Gathergood v R [2010] NZCA 350 (4 August 2010)

Last Updated: 10 August 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA74/2010

[2010] NZCA 350

AND BETWEEN CASEY AARON MIKE GATHERGOOD
Appellant

AND THE QUEEN
Respondent

Hearing: 21 July 2010

Court: O'Regan P, Panckhurst and MacKenzie JJ

Counsel: P H B Hall for Appellant
F E Guy Kidd for Respondent

Judgment: 4 August 2010 at 3 pm

JUDGMENT OF THE COURT

1. Extension of time to appeal is granted.
2. The sentence of three years three months’ imprisonment for discharging a firearm with reckless disregard is quashed.

100. A sentence of two years five months’ imprisonment is substituted. The other sentences of 10 months (burglary) and six months (unlawful possession of firearms and ammunition) shall stand.
     

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1] The appellant seeks an extension of time to appeal against a sentence of three years and three months’ imprisonment in relation to offences of burglary, unlawful possession of firearms and ammunition, and discharging a firearm with reckless disregard for the safety of others. We shall consider the appeal by reference to what emerged to be the two main grounds, namely:

(a) that the starting-point adopted for the sentencing of both the accused and his co-offender was too high, and

(b) that the appellant was sentenced in relation to the lead charge of discharging a firearm with reckless disregard on an incorrect factual basis.

[2] The notice of appeal was filed out of time. Sentence was imposed on 17 September 2009. The notice of appeal is dated 9 February 2010. This was almost four months late. The only explanation for the delay is contained in the notice itself. The appellant stated that he completed a notice of appeal during his first 14 days in prison and left it with prison staff, but nothing further was done. No further elaboration was offered concerning when the appellant learnt that the notice had not been filed and why no effective steps were taken for almost five months.
[3] An extension of time was opposed, essentially because of the paucity of the information offered in support of the extension application. We accept that an affidavit should have been filed. That said, it is not a situation where specific prejudice has accrued to the Crown. We note the appellant’s age, 18 years at the time of his sentencing, and the fact that he had not previously received a sentence of imprisonment. We propose, therefore, to consider the merits of the sentence appeal and return to the extension application after that.

Factual background

[4] The appellant and Jacob Murray (JM) were jointly involved in the offending. They were of a similar age and flatmates at the relevant time.
[5] The burglary was committed in mid-July 2008 at a rural property at which JM had previously been employed. He knew where the keys to a shipping container were kept and these were used to gain entry to the container. Firearms, including a shotgun, and ammunition were stolen.
[6] Four days later on Saturday, 19 July 2008 the appellant and JM were “cruising” central city streets in Christchurch during the course of the evening. Other young people were involved in the same activity. The appellant was driving his vehicle. JM had been drinking to excess. A verbal exchange occurred with the occupants of another car, a BMW. Someone from that vehicle threw a full bottle of beer at the appellant’s car, which smashed a rear passenger’s window. The appellant and JM were angered by this and returned to their flat in Rolleston to uplift a weapon.
[7] JM obtained a bolt action shotgun with a 3 shot magazine; and ammunition. The pair then returned to the city in search of the occupants of the BMW. In this they were unsuccessful, but at about 12.45 am the next morning JM became involved in another verbal exchange with the occupants of a different vehicle. This vehicle was driven by a young woman, who was accompanied by another female in the front passenger’s seat and two youths in the rear seats. Interchange between the two vehicles occurred over some distance, and culminated in JM pointing the shotgun out of the front passenger’s window at the occupants of the other vehicle. This was in Bealey Avenue. The occupants immediately reported what had occurred to the police and also endeavoured to follow the appellant’s car, but from a distance.
[8] The appellant turned off Bealey Avenue into Colombo Street and then into Salisbury Street. At this point JM leaned out of the passenger’s window, levelled the shotgun at the following vehicle and fired. Shotgun pellets struck the car, smashed the front windscreen, punctured the radiator and damaged the bonnet. Fortunately, none of the occupants were physically harmed, but the driver in particular suffered significant psychological harm. The damage to her car cost almost $2,500 to repair.
[9] The appellant and JM were stopped by the police a short time later. The shotgun was still loaded with two further rounds and other ammunition was seized. Subsequently a search warrant was executed at the pair’s flat in Rolleston and items stolen during the burglary were recovered. Both offenders were 17 years of age at the date of the offending.

