THE QUEEN v DANIEL BRUCE LAWS [1999] NZCA 43 (31 March 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 401/98

THE QUEEN

V

DANIEL BRUCE LAWS

Hearing:	31 March 1999 at Christchurch
Coram:	Thomas J Keith J Heron J
Appearances:	D C Ruth for Appellant
	C J Lange for Crown
Judgment:	31 March 1999

judgment of THE COURT DELIVERED BY tHOMAS J

Offence and sentence

[1] The appellant, Mr Laws, a 20 year old male,was charged with a number of offences as a result of an offending spree which took place in Christchurch on the morning of 26 August 1998.The offences were:unlawful possession of a pistol;discharge of a pistol without reasonable excuse;aggravated burglary; kidnapping;two counts of unlawfully taking a motor vehicle; driving while disqualified;two counts of presenting a pistol;dangerous driving; threatening to kill;using a pistol to commit a crime;and using a firearm against a police officer.Mr Laws pleaded guilty on all counts, and was sentenced to a total period of ten years' imprisonment.Mr Ruth, who appears for Mr Laws, appeals against that sentence.

Background facts

[2] Early on the morning of 26 August 1998 the appellant discharged a shotgun through the window of the flat he had been renting. He then left the flat in order to obtain a vehicle. Unable to gain entry to the car parked in the driveway, he discharged the gun through the driver's side window, also shattering the passenger's side window.

[3] He then walked along the street and knocked on the door of another house at 7 a.m.A woman who was at home alone answered the door.Mr Laws pointed the shotgun at her and demanded that she give him a set of car keys. She failed to locate any until Mr Laws put the barrel of the shotgun under her chin. He instructed her to accompany him outside and into one of the vehicles in the driveway. He then drove away towards the City taking her as a hostage. At the time Mr Laws was disqualified from driving.

[4] While stopped at a set of traffic lights, Mr Laws pointed the gun at two women in an adjacent car. He drove the wrong way down a one-way street before slowing to let the woman get out of the car in the central City. A couple of blocks later he entered an intersection against a red light and collided with a truck, causing damage to both vehicles. An off-duty police officer heard the accident and approached the car, whereupon Mr Laws pointed the gun at him and threatened to shoot him.Mr Laws then attempted to move the vehicle back into the intersection from where it had come to a stop on the footpath. The police officer approached him once more and Mr Laws again pointed the gun at him and threatened to shoot him.Mr Laws then abandoned the car.

[5] Mr Laws tapped the barrel of the gun on the driver's side window of a passing vehicle, but the occupants drove away leaving him yelling at them. He continued walking along the street and entered the covered parking lot of the Central Post Office building. He got into a rural delivery vehicle, and pointed the gun at its owner when he approached. Mr Laws then drove through two barriers at the exit to the carpark, damaging the vehicle. The vehicle stopped just around the corner and he abandoned it in the middle of the road.

[6] By this time police officers had cordoned off the area. They called upon Mr Laws to put down his weapon.He refused to do so.Instead, he raised it and aimed it at the police officer who had called out to him.As Mr Laws levelled his gun at the Police for a second time they fired upon him, disabling him and taking the gun.The gun was found to contain a live cartridge.

[7] Mr Laws paternal grandfather, to whom he had been very close, had died two weeks prior to this series of incidents. Unable to cope with grief, he had indulged excessively in alcohol and cannabis. Three or four days before the incidents he had begun taking capsules of a synthetic opiate drug, Dextromethorphan, commonly known as DXM. He had taken perhaps 30 capsules in that period. In excessive dosages the drug induces auditory hallucinations and delirious reactions.Mr Laws had taken it with the intention of experiencing a delirium. On the day in question he was in a delirious state and had formed paranoid ideas that a gang with which he was associated had waged and won a war in New Zealand, and possibly in the world. He believed that he had to get to an address in Hornby in order to be with his associates.

Judge's sentencing remarks

[8] The Judge's first observation was that when these offences occurred, Mr Laws was on bail for two offences which had occurred a fortnight earlier. He then remarked upon the large volume of material that was before him in the sentencing context, including a psychiatric report, a full pre-sentence report, victim impact statements and references. The Judge expressed the view that Mr Laws' previous offending, although less serious than the present offences, was significant as it included convictions for both dishonesty and violence.

[9] While fully recognising that Mr Laws had quite serious substance abuse problems, the Judge observed that he had not taken any opportunities to address these problems in the past. Further, he had taken DXM with the intention of experiencing the known deleterious effects, and so had to accept responsibility for that situation and its consequences. The psychological impact upon the victims, particularly the victim of the kidnapping incident, was considered by the Judge to be an important issue. Also important was the great potential for serious injury or fatality, in that Mr Laws' actions could have had traumatic consequences for an innocent person or persons.He had put at risk the general public safety.

[10] The Judge summarised the relevant aggravating factors as being the danger to the public;the fact Mr Laws acted in a self-induced drugged state; the taking of a hostage;the effect on the victims;the fact he committed a number of offences over a short period of time;and the fact the offending occurred while Mr Laws was on bail.

[11] In terms of imposing a sentence, the Judge elected to fix the appropriate total sentence for all offences and impose that sentence on the most serious of the charges.He took a starting point of 12 years' total imprisonment and reduced it to ten years on account of Mr Laws' early guilty pleas which had saved considerable public expenditure by avoiding both a preliminary hearing and a trial.

[12] The Judge concluded by stipulating the sentences for each individual offence. On the charges of aggravated burglary, kidnapping, committing a crime with a firearm, and using a firearm against a police officer the sentence imposed was ten years' imprisonment. On the charges of unlawful possession of a pistol, unlawfully taking a motor vehicle, threatening to kill, and driving while disqualified the sentence was two years' imprisonment, to be served concurrently. On the remaining charges (presenting a pistol without lawful purpose, discharging a pistol without reasonable excuse, and dangerous driving) the sentence was three months' imprisonment, also to be served concurrently.

Counsel's arguments

[13] Mr Laws appeals on the basis that the sentence is manifestly excessive. His counsel, Mr Ruth, asserted that the starting point of 12 years for the more serious offending is far too high.He observed that, in respect of aggravated burglary, kidnapping and using a firearm against a law enforcement officer the maximum sentence available is 14 years' imprisonment.The maximum available for the charge of committing a crime with a firearm is 10 years' imprisonment.

[14] Mr Ruth recognised that, pursuant to s 12A Criminal Justice Act 1985, the fact that the offending occurred in a drug-induced state could not be considered a mitigating factor. He nevertheless explained the details of the drug in question.Its abuse induces delusional thoughts with three levels of effect being recognised.In all likelihood Mr Laws was affected at the highest of these levels.He emphasised that Mr Laws was labouring under the delusion that he was in the midst of a war, and that this no doubt influenced his behaviour on the day in question.Mr Ruth also observed that the relevant authorities are seeking to have the drug classified under the Misuse of Drugs Act 1975.

[15] With reference to Mr Laws' previous record, Mr Ruth emphasised that his client was only 20 years old and that, although he had a number of previous convictions, the list was not particularly long.He had not previously been imprisoned.Mr Ruth also referred to the fact that Mr Laws was the product of a broken home and had suffered abuse himself.

[16] Mr Ruth concluded by submitting, with reference to R v Johanssen 15 CRNZ 111, that the proposed sentence would have a "crushing effect" in that it would deprive Mr Laws of any hope of rehabilitation, a need clearly referred to in the psychiatric report.He urged that the sentence be substantially reduced.

[17] Mr Lange, appearing for the Crown, accepted that Mr Laws co-operated with the Police and entered an early plea of guilty.He stressed, however, that there were a number of aggravating features associated with the offending:Mr Laws was on bail at the time;13 offences were committed in all over a short period of time;the offending including the taking of a hostage;and during the offending Mr Laws was in a self-induced delusional state after taking DXM. That this drug can result in delirious effects was known to Mr Laws.In the report of the Regional Psychiatric Service the Director commented that it was clear from Mr Laws description that he took the drug with the intention of experiencing a delirium.

[18] Mr Laws must accept the consequences of the effects of such a drug.The potential for serious injury or even a fatality was high.Mr Laws was delusional and brandishing a loaded sawn-off shotgun, and there was a significant danger to the public as the offending occurred in public areas in the central City.Eight victims in all were involved, and while none received any physical injury they all reported varying degrees of emotional and psychological injury.All who came into contact with Mr Laws feared for their life and the life of others around him.The ongoing effects can be expected to be significant.

[19] Mr Lange noted that Mr Laws has a previous history involving both dishonest and violent offences.His previous convictions include three convictions for common assault, a conviction for disorderly behaviour likely to result in violence, a conviction for possession of an offensive weapon, three convictions for wilful damage and one conviction for possession of a prescription medicine.

[20] Counsel also pointed out that Mr Laws has received a number of opportunities from the Court, receiving sentences of periodic detention, supervision, and fines, but he has not yet received a term of imprisonment.In May 1997 Mr Laws received a strong recommendation following a psychiatric assessment to abstain from psycho-active substances.Previous assessments have all indicated that he had substance abuse problems.He chose, however, to deliberately disregard those warnings.He has had opportunities to address his substance abuse problems.As noted in the report of 10 September 1998, attempts at treatment for Mr Laws have been unsuccessful due to his non-participation.In 1997, following a CADS assessment, he had the opportunity to take part in a programme, but declined to do so.Finally, the psychiatric report records that there is little evidence of remorse on the part of Mr Laws.He is more concerned, it seems, with his own plight.

The Court's decision

[21] This appeal is not without difficulty.The sentence of ten years imprisonment is a severe sentence, but we are not persuaded that it was outside the sentencing range open to the sentencing Judge.The raft of offences committed can only be described as exceptionally serious.They include aggravated burglary, taking or kidnapping a hostage, using a firearm against law enforcement officers, and threatening to kill.We agree with Mr Lange that the potential for serious injury or fatality was high, much of the offending taking place in a public area of the City.Not only was Mr Laws in a delusional state, but he was also driving a vehicle in an exceptionally dangerous manner while brandishing a loaded firearm.Indeed, it is fortuitous that no shots were fired.When called upon by armed Police to lay the weapon down he levelled the shotgun at the Police.At that point Mr Laws was fired upon by the Police thus preventing the possibility of a shot being fired by him.Nor are we prepared to overlook the significant harm to the persons involved in this rampage of offending.The emotional harm to the victim of the kidnapping is particularly disturbing.

[22] Counsel for both Mr Laws and the Crown advised that there were few or no cases which could be cited to assist the Court to determine the appropriateness of the sentence.We agree.Having regard to the bizarre circumstances of this case there does not appear to be any comparable case which would be of assistance.

[23] The Court has therefore concluded that because of the seriousness and prolonged nature of the offending the sentence of 10 years imprisonment is not manifestly excessive.Any longer sentence would be to fail to have regard to the mitigating factors pressed by Mr Ruth, but the circumstances of the offending and aggravating factors are sufficiently serious to outweigh those considerations and to lead us to the conclusion that the sentence was within the sentencing Judge's discretion.

[24] The appeal is therefore dismissed.

Solicitors

Layburn Hodgins, Christchurch for Appellant

Crown Solicitors, Christchurch for Crown