FRENCH v R [2023] NZCA 176

FRENCH v R [2023] NZCA 176 [17 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA571/2022[2023] NZCA 176BETWEEN DANIEL GARY FRENCHAppellantAND THE KINGRespondentHearing: 29 March 2023 (further submissions received 30 March 2023)Court: Cooper P, Lang and Downs JJCounsel: A J Bailey for AppellantM G McClenaghan and J E Lancaster for RespondentJudgment: 17 May 2023 at 11.00JUDGMENT OF THE COURTA The application to recall the conviction appeal judgment is declined.B The appeal is allowed and the sentence of three years' imprisonment formanslaughter is set aside. A sentence of two years six months is substituted,to be served cumulatively on the sentences imposed in the conviction appealjudgment.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)[1] This is an appeal against a sentence of three years' imprisonment imposed byOsborne J after the appellant, Daniel French, pleaded guilty to a charge ofmanslaughter.1 It is said that the sentence, to be served cumulatively on previoussentences for other offending totalling seven years and two months' imprisonment,resulted in a sentence that, considered overall, was manifestly excessive.[2] The manslaughter charge was laid following a successful appeal by Mr Frenchfrom his conviction for murdering the deceased Luke Sears, a patched member of theKing Cobras gang.2 We will call this the conviction appeal judgment.[3] In order to address the arguments on appeal, it is necessary to set out theunusual background of the case.Background[4] Mr French was one of three defendants at the trial. His conviction was as aparty to a murder committed by a co-defendant Alistair Cochrane.3 Mr Sears had beendemanding money from Mr French and threatening him in the days leading up to thefatal incident in which Mr Sears was shot by Mr Cochrane. Mr Sears had assaultedMr French in two incidents on the day before the shooting and had also threatened himwith a pistol. A further altercation the following day led to the homicide.[5] The circumstances of the murder and the role of the defendants in it wereaddressed by this Court in its judgment of 20 December 2021 allowing Mr French'sappeal.4 Near the beginning of the judgment the Court set out a narrative of events,which it based on the sentencing notes of the trial judge, Gendall J. We can adopt thatnarrative for present purposes:5Narrative of events[8] Mr French was involved in a large-scale cannabis growing operationat a property in Selwyn, Canterbury. He also had a firewood business and atthe relevant time was in the process of setting up a pet shop business in1 R v French [2022] NZHC 2470 [Osborne J's sentencing notes].2 Sullivan v R [2021] NZCA 702 [conviction appeal judgment].3 R v Cochrane [2020] NZHC 1485 [Gendall J's sentencing notes]. The third defendant,Ms Sullivan was not charged with murder; she faced five charges of unlawful possession of afirearm and one charge each of unlawful possession of ammunition and attempting to obstruct thecourse of justice by providing false information to the police. Her appeal against conviction wasdismissed (conviction appeal judgment, above n 2, at [134]).4 Conviction appeal judgment, above n 2, at [129].5 At [8]–[22] (footnotes omitted).Rolleston, Canterbury. He had been employing Ms Sullivan at the pet shopfor nearly a year. Shortly before the events giving rise to Mr Sears' death, shehad introduced Mr Cochrane to Mr French. Mr Cochrane had begun carryingout manual labour work for the pet shop business. None of them had any gangaffiliations.[9] Mr Sears had known Mr French for about a year. In the days leadingup to his death, Mr Sears was endeavouring to collect a claimed debt of about$40,000 that he said Mr French owed to him or the King Cobras. Mr Frenchdenied there was any such debt. Rather, he said that Mr Sears owed him$20,000, being the balance of a $60,000 debt for cannabis that Mr Sears hadpurchased from him earlier.[10] On 12 October 2018, Mr Sears and an associate went to the pet shopto threaten Mr French and to obtain payment of the claimed debt. Analtercation took place involving Mr Sears standing over Mr French andpunching him. Ms Sullivan produced a shotgun and placed it on the table inan apparent attempt to scare off Mr Sears. There was then an argument aboutthe weapon and a tussle over it. Mr Sears and his associate then left.[11] Later that day, Mr Sears and his associate returned, again demandingpayment of the alleged debt. He produced a pistol, threatened Mr French withit, and punched him in the face. Ms Sullivan called the police. Police officersarrived and escorted Mr Sears and his associate off the premises. As a resultof the police being called, Mr Sears "taxed" Mr French by increasing the debthe said Mr French owed to him. Mr Sears told him that he had to sign over arural property he owned at Sheffield as part of the alleged debt. On the sameday Mr Sears had visited this property and told the tenant he needed to vacateit and the concerned tenant had called Mr French about this.[12] The next day, 13 October 2018, Mr French asked Mr Cochrane toaccompany him to deliver a load of firewood and to act as a form of protectionor "muscle". This was in case they were confronted by Mr Sears or othermembers of the King Cobras. They left the pet shop in Mr French's vehicle.Mr French was the driver. Mr Cochrane was in the front passenger seat andhad with him a loaded sawn-off shotgun in a bag.[13] As they were driving along a rural road, they encountered Mr Searsdriving the other way with his fiancé, Ms Lawson. Both vehicles stopped.Mr French and Mr Sears got out and began to talk to each other on the road.A physical fight began between them. Ms Lawson got out of Mr Sears' carand tried to stop him engaging in the fight. Mr Sears told Ms Lawson to getback in the car. Mr Cochrane got out of the vehicle with the shotgun, pointedit at Mr Sears and told him to leave Mr French alone. Mr Sears then walkedtowards Mr Cochrane, saying words to the effect of, "what are you going todo with that?", while facing the gun with his arms outstretched. Mr Cochraneretreated. Ms Lawson was pushed away by Mr Sears and again told to returnto the car. Mr French said to Mr Cochrane to "put the gun away" and "let'sleave", and Mr Cochrane may also have said something too about leaving thescene.[14] Mr Sears moved to the driver's door of Mr French's vehicle. The doorwas closed but its window was largely open. Mr Cochrane went to the frontpassenger side of the vehicle. The window of the passenger door was open.Mr Sears leant through the driver's door window to take the keys out of theignition, saying that they were "not going anywhere". Mr Cochrane was stillholding the shotgun. The shotgun discharged and Mr Sears was hit in the rightside of his chest. He died of his injuries shortly afterwards.