided due to lack of competition), the Judge nevertheless noted that the gang fortress remained. He said:
The gang headquarters is protected by a high fence, electronic surveillance, is under constant guard and loaded firearms are to hand. The possession of these firearms is to be seen in that context and that to my mind is an aggravating feature.
The Judge then turned to consider the appropriate approach on sentence. He viewed it as both inappropriate and artificial to approach the sentencing exercise by taking the maximum penalty of three years imprisonment on each of the firearms’ charges as a ceiling for all four firearms’ charges. He also discounted a strictly cumulative approach, with its potential maximum of 16 years imprisonment. Instead he determined the proper approach to be as follows:
I should consider the overall criminality involved in the total offences and then consider the part played by each prisoner in that overall criminality. That is the approach that the Court of Appeal has said is appropriate in the case of R v Wright (1991) 7 CRNZ 624.
Here overall criminality can be summed up thus. Here was an arsenal of weapons ready for immediate use for defensive and offensive purposes and this against a background of recent gang violence in Invercargill, gang violence that has outraged this community, and the citizens of this city are entitled to expect the Court to respond with condign sentences.
What then of the part played by each of these prisoners in the overall criminality in the possession of this arsenal of weapons and detonator?
The Judge then turned to consider the part played by each of the appellants in the overall criminality of the offending. He declined to determine their sentences by a simple estimate of the discount given to Messrs Pearsey and Richardson for their guilty pleas, saying:
With all respect to the Judge who sentenced Pearsey and Richardson, I have had the benefit of sitting here for seven days and listening and considering the evidence upon which the criminality, both overall and individual, of the prisoners is to be judged.
While the Pearsey and Richardson sentences are not to be ignored, they are not to my mind a dominant consideration.
The Judge then dealt with each appellant’s case individually. In the event he found it difficult to draw any distinction between the appellants. None had given evidence at trial and the Crown’s case was founded on the presumption that all were occupiers of the gang premises and as such knew the weapons were there and were available for use.
Taking all matters into consideration, he determined the appellants’ overall criminality justified a sentence of three years imprisonment, arrived at as earlier set out in the judgment. Anderson was the only exception, on account of his lesser status as a gang prospect and his age of 20 years.
Legal Principles
R v Wright (supra), referred to by the Judge, is the leading authority for sentencing in this area. Decided almost a decade ago, Wright similarly concerned the possession of firearms by a gang and involved a virtual arsenal of lethal weapons, to be available in “inter-gang rivalry”. A further serious feature was re-arming by the gang after the Police had searched the gang headquarters and removed six firearms and two Molotov cocktails. The firearms were found either loaded or accompanied by loose ammunition and hidden in various ways. Sentences of up to three years and five months imprisonment were imposed on seven gang members.
The Court of Appeal considered that the correct sentencing approach was to consider the overall criminality involved in the total offences and then to assess the part played by each appellant in that overall criminality. The concluding passage of the judgment, delivered by Cooke P, established the principles for sentencing in cases such as this. He said:
The offence of possessing firearms and the like is one that varies greatly in gravity. This … is one of the worst examples of the type of offence. It is the possession by a gang of nothing less than an arsenal of lethal weapons available to be used in inter-gang conflict or at least more particularly intended for such use. It bespeaks an attitude to the law and represents a type of conduct causing alarm in the community. It is a development in New Zealand of comparatively recent origin, but so disturbing that the Court must do whatever we reasonably can to try to stamp it out. Condign and deterrent sentences are appropriate. We are not prepared to interfere with the sentences passed on 24 April 1991 and all the applications are dismissed.
Following Wright, in 1993, 1996 and 1997 members of Christchurch and Invercargill gangs again appeared before the Courts on firearms charges arising in the context of armed gang violence. In Roberts v Police 10 CRNZ 451, Tipping J considered an appeal against a sentence of 18 months imprisonment passed after pleas of guilty on two charges of being unlawfully in possession of firearms found at the headquarters of the Epitaph Riders gang in Christchurch. At the time there was an atmosphere of concern about gang violence in the city. The weapons found were said to be at the premises in case of attack. Echoing the sentiments expressed by the Court of Appeal in Wright, Tipping J said at 452:
Parliament has made it a crime punishable by 3 years’ imprisonment to be unlawfully in possession of weapons of this kind. Here the appellant was in possession of two such weapons in circumstances where they were available for his use and for the use of others who had access to them. They were available for immediate use in the sense that they were loaded and obviously in working order. …in my judgment the time has fully arrived when the Courts have a public duty to make it clear to all citizens that the possession of firearms, particularly loaded and operative firearms, is a very serious matter indeed.
