IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE	
CRI-2021-488-005
[2021] NZHC 873	

BETWEEN	JEFFERY CASSIDY
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	22 April 2021	
Counsel:	M R Ridgley for appellant S T Patia for respondent	
Judgment:	22 April 2021	

ORAL JUDGMENT OF TOOGOOD J

Solicitors:
Thomson Wilson, Whangarei Crown Solicitor, Whangarei

CASSIDY v R [2021] NZHC 873 [22 April 2021]

[1]	Jeffery Cassidy appeals against the sentence of seven years’ imprisonment imposed by Judge McDonald in the District Court at Whangarei on 21 December 2020 in relation to five charges for offending that occurred on 2 September 2020 and to which he pleaded guilty on 28 September 2020:1

(a)	two charges of using a firearm against a member of the Police acting in the course of their duty knowing that person was a member of the Police;2

(b)	one charge of driving in a manner which might have been dangerous to the public;3

(c)	one charge of driving a motor vehicle with excess breath alcohol; and4

(d)	one charge of failing to stop when required.5

[2]	The Judge also ruled on an application for a review of sentence. He granted the review and cancelled a sentence of community work that had been imposed on Mr Cassidy for prior offending.

[3]	The two key issues on the appeal are:

(a)	whether the Judge adopted too high a start point (10 years’ imprisonment) on the charges of using a firearm against Police; and

(b)	whether the Judge gave too small a discount for matters relevant to s 27 of the Sentencing Act 2002.

1	R v Cassidy [2020] NZDC 26795.
2	Crimes Act 1961, s 198A(1), maximum period of imprisonment: 14 years.
3	Land Transport Act 1998, s 35(1)(b), maximum period of imprisonment: three months or a fine not exceeding $4500, the court must also order the person be disqualified from holding or obtaining a driver’s licence for 6 months or more.
4	Land Transport Act 1998, s 56(1), maximum period of imprisonment: three months or a fine not exceeding $4500, the court must also order the person be disqualified from holding or obtaining a driver’s licence for six months or more.
5	Land Transport Act 1998, s 114(2); Land Transport Act 1998, s 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2). Maximum penalty: fine of $10,000 and the court must order the person to be disqualified from holding or obtaining a driver licence for six months.

Facts

[4]	The facts are that at approximately 11.34 pm on 2 September 2020, Mr Cassidy was driving a motor vehicle on Kiripaka Road, Whangarei. Accompanying him in the passenger seat of the vehicle was an alleged co-offender.

[5]	The vehicle driven by Mr Cassidy was seen by a Police patrol travelling at excessive speed. The Police patrol vehicle was crewed by two Police constables who activated their red and blue lights  and  siren  in  an  attempt  to  stop  the  vehicle. Mr Cassidy did not stop the vehicle and continued to drive.

[6]	Nearby to an address on Kamo Road, and travelling south, Mr Cassidy leaned out of the driver’s window and discharged a firearm in the direction of the pursuing Police vehicle. The unarmed Police officers immediately ceased their pursuit and pulled over. The firearm used was a .303 calibre bolt action rifle.

[7]	A short time later the vehicle was seen by another Police patrol. The vehicle was followed through the Whangarei CBD, towards a nearby industrial area and out towards the suburb of Onerahi. While travelling on this route, Mr Cassidy turned the vehicle’s lights off several times in order to evade capture by the Police. After completing a circuit of Onerahi, Mr Cassidy returned towards Whangarei via Riverside Drive. He drove along Riverside Drive in a “dangerous and erratic manner”. A Police unit then re-initiated pursuit on Riverside Drive and successfully implemented “road spikes” which punctured the vehicle’s front right tyre. For the remainder of the pursuit Mr Cassidy’s vehicle continued on three tyres, damaging the road surface in the process.

[8]	On approach to central Whangarei, while his alleged co-offender reached across and steered the vehicle, Mr Cassidy leaned out of the driver’s window and discharged another round in the direction of the pursuing Police vehicle. The pursuit continued up Fire Brigade Hill and again Mr Cassidy leaned out and discharged another round at the Police vehicle, this round striking the left headlight. The pursuit continued and Mr Cassidy attempted to shoot in the direction of the Police vehicle again. The rifle did not discharge, however, and while fleeing Mr Cassidy attempted to return the rifle to operation. In the latter stages of the pursuit, the vehicle began to

deteriorate before breaking down completely and stopping on Tarewa Road, where both occupants of the vehicle were arrested by the Police.

[9]	Upon arrest Mr Cassidy was breath-tested for alcohol consumption. His breath was found to contain 600 micrograms of alcohol per litre of breath (the limit being 400 micrograms of alcohol per litre of breath).

