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The Queen v Templeton and ors [2006] NZCA 158 (6 July 2006)

Last Updated: 19 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA460/05
CA480/05
CA484/05

THE QUEEN

v

MICHAEL FRANK TEMPLETON
LIAM THOMAS ROCHE
TODD GORDON BROOKING

Hearing: 27 June 2006

Court: Glazebrook, John Hansen and Potter JJ

Counsel: L C Rowe for Templeton and Roche
O S Winter for Brooking
A Markham and M Inwood for Crown

Judgment: 6 July 2006

JUDGMENT OF THE COURT

A The appeals of Mr Templeton and Mr Roche against conviction are dismissed.
B The appeals of all appellants against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Table of Contents

Para No
Introduction [1]
Charges [2]
Sentences [7]
Background [8]
Appeal against conviction by Mr Templeton and Mr Roche [12]
Juror issue [14]
Submissions [26]
Discussion [32]
Counsel incompetence - Mr Templeton [37]
Discussion [47]
Conclusion [58]
Appeals against sentence [59]
Mr Brooking [63]
Mr Templeton [82]
Mr Roche [87]
Result [89]

Introduction

[1] Mr Templeton and Mr Roche appeal against conviction and sentence. Mr Brooking appeals against sentence but reserves leave to appeal against conviction out of time if the appeals of Mr Templeton and Mr Roche against conviction succeed on grounds that apply to Mr Brooking.

Charges

[2] The three appellants were charged as parties under s 66(2) Crimes Act 1961.
[3] On the morning the trial commenced (3 October 2005) Mr Brooking entered guilty pleas to the following charges:

Count 1 – unlawful possession of a firearm (.22 calibre Stirling sawn-off rifle)
Count 2 – unlawful possession of a firearm (.22 calibre Anshuntz rifle)
Counter 3 – unlawful possession of explosives (ammunition)
Count 4 – possession of offensive weapon (Samurai sword)
Count 5 – possession of an offensive weapon (knife)
Count 6 – possession of an offensive weapon (baseball bats)
Count 7 – possession of disabling substance (pepper spray). (Only Mr Brooking charged).

[4] He proceeded to trial with Mr Templeton and Mr Roche on two further charges:

Count 8 – discharge of firearm with intent to do grievous bodily harm;
Count 9 – discharge of firearm with reckless disregard of safety.

[5] Following trial by jury all three appellants were acquitted on Count 8 and convicted on Count 9. The jury was hung on Count 5 and Mr Templeton and Mr Roche were discharged on that count.
[6] Mr Templeton and Mr Roche were also convicted on Counts 1, 2, 3, 4, and 6. They were not charged with Count 7.

Sentences

[7] Mr Brooking was subsequently sentenced to four and a half years imprisonment cumulative on a sentence of three years eight months imprisonment imposed in respect of drug related charges, resulting in a total sentence of eight years two months imprisonment.

Mr Templeton was sentenced to four years imprisonment.

Mr Roche was sentenced to three years imprisonment.

Background

[8] On the evening of Tuesday 11 May 2004 the three appellants, in the company of a fourth unidentified man, travelled to Apiti near Fielding in Mr Brooking’s white van. The purpose of the trip was to exact revenge on an Apiti resident, Mr Leon Chauval, in relation to the suspected theft of cannabis. The rear windows of the van were blacked out, and its rear seating had been removed. The four men wore dark clothing, and balaclavas or beanies. They took with them at least two .22 calibre rifles (one of which was sawn-off), a large quantity of ammunition, a samurai sword, and softball bats. Mr Brooking also had a canister of pepper spray in his pocket.
[9] Shortly after 10pm they arrived at Mr Chauval’s address and parked alongside. Mr Chauval, who had received some prior warning of what was likely to occur, came out of his house armed, he said, with a torch and a baseball bat. Shots were fired. Mr Chauval claimed he was fired upon by those in the van, but the appellants maintained it was Mr Chauval who fired at them (and there was some evidence to support the latter possibility). The van then drove off, pursued by Mr Chauval and a neighbour, Mr Lawler, in a Holden commodore.
[10] Mr Brooking then turned the van around sharply so it was facing the commodore. A volley of shots was fired at the car. The van turned around again and drove off at speed. Mr Chauval continued his pursuit and rammed the van from behind in an attempt to disable it. Further shots were fired at his vehicle from both sides of the van, causing Mr Chauval to give up the chase. Forensic evidence showed at least four bullets had struck his vehicle, and that at least ten shots were fired from the firearms in the van.
[11] The van was spotted by Police patrols and pursued. It was driving erratically and swerving across the road, and as it did so, the offenders jettisoned various items including weapons and ammunition, which were subsequently recovered by Police. The van eventually stopped at a bridge, and the four men jumped out and ran in different directions. Mr Brooking was located hiding in nearby bush by a Police dog handler. Mr Templeton and Mr Roche went over a steep bank and became stranded on a ledge, and needed to be rescued by Police search and rescue. The fourth man was not located.

Appeal against conviction by Mr Templeton and Mr Roche

[12] Of the grounds of appeal against conviction stated in the notices of appeal only one was advanced at the appeal hearing:

There was a miscarriage of justice in that the jury, or at least one member of the jury, had made his own inquiries about the law.

[13] Mr Templeton also wished to advance a further ground of appeal, namely that his counsel Mr Mason made a radical error in not calling Mr Templeton to give evidence at his trial. Leave to advance this further ground of appeal was granted.

Juror issue

[14] The background facts relevant to this issue do not appear to be in dispute. They are mainly recorded in a memorandum by junior counsel for the Crown, Mr P Murray, prepared for the purposes of this appeal. There was no dissent by counsel to the contents of this memorandum.
[15] On the final day of trial, 12 October 2005, following the summing up of Judge N R Dawson to the jury in the District Court at Palmerston North, the Court learned from the Foreman that one of the jurors had brought photocopies from a law book to the Court at an earlier point in the trial.
[16] The Judge conferred with counsel in Chambers, following which the jury were brought back into Court and the Judge directed them that he understood a juror may have had copies of a law book, that they were not to conduct their own inquiries, that what he (the Judge) said about the law was authoritative and they must accept it, and that the jury were the sole judge of the facts in the light of the law as explained by him. The Judge directed that any reference to other materials must cease immediately and not continue. The Court then adjourned for lunch.
[17] After lunch the Judge again convened in Chambers with counsel to provide the opportunity for counsel to raise any other matters relevant to this issue. Following submissions, the Court adjourned so that research could be conducted on whether the Judge should take one juror aside to discuss the nature of the material he had accessed and the use he had made of it in the situation that the jury had retired to consider their verdict when this issue arose.
[18] The Crown located and referred to the Judge R v N (2005) 21 CRNZ 621. The Judge then proposed talking to the juror involved in the presence of the accused and asking questions of the juror, but not permitting counsel to do so. Following further discussion and at the request of counsel for Mr Roche, the Judge sent a written question to the Foreman of the jury as to why the Court had not been informed until that day, that on at least one day during the previous week a juror had photocopies of the law book with him or her in the Court.
[19] The Foreman’s answer was that on a day in the previous week he had seen the juror reading photocopied pages quietly to himself in the corner during a lunch break. There was no indication from him to anyone in the room as to the content of the pages. The Foreman became aware that the pages could be copies of pages from a law book when the juror mentioned in passing that:

I’ve read or copied (or words similar) 20 pages (approx) of some author on some legal description and I (either) haven’t been able to finish it or haven’t been given the answer by the text.

