McAllister v R [2023] NZHC 3705 (14 December 2023)

Last Updated: 8 January 2024

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

CRI-2023-409-221 CRI-2023-409-222 [2023] NZHC 3705

BETWEEN	CRAIG MCALLISTER Appellant
AND	THE KING Respondent

Hearing:	13 December 2023
Appearances:	R J T George for Appellant W J S Mohammed for Respondent
Judgment:	14 December 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 14 December 2023 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

MCALLISTER v R [2023] NZHC 3705 [14 December 2023]

Introduction

• [1] Craig McAllister was sentenced to two years and nine months’ imprisonment by Judge J A Farish¹ on one charge of recklessly discharging a firearm², two charges of possession of an offensive weapon³ and one charge of unlawful interference with a motor vehicle.⁴ He appeals that sentence solely on the ground that the starting point adopted was too high.

Facts

Possession of an offensive weapon (x2)

• [2] Around 6:40 am on 10 February 2023, Mr McAllister walked down the driveway of a Tuam Street multi-flat complex. He was carrying a knife, metal baseball bat, vice grips, wrench and a crowbar. He knocked on the windows and door of one unit and shouted “I have something I owe you”. The victim saw Mr McAllister holding a knife and called the police who arrived shortly afterwards.

Unlawful interference with a motor vehicle

• [3] Mr McAllister was walking down the drive toward the road when police arrived. Police discovered that Mr McAllister had broken into the victim’s vehicle. He had ripped off the ignition housing and attempted to remove the ignition barrel out of the socket. The victim’s driver’s licence, USB drive and eftpos card were found in Mr McAllister’s pockets.

Discharging a firearm with reckless disregard

• [4] On 12 May 2023, another victim arranged the purchase of $50 worth of cannabis from Mr McAllister. That evening, the victim gave Mr McAllister two legitimate $5 notes and a counterfeit $20 note in exchange for the cannabis. The notes were rolled up in a manner that meant Mr McAllister was not aware of the counterfeit $20, or that the amount paid was not $50.

¹ R v McAllister [2023] NZDC 21540.

² Crimes Act 1961, s 198(2); maximum penalty seven years’ imprisonment.

³ Section 202A(4)(a); maximum penalty three years’ imprisonment.

⁴ Section 226(2); maximum penalty two years’ imprisonment.

• [5] Around 7:30 pm the next evening, Mr McAllister was driven to the victim’s address by his daughter’s associate, with his daughter also being present. The victim was at home with his partner, her three children and a friend of her daughter who was visiting.

• [6] The victim’s property is fully enclosed by a 1.8 m fence, including a locked gate and doorbell. Mr McAllister rang the doorbell of the property when he arrived, carrying with him a sawn-off shotgun concealed in a bag. The victim came outside while Mr McAllister yelled at him. When he inquired “who’s that?”, Mr McAllister replied “you’ll know me” before climbing up the fence so that he could see over.

• [7] As he stood on the fence, Mr McAllister took out the shotgun and pointed it at the victim who stood on the front step of his home. When he saw the firearm, the victim stepped back into the house. Mr McAllister then fired the shotgun, shattering the kitchen/dining room window. The curtains were drawn at the time, meaning Mr McAllister could not have been aware of whether or not anyone was in those rooms. Mr McAllister then left the property.

• [8] Mr McAllister pleaded guilty to all charges by the time of sentencing.

Victim Impact Statement

• [9] The victim’s partner’s eight-year-old daughter and the daughter’s friend were both traumatised by the event for weeks after. The event has led to a reluctance on the daughter’s part to have friends over and on the mother’s part to let the children leave the property without her.

• [10] The broken windows were not able to be repaired until mid-August, causing the family to suffer in the colder months. There have also been other impacts on the victim’s family including receiving abuse on social media for the consequences suffered by Mr McAllister.

District Court decision

• [11] The District Court Judge found that the serious nature of the offending meant imprisonment was the only appropriate sentence.

• [12] With reference to R v Hines,⁵ the Judge noted the following aggravating factors: the unlawful modification of the firearm, the fact the shot was fired in a residential street, the premeditation of the offending and the close proximity of the shooting to the house, with the subsequent high risk of harm to those nearby. Considering R v Hines, and the maximum penalty of seven years’ imprisonment, the Judge took a starting point of four years’ imprisonment.

• [13] A six-month uplift was added for the 10 February offending. An additional 10 per cent uplift was imposed because, at the time of the firearm offending, Mr McAllister was on bail and subject to a sentence of supervision. It also recognised Mr McAllister’s considerable prior history, with the Judge emphasising Mr McAllister’s 2022 conviction for unlawful possession of a firearm.⁶

• [14] The Judge allowed a full 25 per cent credit for Mr McAllister’s guilty pleas.

• [15] While acknowledging that Mr McAllister’s life had been “marred by institutionalisation”, the Judge also noted Mr McAllister’s inability to maintain any real rehabilitative gains and his previous opportunities to do so under supervision.⁷ The Judge recorded Mr McAllister’s failure to finish two rehabilitative courses, including at Odyssey House, as well as his three failed attempts at the methadone programme, being discharged each time for illicit drug use. Taking all of this into account, the Judge allowed a 15 per cent credit.

• [16] Recognising the impact of the death of two of Mr McAllister’s sons in 2019, the Judge allowed a further three-month credit to reduce the sentence to one of 33 months’ imprisonment. The Judge noted that while she would not be sending Mr McAllister to Odyssey House, the Parole Board might consider doing so.

