R v Gallagher [2021] NZHC 920 (28 April 2021)

Last Updated: 14 September 2021

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-009-3630 [2021] NZHC 920

THE QUEEN

v

BRENDON JOSEPH GALLAGHER

Hearing:	28 April 2021
Counsel:	C E Martyn for Crown T Aickin for Defendant
Sentenced:	28 April 2021
Charges:	Discharging a firearm with reckless disregard

SENTENCING NOTES OF BREWER J

R v GALLAGHER [2021] NZHC 920 [28 April 2021]

Solicitors:

Raymond Donnelly & Co (Christchurch) for Crown

• [1] Mr Gallagher, on 2 March 2021, Dunningham J gave you a sentence indication on the charge of discharging a firearm with reckless disregard for the safety of others.¹ Later that day, you accepted the sentence indication and entered a plea of guilty.

• [2] Justice Dunningham, at your request, did not enter a conviction, nor give you a first strike warning. So, the first job I have today is to complete those actions. Accordingly, I now formally enter a conviction in respect of the charge of discharging a firearm with reckless disregard for the safety of others. I also have to give you the first strike warning. I do not expect it will mean much to you, but the law simply requires me to give it to you, and so I will:

Given your conviction for discharging a firearm with reckless disregard for the safety of others, you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the ‘serious violent offences’.

If you are convicted on any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

• [3] When Dunningham J gave you the sentence indication, she not only considered a starting point but the Judge also took into account what she knew of your personal factors in reaching a final sentence indication of 23 months’ imprisonment.

¹ R v Gallagher [2021] NZHC 342.

• [4] As the sentencing Judge, I have to look at the sentence indication to see whether it should be changed. If I had decided it should be changed in a way adverse to you, then I would give you the chance to change your plea. But, I agree with the sentence indication. A copy of it is to be attached to these sentencing notes and form part of them.

• [5] There are no victim impact statements for me to take into account, but I have read the pre- sentence report. It describes you as being at a low risk of reoffending and a low risk of harm to the community. So, I see no reason why I should depart from the sentence indication.

• [6] I also note that you have been in custody on remand since 23 April 2020 and it is high time that the sentence was passed so the probation processes can start working.

• [7] Accordingly, Mr Gallagher, on the charge of discharging a firearm with reckless disregard for the safety of others, I sentence you to 23 months’ imprisonment.

• [8] You may stand down.

Brewer J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865734.html

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-009-003630 [2021] NZHC 342

THE QUEEN

v

BRENDON JOSEPH GALLAGHER

Hearing:	2 March 2021
Appearances:	P A Currie for Crown T Aickin for Defendant
Judgment:	2 March 2021

SENTENCING INDICATION OF DUNNINGHAM J

Introduction

• [1] Mr Gallagher you face a charge of discharging a firearm with reckless disregard for the safety of others.¹ As you heard you originally faced a charge of

¹ Crimes Act 1961, s 198(2).

R v GALLAGHER [2021] NZHC 342 [2 March 2021]

attempted murder but the Crown applied late last year to amend that charge to the lesser charge you currently face. Today, you are asking a sentencing indication.²

• [2] I intend to be relatively brief in giving this indication. If you accept the indication given, then at sentencing, there will be a more detailed explanation of how this sentence meets the purposes and principles of the Sentencing Act. Today I will focus on what sentence is warranted on the facts of this case.

Background

• [3] The summary of facts says that you had known the victim for two years. You had been evicted from his house, and you then engaged in an ongoing dispute with him for some 18 months after the eviction.

• [4] In the afternoon of 22 April 2020, you were driven by your, then, female partner to the victim’s house. The victim, his partner, and their three-year-old son were present. You knocked on the front door while wearing a surgical mask. When the victim came to the door, he recognised you. You asked the victim to come outside and “sort things out” and you removed your mask for this exchange.

• [5] You then produced a small pistol from your pocket and pointed it at the victim. He turned back to go inside and tried to close the door behind him. As the door swung closed, you discharged the firearm at the victim. The round passed through a glass pane in the door, and over the victim ’s shoulder. You then ran back to the vehicle and your partner drove the two of you away.

• [6] The victim was not injured. However, the offending has had a significant impact on the victim and his wife. While the victim impact statements have not yet been prepared and will be provided at sentencing, it is sufficient to say that the victim and his wife have moved from their home as they felt unsafe there since this incident.

² Pursuant to s 60 CPA.

Sentencing procedure

• [7] As your lawyer will have explained to you, I must first establish a starting point for sentencing having regard to comparable cases. I will then consider what uplifts and discounts should apply to reflect your personal circumstances.

• [8] The maximum sentence for this charge seven years’ imprisonment. The aggravating features of the offending are:

(a) your proximity to the victim: the shot was discharged at close range;

(b) the level of premeditation: you took the firearm to the address with the purpose of confronting the victim; and

(c) the fact the shot was fired into a residential dwelling, where the victim his wife, and child were present.

• [9] While the Crown submits the actual and threatened use of a firearm is an aggravating factor, I accept, as your lawyer says, that this is an essential element of the offence, rather than an aggravating factor.

Crown submissions

• [10] The Crown submissions refer me to several cases to assist with setting the starting point. These are:

(a) R v Jolley³: 20-30 Black Power members, carrying weapons, went to an address occupied by a Mongrel Mob affiliate. One offender fired at an occupant and was convicted of attempted murder. Another offender, Mr Dashwood took a shotgun and fired towards the occupants of the property but did not hit anyone. The Judge identified the concerning features as: the close range (20 m), the weapon’s wide blast radius, the context of a residential street and property, the risk of hitting a women

³ R v Jolley [2018] NZHC 93, the offender was charged with discharging a firearm with recklessly.

or child, and the gang aspect. The Judge adopted a starting point of three years six months on that charge.

(b) R v Abbott⁴: Mr Abbott was driving around and behaving erratically. He pulled up alongside another vehicle and pointed a 12-gauge shot-gun through the passenger window at the occupants of the vehicle. The driver of the vehicle braked suddenly just before Mr Abbott fired the gun. Mr Abbott then weaved across the road in front of the vehicle attempting to force it to stop. The Judge used a starting point of three years nine months.

(c) Gathergood v R:⁵ Mr Gathergood and his associate were driving around central Christchurch when they were involved in a verbal altercation with the occupants of another car. In response, they picked up a bolt action shotgun with a three-shot magazine and ammunition from a flat and returned to the central city. There, they were involved in another altercation where Mr Gathergood’s associate pointed the shotgun out of the front passenger’s window, at the other car which was following and shot at it. Shotgun pellets struck the car, smashed the windscreen, the radiator and damaged the bonnet. No one was injured. Mr Gathergood’s associate received a four-and-a-half-year sentence. On appeal it was reduced from three years three months, to three years.

• [11] The Crown also directs me to the case of Allan v Police⁶ where, while not a charge of recklessly discharging a firearm, gives an indication of the appropriate sentence where there was no risk of harm as the firearm was not loaded. In that case, Mr Allan was arguing with his partner, he retrieved a .44 calibre Rossi lever-action rifle but ensured the chamber was empty. He then came up behind his partner and pointed the rifle at her head, when she turned around, he threatened to kill them both if she ended the relationship. He was charged with threatening to kill and presenting a firearm at a person. The High Court considered the starting point of 12 months could

⁴ R v Abbott HC Rotorua CRI-2005-077-1271, 9 February 2007, the offender was charged with discharging a firearm with recklessly.

⁵ Gathergood v R [2010] NZCA 350.

⁶ Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.

have been higher – a starting point of 18 months to two years could have been appropriate.

• [12] Ms Currie accepts that the low calibre of the firearm mitigates the offending. It seems a modified starter pistol was used which was capable of firing live rounds but not of causing serious injury. However, she notes that the victim likely believed the firearm was capable of serious injury,⁷ and he could have been injured given the bullet passed through the glass pane. Without that mitigating factor Ms Currie submits this case would be similar to Jolley as the pistol was fired at close range, and it involved a single shot as in Abbott. However, accepting that the firearm was a lower calibre she submits a lesser sentence than the three years and six months is appropriate. However, she submits the offending is more serious than in Allan where a firearm was not discharged or loaded and so she says a starting point of between two years six months and two years nine months’ imprisonment is appropriate.

