Orchard v The Queen

[2010] NZCA 376

IN THE COURT OF APPEAL OF NEW ZEALAND

CA233/2010
[2010] NZCA 376

BETWEENMURRY CHRISTOPHER ORCHARD

Appellant

ANDTHE QUEEN

Respondent

Hearing:4 August 2010

Court:Ellen France, Gendall and Courtney JJ

Counsel:B N Ayrey for Appellant

M Inwood for Respondent

Judgment:17 August 2010 at 2.30 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]        The appellant pleaded guilty to one count of causing grievous bodily harm, with intent, and one count of conspiring to pervert the course of justice by dissuading a witness by threats and or by bribes from giving evidence in a criminal proceeding.  He was sentenced to an effective term of eight and a half years’ imprisonment in the District Court at Christchurch on 26 March 2010.[1]  He appeals against that sentence.

Background facts

[1]      R v Manning DC Christchurch CRI-2008-009-17749, 26 March 2010.

[2]        After pleading guilty the appellant sought a disputed facts hearing.  This occurred before the sentencing judge, and took the best part of a day (between 10am and well after 3pm).  The transcript of evidence is of 90 pages.

[3]        In order to understand the nature of the disputed facts and the Judge’s findings, it is necessary to traverse the background history which led up to the appellant’s offending.  It is conveniently summarised in the decision of Judge Farish in what is described as a “Ruling” dated 23 March 2010.  There, the Judge observed that the appellant took an active step in the disputed facts hearing, with evidence being given by him and two witnesses.

[4]        The general background was that Mr Gray in April 2007 was the victim of a stabbing inflicted by a Ms A G Manning.  She is a friend or associate of the appellant.  After a preliminary hearing she was committed for trial.  Both the first and second trials were aborted for various reasons, and a further trial was rescheduled for 16 October 2008.  Thereafter the appellant and Ms Manning approached Mr Gray and attempted to dissuade him from giving evidence. 

[5]        When Mr Gray arrived at the Court to give evidence on 16 October 2008 Ms Manning and the appellant approached him.  They made threats and offered inducements for him not to give evidence.  Mr Gray then left the courthouse prior to the commencement of the trial, and he could not be later located by the police.  So that trial also did not proceed. 

[6]        Thereafter, on 19 October 2008, Mr Gray was sent a text message either by Ms Manning or the appellant, to the effect that he should meet the appellant at the latter’s work address in order to collect some cannabis.  Mr Gray believed this to be the “reward” for his not giving evidence.  But when he went to the appellant’s address he was struck by the appellant with a long pick axe handle across the face and head, suffering fractures to his eye socket and cheekbone and significant damage to his eye and face.

[7]        The appellant pleaded guilty late in the piece, about a week before his trial.  He sought the disputed facts hearing because he said he did not agree that:

·     threats were made by him and Ms Manning at the courthouse on 16 October in order to persuade Mr Gray not to give evidence;

·     Mr Gray’s motivation to leave the courthouse was because of threats or inducements and that he hid from the police for other reasons;

·     he had threatened either Mr Gray or another witness (present at the time) after the attack on Mr Gray;

·     the attack on Mr Gray was premeditated or planned but was a pre-emptive strike because the appellant was apprehensive that he would be assaulted.  It seems, however, that at the disputed facts hearing the appellant’s counsel resiled from that proposition.

[8]        The findings of Judge Farish at the disputed facts hearing are summarised as follows.  Mr Gray’s evidence was that threats and inducements made earlier at the courthouse to persuade him not to give evidence did not leave him fearful as he was more interested in his financial situation.  Judge Farish accepted that evidence and said:

[13]       ...  it was Mr Orchard’s and Ms Manning’s suggestion that they pay him off with drugs and/or motor vehicles and money. 

[14]       ... this does not change the accused’s culpability in relation to what they then did over the [preceding] four days.

[9]        The Judge rejected the explanation of the appellant that he was simply inviting Mr Gray and another to provide cannabis.  The appellant was a small-time dealer who said he had run out of product and hence the meeting on the evening of 19 October.  The Judge said that she did not find the appellant’s explanation plausible.  She accepted the evidence that what occurred was that Mr Gray had been hit with a pick axe handle by the appellant, the appellant having said to Ms Manning as early as 18 October, he was going to “sort the freak”.  The Judge found that the appellant had:

[17]       ... in mind that he would maintain that Mr Gray kept his silence by giving him a hiding.  There is no other rational explanation as to why he behaved in such a seriously violent way.  Mr Gray was not in any way a threat towards Mr Orchard ... .

[10]       The Judge accepted the evidence of the other witness who was present when the attack took place that the appellant threatened Mr Gray after he had hit him with the pick axe handle.  The Judge took that the appellant was intent on obtaining Mr Gray’s silence.  She said that she was satisfied beyond reasonable doubt that the appellant had intended to get the victim to the premises so that he could assault him.

[11]       When sentencing the Judge considered that this offending was at the bottom of band three and the top of band two of R v Taueki,[2] and fixed a starting point of nine years’ imprisonment.  The aggravating feature of the conspiracy to defeat the course of justice required a condign sentence with a discrete starting point in the vicinity of three to four years.  But she took a starting point of nine years’ imprisonment and did not impose an uplift for the appellant’s previous convictions, including those for drug dealing offences, as she noted there were no convictions for violence.  The Judge then turned to the appellant’s personal factors, none of which she regarded as mitigating.  The only discount could arise from the very late plea, a week out from trial.  Accordingly, she allowed what she said was a generous discount, namely 15 per cent. 

[2]      R v Taueki [2005] 3 NZLR 372 (CA).

[12]       The Judge then considered whether the request for the disputed facts hearing had any impact upon the discount to be allowed for the guilty plea.  She referred to R v Hessell[3] and the observation of this Court that if there is a reasonable basis for a disputed facts hearing, and the evidence is not overwhelming, that should not have any adverse impact upon a discount for a guilty plea.  In essence she found that the challenge was unreasonable and without merit.  She said that the submission advanced by the appellant was that he acted in self-defence, but said:

[10]       ... I have totally rejected that and that clearly was not open on the evidence on any view of it.  You have created a situation where the main complainant and the supporting witness had to go through almost a mini-trial.  Therefore you have lost the discount of 15 percent.  I will give you discount, but I will give you discount of five percent.

[3]      R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.

[13]       Consequently, on the causing grievous bodily harm charge the appellant was sentenced to eight and a half years’ imprisonment, together with a concurrent term of three years’ imprisonment on the charge of conspiring to defeat the course of justice.

Appellant’s contentions

[14]       On behalf of the appellant, Ms Ayrey contended that the sentencing judge erred in her findings of fact and assessment of the evidence at the disputed facts hearing;  she took an overly mathematical approach to the application of Taueki principles so as to arrive at a starting point that was excessive in the circumstances;  insufficient credit was given for the guilty plea because although the 15 per cent allowance was appropriate, it was wrong and unfair to reduce this to five per cent because the appellant chose to pursue the disputed facts hearing.

Discussion

[15]       We agree with the submission that a mathematical approach to the assessment of starting points in cases applying Taueki is not appropriate.  This Court in Taueki[4] emphasised that the sentencing judge needs not only to identify factors but also to evaluate the seriousness of a particular factor.  However, we are satisfied that the evaluative exercise has been undertaken in this case.  The attack upon the victim by the appellant with a pick axe handle, intending to cause grievous bodily harm in circumstances to enforce the threat or inducement not to give evidence as a Crown witness was very serious offending.  In terms of Taueki it had the admitted four aggravating features of extreme violence, use of a weapon, serious injury and an attack to the head.  The only aggravating features which the appellant contested, and which were the subject of the disputed facts hearing, were the factors of premeditation, and violence being used in an attempt to pervert the course of justice.  The Judge found that they existed.  She rejected the appellant’s evidence at the lengthy hearing.  She was entitled to do so, given the evidence that she heard.  A starting point at the bottom of band three of nine years’ imprisonment was well justified, as it incorporated the obstruction of justice crime.  He could not call in aid any mitigating personal features.

[4] At [30].

[16]       Judge Farish rightly observed that the only discount that was available in the sentencing exercise was for the guilty plea.  It came very late, the offending having occurred on 20 October 2008 and it seems that trial was scheduled in the early months of 2010.  Counsel did not object to the 15 per cent discount that would otherwise have been available.  The thrust of her argument was that the benefit of that discount ought not have been lost simply because there was the request for, and the conduct of, the disputed facts hearing.  That is in line with the comments of this Court in Hessell.[5]  Judge Farish had that consideration in mind and referred to it in her sentencing remarks.  But she concluded that this was not a reasonable challenge to the facts, the evidence being overwhelming and original contentions that the appellant made that he was acting in self-defence were fatuous. 

[5]      At [46] – [48].

[17]       The disputed facts hearing in some respects took on the form of a defended summary criminal prosecution.  The victim and a Crown witness had to give evidence and were extensively cross-examined.  The appellant himself gave evidence with submissions being made by counsel.  It was open to the Judge to conclude that this was “almost a mini trial”.  It was created by the appellant requiring the complainant and victim, together with a supporting witness, to go through a process which is normally avoided when a guilty plea is entered.  So too, the cost of the trial, whilst no doubt substantially reduced, nevertheless occurred because of the duration of the disputed facts hearing.  What the appellant put in issue was simply the aggravating features of premeditation, and the intention to pervert the course of justice as the motivation for the attack upon the witness. 

[18]       Ms Ayrey focused on some aspects of the Judge’s findings.  In particular, she questioned the meaning attributed to various text messages by the Judge.  However, the Judge was entitled to look at the overall chronology of events and the text messages in total.  When that approach is taken, there was a proper basis for the Judge’s findings.  She was able to form her own assessment of the reasonableness of the disputed facts hearing and came to the view that it was meritless.  She was entitled to reach that view and that it did much to undermine or virtually eliminate benefits that might have arisen from the appellant’s pleas of guilty.  We are not persuaded that the full benefit of the percentage discount (somewhat generous in its own right) remained available to the appellant.  In terms of this Court’s remarks in Hessell the requiring of a disputed facts hearing was not reasonable in the circumstances and was meritless. 

[19]       In the end, when the circumstances are viewed in totality, this was grave offending which fully justified an end sentence of eight and a half years’ imprisonment.  The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent