R v Beazley

[2016] NZHC 1219

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-088-331 [2016] NZHC 1219

THE QUEEN

v

SEDDON HARLEM BEAZLEY

Hearing:	8 June 2016
Counsel:	A B Fairley for Mr Beazley M B Smith or Crown
Sentence:	8 June 2016

SENTENCE OF DUFFY J

Solicitors:

Crown Solicitor, Whangarei

R v BEAZLEY [2016] NZHC 1219 [8 June 2016]

[1]      Mr Beazley, you are for sentence today having pleaded guilty to one charge of attempting to pervert the course of justice.

Background

[2]      This charge relates to a murder in which a number of Mongrel Mob members beat a man to death on the night of 31 December 2015/1 January 2016 in Moerewa. The victim became involved in an argument with various people in the vicinity of a Mongrel Mob wedding and was asked to leave.   The argument continued as he walked away and he was set upon by a group of people and struck several times on the head. The victim suffered massive brain trauma and died the following day.

[3]      At the relevant time you were a Mongrel Mob prospect in Moerewa.  On 4

January 2016 you confessed to the murder.  You refused to implicate anyone else in the murder.  The subsequent Police investigation revealed that you were in Kaitaia at the time of the murder, and so could not have killed the victim.  On 29 January 2016 you gave a further statement to the Police in which you admitted that you were in Kaitaia and so not responsible for the murder.

Personal factors

[4]      You are twenty-two years old. You have no previous convictions.  You are assessed by the probation officer as being at a low risk of re-offending. There is nothing about your background that would suggest that you would have committed the offence for which you are now being sentenced.

[5]      The pre-sentence report records that you attempted to join the Mongrel Mob in the context of reasonably serious upheaval in your life, which led you to seek a sense of belonging.  The pre-sentence report also records that your attitudes to your offending, gangs, and gang membership were naïve.

[6]      You have since left the Mongrel Mob and are seeking treatment for your cannabis use.  The report writer describes your friends and associates as mostly pro- social.

[7]      It is to your credit that your employer, AFFCO Freezing Works Moerewa, has stated that it will re-employ you if you receive a community-based sentence.  You live at home with your parents.  The home and address have been assessed as being suitable for an electronically monitored sentence.

Crown submissions

[8]      The  Crown   suggests   a  starting  point   in   the  region   of  three   years’ imprisonment;   acknowledges   there   are   potential   discounts   and   accepts   that ultimately a non-custodial sentence is appropriate.

Defence submissions

[9]      Defence counsel suggests a starting point between two to three years, with discounts including time spent on restrictive bail and in custody, and credit for early entry of a guilty plea.  The final sentence is submitted to be one of home detention or community detention.  I will tell you now that I do not intend to send you to prison.

Starting point

[10]     The maximum penalty for perverting the course of justice is seven years’ imprisonment.1    Whilst there is no tariff case the following aggravating features of the offending are particularly relevant:

a.        Extent of loss or harm:2  waste of police time and resources (though the defence points out this was not extensive as the Police were alert to the possibility that you might not be involved in the murder); there is also the harm to the victim’s family when they were falsely told someone had confessed.

b.Connection with an organised criminal organisation:3    this is clearly present as you were a gang prospect.

c.        Premeditation:4   which was clearly present.

1      Crimes Act 1961, s 117(e).

2      Sentencing Act 2002, s 9(1)(d).

3      Section 9(1)(hb).

There are few analogous cases involving similar factual scenarios to the present. The most comparable case is R v Wickliffe5  where a starting point of three years’ imprisonment was adopted by Lang J.  For this reason I propose to adopt the same starting point here.

Personal factors

[11]     You have no previous convictions and I can see no other personal aggravating factors.

[12]     As regards personal mitigating factors there are a number.   I consider they include:

a.        Your age:6    You are 22.   The Court of Appeal has recognised in

Churchward v R that youth has an impact on how people act and I

consider that at 22 you can still be considered a youth.7

b.        Remorse:8 which is demonstrated by your leaving the gang.

c.        Your previous good character:9 the defence seeks a small discount for previous good character to recognise your good character up until you joined the Mongrel Mob and offended.  The Crown says that joining the Mongrel Mob militates against a discount for good character.  I consider that some recognition for your previous good character is warranted.

d.Time  spent  in  custody  between  confessing  to  the  murder  and admitting the statement was false (one month) and time spent on restrictive  bail  (24  hour  curfew  except  when  accompanied  for

employment or with your parents, four months).

4      Section 9(1)(i).

5      R v Wickliffe [2015] NZHC 2392.

6      Sentencing Act, s 9(2)(a).

7      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

8      Section 9(2)(f).

9      Section 9(2)(g).

[13]     I consider that in the round the total discount for personal mitigating factors should be 20 per cent.   This reduces the sentence to just under 29 months’ imprisonment.

[14]     Secondly, you are entitled to a discount to reflect your early guilty plea.   I consider you should receive the full 25 per cent discount.  This reduces the sentence to 21 months’ imprisonment which constitutes a short sentence of imprisonment, which renders  you eligible for home detention or some other community based sentence.

[15]     I have considered ss 7 and 8 of the Sentencing Act 2002.   The offence of perverting the course of justice is a serious offence.   Whilst the analysis I have conducted satisfies me that a sentence of imprisonment is not warranted here, I consider that  nothing less  in  the sentencing hierarchy than a sentence  of home detention should be imposed.  I consider that an appropriate end sentence that is the least restrictive that I can impose is one of 10 months’ home detention.  An offence such as perverting the course of justice in a sense strikes at the heart of the criminal justice system and therefore that offence warrants denunciation and deterrence.

[16]     The pre-sentence report records that you have consented to comply with the standard conditions of home detention which I impose.   In addition to those conditions the report writer recommends the following special conditions which seem to me to be appropriate:

1.Not   to   communicate   in   any   way   or   associate   with   any members/affiliates   of   the   Mongrel   Mob   including   Christopher Manuel, Freda Jeros, Joseph Martin, or Lester Pairama without the prior written approval of a probation officer.

2.Not to possess, consume or use any alcohol or drugs not prescribed to you.

3.To reside at an address approved of by a probation officer and not to move  to  any  new  residential  address  without  the  prior  written approval of a probation officer.

4.To attend and complete an appropriate departmental motivational programme/s to the satisfaction of a probation officer.  The specific details of the appropriate programme shall be determined by a probation officer.

5.To attend and complete an appropriate drug treatment programme to the satisfaction of a probation officer.   The specific details of the appropriate programme shall be determined by a probation officer.

6.To  undertake  and  complete  appropriate  assessment, treatment/counselling as directed by and to the satisfaction of a probation officer.

7.To attend, engage with, and complete any programme as considered appropriate by a probation officer.

[17]     The report writer makes the following comment, that you are to be served at the home detention  residence  of 3  Massey Street,  Moerewa.    On  receiving the sentence   you   are   to   report   to   Kaikohe   Community  Corrections   and   await instructions.   I direct you at the conclusion of the sentencing to go straight to 3

Massey Street,  Moerewa  and  to  remain  there  and  await  the  instructions  of  the probation officer.

[18]     Mr Beazley, you have been given an opportunity to make something of your life and to put this offence behind you.  It is possible now with the support of your whanau and employer that you can make something of your life and ensure that this offence is the last offence.  I strongly advise you to take the opportunity to do all you can to resist any further offending.

Result

[19]     Mr Beazley please stand.  For the offence of perverting the course of justice you are sentenced to 10 months’ home detention.  I impose standard home detention conditions as well as the special conditions set out in [16] above.

“Duffy J”