Defence submissions

• [13] Ms Aickin rejects the submission that the cases I have just run through are comparable to this offending because they involve fully powered firearms, and in many cases multiple attackers and other serious charges. She submits that Allan is most relevant as the charge for threatening to kill has the same maximum penalty, but there the use of a firearm was a seriously aggravating factor and here there were no verbal threats and no associated aggravating factors beyond the way the firearm was used.

• [14] Ms Aickin argues the offending was not serious – you could have been charged with discharging an airgun which has a maximum penalty of three months’ imprisonment. She rejects the Crown’s submission that the victim could easily have been injured, as she submits there was no evidence regarding the fire power of the pistol, and the damage done was comparable to having a stone thrown at the window.

• [15] So, she submits an appropriate starting point is no more than 12 months.

⁷ See R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [39].

Analysis

• [16] I accept the Crown’s submissions that place your offending somewhere between Allan and Jolley. There are several factors that make this offending more serious than the offending in Allan. First, the gun was discharged so could have caused damage, especially if it had hit the victim around his head or face. The bullet passed over the victim’s shoulder, so it was fired at a height where an impact to the victim’s face was a serious possibility. I accept there is a gap in the evidence surrounding the firepower of the pistol but firing the pistol into a glass door could also have injured the victim, if not from the bullet, then from the shattered glass.

• [17] Second it was a premeditated situation. You went to the address to confront the victim. You intentionally brought a firearm with you so you could use it for the confrontation. This was not a spur of the moment altercation as in Allan. You also ensured that you could leave quickly by having a driver. All of these features show, in my view, premeditation.

• [18] Third, you were on the doorstep of a residential house and you fired the bullet at relatively close range. When you fired through the door you could have hit any resident of the house. You knew the occupant, and you knew it was likely that the victim’s partner and child could have been present and, of course, they were. There was therefore a real risk that your actions could have injured someone else, and that context elevates the seriousness of the offending.

• [19] While I accept the weapon’s low calibre is a mitigating feature which decreased the chance of a serious injury, in my view, the weapon could still have caused injury. The offending is less serious than Jolley as there was no gang aspect, and there was a single offender and a lower strength weapon, but the case is more serious than Allan where the rifle was not loaded. For completeness, I also mention the case of Stirling where a low calibre weapon was used.⁸ There a starting point of two years nine months was adopted for firing an air rifle at the victim with reckless disregard for the safety of others and where a pellet hit and lodged in the victim’s arm. On appeal the sentence

⁸ Sirling v Police HC Nelson CRI-2011-442-000037, 8 December 2011.

was described by Miller J as “well within range”. While that case had the additional factor of an injury, it did not have the level of pre-meditation that this one does.

• [20] Given the High Court felt a starting point of two years would have been within range for the offending in Allan and this is slightly less serious than the offending in Stirling where a low calibre weapon was used impulsively but a pellet actually hit the victim, I consider an appropriate starting point for this offending is two years six months.

Uplifts and discounts

• [21] The Crown agrees there are no aggravating features relating to you and so no uplift on sentence is required. Ms Currie submits any guilty plea discount should be limited to 15 to 20 per cent given the trial is set down for March, and that you were initially charged with attempted murder. Your lawyer, Ms Aickin submits a 25 per cent credit should be available to you because you would be pleading guilty to the new charge at the first possible opportunity once disclosure was provided.

• [22] I accept your lawyer’s submission that a discount of 25 per cent should be available for your guilty plea, and this reflects that the charges were formally amended on 18 February, but also that the trial is set down shortly.

Conclusion

• [23] I am satisfied that it would be appropriate to impose an end sentence of 23 month’ imprisonment. This sentence indication will remain open for acceptance for five working days after today’s date.

• [24] Acceptance can be indicated within that timeframe by way of memorandum to the High Court Registry.

Solicitors:

Raymond Donnelly & Co., Christchurch

Copy To:

T Aickin, Barrister, Christchurch