McQuilken v The Queen
[2017] NZCA 283
•5 July 2017 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA633/2016 [2017] NZCA 283 |
| BETWEEN | JAYDEN MCQUILKEN |
| AND | THE QUEEN |
| Hearing: | 19 June 2017 |
Court: | Asher, Venning and Dobson JJ |
Counsel: | C G Tuck for Appellant |
Judgment: | 5 July 2017 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed to the extent that the sentence of six months’ imprisonment imposed for the conviction on receiving stolen goods in charge 10 is quashed and a sentence of one month’s imprisonment is substituted.
BIn all other respects the appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Dobson J)
The appellant, Ms McQuilken, was sentenced by Judge Harding in the District Court at Tauranga on 18 November 2016 to a term of four years’ imprisonment.[1] That was imposed for a conviction for attempting to pervert the course of justice. Lesser concurrent terms were also imposed for three charges of receiving and one of driving while disqualified.
[1]R v McQuilken [2016] NZDC 23312.
Ms McQuilken appealed against the sentence as manifestly excessive, arguing that the sentencing Judge adopted a starting point that was too high.
The offending
Two Mongrel Mob associates, one of whom was Ms McQuilken’s partner, were charged with relatively serious aggravated robberies and burglary. The police executed search warrants on the property Ms McQuilken shared with her partner and recovered a substantial volume of items that had been taken in the robberies and burglary. Ms McQuilken was charged with receiving a cellphone, an iPod and a PS4 console, plus a substantial volume of jewellery items, clothing and furnishings. The value of items that Ms McQuilken had received from each of the robberies and burglary were valued respectively at approximately $1,500, $200 and $5,000.
Shortly before their trial on those charges, Ms McQuilken took photographs of a five-page witness statement from a proposed prosecution witness that had been provided as part of police disclosure. She posted the whole statement on her Facebook page and made a number of comments inciting violence against the proposed witness. She tagged in the Facebook post to a large number of known Mongrel Mob members and associates, thereby publicising to those who might access this medium her invitation for others identifying with that gang to harm the witness. Ms McQuilken commented:
Heads up Errbody. Patch member calls himself a born in Mongrel. U make me sik U lil nigga. Fukn die. [xx] is a pig informant. Billem then killem hangim with his longtail SFSH.[2]
[2]Witness’ identity removed.
The post generated a number of further comments, including from Ms McQuilken. She deleted the post from her Facebook page the following day when requested to do so by the police. A further charge of perverting the course of justice was added to the proceedings against Ms McQuilken.
There was no evidence as to whether the Facebook post had been read by the witness who was identified. However, when the trial proceeded the witness targeted by the Facebook post was consistently reluctant to answer questions and was declared hostile. So too were a significant number of other Crown witnesses.
The approach on sentencing
The sentencing Judge treated the attempt to pervert the course of justice offending as being at the serious end of such offences. He considered the Crown’s proposed starting point of five and a half to six and a half years as overstating the position and adopted a starting point of five years’ imprisonment.[3] He treated unspecified aggravating factors as justifying an uplift of six months. Crown submissions on the appeal suggested that the aggravating factors that justified the six‑month uplift were the additional offending on which she was being sentenced, the fact that the offending occurred whilst she was on bail, and her previous convictions.
[3]R v McQuilken, above n 1, at [16].
In terms of comparators the Judge rejected a defence submission that the offending was on the same level as the cases of Hillman and Miller and categorised this offending as more serious.[4]
[4]R v Hillman CA14/92, 14 May 1992 — this decision predates the Sentencing Act 2002, and the approach in it has been doubted given the requirements in s 8(c) and (d) of that Act: see M (CA469/2013) v R [2013] NZCA 385 at [11]; Miller v R [2014] NZCA 382, where this Court upheld a starting point of three and a half years’ imprisonment.
From the final starting point of five years and six months the Judge subtracted six months for Ms McQuilken’s remorse and six months for her willingness to seek help, reducing the sentence to four and a half years.[5] From that he was prepared to deduct a further six months for her guilty plea, which he described as occurring before there had been any significant evidence in the trial. That produced the end sentence of four years’ imprisonment for what the Judge described as “an extremely strong Crown case”.[6]
[5]R v McQuilken, above n 1, at [18].
[6]At [18].
The Judge imposed concurrent sentences of six months’ imprisonment on each of the charges of receiving and one month’s imprisonment, also concurrent, on the charge of driving while disqualified.
A sentence of supervision had been due for review at the time of this sentencing. The Judge cancelled it, without replacing it with an alternative sentence.
Challenge to the starting point
The main grounds for Mr Tuck’s challenge to the starting point adopted by the Judge were first that the Judge should not have treated her conduct as premeditated, and rather ought to have appreciated that the Facebook post was spontaneous. Secondly, the seriousness attributed to the offending failed to take into account that she had been suborned by her co‑accused, including her then-partner, who were both senior Mongrel Mob members.
Apart from the starting point which was characterised as excessive, Mr Tuck accepted the appropriateness of all subsequent steps in the sentencing process, including the uplift for previous convictions and the extent of various discounts that were applied.