[20] The Foreman also stated that he did not believe the juror had influenced other jury members "until today" and that he (the Foreman) did not know whether the content of the pages had assisted the juror or not.
[21] The Judge, without opposition from counsel, then directed a further question to the Foreman to ascertain what was meant by the statement that the Foreman believed the juror had not influenced other jury members "until today". The Judge specifically asked whether the juror had influenced other jurors during the course of that day.
[22] The answer from the Foreman was in the affirmative, to the extent that other jury members were interested to hear the outcome of the question the juror asked, which had been posed to the Judge (the question related to the point at which possession of the firearm was to be determined – in the van, before, or during). The Foreman stated that he did not believe that the juror had persuaded any jury members to vote one way or the other or how to vote. He commented that the juror:

... partakes of muttered technical comments but is one of the more forceful members of the jury,

and that the juror had commented:

... you could not make me change my mind (if I thought one thing or the other was right).

[23] There were then further discussions by the Judge with counsel, following which counsel for the Crown, Mr Roche and Mr Brooking were agreed that jury deliberations should continue. Mr Mason for Mr Templeton did not oppose.
[24] Before the Court resumed there was a further communication from the Foreman requesting that the Judge pose a question to him as to whether anybody else on the jury had read, saw or was informed of the content of the photocopies.
[25] With the concurrence of counsel, the Judge determined to answer the Foreman’s question by directing the jury again that what he said about the law was authoritative and must be accepted by them. Also to remind the jury to listen to each other, to take account of others’ views and not to let any one person dominate. The Judge read out to counsel the direction he intended to give. There was no objection by any counsel.

Submissions

[26] Mr Rowe for the appellants accepted that two directions were given to the jury by the trial Judge and that the direction given immediately before lunch was specific in directing the jury to disregard extraneous material and included specific reference to copies of a law book a juror may have had.
[27] Nevertheless, he submitted that assuming advice against reference to extraneous material had been included in the Judge’s opening remarks (which was not known) it was apparent that the jury had disregarded this advice and it appeared that there was continuing discussion amongst the jury after the Judge’s direction because of the questions from the Foreman that followed. He submitted that the point had been reached where it was necessary for the Judge to question the juror to ascertain to what information the juror had had reference, and what he had said about it to other members of the jury. He noted that the Foreman reported the juror in question as being "forceful".
[28] He acknowledged that ultimately counsel had not required the Judge to take that course of action, although he considered it significant that some counsel had changed their stance significantly during the course of discussions on the issue. He referred to R v Smith, R v Mercieca [2005] 1 WLR 704 at [23] for authority that the ultimate responsibility to determine what course to take rested with the Judge, while acknowledging that the assent of counsel was a relevant factor to be taken into account in considering the justification for the Judge’s choice of his course of action.
[29] The Crown did not dispute that what occurred in this case was misconduct on the juror’s part and an irregularity in the trial, but the Crown submitted that no miscarriage of justice has occurred. The trial Judge followed the procedure suggested in R v N and what took place was with the concurrence of all counsel. Further, the jury received clear and appropriate directions on two separate occasions during the course of their deliberations. It was submitted that this situation could be distinguished from irregularities discovered after verdict, although even in such a case it did not follow that a miscarriage of justice has occurred. Here the issue came to light at the beginning of the jury’s deliberations and was dealt with promptly by the trial Judge who issued two clear directions to the jury relevant to the issue, approximately five hours apart.
[30] It was significant, submitted the Crown, that all three defence counsel appear to have agreed that there was no need to question the juror and that the deliberations should continue, after the Judge had raised with counsel, following a perusal of R v N, the possibility of questioning the juror.
[31] The Crown further submitted that this was not a case of serious misconduct by a juror. Although in the absence of questioning it was not clear exactly what material the juror had referred to, it appeared that it was relevant only to the first question put to the Judge by the jury which related to mens rea in relation to the first count in the indictment, possession of a firearm. The response by the Judge to such a situation must always depend on all the circumstances of the case but a paramount concern must always be that inquiry of an individual juror may put at risk the independence of the jury’s deliberative process.

Discussion

[32] When juror misconduct is in issue, as a threshold requirement there must be a suspicion on reasonable grounds that the misconduct of the juror may have influenced the verdicts: R v Norton-Bennett [1990] 1 NZLR 559. Here the juror’s actions appeared to relate to the narrow issue of mens rea in the possession of firearms charges, which became the subject of the first question from the jury to the Judge and was answered by him.
[33] While the Judge may have decided to make inquiry of the juror in the presence of the accused and counsel but in the absence of the other jurors, as to the nature of the juror’s inquiry (see R v N), whether that is an appropriate course to follow will depend on all the circumstances of a particular case. The Judge will need to be cautious in determining upon such a course of action because, as was stated in R v Smith, R v Mercieca, and confirmed in R v C CA126/04 18 April 2005 as principles applicable in New Zealand:
 The general rule is that the Court will not investigate, or receive evidence about, anything said in the course of the jury’s deliberations while they are considering their verdict in their retiring room ...
 When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors, Judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner. This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence.
[34] Here, the issue came to light at the beginning of the jury’s deliberations. The Judge had the opportunity, which he took, to deal with it immediately. He conferred with counsel and received the benefit of their submissions. Ultimately counsel, presumably having taken instructions from their respective clients, concurred in the course of action proposed by the Judge, namely to give firm directions to the jury that what he said about the law was authoritative and that they must accept it. Further, in the case of the first direction given immediately prior to lunch on 12 October 2005, specifically that they must not refer to other materials and that any reference must cease immediately and must not continue.
[35] The Judge had the endorsement of counsel for the course of action he took. There is no suggestion that counsel acted contrary to the instructions of their clients nor that they were incompetent in the manner in which they dealt with the issue at trial. It is inappropriate that on appeal following a change of counsel, it should now be contended that the course of action at trial resulted in an unfair verdict.
[36] We are satisfied that in this respect there has been no miscarriage of justice.

Counsel incompetence - Mr Templeton

[37] Mr Rowe, Mr Templeton’s counsel on appeal accepted on the authority of R v Sungsuwan [2005] NZSC 57 that the focus is not on the conduct of trial counsel but whether the absence of Mr Templeton’s evidence gave rise to a miscarriage of justice. In other words, was Mr Templeton deprived of the reasonable possibility of more favourable verdicts because he did not give evidence.
[38] Both Mr Templeton and Mr Mason his trial counsel filed affidavits and gave evidence before us.
[39] Mr Templeton’s affidavit filed in support of his appeal asserts:

(a) That he instructed his trial counsel, Mr Mason, that he wished to give evidence at his trial;
(b) That Mr Mason actively discouraged Mr Templeton from giving evidence to the point where Mr Templeton felt bullied into not giving evidence;
(c) That failure to call Mr Templeton to give evidence meant that his principal defence, namely that he had informed the Police of what was to occur, expected the Police to intervene, and therefore did not intend to participate in an unlawful common purpose, was not adequately placed before the jury.

