Boyd v R
[2015] NZHC 822
•24 April 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2015-412-000006 [2015] NZHC 822
BETWEEN JOHN NATHAN BOYD
Appellant
AND
THE QUEEN Respondent
Hearing: 31 March 2015 Appearances:
S A Saunderson-Warner for Appellant
M J Grills for the CrownJudgment:
24 April 2015
JUDGMENT OF GENDALL J
Introduction
[1] This is an appeal against sentence.
[2] On 25 February 2015, Judge M A Crosbie in the District Court at Dunedin sentenced the appellant to two years three months’ imprisonment on one charge of being an accessory after the fact to an assault with intent to rob.1 His Honour in his decision also recommended the appellant continue with one-on-one psychological counselling which he had commenced while on parole.2
[3] The appellant now appeals on the basis that the sentence imposed is manifestly excessive. Counsel for the appellant submits that the starting point adopted by Judge Crosbie of two years four months was too high, and, further, that
the uplifts imposed were excessive and should be reduced to be:
1 R v Boyd [2015] NZDC 2798.
2 At [18].
BOYD v THE QUEEN [2015] NZHC 822 [24 April 2015]
(a) proportionate to the starting point; and
(b)offset to take account of time spent subject to recall (for breach of parole).
Jurisdiction
[4] Mr Boyd is able to appeal this sentence imposed as of right.3 As first appeal Court, this Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.4 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act
1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).5
Submissions
Appellant
[5] Counsel for the appellant accepts that there is no tariff for offending involving being an accessory after the fact, but cites numerous precedents in support of the submission that Judge Crosbie’s starting point was excessive.
[6] Ms Saunderson-Warner for the appellant relies first upon R v Duff. 6 There, the Court noted a continuum for accessory situations ranging from cases involving the destruction of evidence (so as to thwart a successful prosecution) to cases where an isolated one-off incident (in which some form of assistance is given to a fugitive) occurred. Ms Saunderson-Warner submits that the offending in R v Duff is more serious than the appellant’s offending here and yet in that case, Lang J adopted a
starting point of 18 months.
3 Criminal Procedure Act 2011, s 244.
4 Sections 247 and 250.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010 at [11] per Lang J.
[7] In this Court in R v Boskell, I adopted a starting point of ten months for the defendant who was charged with being an accessory after the fact to murder.7
Ms Saunderson-Warner notes that the level of assistance provided in that case, although comparatively limited and of short duration, did enable the principal offenders to evade capture for a period sufficient to assist them in the destruction and discardment of a significant amount of incriminating evidence.8
[8] Ms Saunderson-Warner also refers to an annexure noted as Annexure B in my decision R v Boskell. This provided an analysis of sentences imposed in a large number of cases involving convictions for being an accessory after the fact. From that annexure, there are only four cases noted involving starting points higher than that adopted by Judge Crosbie here for the appellant. In each of these cases, culpability however was at the top end of the spectrum in that they all involved disposal of a deceased’s body or body parts. Ms Saunderson-Warner submits that this conduct is clearly of a substantially more culpable nature than the appellant’s offending in the present case.
[9] The Boskell annexure also includes a number of cases where a more limited
18 month starting point was adopted. Of these, Ms Saunderson-Warner suggests that R v Ovalau, R v Graham and R v Moala are relevant.9 In each of these cases the accessory drove the principal(s) away from the scene of the offending and assisted in the removal or disposal of weapons or evidence. Also a significant gang context was present in some of this offending.
[10] R v Afamasaga is also cited. There, Woolford J adopted a nine month starting point for driving the principal away from the scene of the murder, snapping a SIM card and attempting to arrange alibis.10
[11] Ms Saunderson-Warner then addresses the starting points adopted in R v
Smith, R v Fuimoano and R v Thompson decisions which Judge Crosbie considered
7 R v Boskell [2015] NZHC 286 at [108].
8 At [104].
9 R v Ovalau HC Auckland CRI-2006-092-10484, 13 March 2007; R v Graham HC Christchurch
CRI-2004-009-2224, 14 September 2004; R v Moala HC Auckland CRI-2006-092-461, 12
December 2007.
