R v Boskell
[2015] NZHC 286
•20 February 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2013-412-002556 [2015] NZHC 286
THE QUEEN
v
STEVEN KENNETH BOSKELL ROBERT JAMES CUMMINGS RYAN WARREN GEARY-SMART
JACOB CHRISTOPHER GEARY-SMART
STEPHANIE ROSE MCCORMACK AKA STEPHANIE ROSE LAWRENCE
Hearing: 20 February 2015 Appearances:
L C Preston for Crown
J A Westgate for S K Boskell
A Stevens and A Logan for R J Cummings
D J More and A More for R W Geary-SmartJ M Ablett-Kerr QC and S A Saunderson-Warner for R W Geary-Smart
M Winders for S R McCormack/Lawrence
Judgment:
20 February 2015
SENTENCING NOTES OF OF GENDALL J
NOTE: Names of victim’s children, their ages and details of home detention
address have been redacted.
R v BOSKELL & ORS [2015] NZHC 286 [20 February 2015]
Introduction
[1] Steven Boskell, Robert Cummings, Jacob Geary-Smart and Ryan Geary- Smart you appear today for sentencing for the murder of Justin McFarlane. Stephanie McCormack, you appear today for sentencing for being an accessory after the fact to murder. You were all five convicted after being found guilty by a jury on
12 December 2014. This followed a nine week trial here in Dunedin. [2] You may all remain seated until I ask you to stand.
[3] Before getting into the detail of my remarks today can I please begin by acknowledging the presence of everybody here today. To the family and friends of the victim in this case, Mr McFarlane, who was tragically taken from you at a relatively young age, there is nothing I am able to say, or do, that can ever replace your loss. A dearly loved father, son, brother, partner, friend and relative has been taken from you. There is nothing I can say or do to change that but the sympathy of this Court is with you all.
Three strikes warning
[4] I want to talk first and just mention the three strikes warning.
[5] When on 12 December 2014 I entered convictions following your trial, I gave those of you convicted of murder, Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary-Smart a ‘three-strikes’ warning as required under the legislation. You know what that means and I will not repeat it here.
The offending
[6] I now want to turn to set out the facts of the offending as I have found them.
[7] Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary- Smart, on the day and evening of the Tuesday in 2013 in question you were engaged in the consumption of alcohol and drugs. At some point one or more of your group raised the idea of travelling to Mr McFarlane’s property for the purpose of stealing a
motorbike and obtaining drugs. It is clear the idea to steal a motorbike came from
Mr Jacob Geary-Smart. Ultimately you elected to do so.
[8] In the early morning that night of the Wednesday Ms McCormack drove you all to Mr McFarlane’s property in Mr Ryan Geary-Smart’s Nissan Skyline vehicle. When you arrived, Mr McFarlane was asleep. Mr Boskell and Mr Cummings knocked on the door, which Mr McFarlane answered. Mr Boskell and Mr Cummings asked for cannabis from him.
[9] This request marks the commencement of a tortuous and prolonged attack on Mr McFarlane. While it was commenced by Mr Boskell and Mr Cummings, at some point Mr Ryan Geary-Smart and Mr Jacob Geary-Smart joined the fray. The attack included the following:
(a) First, Mr Boskell hit Mr McFarlane, the deceased, on the head with a beer bottle. This caused the deceased to become dazed, at which time he sat in a chair in his lounge.
(b)While seated a number of injuries were inflicted on Mr McFarlane which caused bleeding to his head area, which transferred to the La-Z- Boy seat he was then sitting on.
(c) While Mr McFarlane was still seated, Mr Jacob Geary-Smart, who along with Mr Ryan Geary-Smart had come into the room, became incensed that the deceased was looking at him, picked up a television set and threw it at Mr McFarlane. Although Mr Jacob Geary-Smart has claimed that the television set he threw did not hit Mr McFarlane it suffered damage and had traces of Mr McFarlane’s blood on it. It seems Mr Jacob Geary-Smart then left the house taking the keys to Mr McFarlane’s car and his cell phone.
