R v McNaughton HC Nelson CRI-2009-042-4391 [2011] NZHC 38 (4 February 2011)

Last Updated: 14 February 2011

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

_{CRI-2009-042-4391}

THE QUEEN

v

BLAIR ROBERT MCNAUGHTON

Hearing: 4 February 2011

Appearances: K Raftery and H Boyd-Wilson for the Crown

A Bamford for the prisoner

Judgment: 4 February 2011

_{SENTENCING NOTES OF CLIFFORD J}

Introduction

[1] Mr McNaughton, you appear for sentence today having been convicted, after a trial before me here in the High Court, of the murder of Troy Minto at Branford Park in the Maitai Valley on 14 November 2009. At your trial you accepted that you had shot and killed Mr Minto with a shotgun, but said you were acting in self- defence and were therefore not guilty of murder or of manslaughter. The jury rejected that defence, and found you guilty of murder. You were also found guilty of the unlawful possession of the shotgun at the time you arrived at Branford Park, before you actually used it. You had earlier pleaded guilty to one charge of unlawful

_{assembly. You are to be sentenced on those charges as well.}

R V MCNAUGHTON HC NEL CRI-2009-042-4391 4 February 2011

[2] I acknowledge the presence in Court today of the family and friends of Mr Minto, the victim of the offending. I also acknowledge the presence in Court today of your family, Mr McNaughton. They have supported you throughout the trial and continue to support you and I am sure you are grateful for that support. I will refer later to the victim impact statements that have been made by Mr Minto’s family members.

[3] Mr McNaughton I will first explain to you, and to all here in the Court, the decision I must make today to determine your sentence.

[4] Where a person is convicted of murder, our law requires the Court to impose a life sentence, unless such a sentence would be manifestly unjust. Such a sentence is clearly not manifestly unjust here. Therefore Mr McNaughton, you are sentenced to life imprisonment.

[5] Where a Court imposes a life sentence for murder, the Court must also decide on the minimum period of imprisonment the convicted person must serve. The minimum period is the minimum term of imprisonment that the convicted person must serve before they are eligible for parole. This is because, even though a person receives a life sentence, they may still during that sentence apply for parole. Eligibility to apply for parole does not mean that the convicted person will automatically be released. The Parole Board is required to consider the safety of the community and whether the convicted person would pose an undue risk to the community upon release. Even when released on parole, a person sentenced to life imprisonment remains subject to that sentence for the rest of their life, and may be recalled to prison.

[6] The minimum period is therefore the time that must elapse before a person convicted of murder is eligible to be considered for parole.

[7] That minimum term may be not be less than 10 years, and must be the minimum term the Court considers necessary to hold an offender accountable for the harm done, to denounce the offender’s conduct, to deter the offender and others from committing similar crimes and to protect the community from the offender.

[8] Our law also provides that for some murders the minimum period must be at least 17 years. It is accepted that this is not such a murder.

[9] Therefore, the decision I must make this morning is what is the minimum term, to be at least 10 years but not more than 17 years, that is appropriate with regard to your offending.

Summary of Facts

[10] As part of my consideration of your sentence, I need to record the essential facts of this murder. These are now well known to all involved.

[11] On 14 November 2009, late in the afternoon, two groups of local young men met at Branford Park for the agreed purpose of fighting each other. Over the past month, tensions had arisen between the two groups, essentially it would appear because a young woman had changed her affections from a member of one group to a member of the other. That is obviously no reason for such behaviour. There had been earlier incidents of violence between the two groups, which I accept you had not been involved in.

[12] On 14 November, whilst returning from the drag races at Motueka, the two groups encountered each other. There was a verbal confrontation and, subsequent to that, agreement was reached regarding meeting later that day up the Maitai Valley for a fight.

[13] Your group returned to a local address, and arrangements were made for the confrontation. I consider, based on the evidence, that you took some of a leadership role on your side of things. It would appear that Mr Minto took a leadership role on his side of things. A member of your group, who had arrived earlier in the day and who had been picked from Blenheim by you, took a loaded pump action shotgun to the confrontation. I am satisfied, based on the jury verdicts and my view of the facts of this matter, that you knew of the presence of that shotgun notwithstanding your statement to the contrary.

[14] It would appear that, at least at the outset, the intention may have been that the shotgun would be used to intimidate, rather than to injure or kill.

[15] Be that as it may, the two groups ultimately met up at Branford Park. There fighting broke out, principally initially involving the two protagonists, but also involving most if not all members of each group. Matters were inflamed when a baseball bat and a plastic cricket bat were used against members of your group. The bat was also used to smash the windows of the vehicle you had arrived in.