[15] Mr French and Mr Cochrane got into the vehicle and drove off. Theywent to Mr French's address. Mr French gave Mr Cochrane the keys toanother vehicle and Mr Cochrane left. Several minutes later, Mr French droveback to the scene of the shooting, contacted the police and said the firearmhad accidentally discharged.[16] Although the police knew Mr French was involved in the events, theydid not know the identity of the shooter. On the afternoon of 13 October 2018,after the shooting, the police spoke to Ms Sullivan. She told them that "Ali"was involved, he had the last name "Wilson", he lived in Linwood, had linksto Black Power and was from Blenheim.[17] On 14 October 2018 she was again spoken to by police. She said shehad only met the man involved at a party some weeks earlier. She signed astatement saying his name was "Al Yo", "Elijah" or "Eleshia Wilson". Shesaid she regularly picked him up to take him to work at the pet shop. This wasall false because the shooter was Mr Cochrane and he was living withMs Sullivan at the time.[18] Ms Sullivan was again interviewed on 16 October 2018. By this timeMr Cochrane had been identified by the police as the likely shooter.Ms Sullivan told the police that she had known Mr Cochrane for a few yearsand the last time she saw him was three weeks earlier. She again referred to"Al Yo" and said this was not Mr Cochrane. She also said she did not knowthe whereabouts of Mr Cochrane, but that he was possibly in Gisborne. Thesestatements were untrue.[19] Ms Sullivan was interviewed again on 17 and 18 October 2018. On17 October she admitted that "Al Yo" was Mr Cochrane and said she had notseen him for a number of days. On 18 October she said that Mr Cochrane hadarrived back at the pet shop on the day in question but he had left in a hurryand she saw him back home. She also said she had never seen him with a gunand he did not own one.[20] On 18 October 2018 Mr Cochrane handed himself in. On that date asearch warrant was executed at Ms Sullivan's address. The search found fourfirearms together with a quantity of ammunition in a secret compartmentconstructed and hidden under a manhole in a bedroom wardrobe in the house.Two of the firearms were cut-down shotguns fitted with pistol grips, and therewas also a pump action shotgun and .223 calibre assault rifle.[21] On 13 December 2018, Ms Sullivan conceded to police that some ofher earlier statements were "bullshit". She denied any knowledge about thefirearms found at her address. In an intercepted phone call made from prisonMs Sullivan admitted to giving the police "a whole lot of bullshit" when shehad spoken to them on the earlier occasions.[22] In addition to the charges that went to trial and Mr Cochrane's guiltypleas at the commencement of the trial to four charges of unlawful possessionof a firearm and one charge of unlawful possession of ammunition, Mr Frenchpleaded guilty in the District Court to the following: possession ofmethamphetamine for supply, offering to supply methamphetamine, twocharges of unlawful possession of a firearm, two charges of unlawfulpossession of ammunition, cultivation of cannabis, selling and supplyingcannabis, possession of N-Ethylpentylone for supply, and theft.[6] The Court rejected Mr Cochrane's appeal against his murder conviction.6 Butit allowed Mr French's appeal.7 The Crown's case was that Mr French andMr Cochrane had armed themselves with the shotgun on the day of the shooting, withthe shared understanding that they would use it as a deterrent and at the very least toscare Mr Sears should they become involved in a confrontation with him.[7] Mr French's liability was alleged to arise under s 66(2) of the Crimes Act 1961.The Crown claimed that a probable consequence of carrying a loaded firearm was thatsomeone would be shot, especially in a tense situation involving a confrontation witha gang member. The Crown contended that Mr French must have foreseen that, asMr Sears was not prepared to back down or walk away from Mr French, it was aprobable consequence that Mr Sears would be shot by Mr Cochrane.[8] The Judge summed up on the basis that if the jury were sure that Mr Cochranehad murdered Mr Sears, to convict Mr French of murder they would need to be surethat there was a shared understanding or agreement between them to present a loadedfirearm at Mr Sears to scare and/or assault him.8 Defence counsel had sought that thejury be instructed that they needed to be sure that "the purpose to scare or assault wasunlawful in the circumstances", because there would not be an unlawful purpose if theagreement had only been to present the firearm in circumstances of justified self-defence or defence of another. The jury were directed to consider whetherMr Cochrane was acting in self-defence when considering whether he was guilty ofmurder; they were not directed to consider whether it was reasonably possible that theunderstanding between Mr Cochrane and Mr French was to present the firearm onlyin self-defence (or defence of another) in which case there would have been nounlawful common purpose.6 At [39].7 At [66].8 At [48]–[50].[9] This Court allowed Mr French's appeal on that basis. Liability under s 66(2)required proof that the shared understanding was to carry out an unlawful purpose,which could not include acting in self-defence.9 The jury should have been directedto consider "whether it was reasonably possible that the shared understanding was topresent the firearm only in circumstances of justified self-defence, in which case therewould not have been a common unlawful purpose."10 That omission was a materialerror in the directions to the jury, given there was evidence on which they could haveconcluded that it was reasonably possible that the common intention was so limited.11[10] A further and consequential issue with the summing up was that the jury wasnot asked to consider whether Mr French foresaw a culpable homicide, that is the deathof Mr Sears in circumstances other than self-defence.12 Because of these two errors,there was a real risk that the outcome of the trial was affected, for the purposes ofs 232(4)(a) of the Criminal Procedure Act 2011.13[11] Finally, the Court concluded that Mr French's defence that he had withdrawnfrom any agreement he had with Mr Cochrane to carry out an unlawful act had notbeen properly put in the summing up.14 This was another material error that couldhave affected the outcome of the trial.15 As a consequence, Mr French's convictionappeal was