Jones v The Queen
[2019] NZHC 1816
•30 July 2019
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2019-416-10
[2019] NZHC 1816
BETWEEN MICHAEL JONES
Appellant
AND
THE QUEEN
Respondent
Hearing: 26 July 2019 Appearances:
V L Thorpe for Appellant
K L Kensington for Respondent
Judgment:
30 July 2019
JUDGMENT OF GRICE J
[Appeal against sentence]
[1] Mr Jones appeals a sentence of three years and nine months’ imprisonment imposed by the District Court on 22 March 2019.1 The charges on which Mr Jones was convicted were aggravated burglary;2 discharging a firearm with intent to injure;3 and assault with a weapon.4
[2] On the aggravated burglary charge, the final sentence was three years and nine months’ imprisonment. The sentence on each of the other charges was two years’ imprisonment. All sentences run concurrently.5 On the conviction for aggravated robbery Mr Jones was given a three strikes warning.6
1 R v Jones [2019] NZDC 5391.
2 Crimes Act 1961, ss 66(1)–(2) and 232(1)(a); maximum penalty of 14 years’ imprisonment.
3 Sections 66(1)–(2) and 198(2); maximum penalty of seven years’ imprisonment.
4 Sections 66(1)–(2) and 202C; maximum penalty of five years’ imprisonment.
5 R v Jones, above n 1, at [47]–[50].
6 At [1]–[3].
JONES v R [2019] NZHC 1816 [30 July 2019]
[3] The issue in this appeal is whether the Judge should have applied a global discount for Mr Jones’ guilty plea and personal mitigating factors.
[4] The Judge followed the process of first deducting 18 months’ imprisonment from the starting point of 78 months for personal mitigating factors, before applying the guilty plea discount of 25 per cent to that discounted amount. The Judge’s application of discrete discounts resulted in a sentence of 45 months, or three years and nine months’ imprisonment. Combining the early guilty plea of 25 per cent and the personal factors discount of 18 months, or 23 per cent, would have resulted in a 48 per cent discount from the starting point of 78 months. That the combined approach been followed, the final sentence would have been 40 months imprisonment, or three years and four months’ imprisonment.
Background
[5] The facts leading to Mr Jones’ convictions are not in dispute. The Judge outlined the background as follows:7
[4] As you know, you appear for sentence not only on that aggravated burglary charge, but also the charges of discharging a firearm with intent to injure and assault with a weapon. There are agreed facts. There is no suggestion by the Crown you personally carried out any one of the specific physical acts mentioned, notwithstanding your desire to claim otherwise. I will talk about this shortly.
[5] The Crown presents your culpability as a party. At the outset, the Crown contends that along with your two co-offenders you are equally culpable for what occurred on 25 April 2018 as far as gravity of offending is concerned.
[6] At approximately 6.30 pm on 25 April 2018 you and your two associates (one of whom remains unknown) travelled to the first victim’s home address in Gisborne. You were prospecting for the Turanga chapter of the Black Power. All three of you travelled in a Nissan vehicle being used by one of your associates at the time.
[7] You located the victim at his address. He was working on his black BMW motor vehicle in his driveway. That address is fully enclosed on both sides as well as at the front and rear with fences. The driveway itself has a large farm-type gate-fence across it. It was partially open at the time. It is, therefore, an enclosed yard as far as the burglary element is concerned.
7 R v Jones, above n 1.
[8] You and your associates parked the Nissan vehicle directly behind the victim’s BMW. The three of you immediately got out of the vehicle, with your faces covered with bandanas. You entered the property through the driveway gate. You all ran directly up to the victim who was still working on his car. At that point two of your group were carrying air rifles. The two members of your group so armed pointed the air rifles at the victim’s head. The third in your group returned to the vehicle and uplifted a machete.
[9] At that time the male victim thought both air rifles were firearms due to the way they looked at that time of night. One of your group said to that victim, “You’ve got one option give me the keys,” referring to the BMW. He said, “No.” At that point one of your group said, “Shoot him.” As a result, a member in your group holding one of the firearms lowered his air rifle and shot the man in his right calf. Unsurprisingly, it caused him to fall to the ground in pain.
