R V MCDONALD HC AK CRI 2009-004-16897 [2009] NZHC 1312 (22 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                CRI 2009-004-16897



                                         THE QUEEN



                                             v



                     
   STEPHEN HOHEPA MCDONALD



Charges:        Using a firearm against a law enforcement officer (9);
                Carrying a firearm
with intent;
                Aggravated burglary (3);
                Demanding with intent to steal;
                Unlawful possession
of a firearm (representative);
                Commission of crime with a firearm
                Conversion of a motor vehicle (2);
                Unlawfully getting into motor vehicle (2);
                Failing to stop (representative);
                Dangerous
driving (representative);
                Driving whilst forbidden (representative);

Plea:           Guilty

Appearances: Aaron
Perkins and Charlotte Leslie for Crown
             Roger Chambers for Prisoner

Judgment:       22 September 2009
             
  13 years imprisonment in total (see following table)



                     SENTENCING NOTES OF HARRISON J




_________________________________________________________________________________

SOLICITORS
Meredith Connell (Auckland) for Crown
Roger Chambers (Auckland) for Prisoner


R V MCDONALD HC AK CRI 2009-004-16897
22 September 2009

                                Table of Sentences


                 Charge                                
    Penalty
Using a firearm against a law               13 years imprisonment on each count
enforcement officer (9)
Aggravated burglary
(3)                     4 years imprisonment on each count
Commission of crime with a firearm          3 years imprisonment
Demanding
with intent to steal              3 years imprisonment
Conversion of a motor vehicle (2)           3 years imprisonment on each count
Carrying a firearm with intent              3 years imprisonment
Unlawful possession of a firearm            3 years imprisonment
(representative)
Unlawfully getting into motor vehicle (2)   1 year imprisonment on each count
Dangerous driving (representative)
         3 months imprisonment; disqualified
                                            from driving for 6 months
Failing to stop
(representative)            Convicted and discharged
Driving whilst forbidden (representative)   Convicted and discharged

Introduction


[1]     Mr McDonald, you appear for sentence today having pleaded guilty to 23
charges laid under the Crimes Act 1961, the Arms
Act 1983 and the Land Transport
Act 1998. The most serious are the nine separate charges of using a firearm against
a law enforcement
officer at various locations in west and central Auckland on
23 January 2009. They each carry a maximum term of imprisonment of 14
years.
So, too, do the three charges of aggravated burglary.


[2]     In descending order, the one charge of committing a crime
with a firearm
carries a maximum of 10 years imprisonment; the one charge of demanding with
intent to steal and two of car conversion
carry seven years maximum imprisonment;
the singular charges of carrying a firearm with intent and unlawful possession of a
firearm
carry maximum terms of five and four years imprisonment respectively; the
two charges of unlawfully getting into and upon a motor
vehicle carry a maximum of
two years imprisonment; the representative charge of dangerous driving carries a
maximum of three months
imprisonment or a $4,500 fine; finally, the two charges of
failing to stop and driving while forbidden carry a maximum fine of $10,000.


[3]     That brief summary of the nature of the charges you face and the maximum
terms of imprisonment encapsulates the severity
of your offending on 23 January
2009.


[4]     While the most serious charges carry a maximum entitlement of 14 years
imprisonment
each, and the sentences are likely to be concurrent rather than
cumulative, you will be sentenced, Mr McDonald, having regard to the totality of
your offending that day. And, while you do not face a charge or charges directly
related to the death of Halatau Naitoko, that event will also be a relevant factor in
fixing the appropriate sentence. Also, I must
determine the Crown's application,
which is not opposed, for imposition of a minimum term of imprisonment.


[5]     Before dealing
with the formal parts of your sentence, I acknowledge the
great assistance provided by Mr Perkins and Ms Leslie in their full written
and oral

submissions, and Mr Perkins orally today.      Also, Mr McDonald, I acknowledge
particularly the submissions made by Mr
Chambers for you this afternoon. His
cause is an unpopular one. He spoke fearlessly for you. You should be grateful for
his assistance.
Also I acknowledge in Court today police officers, a representative of
the Naitoko family, and in particular those who are victims
of your crimes.


Facts


[6]     I will deal first with the facts. I will do so in some detail. That is because
they will speak
for themselves, Mr McDonald, in determining the ultimate length of
your term of imprisonment.


[7]     At about 1 pm on 23 January
two plain clothes officers observed you in a
stolen vehicle. They noted that the vehicle was being driven erratically. You failed
to stop when the officers activated their lights and their sirens in the unmarked car.
The vehicle was in fact under the control
of somebody else. You swapped driving
responsibilities. Even though you were forbidden to drive a motor vehicle, you
drove that Toyota
onto West Coast Road at speeds of up to 90 kilometres per hour
and suddenly slammed on the brakes. Mr Chambers acknowledged that
from time to
time your driving was dangerous.         In my judgment, Mr McDonald, it was
extraordinarily dangerous. This was simply
the prelude to what happened.


[8]     When the two officers pulled up behind the stolen vehicle you waved a .22
calibre semi-automatic
Ruger rifle, cut down to make it a pistol, directly at both of
them. You and your associate then abandoned the car. You headed down
a nearby
driveway to the Glenora Rugby League Club. There you presented the firearm to a
patron who happened to be accidentally in
your way. You asked him if he wanted to
find out whether the firearm was real.


[9]     You and your associate then moved on towards
Glendale Road. You ran in
front of a uniformed police officer sitting in a marked patrol car. You waved the
firearm at him. You waved
the firearm at the unmarked vehicle of another police
officer who was arresting your associate. You were then at a distance of 10-15
metres. Then, Mr McDonald, you fired at least one shot at the police helicopter.

You waved the firearm at two more police officers
as they sat in their patrol car not
more than eight metres away. When they accelerated, you fired two shots upwards
towards the police
helicopter and one down Glendale Road.


[10]   You then entered the first of a series of properties in Glendale Road. You
approached
the elderly occupant. She was on her deck. You were holding the
firearm. You asked for her car keys. She refused, quite remarkably.
You responded
by pointing the firearm at the helicopter again and left the property. You then
entered a house two doors away. You
presented the firearm at the female occupant.
You asked for the keys to her car. You only left when she advised she did not have
a
motor vehicle.


[11]   You then entered a third house on Glendale Road. You demanded the keys
from the occupants. Again you were
holding the firearm. One of those occupants
handed you the keys to a Hyundai motor vehicle. You drove off in it. By then
several
police patrol cars were in pursuit. All had their sirens and lights activated.
You kept the police at a distance by twice braking
suddenly. You the drove down
West Coast Road at speeds of up to 120 kilometres per hour. You waved the firearm
towards the police
vehicle being driven by two dog handlers. You then entered a no-
exit street, before turning and accelerating directly towards the vehicle driven by the
dog handlers. You
pointed the gun directly at those two officers from a distance of
30-40 metres. You abandoned the Hyundai on Nikau Street.


[12]
  You were pursued on foot by two unarmed officers, the dog handlers, to an
address in Nikau Street. You pointed the gun at one of
them, who was only a few
metres away, and then at both together. You followed that by entering a property at
Pine Avenue. You found
your way in through a bedroom. You again presented the
firearm in the vicinity of the occupant. He gave you the keys to a Nissan
Skyline
parked in the driveway. When you returned outside, Mr McDonald, you pointed
your gun again in the direction of officers gathering
around the property. You
pointed the firearm directly at the organising police officer who was wearing a
police-issue vest. You then
got into the Nissan.

[13]   You drove off up Great North Road towards Auckland City. Your speeds
again exceeded 100 kilometres
per hour.        You were pursued by marked and
unmarked police vehicles. You collided with a vehicle on Sandringham Road. You
narrowly
missed colliding with others. You kept the police at a distance, again by
repeatedly braking. Then you entered the North-Western
motorway on the Pitt
Street onramp, heading back towards Waitakere.


[14]   Next, Mr McDonald, while you were driving along the
motorway, you
slowed your vehicle to speeds of around 50 kilometres per hour. You began opening
and closing the driver's door. You
weaved your vehicle across the west-bound
lanes. You waved the firearm out of the driver's window and back over the roof of
the Nissan
at a pursuing police vehicle. You fired a shot through the rear window of
the Nissan, which made a hole in the rear window but was
deflected down onto the
back seat of the car. You stopped the Nissan on the motorway. You fled on foot
over the median barrier into
the city-bound lanes. Again you waved the firearm at a
marked police vehicle pulling up nearby.