(d)The deceased was then restrained by Mr Ryan Geary-Smart by the electric cord of an oil fin heater, and was also hit with this heater at some point.
(e) A second cord, cut by Mr Ryan Geary-Smart from a vacuum cleaner in the lounge, was wrapped around the deceased’s torso and neck as some form of restraint.
(f) At some point, Mr Boskell, with his left hand, hit Mr McFarlane at least four to five times with a fire hearth shovel or poker uplifted from the deceased’s fire place.
[10] During the various attacks it seems Mr McFarlane’s head was also stomped on a number of times. These blows were delivered with force such that distinctive shoe patterns were left on the deceased’s skin. The blunt force trauma to Mr McFarlane’s head involved at least 11 points of contact to parts of his head. He also received bruising to the scrotum and a full thickness laceration to the skin over the point of his left elbow as well as other injuries.
[11] The attack was particularly brutal and ferocious. You were all involved in it. Of the four of you who attacked Mr McFarlane, the only person who arguably on the evidence before the Court had slightly less involvement was Mr Jacob Geary-Smart, who threw the television and then left the house. Although, as I have noted, Mr McFarlane’s blood was found on that item.
[12] As I heard this case unfold at trial, it became apparent that you all sought to minimise your involvement. This minimisation was not accepted by the jury. Nor do I accept it. Thus, paring back your claims as to the extent of your individual involvement, I am satisfied that all of you were involved, albeit Mr Jacob Geary- Smart may have been involved to a lesser degree.
[13] At some point during the attack, probably towards its conclusion, Mr McFarlane’s house was searched which resulted in some cannabis, IV needles, a wallet, a small container, a cell phone, a golf club, a fire hearth shovel or poker and Mr McFarlane’s vehicle being taken. Eventually according to the evidence of Mr Boskell, Mr Cummings dragged a sheet over Mr McFarlane before leaving.
[14] You then all left in two cars, namely the Nissan Skyline car you arrived in and the car you took from Mr McFarlane which Mr Jacob Geary-Smart was driving. At some point the Nissan became stuck. Though you managed to push it free, this opportunity was taken to set Mr McFarlane’s car alight. A short time later, when you were all back in the Nissan car, you chanced upon a police patrol vehicle, which began pursuing you. You managed to escape at high speed, throwing items taken from the crime scene out of the vehicle as you did so. Ms McCormack it seems was not involved in the discarding and destruction of the evidence, though she was in the car.
[15] Mr McFarlane died of his injuries some time before 4.30 a.m., on the morning of your attack, when his co-workers found him. Certainly none of you took steps either during the attack to stop it or, later, to call emergency services in any attempt to get help for Mr McFarlane or to take steps that might have ultimately saved his life. You were all apprehended in the days following the murder, following disposal by you all of footwear and clothing you were wearing at that time.
Sentencing process
[16] I now turn to deal with the sentencing process and I will deal with sentencing in two parts. First, I will address the appropriate sentence for you Mr Boskell, Mr Cummings Mr Ryan Geary-Smart and Mr Jacob Geary-Smart, all charged with murder. I will then address the appropriate sentence for you Ms McCormack. I will then ask you all to stand to formally pass sentence upon you.
Impact on Mr McFarlane’s friends and family
[17] But, before doing so, I want to turn first to address the impact on Mr McFarlane’s family and friends of all this. This is always a distressing component of a trial. The death of Mr McFarlane is a tragedy. An innocent life was taken suddenly, violently and needlessly. Mr McFarlane’s children, family, other relatives and friends have been left without a loved one.
Victim impact statements
[18] A number of victim impact statements are before the Court, which you have already heard read out. They apply to all of your actions. First, Mr McFarlane’s ex- wife, Ms Alysha Collins, who is also mother to his two children, […] aged […] and […] aged […], prepared and read out the statement you have heard on behalf of herself and the children.