allowed and his conviction for murder quashed.16 The Court ordered anew trial.17[12] It is necessary now to note that Mr French had pleaded guilty to charges ofpossessing methamphetamine for supply and offering to supply methamphetamine;cultivating cannabis and unlawfully supplying cannabis; unlawfully possessingfirearms and ammunition; theft and possession of N-Ethylpentylone for supply.Gendall J imposed concurrent sentences on all those charges, with an overall term of9 At [53]–[55].10 At [63].11 At [63].12 At [65].13 At [66].14 At [83]–[89].15 At [89].16 At [129].17 At [131].seven years and two months' imprisonment.18 His methodology was summarised bythis Court as follows:19[90] In sentencing Mr French on the charges to which he had pleadedguilty, the Judge's approach was to set a starting point of three years andsix months for the methamphetamine offending, and then four years on thecultivating cannabis charge, with an 18 month uplift for possession of firearmsand ammunition and a six month uplift for theft and possession ofN-Ethylpentylone. After adjustments for totality, previous convictions and theguilty plea, the overall end sentence on these charges was seven years andtwo months' imprisonment. The Judge did not go on to allocate sentences tothe individual charges. In summarising the [appellants'] sentences he said:[111] Then, for the drugs charges, the methamphetamine, cannabisand related charges, the firearms and theft charges, Mr French, youare sentenced to seven years and two months' imprisonment, to beserved concurrently.[13] Because a specific sentence had not been expressed in respect of eachindividual charge, the consequence of this approach was to impose the sentence ofseven years and two months on each charge. This meant that the sentences for thecultivating cannabis, firearms and ammunition charges exceeded the statutorymaximum. The sentence appeal was advanced on the sole basis of that error, theCrown conceding that the appeal should be allowed to correct it and allocateappropriate sentences to each of the charges. But as this Court recorded, neitherMr French nor the Crown suggested what the individual sentences should be.20[14] It was left to the Court to allocate individual sentences that reflected therespective seriousness of the offences but preserved the overall effective sentence ofseven years and two months' imprisonment. In the result the sentences on the chargesto which Mr French had pleaded guilty were set aside and new sentences weresubstituted as follows:21[93] Accordingly, we grant leave to appeal out of time and we set aside theHigh Court sentences on the charges to which Mr French had pleaded guiltyand substitute the following sentences:18 Gendall J's sentencing notes, above n 3, at [109] and [111].19 Conviction appeal judgment, above n 2.20 At [92].21 Footnote omitted.(a) On the convictions for possessing methamphetamine forsupply and offering to supply methamphetamine: concurrentsentences of three years' imprisonment.(b) On the convictions for cultivating cannabis and unlawfullysupplying cannabis: concurrent sentences of three years'imprisonment.(c) On the convictions for unlawfully possessing firearms andammunition: concurrent sentences of one year imprisonment.(d) On the convictions for theft and possession ofN-Ethylpentylone for supply: concurrent sentences oftwo months' imprisonment.(e) The sentences in (a), (b), (c) and (d) are cumulative on eachother.[15] Mr French subsequently pleaded guilty to causing the death of Mr Sears by anunlawful act thereby committing manslaughter.22 Osborne J sentenced Mr French onthe basis that he was liable as a party under s 66(2) of the Crimes Act.23 This meant,as was accepted by Mr Bailey in the High Court, that Mr French had participated inan unlawful common purpose, from which he had not withdrawn before Mr Cochraneshot Mr Sears.[16] The Judge said that he was adopting the narrative of events set out in theconviction appeal judgment,24 which reflected the evidence at the trial, although healso noted that the "central facts" were contained in the summary of facts whichMr French had accepted.25 He then set out his own summary.26[17] He observed that there was no tariff case for manslaughter because thecircumstances of that offence are so variable.27 In fixing the starting point the Judgeidentified four aggravating features of the offending.28 These were premeditation (theJudge noted both Mr French and Mr Cochrane were in possession of the shotgun), theserious injury caused, the vulnerability of the victim and the fact that there was a22 Crimes Act 1961, ss 62(2), 160, 171 and 177.23 Osborne J's sentencing notes, above n 1, at [1].24 At [4].25 At [3].26 At [5]–[12].27 At [31] citing R v Thomas [2018] NZHC 819 at [49].28 At [32].background of drug offending.29 Mitigating features of the offending were said to beserious provocation by the victim, Mr French's limited involvement in the offence,and his cooperation with the police.30[18] Since the case involved serious violent offending, the Judge thought itappropriate to apply this Court's judgement in R v Taueki.31 He considered theoffending was at the higher end of Band 2 (calling for starting points between five to10 years' imprisonment) having particular regard to the involvement of the firearm.32But the mitigating features were unusual and significant.33 After considering othermanslaughter sentences to which counsel referred and finding them of limitedassistance,34 he arrived at a starting point of six years and nine months'imprisonment.35[19] Although Mr French had a number of previous convictions for firearm anddrug offending, the Judge did not uplift the starting point saying that would beinappropriate on account of previous similar convictions for which sentences hadalready been imposed.36 He allowed a 25 per cent discount for the guilty plea.37 Hewas not satisfied Mr French was remorseful to an extent requiring a discrete discountbut allowed a further discount of five per cent for participation in a restorative justiceconference.38 Another discount, of 10 per cent, was allowed to reflect the likelihoodthat animosity towards him by members of the King Cobras gang would makeimprisonment more difficult for Mr French than for many other prisoners.39[20] Overall, the starting point of six years and nine months was reduced bydiscounts totalling 40 per cent, leaving an end sentence of four years' imprisonment.40The Judge then considered totality, noting that the sentences imposed on the other29 At [32]30 At [33].31 At [34].32 At [35].33 At [36].34 At [39]–[41]. The Judge discussed R v Rapira [2003] 3 NZLR 794 (CA), Pahau v R [2011] NZCA147 and R v Innes [2016] NZHC 1195.35 At [42].36 At [44].37 At [46].38 At [50]–[51].39 At [52].40 At [54].charges were originally to be served cumulatively on the sentence of life imprisonmentoriginally imposed for murder.41 The Judge assessed the appropriate outcome was asentence of three years' imprisonment for the manslaughter, to be served cumulativelyon the existing sentences.42 This meant that the effective term for all of the offendingwould be 10 years and two months' imprisonment.43The appeal[21] Mr French appeals on the basis that the sentence of three years' imprisonmentimposed by Osborne J resulted in an overall sentence that was manifestly excessive.Mr Bailey submits the Judge had wrongly identified aggravating features, overlookeda mitigating factor, adopted an excessively high starting point and failed properly toadjust the overall sentence for totality.