In my view this was a serious case of its kind. The context of gang violence cannot be overlooked, although as I said before, it must be kept in perspective, and I do keep it in perspective. Nevertheless here was a case for which, in my judgment, half the maximum penalty prescribed by Parliament was amply justified. It may well be that this demonstrates an increase on the part of the Court of the generally hitherto understood tariff for this sort of offending. If that is so, in my judgment it is an increase entirely justified in the public interest.
In Shailer v Police (AP 37/95, Invercargill Registry, 29 May 1996), John Hansen J considered an appeal by a member of the Black Power gang against a sentence of two years imprisonment for possession of a firearm which he had brought to the gang headquarters in Invercargill during the era of gang conflict referred to in the present case. One explanation Shailer gave was that members of the Black Power were targets for the Road Knights in Invercargill and thus needed weapons for protection. John Hansen J concluded that the District Court Judge who imposed sentence was perfectly entitled to take into account community concerns arising from gang confrontations and the inevitable danger to the community of gangs being in possession of firearms. Despite the fact Shailer was aged only 22 years and had no relevant history, John Hansen J was not persuaded that the sentence was manifestly excessive, finding:
I note … that the Court of Appeal decisions were some time ago, and it seems to me that there has been an increase in the use of firearms in gang confrontations, which is well documented in both Christchurch and Invercargill. Not only is it proper for a sentencing Judge to take that factor into account, it is inevitable and appropriate that a sentencing Judge do so.
Accepting that this man travelled to Invercargill specifically as a reinforcement for Black Power, and that he brought with him a firearm, which this Court and District Court is entitled to infer was brought specifically for the purpose of being used in the gang confrontation, I am not persuaded that a starting point for sentencing of 2½ years imprisonment is manifestly excessive. It is at the higher end, given that the maximum is 3 years, but this offending, in all the background circumstances of this case, must be considered at the higher end of offending under the relevant statutory provisions.
The reference to the starting point of 2½ years imprisonment in Shailer’s case reflected the discount given for an early guilty plea.
In Kuka v Police (AP 27/97, Christchurch Registry, 4 March 1997), Chisholm J considered an appeal by a member of the Black Power gang in Christchurch against a sentence of three years imprisonment for possession of a firearm except for some lawful proper or sufficient purpose, a charge which carries a maximum sentence of four years imprisonment. The firearm, a pump action shotgun, was loaded and found located beside a viewing platform in the grounds of the gang headquarters. Two days earlier, another Black Power headquarters in Christchurch had been the subject of violent attack by a rival gang. Shots had been fired and three gang members stabbed. The sentencing Judge adopted a starting point of between 3¾-4 years imprisonment but allowed a “measurable discount” for a plea of guilty at the first available opportunity. Reference was made to the decisions in Roberts and Shailer. Chisholm J concluded:
Both Roberts and Shailer involved sentencing within a context of a maximum penalty of three years’ imprisonment. The circumstances relating to this matter did not differ significantly from those involved in the other two decisions. Shailer can be interpreted as indicating a more severe sentencing attitude than Roberts. Against a background of increasing gang violence a more severe sentencing pattern in understandable and appropriate.
Were the Sentences Manifestly Excessive?
Counsel for the appellants submitted that none of the above cases were on all fours with the facts in the present case. The major distinguishing factor contended for was that no situation of current gang conflict existed at the time the firearms and detonator were found. Furthermore, that the somewhat deteriorated condition of the firearms supported the theory of their having been in their particular locations for some time and thus confirmed that inter-gang rivalry had settled down. Nor was any aggravating feature such as re-arming present in the appellants’ case.
Fact situations are rarely, if ever, identical. However, the situation in Wright is strikingly comparable with the facts in the present case. Both involve criminal conduct by a number of gang members in relation to lethal weapons kept readily available at their headquarters for use in possible gang conflict. That very conduct is also the subject of each of the subsequent sentencing decisions referred to above. What each of those authorities demonstrates is the firm and consistent stance taken by the Courts in relation to this type of offending. The clear message is that a condign approach will be taken, as was made abundantly plain in the passage from Wright quoted above.
The fact that no inter-gang rivalry was current at the time the firearms and detonator in this case were discovered is not a mitigating factor. The criminality of the charges founds on unlawful possession of the firearms. Thus the aggravating factor is, as stated by Cooke P in Wright: “ …the possession by a gang …of lethal weapons available to be used in inter-gang conflict or at least more particularly intended for such use”.
Nor is the fact that no particular appellant can be linked with any individual weapon a special feature of this or any similar case. That was also the situation in Wright. It is the unlawful possession of weapons by a gang for the purpose of having them readily available for use in the event of current or revived gang conflict that renders this offending grave.
Having regard to the totality principle, the sentences imposed by the Judge are not manifestly excessive and are in line with the cited authorities, beginning with Wright. The range of sentences imposed in those cases is from 18 months imprisonment up to three years five months imprisonment. The length of the particular sentence imposed in each case has depended on the circumstances. For instance, in Roberts which concerned a sentence of 18 months imprisonment, only two firearms were involved. Furthermore, in Roberts there were guilty pleas entered. It must be also remembered that Roberts was decided seven years ago when the Court’s message in Wright was relatively fresh. That the message has still not been heeded by the appellants in this case simply invites an even firmer sentencing approach.
The route taken by the Judge to achieve the appropriate total sentences cannot be criticised either. The same result could have been achieved by taking a strictly cumulative approach and spreading the sentences across all five charges; or by imposing a lead sentence of three years imprisonment on one charge with concurrent sentences on the remaining charges. It does not matter which particular route the Judge chose, so long as the end sentences fairly reflect the overall criminality of the offending. Singling out the offence relating to the Winchester shotgun for the imposition of a cumulative sentence was an available mechanism for attaining the appropriate total sentence, as the Winchester was found separately from the cache of other firearms.
The Winchester
The second ground of appeal relates to the Winchester semi automatic 12 gauge shotgun, found hidden in a drainpipe buried in the garden. As noted, it was loaded with two shells in the magazine and one in the chamber. Counsel for the appellants contended that the Judge had erred in finding that the Winchester was operable, and referred to the evidence given at trial by the Police Armourer, Mr Hewitt. Mr Hewitt had said that when he received the Winchester it was badly rusted with the bolt mechanism seized in a partially open position. However, when all of Mr Hewitt’s evidence is analysed it becomes clear that this statement related to the disassembled condition the firearm was in when it was handed to him for testing and not to its condition when found. A photograph taken at the scene shows the Winchester to have been fully assembled when found in its hiding place, with the breech mechanism closed and the barrel attached. And although it was in a rusty condition Mr Hewitt was able to test-fire it after oiling and found it to be fully functional.
The other firearms also showed evidence of rust. On that issue, Mr Hewitt said that any firearm left outside will be prone to rust and quickly rendered quite inoperable. He could only make an educated guess as to how long the firearms found at the gang headquarters had been stored in the places where found, but said he was able to get all firearms firing successfully. He said:
In this instance all of the firearms have superficial rusting evident although the Winchester shotgun is more severe than the rest, the simple fact that the remainder of the firearms were readily made to operate indicates to me that they have not been rusty for any significantly long period of time. I would suggest probably a matter of weeks rather than months in damp conditions.
Thus it is clear that none of the firearms had been long-abandoned in their hiding places and although the Winchester was more rusty than the other firearms it was able to be made readily operable, becoming fully functional once oiled. It was therefore available for its intended use in any gang conflict that might arise, it being fully assembled and with a live cartridge in the breech.
On analysis of the evidence therefore, no error of fact was made by the Judge in relation to this firearm and its intended use.
Disparity
With the exception of Thompson, we are satisfied that the total sentences imposed were appropriate to reflect the overall criminality of the appellants’ offending. However, regard must still be had to the issue of possible disparity between the appellants and Messrs Pearsey and Richardson. The Court will interfere in an otherwise appropriate sentence on the grounds of disparity, if that disparity is gross and cannot be justified. Disparity between co-offenders must be gross and palpable in order to justify an alteration in sentence on appeal and the test is whether, when viewed objectively, an independent observer aware of all relevant facts would think something had gone wrong with the administration of justice.
As stated in R v Rameka 1973 NZLR 592 at 593, however:
The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence.
In the present case the Judge was fully aware of the earlier sentences passed on Messrs Pearsey and Richardson by a different Judge, as is clear from his sentencing remarks. He expressly declined to be bound by any starting point discernible in their cases and gave his reasons for so declining. Those reasons were his greater knowledge of the background and context of the offending disclosed in evidence at trial and his perception of the lack of mitigating factors in all cases, except that of Anderson.
Viewing the comparative sentences objectively on the basis of all known relevant facts, it cannot be said that the administration of justice has gone awry in the appellants’ cases. The total sentences of three years imprisonment (2½ in Anderson’s case) correctly reflect the sentencing levels and trends in the comparable decisions. And although an independent observer might conclude that the sentences imposed on Messrs Pearsey and Richardson were lenient in all of the circumstances, those sentences were not manifestly inadequate. They are in line with the sentences imposed in Roberts and Shailer, both of which also involved guilty pleas. This ground of appeal must also fail.
Anderson’s Case
On behalf of the appellant Anderson, it was submitted that there were special features relating to his case which rendered the imposition of a total sentence of 2½ years of imprisonment unjustified. In particular, the difference between his sentence and those imposed on Messrs Pearsey and Richardson was emphasised as being grossly disparate. Messrs Pearsey and Richardson are aged 39 and 27 years respectively and both were fully patched and senior members of the gang. Both had more serious lists of previous convictions than Anderson. Anderson’s lower level of culpability, both as a prospect and on account of his significantly younger age, were advanced as special features which made it impossible to conclude that parity existed between his sentence and those imposed on Messrs Pearsey and Richardson. It was submitted that a total sentence of 18 months imprisonment, comparable to that imposed in Roberts, would have been appropriate in Anderson’s case to achieve even handed justice.
We are satisfied that the Judge dealt adequately with the special features of Anderson’s case and sufficiently distinguished between him and his co-offenders. Unlike Roberts or Shailer - or Messrs Pearsey and Richardson, Anderson was entitled to no credit for a guilty plea. For his involvement in the overall criminality of the offending, the sentence of 2½ years imprisonment cannot justify interference on appeal.
Thompson’s Case
The case for the appellant Thompson is different. In our view, there is justification for this Court to reduce the sentence of three years imprisonment imposed on him. The basis for interference is the special feature of rehabilitation. Although the Judge referred to Mr Thompson’s positive probation report and to the conspicuous aspects of his having disassociated himself from the gang at some considerable expense, relocating to Christchurch and finding gainful employment, he felt unable to make any distinction in Thompson’s case, saying:
It is a shame that today he must, along with his fellow prisoners, pay the price of criminal activity which preceded this spectacular and commendable change.
Thompson is 23 years of age. He was obliged to buy his way out of his indebtedness with the gang and obtained a loan from his grandmother for that purpose. The advancing of such a loan indicates that Mr Thompson has the support and encouragement of his family to sever his ties with the Road Knights gang. The significant changes that he has made in his life since his arrest on these charges ought to be acknowledged by the Court on sentence. For that reason we are satisfied that a discount of six months should be allowed to reflect the reformative efforts he has made and as an encouragement to others in the future. Accordingly, Mr Thompson’s appeal is allowed to that extent.
Judgment
The appeals of Messrs McDonald, Dollman, Anderson, Ladbrook and Adams are dismissed.
The total effective sentence of three years imprisonment imposed on the appellant Thompson is quashed. In lieu, a total sentence of 2½ years imprisonment is substituted. That is achieved by reducing the sentence in line with that of Anderson. Therefore the sentence of two years imprisonment on the charges relating to the firearms found in the brickwork will be reduced to 21 months imprisonment. The sentence of 12 months imprisonment cumulative for the Winchester shotgun will be reduced to nine months imprisonment and a sentence of three months imprisonment concurrent for the detonator imposed.
Solicitors:
David G Slater, Invercargill, for Appellants McDonald, Dollman and Thompson
Tait Ward Adams, Invercargill, for the Appellant Anderson
Eagles & Eagles, Invercargill, for the Appellants Ladbrook and Adams
Meredith Connell, Auckland, for the Crown
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