10 R v Afamasaga [2014] NZHC 2142.
in the District Court.11 She contends that the appellant’s offending here is slightly more serious than that in Smith but that Fuimoano is of limited assistance as it predates the modern approach to sentencing set out in R v Taueki and the Sentencing Act 2002.12
[12] Regarding Thompson, another pre-Sentencing Act authority, Ms Saunderson- Warner emphasises the Court of Appeal’s view that the appellant’s reporting to the gang president was an “insidious sidelight” of the offending. Given the approach to sentencing at that time, she submits that the starting point of three years must have reflected the personal aggravating features of previous convictions, and gang involvement, which weighed heavily with the Court of Appeal. Further, the offending in Thompson must have been premeditated, whereas the appellant’s actions here were limited to a short period of time after being informed of the offence. Overall, Ms Saunderson-Warner submits that Thompson, like Fuimoano, is of limited assistance.
[13] Overall, Ms Saunderson-Warner contends that a starting point for the appellant’s sentencing here should be in the range of 12-15 months. She identified “a relatively consistent theme” in modern cases dealing with accessories to murder, which adopt starting points of 15-18 months. And, given the lesser penalty for the appellant’s offending (five years, as opposed to seven years’ imprisonment), Ms Saunderson-Warner submitted that a lesser starting point was justified.
[14] In assessing the appellant’s culpability in the present case, Ms Saunderson- Warner maintained that the following factors are relevant:
(a) At the time the offender got into the car, the appellant was unaware of his offending.
(b)When he became aware of the offending, the appellant only drove a very short distance before letting the offender out of the car.
11 R v Boyd, above n 1, at [28]-[30], citing R v Smith HC Rotorua CRI-2007-063-4888, 3 February
2009; R v Fuimoano HC Auckland T023755, 25 May 2003; R v Thompson CA348/96, 23
October 1996.
12 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).
(c) The items were discharged shortly thereafter in response to seeing the
Police.
(d) There was no premeditation or sophistication in the offending here. (e) The offending was completed within a very short duration of time.
(f) The items discarded were not hidden and were easily and immediately locatable by Police.
(g) No evidence was destroyed.
(h) The balaclava discarded was not related to the principal offending.
(i)The mask was not hidden or discarded, meaning the Police could obtain DNA profiling results and identify the principal offender.
[15] In terms of personal aggravating factors, Ms Saunderson-Warner accepts that the appellant was subject to parole at the time of offending and that his previous convictions will justify a small uplift. However, she submits that if the starting point is adjusted, the Court must reduce the uplifts to make them proportionate to the starting point. On this aspect, she notes that the Court of Appeal has endorsed the need for proportionality between starting sentence and the uplift for previous
convictions.13
[16] Ms Saunderson-Warner argues also that the uplift here for offending while subject to parole needs to be balanced by the fact that the appellant was recalled as a result of this offending. A recall order was made on 12 September 2014. The appellant served this recall until his sentence end date of 23 October 2014. On 13
November 2014, he was sentenced to three months’ imprisonment for breach of parole. Judge Crosbie adopted a three month uplift for offending subject to parole. It is unclear whether he initially took a higher uplift and then moderated it to reflect the
time spent in custody subject to recall.
13 Hodgkinson v R [2012] NZCA 478; Tiplady-Koroheke v R [2012] NZCA 477.
[17] Ms Saunderson-Warner contends that a transparent approach is necessary and that the Court should set the amount of uplift, then reduce it for amount of time spent subject to recall.14 While a “one for one” reduction is not necessary, she suggests that the uplift should be offset by the time spent on recall, and that the need not to “double punish” is particularly acute in a situation such as the present.
Crown
[18] Ms Grills, on behalf of the Crown, suggests that counsel for the appellant has not cited here any authority for the proposition that the Court should determine the starting point by extrapolating from sentences for being an accessory after the fact to murder, and then adjust it to reflect the maximum penalty that applies in this case.
[19] She submits that there were sufficient relevant cases before the District Court here relating to sentences for being an accessory to aggravated robbery to assist that Court in determining the appropriate starting point.
[20] It was noted that Judge Crosbie did consider R v Duff, a sentencing decision regarding an accessory after the fact to murder, but it was clarified that the Judge distinguished the facts in the present case from Duff in two respects:
(a) There was no familial connection between the appellant and the main offender.
(b)The appellant, in addition to driving the offender to an address, had “then attempted to dispose of an integral part of the offence, being the weapon”.15
[21] Further, Judge Crosbie was aware of the cases of R v Ovalau and R v
McKenzie, as these were referred to in R v Smith, which was before the Court.16
Ms Grills notes that counsel for the appellant at the time had the opportunity to obtain the full decision in R v Boskell in the District Court, but elected not to do so.
14 In the footnotes to submissions, Ms Saunderson-Warner refers, “by analogy”, to Smith v Police
[2014] NZHC 2196 at [19].