[40] Mr Templeton had given Mr Mason two written instructions on the matter of his giving evidence. The first was established to have been given on Thursday 6 October 2005, the day before the Crown case concluded. It refers to a balaclava and said that if the balaclava seized from Mr Templeton by the Police was in fact green and not, as he suspected it may be, black:

... then I will not give evidence.

It also states:

I am aware that if I give evidence I will be cross-examined about my convictions, my affidavit, my statements and generally my involvement in these events.

[41] The reference to the balaclava is to a matter which Mr Mason described as of real concern for Mr Templeton, though he regarded it as a "red herring" because it had no significance for Mr Templeton’s defence. Apparently Mr Templeton believed that the balaclava which was a Police exhibit in the case was not the balaclava he had been wearing because his was green, whereas he had been informed that the Police exhibit was a black balaclava. When the balaclava was produced by Detective Lawton at the request of Mr Mason, it was in the view of the Detective and Mr Mason clearly green, although Mr Templeton apparently had difficulty in accepting this. Mr Mason, however, on the strength of the colour of the balaclava which was the Police exhibit and the written instruction given to him by Mr Templeton, considered he had firm instructions that Mr Templeton would not give evidence.
[42] The second instruction given in writing apparently on 10 October 2005 after the close of the Crown case, stated:

1. No shots were fired when the van was at Leon Chauval’s house by any occupant of the van.

2. I am content to rely on Doug Jones being called to give evidence in relation to the comment on the state of the house.

[43] Mr Templeton accepted the contents of the written instructions he gave to Mr Mason and that he signed those instructions. He nevertheless continued to assert that he had always given to Mr Mason verbal instructions that he wanted to give evidence at trial, but Mr Mason:

... put a lot of pressure on me, he bullied me.

[44] Mr Templeton contended that Mr Mason should not have based his decision about Mr Templeton not giving evidence on such an insignificant point as the balaclava. He said that he had always made it very clear to Mr Mason that he wanted to give evidence and that he only agreed at the last minute because he was pressured by Mr Mason not to give evidence. He said that he wanted to give evidence because he believed it was important that he told the jury the full story, otherwise the jury would simply believe (as they apparently did), that he went along with what the others were up to. It was his position that having given information to the Police, in particular Detective Senior Sergeant Sheridan, on several occasions on 11 May 2004, about what was going to happen, he believed the Police would intercept the van driven by Mr Brooking towards Apiti and that none of the events planned by the appellants would in fact take place. Therefore, he claimed he did not have a common intention to do anything other than go along in the van until it was pulled over by the Police. He had no intention, he claimed, to be involved in the events that gave rise to the charges of which he was convicted.
[45] Mr Mason denied that he bullied Mr Templeton but he accepted that he advised him strongly against giving evidence. His reasons for doing so were:

(a) The defence that Mr Templeton was not part of any common intent could be illustrated on the basis of the Crown case without any evidence directly from him;
(b) He was concerned that Mr Templeton was often laboriously slow, repetitive and digressive verbally and that in the witness box he might easily lose whatever sympathy there might be otherwise for him and instead actively create prejudice against himself;
(c) He was aware that Mr Templeton’s co-defendants Liam Roche and Todd Brooking had both instructed their lawyers that once the shooting started Mr Templeton had picked up a gun and returned fire out of the window of the van. He was aware that counsel for the co-defendants considered that their instructions would oblige them to challenge Mr Templeton if he gave evidence. He was concerned that such cross-examination would create a powerful suggestion in the minds of the jury that Mr Templeton had been involved with the shooting, although he utterly rejected any such suggestion.
(d) He considered that a strong defence argument could not be significantly improved upon by what Mr Templeton could say in the witness box but might well be significantly undermined, particularly when Mr Templeton would be subject to cross-examination not only from the Crown but also from counsel for the two co-accused.

[46] Mr Mason also said that evidence given at the trial by Detective Claridge that he had previously been aware of Mr Templeton’s code name "Tarzan" was entirely inconsistent with instructions Mr Templeton had given Mr Mason, that the information he had given to Detective Senior Sergeant Sheridan about the events that were planned to occur at Apiti, was the first time he had been an informer to the Police. Mr Mason stated that this evidence was devastating for Mr Templeton and he did not raise the possibility of giving evidence again, after Detective Claridge gave this evidence.

Discussion

[47] Mr Mason was a measured, careful witness who impressed as concerned to tell the truth. Mr Templeton in giving evidence was often slow, repetitive and sometimes aggressive, which were factors that had concerned Mr Mason in advising Mr Templeton against giving evidence at trial.
[48] We do not accept Mr Templeton’s claims that he was bullied and oppressed by Mr Mason. There is a clear distinction between firm advice, which undoubtedly Mr Mason gave to Mr Templeton in relation to not giving evidence at trial, and the use of bullying or force to the extent that instructions are not given freely. There is no evidence whatsoever that such a situation occurred. Mr Templeton may have been reluctant to accept Mr Mason’s advice, but accept it he did, as confirmed by his written instructions.
[49] Mr Mason had to weigh a number of factors in deciding whether or not to advise Mr Templeton against giving evidence. They included, importantly, that Mr Templeton would inevitably be subjected to cross-examination, probably by three counsel, on the crucial topic of whether he used a firearm on the night of the incident.
[50] He also had to consider whether Mr Templeton’s defence could be adequately placed before the jury on the basis of evidence that he could illicit in cross-examination without the need for Mr Templeton to give evidence. He concluded that it could, and set about laying a foundation for the defence in his cross-examination of Senior Constable Martin (about the information she had received about the imminent attack and passed on to Leon Chauval), and Leon Chauval (about the information he was given by the Police including that there was a white van and there was a "nark" in the van).
[51] Most relevant was the evidence of Detective Senior Sergeant Sheridan who appears to have been called for the purpose of giving evidence of Mr Templeton’s disclosures to the Police. He stated in evidence in chief that he received a call from a male caller on Tuesday 11 May 2004 at about 3.25pm. He did not know the identity of the caller at the time. The caller had told him that he would be able to find a large quantity of cannabis, cannabis oil and possibly some firearms at an address at Humber Street, Rongotea, and that Todd Brooking would be there. The caller said he could refer to him as "Tarzan". He received further telephone calls from the same male caller during the course of the afternoon. The calls were repetitive in nature. The caller said there could be trouble that night if the information he was providing to the Police was not acted upon. He said he had discussions with Detective Sergeant Clifford about the information.
[52] Detective Senior Sergeant Sheridan was extensively cross-examined by Mr Mason about the information he received from the appellant and the notes he made, including reference to a white van, a maroon vehicle and the address of Ballance Road, Apiti. Mr Mason put to him in detail Mr Templeton’s version of what he told Detective Senior Sergeant Sheridan in his telephone calls that day.
[53] The Detective Senior Sergeant did not accept all aspects of Mr Templeton’s version of the information he gave in those telephone calls, in particular that Mr Templeton advised his correct name, and that he suggested a Police check-point be set up at Ashurst. He was unsure that it was the caller who gave him information about a possible incident that night - he was not sure whether information recorded in his notebook came from the caller or another source. However, although Detective Senior Sergeant Sheridan’s recollection of events was somewhat hazy, a copy of his notebook was produced which recorded the relevant details and provided the foundation for a submission that the details must have come from Mr Templeton. A schedule of telephone calls from Mr Templeton’s cellphone was also adduced in evidence.
[54] In summing up Mr Templeton’s defence to the jury the trial Judge recorded Mr Mason’s submissions that Mr Templeton did not have a common intention to commit an unlawful act but rather had actively set out to avoid such a situation by informing the Police. The Judge said:

