R v MCGOLDRICK [2023] NZHC 731

R v MCGOLDRICK [2023] NZHC 731 [4 April 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2022-096-856[2023] NZHC 731THE KINGvJUSTIN JAMES EDWARD MCGOLDRICKHearing: 4 April 2023Appearances: M E Page for the CrownC J Tennet for the DefendantJudgment: 4 April 2023SENTENCING OF COOKE J[1] Justin McGoldrick you are now to be sentenced as a result of your guilty pleasto one charge of aggravated burglary1 and one charge of aggravated wounding.2[2] Your guilty pleas follow an earlier sentencing indication. In order to explainyour sentence I will address three matters:(a) First I will describe the facts of the offending.(b) Secondly I will outline the approach that is taken in assessing a startingpoint for offending of this kind together with any uplift for personal1 Crimes Act 1961, s 232(1) and 66; maximum penalty of 14 years' imprisonment.2 Section 191(1)(a) and 66; maximum penalty of 14 years' imprisonment.aggravating circumstances. That is an assessment I have alreadyundertaken in the sentencing indication.(c) Finally I will address discounts from that starting point arising fromyour guilty plea and other matters personal to you given furtherinformation now available.The offending[3] First the facts. On 10 January 2022 two young associates of yours were robbedby Akynn Eady a Cripps gang member. They then planned retribution and obtainedMr Eady's address. They then met up with you at approximately 8.30 that evening.[4] Your group then went to another address and were joined by Mr Tawhai. Thegroup then went to another address in Porirua to pick up a pump action shotgun.[5] A Toyota vehicle was then obtained and the shotgun was placed in the back ofthat car, and after stopping off at the Z Mana Esplanade at approximately 10.40 pmyour group drove to the address of Mr Eady.[6] At the time Mr Eady was hosting a birthday party with at least eight otherpersons, one of whom was the victim, Mr Aspinall.[7] You exited the vehicle with the shotgun along with Mr Tawhai and one other.Mr S and Mr H stayed in the car. You approached the address and opened the frontdoor brandishing the shotgun at the occupants inside in the hallway. Mr Aspinallhearing the commotion walked to the front of the house to see what was happening.As that happened you fired three rounds down the hallway as the occupants ran forcover. Mr Aspinall was struck by a number of pallets in the left side of his abdomencausing a number of wounds.[8] The three of you then ran from the address to the car which drove off. Youwere spotted by a marked police car which attempted to stop the car, which droveaway at speed, overtaking other vehicles and turnings its lights off in an attempt todeter police.[9] The car was then struck by tire deflation devices and came to a stop in Petonewhere you and the others were arrested.The starting point[10] I now address the starting point for this offending. As I have explained in theprevious sentencing decisions concerning this offending I proceed on the basis that theaggravated burglary is the lead charge, with the aggravated wounding treated as anaggravating circumstance.[11] There is no tariff decision for aggravated burglary. But it is accepted that theCourt of Appeal's guideline decision for aggravated robbery in R v Mako applies,3notwithstanding that this is an aggravated burglary.4 I consider the following factorsas aggravating as referred to in R v Mako arise in the present offending:(a) first, there was planning and premeditation given that the offending waspart of a gang-related dispute resolution exercise, and that you and yourco-defendants armed yourselves beforehand;5(b) secondly, there was use of a weapon and you wounded a person by itsdischarge;6(c) thirdly, there were a number of participants;7 and(d) finally it involved a home invasion at night.8[12] When sentencing the others involved in this offending I have assessedcomparable cases including Hay v R,9 R v Poole, Perry and Murphy,10 and R v Stade.113 R v Mako [2000] NZLR 170 (CA).4 See R v Watson CA 224/03, 24 October 2003; the Court of Appeal held that the principlesexpressed in Mako are applicable to aggravated burglary.5 R v Mako, above n 3, at [36].6 R v Mako, above n 3, at [39].7 At [37].8 At [58].9 Hay v R [2015] NZCA 329.10 R v Poole, Perry and Murphy [2014] NZHC 1126.11 R v Stade [2015] NZHC 2611.Those other sentences can be considered to more fully understand how I have assessedthe starting point given these authorities. The sentences I have then reached have beeninfluenced by the respective roles that each defendant has had in the offending. Inparticular:(a) For Mr Tawhai I decided that in light of his role in the offending that astarting point of eight years' imprisonment was appropriate, indicatingit would have been higher if he had been the shooter, and lower but forthe fact that the firearm was discharged causing the wounding.12(b) For Mr H, who had a lesser role and who remained in the car with Mr SI concluded a starting point of four years' imprisonment wasappropriate.13(c) Justice Isac addressed the sentence for Mr S who faced a lesser chargeof being an accessory after the fact of aggravated burglary and failingto stop for red and blue flashing lights.14 He concluded that a startingpoint of 10 months' imprisonment was appropriate, adopting a notionalstarting point of 15 months' imprisonment reduced by a third to reflectreduced culpability as a result of fear and perceived threat.15[13] As I have previously indicated given your role as the shooter a starting pointof nine years' imprisonment is appropriate.Personal aggravating factors[14] I now deal with personal aggravating circumstances.