Pair jailed for attempted murder in Christchurch drive-by shooting appeal courts decision

The victim was shot three times when the group drove past him a second time. Photo / 123RF

Two men sentenced for attempted murder in a Christchurch drive-by shooting say the bullets were intended to scare, not kill.

The men have appealed their sentence and convictions in the Court of Appeal today, seeking a potential retrial as they believe they were wrongfully convicted.

Joshua James Mackay and Andrej Michael Schwaab were found guilty at the High Court in Christchurch last year of attempted murder. They were later sentenced collectively to more than a decade behind bars.

Schwaab also pleaded guilty to unlawfully possessing the sawn-off .22 calibre firearm used in the shooting. Mackay did not but was found guilty by the jury anyway.

The shooting took place in September 2020 when the men and an alleged third offender took aim at a member of the public over a parking dispute.

Their victim, Caleb Wihongi, was standing up to the group on the other man's behalf.

Schwaab fired eight shots. The first four didn't hit Wihongi. Mackay turned around and drove past again and four more shots were fired.

Wihongi was shot three times and needed surgery for his wounds. His arm was shattered and bullets had also struck his back and hip.

Defence lawyer Andrew Mckenzie, representing Schwaab, said today his client never intended to harm his victim.

"I shot these bullets at Mr Wihongi but I was trying to frighten him, scare him, not kill him," a statement made by Schwaab said.

Mckenzie said the U-turn was an important aspect of the case, and the alleged third party who may provide evidence to the court in a retrial could verify the intentions of the manoeuvre.

He said the man could help shed light on what happened in the car when Mackay decided to do a three-point turn, driving past the victim before Schwaab shot him three times.

Both lawyers argued that there was never any intention to harm their victim, and so a lesser charge would have been appropriate when the pair were found guilty.

Defence lawyer Nicholas Chisnall said to do justice in the case, the alleged third party should give evidence in court. He claimed a miscarriage of justice had occurred.

Complicated court restrictions mean the third person, who was allegedly in the car with Schwaab and Mckay but had his charges thrown out, will not opt to participate in any sort of retrial, according to the Crown.

Crown prosecutor Mark Lillico said the men's lawyers were seeking a retrial, and the sought-after affidavit of the alleged third man in the car wouldn't offer anything new if the matter was to come back before a jury.

Lillico said the "remedy" they sought was hollow and unachievable and argued that the discounts that were applied to their sentences were on the higher end given their lack of remorse.

The pair continue to lack accountability and do not take full responsibility for the crimes they were found guilty of, according to Lillico.

But Chisnall said there was a degree of acceptance and responsibility.

Other than an interest in restorative justice, no remorse was shown, the Crown said, and despite an emotional address from the victim at the sentencing last year, the judge said at the time of their sentencing public interest was at stake as well.

"The views of the victim do not outweigh the public interest," Lillico said.

The crime was committed in the middle of the day, in a busy street, with a gun that was difficult to aim pointed from a moving car.

A reserved decision will be released at a later date.