[10] Then the member of your group who had obtained the machete swung it at the victim’s head as he was lying on the ground. The victim put his hand up to protect himself from being hit in the head and as he did, the machete connected with his left hand. It caused a deep laceration to the third finger on his hand. One of your group then punched the male victim in the head on several occasions as he lay on the ground.
[11] At this point the male victim’s partner came to the front door to see what was happening. Upon seeing her partner, one of your group went over to her and pointed the air rifle directly at her body. She too believed the air rifle was a firearm. The offender who pointed that firearm/air rifle at the female victim also demanded the keys to the BMW from her stating, “Where’s the fucking keys bitch?”
[12] She then slammed the door shut and got her dog from inside the address and let it loose outside. As a result, you and your two associates jumped back into the vehicle and drove off. The police were called but they were unable to locate you or any of your associates.
[13] The male victim suffered injuries. He had an air rifle pellet lodged in his right calf leaving a small wound and bruising. He also received a cut to his lip. And a deep cut to his left hand when he was struck with the machete as he tried to deflect the blow.
[14] I have read the victim impact statement. He particularly has been left very upset and fearful for his safety as is his partner. Interestingly, when you were spoken to by the police on 30 April 2018 you made some admissions as to your role in this matter. You told the police you were prospecting for the Turanga Black Power. You said that you had gone to the male victim’s address because he owed you $600 and also $5000 that had been lent to him by your associates and not paid back.
[15] You told the police you had gone to the address to take that BMW as payment. You told them you had shot the male victim in the leg and you were the one who punched him in the head when he refused to give the keys. Also, you said you pointed the air rifle at the female victim and demanded the keys for the vehicle from her and then admitted that she let the dog loose outside.
[16] Steadfastly, you have refused to name your two associates, notwithstanding that one of them has been dealt with in the Youth Court. You said you are not a nark and you told the police you were going to give the male victim another hiding because he had still not paid back your money. You refused to tell the police where the air rifles had gone to. You said that one was a wooden rifle and it did not work and the other you had used had since been taken to Wellington.
[17] On 3 May 2018, the Nissan vehicle used by you and your two associates was located as it was heading back into Gisborne. The police located in the boot of that vehicle a black loaded air rifle, a wooden air rifle— that did not work, and a machete in the boot. As I mentioned, one of your co- offenders, whose name cannot be published in this adult Court, has also made admissions about his role and he was dealt with in the Youth Court.
[6] The sole focus on the appeal is the method of the application of the discount and whether the Judge erred in not applying a global discount. There is no issue taken with any other matter in the judgment nor of the weight attached to the relevant personal mitigating factors.
Standard of appeal
[7] Mr Jones has brought his appeal under s 250 of the Criminal Procedure Act 2011. Of note is that an appeal against sentence is an appeal against a discretion. Therefore, an appeal must only be allowed if the Court is satisfied that there has been an intrinsic error in the sentence and a different sentence should be imposed.8 The focus is on the final resulting sentence and whether it was in the available range, rather than the exact process by which it was reached.9 As articulated by the Court of Appeal in R v Peters:10
[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
9 Ripia v R [2011] NZCA 101 at [15].
10 R v Peters CA12/03, 14 May 2003.
Calculation of discount
[8] The sentencing Judge adopted the orthodox three stage sentencing approach of first deciding a starting point sentence for the offending, then adjusting that up or down to take account of the appellant’s personal circumstances and finally, applying a discount to reflect the appellant’s guilty plea.11
[9] Ms Thorpe, for Mr Jones, however, pointed to cases where the discounts had been aggregated and that total or global discount was taken off the starting point. She referred to R v Kokiri where Jagose J noted that there is a choice available as to the method of application of the discounts. In that decision, he noted if the option of choice made a difference to the end sentence, it was for the Judge to stand back to decide whether the outcome of the process followed is the right sentence.12
[10] Ms Thorpe also referred to Reweti v R where Simon France J noted that while the three-stage sentencing process may provide consistency, it could have unintended consequences in a particular case.13 He noted that the Supreme Court in Hessell v R recognised the value, in terms of consistency and transparency, of applying the guilty plea discount discretely as a final step. Nevertheless, the Supreme Court did not say that orthodox approach course is mandatory.14
[11] Consistency is promoted by use of the three-stage orthodox approach in sentencing and allows defence counsel to advise on the consequences of an early plea of guilty with some certainty.15 The Supreme Court in Hessell said:16
[73] There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on. Indeed there are advantages in addressing the guilty plea at this stage of the process (along with any special assistance given by the defendant to the authorities). It will be clear that the defendant is getting credit for the plea and what that credit is. This transparency validates the honesty of the system and provides a degree of predictability which will assist counsel in advising persons charged who have in mind pleading guilty.
11 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
12 R v Kokiri [2019] NZHC 501 at [39].
13 Rewheti v R [2018] NZHC 809 at [22].
14 At [23].
15 Hessell v R, above n 11, at [11] and [13].
16 At [73].
[12] In Reweti, Simon France J observed that “if the ‘rule’ were to take the guilty plea discount off the adjusted starting point like every other mitigating factor, transparency and consistency would be equally achieved.”17
[13] Ms Thorpe says the Court should adopt a sentencing approach which provides greater benefit to the offender and so provide the least restrictive outcome. She submits here that what needs to be avoided is an unintended dilution of the value and mitigating effect of a guilty plea. This has occurred by the application of the three- stage approach with the guilty plea discount as the final step. The result is more “disadvantageous and unfair” to an offender the greater the effect on sentence of other mitigating factors.
[14] Ms Thorpe further argued that s 8(g) of the Sentencing Act 2002 (the Act) mandates one of the principles of sentencing as the imposition of the least restrictive outcome that is appropriate in the circumstances. She said this principle was usually considered in the context of the hierarchy of sentences and orders as recognised in s 10A of the Act. Nevertheless, Ms Thorpe said that while in the past courts have considered restrictiveness by comparison with various types of sentences within the hierarchy of sentences,18 the intent of that principle had always been that the sentence should always be the least restrictive. She said that the application of the s 8(g) of the Act requires not only a choice between levels of sentence within the hierarchy, but also as to the final penalty imposed on the offender.
[15] Therefore, only a case where there are no mitigating factors warranting a reduction, allows the guilty plea discount to remain undiluted. Diluting the discount for a guilty plea, where there are other personal mitigating factors allowing a discount, also devalues those personal mitigating factors Ms Thorpe argues.
[16] Ms Thorpe recognises the difficulty in applying s 8(g) of the Act in the way she has suggested given the caution of the appellate Court in tinkering with sentences. She notes the High Court can regard the sentence as manifestly excessive in order to make the adjustment. She submits that for an offender even a day longer in sentence
17 Reweti v R, above n 13, at [23], n 8.
18 She cited R (CA217/2018) v R [2018] NZCA 582 as an example.
of imprisonment (or home detention) will make a difference. Ms Thorpe says that in most sentences the difference in the end sentence between the global discount approach and the orthodox approach would not amount to a significant difference. She says in the present case, applying the more favourable global discount sentence would affect the sentence appreciably.
[17]In response the Crown says:
(a)There was no error in the sentence as the Judge applied the orthodox sentencing methodology as established by the Court of Appeal and endorsed by the Supreme Court.
(b)The global discount approach having been taken in other cases does not alter the validity of the orthodox three stage approach to sentencing used here.
(c)The cases in which the global aggregate discount has actively been applied are fact specific, where a particular combination of sentence factors lead to a clearly desirable outcome—such as bringing a term of imprisonment below the two years’ imprisonment threshold to allow for a sentence of home detention.
[18] The Crown submits that Mr Jones’ sentence does not fall into that category. This is not a case where home detention is within grasp. The Crown says no basis for the Judge to in this case consider the possibility of a community-based sentence here.
[19] The Crown accepts that the application of a global discount might also produce consistency and transparency in sentencing,19 but says the current appellant guidance is that sentencing is traditionally a three-stage process. It says, for the reasons the appellate courts have articulated, it is advantageous to follow a three-stage process, making it clear that the defendant is going to get credit for the plea and the extent of
19 As noted in Reweti v R, above n 13.
that credit allows a degree of predictability for counsel advising defendants about their likely sentence if they plead guilty.20
[20] The Crown submits there has been no error and the orthodox three-stage process was appropriately applied. Further it says the end sentence reached did not result in a manifestly excessive sentence.
Analysis
[21] This is no error in the sentence imposed on Mr Jones. The sentence is not manifestly excessive.
[22] There are cases where the global discount method may be appropriate, for instance, in cases where its application will allow for a home detention sentence to be imposed as an alternative to a term of imprisonment. However, I am of the view that this is not such a case.
[23] In both Kokiri and Reweti the difference in the approach to the discount had consequences. In each of these cases, the use of the global discount brought the sentence down to enable consideration of the imposition of home detention.21 That differs from the present case.
[24] Even where a sentence of home detention might be achieved by the application of the global discount it is not an error to use the three-stage approach. If the Judge’s approach to the guilty plea discount is orthodox, there will usually be no error if the only issue is the orthodox application of the guilty plea discount. In Peke-Meihana the High Court was not prepared to allow an appeal on the basis of a ground of appeal that the aggregate or global discount should have been applied. The sentence was quashed in that case and reduced but for quite different reasons. The Judge made it clear that but for those other reasons (related to the start point and discount for personal mitigating factors) the appeal would have been unsuccessful.22 Mallon J said:
20 Hessell v R, above n 11, at [73].
21 Reweti v R, above n 13, at [24]; R v Kokiri, above n 12, at [39–[40].
22 Peke-Meihana v R [2019] NZHC 642 at [28].
[27] On this basis, the appellants in this case contend that, like Reweti, the only matter standing in the way of a sentence of home detention being imposed is the court’s approach to whether the guilty plea discount is applied at the same time as the other discounts or at the end. They say that, like the young man in Reweti, they are appropriate candidates for home detention and that sentence will better serve their rehabilitative needs and is in their best interests. In other words, like Reweti, home detention is “the right sentence” for these offenders at their age and stage.
[28] In my view, it is not appropriate in this case to apply the 25 per cent discount along with the other discounts to the starting point in this case. This is because it equates to a 21 month reduction from the starting point for the guilty plea, rather than 11 months when the guilty plea discount is applied conventionally after other discounts have been applied. This is not a marginal difference, as it was in Reweti where the Judge exercised his sentencing discretion to achieve the right outcome for the offender in all the circumstances.
[29] The Judge’s approach to the guilty plea in this case was orthodox. I consider that, if home detention is an available sentence for the appellants, it is for reasons other than any error by the Judge in when she applied the guilty plea discount. That was the view I indicated to counsel at the hearing and this indication led to submissions on the other components of the sentence.
[25] Section 8(g) of the Act requires the Judge to impose the least restrictive penalty available in the circumstances. However, this is only one of a number of principles that need to be carefully balanced in reaching the final sentence in this case.
[26] The Judge is not required to mention every sentencing principle in his judgment.23 While the Judge did not stop to calculate an alternative outcome using the global discount method, he was not required to do so. The application of the global discount might provide a tool to achieve a result which the Judge considers is appropriate in some cases. However, it should not operate as a mandatory standalone factor to be applied to achieve a reduction in a sentence of imprisonment in a case such as this.
[27] The Judge made no error in applying the sentencing principles nor in the sentencing process he followed. In any event, the end sentence is well within the appropriate range. I, therefore, conclude that the Judge made no error.
23 Sentencing Act, s 31(4).
[28]Accordingly, the appeal is dismissed.
Grice J
Solicitors:
V Thorpe, Gisborne for Appellant
Crown Law Office, Wellington for Respondent
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