[19] You have heard that your actions have had a profound impact on the children especially. One of the boys will not talk about his father’s death, reads old text messages from his father, and is very emotional. The other boy has become much more prone to anger and has nightmares.
[20] In addition to the emotional devastation ordinarily coupled with a murder, your senseless acts in stealing and torching Mr McFarlane’s car, and in stealing other items, has removed from their reach treasured mementoes by which the children could remember their father. The impact on Mr McFarlane’s ex-wife has also been terrible. Not least of all because she has been compelled to act as the harbinger of this terrible news to her children. It would be a horrible thing indeed to convey to your children that their father has died in a brutal and callous attack.
[21] Mr McFarlane’s mother, Ms Anne Rowe, as you have heard, has also prepared a statement which Ms Preston read out. She describes your attack on Mr McFarlane as evil and recounts the devastation your actions have wrought through her life, from the day your murdered him until this moment. She says that the most devastating aspect of your actions is that her grandsons will now grow up fatherless. She also notes that your actions are more far-reaching than merely his immediate family. Mr McFarlane’s work colleagues and friends all have to live with what you have done.
[22] Finally, you have heard Mr McFarlane’s sister, Ms Kim Julius, provide and read out her statement. She observes that Mr McFarlane was a nice man with a great sense of humour and was well-loved. She is astounded at your blatant disregard for his life and struggles to comprehend what you have done. You have destroyed her family she says. Seeing Mr McFarlane’s sons breaks her heart, as does the thought
of Mr McFarlane’s friends finding his battered body. She considers you remorseless
and says that she will never forgive you.
[23] At this point I would simply like to thank all of you who have provided and read those statements. It is a difficult process in all crimes, let alone in situations such as this where the crime is horrific and the loss profound.
Sentence
[24] I want to now turn to the murder charges and the sentences I am required to impose here. For murder under s 102 Sentencing Act I must impose a life sentence unless that sentence would be manifestly unjust. It has not been suggested before me, nor am I of the view, that that there is any issue here about such a sentence being manifestly unjust for any of you Mr Boskell, Mr Cummings, and Mr Ryan Geary- Smart. No suggestion has been made by your respective counsel that there is anything in this case to displace the presumption of life imprisonment on the counts of murder insofar as the three of you are concerned.
[25] Only Mrs Ablett-Kerr QC for Mr Jacob Geary-Smart, however, has sought to mount the argument that the presumption in favour of life imprisonment for murder in s 102 should not apply to him here. Mrs Ablett-Kerr QC sought to place reliance on the decisions of Innes1 and Cunnard2 in support of her contention.
[26] Considering your position here, Mr Jacob Geary-Smart, and before engaging in what I see to be the real issues in this sentencing I can indicate at the outset that as I see it this is absolutely not a case where it would be appropriate to sentence you to anything other than life imprisonment. The Court of Appeal has made it clear in the decision of Smail3 in 2007 as follows:
The presumption in favour of life imprisonment is a high one and the statutory regime confers a limited discretion not to impose life imprisonment where the offending is at the lowest end of the range of culpability for murder.
1 R v Innes [2014] NZHC 2780.
2 R v Cunnard [2014] NZCA 138.
3 R v Smail [2007] 1 NZLR 411 (CA).
It refers to the case of Williams.4
[27] Mr Jacob Geary-Smart, there is nothing about your involvement in the crime or your culpability or your personal circumstances that could in the least be described as exceptional such that a sentence of life imprisonment would be manifestly unjust. As with your co-defendants the real issue here in my view is whether s 104 has application to your offending and if so whether it would be manifestly unjust to sentence you to life imprisonment with a minimum period of imprisonment of 17 years.
Minimum period of imprisonment
[28] I turn now to s 103(2) of the Sentencing Act 2002 which states that for murder 10 years at least must be served as a minimum period of imprisonment before becoming eligible for parole. And, where circumstances of the offending are sufficiently serious, a minimum of more than 10 years can be imposed.