[10]	Upon his arrest, Mr Cassidy denied all offending and stated another escaped individual whom he could not name had carried out the offending.

District Court decision

[11]	Judge McDonald held a disputed facts hearing on 21 December 2020. He recorded the facts that he found to be proved in the decision and then proceeded with the sentencing process.6 The Judge addressed the relevant purposes and principles of sentencing, noting particularly that they were to hold Mr Cassidy accountable; to deter and denounce his conduct; to take the interests of the victims into account and to impose the least restrictive sentence.7

[12]	The Judge adopted the discharge of a firearm at Police as the lead offence and noted that there is no tariff or guidelines judgment addressing sentences for such a charge. The Judge noted that counsel had referred to a number of cases and, in starting his assessment of the start point, referred to appellate guidance which he said showed:8
a firm legislative intention that those using a firearm against law enforcement officers should be dealt with severely.

[13]	The Judge stated that clear denunciation of the offending must be a “major consideration” in sentencing for this offence. In his reasoning the Judge noted, with reference to the maximum penalty of 14 years’ imprisonment, that the section “speaks of using a firearm in any manner whatsoever”. Judge McDonald referred to the recent High Court decision of R v Kite as authority for the proposition that the courts “have taken a firm approach in pursuit of the need for deterrence”. 9 The Judge noted that

6	R v Cassidy [2020] NZDC 26795 at [2].
7	At [7]. Sentencing Act 2002, s 7.
8	R v Taylor CA407/88, 9 May 1989.
9	R v Kite [2018] NZHC 409; upheld on appeal: Kite v R [2018] NZCA 485.

starting points of sentences of imprisonment for offending where a firearm has actually been discharged have been “in the region of six to eight years”.10

[14]	Carefully, the Judge assessed the following factors in setting Mr Cassidy’s starting point:11

(a)	The decision to use the .303 sawn-off rifle was made “a short time into the [first] pursuit”. Instead of stopping, fleeing on foot, or electing to evade the Police in his car, Mr Cassidy “picked up [his] fully loaded
.303 sawn-off rifle, put the rifle out of the window and fired at the pursuing police vehicle”.12

(b)	When pursued by a second  police  vehicle  to  Onerahi  and  back,  Mr Cassidy again fired the rifle at the Police vehicle.

(c)	While travelling up Fire Brigade Hill, Mr Cassidy attempted to fire the rifle at the pursuing vehicle, but was prevented solely by the gun ceasing to operate. The Judge noted that the rifle used was not a .22 rifle, but a “high powered rifle designed to kill” and that Mr Cassidy only stopped driving when his vehicle broke down.13

(d)	The effect on Mr Cassidy’s victims, the impact of which ought not be downplayed merely by the fact of their membership of the Police force was also a relevant factor. The Judge stated being shot at “is not part and parcel of their job”,14 and recounted the impact the shooting had had on each of the officers involved. Their responses vary from sadness to anger, with the incident still playing on their minds. One of the officers, a senior constable, was particularly agitated by the absence of any reason for Mr Cassidy’s use of a firearm.

10	R v Cassidy, above n 6, at [9], [10].
11	At [11].
12	At [11(a)].
13	At [11(c)].
14	At [11(d)].

[15]	In reaching a starting point of 10 years’ imprisonment the Judge said that attacks on the Police will not be and cannot be tolerated.15 Turning to personal matters, he assessed Mr Cassidy’s previous convictions as aggravating but, because they were not “of the nature of the current charges”,16 he did not impose an uplift. The Judge afforded Mr Cassidy a 25 per cent discount for his early guilty plea.

[16]	Turning to matters under s 27 of the Sentencing Act, the Judge considered a letter written by Mr Cassidy’s mother and evidence she provided in the disputed facts hearing. The Judge concluded Mr Cassidy had not “had the best of upbringings but sadly not the worst [he had] seen”.17 The Judge said:18
I consider there is little, if any, nexus between your upbringing and what you did.

But the Judge afforded Mr Cassidy a five per cent discount for s 27 matters nevertheless.

[17]	The Judge noted that, as Mr Cassidy had a previous firearms-related conviction, he must be assessed as having a higher risk of harm to the public. Turning to address whether or not to impose a minimum period of imprisonment, the Judge accounted for Mr Cassidy’s age of 23 years. He held, in declining to impose a minimum period, that determining when Mr Cassidy was safe enough to be released into the community should be left to the Parole Board.19

[18]	The Judge reached the effective end sentence of seven years’ imprisonment as follows (implicitly, at least, imposing the sentences of imprisonment on a concurrent basis):

(a)	Applying a 30 per cent discount to a starting point of 10 years’ imprisonment, the Judge imposed a sentence of seven years’

15	R v Cassidy, above n 6, at [13].
16	At [15].
17	At [17].
18	At [17].
19	At [19].

imprisonment for each the two charges of using a firearm against a Police officer.20

(b)	On the charge of driving with excess breath alcohol, the Judge entered a conviction, sentenced Mr Cassidy to one month’s imprisonment and disqualified him from holding or obtaining a driver’s licence for six months.

(c)	On the dangerous driving charge, the Judge entered a conviction, sentenced Mr Cassidy to one month’s imprisonment and disqualified him from holding or obtaining a driver’s licence for six months.

(d)	On the failing to stop charge, the Judge entered a conviction and disqualified Mr Cassidy for six months, cumulative on the six months imposed on the excess breath alcohol charge.

(e)	The Judge ordered that the firearm be destroyed.

(f)	Lastly, the Judge granted the sentence review and cancelled the community work order.

Submissions on appeal

Appellant

[19]	On behalf of Mr Cassidy, Mr Ridgley draws attention to a number of cases (discussed below at [31]–[36]) to support his submission that the appropriate starting point in this case was seven years’ imprisonment.21 In R v Wells the start point was six years’ imprisonment, and in R v Kite the start point was eight years’ imprisonment. Mr Ridgley submits that Mr Cassidy’s offending falls in between these two cases because:

20	R v Cassidy, above n 6, at [20].
21	R v Wells HC Auckland CRI-2003-092-026964, 30 April 2004; R v Eddington [2016] NZHC 434,
R v Samuels [2009] NZCA 153 and R v Kite [2018] NZHC 409.

(a)	Mr Cassidy fired the sawn-off rifle while leaning out of a moving vehicle, making it harder for him to aim at the Police, unlike the defendant in Kite, who fired at Police after his vehicle had stopped; and

(b)	it is conceded that the offending is more serious than that of Wells, because, unlike in that case where the defendant fired “somewhat blindly behind him”, Mr Cassidy “leaned out of the window and took aim”.

[20]	Mr Ridgley makes the point that in finding that Mr Cassidy aimed in the direction of the Police car, Judge McDonald did not find that he had aimed in the direction of any occupant; merely that he had fired in the direction of a Police car which was being driven by a Police officer.

[21]	Turning to the second ground of appeal – that the discount of five per cent under s 27 of the Sentencing Act ought to have been greater – Mr Ridgley submits that the Judge should have focused on the excerpts of Mr Cassidy’s mother’s letter that related to his exposure to gangs, violence and firearms “from a very young age”. Counsel refers to Mr Cassidy’s father being in and out of prison and that after leaving his father due to the amount of violence Ms Cassidy met a new partner, who also introduced Mr Cassidy to gangs and guns. To illustrate this, Ms Cassidy said that by his last year of intermediate school (at approximately the age of 12) Mr Cassidy knew how to use a gun.

[22]	Counsel submits in summary that Mr Cassidy was surrounded by firearms, guns and gangs on a daily basis, with his paternal figures actively introducing him to, and indoctrinating him with, anti-social attitudes towards Police and law-enforcement authorities, with these attitudes particularly marked when violence, drugs and firearms are in-frame.   Mr Ridgley submits that there is more of a causal nexus between     Mr Cassidy’s upbringing and the offending than the Judge recognised by the discount.

Respondent

[23]	On behalf of the Crown, Ms Patia submits that the starting point of 10 years’ imprisonment was appropriate and that the discount on account of factors addressed by s 27 of the Sentencing Act, although modest, was sufficient.

[24]	As to the 10-year starting point, Ms Patia describes it as within the available range. She argues that, while stern, it accounts for the aggravating factors of three rounds fired at two different Police patrol vehicles; two unsuccessfully discharged rounds; and the impact on the three Police officers who had been shot at.

[25]	Turning to the cases discussed by Mr Ridgley, Ms Patia submits:

(a)	R v Wells (six-year start point) is distinguishable on the ground that the offender in that case fired two  warning  shots  at  Police,  whereas  Mr Cassidy deliberately aimed three shots in the direction of the Police.

(b)	R v Kite (eight-year start point) should be distinguished because the offender had fled Police in a high-speed pursuit and ended up on foot, and aimed a firearm directly at a Police officer. Counsel submits that two shots were fired in that case close to each other in time, unlike  Mr Cassidy’s offending which was spread over a longer period.

(c)	The offending in R v Samuels was more serious than in this case, justifying a 12-year starting point. The submission is that after a vehicle chase terminated, the offender advanced toward Police on foot, aiming a firearm and shooting a constable.