[15]   Mr McDonald, then you held
up your hand for the purpose of stopping
approaching vehicles in the city-bound lanes. You waved your firearm in the other
hand.
You approached at least three vehicles ­ a Subaru vehicle, an Audi, and,
significantly, the Toyota van driven by Halatau Naitoko.
All of them had pulled up
to stop. You pointed the firearm back over the bonnet of the Audi and fired a shot at
the police officers,
including one member of the Armed Offenders Squad; they were
approaching you from behind the van.


[16]   You approached a slow
oncoming vehicle driven by a Mr Richard Neville. It
was a truck. You attempted to enter the cab through the locked passenger door.
You
raised the firearm to the window of the truck door, pointing it at Mr Neville. You
attempted to smash the window using your hand
and the firearm. You then climbed
onto the deck of the truck.


[17]   As you were doing this members of the Armed Offenders Squad
called on
you to stop. When you did not, two officers fired at you. As they did, you swung
your firearm in an arc from one to the
other. Both of the officers shot at you just as

Mr Neville applied the brakes of his truck. That movement caused you to lose your
balance on the deck. One of the bullets fired by an Armed Offenders Squad officer
struck your abdomen. You fell to the deck of the
truck. You were hospitalised as a
result.


[18]      Another bullet was fired just as you were falling. It narrowly missed you and
passed across the deck of the truck, through the passenger window of the van.
Halatau Naitoko, who was sitting there, was struck
in the heart. He died instantly.


Starting Point


[19]      Against that background, Mr McDonald, I must now fix the starting point
for
your sentence. The starting point is the term of imprisonment which is appropriate
to reflect the circumstances of your offending
before I take into account any personal
circumstances, whether good or bad.


[20]      Two factors must be borne in mind throughout the sentencing exercise. The
first is one which
I repeat. You must be sentenced for the totality of your offending
that day, with particular emphasis on the more serious charges
of discharging a
firearm against a police officer. The second is that your offending was plainly
within the most serious of the cases
for which a maximum term of 14 years
imprisonment is prescribed for each charge.


[21]      The facts speak for themselves, Mr McDonald,
in highlighting the many
aggravating features of your offending. I will summarise only the most important.
First and foremost, you
trained a firearm at others on 15 separate occasions over a
period of just around one hour.        The weapon, I am satisfied, was
loaded and
modified so that it could be fired more easily. Mr Chambers acknowledges in his
written submissions that fact but says
you never trained your weapon on any
particular person. He says you wanted to show people you were armed, to keep
them away. That
might have been your objective but it does not excuse what you
did at all. Perhaps Mr Chambers has summarised the position with a
degree of
understatement by observing that waving a pistol was not conducive to early
resolution of the problems you faced once you
were pursued by police officers.

[22]   Second, you discharged that weapon on six separate occasions, frequently at
a close distance
from the intended targets. You knew you were shooting at police
officers. And your purpose was to deter them from following you and
carrying out
their lawful duties. As Mr Chambers acknowledges, you wanted to enhance your
flight from lawful arrest.


[23]   Third,
the police officers were particularly vulnerable, as you knew. They
were acting in execution of their duties.       It is of no assistance
to you, as
Mr Chambers submits, to say that the officers knew who you were and that they
should have left you alone and sought you
on a later occasion. They were bound, in
pursuance of their oaths as police officers, to take all prompt and effective steps to
arrest
you. Some of those officers were unarmed. Not only were they bound to
arrest you but they had a duty to protect others from danger.
They had nowhere to
run and hide, as you know, Mr McDonald. They were particularly vulnerable to
death and injury at your hands.


[24]   Fourth, and perhaps this is the most aggravating feature, you used that
firearm at random on residential roads and on a
public highway. It led to a tragic and
needless end. You must have known that you were placing innocent citizens at risk,
both from
your own weapon and from any weapon which police officers might have
to use to immobilise or kill you. You deliberately placed others
in the crossfire, as
events illustrated. The ultimate risk, that of the death of an innocent civilian, was
fulfilled. I agree with
Mr Perkins. Halatau Naitoko's death is an aggravating factor.


[25]   In this respect, Mr McDonald, I must say something briefly
about the
separate question of whether anybody might be legally culpable or accountable for
Mr Naitoko's death. This is because Mrs
Fuimaono, Mr Naitoko's mother, advises
that, among the many adverse consequences of your offending, her family has been
torn apart
by arguments about who is responsible for her son's death. Some family
members still blame the police.