[16] During the confrontation the owner of the shotgun presented it, pumped a live cartridge into the chamber, but did not fire it. Mr Minto confronted that person and knocked him to the ground. You then took possession of the shotgun.

[17] Moments later, and after it would appear you had called out that violence was to be one-on-one fighting, Mr Minto approached you. Your defence, in reliance on one witness referred to this morning, was that Mr Minto was charging at you with a baseball bat in his hand, yelling at you. No other witness supported that theory of the facts. As Mr Raftery has rightly pointed out, no member in your group in their statements to the Police made any mention of that fact and further, the evidence of the witness in question, Mr Brandish, was inconsistent with the evidence of all the other people as to who had used the baseball bat to break the windows and to assault a member of your group.

[18] As I have said, the jury did not accept that you were acting in self defence, and nor do I.

[19] In terms of whether or not the jury verdict was reached on the basis that you actually intended to kill, or acted recklessly with disregard as to the consequences that might follow, it is difficult for me to reach a decided view on that matter. Nor do I think, in the circumstances of this case, that materially affects the decision I am called to make.

[20] What you did was, you shot Mr Minto at short range with the shotgun in the chest area. Mr Minto was blasted back, fell to the ground and died almost instantaneously. You and your associates then fled the scene.

[21] When spoken to by the Police later you denied being the man who had shot Troy Minto. As I have said, your demeanour and behaviour in that interview did you no good at all.

[22] In light of those facts, in light of the jury verdicts and in light of your guilty plea on the charge of unlawful assembly, I consider that, as submitted by the Crown, you should be sentenced on the basis that:

a) you went to Branford Park along with the members of your group with the intention of carrying out a common purpose, namely to assault a member or members of the rival group that included Troy Minto;

b) you were aware that a member of your group had brought the loaded shotgun to the confrontation and that it would be available for use; and

c) when you shot Mr Minto you did so either intending to cause his death, or intending to cause him a bodily injury which you knew was likely to cause death and that you were reckless as to whether death ensued.

[23] According to the pre-sentence report, and again this morning, you have maintained that you accidentally discharged the shotgun when confronted by Mr Minto during the fighting. That is, of course, at odds with the defence you advanced at the trial, it is at odds with the jury’s verdict and is not in my view a credible explanation.

[24] In addition to those essential facts, there are other background material that I must refer to. That is the pre-sentence report, the victim impact statements and the letter you have written to Mr Minto’s family.

The pre-sentence report

[25] Your pre-sentence report notes that you come from a caring family background. Unfortunately you suffered from ADHD and would appear to have been expelled from school at the age of 14. Alcohol and criminal activity thereafter featured in your life. Those are two things that I need to comment on. That is, the significance in your life of your ongoing abuse of alcohol and your history of violence. As the report writer noted, your extensive conviction history is littered with violent offences. Notable are ten assault convictions, seven disorderly behaviour convictions and the reckless discharge of an airgun. As the report writer also notes, you viciously, he says, assaulted your partner and others in 2008, leading to the ending of that relationship and, more recently, your loss of direct contact with your daughter.

[26] At the same time it is clear, as the report writer also recognises, that you have for a lengthy period of time abused alcohol. That abuse has clearly been associated with your violent behaviour. Your mother says that when you are sober you are friendly and relaxed but that when you are intoxicated you are aggressive and difficult to control.

[27] According to the report writer you now recognise the impact that alcohol has had on your life and you are determined to address that aspect of your behaviour. Clearly, Mr McNaughton, that is something that in the future will be essential if you are to be able, when released from prison on parole, to maintain your liberty. And I am sure you are aware of that and I accept that you are determined to address that aspect of your life.

[28] I turn now to the victim impact statements.

[29] Mr Minto’s mother, Shirley Way, and his partner, Alicia Maunder, have both

provided victim impact statements

[30] Mrs Way speaks of the understandable tragic loss Troy’s death is for her, her family and, in particular, her grandchild. She speaks of the impact Troy’s murder has had on her and the natural feelings of responsibility she has herself. She is particularly hurt by the way Troy was killed that day, dying alone at Branford Park and, because of the scene examination requirements, his body having to be left there alone overnight.

[31] Alicia speaks of her loss and of her sadness at her daughter’s loss. She also has been deeply affected by Troy dying alone. His sudden death meant that she had no opportunity to say goodbye or to alter the events of that afternoon. Naturally, her life has been fundamentally changed as she must now bring up her daughter on her own. That little girl will never know her father.

[32] I acknowledge those victim impact statements and the effect Mr Minto’s

death has had on his family.

Your letter

[33] You have, reasonably recently, written a letter to Mr Minto’s mother expressing your remorse. I am not sure whether that letter has yet been passed on to Mr Minto’s mother. Even if that letter and the remorse expressed is genuine, it comes very late in the piece. Again in your letter you say you did not know the loaded firearm was being taken. As I have said, I do not accept that.

[34] I turn now to the analysis upon which I will set your sentence.

[35] I have considered the legal submissions I have received from the Crown and the defence.

[36] The Crown submits that a minimum sentence of between 12 and 14 years would be the appropriate outcome. Mr Bamford’s submission is that your minimum sentence should be the standard period of 10 years or something marginally greater. Mr Bamford accepts that the use of the shotgun was at best not a proportionate response to any threat posed to you by Mr Minto even if as advanced in your defence, he was advancing on you. In your favour Mr Bamford says to me that I can regard your remorse as genuine, and I have already commented on that.

[37] Based on those submissions and in terms of the appropriate minimum term of imprisonment, I think the following factors are relevant as regards your actions on

14 November:

a) Your actions involved a considered decision to engage in violent behaviour.

b) You were present and, as I have said, in something of a leadership role when the decision to take the loaded shotgun to Branford Park was made.

c) You then yourself took control of the loaded shotgun. Those actions escalated the risks involved in the confrontation, especially the potential for harm and, as it has tragically transpired, tragic harm.

d) You shot at your victim at very close range, with almost instantly fatal consequences. Whilst all murders do necessarily involve significant violence, and albeit that it occurred during a violent fracas, I think that was a callous and brutal act.

5. Finally, you were prepared to use that shotgun in what was a public place.
   

[38] As regards your personal situation, you have a long history of violent offending.

[39] These are factors which I consider definitely indicate that a minimum period of imprisonment greater than the ten years should be imposed.

[40] In deciding on what that minimum term should be I have considered the various cases that I have been referred to. I refer in particular to a case in Auckland where the offender shot his victim with a shotgun at short range as part of a gang confrontation. In that case a minimum period of imprisonment of 13 years was imposed. That gang confrontation had been preceded by considerable violence. There are clear similarities between the facts in that case and here. However, I consider that there is no equivalent in terms of the gang behaviour that was involved in that and some of the other cases that I was referred to. Although two groups of young men were involved at Branford Park, and whilst I think it is fair to say that neither of those two groups were angels, I do not think it would be appropriate to refer to them as gangs in the sense that was involved in the cases that I have been referred to, nor was the prior behaviour here in the same league as was involved in the Auckland case where the 13 year period was imposed.

[41] Taking all those matters into account, I consider that a minimum period of imprisonment of 12 years is appropriate, and that is the sentence for murder that I impose.

[42] I make two final comments. First, to Mr Minto’s family. I acknowledge that no sentence for murder can cure the sadness and suffering that a death such as this causes. Nor will it necessarily bring any great sense of peace to those who grieve for the victim, Mr Minto. It is rather the response of our justice system which here, as in all areas, tries to do the best it can in dealing with the complexities of human nature and the tragic consequences of human behaviour.

[43] Second, to you in particular Mr McNaughton but to all in the Court, this case is a tragic example of the fatal consequences of combining firearms and alcohol. Were it not for the decision to bring the shotgun to Branford Park, Mr Minto’s tragic death would never have occurred. Moreover, alcohol played a significant part in your behaviour and in that of others involved. As I have just said, that combination was fatal.

[44] Therefore Mr McNaughton, you have been found guilty of the murder of Troy Minto. I sentence you to life imprisonment and order that you serve a minimum term of 12 years.

[45] On the charges of unlawful possession of a firearm and unlawful assembly, I

sentence you to concurrent terms of imprisonment of 9 and 6 months respectively.

[46] Finally, I say to the families of those who have been involved in this trial, I know there have been tensions between you but I thank you for the generally respectful way you have been able to conduct yourselves in Court. I ask particularly that Mr McNaughton’s family continue to support him. He is a reasonably young man. Things going well he may still be a reasonably young man when with your support he may be able to return to the community if he can basically address his alcohol problem.

[47] Thank you, Mr McNaughton you may stand down.

“Clifford J”

Solicitors: The Crown Solicitor Nelson for the Crown

Tony Bamford Law, Nelson for the prisoner ([e-mail])