Farley v R
[2017] NZCA 97
•3 April 2017 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA456/2016 [2017] NZCA 97 |
| BETWEEN | MICHAEL EDWARD FARLEY |
| AND | THE QUEEN |
| Hearing: | 20 February 2017 |
Court: | French, Mallon and Duffy JJ |
Counsel: | O S Winter for Appellant |
Judgment: | 3 April 2017 at 3.00 pm |
-
JUDGMENT OF THE COURT
AAn extension to appeal out of time is granted.
BThe appeal against sentence is allowed. The sentence of five years’ imprisonment imposed on Mr Farley for conspiracy to pervert the course of justice is quashed and replaced with a sentence of four years and five months’ imprisonment. The other sentences remain.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Farley was sentenced in the Palmerston North District Court by Judge Edwards to seven years’ imprisonment[1] for conspiring to defeat the course of justice,[2] obtaining[3] and using[4] a false passport, and breaching home detention.[5] He appeals against that sentence. He contends the sentence was manifestly excessive because the Judge erred in her assessment of the appropriate discounts for his assistance to the authorities, guilty plea and remorse.
[1]R v Farley [2016] NZDC 6727.
[2]Crimes Act 1961, s 116 (maximum penalty seven years’ imprisonment).
[3]Passports Act 1992, s 32(1)(a) (maximum penalty five years’ imprisonment or $15,000 fine).
[4]Section 29A (maximum penalty 10 years’ imprisonment or $250,000 fine).
[5]Sentencing Act 2002, s 80S (maximum penalty one year’s imprisonment or $2,000 fine).
Mr Farley’s appeal was filed four months out of time. He has explained why that was. As the delay is short the Crown does not oppose this Court granting an extension of time for the appeal.
The offending
On 1 March 2010 Mr Farley was arrested for being found on a property without reasonable excuse. His arrest resulted from a call to the police by a neighbour who was suspicious of Mr Farley’s presence on the vacant property.
Mr Farley found out who had made the call to the police. He and an associate, Ms O’Donoghue, discussed how this witness might be dissuaded from giving evidence. The plan was that Ms O’Donoghue would go to a tavern close to the witness’ home to confront and assault him. Mr Farley would go to Hawke’s Bay to establish an alibi.
This plan was not carried out. Instead, at around 2 am on 12 April 2010, Ms O’Donoghue went to the witness’ property. She threw homemade Molotov cocktails through a set of doors leading into the kitchen. The house lit immediately and the fire spread very quickly. The witness’ family, which included three children, were able to escape without injury. Their home, however, was completely destroyed.
The police interviewed Mr Farley about the fire on 13 April 2010. At that time he denied knowing anything about the arson. The police interviewed Mr Farley again on 20 June 2010. This time he admitted to conspiring with Ms O’Donoghue but said that he did not imagine Ms O’Donoghue would go to the extent she had. He also assisted the police in locating Ms O’Donoghue.
Following the 20 June 2010 interview, Ms O’Donoghue was charged with arson and attempting to pervert the course of justice. She pleaded guilty to these charges and was sentenced on 29 October 2010.[6] Mr Farley was charged with conspiring to defeat the course of justice. While awaiting trial on that charge, he was sentenced to home detention on unrelated receiving charges.
[6]Police v O’Donoghue DC Christchurch CRI-2010-042-2537, 29 October 2010.
In May 2011, while serving his home detention sentence, Mr Farley applied for and was issued a New Zealand passport under a false name. On 1 July 2011 he entered a guilty plea to the conspiracy charge and was remanded on bail to 8 July 2011, at which time he was to be remanded in custody for sentencing on 2 August 2011. A few days later he removed his home detention bracelet and absconded. He first travelled to Australia and then to Canada. While in Canada, he was convicted of kidnapping and sentenced to imprisonment. While serving that sentence he was extradited to New Zealand.
On 15 April 2016 he was sentenced on the charges of conspiring to defeat the course of justice, breaching home detention, fraudulently obtaining a false passport and using a false passport.
The offender
Mr Farley was 42 years old at the time he was sentenced. He has a number of previous convictions for dishonesty offending and a conviction in 2003 for obstructing the course of justice. Mr Farley told the pre-sentence report writer he had absconded from New Zealand because he was subjected to intimidation including death threats as a result of his involvement in Ms O’Donoghue’s offending and was in a poor state of mind at that time. He had engaged in rehabilitative assistance while in prison in Canada. The report writer considered this appeared to have given Mr Farley greater insight into his offending, the impact on the victims, and how to lead an offence free lifestyle. The report writer considered Mr Farley to be genuinely remorseful for the impact of his offending on his family.
District Court sentencing
The Judge took a starting point of five years’ imprisonment for the conspiracy to defeat the course of justice charge. She uplifted that by six months for Mr Farley’s previous perverting the course of justice conviction. She declined to discount the sentence for Mr Farley’s guilty plea. She allowed a six month reduction for Mr Farley’s assistance to the police.[7]
[7]R v Farley, above n 1, at [17] and [19]–[21].
The Judge took a starting point of three years’ imprisonment for the passport offences. No uplift was made for the breach of home detention.[8] She considered no discount was warranted for Mr Farley’s personal circumstances but a discount of between 15 and 20 per cent was appropriate for his guilty pleas. This meant a cumulative sentence of two years and five months’ imprisonment on these charges.[9]
[8]Although not explicitly discussed in setting the starting point, it appears the Judge considered the passport offences and breach of home detention together. She did so explicitly when considering the guilty plea discount.
[9]At [23] and [27].
A five month reduction was made for totality. This gave an overall cumulative end sentence of seven years’ imprisonment. No minimum period of imprisonment was imposed.[10]
Assessment of the appeal grounds
Assistance to the police
[10]At [29] and [32].
Mr Farley submits the discount for his assistance to the police was inadequate. The Judge’s view was that the discount should not exceed 10 per cent. Her six month reduction from the five and a half years was a little less than that. The factors she took into account for not allowing a greater discount were that it was not known whether the police would have eventually discovered Ms O’Donoghue’s responsibility for the arson, Mr Farley did not disclose her involvement for two months after the arson had taken place, and he did so only at a time when he was facing other charges. Mr Farley submits the Judge was wrong to give these factors such weight and she should have given a greater discount because of the value of the information provided.
We agree. The purpose of a discount is to recognise the value of the assistance given to police and to encourage offenders to inform on other offenders to further the administration of justice.[11] The police learned of the conspiracy, the identity of the arsonist, and her whereabouts from the information provided by Mr Farley. It was fundamental to the resolution of the police investigation into the arson. The police provided no material to the Judge to indicate otherwise. The information provided was therefore of high value.[12] The two month delay was not especially long and it did not diminish the value of the information provided.[13]
[11]R v Accused CA443/97, 4 March 1998 at 5–6.
[12]Williams v R [2011] NZCA 384 at [11]: “The key determinant of the discount to be given for assistance will generally be its value.”
[13]Compare with, for example, K (CA79/2016) v R [2016] NZCA 297, where a delay of two years diminished the usefulness of the assistance. A 10 per cent discount was nevertheless allowed for the full and frank disclosure of the offending and the involvement of his co-offenders even though it had not proved useful to the police in prosecuting his co-offenders.
That Mr Farley’s motivation for providing the information may have been self-serving ought not to have been given much weight, as that is typically why an offender is willing to provide information about his or her co‑offender(s).[14] Moreover, Mr Farley’s information disclosed his own involvement in the conspiracy when he had an alibi for the arson.[15] There was nothing to suggest that Mr Farley was at particular personal risk from his co-offender.[16] We accept, however, there is likely to be some level of risk to anyone detained in prison who is known to be a “nark”.[17] It is in the public interest that criminals are encouraged to inform on their colleagues.[18]
[14]Bland v R [2013] NZSC 93, relied on by the Crown, is distinguishable. Mr Bland’s belated assistance came after his conviction and was said to be new evidence which rendered his conviction unsafe. His conviction appeal brought on this basis was dismissed by this Court. The Supreme Court declined leave to appeal on whether his sentence should be reduced because of his assistance, an issue not raised in his appeal to this Court. Compare with R v R CA62/96, 27 May 1996 at 5: offenders who provide assistance are entitled to credit “whether motivated by self help considerations or the genuine desire to demonstrate contrition and commitment to reform”.
[15]We accept the Crown’s submission that Mr Farley’s account of his involvement downplayed his own part in the conspiracy: he told the police he had said to Ms O’Donoghue that it would be nice if someone could tell the witness to pull his head in but he did not want any bruises, or for him to be hurt or put in hospital. In contrast Mr Farley acknowledged in the summary of facts that he agreed to Ms O’Donoghue confronting and “roughing up” the witness. However, this difference did not diminish the value of the information.
[16]Compare R v Hadfield CA337/06, 14 December 2006; and R v Li CA299/05, 1 November 2006.
[17]See Williams v R, above n 12, at [16].
[18]R v King (1985) 7 Cr App R (S) 227 (CA) at 230; cited in R v Hadfield, above n 16, at [26]; and K (CA79/2016) v R, above n 13, at [18].
Taking into account these factors, and particularly the usefulness of the information to Ms O’Donoghue’s apprehension, we consider a discount of around 20 per cent ought to have been allowed.[19]
Guilty plea
[19]Consistent with the discount allowed in Williams v R, above n 12. A discount of 10 per cent has been allowed in cases where the information was of low value. See for example, K (CA79/2016) v R, above n 13; and Anaru v R [2014] NZCA 283.
Mr Farley submits the Judge ought to have discounted the starting point because of his guilty plea and his remorse. In deciding not to give any discount for the guilty plea, the Judge said the primary benefit of a guilty plea was that it allowed the victims to avoid the stress of a trial and provided them with a sense of closure.[20] She considered Mr Farley had taken that benefit away by absconding. Mr Farley acknowledges the discount ought not to have been large because of this factor, but nevertheless submits a small discount was appropriate.
[20]R v Farley, above n 1, at [20].
We consider it was open to the Judge not to have discounted the starting point on the conspiracy charge for Mr Farley’s guilty plea. By absconding, the victims of the arson did not have closure and the time and administration costs of a trial saved from a guilty plea were unwound by the need to effect his return.
Remorse
Mr Farley submits the Judge ought to have allowed a discount for remorse in light of the favourable comments in the pre-sentence report. The Judge acknowledged these comments but considered they did not warrant a discreet discount.[21] That was a decision open to the Judge.
Manifestly excessive sentence
[21]At [27].
As we have discussed, we consider the Judge should have allowed a greater discount for assistance to the authorities. The question is whether this led to an end sentence that was manifestly excessive. Allowing a discount of close to 20 per cent from the five year starting point for the conspiracy charge plus six month uplift for the previous conviction gives a sentence of four years and five months’ imprisonment. Adding the end sentence for the other charges, and applying the same reduction for totality, gives a total effective end sentence of six years and five months’ imprisonment.
The Crown seeks to uphold the sentence imposed in the District Court on the basis the Judge’s starting point for the conspiracy charge was light in comparison with Ms O’Donoghue’s sentence. Ms O’Donoghue was sentenced on the lead charge of arson with the perverting the course of justice charge treated as a highly aggravating factor. A global starting point of 12 years’ imprisonment was set on that basis, which was then reduced to eight years for the guilty plea. She received a concurrent sentence of six years on the perverting the course of justice charge.[22]
[22]Police v O’Donoghue, above n 6, at [27] and [28].
We disagree that Mr Farley’s sentence was light in comparison with Ms O’Donoghue’s sentence. In the first place a true comparison with Ms O’Donoghue’s sentence is not available. This is because the Judge dealt with her two offences together, and then imposed a concurrent sentence on the perverting the course of justice offence which did not take into account the discounts the Judge gave for the mitigating factors. In any event, we consider Ms O’Donoghue was more culpable than Mr Farley. We acknowledge that Mr Farley was the instigator and he regarded Ms O’Donoghue as “not completely all there” and thought she had gang associations. However, Mr Farley was not to know that Ms O’Donoghue would dramatically alter the plan to rough up the witness by instead carrying out such a dangerous and frightening arson. The maximum sentence for the charge is seven years’ imprisonment. A five year starting point, to which a six month uplift was applied for an earlier conviction in 2003, was arguably stern as against that maximum.
The Crown does not submit the Judge’s approach to the sentence was wrong in any other respect. It follows that the end sentence was manifestly excessive.
Result
An extension to appeal out of time is granted.
The appeal against sentence is allowed. The sentence of five years’ imprisonment imposed on Mr Farley for conspiracy to pervert the course of justice is quashed and replaced with a sentence of four years and five months’ imprisonment. The other sentences remain.
Solicitors:
Crown Law Office, Wellington for Respondent
6