[26]   It is important to
note that the police have assigned a senior officer from
outside the Auckland region to lead the investigation into Mr Naitoko's
death. He is
Inspector Peter Devoy, who is the very experienced crime services manager in the

Waikato District. He has sworn an
affidavit. He advises that the police conducted a
full investigation into the possible criminality of the officer who fired the shot
which
killed Halatau Naitoko. An opinion from a senior police lawyer advised that there
was no evidence to support a charge. But
the police took the further step of seeking
independent advice from one of New Zealand's leading criminal barristers, Mr John
Haigh QC. He confirmed that there was no evidence
to support a charge against that
officer.


[27]       I simply add, in the hope that it may provide some comfort to Mr Naitoko's
family, that on the facts as I know them the decision not to prosecute a police officer
for Mr Naitoko's death was the correct one.
I am in no doubt, Mr McDonald, that
you are the person responsible for his death. An accident of the type which occurred
was directly
foreseeable by you.


[28]       Fifth, you committed three aggravated burglaries; that is, by using the
firearm.      You unlawfully
entered dwellings and even in one case a bedroom.
Children were present. You threatened an elderly lady, as I have mentioned. And
you stole two vehicles.


[29]       Sixth, I refer to your driving. Of itself, Mr McDonald, it placed many people
at risk. I refer,
for example, to your attempts to immobilise pursuing police vehicles
by braking suddenly.        Separately you drove at dangerous
speeds through busy
neighbourhoods. Death or serious injury was always going to be a risk of your
driving.


[30]       Seventh,
and finally, there is the impact of your offending on your victims.
Mr Perkins says there are at least 24 recognised by law. I have
now read all of their
statements. All those victims, including the police officers, have suffered substantial
psychological harm,
in one way or another. Your sustained offending over that one
hour, Mr McDonald, had a profound effect on many lives. Relationships
were
affected. Many victims felt guilt and distress about what had occurred. One police
officer put it bluntly; she said that she
did not join the police force to get shot at. She
joined to serve her community ­ and to protect people and property.

[31]   I
refer briefly to two other statements. One is from the police officer who
fired the bullet that killed Mr Naitoko. You have heard
Mr Perkins read extracts
from his statement. You could not disagree with Mr Perkins' assessment that that
officer's life is devastated.
I understand his sentiment about perhaps wanting to
leave the police force. I only trust that he remains.


[32]   Also I have this
afternoon read Mr Neville's statement. While it is lengthy
and in parts contains inappropriate material for a victim impact statement,
I
understand his degree of anger.        He has suffered real physical, emotional and
financial harm as a result of your actions
that day. But above all, Mr McDonald, he
better than me answers Mr Chambers' submission that there were defects in the way
that the
police conducted their pursuit and apprehension. He says this:

       To the police during that short minute on the motorway, the
options were
       logical, the timing as always impossible, but the urgency to act was crucial.
       This has weighed on my mind,
as the full facts of this case have not been
       public knowledge. I think the police have been judged harshly in a one-
    
  sided media circus, having their hands tied by process, but just doing their
       job.

       Their job requires that they do
this task everyday. I know they are being
       confronted by adversaries, hell bent on doing harm, but they still uphold the
 
     law, under life threatening conditions because it is their sworn duty to do so.

       So, thank you from me and also on behalf
of all the people who take you for
       granted but are quick to criticise.

[33]   The other person whose statement I refer to
briefly is Mrs Fuimaono.
Without doubt, she is a victim of your crimes. You have caused unimaginable
distress to her and her family.
Mr Perkins describes it as a trail of misery. She
writes movingly of losing a much loved son. I take this opportunity to acknowledge
his brief life. He was an exemplary young man whose life was full of promise. He
did not deserve the fate that he suffered as a result
of your offending.


[34]   What then, Mr McDonald, is the appropriate starting point for your sentence?
The Crown submits that at least 15 years may be justified.           
    You have heard
Mr Perkins refer to a number of decisions both in the Court of Appeal and this Court.
I have read them; I am familiar
with some; it is unnecessary for me to discuss others.
One decision of the Court of Appeal provides particular guidance: R v Samuels

 [2009] NZCA 153. But you know from your experience with the criminal law that
ultimately each case depends on its own facts. They determine the appropriate
sentence. All I need say is that on a comparative basis, I am satisfied that your
offending is worse than occurred in any of those
cited to me.


