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Complex argument against manslaughter sentence sees Court of Appeal cut tariff

26 May 2023

| Author: Hannah Hellyer

Criminal procedure – manslaughter charge filed after appellant successfully appealed conviction for murder – successful appeal against sentence – sentence of three years’ imprisonment for manslaughter set aside – substituted with sentence of two years six months’ imprisonment – starting point – totality adjustment – cumulative effect of multiple sentences

French v R [2023] NZCA 176 per Cooper P, Lang and Downs JJ

Daniel French and Alistair Cochrane were convicted of the murder of Luke Sears. French was found liable as a party pursuant to s 66(2) of the Crimes Act 1961.

In the days leading up to the incident, Sears had threatened, assaulted, and demanded money from French for what was claimed to be a large cannabis debt owed to the King Cobras. Both parties had also produced firearms. Sears was a patched member of the King Cobras. Neither French nor Cochrane had any gang affiliation.

On the day of the incident, French asked Cochrane to accompany him to deliver a load of firewood and to act as “muscle” in case they were confronted by Sears or other members of the King Cobras. Cochrane had a loaded, sawn-off shotgun in a bag. They were encountered by Sears and his fiancé driving along a rural road. Both vehicles stopped. French and Sears got out and began to talk to each other and a physical fight began between them. Cochrane got out of the vehicle with the shotgun, pointed it at Sears and told him to leave French alone. Sears walked towards Cochrane and said words to the effect of “What are you going to do with that?”, while facing the gun with his arms outstretched. Cochrane retreated. French said to Cochrane, “Put the gun away” and “Let’s leave”. Cochrane may also have said something about leaving the scene. Sears moved to the driver’s door and Cochrane went to the front passenger side of French’s vehicle. Sears leant through the window to take the keys out of the ignition, saying they were “not going anywhere”. Cochrane was still holding the shotgun, it discharged, and Sears was hit in the right side of his chest.

French’s murder conviction appeal was allowed. His conviction was quashed and a retrial was ordered.

French was then sentenced by Gendall J in respect of his methamphetamine, firearms, cannabis, N-Ethylpentylone and theft-related charges.

Gendall J did not allocate sentences to the individual charges. As a consequence, the end sentence was imposed on each charge, and the sentences for the cultivating cannabis and firearms charges exceeded the statutory maximum.

French’s successful sentence appeal was advanced on the sole basis of this error. The Court of Appeal set aside

French then pleaded guilty to causing the death of Sears by an unlawful act thereby committing manslaughter, under ss 66(2), 160, 171 and 177 of the Crimes Act 1961.

Osborne J assessed the appropriate outcome as a sentence of three years’ imprisonment, to be served cumulatively on the existing sentences, leading to an effective total term of 10 years and two months’ imprisonment.

In respect of the current decision, French submitted Osborne J’s judgment should be recalled on the primary basis of the difficulties he would experience in prison.

The court found recall was not appropriate. The high threshold as set by Uhrle was not met and the adjusted sentences imposed in respect of French’s other offending did not appear to be excessive.

French primarily advanced his appeal on the basis his sentence on the manslaughter charge resulted in an overall sentence that was manifestly excessive.

It was submitted that Osborne J wrongly identified premeditation, the vulnerability of the victim, and the drug offending context as being aggravating features.

The court did not accept French’s submissions on premeditation and the drug offending context. However, it found error in characterising Sears as particularly vulnerable.

French further submitted that Osborne J overlooked the limited nature of the common purpose that led to his culpability and developed his argument by drawing an analogy to excessive self-defence cases. He submitted the common purpose entered was defensive and contingent and his guilty plea meant the purpose was unlawful, but only on the basis it went too far.

The court did not accept these submissions. Even if French’s original intention was to act in self-defence, he crossed the line at some point and the common purpose changed in character. Further, it was not analogous to excessive self-defence cases discussed in Taueki, and provocation was taken into account as a mitigating factor.

French also submitted the adopted starting point was excessively high, principally on the basis that Osborne J wrongly drew an analogy to Taueki and should have instead had regard to manslaughter cases.

The court noted that Osborne J did not simply apply Taueki, having discussed comparator cases and its inclination to view the starting point as being too high. However, it was not persuaded that considered on its own, the manslaughter sentence of four years’ imprisonment (prior to the totality adjustment) was manifestly excessive.

French also submitted that Osborne J’s totality adjustment should have been greater. He submitted the fact that Osborne J had imposed the manslaughter sentence as a cumulative one, meaning it was appropriate to consider all imposed sentences afresh. Glendall J’s uplift for his relevant previous offending was disproportionate, therefore Osborne J had imposed the manslaughter sentence cumulatively on an effective sentence for the other offending that was already too high. Gendall J made the totality adjustment at the end of the calculation and Gendall J did not apply a discount to reflect the gang-related difficulties he would likely face in prison.

The court accepted the issues raised by French regarding the extent of the uplift for previous relevant convictions and the point at which Gendall J adjusted the sentence for totality. Accordingly, the court found it was appropriate to adjust the manslaughter sentence to ensure the overall sentence to be served by French was not excessive.

Held: Application to recall the conviction appeal judgment declined. Appeal against the sentence of manslaughter allowed. Sentence of three years’ imprisonment was set aside. Sentence of two years and six months substituted, to be served cumulatively on the sentences imposed in the conviction appeal judgment.

French v R [2023] NZCA 176

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