It was argued that Mr Templeton had to go in the van or it would have been obvious that he was the informant and Mr Templeton was relying on the Police to stop the van before it got to Apiti. This did not happen, Mr Templeton could not avoid the trouble that followed and was then badly injured in the getaway attempt.
It is argued that you cannot find Mr Templeton guilty as he did not have a common intention with the others to commit an unlawful act, he had tried to avoid being in such a situation, and he later found himself to be in a situation that he could not avoid.

[55] The fact that an offender gives the Police prior warning of an impending offence, from which he does not then unequivocally withdraw, plainly does not constitute a defence. But the evidence which supported the case for Mr Templeton as put by Mr Mason in his defence, that he did not have the common intention with the other accused persons to commit an unlawful act, was sufficiently before the jury to found the defence.
[56] Thus, Mr Templeton’s evidence was not essential in order to pursue his line of defence and his giving evidence would have given rise to the other risks which Mr Mason identified.
[57] Clearly, Mr Mason’s decision not to call Mr Templeton was a reasonable one and cannot be said to have resulted in a miscarriage of justice.

Conclusion

[58] The appeals against conviction are dismissed.

Appeals against sentence

[59] All three appellants appeal against the sentences imposed on them, four and a half years in the case of Mr Brooking, cumulative on a previously imposed sentence of three years eight months making a total of eight years two months imprisonment, four years in the case of Mr Templeton and three years in the case of Mr Roche.
[60] All appellants were sentenced on two charges of unlawful possession of a firearm (.22 calibre and Anshuntz rifles), unlawful possession of explosives (ammunition), two charges of possession of an offensive weapon (Samurai sword and baseball bats), and discharge of a firearm with reckless disregard for safety. Mr Brooking was sentenced on the additional charges of possession of an offensive weapon (knife) and possession of a disabling substance (pepper spray).
[61] The Judge identified the following purposes and principles in relation to all three appellants:

 That they be held accountable for their actions. The Judge noted that the offenders drove a long way in a vehicle fully equipped for trouble and violence. He stated that it was necessary that a very strong deterrent message be sent in relation to this type of violent and particularly dangerous behaviour.
 Protection of the community. He noted that the wild, indiscriminate firing of rifles could have led to the injury or death of members of the public in the area.
 The gravity of the offending and its seriousness in comparison with other offences.
 The need to achieve consistency in sentencing.

[62] The Judge referred to the aggravating factors:

 The use of weapons involving the firing of a number of bullets from both firearms that were in the van
 The risk to the safety and lives of the victim and other members of the Apiti community (witnesses at the trial gave evidence that they were outside their houses or at windows in their homes when the gun firing was taking place which the Judge stated could easily have resulted in their being victims of a misdirected bullet or a badly directly bullet)
 Premeditation.

[63] The Judge referred to mitigating factors that applied to all three of the offenders:

 There was some evidence to indicate that the van itself was fired upon at some point.
 The van was pursued by Mr Chauval and Mr Lawler as it was leaving and was rammed by Mr Chauval’s car which had the effect of continuing the confrontation.

Mr Brooking

[64] In the case of Mr Brooking the Judge took into account an additional aggravating feature, that he had the leadership role in the offending, he was the organiser, it was his van, he drove the van and it was his problem (retrieval of cannabis) that the group were going to Apiti to sort out.
[65] He noted that Mr Brooking had entered guilty pleas to Counts 1 - 7 but that he was assessed in the probation report as at high risk of re-offending and that his motivation to address factors contributing to his risk of offending was low. He had three previous convictions for unlawful possession of firearms, convictions for possession of ammunition, being in possession of an offensive weapon, assault, three drug convictions, three dishonesty convictions and other convictions.
[66] The Judge took a starting point of five years imprisonment and allowing for the mitigating factors referred to, imposed a sentence of four and a half years on the lead charge of discharging a firearm with reckless disregard. He then considered whether the sentence imposed should be concurrent or cumulative on a previous sentence which Mr Brooking was serving. He concluded that the lead offence for which he was sentenced was a separate and distinct offence and it should be imposed cumulatively. He stated that Mr Brooking could not expect a discount due to the variety and the persistence of his offending.
[67] Mr Winter’s submissions on appeal for Mr Brooking focused on two points:

(a) The sentence of four and a half years imposed for the offending was manifestly excessive particularly in relation to The Solicitor-General v Hines CA121/99 12 March 1999.
(b) The totality principle should have been applied in relation to Mr Brooking’s total offending. The sentence of eight years two months which was the result of the sentence of four and a half years being imposed cumulatively was manifestly excessive when the totality of the offending was considered.

[68] On the first point, Mr Winter submitted that the judgment in Hines provides a better guide for sentencing than Judge Dawson accepted. (The Judge considered there were distinct factual differences between this case and Hines but did not detail them).
[69] Hines was sentenced on two counts of discharging a firearm with reckless disregard for the safety of others and one count of discharging a pistol with reckless disregard. On appeal by the Solicitor-General the sentence of two and a half years imprisonment was quashed and substituted by a sentence of four years, cumulative on a sentence of six years previously imposed. The result on appeal was a cumulative sentence of ten years as opposed to a cumulative sentence of eight and a half years.
[70] Hines went to a "mardi gras" in Foxton. A confrontation took place with a person H. H left the "mardi gras" but returned shortly afterwards. Hines holding a hand gun moved towards him and fired a shot. He fired a second time after H took refuge behind a van. According to H , Hines fired a further three shots as H ran from the scene. One of the bullets struck a car and a fragment grazed the driver’s wrist. Another shot narrowly missed a by-stander. The jury rejected a defence of self-defence advanced by Hines. The offences were committed while Hines was on bail for the earlier offences which involved violence. The sentencing Judge considered that if the offences had stood by themselves four years would have been appropriate after allowing for mitigating factors, but having regard to the totality principle and bearing in mind the six years sentence already being served, it was important not to destroy any possibility of reform. An effective sentence of two and a half years was imposed.
[71] The Court of Appeal did not agree. While accepting that because the sentencing involved adding a significant prison term to a six years sentence imposed only recently, the totality principle necessarily required consideration the Judge had overstated considerably the weight to be given to totality. The prospects of rehabilitating the appellant were not strong and it was pre-eminently a case where his future needs had to take second place to other requirements. There had to be a firm message of condemnation and deterrence and the public had to be protected from a person who had proved himself to be a menace to the community.
[72] Mr Winter submitted that there were features of the Hines case that made the offending more serious than Mr Brooking’s:

