R v Cassidy [2022] NZHC 2918 (8 November 2022)

Last Updated: 8 March 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-11754 [2022] NZHC 2918

THE KING

v

PAUL CASSIDY

Date of hearing:	8 November 2022
Appearances:	L P Radich for the Crown S Tait for Mr Cassidy
Date of sentence:	8 November 2022

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:

S Tait, Barrister, Auckland Kayes Fletcher Walker, Manukau

R v CASSIDY [2022] NZHC 2918 [8 November 2022]

[1] Mr Cassidy, as you know, I am today to sentence you on your convictions for intentional damage (x 3),¹ participation in an organised criminal group² and aggravated burglary.³

[2] Your guilty pleas to those charges followed my indication you were likely to be sentenced to imprisonment for a period of no more than five years,⁴ subject to any personal mitigating factors. Subject to any influential new information, that indication now is binding on me.⁵

Your offending

[3] I need first to cover off the background to your offending, to let people know the conduct for which I am now sentencing you.

[4] During daylight hours on 20 November 2020, there were a series of linked firearms incidents in Auckland’s Ōtara. These were in apparent inter-gang retaliation for actions carried out against another member of your gang, Michael Crawford, who led the offending. The incidents included drive-by shootings at three Ōtara addresses, leading to the intentional damage charges against you, and an armed home invasion at a fourth address, leading to the aggravated burglary charge against you. All were of properties associated with the other gang.

[5] You were a member of your gang’s Facebook Messenger group chat, on which the incidents were co-ordinated. You drove one of the vehicles, and owned the other, involved in the aggravated burglary. Together with others of your gang, you earlier had gathered at Mr Crawford’s home, from which vehicles dispatched in convoy to the respective addresses. And, obviously, you have pleaded guilty.

[6] People living at two of the targeted addresses have filed statements explaining the extreme terror they felt for themselves and their children and grandchildren at risk of being shot in the vicinity of their homes, including actual bullet damage to their

¹ Crimes Act 1961, s 269(1): maximum penalty, 10 years’ imprisonment.

² Section 98A: maximum penalty, 10 years’ imprisonment.

³ Section 232: maximum penalty, 14 years’ imprisonment.

⁴ R v Cassidy [2022] NZHC 1951 at [21].

⁵ Criminal Procedure Act 2011, s 116(2).

houses. Your offending had continuing impact on their feelings of safety and confidence in their neighbourhood for quite some time afterwards, pushing some to relocate. They say they should not have been put under those pressures. I understand their views of your offending, and encourage you also to reflect upon the impact of your offending from their perspective. I did not have those statements at the time I gave my sentencing indication, but there is nothing in them materially affecting my indication.

Personal circumstances

[7] I turn to your personal circumstances. You are 45 years old.

—criminal history

[8] You presently are serving eight years and eight months’ imprisonment for serious drugs and firearms offending in 2020. That is only the most recent chapter in a history of criminal offending since your late teenage years, you previously having been sentenced to nine years’ imprisonment with a minimum term of four years and six months for aggravated robberies with firearms in 2008. These episodes marked a material escalation in seriousness from your prior burglary and driving offending.

—PAC report

[9] For your sentencing, I have a pre-sentence report prepared by the Department of Corrections. You acknowledge your “key role in facilitating the [present] offending” by transporting co-offenders. You say you are trying to distance yourself from your former gang associates but that is complicated by prison life. Your main support is your partner and your brother and sister. You acknowledge your offending has damaged your relationships with your five children. You claim to be remorseful for your actions, and interested to engage in restorative justice with your victims. The report-writer assesses your risk of harm to others as high, your current offending escalating risk to the community from even your prior heightened risk, and recommends your further sentence of imprisonment.