[29] However, if in such a case as the present one, the circumstances of the murder fall within those specified in s 104 of the Sentencing Act 2002 the Court must impose a minimum period of imprisonment of at least 17 years. This is a mandatory requirement although there is a discretion to impose a lesser term limited to cases where it would be manifestly unjust to impose a sentence of 17 years. The purpose of this requirement introduced by Parliament into our law in 2002 is to ensure a very substantial minimum term of imprisonment for the most serious
murders.5
[30] People sometimes confuse the minimum term of imprisonment that the Court is required to impose with the sentence of life imprisonment. The minimum term of imprisonment is not the sentence that a person must serve. It is the term that he or she must wait before he or she is entitled to apply for parole. A person who is sentenced to life imprisonment is subject to recall to prison for the rest of their life if
they offend again after being released on parole. It is a matter entirely for the Parole
4 R v Williams [2005] 2 NZLR 506 (CA).
Board to determine when a person should be released on parole from a sentence of life imprisonment.
[31] Turning now to the relevant part of s 104, this provides that, unless it would be manifestly unjust to do so, a minimum non-parole period of 17 years must be imposed, first, “if the murder involved unlawful entry into, or unlawful presence in a dwelling place” or, secondly, “the murder was committed in the course of another serious offence” or, thirdly, if “the murder was committed with a high level of brutality, cruelty, depravity or callousness”, or, fourthly, if “the deceased was particularly vulnerable because of his age, health or because of any other factor.”
[32] In considering the possibility of a minimum term of imprisonment here I
adopt the approach outlined in 2005 by the Court of Appeal in the case of Williams.6
This approach requires me to consider first your degree of culpability in this case Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary-Smart, in relation to that found in the “standard” range of murders having regard to aggravating and mitigating factors. This is to bear in mind the policy behind s 104 that in general the presence of any of the specified circumstances will justify a minimum non-parole period of at least 17 years. Then, where this first enquiry suggests a sentence less than 17 years should be imposed, I am to consider whether imposition of a minimum period of 17 years would be manifestly unjust.
[33] In this case the Crown submits, as you have heard, that the circumstances here fall within s 104(1)(c), (d), (e) and (g) of the Sentencing Act at least, as I have already mentioned and thus this justifies a minimum period of imprisonment of
17 years.
The murder offending and sentencing
Purposes and principles of sentencing
[34] On this murder offending there are certain purposes and principles of sentencing to which I must have regard. In this case the paramount purposes are holding you all accountable for the harm you have done, denunciation and deterrence
of your contumelious conduct, and protection of the community from your violent tendencies.7 These are the four factors which bear upon the minimum period of imprisonment under s 103.8
[35] In addition, I will seek to promote in you all a sense of responsibility and acknowledgment for your actions in killing Mr McFarlane.9 I will also seek to provide for the interests of the victims in sentencing you today.10 I also have regard for your rehabilitation and reintegration into society, but the reality is where life imprisonment with a lengthy minimum period of imprisonment is squarely on the
table, this factor is of much less importance.
[36] I also bear in mind the principles of sentencing, though acknowledging they are in many ways subsumed into the murder sentencing regime. In particular, I will strive for consistency with previous offending, I will have regard to the effect of your actions on the community and the victims and I will impose the least restrictive
outcome that is appropriate in all the circumstances.11
Aggravating and mitigating features of the offending
[37] Turning to aggravating and mitigating features of the offending, s 9 of the Sentencing Act sets out various features. These will guide the ss 103 and 104 assessment. I will address these now.
[38] First, the murder here clearly involved both the actual use of violence and weapons.12 Mr McFarlane was brutally killed over some significant period of time, with a beer bottle, a fire shovel or poker, a heater and potentially other weapons used against him. The level of violence was extreme and multiple weapons played a substantial role. This offending is also further aggravated by the fact it was
completely unprovoked.
