Jefferies-Smith v R
[2020] NZCA 315
•28 July 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA477/2019 [2020] NZCA 315 |
| BETWEEN | COLIN RICHARD JEFFERIES-SMITH |
| AND | THE QUEEN |
| Hearing: | 21 April 2020 |
Court: | Courtney, Wylie and Muir JJ |
Counsel: | M A Edgar and V J Feyen for Appellant |
Judgment: | 28 July 2020 at 11 am |
JUDGMENT OF THE COURT
A Leave is granted to adduce further evidence.
BThe appeal is allowed.
CThe sentence of nine years’ imprisonment is quashed and substituted with a sentence of eight years’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
In June 2019 Colin Jefferies-Smith stood trial on one charge of murder in the High Court at Rotorua. He was acquitted of murder but convicted of manslaughter. Woolford J sentenced him on the manslaughter charge and on five drug-related charges to which he had subsequently pleaded guilty.[1] The end sentence of 11 years’ imprisonment was made up of a sentence of nine years on the manslaughter charge and concurrent sentences of two years on each of the drugs charges, to be served cumulatively on the sentence for manslaughter.
[1]R v Jefferies-Smith [2019] NZHC 2067.
Mr Jefferies-Smith appeals his sentence on the grounds that the Judge erred in:
(a)taking too high a starting point for the manslaughter charge; and
(b)allowing too low a discount for Mr Jefferies-Smith’s indication that he would plead guilty to manslaughter.
First ground of appeal: was the starting point too high?
The offending
The following summary of the offending is drawn largely from the Judge’s sentencing notes.[2]
[2]The first ground of appeal proceeds on the basis that some of the facts on which the Judge sentenced are disputed. We discuss those later when we consider that aspect of the appeal.
Mr Jefferies-Smith was a street-level dealer in cannabis and methamphetamine. The deceased, Lance Waite, was a senior member of the Notorious chapter of the Mongrel Mob. In the early hours of 31 December 2017 Mr Jefferies‑Smith agreed to supply methamphetamine to a woman who had a family connection to the Mongrel Mob. Mr Jefferies-Smith was unable to complete the deal and failed to return the purchaser’s money. The disgruntled purchaser sought help from Mr Waite.
In the early evening of 31 December 2017 Mr Waite took Mr Jefferies-Smith’s car in a “taxing” exercise. Mr Jefferies-Smith attempted to resolve the situation by paying money and handing over drugs to Mr Waite. He expected that his car would be returned but it was not.
Mr Waite eventually had the car taken and parked near the Greerton 2nd Hand and Pawn Warehouse (known as the Trap) where he was staying. Mr Jefferies-Smith became increasingly angry over the next few days at the fact his car had not been returned. In the early hours of 3 January 2018 he went to the Trap to speak to Mr Waite. He arrived soon after midnight but Mr Waite was not there. Mr Jefferies‑Smith left and returned shortly after 5.30 am. He spoke to Mr Waite, who told Mr Jefferies-Smith that he would not be getting his car back. Mr Jefferies-Smith went away again. He obtained a firearm and ammunition and returned to the Trap at about 9.35 am. He did not speak to Mr Waite immediately but instead went inside to get an Allen key to attempt to mobilise his car (although Mr Jefferies-Smith still had his car key, the ignition had been damaged so that it could not be started with the key). He then went to work on his car.
Some time after 11 am Mr Jefferies-Smith took the firearm from the vehicle he had used to get to the Trap, went upstairs and waited in the kitchen. Mr Waite appeared from one of the bedrooms. Mr Jefferies-Smith pointed the firearm at him and told him to put his (Mr Waite’s) car keys on the table. Mr Waite said something dismissive and began to walk away. Mr Jefferies-Smith fired twice, hitting Mr Waite in the middle right side of the back and the upper left side of the back as he was initially walking, then running, away.
The starting point
The Judge took 10 years’ imprisonment as the starting point for the manslaughter charge.[3] Mr Edgar, for Mr Jefferies-Smith, submitted that this was too high. He argued that this error was the result of the Judge relying on cases that were not truly comparable to the facts in the present case and the Judge’s failure to recognise the availability of self-defence.
[3]R v Jefferies-Smith, above n 1, at [70].