—s27 report

[10] You asked I hear Jarrod Gilbert on your background and its relevance to your offending and sentence. From his interviews with you and your partner and sister, he suggests your unstable childhood and youth — in an abusive adoptive family, in impoverished, neglected and violent circumstances, driving you to protective and sustaining gang membership — materially contributed to your conduct in normalising its violence and criminality as a means to achieve ends.

Approach

[11] As I explained in giving my indication, sentencing involves two steps.⁶ First, I indicate what sentencing point offending of these types would attract. That involves identifying the aggravating and mitigating features of your offending. Second, I would adjust that starting point up or down to take into account your personal circumstances.

[12] The usual purposes and principles of sentencing are relevant.⁷ They include holding you accountable for the harm you have done and getting you to accept responsibility for it. Your sentence must be proportionate to the offending’s seriousness, consistent with others for similar offending and the least restrictive outcome appropriate in all the circumstances.

[13] Consistency is to be subject to your own role in the overall offending and those aggravating and mitigating factors personal to you.⁸

Starting point

[14] Of critical context here was Mr Crawford’s seven years and four months’ imprisonment sentence on his guilty pleas to three charges of the same intentional damage.⁹

⁶ Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

⁷ Sentencing Act 2002, ss 7–8.

⁸ R v Kohey (2003) 20 CRNZ 62 (CA) at [20].

⁹ R v Crawford [2022] NZHC 1588.

[15] Powell J there took the three shootings as the lead charges, for uplift by reference to the other offending (which, in Mr Crawford’s case, also included firearms and ammunition charges).¹⁰ The Judge took a starting point of six years’ imprisonment for Mr Crawford’s direct intentional damage offending,¹¹ uplifted by two years for each his criminal organisation participation and indirect aggravated burglary offending.¹² He arrived at that ten-year starting point with reference to comparable caselaw,¹³ the offending’s lack of any mitigating factors, and four aggravating factors, largely shared by your offending. Those are “brazen and reckless use of firearms in multiple suburban streets”, “in broad daylight with an absolute disregard for the public who were in the community at the time”, “on multiple days and at multiple locations, ultimately damaging more than nine properties and a vehicle”, and with “a high degree of planning and premeditation”.¹⁴

[16] The charges against you only relate to a single day’s mayhem, in which you played a lesser role than Mr Crawford’s lead. Nonetheless, direct intentional damage offending on that day only would justify a small reduction. You are convicted as a party to intentional damage offending, which means you share culpability, or responsibility or blame.

[17] My sentencing indication took a starting point of five years’ imprisonment for your intentional damage offending. I saw no reason to distinguish you from Mr Crawford on your alleged participation offending. That offending is not defined by the extent of your engagement in the intentional damage offending. Your participation is not otherwise distinct from Mr Crawford’s offending “carried out within [a gang] context and in the context of inter-gang violence”.¹⁵ For parity, I uplifted the starting point by the same two years’ imprisonment, which incorporates a measure for the totality of the offending.¹⁶

¹⁰ At [13].

¹¹ At [17].

¹² At [19] and [23].

¹³ At [14], citing R v Tamati [2012] NZHC 221, R v Jolley [2018] NZHC 93, R v Taipeti [2018]. NZHC 1482, and R v Waihape [2012] NZHC 198, each with six-year starting points except for the three-and-a-half year starting point for Jolley’s “foot soldiers”.

¹⁴ At [15].

¹⁵ At [19].

¹⁶ At [19].

[18] Mr Crawford’s two-year uplift for the aggravated burglary offending was combined with a fourth intentional damage offence, in neither of which did Mr Crawford “participate personally in the offending as it unfolded”.¹⁷ The summary of facts does not contend you personally participated in the aggravated burglary either. Although aggravated burglary is the more serious offence, and therefore could be thought to carry a larger proportion of the two-year allocation, my indication split the uplift at one year. Totality also was addressed by that approach.¹⁸

[19] At this point, then, I had arrived at a starting point of eight years’ imprisonment for you.

[20] I since have seen Venning J’s 19 October 2022 sentence of Adrian Awhi, another of your co-offenders, to 11 months’ home detention.¹⁹ The Judge preferred to take Mr Awhi’s participation charge as the lead charge,²⁰ accepting Mr Awhi’s responsibility was significantly less than yours,²¹ uplifting a three-year starting point by one year for the intentional damage offences and six months for the aggravated burglary (all ‘tempered’ for totality).²²

[21] Given Mr Awhi’s role essentially as a passenger in a car from which no other criminal conduct emanated, I do not see his offending as so ‘similar’ to yours that it is information materially affecting my indication.²³ I continue to be bound by my indication.

¹⁷ At [20] and [23].

18. My sentencing indication mistakenly referred to “aggravated robbery” charges, meaning ‘aggravated burglary’: R v Cassidy, above n 4, at [13].

¹⁹ R v Awhi [2022] NZHC 2711.

²⁰ At [30].

²¹ At [31].

²² At [33].

²³ Criminal Procedure Act, s 116(2).

Adjustment for personal circumstances

—aggravating factors

[22] My indication then noted, while your intentional damage offending is aggravated by its connection with your gang participation,²⁴ no further uplift was justified than was imposed for your participation offending.

[23] You have previous convictions for a 2008 aggravated robbery using firearms, which resulted in eight to nine-year sentences, including a minimum term of imprisonment exceeding four years, which I took into account.²⁵ The commonality of your resort to firearms then and now is further aggravating. As obviously engaged here, public protection was a factor to uplift for your previous convictions, justifying at least a six-month uplift to your starting point,²⁶ bringing you to eight-and-a-half years’ imprisonment.

—mitigating factors

[24] By reason also of parity with Mr Crawford, I allowed you the full 25 per cent discount for your guilty pleas. And I applied a further 16-month discount to deal with the issue of totality with your current prison sentence.²⁷ Thus I indicated your likely five years’ imprisonment, but subject to “any other personal mitigating factors” open to being drawn from reports then to be made available to me.

[25] Sentencing principle is to allow a discount for credible background factors causing impaired choice and (therefore) diminished moral culpability.²⁸ I have no difficulty in concluding your background very materially impaired your ‘choice’ to avoid offending. Your background’s disadvantage is obvious. Discounts of 15 per cent routinely are made under this head, with room for more in appropriate circumstances.²⁹ I will allow a 15 per cent discount here also.

²⁴ Sentencing Act, s 9(1)(hb).

²⁵ Section 9(1)(j).

²⁶ Enoka v R [2018] NZCA 185 at [28]–[29].

²⁷ Section 86(2).

²⁸ Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [161]–[162]; Poi v R [2020] NZCA 312 at

[32]–[51]; and Carr v R [2020] NZCA 357 at [55].

²⁹ Tipene v R [2021] NZCA 565 at [22]–[23], citing Carr v R, above n 28, at [65]–[66].

[26] Your counsel, Mr Tait, argues for a 5 per cent discount also for your genuine remorse. I do not find that demonstrated in your case, but only given lip-service. Words are easy: “tangible evidence” is necessary;³⁰ and not established here by your concern for “repercussions for [yourself] or [your] family”. I have my doubts your indicated preparedness to participate in restorative justice can be aligned with your difficulties in avoiding gang loyalties in prison. I give no discount under this head.

[27] I can identify no other applicable head for mitigatory discount in your case. That brings me to an end sentence of four years and three months’ imprisonment. Given the offending is different from that for which you presently are imprisoned, and I have made a substantial deduction on account of totality, the sentence is to be served in addition to your current sentence, that is, to be served cumulatively on your current sentence.³¹

Sentence

[28] Mr Cassidy, please stand. On your convictions, I sentence you to four years and three months’ imprisonment to be served cumulatively on your present sentence. You may stand down.

—Jagose J

³⁰ Moses v R, above n 6, at [24].

³¹ Sentencing Act, ss 83–84.