7 Sentencing Act 2002, s 7(1)(a), (e)–(g).
8 Section 103(2).
9 Section 7(1)(a)–(b).
10 Section (7)(1)(c).
11 Section 8(e), (f) and (g).
12 Section 9(1)(a).
[39] Secondly, there is no doubt in my mind that this offending involved either unlawful entry into Mr McFarlane’s property or that you all unlawfully remained there from the moment the attack commenced.13 Indeed, this point is conceded by most of defence counsel and in my view it would be extremely difficult to contend otherwise.
[40] Third, in all cases of murder, the loss, damage and harm resulting from the offending is profound.14 You four, in murdering Mr McFarlane, have taken the life of a father of two boys, a brother, a son and a friend of many. You have heard the victim impact statements as I have mentioned. The emotional harm is immense. Those people will carry your actions with them forever.
[41] Fourth, I consider this a case where there was particular cruelty.15 This was a group attack against a man home alone at night, who had done nothing to deserve the immense violence you inflicted upon him. Your attack involved weapons and substantial, gratuitous violence. You then literally left him for dead.
[42] Fifth, Mr McFarlane was vulnerable.16 He was awoken from sleep at an early hour of the morning, in a rural area with no help or support. He was a slight man at
63 kilograms in weight, although it seems he was strong. He was confronted by you all, a group of four men who stood over him and were there for the purpose of depriving him of his property. He was rendered all the more vulnerable by being tied up during the course of the attack. This was all known to you when you attacked Mr McFarlane, yet you pursued the course nonetheless.
[43] Sixth, this was not an opportunistic crime – there was at least some level of premeditation involved.17 Travelling to Mr McFarlane’s property to steal from him was previously mentioned, and the trip took some time, late on a wet, windy and stormy night. However, I concede that the premeditation principally related to the property offending, and probably not the murder. I therefore do not rely on it to any
significant extent.
13 Section 9(1)(b).
14 Section 9(1)(d).
15 Section 9(1)(e).
16 Section 9(1)(g).
17 Section 9(1)(i).
[44] There are really, as I see it, no mitigating features of the offending and your counsel generally did not advance any.
Section 104
[45] I will turn now to consider s 104. As I have indicated above, this offence involved either or both of unlawful entry into, or presence in, Mr McFarlane’s home. At the very least I agree with the Crown submission that any implied license for you to enter was revoked from the inception of the attack. Section 104(1)(c) is certainly invoked.
[46] I have found established that you all went to Mr McFarlane’s property for the purpose of stealing Mr McFarlane’s motorbike or drugs or both. You had planned this. You drove some way to give effect to this plan. It is therefore inescapable that this murder occurred in the course of the commission of another serious crime, namely either robbery or burglary. Section 104(1)(d)is also invoked.
[47] To my mind, the ferocity of the attack focused on Mr McFarlane’s head and upper body, the extreme level of violence, the use of multiple ad hoc weapons, the number of assailants and the horrific nature of Mr McFarlane’s ultimate injuries were such that there is both brutality and callousness present here to a high degree. This s 104(1)(e) factor in my view is also present here. Defence counsel did seek to argue that this was not a particularly brutal, callous or cruel murder. I was referred to authorities such as the case of Slade in 2005 where it was stated in the Court of
Appeal:18
There is no such thing as a murder which is not, in some sense, brutal, cruel, depraved or callous. What the statute points to is the requirement that there be a “high level” of the requisite conduct. The provision has to be approached purposively, rather than mechanically.
[48] I have found, however, that there was a high degree of brutality and callousness here. Plainly this is a contextual analysis, with offences falling on a scale. At one end is ‘normal’ brutality, callousness, cruelty or depravity. At the other
end there are those most sickening examples of such. What is required is that the
18 R v Slade [2005] 2 NZLR 526 (CA)
threshold be crossed to take it into the bounds of s 104. In this case I have found that to be the case. Section 104(1)(e) is also therefore operative.
[49] Finally, as I have previously mentioned, the attack came at a time when Mr McFarlane was vulnerable. The question is whether Mr McFarlane was particularly vulnerable. I have laboured over this point, but in all the circumstances, for the reasons I have identified, I have found it impossible to conclude that he was not particularly vulnerable.19 Again, your counsel sought to persuade me that this was not the case. However, the combined circumstances of Mr McFarlane at the time of the attack have convinced me that he was in fact particularly vulnerable.
[50] The Chambers Dictionary defines vulnerable as being:20
… capable of being physically or emotionally wounded or injured; open to successful attack…
[51] This and the circumstances of this sustained night-time group attack in an isolated rural property reinforces my conclusion that Mr McFarlane was vulnerable in the aggravated form of particularity as required by s 104. In the unique circumstances of this case I have found s 104(1)(g) also to be operative.
[52] These factors each discretely engage s 104.21 What I must therefore do now, as I have already mentioned, is to undertake the two-step process in Williams which first requires me to determine your culpability by benchmarking this case against the “standard range of murders”.22 Secondly, if that comparison indicates that a minimum period of imprisonment of less than 17 years would be appropriate, I will consider whether the imposition of the 17 year minimum would be manifestly unjust.
[53] I pause here to remind myself that each offender’s culpability is unique. As the Court of Appeal stated in Cunnard in 2014:23
19 As to vulnerability differing according to the time of day, see R v Hekkenburg HC Nelson CRI-
2005-004-4128, 10 May 2007.
20 I Brookes (ed) The Chambers Dictionary (11th ed, Chambers Harrap, Edinburgh, 2008).
21 In R v Baker [2007] NZCA 277 it was confirmed at [23] that the presence of more than one s
104 factor likely requires a higher MPI than 17 years.
22 In R v Paul CA496/05, 1 August 2006 at [27] it was acknowledged that the concept of a standard
murder is “elusive at best”.
23 R v Cunnard [2014] NZCA 1238 at [18].
A Judge's assessment of relative culpability is central to identifying the appropriate starting point for a term of imprisonment. Unlike offenders should not be sentenced as if they were alike.
Steven Boskell
[54] I turn first to consider you Mr Boskell. As I have indicated above I consider you, Mr Boskell, to have been a central antagonist in this horrific beating.
Pre-sentence report
[55] Your pre-sentence report is insightful, Mr Boskell. It says that you witnessed domestic violence growing up, that you have struggled with alcohol and substance abuse (cannabis and methamphetamine are mentioned) and that you have difficulties with serious violence and dishonesty. However, in addition to these issues, there are glimmers of hope. You have had counselling for your addiction issues and were described by your probation officer as “intelligent, articulate, thoughtful and having significant potential”.
[56] However, your risk of re-offending is still assessed as high. Your past has inevitably led to this conclusion. The report finally notes that you accept that a lengthy period of imprisonment is unavoidable.
Submissions
[57] Turning to your counsel’s submissions, your counsel accepts that you are
facing life imprisonment, with a minimum period of imprisonment of at least
10 years. He also concedes that s 104 has application, though disagrees that it is on the four bases I have mentioned. What is argued, however, is that it would be manifestly unjust to sentence you to serve a minimum period of imprisonment of
17 years, because:
(a) You were only 18 at the time of the murder;
(b)That it is open to me to infer that you were only a secondary party to the more serious injuries inflicted by others;
(c) Your previous history, though not exemplary, is no way near the level of criminality involved in this offending; and (d)
You have taken responsibility for your part in the offending by expressing remorse and acknowledging the harm caused by your
offending. [58]
Your
counsel, Mr Westgate, submits a shorter minimum period of
imprisonment is appropriate to take account of these factors.
Aggravating features personal to you
[59] Turning now to the aggravating features personal to you Mr Boskell, it is clear you have an unenviable criminal record. You have convictions for many offences, though your violence offending is of most concern. This includes aggravated assault and common assault charges. I would not uplift for your previous offending, however, given that the current offence is altogether different from your past. However, the length of your record at such a comparatively young age is a damning indictment on your life leading to these tragic events.
Mitigating features personal to you
[60] Turning to consider mitigating features personal to you, your age, Mr Boskell, at the time of the offending is a mitigating feature. You were 18, almost 19, at the time of the attack on Mr McFarlane. Indeed, the Court of Appeal in the case Churchward emphasised the consideration which sentencing courts must give to the role of youth in offending.24
[61] However, in cases such as this, where the offending is grave, there is less scope to account for youth and I refer to the decision of Pouwhare.25 It is also further tempered by the number of convictions you have already amassed and the substantial role you played in the offending. I would also allow you some small
discount for remorse. You are entitled, however, to no credit for any guilty plea.
24 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
25 Pouwhare v R (2010) 24 CRNZ 868 (CA).
Section 103 MPI
[62] In light of s 103 of the Sentencing Act, I must consider what minimum period of imprisonment I would impose if s 104 had no application. Having regard to the offending, features unique to you, and a range of comparable cases referred to me by counsel and those which I set out in Annexure A to my sentencing notes, I think that a 16 year starting point would be appropriate, reduced by no more than one year for all mitigating features. Thus, under s 103 I would sentence you to serve a minimum period of imprisonment of 15 years.
Manifest injustice?
[63] In this light, I must now turn to s 104 of the Sentencing Act and ask myself whether it would be manifestly unjust to sentence you to a minimum period of imprisonment under that section of 17 years. By a substantial margin I do not think it would be. This attack was horrendous. There were no mitigating features. As to you personally, the small credit I could give you for personal mitigating features, which of course does not include any credit for a guilty plea, has taken me no way down the road to manifest injustice.
[64] This does raise the question of whether I should increase the minimum period of imprisonment. In my view an uplift in this case is warranted. There can be no doubt that at least two and, it is likely, more of the s 104 factors are here engaged. Parliament has seen fit to prescribe a regime mandating the imposition of a minimum period of imprisonment of 17 years where only one of these features is operative. Where, as here, I have found probably four are invoked this must in appropriate cases be reflected in sentencing.
[65] I am aware, nonetheless, that the sentence I am going to impose on you is already severe, particularly in relation to your age at the time of the offending. I have laboured greatly over the appropriate period. It is an exercise very much fraught with difficulty. However, viewing your involvement, Mr Boskell, and your culpability in the round I think a minimum period of imprisonment of 18 years is appropriate. Life imprisonment with a minimum period of imprisonment of 18 years will therefore be your sentence.
Robert Cummings
[66] I turn now to Mr Cummings. I consider you too Mr Cummings, to have been a central antagonist in this offending.
Pre-sentence report
[67] Mr Cummings, your pre-sentence report is far from glowing. It records that you have significant interest in gang membership and that you have 47 previous convictions. You have issues with serious violence, dishonesty and substance abuse. You have, however, it is said, evinced a willingness to attend any interventions the appropriate authorities consider would assist you. It seems anger, alcohol and substance abuse counselling would be of value to you. The report says you are remorseful. Finally, you are aware that a lengthy period of imprisonment is likely.
Submissions
[68] In her submissions your counsel, Mrs Stevens, concedes that you are facing life imprisonment with at least a minimum period of imprisonment of 10 years. She acknowledges that s 104 applies on at least two grounds. However, she submits it would be manifestly unjust to sentence you to a minimum period of imprisonment of
17 years because Mrs Stevens suggests:
(a) You were not principally involved in the attack. She invites me to conclude that you were found guilty as a secondary party. In other words, your involvement was peripheral and perhaps more of a witness.
(b)She says you only admit to punching Mr McFarlane, and expressly deny using a golf club against him.
(c) She says your contribution to the offending involved no brutality.
(d) She says you are remorseful and want to stay out of trouble in prison.
Eventually you would like to complete a degree and have your facial tattoos removed. In addition, she says you have family support.
(e) Lastly Mrs Stevens notes your childhood was plagued, resulting in deep-seated issues into adulthood.