The respective sentencings

Jacob Murray

[10] Judge Callaghan sentenced both offenders. JM was sentenced in April 2009, by which time he was 18 years of age. The Judge viewed the charge of discharging a firearm with reckless disregard as the lead offence. In relation to it he adopted a starting-point of four and a half years’ imprisonment. After allowances were made for JM’s guilty plea (25 per cent) and his age, an end sentence of two years 10 months was indicated in relation to the lead offence.
[11] The Judge then considered the burglary charge and viewed it as discrete offending, which warranted a cumulative sentence. He arrived at an end sentence of 11 months’ imprisonment for the burglary. However, following application of the totality principle JM was sentenced to three years and four months on the lead offence, and a concurrent term of 10 months upon the burglary (and a lesser concurrent term on the charge of unlawful possession of firearms). We note that given the way in which the sentence was finally structured, the end sentence upon the lead offence was a little higher than the end result at which the Judge had first arrived. But, this of course reflected the totality approach which he rightly adopted.

The appellant

[12] When sentencing the appellant over five months later Judge Callaghan adopted a similar approach. He adopted a starting-point of three years nine months for the lead offence (discharging the firearm with reckless disregard), and made a 30 per cent reduction for the plea and in recognition of the accused’s youth, to arrive at an indicated sentence of two years nine months. A starting point of 18 months was adopted for the burglary, reduced by six months for the same two factors. Although the addition of the two sentences produced a total term of three years nine months, the end sentences after application of the totality principle were three years three months and 10 months concurrent, respectively.

Was the appellant sentenced on an incorrect factual basis?

[13] It is convenient to consider this aspect first. Initially, both offenders elected trial by jury. As noted, JM pleaded guilty first and was sentenced in April 2009. The appellant did not plead guilty until late April and then his sentencing was delayed until September on account of the need for a disputed facts hearing.
[14] We were told from the bar that the original summary of facts recorded that in Salisbury Street the appellant had stopped his vehicle, angled it to give JM a better view and that he (the appellant) had also verbally encouraged JM to fire the shotgun. These aspects were the subject of dispute. Belatedly, an accommodation was reached, the summary was amended and the appellant was sentenced on the basis that he took no deliberate steps to facilitate or encourage the discharge of the shotgun in Salisbury Street.
[15] In his sentencing remarks the Judge referred to the previously disputed facts aspect on a couple of occasions, including this:

There is no evidence and I cannot take into account that you turned the car specifically to enable him to do it then removes an aggravating feature of the offending, although balanced against that is the aggravating feature that you knew not only did he have the shotgun in his hand but he said he was going to use it which he did (sic).

We doubt that the knowledge attributed to the appellant was an aggravating feature. Rather, knowledge of these aspects rendered the appellant a party to the discharge of the shotgun in the first place.

[16] However, Mr Hall’s complaint was directed elsewhere. He submitted that on a proper evaluation of the facts as a whole, the appellant was endeavouring, at the crucial moment, to extricate himself and his co-offender from the situation which had developed. He argued that the appellant disapproved of the presentation of the shotgun in Bealey Avenue; and it was this which motivated him to turn into Colombo Street and then into Salisbury Street in order to escape the situation. Hence, said Mr Hall, the appellant should have been sentenced from a starting-point markedly different from that used in relation to JM. Counsel suggested a difference of “50 per cent or more” was required.
[17] We consider that the withdrawal contention is unsustainable. In the first place, it is inconsistent with the plea of guilty to being a party to JM’s act in discharging the firearm with reckless disregard. Section 24(1)(b) of the Sentencing Act 2002 requires a sentencer to accept as proved “all the facts, express or implied, that are essential to a plea of guilty ...”. Acceptance of the factual interpretation urged before us would run foul of this provision.
[18] Equally importantly, the case was not run on the basis advanced by counsel before Judge Callaghan. Mr Hall was not counsel in the District Court. We have viewed the sentencing submissions of then counsel. They were both coherent and comprehensive. They do not go the distance of asserting that the appellant was positively seeking to withdraw, or to disassociate himself from the actions of his co-offender, at the material time.
[19] Moreover, had this been suggested in the District Court, we consider that s 24(2)(d) of the Sentencing Act would have applied. An assertion of a positive withdrawal from the offending would have comprised a “mitigating fact” (as defined in s 24(3)) - if not a contention that the appellant was not even complicit in the lead offence. The appellant would have needed to give evidence before the Judge and establish, on balance, that his part in the offence was to be properly viewed on the benevolent basis for which Mr Hall contended in this Court.
[20] In short, in our view entry of the guilty plea and the absence of a mitigating fact contention in the District Court, is necessarily fatal to Mr Hall’s argument in this Court.

Was the starting-point excessive?