[22] Mr Bailey was also critical of the fact that Osborne J, by imposing a cumulativesentence, had overlooked errors of approach in Gendall J's original sentenceconcerning the appropriate uplift for Mr French's previous offending. This was fixedat 12 months, a figure Mr Bailey claimed was too high. He was also critical of thepoint at which Gendall J had adjusted the sentence for totality, claiming that if theappropriate approach had been adopted the reduction would have been greater and theend sentence lower.[23] Mr Bailey submitted that this Court should recall the conviction appealjudgment so as to adjust the sentences imposed on the other charges, claiming therewas a "very special reason" to do so, in terms of the Supreme Court's judgment inUhrle v R.44 The very special reason relied on was the difficulties that would attendMr French's time in prison, difficulties that had not been referred to (and consequentlynot taken into account) when Mr French was sentenced by Gendall J, but had beenincluded in the pre-sentence report prepared for the manslaughter sentencing and takeninto account by Osborne J. Mr Bailey argued that the Court should reduce the sentence41 At [55].42 At [57].43 The Judge referred to 10 years three months' imprisonment, but should have referred to ten yearstwo months.44 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].imposed by this Court on the other charges. One way of doing that would be towithdraw the conviction appeal judgment to make the appropriate adjustment.[24] Mr Bailey also urged recall on the basis that this Court had not carried out aproper assessment of the merits of the sentences imposed on the other offending,merely adjusting the original sentences to overcome the error concerning maximumpenalties.[25] We deal with the recall issue before turning to the other grounds of appeal.Recall[26] In practice, an application for recall would normally be dealt with by the panelof the court that delivered the judgment in question. It is preferable that course befollowed. However, we accept that is not a reason for declining the application nowmade and in this case there is a justification for dealing with the issue in conjunctionwith the sentence appeal also before this Court.[27] However, an application for recall can only be advanced in limitedcircumstances, as confirmed by the Supreme Court in Uhrle v R.45 Recall is an"exceptional step" only permissible where:46(a) following the hearing, a relevant statute or regulation of high authorityhas been amended;(b) counsel failed at hearing to direct the court's attention to a plainlyrelevant legislative provision or authority; or(c) for a "very special reason" justice requires it.45 Uhrle v R, above n 44, at [25]–[29] citing Horowhenua County v Nash (No 2) [1968] NZLR 632(SC) at 633 and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122,[2010] 1 NZLR 76. In Uhrle v R, the Supreme Court held that the court's recall jurisdiction issufficiently captured by the test traditionally applied in the civil jurisdiction, as articulated inHorowhenua County.46 Uhrle, above above n 44, at [25]–[29].[28] This Court in Lyon v R held that:47The interests of justice do not ordinarily require that the applicant be given asecond opportunity to take an available point of fact or law. The starting pointis that the applicant has already had a hearing. So recall does not extend to aparty recasting previous arguments or putting forward further grounds thatmight have been examined at the earlier hearing but were not.[29] Mr Bailey has submitted that the newly available evidence of the difficultiesthat Mr French will experience in prison constitutes a "very special reason" warrantinga recall. However, recall is not appropriate in these circumstances for three reasons.[30] First, the purpose of the argument for recall is essentially to further an attemptto reduce the sentences imposed by Gendall J. But there has already been an appealagainst those sentences.48 Mr Bailey appeared for Mr French at the hearing. It wasplainly not suggested then that the sentence imposed on the other charges wasexcessive. All that was claimed was that because the same sentence was imposed onall the offences to be served concurrently, the result had been that in some casesstatutory maxima had been exceeded. This Court adjusted the sentences whilepreserving the overall outcome of an effective term of seven years two months'imprisonment.49 It was not suggested then that any other approach was appropriate,or necessary to avoid an excessive sentence. There had been ample time to developany available argument to that effect in the 17 months that had elapsed between thesentencing and the hearing of the appeal in this Court. The limited basis on which theappeal against sentence was advanced is an unpropitious basis on which to nowadvance an argument for recall.[31] Second, the sentences imposed, as adjusted by this Court, do not appear to beexcessive. Gendall J had imposed sentences of three years six months for themethamphetamine offending, saying:50in terms of your methamphetamine offending, Mr French, both thepossession for supply quantity of 28.1 g and the offering to supply consistingof [31] offers of between 0.5 g to 5 g, fall into the low to mid end of [Band 2]of Zhang under "supply", given the nature of the operation. You played a key47 Lyon v R [2020] NZCA 430 at [25] (footnote omitted).48 See conviction appeal judgment, above n 2.49 At [92].50 Gendall J's sentencing notes, above n 3, at [94] (footnote omitted). Citing Zhang v R [2019]NZCA 507, [2019] 3 NZLR 648.role in the offending, Mr French, by sourcing the methamphetamine for supplyand by providing the vehicle for your co-defendant, Ms Ward, to use todistribute the drug, and you called yourselves a "team". Ms Ward, on thosecharges, accepted the sentence indication, as we have said, where a startingpoint was adopted for the methamphetamine offending of three anda half years' imprisonment. In those circumstances, I consider it appropriate[to set] a starting point of three years and six months is also adopted here.