[26]	Counsel concludes her submissions on that point referring to the sentencing Judge’s observation about an escalation of firearms offences against Police officers in Northland and the guiding principle of deterrence.

[27]	Ms Patia suggests that s 27 of the Sentencing Act allows for discounts where there has been a severe limitation of choices, distortion of values or impaired decision- making. She submits that the violence from the offending was “extremely gratuitous”;

Mr Cassidy was unable to provide an explanation for the offending. If he had simply stopped his car when required to do so, he would have been dealt with solely for driving with excess breath alcohol.

[28]	Ms Patia submits, therefore, I should take a cautious approach to the quantum of any discount given for cultural factors, so as not to minimise the offender’s agency in the midst of offending. Counsel submits it was open to the sentencing Judge after hearing the evidence to find “little, if any, nexus” between the offender and his offending and the discount afforded in the circumstances was appropriate.

Approach

[29]	I must allow Mr Cassidy’s appeal only if I am satisfied there is an error in the sentence, and a different sentence should have been imposed. In any other case, I must dismiss the appeal against sentence.22 The approach previously taken by courts on sentencing appeals continues to apply,23 so that the measure of error is that the sentence must be “manifestly excessive”, a principle “well-engrained” in this Court’s approach to sentence appeals.24 The Court must not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is “manifestly excessive” is to be assessed in terms of the sentence given, rather than the process by which it is reached.25

Discussion

Starting point

[30]	Was the starting point of 10 years’ imprisonment too high such that it led to a sentence that was manifestly excessive? In making that assessment, I remind myself that appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.26 I am required to come to my own view, however. 27

22	Criminal Procedure Act 2011, s 250(3).
23	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
24	At [33] and [35].
25	Ripia v R [2011] NZCA 101 at [15].
26	Maihi v R [2013] NZCA 69 at [21].
27	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[31]	I note first the guidance referred to by the Judge at sentencing and re-emphasised by Mander J last year that using firearms against law enforcement officers is to be met with condign sentences and to be “dealt with severely”. Because of the nature of that type of offending there is a significant emphasis on deterrence.28

[32]	Presenting the firearm at an officer is sufficient to constitute the charge’s actus reus element and discharging the weapon is not required to be proved.29 Actual discharge at an officer makes the offending more serious. In R v Samuels,30 the defendant and his accomplice were being pursued by Police in a lengthy high-speed chase, during which the defendant fired four shots with a .22 rifle at the pursuing Police vehicles. At the end of the chase he emerged from the vehicle with his finger on the trigger, raised the rifle and aimed directly at a constable. A starting point of  12 years’ imprisonment was upheld on appeal, the Court of Appeal holding that the offending was “near to the most serious of its type”.31 Mr Cassidy’s offending carries many similarities with the offending in Samuels.

[33]	In R v Wells, the defendant, while fleeing from Police, fired two shots backwards out of the window at Police vehicles in pursuit using a .22 sawn-off rifle.32 At sentencing, the Judge, in adopting a six-year starting point, noted that the offending was at least reckless, if not well planned, but that serious injury or death could have resulted if the Police or their vehicles were hit.33 Mr Cassidy’s offending is more serious than the offending in Wells, in part at least because a vehicle was hit and because a higher calibre rifle was used. A higher start point than the six years imposed in that case was appropriate, therefore.

[34]	Mr Cassidy was fortunate that his offending did not result in the serious physical injury or death of any of the Police officers involved in pursuing him, or of an innocent bystander caught by a stray bullet or a vehicle, if it crashed. The final round that struck the headlight of the Police vehicle was close to going through the

28	R v Ma’anaiama [2020] NZHC 551 at [22], citing: R v Samuels [2009] NZCA 153 at [14];
R v Taylor CA407/88, 9 May 1989 at [6].
29	Hutton v R [2010] NZCA 160 at [21].
30	R v Samuels [2009] NZCA 153.
31	At [15].
32	R v Wells HC Auckland CRI-2003-092-026964, 30 April 2004.
33	At [10].

windscreen and could have struck an officer. Mr Cassidy’s use of the firearm on several occasions throughout the pursuit adds to the seriousness of his offending, so a starting point at the higher end of the range was appropriate.

[35]	The rifle Mr Cassidy used was a .303 calibre which, as Judge McDonald observed, is a powerful firearm designed to kill people. The risk presented by the use of such a weapon is greater than the risk presented in cases where .22 calibre rifles are used. A starting point higher than the eight years imposed in Kite is necessary. The offending is more similar to that of Samuels, even though Mr Cassidy did not present the firearm directly at Police officers as occurred in that case. I consider a start point between the eight years in Kite and the 12 years in Samuels is appropriate. Some guidance can be taken also  from  R v Ma’anaiama  where  the  starting  point  was 10 years; the shooting took place in a residential area and Police officers were exposed to potentially fatal risk.34

[36]	The Judge’s orthodox approach to assessing the appropriate start point led him to adopt a mid-point between Kite and Samuels. Although 10 years is towards the top of the available range, it is a start point that is within the range.

Section 27 discount

[37]	Section 8(i) of the Sentencing Act provides that the Court must take into account an offender’s personal, family, whānau, community and cultural background when imposing a sentence. Section 27 of the Act provides a mechanism for an offender to provide the Court with information relevant to those matters. One of the key ways in which a person’s background may be relevant to sentencing is that it may reduce their moral culpability for the offending. The Court of Appeal in Zhang endorsed the following approach to s 27 issues:35
[159] First, ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to

34	R v Ma’anaiama, above n 28, at [30].
35	Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].

offending (whether associated with addiction or not), they will require consideration in sentencing.36

…

[162] … social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender.

[38]	In Solicitor-General v Heta,37 Whata J commented:

[38]	The extent to which this s 27 information engages the purposes and principles of the Act is then an evaluative matter and applied, where relevant, in accordance with the sentencing framework. While there is no statutory direction as to the weight to be afforded to the information, the requirement at s 27(2) to hear from a person called by the offender under s 27(1) unless unnecessary or inappropriate, emphasises the importance of each of the matters specified at subs (1) to the sentencing exercise.

[39]	Whether discounts are to be given on account of an offender’s personal circumstances is a matter of judicial discretion.38 In Poi v R, the Court of Appeal said:39

… that if an offender has diminished culpability, as a product of their personal circumstances, this may in turn impact on the application of a number of the purposes and principles of sentencing including holding the offender accountable,40 denunciation,41 general and specific deterrence,42 community protection,43 and the need for rehabilitation.44

[40]	I have read  Ms Cassidy’s letter to the Court.   It paints a  sad  picture  of    Mr Cassidy’s upbringing where he lacked pro-social paternal role models and had a life filled with anti-social interactions. There may be cases in which the linkage appears self-evidently from the circumstances of the offence and the offender,45 but I agree with the sentencing Judge that, based on Ms Cassidy’s letter to the Court, there was “little if any” nexus between Mr Cassidy’s background and his offending. The five per cent discount allowed was adequate to recognise, among other things, that his

36	Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50]; Fane v R [2015] NZCA 561 at [46]; and Arona v R [2018] NZCA 427 at [59].
37	Solicitor-General v Heta, above n 36 .
38	Rudolf v R [2019] NZCA 451 at [33].
39	Poi v R [2020] NZCA at [27].
40	Sentencing Act 2002, s 7(1)(a) and (b).
41	Section 7(1)(e).
42	Section 7(1)(f).
43	Section 7(1)(g).
44	Section s 7(h).
45	Arona v R, above n 36, at [59].

anti-Police attitude may have been ingrained in him as a child, but his experience with firearms as a young teen says more about his proficiency in the use of the weapon than it does about any diminished culpability.

[41]	When asked why he shot at the Police, Mr Cassidy told the pre-sentence report writer “I don’t know … it just came into my head.” He expressed no remorse. That  is not an aggravating factor but, rather, the absence of a mitigating factor; in cases where substantial discounts are given, judges generally emphasise the presence of genuine remorse.46

[42]	Mr Cassidy’s offending was serious, violent and prolonged. He continued to try to evade Police and use the high-powered firearm despite an extensive pursuit and efforts to disable his vehicle. There was a determined persistence about his offending that cannot be sufficiently linked to an upbringing in a gang-related environment so as to justify a significant discount for diminished moral culpability.

[43]	I am not persuaded that there is any proper basis to interfere with the exercise of Judge McDonald’s discretion about the level of an appropriate discount to reflect s 27 considerations.

Conclusions and result

[44]	I am satisfied, therefore, that Judge McDonald was entitled to adopt the starting point of 10 years for very serious offending and that the discounts for guilty pleas and s 27 factors were reasonably available to him. The argument that the sentence was manifestly excessive fails and I dismiss the appeal accordingly.

Toogood J

46       Parkinson v R [2019] NZCA 544 (15 per cent); R v Tae [2020] NZHC 1119 (15 per cent); Banks  v Police [2020] NZHC 859 (10 per cent); R v Tauroa [2020] NZHC 376 (15 per cent, considered “merciful” at [46]).