We start with the relevance of self-defence. Mr Jefferies-Smith had asserted in his police interviews that when he went to the Trap the second time there was a confrontation between him and Mr Waite during which Mr Waite reached under the back seat of his car and produced a sawn-off shotgun, which he then covered up before going back inside.[4] This was the reason Mr Jefferies-Smith went away to arm himself. When he returned to the Trap later and went inside to get an Allen key to work on his car, Mr Waite shouted at him from upstairs, threatening his family if Mr Jefferies‑Smith did not pay him more money. That prompted Mr Jefferies-Smith to get the gun and go inside to confront Mr Waite. When he fired the gun he did so in the belief that Mr Waite was going out to get his own gun.
[4]The transcripts of the police interviews were not before us. This summary is drawn from the submissions filed on behalf of Mr Jefferies-Smith, to which there was no objection from the Crown.
This scenario formed the basis for the defence of self-defence, which was left to the jury but, self-evidently, rejected. Nevertheless, at sentencing, counsel invited the Judge to take Mr Waite’s conduct into account on the basis that the first shot appeared not to have had any effect on Mr Waite and, whilst the jury may have considered the second shot to have been excessive, it was fired in the genuine belief that Mr Waite was leaving the building to retrieve his gun, with Mr Jefferies-Smith acting solely to stop him doing so.
The Judge did not accept this submission:[5]
[59] Having listened to the evidence and assessing the reliability of all witnesses, I do not accept two assertions made by Mr Jefferies-Smith:
(a)That he was threatened with a sawn-off shotgun that morning by the deceased, who had the firearm in his car;
(b)That minutes prior to the shooting, the deceased threatened to harm Mr Jefferies-Smith’s family if he did not pay more money by the following day.
[60] No-one saw the deceased in possession of a sawn-off shotgun at the Trap. Further, when he was shot, he ran to the road, and not to his car to retrieve a firearm which he could use for self-defence or retaliation. No firearm was found in subsequent Police searches of the property or the deceased’s car. The other occupants of the Trap did not have the opportunity to dispose of a firearm before Police arrived.
[61] No other person at the Trap heard the deceased make those threats. In any event, Mr Jefferies-Smith had obtained the firearm from Mr Williams earlier that morning and the ammunition later that morning, well before the shooting. I do accept that the deceased had earlier humiliated and threatened Mr Jefferies-Smith which prompted him to arm himself, but I do not accept that the deceased posed any immediate threat to Mr Jefferies-Smith.
[62] My assessment is that Mr Jefferies-Smith went to the Trap with a firearm and ammunition and threatened the deceased in order to get his car back. Mr Jefferies-Smith lost his temper when the deceased mocked him and told him that he would not use the gun.
[5]R v Jefferies-Smith, above n 1.
Mr Edgar submitted that the Judge’s rejection of the evidential foundation for self-defence wrongly failed to acknowledge the facts that were before the jury and the essence of the verdict. We do not accept this submission. It is true that the jury’s rejection of the verdict could have been based on a finding that Mr Jefferies-Smith’s actions amounted to excessive force rather than a rejection of his account of being threatened. But the Judge was entitled to make a finding based on his own assessment of the evidence for the purposes of sentencing and the Judge’s view of the evidence was clearly open to him. Although there was evidence about Mr Waite’s propensity for violence, no one heard him threaten Mr Jefferies-Smith on the morning of the shooting and no gun was found in his car. We accept Mr Edgar’s point that Mr Jefferies-Smith’s direction to Mr Waite to put his car key on the kitchen table was consistent with him being concerned about Mr Waite having a gun in his car. But looking at the evidence overall, we are satisfied that the Judge was entitled to reach the view he did.
We turn next to the cases the Judge treated as comparators in setting the starting point. As the Judge noted, there is no guideline judgment for manslaughter and the circumstances of manslaughter can vary markedly.[6] As a result, the best assistance is usually found in comparative cases.[7] The Judge regarded R v Christie as the most similar to the present case for this purpose,[8] though viewed Mr Jefferies-Smith’s offending as more serious.[9]
[6]R v Jefferies-Smith, above n 1, at [65], citing R v Leuta [2002] 1 NZLR 215 (CA) at [59].
[7]R v Tai [2010] NZCA 598 at [12].