(a) Mr Hines faced two charges of discharging a firearm with reckless disregard of safety;
(b) Shots were fired at a "mardi gras" in Foxton during daylight with a large number of public present at the event;
(c) Shots were fired in two groups by Hines. A member of the public was hit and there was a further near miss;
(d) There was no suggestion that the victims of Mr Hines offending were in the process of actively pursuing him;
(e) Mr Hines previous convictions were more serious than those of Mr Brooking’s.

[73] We consider, however, that there are factors in this case which at least balance the differentiating factors identified by Mr Winter:
[74] Mr Brooking faced a range of charges in relation to this offending which reflected the fact that he entered upon this offending, as the sentencing Judge stated:

... armed to the teeth, looking for trouble.

(a) There were not less than ten rounds fired from weapons in the van as analysed by ESR scientists and some of these at least were fired while the van was in motion. As the sentencing Judge observed members of the public could easily have been victims of a mis-directed or badly directed bullet. There was also an extreme risk for the Police Officers who pursued the van, two of whom were unarmed. The behaviour:

... showed arrogant disregard of the law and for safety of other persons. (Sentencing Judge)

(b) Although Mr Brooking and his co-offenders found more trouble than Mr Brooking anticipated, the retaliation from his proposed victims obviously resulted from the confrontation embarked upon by Mr Brooking and his co-offenders in the first instance (regardless of who may have first fired shots) and when pursued, Mr Brooking turned the van around and a volley of shots were fired from the van at the Holden commodore motor vehicle that was in pursuit.
(c) The van was abandoned. The occupants jumped out and ran off. Mr Brooking was located by a Police dog that tracked him down and he was apprehended by the dog handler.
(d) While Mr Brooking’s list of convictions might be less serious than that of Mr Hines, it is a serious and concerning criminal record including convictions for possession of firearms and ammunition. He is assessed as at high risk of re-offending with low motivation to address factors contributing to his offending, particularly in relation to his associates. He is:

... doubtful if he could withstand the peer pressure. (Probation report)

[75] In short, in relation to Mr Brooking, as in the case of Mr Hines, his is:

... pre-eminently a case where his future needs had to take second place to other requirements. (Hines at [16])

[76] Finally, that Hines involved a Solicitor-General appeal.
[77] The sentence of four and a half years imprisonment, while stern, certainly cannot be regarded as manifestly excessive in all the circumstances of this case.
[78] The sentencing Judge did not refer to the totality principle but it was relevant given that Mr Brooking was at the time of sentencing serving a sentence of three years eight months imprisonment which had been imposed for unrelated cannabis and firearms charges.
[79] On 12 May 2004 Police executed a search warrant at Mr Brooking’s address in Rongotea and located a large amount of cannabis material in a variety of forms including grown plants and dried material, some of which was packaged in deal bags. The total weight was in excess of 8.7 kilograms. Also located was a range of drugs related paraphernalia and five firearms, three air pistols, one .303 calibre rifle, and one lever-action rifle. Mr Brooking did not hold a firearms licence. Apparently this offending was revealed as the result of the information provided by Mr Templeton to the Police.
[80] As the Crown stated in submissions, the sentence of three years eight months for the totality of this offending was moderate and unremarkable (R v Terewi [1999] 3 NZLR 62).
[81] Mr Winter submitted that while the imposition of a cumulative sentence was correct the resultant sentence of eight years two months imprisonment was manifestly excessive when the totality principle is applied and that a sentence in the range of five and a half to six and a half years would have been appropriate.
[82] We do not accept that submission. The sentences were imposed for two distinct sets of offending, each of them very serious involving the lethal cocktail of drugs and firearms. The cumulative sentence of eight years two months was not manifestly excessive given the very serious nature of the offending and Mr Brooking’s role in it.

Mr Templeton

[83] Recognising that Mr Templeton was not the ringleader, the Judge took a starting point of four and a half years in comparison with the starting point of five years taken for Mr Brooking. He allowed a discount of six months for mitigating factors and imposed a sentence of four years on the lead sentence of discharging a firearm with reckless disregard.
[84] Mr Rowe submitted that because of the information Mr Templeton had provided to the Police he was essentially in a position of ensuring his own capture and that he was entitled to a discount for his co-operation with the Police.
[85] We do not accept that submission. Rather we agree with the sentencing Judge that:

Mr Templeton was a fool because he managed to persuade himself that he had a dollar bet each way with the Police.

[86] Clearly the Police did not regard Mr Templeton as a genuine informant. Despite having provided the Police with information he proceeded to participate fully in the joint enterprise. It is entirely misconceived to suggest that an offender may somehow immunise or protect himself from the consequences of his criminal offending by prior communication with the Police.
[87] The starting point of four and a half years appropriately reflected the lesser role that Mr Templeton played in the offending and the sentence of four years imposed after a discount for mitigating factors was not manifestly excessive.

Mr Roche

[88] It was submitted for Mr Roche that there was a sound basis for treating him substantially more leniently than either Mr Brooking or Mr Templeton given his very positive probation report and his previous good character. He has only two previous comparatively minor convictions, unrelated to this offending, as the sentencing Judge noted.
[89] The Judge referred to these matters and recognised them in adopting a lower starting point of three and a half years from which he allowed a discount of six months to reach a sentence of three years. Although the same result may have been more logically reached by taking the same starting point as that for Mr Templeton, and allowing a greater discount in view of the absence of relevant previous convictions and a much more positive outlook for Mr Roche, the sentence was in the range available to the sentencing Judge and cannot be described as manifestly excessive. This was very serious offending in which Mr Roche, for whatever reason, elected to become involved.

Result

[90] The appeals against sentence are all dismissed.

Solicitors:
Armstrong Barton, Wanganui for Appellants Templeton and Roche
WinterWoods Lawyers, Palmerston North for Appellant Brooking
Crown Law Office, Wellington

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[2]	The three appellants were charged as parties under s 66(2) Crimes Act 1961.
[3]	On the morning the trial commenced (3 October 2005) Mr Brooking entered guilty pleas to the following charges:

[5]	Following trial by jury all three appellants were acquitted on Count 8 and convicted on Count 9. The jury was hung on Count 5 and Mr Templeton and Mr Roche were discharged on that count.
[6]	Mr Templeton and Mr Roche were also convicted on Counts 1, 2, 3, 4, and 6. They were not charged with Count 7.

