NIELSEN v R [2021] NZCA 477

NIELSEN v R [2021] NZCA 477 [22 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA128/2021[2021] NZCA 477BETWEEN KANE BRIAN VOLUND NIELSENAppellantAND THE QUEENRespondentHearing: 25 August 2021Court: Collins, Duffy and Peters JJCounsel: N M Dutch for AppellantM R L Davie for RespondentJudgment: 22 September 2021 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence of three years, nine months' imprisonment on the charge ofdischarging a firearm with intent to injure is quashed and a sentence ofthree years, four months' imprisonment substituted.D The cumulative sentence of seven months' imprisonment imposed on thecharges of unlawful possession of a firearm and of ammunition is quashedand a concurrent sentence of the same length substituted.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] Following a jury trial in September 2020, the appellant, Mr Nielsen,1 wasconvicted of one charge of unlawfully carrying a firearm and one of discharging afirearm with intent to injure.2 Also, at the outset of the trial, Mr Nielsen pleaded guiltyto two charges, being one each of unlawful possession of a firearm and ofammunition.3[2] On 16 December 2020, the trial Judge, Judge Cooper, sentenced Mr Nielsen tofour years, four months' imprisonment.4[3] Mr Nielsen now appeals against conviction and sentence. The appeal againstconviction is brought on the grounds that the jury's verdict was unreasonable and thata miscarriage of justice has occurred. The appeal against sentence is brought on theground the sentence is manifestly excessive.[4] Mr Nielsen required an extension of time to file his notice of appeal. ThisCourt granted that extension on 27 April 2021.5BackgroundOffending[5] The events giving rise to the offending of which Mr Nielsen was convictedwere as follows.[6] Very late in the evening of 20 April 2019, Mr Nielsen and an associate,Mr Wilson, were at an address in Tokoroa. Mr Quaife, the victim, and his associate,Mr Zammit, were also present.1 In the District Court, the appellant's name was spelled "Nielson".2 Arms Act 1983, ss 45(1)(a); and Crimes Act 1961, s 198(2).3 Arms Act, s 45(1)(b).4 R v Nielson [2020] NZDC 26375 [Sentencing notes].5 Nielson v R CA128/21, 27 April 2021.[7] An argument developed when the parties were inside, and Mr Nielsen andMr Wilson presented firearms, being a sawn-off shotgun and a sawn-off .22 rifle. The.22 was fired twice, one shot hitting Mr Quaife in the thigh.[8] After the offending, Ms Walters, who had driven Mr Nielsen to the address,drove him to Hamilton.[9] The police arrested Mr Nielsen in Hamilton on 27 April 2019. The policesearched Mr Nielsen's motor vehicle, locating a sawn-off .22 rifle in a bag on the backseat. The rifle had a strap and a magazine attached, the magazine containing sevenrounds of .22 ammunition. In a vest, also in the vehicle, a further eight rounds of .22ammunition were located.[10] The police charged Mr Nielsen with five offences. In relation to the events on20 April 2019, the police charged Mr Nielsen with the offending of which he wasfound guilty at trial and, as an alternative, unlawful possession of the shotgun. Thesearch of the vehicle led to the two charges to which Mr Nielsen pleaded guilty.[11] On 27 February 2020, Mr Wilson pleaded guilty to unlawful possession of afirearm and assault with a weapon, the latter charge arising from his strikingMr Zammit in the head with the butt of the firearm he was holding.6Trial[12] The sole issue at trial was whether Mr Nielsen was holding the shotgun or the.22 rifle, and therefore whether he fired the shot that injured Mr Quaife.[13] The Crown called five witnesses, being Mr Zammit, Ms Harrison, Ms Lawry,Ms Walters and Detective Edgington. There was also an agreed statement of facts.Neither Mr Quaife nor Mr Wilson gave evidence. In its opening address, the Crownsaid Mr Quaife had refused to speak to the police and so would not be called to giveevidence. There is nothing before us regarding Mr Wilson's failure to give evidenceat trial.6 R v Wirihana-Wilson [2020] NZDC 3411.[14] Mr Nielsen did not give or call evidence in his defence.Evidence[15] The key points from Mr Zammit's evidence, including evidence arising from astatement he made to the police shortly after the events occurred, are these.Mr Zammit, who was familiar with firearms, said he thought the firearm thatMr Nielsen was holding was a shotgun and not a .22. He also said he did not think thefirearm Mr Nielsen was holding had either a strap or a magazine. As we have said,the .22 the police located in Mr Nielsen's vehicle had both. Mr Zammit also gaveevidence that he believed he would have blocked any shot Mr Nielsen fired inMr Quaife's direction given where he, Mr Zammit, was standing.[16] Ms Harrison was the occupant of the address at which the offending took place.Ms Harrison gave evidence that she heard a shot, that she subsequently saw what shedescribed as Mr Wilson "reloading", and that she did not see Mr Nielsen shoot anyoneor reload his firearm.[17] Ms Lawry's evidence was that she had seen Mr Nielsen shoot Mr Quaife.