[35]   Mr Chambers submits a starting point of 12 years. He refers properly to the
fact that you were under the influence
of methamphetamine at the time. I have no
doubt that you were, but that is never a mitigating factor. It simply means that
people
act in a way that is often beyond normal human bounds.


[36]   The starting point, Mr McDonald, must be for a term of imprisonment
that
denounces, deters and holds you accountable. Any one of the charges of using a
firearm against a police officer, particularly
on the motorway, can be treated as the
lead or index charge. In my judgment the appropriate starting point on each of those
offences
is 14 years imprisonment. That term, as I have said, is the maximum
prescribed by law.


[37]   However, on its own it is manifestly
inadequate to reflect the overall totality
of your offending. You committed many serious crimes over a sustained period of
time.
As Mr Perkins says, you demonstrated lawlessness and a disregard for the
police. Those crimes cannot go unpunished. They mean that
the starting point must
be increased for that reason by four years to 18 years imprisonment.


[38]   Furthermore, Mr Perkins submits
that I should adjust the starting point
upwards on account of your aggravating personal circumstances. You are 50 years
of age. You
have an extraordinary criminal history starting in the Youth Court at
Levin in 1973. Initially your offending was of a dishonest
nature. Regrettably you
have graduated into violence and related offending. You have spent much of your
life in penal institutions.
But of particular relevance here, your criminal history
shows a propensity for violent offending of this type. And, of course, at
the time of
the offending, you were subject to release conditions. In my judgment the starting
point must be uplifted for that factor
by a further two years to 20 years.

[39]   I should add, Mr McDonald, that this is not a purely mechanical exercise of
fixing a
starting point and then incrementally adjusting it upwards, not once but
twice to reflect two types of aggravation. I have very carefully
considered the
ultimate question of what is the appropriate end starting point for your sentence after
taking your total criminality
into account. I am in no doubt that a final figure of
20 years is necessary to meet the purposes and principles of sentencing, and
to fairly
reflect society's condemnation of your conduct.


Mitigation


[40]   I must then come to mitigating factors. First and
foremost there is your plea
of guilty.     In that way you have made a formal acknowledgement of your
wrongdoing. You have also saved
the State and all the victims of your offending
from expending the resources and trauma of a trial.


[41]   Mr McDonald, there is
one other factor. I accept Mr Chambers' statement
that you have a real degree of remorse for your offending. The fact that you have
written to Mr Naitoko's family is important. As I said before, your cause is not a
popular one. But, for what it is worth, I treat
your expression of regret and apology
as genuine.


[42]   Furthermore, I am satisfied that your guilty plea was entered at a reasonably
early stage. You are entitled to a substantial credit of at least one third against that
starting point. Accordingly, you are sentenced
to final terms of imprisonment of:


·   13 years on each of the charges of using a firearm against a law enforcement
    officer;


·   Four years on each of the charges of aggravated burglary;


·   Three years on the charges of commission of a crime with a
firearm, demanding
    with intent to steal, conversion of a motor vehicle, carrying a firearm with intent,
    and unlawful possession
of a firearm;

·   One year on the two charges of unlawfully getting into a motor vehicle;


·   Three months imprisonment on the charge of dangerous
driving.               You are
    disqualified from holding or obtaining a driver's licence for six months;


·   You are convicted
and discharged on the charges of failing to stop and driving
    while forbidden.


Minimum Term


[43]   There is one final issue.
    The Crown submits that a minimum term of
imprisonment should be imposed. I am in no doubt that Mr Perkins is correct.
Mr Chambers
does not disagree. To release you after completion of only one third
of your sentence would be insufficient to hold you accountable,
to denounce your
conduct, to deter similar offending and, in particular, to protect the community from
you. I do not need to repeat
what was said before.


[44]   The task then is to fix the appropriate minimum term. The maximum of that
minimum is 66% or two thirds
of the finite term. Taking all of factors into account,
and in particular the need to protect the community from you given your previous
history of offending, the circumstances and your poor prospects of rehabilitation, I
am satisfied that an appropriate minimum term
of imprisonment is eight years. You
are sentenced accordingly.


[45]   Mr Perkins seeks orders for the permanent suppression of
name of the two
police officers. I make orders that the names of the officers 81 and 84 be suppressed
from publication and also that
any particulars leading to their identification be
suppressed.


[46]   Thank you, Mr McDonald, would you please stand down.




                                     ______________________________________
                                      Rhys Harrison J