[8]R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004.
[9]R v Jefferies-Smith, above n 1, at [69].
In Christie there was a single, fatal shot fired during a confrontation between two brothers. The Judge sentenced on the basis that the offender had deliberately taken the firearm into the house to confront his brother and intended to discharge it into the ground to scare him but had recklessly carried the gun with the safety catch off. The Judge considered that a starting point in the range of eight years’ imprisonment was appropriate, though noted that this would be at the lower end of the range.
Mr Edgar sought to distinguish Christie on the basis that self-defence was not available in that case. Given our conclusion regarding the basis on which the Judge sentenced, this is not a valid distinction. The Judge’s assessment of Christie as being similar but less serious is correct because Mr Jefferies-Smith deliberately fired shots at a retreating figure.
Mr Edgar pointed to other cases discussed but rejected by the Judge as better comparators: R v Flavell,[10] R v McKee[11] and R v Kirk.[12] In all these cases, the offender had intentionally discharged a firearm in response to a perceived threat or challenge. The Judge did not consider that any of these cases were factually comparable and we agree.
[10]R v Flavell [2014] NZHC 3373.
[11]R v McKee [2017] NZHC 2286.
[12]R v Kirk [2016] NZHC 1249.
R v Flavell concerned a fatal shooting that followed an assault by the deceased on the offender who was sitting in his car. The offender took a firearm from the car, loaded it and got out of the car. As the deceased walked towards him the offender raised the gun and fired. The starting point was seven years and six months’ imprisonment. Self-evidently, Mr Jefferies-Smith’s act of firing twice at Mr Waite as he walked away and (as the Judge found) without any basis for thinking that he himself was in danger, must be regarded as more serious than the circumstances of this offending.
In R v McKee the offender had brought a firearm with him on a social visit but did not have any intention of using it. During the course of the visit an altercation broke out between him and the victim. The (unarmed) victim advanced on the offender in a threatening manner and made homophobic taunts. The offender responded by discharging his gun. The Judge sentenced on the basis that the offender had intended to inflict a non-fatal injury and that the case was properly treated as one of excessive self-defence. The starting point was seven years and six months’ imprisonment. Again, the circumstances of the present case are more serious because, although Mr McKee had brought a firearm to the property with him, his use of it (albeit excessive) had been in the context of an actual confrontation, which was not the case here.
Finally, R v Kirk involved a family argument in which the deceased threatened those present with a meat cleaver. Mr Kirk went into his bedroom to get the firearm he kept there for personal protection, worried that the deceased would get it first. The deceased followed Mr Kirk into the bedroom and advanced on him with the meat cleaver. As Mr Kirk was backing away and shouting for help he fired several shots. Again, these circumstances are very different to those that existed when Mr Jefferies‑Smith fired at Mr Waite as he went down the stairs.
Given that the Judge was entitled to find that Mr Jefferies-Smith had not been threatened and was not facing any imminent danger, coupled with the fact that Mr Jefferies-Smith had fired at Mr Waite as he was retreating, the Judge was right to treat the present case as more serious than those just discussed. A starting point of 10 years was undoubtedly within the available range.
Second ground of appeal: the discount for willingness to plead guilty
Mr Jefferies-Smith sought a discount on the basis that he had attempted to plead guilty to manslaughter from the outset. The Judge accepted that a discount could be given but considered that the circumstances warranted only 10 per cent. He identified the relevant considerations as the strength of the Crown case and the fact that a manslaughter verdict was not obviously available (which we see as overlapping), and the fact that Mr Jefferies-Smith’s willingness to plead guilty was never formally communicated to the Crown.[13]
[13]R v Jefferies-Smith, above n 1, at [76].
Mr Edgar submitted that the Judge erred in failing to give a full allowance. He argued that the strength of the Crown case and the seriousness of the offending did not preclude the maximum discount of 25 per cent being allowed and pointed to instances of serious offending and a strong Crown case in which higher discounts have been given for a guilty plea.[14]
[14]See for example Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629, a particularly egregious
manslaughter of a young child involving serious aggravating factors, in which a discount of 20 per cent was given for a guilty plea, and R v Kaihau [2013] NZHC 3192, a manslaughter involving the stabbing of defenceless man on private property in which a discount of 15 per cent was given for the guilty plea.