[32] This Court reduced the sentences for the methamphetamine offending toconcurrent sentences of three years' imprisonment.51 In relation to the cannabischarges, cultivation and unlawful supply, Gendall J said:52your cannabis offending, Mr French, falls squarely into category 3 ofTerewi. This was a sophisticated and large-scale growing operation. Basedon the information you, Mr French, gave to police as to the quantity youtypically grew and the value you sold it for, the value to you of one growingcycle was between $33,600 and $39,200. Given the clear commerciality ofthe offending, a starting point of four years is appropriate, consistent with theTerewi categorisation.[33] The summary of facts described a "sophisticated and well-executed cannabisoperation with an extremely well-organised and planned theft of power." The lattergave rise to the charge of theft,53 the summary of facts from the conviction appealreferring to power stolen from Genesis Energy to the value of $11,917.54. Gendall Jimposed an uplift of six months separately for this theft and the possession ofN-Ethylpentylone.54[34] This Court again adjusted the sentences for the convictions for cultivating andunlawfully supplying cannabis to concurrent sentences of three years' imprisonment.55This Court also substituted the uplift for the convictions for theft and possession ofN-Ethylpentylone with concurrent sentences of two months' imprisonment.56 Aspreviously noted, there were comparatively minor adjustments in respect of the othercharges. But the same approach to cumulative sentences was preserved — thesentences were to be cumulative on each other — as was the uplift for previousoffending, and the discount for the guilty plea.5751 Conviction appeal judgment, above n 2, at [93(b)].52 Gendall J's sentencing notes, above n 3, at [95]. Citing R v Terewi [1999] 3 NZLR 62 (CA).53 Crimes Act 1961, ss 219 and 223(b).54 Gendall J's sentencing notes, above n 3, at [97].55 Conviction appeal judgment, above n 2, at [93(c)].56 At [93(d)].57 At [93(e)].[35] Mr Bailey submitted that this Court had not undertaken an assessment as to theappropriateness of the overall seven years two months' term of imprisonment, but theadjustments made suggest that it did in fact consider the appropriate sentence for eachof the charges. We do not accept that the Court would have preserved the effectiveterm of seven years and two months' imprisonment if it had been of the view thesentence was manifestly excessive. Mr Bailey articulated no reasoned basis on whichthe starting points notionally adopted were excessive.58[36] Third, Mr Bailey says that the primary basis for recalling the judgment is thenewly available material about the difficulties Mr French will face in prison. We arenot persuaded this can be a proper ground for recalling the conviction appealjudgment, especially in circumstances where Mr Bailey articulates no compellingargument that the sentences previously imposed for the offending were excessive.[37] In sum, we are satisfied that the high threshold set by the test adopted by theSupreme Court in Uhrle has not been met.59 No sufficiently special reason has beenmade out which would warrant the granting of a recall application. The result is thatthe Court's previous judgment should not be recalled. Rather, the present appealshould be considered on the basis of whether the cumulative sentence of three yearsimposed by Osborne J for the manslaughter of Mr Sears was clearly excessive. Insaying that, we accept that the sentence has to be approached by acknowledging it wasimposed cumulatively on the sentences earlier imposed by Gendall J.The manslaughter sentence[38] Mr Bailey argued the sentence imposed by Osborne J was clearly excessive ona number of bases, but all leading in the end to the claim that considered in terms of atotality analysis, the overall outcome was not justified. We see totality as the mainissue, because on the face of it a sentence of three years' imprisonment following aguilty plea to a manslaughter in which the deceased died as a result of being shot doesnot of itself appear excessive, even though it was Mr Cochrane who shot the victim.58 The limited nature of the argument presented meant that the Court did not articulate what startingpoints were adopted, being content to make minor downwards adjustments for the majoroffending.59 Uhrle v R, above n 44, at [25]–[29].[39] Mr Bailey's first argument was that the Judge wrongly identifiedpremeditation, victim vulnerability and the "drug-offending background" asaggravating features.60 He noted that at sentencing, the Judge said in relation topremeditation that both Mr Cochrane and Mr French "each had that shotgun withintent to use it if it proved necessary".61 Mr Bailey maintained that this was consistentwith Mr French being sentenced on the basis that he foresaw death with murderousintent, but Mr French had not pleaded guilty to manslaughter on that basis. It is notnecessary for a party to manslaughter to foresee death, simply the risk of an unlawfulact.62 Consequently, Mr Bailey contended there was only limited premeditation,because the Crown's case was that Mr Cochrane and Mr French had a commonunderstanding or agreement simply to present the loaded firearm at the deceased to"scare and/or assault" him.[40] This argument does not properly reflect what Osborne J said on the issue ofpremeditation. His remarks were as follows:63you were, with Mr Cochrane, deliberately in possession of a shotgun (weknow that it was loaded but I do not treat you as being aware of the fact thatit was loaded) and you each had that shotgun with intent to use it if it provednecessary[41] We do not accept this shows, as submitted by Mr Bailey, the Judge wassentencing Mr French on the basis that the ultimate outcome of a "murderous death"was premeditated. The acknowledgement that Mr French did not know the gun wasloaded shows that was not the Judge's approach. The reference to an intent to "use"the gun was consistent with the use being threatening the victim with it. The guiltyplea to the manslaughter must be taken as acknowledging the possibility that morethan trivial harm might be caused by executing the common purpose. The Judge wasright to identify the presence of the gun as indicative of premeditation in the sense hedescribed. We see no error in his approach.