15 R v Boyd, above n 1, at [26]-[27].
16 R v Smith, above n 11.
[22] In response to the appellant’s criticism of the District Court’s reliance on Thompson and Fuimoano, the Crown’s position here is that significantly in R v Campbell, Dobson J considered these decisions to be helpful when determining the starting point in sentencing for being an accessory after the fact to aggravated robbery.17
[23] Ms Grills asserts that it is clear from Judge Crosbie’s decision that he was aware of the aggravating feature in Thompson, namely the offender’s participation in organised criminal behaviour, and that in the present case the Judge made a downward adjustment on the starting point.
[24] The Crown’s position is that Judge Crosbie gave detailed and proper consideration to the relevant principles and appropriate authorities when determining the quantum of uplift in relation to the appellant’s criminal history.18
[25] Judge Crosbie’s approach, Ms Grills submits, is also consistent with the Court of Appeal’s decisions in Regan v R and Skipper v R.19 The dual uplifts are also consistent with the High Court’s indications in Police v Smith, noted above at [17].20
[26] In Regan, the Court determined that a one year uplift on a starting point of two years was not necessary and substituted instead a period of six months’ imprisonment. The reason for this reduced uplift was said to be the appellant’s progress towards rehabilitation, including efforts over an 18 month period to deal with his alcohol addiction (a major cause of his offending) and the support of the appellant’s partner. None of these factors it is said apply to the present case.
[27] In Skipper, the Court held that an uplift of six months (on a starting point of four years six months’ imprisonment) was too light to reflect previous convictions and offending whilst on bail for a recidivist burglar, and an uplift of 18 months was
justifiable in the circumstances.21
17 R v Campbell HC Napier CIV-2009-069-2003, 13 April 2011 at [18]-[19].
18 R v Boyd, above n 1, at [34]-[43].
19 Regan v R [2012] NZCA 227; Skipper v R [2011] NZCA 250.
20 Police v Smith, above n 14.
21 Skipper v R, above n 20, at [27].
[28] Regarding the three month uplift for offending on parole, the Crown’s position is that the appellant accepted the propriety of this during sentencing, but now seems to object to this uplift as double punishment. Ms Grills adds that the appellant’s sentencing on 13 November 2014 for a breach of release conditions in fact related to his having driven while impaired on 7 August 2014, approximately one month before the current offending. It is therefore unrelated to the present matter before the Court.
[29] Ms Grills submits that the District Court’s decision records that the Judge was aware of the recall, and that there is no basis for concluding that the Court erred in reflecting the offending while on parole by an uplift of three months’ imprisonment.22
[30] In conclusion Ms Grills submits that “while perhaps at the top of the range available to the Court,” the final sentence cannot be described as manifestly excessive, and accordingly this appeal should be dismissed.
Judge Crosbie’s approach
[31] After detailing the facts giving rise to this charge, summarising the victim impact statements and explaining why the principal offender was not charged, Judge Crosbie stated:
[13] What is today about, Mr Boyd? Today again is about holding you to account and promoting in you some responsibility. You are 34. As I have commented in Court already today, you have 16 convictions for violence from 1998 onwards, including two for wounding with reckless disregard in
2011. You received a long sentence for aggravated robbery in 2002, two charges of assault with intent to injure in 1998 and 1999 and numerous
convictions for common assault. There of course are other matters that are
relevant to your overall criminality. At this stage I am referring only to those that involve violence.
[14] So holding you to account is really saying, as indeed I have said to you before, that this should be a significant moment in your life where, as a result of being sentenced in a public way in relation to a serious matter, you should reflect on what your life holds for you and why you have done what you have done.
22 R v Boyd, above n 1, at [44].
[32] The Judge found the psychological assessment and treatment reports before him to be of “great assistance”.23 Along with the probation report, Judge Crosbie relied upon these reports for context, including their explanation of the appellant’s early childhood, his transient lifestyle, his gang associations and idealisations, and a serious head injury suffered. Judge Crosbie also noted the appellant’s 15-year criminal history, long-term issues with alcohol and drug abuse, unstable employment
and relationship history. Both psychological reports it seems assessed the appellant as being at a high risk of recidivism and a moderate risk of further imprisonment.