[8]	On the evening of Tuesday 11 May 2004 the three appellants, in the company of a fourth unidentified man, travelled to Apiti near Fielding in Mr Brooking’s white van. The purpose of the trip was to exact revenge on an Apiti resident, Mr Leon Chauval, in relation to the suspected theft of cannabis. The rear windows of the van were blacked out, and its rear seating had been removed. The four men wore dark clothing, and balaclavas or beanies. They took with them at least two .22 calibre rifles (one of which was sawn-off), a large quantity of ammunition, a samurai sword, and softball bats. Mr Brooking also had a canister of pepper spray in his pocket.
[9]	Shortly after 10pm they arrived at Mr Chauval’s address and parked alongside. Mr Chauval, who had received some prior warning of what was likely to occur, came out of his house armed, he said, with a torch and a baseball bat. Shots were fired. Mr Chauval claimed he was fired upon by those in the van, but the appellants maintained it was Mr Chauval who fired at them (and there was some evidence to support the latter possibility). The van then drove off, pursued by Mr Chauval and a neighbour, Mr Lawler, in a Holden commodore.
[10]	Mr Brooking then turned the van around sharply so it was facing the commodore. A volley of shots was fired at the car. The van turned around again and drove off at speed. Mr Chauval continued his pursuit and rammed the van from behind in an attempt to disable it. Further shots were fired at his vehicle from both sides of the van, causing Mr Chauval to give up the chase. Forensic evidence showed at least four bullets had struck his vehicle, and that at least ten shots were fired from the firearms in the van.
[11]	The van was spotted by Police patrols and pursued. It was driving erratically and swerving across the road, and as it did so, the offenders jettisoned various items including weapons and ammunition, which were subsequently recovered by Police. The van eventually stopped at a bridge, and the four men jumped out and ran in different directions. Mr Brooking was located hiding in nearby bush by a Police dog handler. Mr Templeton and Mr Roche went over a steep bank and became stranded on a ledge, and needed to be rescued by Police search and rescue. The fourth man was not located.

[14]	The background facts relevant to this issue do not appear to be in dispute. They are mainly recorded in a memorandum by junior counsel for the Crown, Mr P Murray, prepared for the purposes of this appeal. There was no dissent by counsel to the contents of this memorandum.
[15]	On the final day of trial, 12 October 2005, following the summing up of Judge N R Dawson to the jury in the District Court at Palmerston North, the Court learned from the Foreman that one of the jurors had brought photocopies from a law book to the Court at an earlier point in the trial.
[16]	The Judge conferred with counsel in Chambers, following which the jury were brought back into Court and the Judge directed them that he understood a juror may have had copies of a law book, that they were not to conduct their own inquiries, that what he (the Judge) said about the law was authoritative and they must accept it, and that the jury were the sole judge of the facts in the light of the law as explained by him. The Judge directed that any reference to other materials must cease immediately and not continue. The Court then adjourned for lunch.
[17]	After lunch the Judge again convened in Chambers with counsel to provide the opportunity for counsel to raise any other matters relevant to this issue. Following submissions, the Court adjourned so that research could be conducted on whether the Judge should take one juror aside to discuss the nature of the material he had accessed and the use he had made of it in the situation that the jury had retired to consider their verdict when this issue arose.
[18]	The Crown located and referred to the Judge R v N (2005) 21 CRNZ 621. The Judge then proposed talking to the juror involved in the presence of the accused and asking questions of the juror, but not permitting counsel to do so. Following further discussion and at the request of counsel for Mr Roche, the Judge sent a written question to the Foreman of the jury as to why the Court had not been informed until that day, that on at least one day during the previous week a juror had photocopies of the law book with him or her in the Court.
[19]	The Foreman’s answer was that on a day in the previous week he had seen the juror reading photocopied pages quietly to himself in the corner during a lunch break. There was no indication from him to anyone in the room as to the content of the pages. The Foreman became aware that the pages could be copies of pages from a law book when the juror mentioned in passing that:

[20]	The Foreman also stated that he did not believe the juror had influenced other jury members "until today" and that he (the Foreman) did not know whether the content of the pages had assisted the juror or not.
[21]	The Judge, without opposition from counsel, then directed a further question to the Foreman to ascertain what was meant by the statement that the Foreman believed the juror had not influenced other jury members "until today". The Judge specifically asked whether the juror had influenced other jurors during the course of that day.
[22]	The answer from the Foreman was in the affirmative, to the extent that other jury members were interested to hear the outcome of the question the juror asked, which had been posed to the Judge (the question related to the point at which possession of the firearm was to be determined – in the van, before, or during). The Foreman stated that he did not believe that the juror had persuaded any jury members to vote one way or the other or how to vote. He commented that the juror:

[23]	There were then further discussions by the Judge with counsel, following which counsel for the Crown, Mr Roche and Mr Brooking were agreed that jury deliberations should continue. Mr Mason for Mr Templeton did not oppose.
[24]	Before the Court resumed there was a further communication from the Foreman requesting that the Judge pose a question to him as to whether anybody else on the jury had read, saw or was informed of the content of the photocopies.
[25]	With the concurrence of counsel, the Judge determined to answer the Foreman’s question by directing the jury again that what he said about the law was authoritative and must be accepted by them. Also to remind the jury to listen to each other, to take account of others’ views and not to let any one person dominate. The Judge read out to counsel the direction he intended to give. There was no objection by any counsel.

[26]	Mr Rowe for the appellants accepted that two directions were given to the jury by the trial Judge and that the direction given immediately before lunch was specific in directing the jury to disregard extraneous material and included specific reference to copies of a law book a juror may have had.
[27]	Nevertheless, he submitted that assuming advice against reference to extraneous material had been included in the Judge’s opening remarks (which was not known) it was apparent that the jury had disregarded this advice and it appeared that there was continuing discussion amongst the jury after the Judge’s direction because of the questions from the Foreman that followed. He submitted that the point had been reached where it was necessary for the Judge to question the juror to ascertain to what information the juror had had reference, and what he had said about it to other members of the jury. He noted that the Foreman reported the juror in question as being "forceful".
[28]	He acknowledged that ultimately counsel had not required the Judge to take that course of action, although he considered it significant that some counsel had changed their stance significantly during the course of discussions on the issue. He referred to R v Smith, R v Mercieca [2005] 1 WLR 704 at [23] for authority that the ultimate responsibility to determine what course to take rested with the Judge, while acknowledging that the assent of counsel was a relevant factor to be taken into account in considering the justification for the Judge’s choice of his course of action.
[29]	The Crown did not dispute that what occurred in this case was misconduct on the juror’s part and an irregularity in the trial, but the Crown submitted that no miscarriage of justice has occurred. The trial Judge followed the procedure suggested in R v N and what took place was with the concurrence of all counsel. Further, the jury received clear and appropriate directions on two separate occasions during the course of their deliberations. It was submitted that this situation could be distinguished from irregularities discovered after verdict, although even in such a case it did not follow that a miscarriage of justice has occurred. Here the issue came to light at the beginning of the jury’s deliberations and was dealt with promptly by the trial Judge who issued two clear directions to the jury relevant to the issue, approximately five hours apart.
[30]	It was significant, submitted the Crown, that all three defence counsel appear to have agreed that there was no need to question the juror and that the deliberations should continue, after the Judge had raised with counsel, following a perusal of R v N, the possibility of questioning the juror.
[31]	The Crown further submitted that this was not a case of serious misconduct by a juror. Although in the absence of questioning it was not clear exactly what material the juror had referred to, it appeared that it was relevant only to the first question put to the Judge by the jury which related to mens rea in relation to the first count in the indictment, possession of a firearm. The response by the Judge to such a situation must always depend on all the circumstances of the case but a paramount concern must always be that inquiry of an individual juror may put at risk the independence of the jury’s deliberative process.

[32]	When juror misconduct is in issue, as a threshold requirement there must be a suspicion on reasonable grounds that the misconduct of the juror may have influenced the verdicts: R v Norton-Bennett [1990] 1 NZLR 559. Here the juror’s actions appeared to relate to the narrow issue of mens rea in the possession of firearms charges, which became the subject of the first question from the jury to the Judge and was answered by him.
[33]	While the Judge may have decided to make inquiry of the juror in the presence of the accused and counsel but in the absence of the other jurors, as to the nature of the juror’s inquiry (see R v N), whether that is an appropriate course to follow will depend on all the circumstances of a particular case. The Judge will need to be cautious in determining upon such a course of action because, as was stated in R v Smith, R v Mercieca, and confirmed in R v C CA126/04 18 April 2005 as principles applicable in New Zealand:
	The general rule is that the Court will not investigate, or receive evidence about, anything said in the course of the jury’s deliberations while they are considering their verdict in their retiring room ...
	When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors, Judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner. This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence.
[34]	Here, the issue came to light at the beginning of the jury’s deliberations. The Judge had the opportunity, which he took, to deal with it immediately. He conferred with counsel and received the benefit of their submissions. Ultimately counsel, presumably having taken instructions from their respective clients, concurred in the course of action proposed by the Judge, namely to give firm directions to the jury that what he said about the law was authoritative and that they must accept it. Further, in the case of the first direction given immediately prior to lunch on 12 October 2005, specifically that they must not refer to other materials and that any reference must cease immediately and must not continue.
[35]	The Judge had the endorsement of counsel for the course of action he took. There is no suggestion that counsel acted contrary to the instructions of their clients nor that they were incompetent in the manner in which they dealt with the issue at trial. It is inappropriate that on appeal following a change of counsel, it should now be contended that the course of action at trial resulted in an unfair verdict.
[36]	We are satisfied that in this respect there has been no miscarriage of justice.

[37]	Mr Rowe, Mr Templeton’s counsel on appeal accepted on the authority of R v Sungsuwan [2005] NZSC 57 that the focus is not on the conduct of trial counsel but whether the absence of Mr Templeton’s evidence gave rise to a miscarriage of justice. In other words, was Mr Templeton deprived of the reasonable possibility of more favourable verdicts because he did not give evidence.
[38]	Both Mr Templeton and Mr Mason his trial counsel filed affidavits and gave evidence before us.
[39]	Mr Templeton’s affidavit filed in support of his appeal asserts:

[47]	Mr Mason was a measured, careful witness who impressed as concerned to tell the truth. Mr Templeton in giving evidence was often slow, repetitive and sometimes aggressive, which were factors that had concerned Mr Mason in advising Mr Templeton against giving evidence at trial.
[48]	We do not accept Mr Templeton’s claims that he was bullied and oppressed by Mr Mason. There is a clear distinction between firm advice, which undoubtedly Mr Mason gave to Mr Templeton in relation to not giving evidence at trial, and the use of bullying or force to the extent that instructions are not given freely. There is no evidence whatsoever that such a situation occurred. Mr Templeton may have been reluctant to accept Mr Mason’s advice, but accept it he did, as confirmed by his written instructions.
[49]	Mr Mason had to weigh a number of factors in deciding whether or not to advise Mr Templeton against giving evidence. They included, importantly, that Mr Templeton would inevitably be subjected to cross-examination, probably by three counsel, on the crucial topic of whether he used a firearm on the night of the incident.
[50]	He also had to consider whether Mr Templeton’s defence could be adequately placed before the jury on the basis of evidence that he could illicit in cross-examination without the need for Mr Templeton to give evidence. He concluded that it could, and set about laying a foundation for the defence in his cross-examination of Senior Constable Martin (about the information she had received about the imminent attack and passed on to Leon Chauval), and Leon Chauval (about the information he was given by the Police including that there was a white van and there was a "nark" in the van).
[51]	Most relevant was the evidence of Detective Senior Sergeant Sheridan who appears to have been called for the purpose of giving evidence of Mr Templeton’s disclosures to the Police. He stated in evidence in chief that he received a call from a male caller on Tuesday 11 May 2004 at about 3.25pm. He did not know the identity of the caller at the time. The caller had told him that he would be able to find a large quantity of cannabis, cannabis oil and possibly some firearms at an address at Humber Street, Rongotea, and that Todd Brooking would be there. The caller said he could refer to him as "Tarzan". He received further telephone calls from the same male caller during the course of the afternoon. The calls were repetitive in nature. The caller said there could be trouble that night if the information he was providing to the Police was not acted upon. He said he had discussions with Detective Sergeant Clifford about the information.
[52]	Detective Senior Sergeant Sheridan was extensively cross-examined by Mr Mason about the information he received from the appellant and the notes he made, including reference to a white van, a maroon vehicle and the address of Ballance Road, Apiti. Mr Mason put to him in detail Mr Templeton’s version of what he told Detective Senior Sergeant Sheridan in his telephone calls that day.
[53]	The Detective Senior Sergeant did not accept all aspects of Mr Templeton’s version of the information he gave in those telephone calls, in particular that Mr Templeton advised his correct name, and that he suggested a Police check-point be set up at Ashurst. He was unsure that it was the caller who gave him information about a possible incident that night - he was not sure whether information recorded in his notebook came from the caller or another source. However, although Detective Senior Sergeant Sheridan’s recollection of events was somewhat hazy, a copy of his notebook was produced which recorded the relevant details and provided the foundation for a submission that the details must have come from Mr Templeton. A schedule of telephone calls from Mr Templeton’s cellphone was also adduced in evidence.
[54]	In summing up Mr Templeton’s defence to the jury the trial Judge recorded Mr Mason’s submissions that Mr Templeton did not have a common intention to commit an unlawful act but rather had actively set out to avoid such a situation by informing the Police. The Judge said:

[55]	The fact that an offender gives the Police prior warning of an impending offence, from which he does not then unequivocally withdraw, plainly does not constitute a defence. But the evidence which supported the case for Mr Templeton as put by Mr Mason in his defence, that he did not have the common intention with the other accused persons to commit an unlawful act, was sufficiently before the jury to found the defence.
[56]	Thus, Mr Templeton’s evidence was not essential in order to pursue his line of defence and his giving evidence would have given rise to the other risks which Mr Mason identified.
[57]	Clearly, Mr Mason’s decision not to call Mr Templeton was a reasonable one and cannot be said to have resulted in a miscarriage of justice.