Mr Edgar also distinguished the cases relied on by the Judge, R v Dodd and R v Flavell.[15] In R v Dodd a 20 per cent discount was given where the defendant had offered to plead guilty several months before trial. In R v Flavell where the evidence was overwhelming, a five per cent discount was allowed for a guilty plea entered a week before trial. Mr Edgar distinguished these cases on the basis that neither involved circumstances that supported self-defence going to the jury.
[15]R v Dodd [2018] NZHC 3432; and R v Flavell, above n 10.
For the Crown, Ms Hoskin submitted that the strength of the Crown case and the fact that Mr Jefferies-Smith’s willingness to plead guilty had never been formally communicated made the discount appropriate.
Consideration of the discount for a guilty plea or the willingness to plead guilty is undertaken by reference to the reasons such a discount is offered.[16] The rationale for the discount was considered by the Supreme Court in Hessell v R and more recently by this Court in Moses v R. In Hessell, the Supreme Court cited R v Strickland for the policy rationales:[17]
…[I]t spares the victim the ordeal of giving evidence; it saves the State the time and expense of a defended hearing; and it may be evidence of the offender’s acceptance or responsibility for wrongdoing and contrition.
[16]Moses v R [2020] NZCA 296 at [23].
[17]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [28], citing R v Strickland [1989] 3 NZLR 47 (CA) at 51 per Richardson J.
In Moses v R this Court reviewed the methodology for sentencings in which a guilty plea discount was a factor. In doing so, and in the context of any additional discount available where there is also remorse, it discussed the statements made by the Supreme Court in Hessell regarding the circumstances that ought to be taken into account in fixing a guilty plea discount. The Court made the following comments that are relevant to this case:[18]
[22] First, benefits to the judicial system and participants in it supply the principal justification for a guilty plea discount. … The sentencing judge must decide which of these rationales applies and what weight will be given to them.
[23] Second, fixing the amount of the discount requires an evaluative judgment, but the relevant circumstances of the case must be those that engage any applicable rationales for the discount. The rationales established by the Supreme Court suggest that, among other things, the scale and complexity of the trial, the proximity of the plea to first appearance or to trial, the justification for any delay, the inevitability or otherwise of conviction, the benefits of not giving evidence for victims and witnesses, and the victim’s experience of atonement following the offender’s acceptance of responsibility may affect the amount of the discount, which may range from 25 per cent to nothing.
[18]Moses v R, above n 16 (footnote omitted).
With those comments in mind, we turn to consider the basis for the discount allowed for Mr Jefferies-Smith.
We start with the lack of formal communication of willingness to plead guilty. The Judge considered that this reduced the discount that would have been given had there been a formal communication of Mr Jefferies-Smith’s willingness to plead guilty.[19] We think this was an error in the circumstances of this particular case.
[19]R v Jefferies-Smith, above n 1, at [76].
In its judgment in Hessell v R, this Court made it clear that an offender convicted of an offence for which he or she has previously indicated a willingness to plead guilty is nevertheless eligible to receive the maximum reduction available at the stage of the proceedings which that willingness was communicated:[20]
[41] As a matter of general principle, an offender who is convicted of an offence for which he or she had earlier communicated a willingness to plead guilty should receive the maximum reduction available at the stage of proceedings at which that willingness was communicated. For example, if an offender charged with murder communicated at the first reasonable opportunity that he or she was willing to plead guilty to manslaughter, but the prosecution chose to proceed to trial on the murder charge, the offender should receive the maximum reduction for the plea if subsequently convicted of manslaughter.
[42] In giving that example, we are not suggesting the Crown should have accepted the guilty plea to manslaughter. The Crown will often be fully justified in proceeding with a murder charge, even though the defendant indicates a willingness to plead to manslaughter and manslaughter is the jury’s ultimate verdict. The reason, in these circumstances, the defendant should be treated as having pleaded guilty to manslaughter at the first reasonable opportunity is that the defendant did all he or she could to acknowledge responsibility at the earliest time; it is only fair that he or she should get the maximum discount. Giving that defendant the maximum discount does not in any way indicate that the prosecution’s stance in pursuing the murder charge was wrong.
[20]Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.
The Court was alive to the potential difficulty arising where a defendant indicated a willingness to plead guilty at an early stage but did not actually do so until later (or, inferentially, at all). It strongly recommended that willingness to plead guilty to a lesser charge be communicated in writing to the prosecutor with a copy to the Court so as to avoid any dispute over what the defendant’s stance was.[21] There was no consideration of this issue by the Supreme Court in the subsequent appeal.
[21]At [43].
The course recommended by this Court in Hessell was not followed in the present case but, as we discuss next, that was not the fault of the defendant.
The precise nature of the communications about Mr Jefferies-Smith’s willingness to plead guilty is uncertain. Mr Edgar sought leave to adduce affidavit evidence from Mr Jefferies-Smith and from Mr Bates, formerly of the Public Defence Service (PDS), who acted for Mr Jefferies-Smith at the outset of the case. There was no objection to this evidence being adduced and we give leave to do so.[22]
[22]The sworn affidavit was not in Court and could not be located. Mr Edgar provided an unsworn copy and, with leave, has since had the affidavit re-sworn and refiled.
Mr Jefferies-Smith claims that Mr Bates told him the Crown had turned down his offer to plead guilty to manslaughter, implying that an approach was made. But Mr Bates’ evidence suggests that he did not approach the Crown at all and was cautious about the whole idea. The Crown did not require either Mr Jefferies-Smith or Mr Bates for cross-examination. There was no evidence from the prosecutor. Ms Hoskin acknowledged that there had been informal discussions at an early stage but said that no formal offer was made.
The Judge proceeded on the basis that there had been an informal approach to the Crown, but was not specific as to what that entailed. Given the state of the evidence we proceed on the same basis. However, in the circumstances of this case we do not consider that the failure to formally communicate a willingness to plead guilty to the Crown should preclude a discount being applied in the usual way because we are satisfied that Mr Jefferies-Smith did all he could to acknowledge responsibility. Without implying any criticism of the counsel who acted for Mr Jefferies-Smith up to the point of trial, we find that the lack of formal communication with the Crown was the result of the way Mr Jefferies-Smith’s representation proceeded rather than any omission on Mr Jefferies-Smith’s part.
Mr Bates’ affidavit shows that the first time he visited Mr Jefferies-Smith at Waikeria Prison on 10 January 2018, Mr Jefferies-Smith raised the issue of a guilty plea and whether a discount would be given in the context of the murder charge. Mr Bates discussed the possibility of the Crown agreeing to the resolve the case by way of a manslaughter charge but said that he was not in a position to advise on that until further research had been completed. Mr Jefferies-Smith’s account was that he actually told Mr Bates that he would plead guilty to manslaughter.
At the next meeting, on 24 January 2018, Mr Bates told Mr Jefferies-Smith that the option of pleading guilty to manslaughter was not available. Nevertheless, he took written instructions that Mr Jefferies-Smith “would be prepared to consider pleading guilty to the alternative charge of manslaughter if offered”.
In March 2018, Mr Jefferies-Smith pleaded not guilty to the charge of murder. Mr Bates continued to receive disclosure from the Crown and to prepare the case for trial. He wrote to Mr Jefferies-Smith recording the basis of the defence as being lack of murderous intent and self-defence, noting that Mr Jefferies-Smith would proceed to trial on that basis if there was no resolution through a guilty plea to a charge of manslaughter. But Mr Bates considered it premature to suggest resolution on that basis to the Crown.
In April 2018 Mr Bates met with Mr Jefferies-Smith by audio-visual link. Mr Jefferies‑Smith asked whether Mr Bates had raised the possibility of him pleading guilty to manslaughter. Mr Bates said that he had not because he did not consider that the Crown was ready for a meaningful discussion about the case. He assured Mr Jefferies-Smith that that there would be plenty of time to raise the issue with the Crown and that he would not lose any credit if he eventually offered to resolve the matter by pleading guilty to manslaughter.
Mr Bates continued to receive police disclosure and to prepare the case for trial. On 5 June 2018 Mr Jefferies-Smith telephoned Mr Bates about a forthcoming case review. In the course of the conversation Mr Jefferies-Smith asked again about the possibility of a manslaughter charge. Mr Bates advised Mr Jefferies-Smith that this was not available and that it was unlikely that the case would be resolved in that way; rather, they would proceed to trial with a view to securing a manslaughter conviction. He explained that approaching the Crown with a proposal that Mr Jefferies-Smith plead to manslaughter would require a reason for it to be taken seriously and that could involve disclosing the defence plan. Mr Bates explained that he was cautious about doing that and would want to discuss that further and obtain updated written instructions. They agreed that Mr Bates would visit him the following week for that purpose and that if Mr Jefferies-Smith wished to proceed with that course Mr Bates would obtain a signed authority to do so.
By the time Mr Bates visited Mr Jefferies-Smith on 13 June 2018, however, he had reached the view that a conflict of interest existed within the PDS. It seems that was the only topic of discussion and the question of a guilty plea for manslaughter was not raised.
New counsel, Mr Boot, was assigned. When Mr Bates wrote to Mr Boot, enclosing the file, he referred to Mr Jefferies-Smith’s instructions regarding the possibility of pleading to a manslaughter charge if that alternative were available. But Mr Jefferies-Smith says that “nothing much happened when [Mr Boot] was acting for me”. There was no affidavit from Mr Boot. Why he did not pursue the possibility of a guilty plea to manslaughter, having had the issue brought to his attention by Mr Bates, is unknown.
Finally, Mr Edgar, who was already acting on the separate drugs charges, took over as trial counsel. Mr Jefferies-Smith says he believed that the Crown had rejected his offer to plead and that he had no choice but to go to trial and so did not raise the issue with Mr Edgar.
We are satisfied from Mr Bates’ evidence that Mr Jefferies‑Smith was willing to plead guilty to manslaughter and made that known to Mr Bates at an early stage. It is apparent from the fact that he raised the matter several times that his intention went beyond merely being prepared to consider the possibility. It was due to the circumstances and timing of Mr Bates relinquishing the file that this was not raised with the Crown in a meaningful way, a circumstance exacerbated by Mr Jefferies‑Smith’s belief that he had no choice but to go to trial. We do not consider that Mr Jefferies-Smith ought to be disadvantaged by these circumstances.
A discount was therefore available on the same basis as if Mr Jefferies‑Smith’s willingness to plead had been communicated formally to the Crown. The question is: what is the appropriate discount? It is apparent from the facts outlined earlier that Mr Jefferies-Smith had made it clear from late January 2018 that he was prepared to plead guilty to manslaughter. Even if a slightly later point were taken, Mr Jefferies-Smith’s indication of willingness to plead must still be viewed as having been made at an early stage, at least a year before the trial commenced on 6 May 2019. The trial ran for six weeks; self-evidently the benefit in cost savings would have been significant. Any discount ought to have reflected these facts.
Also relevant was the strength of the Crown case. Care should be taken not to place too much weight on this factor; this Court recently observed in Millar v R that it would be wrong to approach the discount on the basis that the stronger the Crown case the lower the guilty plea discount.[23]However, it is certainly relevant in this case because there was little prospect of Mr Jefferies-Smith avoiding responsibility for the offending. It was incontrovertible that Mr Jefferies-Smith had shot Mr Waite. Although he acknowledged this from the outset, he claimed that he had done so on the basis of self-defence, i.e. that he should not be responsible for the death. However, given that Mr Waite was shot from behind, the Crown case had to be viewed as strong and self‑defence, realistically, had minimal prospects of success.[24]
[23]Millar v R [2019] NZCA 570 at [36].
[24]Whether the decision to advance this defence at trial ought to affect the discount was not addressed by counsel; R v Jamieson [2009] NZCA 555 at [44] would suggest not and would be consistent with this Court’s observations in Hessell noted at [29] above. Whether the Supreme Court’s decision in Hessell affects that view may be open to argument but we do not need to express a view.
We consider that Mr Jefferies-Smith was entitled to the benefit of a discount that reflected the fact that, on the Crown case, conviction for murder was quite possible and for manslaughter highly likely. In those circumstances and taking into account the benefits associated with an early indication of preparedness to plead guilty, a discount of 20 per cent would have been appropriate.
Result
Leave is granted to adduce further evidence.
The appeal is allowed.
The sentence of nine years’ imprisonment is quashed and substituted with a sentence of eight years’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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