⁵ R v Hines CA12/99, 12 March 1999.

⁶ R v McAllister, above n 1, at [12].

⁷ At [14].

• [17] He was then sentenced to two years and nine months’ imprisonment on the lead firearm charge with a concurrent sentence of six months on the other charges.

Principles on appeal

• [18] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁸ As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.⁹ It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.¹⁰

Submissions

Appellant’s submissions

• [19] Mr George, appearing for Mr McAllister, submits a three-year starting point was appropriate. While accepting the aggravating factors highlighted by the Judge, Mr George draws attention to the fact that this offending did not occur in the context of gang violence, as firearm offending often does.

• [20] Mr George takes no issue with the balance of the Judge’s sentence. If his submission on the starting pointed was accepted, the end-sentence would be two years and two months’ imprisonment.

Respondent’s submissions

• [21] Mr Mohammed, appearing for the Crown, highlights Mr McAllister’s history of offending which includes 97 convictions, eight of which were for firearm or weapons offences and 23 of which occurred on bail. He submits the starting point

⁸ Criminal Procedure Act 2011, ss 250(2) and 250(3).

⁹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

¹⁰ Ripia v R [2011] NZCA 101 at [15].

taken by the Judge was appropriate and a greater uplift to reflect the 10 February offending was available.

Analysis

• [22] This appeal hinges on whether the starting point adopted for the lead charges was excessive.

• [23] There is no guideline judgment for offending of this nature. Comparing cases where the circumstances can so widely differ between them can be a difficult exercise. Nonetheless, a review of the cases cited by counsel indicates the starting point was within range.

• [24] This Court adopted a starting point of three years and six months’ imprisonment in R v Jolley where the appellant (Mr Dashwood) was part of a group that travelled to an address affiliated with a rival gang to intimidate the occupants.¹¹ When an altercation took place, the appellant used his associate’s shotgun to fire a shell in the direction of the house. Inside, people were assisting the tenant in packing up her things.

• [25] While acknowledging that the presence of gang violence was an aggravating factor in Jolley, Mr Mohammed notes that there are several aggravating factors in this case that were not present in Jolley:

(a) the appellant in Jolley was not “involved in planning or organising the attack”¹² as opposed to Mr McAllister’s offending which saw him enlist the services of his daughter and her friend to transport him to the property;

(b) the appellant in Jolley did not bring the weapon to the property, but “grabbed” it from his associate to fire the single shot – Mr McAllister brought his firearm to the property in question and then used it once he arrived there; and

¹¹ R v Jolley [2018] NZHC 93.

¹² At [59].

(c) the appellant in Jolley used an unmodified shotgun as opposed to Mr McAllister’s sawn-off shotgun, an inherently more dangerous firearm.

• [26] Furthermore, in Jolley Mr Dashwood’s shot was not identified as having a lasting effect by itself.¹³ Here, the damage to the property led to a difficult winter for the victim’s family. In addition, the victim’s children were terrified and there have been ongoing consequences for them. Taking into account the greater degree of premeditation, the nature of the weapon used, and the harm done, I accept a starting point higher than the three years six months adopted in Jolley can be justified.

• [27] Mr George referred to Gathergood v R, a Court of Appeal decision where the appellant’s starting point of three years and nine months’ imprisonment was reduced on appeal to three years, having regard to the fact the appellant was not the one who fired the weapon at another car, but the driver of the vehicle who was driving away when the shot was fired.¹⁴ The fact the appellant performed a secondary role in the commission of the same offence and received a three-year starting point fortifies my conclusion that the starting point adopted here when Mr McAllister independently discharged the firearm, was appropriate.

• [28] A starting point of two years and nine months for the defendant in Stirling v Police was considered “well within the available range”.¹⁵ That suggests the starting point in that case was generous. I also note the firearm involved was a .22 air rifle as opposed to a sawn-off shotgun.

• [29] In R v Templeton the appellant received a starting point of five years for orchestrating a retaliatory raid on the complainant in relation to the suspected theft of cannabis.¹⁶ The appellant in Templeton did not himself fire a shot, but angled his vehicle to allow his associates to release a volley of shots at a car pursuing them.

¹³ R v Jolley, above n 11, at [9] and [57]-[58].

¹⁴ Gathergood v R [2010] NZCA 350 at [27]–[28].

¹⁵ Stirling v Police HC Nelson CRI-2011-442-37, 8 December 2011, at [8].

¹⁶ R v Templeton (CA460/05, 6 July 2006) at [8].

• [30] I consider Mr McAllister’s offending is more serious than that of the appellant in Stirling v Police and only marginally less serious than that of the ringleader in R v Templeton. The cases cited by counsel record starting points of between three and five years’ imprisonment for offending that varies in gravity.¹⁷ Having regard to those cases, I consider a starting point of four years for this offending was within range.

• [31] In any event, the ultimate question is whether the sentence imposed was manifestly excessive. This Court must find the overall sentence to be demonstrably unfit and will not interfere without that justification.¹⁸ Even if I had assessed the starting point to be high, generous discounts were applied by the Judge, and I consider the end sentence to be entirely appropriate.

• [32] Accordingly, the appeal is dismissed.

Solicitors:

Crown Solicitor, Christchurch

Copy to:

R J T George, Barrister, Christchurch

¹⁷ R v Abbott HC Rotorua CRI-2005-077-1271 (9 February 2007); R v Templeton, above n 16; and

R v Hines above n 5.

¹⁸ R v Boyd [2004] NZCA 342; (2004) 21 CRNZ 169 at [38].