[59]	All three appellants appeal against the sentences imposed on them, four and a half years in the case of Mr Brooking, cumulative on a previously imposed sentence of three years eight months making a total of eight years two months imprisonment, four years in the case of Mr Templeton and three years in the case of Mr Roche.
[60]	All appellants were sentenced on two charges of unlawful possession of a firearm (.22 calibre and Anshuntz rifles), unlawful possession of explosives (ammunition), two charges of possession of an offensive weapon (Samurai sword and baseball bats), and discharge of a firearm with reckless disregard for safety. Mr Brooking was sentenced on the additional charges of possession of an offensive weapon (knife) and possession of a disabling substance (pepper spray).
[61]	The Judge identified the following purposes and principles in relation to all three appellants:

[64]	In the case of Mr Brooking the Judge took into account an additional aggravating feature, that he had the leadership role in the offending, he was the organiser, it was his van, he drove the van and it was his problem (retrieval of cannabis) that the group were going to Apiti to sort out.
[65]	He noted that Mr Brooking had entered guilty pleas to Counts 1 - 7 but that he was assessed in the probation report as at high risk of re-offending and that his motivation to address factors contributing to his risk of offending was low. He had three previous convictions for unlawful possession of firearms, convictions for possession of ammunition, being in possession of an offensive weapon, assault, three drug convictions, three dishonesty convictions and other convictions.
[66]	The Judge took a starting point of five years imprisonment and allowing for the mitigating factors referred to, imposed a sentence of four and a half years on the lead charge of discharging a firearm with reckless disregard. He then considered whether the sentence imposed should be concurrent or cumulative on a previous sentence which Mr Brooking was serving. He concluded that the lead offence for which he was sentenced was a separate and distinct offence and it should be imposed cumulatively. He stated that Mr Brooking could not expect a discount due to the variety and the persistence of his offending.
[67]	Mr Winter’s submissions on appeal for Mr Brooking focused on two points:

[68]	On the first point, Mr Winter submitted that the judgment in Hines provides a better guide for sentencing than Judge Dawson accepted. (The Judge considered there were distinct factual differences between this case and Hines but did not detail them).
[69]	Hines was sentenced on two counts of discharging a firearm with reckless disregard for the safety of others and one count of discharging a pistol with reckless disregard. On appeal by the Solicitor-General the sentence of two and a half years imprisonment was quashed and substituted by a sentence of four years, cumulative on a sentence of six years previously imposed. The result on appeal was a cumulative sentence of ten years as opposed to a cumulative sentence of eight and a half years.
[70]	Hines went to a "mardi gras" in Foxton. A confrontation took place with a person H. H left the "mardi gras" but returned shortly afterwards. Hines holding a hand gun moved towards him and fired a shot. He fired a second time after H took refuge behind a van. According to H , Hines fired a further three shots as H ran from the scene. One of the bullets struck a car and a fragment grazed the driver’s wrist. Another shot narrowly missed a by-stander. The jury rejected a defence of self-defence advanced by Hines. The offences were committed while Hines was on bail for the earlier offences which involved violence. The sentencing Judge considered that if the offences had stood by themselves four years would have been appropriate after allowing for mitigating factors, but having regard to the totality principle and bearing in mind the six years sentence already being served, it was important not to destroy any possibility of reform. An effective sentence of two and a half years was imposed.
[71]	The Court of Appeal did not agree. While accepting that because the sentencing involved adding a significant prison term to a six years sentence imposed only recently, the totality principle necessarily required consideration the Judge had overstated considerably the weight to be given to totality. The prospects of rehabilitating the appellant were not strong and it was pre-eminently a case where his future needs had to take second place to other requirements. There had to be a firm message of condemnation and deterrence and the public had to be protected from a person who had proved himself to be a menace to the community.
[72]	Mr Winter submitted that there were features of the Hines case that made the offending more serious than Mr Brooking’s:

[73]	We consider, however, that there are factors in this case which at least balance the differentiating factors identified by Mr Winter:
[74]	Mr Brooking faced a range of charges in relation to this offending which reflected the fact that he entered upon this offending, as the sentencing Judge stated:

[76]	Finally, that Hines involved a Solicitor-General appeal.
[77]	The sentence of four and a half years imprisonment, while stern, certainly cannot be regarded as manifestly excessive in all the circumstances of this case.
[78]	The sentencing Judge did not refer to the totality principle but it was relevant given that Mr Brooking was at the time of sentencing serving a sentence of three years eight months imprisonment which had been imposed for unrelated cannabis and firearms charges.
[79]	On 12 May 2004 Police executed a search warrant at Mr Brooking’s address in Rongotea and located a large amount of cannabis material in a variety of forms including grown plants and dried material, some of which was packaged in deal bags. The total weight was in excess of 8.7 kilograms. Also located was a range of drugs related paraphernalia and five firearms, three air pistols, one .303 calibre rifle, and one lever-action rifle. Mr Brooking did not hold a firearms licence. Apparently this offending was revealed as the result of the information provided by Mr Templeton to the Police.
[80]	As the Crown stated in submissions, the sentence of three years eight months for the totality of this offending was moderate and unremarkable (R v Terewi [1999] 3 NZLR 62).
[81]	Mr Winter submitted that while the imposition of a cumulative sentence was correct the resultant sentence of eight years two months imprisonment was manifestly excessive when the totality principle is applied and that a sentence in the range of five and a half to six and a half years would have been appropriate.
[82]	We do not accept that submission. The sentences were imposed for two distinct sets of offending, each of them very serious involving the lethal cocktail of drugs and firearms. The cumulative sentence of eight years two months was not manifestly excessive given the very serious nature of the offending and Mr Brooking’s role in it.

[83]	Recognising that Mr Templeton was not the ringleader, the Judge took a starting point of four and a half years in comparison with the starting point of five years taken for Mr Brooking. He allowed a discount of six months for mitigating factors and imposed a sentence of four years on the lead sentence of discharging a firearm with reckless disregard.
[84]	Mr Rowe submitted that because of the information Mr Templeton had provided to the Police he was essentially in a position of ensuring his own capture and that he was entitled to a discount for his co-operation with the Police.
[85]	We do not accept that submission. Rather we agree with the sentencing Judge that:

[86]	Clearly the Police did not regard Mr Templeton as a genuine informant. Despite having provided the Police with information he proceeded to participate fully in the joint enterprise. It is entirely misconceived to suggest that an offender may somehow immunise or protect himself from the consequences of his criminal offending by prior communication with the Police.
[87]	The starting point of four and a half years appropriately reflected the lesser role that Mr Templeton played in the offending and the sentence of four years imposed after a discount for mitigating factors was not manifestly excessive.