Cockburn v The Queen

[2015] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND

CA529/2014
[2015] NZCA 51

BETWEEN	ALBERT GEORGE COCKBURN Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2015
Court:	Harrison, Fogarty and Dobson JJ
Counsel:	M J Hine for Appellant M D Downs for Respondent
Judgment:	6 March 2015 at 12.45 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Fogarty J)

1. Albert Cockburn appeals against a sentence of imprisonment for 18 months imposed after his conviction following a trial before Judge Weir and a jury in the Rotorua District Court on counts of careless use of a firearm and threatening to kill.[1]  On the lesser charge of unlawful possession of a firearm, Mr Cockburn was convicted and sentenced to three months imprisonment.[2]  He appeals against his sentence only.

   [1]R v Cockburn DC Rotorua CRI-2013-063-3609, 28 August 2014 at [17].

   [2]At [18].

2. Mr Hine did not take issue with the length of the sentence.  It was correctly conceded that it was well within the appropriate range.  The sole ground of appeal was that the Judge erred in principle in not imposing a sentence of home detention.

3. Judge Weir set out the relevant facts as follows:

   [2]       These charges arose out of an incident that occurred in October last year.  The two victims in this matter, brothers, were at a hunting hut located on the Makatiti Dome in the Rotoiti Forest with their half brother.  They had gone there for the purposes of hunting and doing some possum hunting as well.  The hut is used by members of the Rotoiti Hunting Club.  Present at the hut that day as well were you [Mr Cockburn] and your father.  Both groups loosely knew each other from meeting previously at the hut on hunting and possum trips.

   [3]       On Saturday, at about seven o’clock in the morning, the two victims and their brother left the hut at about seven o’clock to go for a hunt and also to check their possum lines.  When they got up and were preparing to leave the hut, they noticed that their possum bait was not where they had left it the night before.  When they got to their possum lines, they noticed that their possum traps had been cleared and reset.  The possums that had been caught overnight were missing.

   [4]       They returned to the hut at about 11 o’clock in the morning and confronted you and your father about the missing bait and possums and an argument then ensued.  The three boys became concerned about the nature of the argument and continued to escalate to the extent that Jayden said to you, “Do you feel tough picking on kids?  How would you like it if my old man picked on you?”

   [5]       Your response was to go into the hut and pick up your rifle that was hanging inside the door.  You came out of the hut, loaded the rifle, which is a 303, pointed the rifle at Jayden’s head and said to him, “Yeah, get your old man and I’ll kill you.”  This was from a range of approximately five metres.  You pointed the rifle at his head for a short period of time and then you pointed the rifle at a spot on the ground.

   [6]       You then reloaded another round into the chamber and walked over to his brother, Kyle, and used similar words to him.  You then pointed the rifle at a spot on the ground about 40 centimetres from his foot and fired a second shot.  The boys then left the hut, got out of the forest and after a relatively short period of time, the matter was reported to the police.

   [7]       The victim impact statements really say it all.  Both of the boys say that they truly believed that you were going to kill them.  One of them refers to the fact that he had trouble sleeping the first few weeks after the event and also a week or two before and throughout the trial.  The other said that they hardly went back to the hut over summer, because they were scared they would see you up there and he said that his schooling suffered for a month or so afterwards.  They were both traumatised by the incident.

4. The Judge later turned to considering home detention:

   [16]     I have carefully considered the provisions of ss 7 and 8 Sentencing Act 2002 and I also have reconsidered the submission by your counsel, that following the Sentencing Amendment Act [2007] and the case of R v Iosefa [2008] NZCA 453, home detention must be considered as an alternative to a short term of imprisonment. But in my view, offending at this level has to be dealt with firmly. The principles of denunciation and deterrence have to be paramount.

5. Mr Hine’s principal submission was that the Judge erred in failing to give sufficient weight to Mr Cockburn’s age (25 years) and rehabilitative prospects.  However, in light of the serious level of offending, we are satisfied that it was open to the Judge to give primary weight to the principles of denunciation and deterrence and to impose the sentence of imprisonment.  This Court’s decision in Iosefa does not mandate a sentence of home detention.

6. We are satisfied that the Judge rejected home detention on a principled basis.  We can discern no error in principle.  The appeal is dismissed.

Solicitors:
Families Matter Law Practice Ltd, Rotorua for Appellant
Crown Law Office, Wellington for Respondent