Maney v R
[2018] NZCA 193
•14 June 2018
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA146/2018 [2018] NZCA 193 |
| BETWEEN | JASON REX THOMAS MANEY |
| AND | THE QUEEN |
| CA144/2018 | ||
| BETWEEN | MATIRA DEBORAH MANEY | |
| AND | THE QUEEN | |
| Hearing: | 15 May 2018 |
Court: | Miller, Ellis and Woolford JJ |
Counsel: | N M Dutch for Appellant (CA146/2017) |
Judgment: | 14 June 2018 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeals against sentence are allowed.
BMr Maney’s sentence of two years and three months’ imprisonment is quashed. A sentence of two years’ imprisonment is substituted.
CMs Maney’s sentence of two years and three months’ imprisonment is quashed. A sentence of two years’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
On 9 March 2018, Jason Maney and his mother, Matira Maney, were each sentenced to two years and three months’ imprisonment on single charges of conspiring to pervert the course of justice.[1] They both now appeal their sentences.
Background
[1]R v Maney [2018] NZDC 4520.
On 23 August 2016, Jason Maney was arrested on charges of assault and threatening to kill, relating to events that occurred the previous day. The complainant was John Nuttall, who is the father of Ms Maney’s partner, Tai Nuttall.
While in custody awaiting trial on the violence charges, Mr Maney had a number of telephone conversations with his mother. These were, of course, recorded. The pair discussed Ms Maney prevailing upon Tai Nuttall to persuade his father to change his evidence about the events giving rise to the charges Mr Maney was facing. Tai Nuttall was also in jail at this time.
In one of these (quite lengthy) conversations Ms Maney said “well I’m gonna see Tai tomorrow and I’m gonna tell Tai you tell your father to tell them it was a dispute, an argument, a heated argument”. Mr Maney is then recorded as telling his mother to “say there was no hands on or nothing and there was no threatening to kill”. Ms Maney then reiterated:
I’m going to see Tai tomorrow and you tell your father it was a dispute; there was a fucken argument. It was a heated moment, … he didn't hurt me or anything like that.
And Mr Maney said:
that’s all the old fool has to say, a heated dispute. There was no touching, choking and all that. He doesn't know why he said that. He was pissed off at the time. I'll be home in two weeks.
And later, Mr Maney said:
I’ll ring tomorrow to make sure everything is confirmed. There was no physical touch. The old cunt better be on straight up or I’ll be getting out with revenge. Straight up, I wanna be a good man when I get out not an angry man.
In a phone call the following day Ms Maney confirmed “I know what to say” and later she reiterated, “I’ll get Tai to coach him up”. The same day Ms Maney spoke to Tai Nuttall in jail. She said: “please talk to dad babe, please talk to dad for J and just tell him Jason didn’t assault him or you know...”.
Sometime later, Ms Maney confirmed to her son that John Nuttall was going to “follow through” with “no physical touch and no killing words.” She spoke again to Tai the same day, telling him that he needed to “get onto” it, because Mr Maney’s trial was the following week.
It seems, however, that Tai Nuttall did not follow through on Ms Maney’s instructions. Indeed, John Nuttall duly gave evidence against Mr Maney at trial and Mr Maney was convicted on the assault and threatening to kill charges.
The charges of conspiring to pervert the course of justice, based on the content of the conversations summarised above, were then laid against the Maneys. Following a jury trial both were convicted.
Sentencing in the District Court
In the course of his sentencing remarks, Judge Harding relevantly noted that:
(a)Denunciation and deterrence must be to the fore for offending of this kind;[2]
(b)Mr Maney had 61 previous convictions and Ms Maney had 25, including one for obstructing the course of justice in 2007;[3]
(c)The Crown had ultimately submitted that a starting point of two and a half to three years was appropriate, given the aggravating factors of premeditation, implied threats of violence and the fact that the offending occurred while Mr Maney was in custody;[4] and
(d)In M(CA469/2013) v R this Court:[5]
(i)had observed that the primary sentencing focus in such cases should be on intention and intended effect;[6] and
(ii)doubted that sentencing levels set by older cases such as R v Hillman[7] continued to be appropriate, in light of ss 8(c) and (d) of the Sentencing Act 2002.
[2]At [4].
[3]At [3].
[4]At [5].
[5]M(CA469/2013) v R [2013] NZCA 385.
[6]At [6].
[7]R v Hillman [2005] 2 NZLR 681 (CA).
The Judge’s conclusions as to starting point were:
[12] This offending was a conspiracy to prevent a witness from giving evidence of an extended and premeditated nature, but the witness gave evidence, the intention was not achieved and there is no evidence that the witness was actually approached. In terms of R v Miller my focus must be on the intention and the intended effect rather than the actual results. That at least is at something approaching a medium level of seriousness. Although the focus is on that it is not the sole focus and your offending is distinguishable from many cases because of the lack of approach actually being made.
[13] In those circumstances, in my view a year’s reduction from an average seriousness start point of three and a half years is appropriate, meaning that the appropriate start point is at most two and a half years. In fact, I conclude two years and three months is the appropriate start point.
He then gave an uplift of four months for Ms Maney’s previous conviction for obstructing the course of justice but offset that through a four-month reduction to reflect rehabilitative steps she had taken and for a late expression of remorse.[8] Neither an uplift nor a discount was applied in Mr Maney’s case.
[8]R v Maney, above n 1, at [15].
Lastly, the Judge recorded that even if he had decided that a sentence of less than two years was appropriate, he would not consider the imposition of a sentence of home detention to be an adequate response or the least restrictive sentence available.[9]
Arguments on appeal
[9]At [17].
Mr Nabney for Ms Maney submitted that the Judge wrongly applied M(CA469/2013) v R and adopted a starting point that was too high because it did not properly reflect her culpability or the fact that the planned interference had not come to fruition.