[18] Ms Walters' evidence was that she had remained in her vehicle afterMr Nielsen went into the address. She then described being woken by yelling frominside the address, and that when Mr Nielsen emerged he instructed her to leave, andtold her he had "just shot someone".[19] All of these witnesses' evidence was able to be, and was, attacked in one wayor another by opposing counsel.[20] In closing, the Crown submitted to the jury that they should accept the evidenceof Ms Lawry and Ms Walters and expressed reservations about Mr Zammit'sreliability, particularly because he said events were a "blur" after he was struck to thehead.[21] The Crown also emphasised the finding of a spent .22 casing at the address,and of the .22 itself in Mr Nielsen's vehicle a week later, on 27 April 2019. One ofthe agreed facts was an expert opinion that the probability of the spent .22 casinghaving been fired in that same firearm was "very high", and the probability of thecasing having been fired from another firearm was "so low, it was negligible".[22] Defence counsel submitted to the jury that they should prefer the evidence ofMr Zammit and Ms Harrison. The significance of Mr Zammit's evidence was that hethought Mr Nielsen was holding a shotgun and that it would not have been possiblefor Mr Nielsen to have had a direct line of sight to Mr Quaife. The important pointfrom Ms Harrison's evidence was her description of Mr Wilson as reloading, and thatshe did not see Mr Nielsen shoot anyone or reload.[23] Each counsel had anticipated that the other would be critical in his or herclosing about the reliability of their preferred witnesses. For instance, each ofMs Lawry and Ms Walters were using methamphetamine at the time, and each hadhad romantic relationships with Mr Nielsen and Mr Wilson. Defence counselsubmitted to the jury that their memories were adversely affected by theirmethamphetamine consumption, and also that each was aggrieved at how theirrelationship with Mr Nielsen had ended, and that their loyalties lay with Mr Wilson.Appeal against conviction[24] Mr Dutch's first submission was that the jury's verdict was unreasonable, therebeing insufficient evidence to satisfy the fact-finder of guilt beyond reasonable doubt.[25] We do not accept this submission. It was open to the jury to accept the evidenceof Ms Lawry and Ms Walters. There was also Mr Nielsen's acknowledged possessionof the .22 a week later. This was sufficient evidence for the jury to be satisfied beyondreasonable doubt that Mr Nielsen had been holding the .22 and had shot Mr Quaife.[26] Mr Dutch next submits that, in his summing up, the Judge undermined the"key" defence submission on the evidence when he gave the following direction:In relation to witnesses generally, the Crown says you can rely on the evidenceof the Crown except for what Mr Zammit tells you. Mr Hill says to you wellMr Zammit you know it's a bit ironic that the Crown should put him up as awitness but then seek to undermine him. Actually, the Crown has anobligation to put him up as a witness because the Crown is here as a I guessas an instrument of justice. They are not here to give a necessarily slantedview of things and if there is evidence that's relevant for you to consider, theCrown has an obligation to put it to you and that's why Mr Zammit's evidencehas been given. He is an important witness because he was present at the timeand it's not a case really of the Crown putting him up and then trying to pullhim down so to speak. The Crown have got that obligation to put it beforeyou so you can consider it.[27] Mr Dutch submits that this direction was unfair and incorrect. He contends itpresented the Crown to the jury as only having called Mr Zammit in the course ofcomplying with its obligation to put all relevant evidence before the jury. Mr Dutchsubmits this was incorrect because, in fact, the Crown had chosen who it would, andwould not, call to give evidence, as was apparent from its decision not to call orsummons Mr Quaife.[28] Crown counsel on appeal, Mr Davie, submits that the Judge's direction was abenign response to an objectionable statement that Mr Hill made to the jury in hisclosing remarks, which was as follows:... it's a little odd because on the one hand the Crown has produced Mr Zammitas a witness in order to prove the charge against Mr Nielson, but on theother hand, you've just heard submissions from the Crown prosecutorsaying be careful what you do with his evidence. Don't rely on it too much.So, in effect, they're trying to undermine or impeach their own witness,because Mr Zammit's evidence is a bit of an issue for the Crownbecause Mr Zammit is quite clear that the first shot was fired before he gotinto a wrestle or a fight with Mr Nielson. Mr Zammit is very clear that afterthe first shot was fired, he then got into a fight or a wrestling match withMr Nielson. He said it a number of times....Now, that total description is entirely inconsistent with the way Ms Lawry hasdescribed things. Entirely. They don't match up at all. So someone iscompletely wrong. And that is the inconvenient thing for the Crown here.That they want you to believe what Ms Lawry is saying, but they understandthat it runs in contrast to what Mr Zammit is saying.[29] Mr Davie submits this statement was objectionable because the Crown wasentitled to express reservations about the reliability of Mr Zammit's evidence, even ifit had called him as a witness. Mr Davie submits that Mr Hill's reference to the Crown"trying to undermine or impeach their own witness" arguably implied the Crown hadbreached s 37(4)(a) of the Evidence Act 2006, that is had offered evidence to challengeMr Zammit's veracity, and that another Judge might have rebuked Mr Hill for makingsuch a submission.Discussion[30] It may be that Mr Hill should not have submitted to the jury that the Crownwas seeking to undermine or impeach Mr Zammit. However, we consider the wholeissue relatively inconsequential and, for that reason, we do not accept Mr Dutch'ssubmission that the Judge's direction was in error, let alone one giving rise to a realrisk the outcome of the trial was affected.[31] First, the Crown would have anticipated Mr Zammit's evidence at trial mightprove unhelpful, given the content of the statement he made to the police wheninterviewed close in time to the events. Given that, it is not clear to us that the Judge'sstatement as to why the Crown had called Mr Zammit as a witness was incorrect, evenif the Crown chose not to call Mr Quaife.[32] Secondly, this direction assisted the defence. The Judge told the jury thatMr Zammit was an important witness and that his evidence was relevant. This wasconsistent with Mr Hill's closing remarks.[33] Thirdly, even if this direction constituted an error, we would not accept that itgave rise to a real risk that the outcome of the trial was affected. It was a small partof a comprehensive summing up, in which the Judge summarised both parties' casesfully and even-handedly.[34] Lastly, in his written submissions, Mr Dutch took issue with the Judge'sdirection on inferences. The direction was as follows:To give you another example, in this case we know that the defendant hadpossession of the firearm that shot Lance Quaife six or seven days afterwards.Now that is not enough by itself to enable you to say he must have been theshooter. But nevertheless it is a very important piece of circumstantialevidence that you might want to put together with other evidence to ask thequestion, "was he the shooter?" So as Mr Hill has pointed out, the fact that hehad it six days later doesn't tell you by itself that he was the shooter. Whatthe Crown is saying is that it's one piece of evidence when you take it witheverything else, points to him being the shooter.[35] Mr Dutch's written submission was that, by using this example, the Judge gaveimplicit support to an important part of the Crown's case, and that this was an errorand the Judge ought to have chosen a neutral example of an inference for the jury.[36] In response to this submission, the Crown has referred us to a decision of thisCourt to the effect that an example taken from the case at hand will often be morehelpful to a jury than an abstract scenario.7 We agree. The Judge did no more thandirect in the manner this Court has said will often be of most assistance to a jury.Appeal against sentence[37] Discharging a firearm with intent to injure is a serious violent offence asdefined in s 86A of the Sentencing Act 2002 (Act).[38] At the time he was convicted, Mr Nielsen had already committed a stage-1offence, also as defined in s 86A of the Act. Thus, Mr Nielsen's conviction for theoffending against Mr Quaife was a stage-2 offence, and Mr Nielsen would be requiredto serve the sentence imposed without parole.8[39] For the stage-2 offence, that is the discharging of the firearm, the Judge adopteda starting point of four years' imprisonment. The Judge then uplifted this starting pointby three months to account for the fact that Mr Nielsen was, at the time of offending,on bail for unlawful possession of a different firearm.9[40] The Judge then gave a discount of six months for personal and other mattersidentified in a report submitted to the Court pursuant to s 27 of the Act (report).10 Inpercentage terms, this equates to a reduction of just less than 12 per cent.[41] This brought the end sentence on the lead offence to three years, nine months'imprisonment.117 Clement v R [2013] NZCA 414 at [26].8 Sentencing Act 2002, s 86C(4)(a).9 Sentencing Notes, above n 4, at [28].10 At [29].11 At [30].[42] The Judge imposed a concurrent sentence of 18 months' imprisonment on thecharge of unlawful possession of a firearm.12[43] On the charge of unlawfully possessing the same firearm a week later, theJudge adopted a starting point of eight months' imprisonment, reduced toseven months for Mr Nielsen's guilty plea, to be served cumulatively on the leadsentence.13[44] This gave Mr Nielsen an end sentence of four years, four months'imprisonment, three years, nine months of which Mr Nielsen was required to servewithout parole.14Submissions on sentence[45] Mr Dutch submits the Judge's reduction for the personal and cultural mattersidentified in the report was insufficient, and that the Judge also erred in making thesentence for possession of the firearm on 27 April 2019 cumulative on the sentencefor the lead offending.Report[46] Several matters appear from the PAC report, and also the s 27 report.[47] The first is that Mr Nielsen is dyslexic. This was not addressed, or notsufficiently, when he was at school and, as a result, Mr Nielsen did not progress welland made an early exit from the education system. His diminished literacy skills haveaffected his employment options since, even though he is plainly not without ability.Mr Nielsen's wish, expressed in both reports, is to apply himself to improving hisliteracy skills and that of course is to be encouraged.[48] Secondly most, if not all, of Mr Nielsen's male family members were in someway connected with gangs and drugs. Mr Nielsen has himself been associated withboth the Nomads and the Mongrel Mob. That said, from time to time, he has managed12 At [30].13 At [32].14 At [32]–[33].to distance himself from whatever gang he has been associated with at the time, andhas had periods of employment.[49] Thirdly, Mr Nielsen, aged 25 at the time of the offending, has been consumingdrugs, particularly methamphetamine, since he was 16 or thereabouts.[50] At sentencing, Mr Hill sought a reduction of 30 per cent for these matters,Mr Nielsen's prospects of rehabilitation, the conduct of Mr Quaife on the eveningconcerned (whatever that meant), and Mr Nielsen's guilty pleas to the two charges towhich we have referred.[51] The Judge was not persuaded to give a discount of anything like 30 per cent.He was not satisfied there was a nexus between the matters identified in the report andthe offending. The Judge considered the offending had occurred because Mr Nielsenhad made a deliberate choice to be part of a gang when he might have followed adifferent path. This was a reference to Mr Nielsen's prior employment.[52] That said, the Judge was satisfied that he could give what he himself describedas a modest reduction for the "destructive or dysfunctional" aspects of Mr Nielsen'supbringing, and that Mr Nielsen's early exposure to the gang lifestyle had a part toplay in his criminal history, hence the six-month discount.15[53] In support of his submission to us for a reduction of more than six months,Mr Dutch referred us to Carr v R.16 In that case, this Court said that a credible accountof, amongst other matters, dislocation, drug abuse, and educational underachievementought to be taken into account on sentencing. This is because these matters might beconsidered to have impaired choice and diminished moral culpability, and this in turnmust have an effect on the sentencing outcome. The Court is not required to besatisfied the matters identified in the report are the proximate cause of the offending,simply that there is a causal linkage.15 At [18] and [29].16 Carr v R [2020] NZCA 357 at [65].[54] The Crown submits the Judge's six-month discount was sufficient for thereasons the Judge gave.Discussion[55] That Mr Nielsen has had periods of withdrawal from the gang lifestyle doesnot negate a causal linkage between the matters identified in the report and hisoffending. In fact, that Mr Nielsen has managed to withdraw on occasions, and hisperiods of employment, might be viewed as a positive sign for his future.[56] In our view, a greater reduction was required, not only for the matters identifiedin the s 27 report, but also to encourage Mr Nielsen's rehabilitation, particularly givenhis relatively young age. We have considered what would be an appropriate reductionand have settled on 20 per cent, being 15 per cent for Mr Nielsen's diminishedculpability and five per cent for his prospects of rehabilitation.[57] The effect of this is to reduce the sentence on the stage-2 offending to threeyears, four months' imprisonment.Cumulative sentence[58] Mr Dutch submits the Judge was wrong to impose a cumulative sentence forunlawful possession of the firearm and ammunition on 27 April 2019, givenMr Nielsen's conviction and sentence for carrying that same firearm on 20 April 2019.[59] Although the Crown submits it was open to the Judge to proceed as he did,there is force in Mr Dutch's submission. In essence, the possession offending was acontinuation of the possession on 20 April 2019 and, in those circumstances, aconcurrent sentence was more appropriate.Result[60] The appeal against conviction is dismissed.[61] The appeal against sentence is allowed.[62] We quash the sentence of three years, nine months' imprisonment on the chargeof discharging a firearm with intent to injure and substitute a sentence of three years,four months' imprisonment, to be served without parole.[63] We quash the cumulative sentence of seven months' imprisonment imposed onthe charges of unlawful possession of a firearm and of ammunition on 27 April 2019,and in its place impose a concurrent sentence of the same length.[64] All other sentences are unchanged.Solicitors:Crown Law Office, Wellington for Respondent