[33] Judge Crosbie acknowledged the appellant’s completion of the STURP programme and an alcohol and drug programme during his most recent sentence, but went on to note the obvious link to drug issues. His Honour also mentioned the appellant’s participation in one-on-one psychological counselling while on parole, and made a “strong recommendation” for its continuation. Having made these comments, Judge Crosbie stated:
[19] So that is what holding you to account means. I also have to denounce your conduct through your participation in this and your part in an offence, of course, that has caused some real concern and stress to people, although you were not the principal offender. Deterrence for you personally is also a big factor today. As I have said, with 16 convictions for violence, at some point, somehow, we would like to see that you do not return back to Court. Given the issues that have been identified, that can only be through further treatment.
[34] In accordance with the approach to sentencing established in R v Taueki,
Judge Crosbie then considered aggravating and mitigating factors of the offending.24
The Judge considered aggravating features were that the appellant, knowing that his co-offender had committed, or attempted to commit, an offence, complied with the co-offender’s instructions to drop him off, and to dispose of articles involved in the offending, including a shotgun. This compliance allowed the co-offender to escape the scene and remain undetected. Further, the link to drug-related offending here was seen as an aggravating factor. Judge Crosbie considered that there were no mitigating
features of the offending.
23 R v Boyd, above n 1, at [15].
24 R v Taueki, above n 12.
[35] Turning next to aggravating and mitigating factors relating to the appellant, Judge Crosbie commended the appellant’s guilty plea and noted his offer to participate in restorative justice. Although restorative justice did not occur, the Judge accepted that this was through no fault of the appellant’s. The Judge acknowledged counsel’s submission that the appellant was remorseful, but warned
that “[remorse] is a difficult thing for a Court to judge as sincere”.25 The appellant’s
16 previous convictions for violence were clearly seen as aggravating factors.
[36] Judge Crosbie noted that there is no tariff for this type of offending. Relying upon Fuimoano and Thompson the Judge adopted a starting point of two years four months’ imprisonment.26 His Honour uplifted that by six months for the appellant’s previous convictions and by a further three months for committing this offence while on parole. This left a starting point sentence of three years, one month imprisonment.27
[37] Judge Crosbie then gave a discount of 25 percent, to reflect both the appellant’s guilty plea and his willingness to go to restorative justice. This came to nine and a quarter months, which the Judge rounded up to ten months.28 The end sentence imposed was thus two years three months’ imprisonment, and he added the recommendation of continued one-on-one psychological counselling.
Analysis
Starting point
[38] In light of the numerous decisions to which I have been referred here, I am convinced that two years four months’ imprisonment was too high a starting point in this case.
[39] Before this Court, as I have noted, Ms Saunderson-Warner outlined a series of sentencing decisions on the more serious charges of being an accessory after the
25 R v Boyd, above n 1, at [25].
26 At [33].
27 At [48]. Judge Crosbie considered the six month uplift to be “conservative” and found that a year was “perhaps… available” to reflect the level and length of the appellant’s history: at [43].
28 At [50].
fact to murder. Contrary to Ms Grills’ objections, Ms Saunderson-Warner cannot be criticised for bringing these authorities to the Court’s attention, nor for submitting that the Court should take these starting points into consideration when sentencing for a charge with a lesser maximum penalty.
[40] From my review of the cases cited in Annexure B to R v Boskell, a clear sentencing theme is discerned that when sentencing accessories after the fact to murder, starting points between 15 and 18 months are appropriate.29 At least, this is so where the offending lies “somewhere in the middle” of the Duff continuum for such offending.30 As I see the position, it is difficult to contest that the starting point adopted for lower level accessory offending should be less than that adopted for accessory offending after the fact to murder. Given the lesser penalty for the appellant’s offending (five years’, as opposed to seven years’ imprisonment for being an accessory after the fact to murder), and the appellant’s comparatively reduced culpability in the present case, a starting point less than 15 months in my view is justified.
[41] The appellant’s offending here in my judgment was less serious than that which warranted an 18 month starting point in R v Duff, where the defendant was sentenced as an accessory to murder. The defendant’s assistance there took several forms, it spanned a period of 27 days, and it was provided notwithstanding the Police warning that they were looking for the principal and that the defendant should not help him to evade capture.
[42] Turning to the decisions in R v Fuimoano and R v Thompson, I do not accept the appellant’s submissions that these cases are of little assistance simply because they predate Taueki and the Sentencing Act, even though this may be a relevant consideration when assessing their overall usefulness.
[43] Judge Crosbie found that the offending in R v Fuimoano (where an end
sentence of 18 months’ imprisonment was imposed on the basis of a starting point of
29 R v Ovalau, above n 9; R v Graham, above n 9; R v Moala, above n 9; R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007; R v Tavita HC Auckland CRI-2009-092-
5263, 15 September 2009; R v Te Tomo [2012] NZHC 71; R v Granich [2013] NZHC 2657; R v
Tamihana [2014] NZHC 90.
30 R v Duff, above n, at [11] per Lang J.
around 30 months) did not appear more serious than the appellant’s offending.31 I am not so sure that this is the case, and I find also that R v Thompson, can be properly distinguished here on its facts, as the present appeal lacks the aggravating elements of serious gang offending and premeditation.32
[44] In R v Campbell, Dobson J relied upon what he described as the “helpful” cases of Smith and Thompson, as well as Fuimaono.33 In doing so, in Campbell, His Honour imposed a two year starting point because of the defendant’s active and ongoing assistance in concealing money stolen from an Armourguard van.34 The assistance in Campbell showed a high level of involvement and a correspondingly high level of premeditation. In the present case, the appellant’s culpability is less serious. The offending was not carried out in several discrete stages, nor was there significant premeditation.
[45] However, as Ms Saunderson-Warner does appear to concede, the appellant’s offending here is more serious than that in R v Smith, where Asher J adopted a 12 month starting point.35 The appellant’s offending is also markedly more serious than Ms McCormack’s limited and short-lived assistance as an accessory after the fact to murder in R v Boskell, which earned a starting point of ten months’ imprisonment.36
[46] Keeping in mind the desirability of consistency with appropriate sentencing levels in respect of similar offending, I consider that 14 months is an appropriate starting point.37
Proportionate uplift
[47] It is important that there be some proportionality between the starting point and any uplift.38 When calculating the quantum of an uplift for previous convictions,
31 R v Boyd, above n 1, at [30]
32 R v Thompson, above n 11.
33 R v Campbell, above n 17, at [18]-[20].
34 At [22].
35 R v Smith, above n 11.
36 R v Boskell, above n 7, at [108].
37 Sentencing Act 2002, s 8(e).
38 Hodgkinson v R, above n 13, at [21]; Tiplady-Koroheke v R, above n 13, at [24].
it is unclear whether in the District Court here, Judge Crosbie considered this principle in any detail.39
[48] Of the authorities cited for the Crown by Ms Grills on this point, I consider Smith v Police to be the most helpful. In that case, the starting point was 18 months. Brewer J indicated that uplifts of six months for previous relevant convictions (entered seven years earlier) and of three months for offending while on parole were within range.40
[49] Having reduced the starting point to 14 months, imprisonment as noted at [46] above, in the interests of proportionality, I correspondingly reduce the uplift for previous convictions to four months. But, I decline to reduce the three months uplift for offending while on parole, however, as it seems Ms Saunderson-Warner accepted the propriety of this uplift at sentencing. This adjusts the starting point to one of 21 months’ imprisonment.
Recall – double punishment?
[50] This uplift (three months for offending while on parole) does not in my view subject the appellant to double punishment. The sentencing Judge was aware of the appellant’s recall to complete an earlier sentence and, as noted, counsel for the appellant accepted the propriety and quantum of this uplift.41 There is no basis for concluding that the Court erred in reflecting the offending while on parole by a three month uplift.
Discounts
[51] Following the approach of Judge Crosbie, I would allow a discount of 25 percent, reflecting both the appellant’s guilty plea and his amenability to restorative justice. This comes to 5.25 months, which can be rounded up to six months.
Ultimately, the appellant should have been sentenced to 15 months’ imprisonment.
39 R v Boyd, above n 1, at [42].
40 Police v Smith, above n 14, at [17]-[18].
41 R v Boyd, above n 1, at [44] and [47].
Manifestly excessive?
[52] The High Court will 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 examined in terms of the sentence given, rather than the process by which the sentence is reached.42
[53] I consider that the starting point adopted was not within the available range. Further, the six month uplift for previous convictions was disproportionate. The end sentence I reached (15 months’ imprisonment) is a little over one-half the sentence imposed by the District Court (27 months’ imprisonment). By any calculation, the District Court’s original sentencing decision is manifestly excessive.
Conclusion
[54] As both requirements of s 250(2) of the Criminal Procedure Act have been met, this appeal against sentence is allowed. The end sentence of 15 months’ imprisonment is substituted for the original sentence of two years three months’. The recommendation that the appellant continue with one-on-one psychological counselling which he had commenced while on parole is to remain.
...................................................
Gendall J
Solicitors:
Aspinall Joel, Dunedin
RPB Law, Dunedin
42 Zimmerman v Police [2014] NZHC 3233 at [24]; Ripia v R [2011] NZCA 101 at [15].
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