Mr Dutch for Mr Maney similarly said that too much emphasis had been placed on the intended outcome (ie persuading Mr Nuttall not to give evidence that would lead to Mr Maney’s conviction on the violence charges) and not enough on the reality that there had been no interference with the witness and no threats made. That failure of execution differentiated the Maneys’ circumstances from other cases such as M(CA469/2013) v R, which involved significantly different and more serious facts.[10] Mr Dutch also submitted that Mr Maney should also have been afforded a four-month discount for his signalled desire to turn his life around.
[10]Discussed further below.
Both counsel acknowledged, however, that the substitution of a non-custodial sentence would not be a realistic option. Even if a lower starting point were adopted, therefore, the fact of imprisonment would still have the important and necessary deterrent effect.
Ms Hoskin for the Crown acknowledged that the sentences imposed here were at the very upper end of the available range. She nonetheless submitted that they could not be said to be out of step with recent cases and should not be disturbed on appeal.
Discussion
In our view, the appeal can be disposed of in relatively short order. We acknowledge that the decision of this Court in Miller v R upheld a three and a half year starting point on the basis that a “mid-range” starting point was appropriate for a mid‑range offence of this kind.[11] But there is potential danger in simply adopting three and a half years as a benchmark and then working backwards (or forwards) from there. And when the present case is compared with other similar cases (some of which were not referred to the District Court Judge) we think that the starting point adopted was rather too high.
[11]Miller v R [2014] NZCA 382 at [12].
For convenience, we summarise those cases (including those to which Judge Harding referred) chronologically as follows:
(a)M(CA469/2013) v R in which the appellant had kept the complainant, his nine-year-old daughter, away from court for a week.[12] A starting point of two and a half years’ imprisonment was upheld on appeal. The Court said that while there may not have been “overt intimidation or threats” the appellant had “exerted control over his daughter by virtue of his relationship with her”.[13]
(b)Next, there is Miller itself, where the appellant had written a letter from prison overtly threatening two witnesses, both of whom were subsequently placed in witness protection where they were required to assume new identities and leave their friends and families. As noted earlier, this Court upheld the sentencing Judge’s starting point of three and a half years’ imprisonment.
(c)R v Potter, where the respondent had pressured the complainant to lie (which she did) in order to have charges against the respondent’s partner (Mr Tamaiparea) withdrawn.[14] The sentencing Judge adopted a starting point of two years and three months’ imprisonment which, after giving a discounts totalling six months for personal matters, was converted to a sentence of 10 months’ home detention. This Court dismissed an appeal by the Solicitor-General against that sentence.
(d)H (CA6/2016) v R, where the appellant was found to have made a “keep your mouth shut” signal to a witness, in the course of his trial.[15] That witness then failed to come up to brief.[16] A starting point of 18 months’ imprisonment was upheld on appeal in that case.
(e)Harting v R, where the charge arose out of a letter the appellant wrote to one of his adult stepchildren, A, on 30 July 2014.[17] The letter suggested that the complainant should go to a lawyer and swear an affidavit saying that she wasn’t well and had made up the allegations against him. The complainant obtained a copy of the letter and passed it on to police. Mr Harting had also made three telephone calls to the stepdaughter in which he reiterated in a fairly aggressive manner his desire for the complainant to see a lawyer about withdrawing the charges. This Court held that the two-year starting point adopted by the sentencing Judge was “stern but not manifestly excessive”.[18]
[12]M(CA469/2013) v R, above n 5.
[13]At [10].
[14]R v Potter [2015] NZCA 25. The pressure had taken the form of Ms Potter telling the complainant about the financial consequences of Mr Tamaiparea going to prison, in particular because he was helping to pay the rent and to pay for things the complainant needed both at home and at school. After the facts of the complainant’s recantation came to light, Mr Tamaiparea was tried for the offending against the complainant, but the jury could not agree. He later pleaded guilty to a lesser (representative) charge.
[15]H (CA6/2016) v R [2016] NZCA 101.
[16]Notably, those actions, combined with threatening gestures made by the appellant during the evidence of another witness (which led to a further charge on which the appellant was acquitted) had led the trial Judge to abort the trial.
[17]Harting v R [2016] NZCA 296.
[18]At [25].
Miller v R, and to a lesser extent M(CA469/2013) v R, involved offending of a qualitatively more serious kind than the Maneys’. The facts of Potter, involving as they did a direct and (initially) successful attempt, were also more serious than the present. And we incline to the view that, given the consequences of the offending in H (CA6/2016) v R, the 18-month sentence there was generous.
The facts of the present case seem to be most similar to those in Harting. As in this case, the attempt was neither directly made nor successful. In both there were clear overtones of aggression. But given this Court’s finding that the two-year starting point adopted there was within range, but severe, we do not consider a starting point of any higher than that could be justified here.
As regards Mr Maney’s personal circumstances, we note the pre‑sentencing report writer’s comment that it was “difficult to not have some empathy” for him. The report described the “lamentable” circumstances of his upbringing with an “unhelpful” exposure to gang life, drug use, alcohol use, criminal offending and violence from an early age. That said, however, we are unable to discern any error in the Judge’s approach to the issue. Mr Maney is recorded as not accepting the guilty verdict and as expressing no remorse. He received no uplift for his extensive past offending. We are unable to agree that any discount was warranted.
For the reasons we have given, however, the appeals are allowed. The sentences of two years and three months’ imprisonment are quashed and sentences of two years’ imprisonment substituted. While that takes the sentences into the range where home detention is an option, we agree with the sentencing Judge and the appellants’ counsel that that is not appropriate here.
Solicitors:
Crown Law Office, Wellington for Respondent
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