R v Bushell [2016] NZHC 750 (20 April 2016)

Last Updated: 26 April 2016

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2015-083-1232 [2016] NZHC 750

THE QUEEN

v

_{CARLOS DUANE BUSHELL}

Hearing:	20 April 2016
Counsel:	M C Jaquiery for Crown S J Burlace for D M Goodlet for Defendant
Judgment:	20 April 2016

_{SENTENCING NOTES OF ELLIS J}

[1] Mr Bushell, as you probably know there are things that I have to say before I actually get to your sentence so you can stay sitting down while I say what I have got to say, but at the end I will get you to stand up, alright.

[2] Mr Bushell, you have pleaded guilty to one charge of being an accessory after the fact to using a firearm against a law enforcement officer.¹ The maximum penalty for that is five years’ imprisonment. Ordinarily sentencing for offending of this nature would be dealt with in the District Court but because you were originally charged jointly with others who were alleged to have committed much more serious offences you are for sentence here today.

[3] There are some things I need to say before I tell you what your sentence will be, beginning with the background facts.

¹ _{Sections 71 and 198A of the Crimes Act 1961.}

R v BUSHELL [2016] NZHC 750 [20 April 2016]

The facts

[4] At around 2.15 in the morning of 19 August 2015 a car driven by Dolphy Kohu was seen in Wanganui by Police, who signalled for him to stop. Mr Kohu’s girlfriend, Ms Paul, was also in the car. Mr Kohu did not stop and was then pursued by two marked Police cars displaying flashing red and blue lights with sirens sounding. Sergeant Sean Jones and Constable Darren Barrow were driving the cars. They followed Mr Kohu around Wanganui then up State Highway 4 to Raetihi. Ohakune Police units were also called out.

[5] Throughout the pursuit Mr Kohu was driving in a highly dangerous manner. He twice managed to avoid road spikes. Just out of Raetihi on a section of rural road, Sergeant Jones managed to use his vehicle to push Mr Kohu’s car off the road and into a wire and baton fence, which made it difficult for Mr Kohu to get out of the vehicle through the driver’s door.

[6] Sergeant Jones approached the car with a Taser drawn. Mr Kohu presented a sawn-off semi-automatic .22 rifle and fired it directly at Sergeant Jones. The first shot was fired while Mr Kohu was sitting still inside the car. Sergeant Jones and Constable Barrow both ran for cover. As they did so, Mr Kohu got out of the vehicle through the open window and continued to fire at them. He fired five shots in total.

[7] The Police Officers went to a nearby house for assistance. Mr Kohu and Ms Paul then drove off in Sergeant Jones’ Police car. They continued to drive it until the car got stuck in a water table. Ms Paul managed to contact a friend who came and collected her and Mr Kohu just before 6.00 am. Later that day it seems they went to your home at Tangiwai. They were not located by Police until 9.15 that night.

[8] In the meantime the Armed Offenders Squad had been called out. Police issued statements to media who broadcast national appeals for Mr Kohu to surrender to Police. Raetihi was on “lock down” for the entire day, with the public being asked to remain indoors, and with shops and schools also closed. The media statements made it clear that Mr Kohu had arrest warrants out against him and was wanted for shooting at the Police.

[9] At 9.14 pm the Armed Offenders Squad were conducting motor vehicle stops in Waiouru. They stopped a black people mover van which you were driving. As the Police were speaking to you, they noticed movement from under a blanket in the back of the van. You were ordered out of the car. Ms Paul was found hiding in the back seat and Mr Kohu was found lying across the rear foot well of the van. He was found to be in possession of a sawn-off .22 calibre rifle, which is believed to be the same home-made pistol used earlier against Sergeant Jones and Constable Barrow. The firearm was loaded with live rounds of ammunition.

[10] You told Police that you had been at work all day, from 5.30 am. Your work was at a dairy farm next door to where you lived with your then partner and children. You said that when you arrived home at about 7 pm, Mr Kohu and Ms Paul were there. Ms Paul is apparently your then partner’s cousin. Mr Kohu told you that “he was in the shit” and asked for a ride to Taihape. You admitted to Police that you drove the family van with Mr Kohu and Ms Paul in it but said you did not know Mr Kohu had shot at Police until he told you at the point when you were pulled over. You said that you did not know that Mr Kohu had a gun, but was aware that he was avoiding Police. You said that driving Mr Kohu made you feel “pretty bloody anxious” but said “I just wanted to get rid of him and get back to my family and work”.

[11] In January this year Mr Kohu died while he was in custody at Wanganui

Prison. Ms Paul pleaded guilty to various charges earlier this month.

[12] So that is the background to why you are here today. Now I need to say a few things about you personally.

Pre-sentence report

[13] Mr Bushell, as I understand it, you are 29 years old. You identify as Māori, of Tuhoe descent. You have three young children who live with their mother. Your relationship with her ended abruptly, I think, after the events of 19 August. You now have a new partner with whom you live.

[14] You also lost your job as a result of what happened with Mr Kohu but have since found other work. You have also expressed a desire to obtain further qualifications.

[15] The PAC report writer has assessed you as being a medium risk of reoffending but the risk of harm you pose to others is assessed as low. You have no prior history of violent offending but you do have a criminal history, which mostly involves low level dishonesty charges. Although you have a number of such convictions between 2009 and 2011 it seems that, until your brief encounter with Mr Kohu and Ms Paul last year, you had been offence free for at least four years. You have a good compliance record with community based sentences.

[16] The report writer recommended a sentence of supervision and community work. Several courses that the writer considers would be of benefit to you have been identified and your completion of these courses are recommended as special conditions of any sentence of supervision that might be imposed.

Victim impact

[17] The victims of Mr Kohu’s offending, Sergeant Jones and Constable Barrow, are also, I suppose, indirect victims of what you did. The main victim, Sergeant Jones has not prepared a victim impact statement because of Mr Kohu’s death. But Constable Barrow has described how incredibly frightening the incident with Mr Kohu was. He speaks about his realisation after each rifle shot that he had not been hit and the huge wash of relief which followed, but also of his feeling of desperate panic at one point when he thought Sergeant Jones had been shot. The incident has affected his family and the fear and wariness it has caused in both them and him. He speaks of his hope that he will be able to put the whole thing behind him once you and Ms Paul have been sentenced.

What is the appropriate sentence?

[18] The first step in deciding what sentence I should impose is to consider what we call the aggravating and mitigating features of your offending. That is, the bad and the good about what you did.

[19] Now the charge to which you pleaded guilty, being an accessory after the fact to using a firearm against a law enforcement officer, is not one which comes before the Court often so there is not much in terms of guidance from other cases about appropriate sentences. Helpfully though, counsel for the Crown and your own lawyer are more or less agreed about what the outcome should be today.

[20] I begin by repeating that the offence with which you have been charged is punishable by up to five years in prison. In the scheme of things that maximum penalty suggests that Parliament regards it is an offence at the medium to low end of the seriousness spectrum. Ms Jaquiery for Crown has referred me to some other “accessory” sentencing decisions which are helpful and I have read those and take them into account. They make it clear that the extent of assistance provided will be relevant to the starting point. A case such as yours, which involved a one-off incident and no active destruction or tampering with evidence would be regarded as at the lower end of the scale.

[21] It is necessary to make it clear that, in acting as you did to help Mr Kohu and Ms Paul evade the Police you were willing to frustrate the Police investigation and, given what you knew about Mr Kohu, to put the community at risk. Although, as I think you said, you probably felt you did not have much in the way of options that day, you nonetheless did choose to do what you did.

[22] But I accept what you say and that you acted as you did to protect your family. I am sure that the arrival of Mr Kohu and Ms Paul at your home on

19 August last year was not welcome and that you wished to get them away from there and away from your family.

[23] Your guilty plea also weighs considerably in your favour, and the Crown accepts that deserves a discount of between 15 and 20 per cent off any end sentence.

[24] In terms of personal factors you do, as I have said, have some previous convictions but the Crown did not ask me to take them into account and I do not do so. They relate to when you were younger and have not been repeated. As I have said you have a job and you are making a contribution to society. It seems you have

good family support and want to do further training. There is, I think, a public interest in keeping you in the community and helping you do that, if that is possible.

[25] And I also note again that it seems that you have already lost your family to some extent and your job on account of what happened last August.

[26] Looking at all these matters together I agree with the Crown and your lawyer that a community based sentence is appropriate. Although you made some poor decisions when you were younger and you made a poor decision to help Mr Kohu last year I accept that you have been on the straight and narrow for some time now. And the supervision that has been recommended will help to ensure that you stay there. In terms of holding you accountable for what you did, of making sure that you make amends for the risk to the public that you were willing to create that day, a sentence of 250 hours community work is an appropriate reflection, I think, of the seriousness of what you did. The 250 hours reflects a discount for your guilty plea. It would have been higher had it not been for that. The Courts have said on many occasions that such a sentence is not to be regarded as minor or insignificant response to offending. You will have to work hard and for quite a long time to complete that sentence.

Sentence

[27] So Mr Bushell if you can stand up now. I sentence you to supervision of nine months on the four special conditions set out in the pre-sentence report, together with 250 hours’ community work. Please stand down.

[28] I also make an order for the destruction of Mr Kohu’s gun, the ammunition and other drug related items found either in the possession of Mr Kohu or in

_{Mr Bushell’s car.}

Solicitors: Crown Solicitor’s Office, Wanganui, for Crown

Debbie Goodlet, Wanganui, for Defendant

“Rebecca Ellis J”