[42] Mr Bailey is on slightly stronger ground with his criticism of the Judge'sreference to the victim being vulnerable. The Judge noted the deceased was unarmed60 See Osborne J's sentencing notes, above n 1, at [32(a)] and [32(c)-(d)].61 See [32(a)].62 Mr Bailey referred here to Burke v R [2022] NZCA 137.63 At [32(a)].and would have been unaware that the shotgun was loaded, and the degree of risk hefaced.64 We accept that he was vulnerable in that sense, but s 9(1)(g) of theSentencing Act 2002 refers to victims who are particularly vulnerable because of age,health or any other factor known to the offender. We do not see those words asnaturally applying to a situation where the only source of vulnerability is a gun in thepossession of the offender which the victim does not know is loaded. The idea ofparticular vulnerability requires something more than that to provide a sensible basisfor increasing the sentence that would otherwise have been imposed.65[43] But in any event, it is not immediately apparent why the sentence to be imposedon Mr French should have been influenced by his knowledge that Mr Sears would nothave known the gun was loaded, when he himself did not know it was. So, we areinclined to agree this aggravating factor was not made out.[44] As to the drug-offending background, the Judge held that this was somethingto which he must "have some regard" as an aggravating feature.66 He indicated it wasnot as significant as the other aggravating matters, but he accepted a Crownsubmission that the drug offending context, in which a shotgun and ammunition wereinvolved, in itself, created a dangerous situation.67[45] Mr Bailey criticised this approach on the basis that the shotgun was notpossessed for the purpose of protecting any drug growing or dealing operation, nor toenforce any drug dealing debt. Rather, the shotgun had been carried because ofMr Sears' own unlawful actions including the threats and assaults directed againstMr French. However, the drug dealing background was clearly a relevant part of thecontext. On Mr French's own admissions, he had claimed Mr Sears owed him $20,000in respect of the purchase of cannabis, with the King Cobras claiming Mr French wasindebted to them for twice that amount. It was appropriate for the Judge to take thecontext into account, including the inherent dangers involved in the combination ofdrug dealing and firearms.64 At [32(c)].65 Cummings v R [2016] NZCA 509 at [81]. This Court found particular vulnerability which wasnot innate to the victim had no weight as an aggravating factor, as most victims are vulnerable toan offender's attack in some way.66 Osborne J's sentencing notes, above n 1, at [32(d)].67 At [32(d)].[46] In the end the only error as to an aggravating feature arises from thecharacterisation of Mr Sears as particularly vulnerable for the purposes of s 9(1)(g) ofthe Sentencing Act. That left premeditation, serious injury and the drug-offendingbackground as matters which could legitimately be counted as aggravating for thepurposes of calculating the starting point.[47] The next criticism advanced was that the Judge failed to take into account as amitigating factor the limited nature of the common purpose which led to Mr French'sculpability. The common purpose, Mr Bailey argued, should not have been viewed as"unlawful per se". Rather, it was "unlawful because the pre-emptive (contingent) levelof force involved with it was disproportionate to the threat (again only by a finemargin)." Mr Bailey developed this argument by drawing an analogy to casesinvolving excessive self-defence, a kind of case recognised in R v Taueki as capableof reducing the seriousness of offending causing grievous bodily harm.68 In Taueki,this Court said, in reference to excessive self-defence, that:69where a party has acted out of self-defence but has gone too far, the fact thatthe attack initially commenced as an effort to defend himself or herself (oranother) may be seen as reducing the seriousness of the offending.[48] Here, Mr Bailey submitted the Judge should have sentenced Mr French on thebasis that it was appropriate for him, given the background of Mr Sears' threats andassaults, to have planned ahead and made arrangements for his safety. The commonpurpose entered into was one for defensive purposes, and contingent in nature. Theguilty plea meant that the purpose was unlawful, but only on the basis that it went toofar.[49] As this Court recognised in the conviction appeal judgment: "[a] sharedunderstanding to do something only if justified in circumstances of self-defence is nota shared understanding to do something unlawful."70 So Mr French's guilty plea isinconsistent with the idea that his shared understanding with Mr Cochrane was onlythat they would use the gun if necessary for self-defence. Mr Bailey's submissionattempts to avoid the implication of the guilty plea, which is that he and Mr Cochrane68 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.69 At [32(b)]70 Conviction appeal judgment, above n 2, at [60].acted pursuant to an unlawful common purpose. Even if it were accepted thatMr French's original intention were to act only in self-defence, at some point the linewas crossed and the common purpose changed its character. He therefore became aparty to an unlawful homicide under s 66(2). We do not see this as analogous to casesof excessive self-defence discussed in Taueki:71 the incident in which Mr Sears wasshot did not begin with Mr French acting to defend himself.[50] To the extent that there was prior conduct by Mr Sears which formed a relevantpart of the background to the offending, that was properly taken into account by theJudge as one of the mitigating features of Mr French's offending. His sentencingremarks included the following:72Provocation: the Court of Appeal has indicated that the conduct of the victimis to be taken into account if I am satisfied that there was serious provocationwhich was an operative cause of the violence inflicted upon Mr Sears, and thatit remained an operative cause throughout the commission of the offence.73 Iam satisfied that Mr Sears' conduct, particularly against his gang background,was and remained an operative cause in your offending. As Mr Baileysubmitted, your fears for your own safety stemmed from Mr Sears' earlierconduct over the preceding period. Those fears, I accept, were well-founded.It was undoubtedly the escalation of Mr Sears' aggression and violence theprevious day that led to your involvement in the decision to be involved witha shotgun as you and Mr Cochrane drove off in your vehicle on 13 October.It was Mr Sears who had given you cause to fear for your own safety. Thatwas a continuing situation.[51] This fully and appropriately dealt with the conduct of Mr Sears relevant to theoffending. The conduct formed one of the elements that led the Judge to deduct25 per cent from the starting point for matters mitigating the offending.74 This wasthe appropriate way to deal with Mr Sears' conduct. We see no basis on which thisCourt could conclude that the Judge's approach was wrong.[52] Mr Bailey's final argument focussing specifically on the manslaughtersentence was that the starting point adopted was excessively high. This was advancedprincipally on the basis that that the Judge had wrongly drawn an analogy to Taueki inassessing the appropriate starting point. In doing so the Judge placed the offending at71 R v Taueki, above n 69, at [32(b)]72 Osborne J's sentencing notes, above n 1, at [33](a).73 R v Taueki, above n 69, at [32](a); Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR at [62]–[63]; and Va v R [2011] VSCA 426 at [42].74 At [36].the higher end of Band 2, "particularly having regard to the involvement of thefirearm."75 Mr Bailey contended that the Judge should instead have had regard toother manslaughter cases: in particular he should have been influenced by the startingpoint of four and a half years' imprisonment adopted in R v Innes.76 In fact, hesubmitted an even lower starting point was appropriate here.[53] Mr Bailey argued that Taueki was an inappropriate authority to use because itconcerned the intentional infliction of violence, and that had not been Mr French'sintention. He drew support for this submission by reference to observations of Cooke Jin R v Fore which he submitted had been endorsed on appeal in this Court.77 Cooke Jobserved that in manslaughter cases there may some awkwardness in applying theTaueki guidelines, and that comparisons with other cases may be a better guide.78 Onappeal, this Court observed:79The aggravating factors identified in Taueki were obviously relevant whenfixing the starting points in the present case. The Judge took them intoaccount, as do we. However, care needs to be taken when comparing them tostarting points selected in cases involving the intentional infliction of grievousbodily harm. As the Judge observed, the respondents in this case were verymuch participants in a robbery gone wrong. We agree with his observationthat starting points adopted in cases that are factually comparable provide thegreatest assistance in selecting the appropriate starting points in the presentcase.[54] In the present case the Judge did not simply apply Taueki – he also discussedcomparator cases to which he had been referred by counsel. He noted that the unusualnature of the offending made it difficult to find cases that were similar. He rejected asunhelpful cases on which the Crown relied, R v Rapira and Pahau v R, noting that theyhad involved defendants who had set out on confrontations intended respectively toinvolve robbery and serious violence.80 Mr Bailey relied principally on R v Innes, inwhich Mander J had adopted a starting point of four and a half years' imprisonmentfor manslaughter.81 Mr Bailey suggested by comparison, an even lower starting pointshould have been adopted in the present case.75 At [35].76 See Innes, above n 34.77 R v Fore [2020] NZHC 2290 at [18]; and R v Fore [2021] NZCA 28 at [40].78 R v Fore (HC) at [18].79 R v Fore (CA), above n 77, at [40].80 R v Rapira and Pahau v R, above n 34.81 R v Innes, above n 34, at [28].[55] In Innes, the appellant and his co-defendant Mr Baker went to a residentialaddress for the purpose of obtaining illicit drugs. They agreed on a plan, whichinvolved Mr Innes knocking on the door while Mr Baker hid outside in bushes. Theplan was for Mr Innes to lure the occupants outside which he succeeded in doing. Theoccupants then became aware of the presence of Mr Baker and retreated inside.Mr Baker had a hunting knife. A confrontation ensued, and one of the occupants wasfatally stabbed by Mr Baker. Mr Innes was aware from the outset that Mr Baker wascarrying the knife but played no part in the assault.[56] Mander J sentenced Mr Innes on the basis that he had agreed to assist Mr Bakerto obtain drugs from the occupants of the property, that he had known Mr Baker hada knife, and that he must have appreciated the risk of a confrontation which wouldlikely involve threats of violence, and which might result in an assault.82 He had alsoknown that Mr Baker was erratic and unreliable.83 While the facts weredistinguishable, the differences were favourable to Mr French, and a starting point nohigher than three years would have been appropriate in the present case.[57] Osborne J concluded the common enterprise in the present case carried with ita "potentially greater risk of someone dying" than that in Innes because it involved theuse of a shotgun to "scare or assault" someone who "was plainly and recentlyaggressive".84 Importantly, however, he also took the view that the four and a halfyears starting point adopted in Innes sat "at the bottom of an appropriate range".85 Hethought it was too low to be applied in the present case even taking into account thesignificant mitigating features which he had identified.[58] Mr McClenaghan for the Crown acknowledged that the six years nine months'starting point the Judge adopted was towards the upper end of the available range butmaintained that it did not result in a manifestly excessive sentence.[59] We are inclined to the view that the starting point adopted by the Judge wastoo high. He was not bound to adopt a similar starting point to that fixed in Innes and82 At [27].83 At [27].84 Osborne J's sentencing notes, above n 1, at [40].85 At [41].he was entitled to consider that the starting point in that case was low. He was alsoentitled to be influenced by the fact that the defendants were in possession of a gunbrought to the scene with the intention of using it. Again, the Judge was right toconclude that a gun may be inherently more dangerous than a knife. But there is meritin the point made by Mr Bailey that in Innes the defendants had set out on a purposewhich was from the outset unlawful as they intended to take the drugs by force ifnecessary. Here, it appears that, at least initially, the gun was carried for the purposeof protection, although it was not ultimately used in that way. That of course does notdetract from the implications of Mr French's guilty plea. But there is a wide differencebetween the six years nine months starting point here, and the four years six monthsfixed in Innes. Both cases involved the use of a weapon and secondary offenders whowere not directly responsible for the act which caused death. We doubt the extent ofthe disparity can be explained on any basis other than Osborne J considering that theInnes starting point was too low.[60] Having said that, we have not been persuaded that, considered on its own, themanslaughter sentence of four years' imprisonment (prior to the totality adjustment)was manifestly excessive. As discussed, we do not agree with most of Mr Bailey'sspecific criticisms of the way the sentence was constructed. The only element whichwe have not accepted was the characterisation of Mr Sears as vulnerable. Since therewere other aggravating circumstances on which the Judge properly relied, we doubtthis would have been material to the overall calculation of the sentence. In the end weare not persuaded the sentence for manslaughter was excessive prior to adjustment fortotality. The adjustment reduced the final sentence to one of three years'imprisonment, which was not significantly different from the final sentence oftwo years ten months imposed in Innes.86Totality[61] The final question is whether the adjustment for totality was sufficient. TheJudge recognised that an adjustment for totality was appropriate, without articulatingreasons for arriving at the three-year cumulative term which he fixed.8786 See Innes, above n 34, at [36].87 Osborne J's sentencing notes, above n 1, at [55]–[57].[62] Mr Bailey argued that the totality adjustment should have been greater. Hecontended that the seven years two months' effective term for Mr French's otheroffending was "academic" when imposed in the High Court and confirmed by thisCourt because of the contemporaneous sentence of life imprisonment for murder. Thesentences imposed by Gendall J for the other offending were necessarily concurrentwith the sentence for murder. While the sentences as adjusted by this Court wereimposed cumulatively on each other, there could be no consideration of totalitypending the outcome of the retrial. The fact that Osborne J had imposed themanslaughter sentence as a cumulative one meant that it was appropriate to considerafresh all of the sentences imposed for the purposes of a proper totality analysis.[63] In this context Mr Bailey noted that Gendall J imposed a 12-month uplift forprevious offending relevant to the drugs, firearms and ammunition charges, which healleged was excessive, given that for all of the relevant prior charges Mr French hadbeen sentenced only to five months' home detention. In accordance with the Court'sreasoning in Orchard v R, the uplift exceeded the prior sentence and was consequentlydisproportionate.88 And in the circumstances, Osborne J had imposed themanslaughter sentence cumulatively on an effective sentence for the other offendingthat was already too high.[64] Mr Bailey was also critical of the methodology by which Gendall J constructedthe sentence, making a totality deduction at the outset, instead of doing so at the endof the calculation.89 The alternative and correct approach would have been to makethe totality adjustment at the end, which Mr Bailey claimed would have resulted in asentence five months lower than that imposed. We note Gendall J's sentence wasimposed prior to this Court's decision in Moses v R,90 which would have required adifferent approach, although Mr Bailey's argument assumes the totality deductionwould have been the same, which is not necessarily the case.[65] Another argument raised by Mr Bailey concerned the fact that while Osborne Jhad allowed a 10 per cent deduction to reflect the gang-related difficulties that88 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [41].89 See Gendall J's sentencing notes, above n 3, at [98].90 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.Mr French would likely face in prison,91 no such deduction had been made byGendall J.92 It was not an issue raised at that stage, and relied largely on difficultiesthat have become apparent subsequently. Mr Bailey advanced this issue by referenceto the pre-sentence report prepared for the manslaughter sentence. It is clear from thereport that Osborne J was justified in taking this into account. He accepted in hissentencing remarks that the level of animosity and violence displayed towardsMr French by members of the King Cobras gang had implications for his safety incustody, and had caused him to be moved into a segregated unit within the prison toguard against the risks to his safety.93 This in turn had implications for access totreatment programmes needed to facilitate potential release on parole.[66] Mr Bailey points out that the 10 per cent discount given by Osborne J appliesonly to the manslaughter sentence — less than 30 per cent of the overall sentence of10 years two months. He argues that there is no reason it should not apply to theoverall sentence. Somewhat optimistically, he seeks that a discount of 15 per cent nowbe applied for all the charges because of the parole implications of Mr French'ssegregation and, in the absence of a recall of this Court's conviction appeal judgement,this must be by way of reduction from the three-year manslaughter term.[67] We are not comfortable with the idea that a sentence that is otherwiseappropriate should be reduced to take account of possible difficulties that might beencountered by prisoners at the hands of rival gang members in the prison. It is theresponsibility of the Department of Corrections to ensure that prisoners in their careare kept safe. One means of doing so is through the use of segregation, as hashappened here. We do not need to say more about this point, for, we consider theissues raised by Mr Bailey about the extent of the uplift for previous firearmsoffending, and the point at which Gendall J adjusted the sentence for totality mean itis appropriate to make some further adjustment to the manslaughter sentence in theinterests of ensuring that the overall sentence which Mr French must serve is notexcessive. We consider there should be a further discount of six months for thispurpose.91 Osborne J's sentencing notes, above n 1, at [52].92 It would have been futile to do so in any event, in the context of the life sentence for murder.93 At [52].[68] In the result the manslaughter sentence will be reduced to a cumulative term oftwo years six months.Result[69] The application to recall the conviction appeal judgment is declined.[70] The appeal is allowed and the sentence of three years' imprisonment formanslaughter is set aside. A sentence of two years six months is substituted, to beserved cumulatively on the sentences imposed in the conviction appeal judgment.Solicitors:Crown Solicitor, Christchurch for Respondent