Analysis
The maximum penalty for attempting to pervert the course of justice is seven years’ imprisonment.[7] There is no tariff judgment, it being well settled that the circumstances in which such offending occurs vary so widely that there would be insufficient utility in attempting to grade appropriate sentences into definable categories of such offending.[8] Given the grave seriousness of disruption to criminal court proceedings, the sentencing considerations of denunciation and deterrence are routinely important ones.
[7]Crimes Act 1961, s 117.
[8]Miller v R, above n 4, at [10].
Here, a blatant attempt to dissuade a Crown witness from giving evidence against Ms McQuilken and her associates was given chilling reinforcement by being broadcast widely to other gang members and associates. The threats (whether this one alone, or this together with other attempts at intimidation) were effective to the extent that the police witness who had provided the witness statement was reluctant to the extent of being declared hostile.
To make the threat, Ms McQuilken abused, in a fundamental respect, the terms on which disclosure of prosecution materials is made to defence counsel and defendants. Making such improper use of access to a witness statement and broadcasting its content prior to trial makes Ms McQuilken’s conduct materially more serious than if that aspect had not occurred.
The threat was a very powerful one that Ms McQuilken must have known would generate a high level of fear in the witness who was targeted. For a gang affiliate to be exposed as a police informant prepared to give evidence against gang members would ordinarily create a real threat of serious physical harm. Where that disloyal conduct is highlighted by publicising the terms of a proposed witness statement provided to the police, the target of the threat would inevitably fear for his or her personal safety, if not for his or her life. The Judge was entitled to infer that it had that effect.
We do not accept Mr Tuck’s submission that the post was a spontaneous act. It involved what must have been a conscious course of conduct in photographing each of the five pages of the police statement, uploading them, and then drafting the text of the original comment that accompanied her tagging in the post a large number of gang members and associates.
Nor can we accept that Ms McQuilken was suborned by her co‑accused. Mr Tuck accepted that there was no evidence to that effect, and his analysis of the power imbalance between Ms McQuilken, her partner and the other co‑accused does no more than suggest she acted to demonstrate her solidarity and a unified response from all three of the defendants whose interests were adversely affected by the proposed evidence. Accepting that there was a measure of peer pressure to demonstrate such solidarity is materially less than accepting she was forced or suborned to do what she did.
We consider that five years’ imprisonment was certainly at the very top of an appropriate range of starting points for this offending. That cannot, of itself, make out the claimed manifestly excessive outcome.
Ms McQuilken’s convictions for receiving stolen property were moderately serious, given the value of the items involved, and her being complicit in her partner’s more serious offending. Contrasting the appropriate sentence if those convictions were dealt with on a stand-alone basis certainly required a material uplift where they were resolved by way of a concurrent sentence. Further, given that the offending occurred whilst Ms McQuilken was on bail and subject to a sentence of supervision, an uplift of six months for those aggravating features of the offending is readily justified. We take that view even if a discrete uplift for her previous convictions would be modest, or possibly unnecessary.[9]
[9]Since 2005, Ms McQuilken has a significant number of convictions for relatively minor offences involving driving, drugs, dishonesty and breach of community work and supervision sentences. She has not previously been sentenced to imprisonment.
We consider that the extent of deductions from the starting point was certainly generous.
As to remorse, the writer of the pre‑sentence report commented that Ms McQuilken did not fully acknowledge her culpability and was defensive regarding the attempting to pervert the course of justice offending. She did not take responsibility for items stolen in the robberies that were the subject of the receiving charges to which she pleaded guilty. She was not in a position to make a meaningful offer for reparation.
In those circumstances, a reduction of six months in the sentence was indeed generous and could easily have been half that.
The second discount of six months was provided for her willingness to seek help. The pre‑sentence report cited changes in her associates and the choice of people she spent time with, and that Ms McQuilken had expressed a desire to change her attitudes because those that had prevailed were likely to lead her back into re‑offending. A demonstrated determination to break from associations that were likely to be supportive of future offending is inarguably to be encouraged. However, at the time of sentencing, there was relatively little action on her part that would justify any substantial credit for this mitigating factor. Again, we treat the six-month deduction on sentencing as a generous one.
We also agree with the Crown’s submission that the last six-month discount for guilty pleas, amounting to 11 per cent, was generous given that it was entered after some 189 pages of evidence had been given by 12 witnesses, including the witness threatened by Ms McQuilken’s Facebook post. A more modest discount of four or five months for the guilty plea could certainly not have been criticised.
In the end, we are not persuaded that the final sentence of four years’ imprisonment was manifestly excessive. Any extent to which the starting point could be classified as excessive is well matched by the generosity of the combined discounts allowed. Accordingly Ms McQuilken’s appeal against sentence cannot be upheld.
Discrete sentencing error
Ms Hoskin drew our attention to the fact that one of the convictions for receiving stolen property involved property valued at less than $500.[10] The maximum sentence under s 247(c) of the Crimes Act 1961 for offending at that level was three months’ imprisonment. There was therefore no jurisdiction to impose the concurrent sentence on that conviction of six months’ imprisonment. Accordingly we allow the appeal to the extent of quashing the sentence of six months’ imprisonment imposed for that conviction, and substitute for it the lesser sentence of one month’s imprisonment.
[10]Charge 10, CRN 15070005234.
In all other respects the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent