Farley v R - [2017] NZCA 97

IN THE COURT OF APPEAL OF NEW ZEALAND

CA456/2016
[2017] NZCA 97

BETWEEN	MICHAEL EDWARD FARLEY Appellant
AND	THE QUEEN Respondent

Hearing:	20 February 2017
Court:	French, Mallon and Duffy JJ
Counsel:	O S Winter for Appellant M H Cooke for Respondent
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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farley v R

Details

AGLC: Farley v R [2017] NZCA 97
Case: [2017] NZCA 97
Decision Date: 3 April 2017 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Michael Edward Farley appeals against his sentence imposed by the Palmerston North District Court. Farley was sentenced to seven years' imprisonment for conspiring to defeat the course of justice, obtaining and using a false passport, and breaching home detention. The appeal challenges the sentence as manifestly excessive, arguing the sentencing judge miscalculated the discounts for his assistance to authorities, guilty plea, and remorse. The Crown accepts the appeal is timely and does not argue the sentence was appropriate.

The court examined whether the sentencing judge appropriately considered discounts for Farley's assistance to authorities, guilty plea, and remorse. The court found the discount for assistance to authorities was inadequate, as Farley's information was fundamental to resolving the investigation and apprehending his co-offender. The court also found the judge should have allowed a discount for the guilty plea, as the absconding did not negate its benefits. However, the court found the judge's decision not to discount for remorse was open to her. Considering these factors, the court found the sentence was manifestly excessive.

The court allowed the appeal and reduced the sentence for the conspiracy charge from five years to four years and five months, giving an effective total sentence of six years and five months. The court found this more appropriately reflected the mitigating factors. The other sentences remain unchanged.

The final orders are that an extension to appeal out of time is granted, the appeal against sentence is allowed, and the sentence of five years' imprisonment imposed on 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.

Orders