[21] Mr Hall argued that the starting-point of four and a half years adopted in relation to JM was excessive and that this had a downstream effect when the appellant was sentenced some months later. Mrs Guy Kidd submitted that the starting-point adopted in both cases was within the available range. We shall consider this issue by reference to two judgments of this Court shortly.
[22] We note a lesser point which was averted to in the course of argument. The summary of facts with which the Judge was supplied referred to the lead offence as “discharging a firearm with reckless disregard” contrary to “s 198(1)(a) of the Crimes Act 1961” and to the maximum penalty as “14 years’ imprisonment”. This was in error. Subsection (1)(a) refers to discharging a firearm with intent to cause grievous bodily harm. The correct section reference was s 198(1)(b) and the maximum penalty was seven years’ imprisonment. It is not apparent from the two sets of sentencing remarks whether the Judge was influenced by the error in the heading to the summary.
[23] Unlike Judge Callaghan, we have had the benefit of reference to two cases decided in this Court. The first is Solicitor-General v Hines.[1] The respondent was convicted at trial of two charges of discharging a rifle with reckless disregard for the safety of others as well as other offences. At sentencing the firearm counts were treated as the lead offences, and attracted a sentence of two and a half years’ imprisonment. The respondent fired shots from a handgun in the crowded main street of Foxton in the course of a confrontation between persons who had gang connections. The shots were fired at a man who was armed with a baseball bat. One of the bullets struck a car and a fragment grazed the driver’s wrist. Another shot narrowly missed a bystander.
[24] The Solicitor-General’s appeal was allowed and the respondent, who was aged 44 with a long history of offending, was sentenced to four years’ imprisonment upon each of the lead offences. We note that a starting-point was not identified in the course of the judgment; and that the case involved a Solicitor-General’s appeal and also raised totality considerations. To that extent the precedential value of the decision is minimised.
[25] The second case is more recent, R v Templeton.[2] The circumstances of the third appellant, Mr Brooking, are closest in point and we shall therefore refer to his case. Like the appellant, he was the driver of a vehicle used in the offending and a party to the lead offence of discharging a firearm with reckless disregard for the safety of others. Mr Brooking orchestrated a retaliatory raid against the complainant, who was believed to have arranged a cannabis “rip off”. The vehicle used was laden with firearms and other weapons. The complainant anticipated the raid and in the end result a chase ensued, in which Mr Brooking’s vehicle was pursued by one in which the complainant was travelling. At one point Mr Brooking turned his vehicle to face that of the complainant and a volley of shots were fired by associates of Mr Brooking. Ultimately, three members of the raiding party were apprehended by the police after a pursuit and their decamping from their vehicle. At sentencing the trial Judge adopted a starting-point of five years’ imprisonment in relation to Mr Brooking, who was viewed as the ringleader. The starting-points adopted in relation to the two other respondents were four and a half years and three and a half years, albeit they were occupants of the van and were likely to have participated in firing the volley of shots.
[26] The appeal by Mr Brooking against an end sentence of four and a half years’ imprisonment was dismissed, this Court describing the sentence as stern but not manifestly excessive for a mature offender who had a significant offending record, including for offences of a like nature.
[27] We consider that these cases are of significant assistance. Without in any way minimising the seriousness of the present offence, it was of a different order to the offending in either of the two cases to which we have just referred. Only one shot was fired, and viewed at least from the appellant’s perspective, this was at a time when he was driving away from the complainants with his co-offender leaning out the window in order to discharge the shotgun.
[28] Taking that into account, and having regard to the secondary role of the appellant, we adopt a starting point of three years in relation to the appellant. Rather than assessing the burglary on a stand alone basis, we consider it better to make an uplift in relation to this offence. Six months is in our view the appropriate increase. We then adopt and apply the 30 per cent allowance made by the Judge in recognition of the pleas and the youth of the appellant, to arrive at an end rounded-down sentence of two years five months. Accordingly, we substitute a sentence of two years and five months’ imprisonment upon the lead offence of discharging a firearm with reckless disregard. The other sentences of 10 months (burglary) and six months (unlawful possession of firearms and ammunition) imposed by Judge Callaghan on a concurrent basis, shall remain.

Result

[29] As will be apparent, and on account of our acceptance that the starting-point was too high by comparison to other relevant cases, we are satisfied that there is merit in the appeal and that justice requires that an extension of time be granted. It is, and the sentence appeal is allowed to the extent already indicated.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] Solicitor-General v Hines CA12/99, 12 March 1999.
[2] R v Templeton CA460/05 6 July 2006.