[15] You have a lengthy criminal history that includes violence and weaponsoffending. Uplifts for previous offending can be warranted if they bear upon theoffender's character and culpability, where there is an indicator of a pattern to offendin a specific way and the need to protect society by the imposition of a deterrence12 R v Tawhai [2023] NZHC 311.13 R v H [2023] NZHC 626.14 R v S [2022] NZHC 2944.15 At [21].sentence.16 Authorities provide limited assistance on whether there should be suchuplifts because the circumstances vary.17[16] I accept that there is a pattern of behaviour arising from your prior offending.You also involved other young men with limited criminal histories in the offendinghere which is relevant to the pattern of your conduct, your culpability, and the impacton the community. I note that you have said that you were not a leader of the group,but given the age and very early stage of involvement with the Mongrel Mob of mostof the others compared with you I do not accept that.[17] The Crown suggests an uplift of three months would be appropriate and I agree.That takes the starting point to nine years three months' imprisonment.Personal mitigating circumstances[18] Next there are the personal mitigating circumstances. The first discount arisesfrom your guilty plea. This discount is significant because by admitting your guilt youremove the need for the victims to give evidence at a trial or trials. That is importantin this kind of case. There is agreement that there should be a 25 per cent discounthere.[19] I have also had the advantage of a pre-sentencing report, a drug and alcoholreport, and a s 27 cultural report.[20] All those reports assist in getting a better understanding of you and yourbackground. You are of Samoan and Pakeha background. Your father was strict andyou had what is sometimes described as a traditional Samoan upbringing. In any eventyour background had a level of physical violence. It is also apparent that the MongrelMob was a significant part of your family life, which was also heavily influenced bydrugs, and the taking of drugs. You have taken methamphetamine from an early age,and frequently and were doing so at the time of this offending.16 Reedy v Police [2015] NZHC 1069 at [19].17 Ripia v R [2011] NZCA 101.[21] I accept that there is material cultural deprivation that has contributed to whereyou are now. It is not uncommon for families that have come from the islands to havefound it very difficult to adjust to life in New Zealand, and in your case the violence,the drugs, and the gang life are somewhat typical examples of social and culturaldeprivation, and the way in which gang culture provides a replacement for a sense ofcommunity and identity. I accept that this background provides the causal connectionin accordance with the principles set out in Solicitor-General v Heta.18 But it is notthe kind of deprivation at the really high end that can be involved with offenders whohave had really terrible lives. You have had things hard, but you have still made yourown bad choices, including those that you made on coming back to New Zealand fromAustralia after a promising start with your sporting career.[22] You are very fortunate to have the support and love of your whanau, andparticularly your partner who has known you for a long time, and who supports youagain. It is pretty clear that if you are to really move on from this life of gangs, drugs,and violence you will need to think more about her, and the support that she providesyou, more than the other influences on your life. I can see from the reports that havebeen provided to me you probably understand that. I have read your letter of remorse.But it is easier to say things than it is to actually do them. You have made otherrehabilitation attempts that have not been successful. Your future will remain in yourown hands. It is up to you whether you have the strength of character to introducechanges to your life. It will be hard, but you and your partner will be better for it.[23] In the circumstances I accept that a 10 per cent discount on the sentence wouldbe appropriate for social and cultural deprivation and remorse. I do not think anyseparate discount on the starting point is warranted for diminished culpability for drugand alcohol reasons or for remorse, but I have taken those factors into account whenassessing a further discount of 10 per cent. The total discount is accordingly 35 percent.[24] I note that in the pre-sentence report it is recommended that you be referred tothe PACT organisation in Lower Hutt to complete a residential alcohol and drug18 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; Berkland v R [2022] NZSC143.programme when this fits in to your release conditions. That is not for me to determineat this stage but it is something that seems to me to be appropriate to be considered atthat point.Sentence[25] Justin McGoldrick would you please stand. On the charges of aggravatedburglary and aggravated wounding I sentence you to six years' imprisonment on eachcharge, to be served concurrently, meaning that your effective sentence is six years'imprisonment.Cooke J