[69] I have also read, Mr Cummings, the letter you wrote to Mr McFarlane’s family and the letters your sister and mother wrote to me. I would like to acknowledge the time and effort and thoughts put into each of them.
Aggravating features personal to you
[70] Turning to look to aggravating features which are personal to you Mr Cummings, your criminal record is replete with violence offending, some of it very serious indeed. It indicates a pattern of ever-escalating serious violence which is quite unable to be ignored. However, I would only uplift slightly for this offending as, again, the current offending is the summit of violent offending, while previously you had only just begun to scale the mountain.
Mitigating features personal to you
[71] Turning to look to mitigating features personal to you, I would allow you a small discount for your reasonably young age at the time of the offending, being 22, your remorse, and your willingness to alter your way of life. However, as I have said in relation to Mr Boskell, the credit I am able to give for personal features in offending such as this is severely circumscribed. You are entitled to no credit for a guilty plea.
Section 103 MPI
[72] Turning to s 103, having regard to all the relevant authorities, I would take a starting point of 16 years as a minimum period of imprisonment. I would uplift this by six months for your previous convictions. I would then allow a nine month discount for personal mitigating features. This would result in a 15 year, nine month end sentence.
Manifest injustice?
[73] I do not think it can be fairly said that the operation of s 104 and the mandatory 17 year minimum period of imprisonment would in your circumstances here, Mr Cumming, result in any manifest injustice. The credit I am able to afford you realistically takes you no way no making out the grounds of manifest injustice.
[74] And, as with Mr Boskell, the question now to be addressed is whether I should increase the minimum period of imprisonment. In my view again an uplift in this case is warranted. There can be no doubt that at least two, if not more, of the s 104 factors are here engaged. As I have said, Parliament has seen fit to prescribe a regime mandating the imposition of a minimum period of imprisonment of 17 years where only one of these factors is operative. Where, as here, I have found probably four are invoked, this must in appropriate cases be reflected in sentencing. Taking into account your involvement and culpability in the round, Mr Cummings, I am of the view a minimum period of imprisonment of 18 years is appropriate. Life imprisonment with a minimum period of imprisonment of 18 years will therefore be your sentence.
Ryan Geary-Smart
[75] I now turn to you Mr Ryan Geary-Smart. I find, Mr Ryan Geary-Smart, you were the remaining central antagonist in this offending.
Pre-sentence report
[76] Your pre-sentence report states that you left school when you were able to, and that you are proud of being in paid employment since an early age. Though you have a lack of formal qualifications, you consider your experience compensates for this. The report notes that when you were not working, you would spend time with your girlfriend, your friends and drink alcohol. In addition, you have had problems with substance abuse, including cannabis, amphetamines, opioids and Ritalin. The report notes that you have a six year old son, who lives with his mother.
[77] You have had a brief history of depression, particularly following two suicides amongst your acquaintances. In one case you found the body. You deny any suicidal ideations. You report loose affiliations with White Power but you explain this as “a loose affiliation of like-minds and beliefs rather than involvement with an organised gang”.
[78] The report notes that your response to this offence is one of “shock and bewilderment”. While denying you took part in the actual attack, you still feel a sense of responsibility and remorse. You demonstrate insight into the impact of your offending on the family and understand their anger towards you. Restorative justice is an option you would consider to apologise to Mr McFarlane’s family and explain that his death was not intentional.
[79] You are assessed as being at high risk of harm and reoffending and you are aware that a long sentence of imprisonment is likely.
Psychological report
[80] In terms of background information, also I have received a psychological report from the clinical psychologist, Dr Katie Harrison. This report really adds little. It is most instructive to refer to the section in the report headed “Opinion and Recommendation” where Ms Harrison states:
In my opinion, Mr Geary-Smart does not have a major mental illness.
…
And:
In my opinion Mr Geary-Smart did not have a major mood disorder at the
time of the offence…
And
Mr Geary-Smart’s offending is therefore best explained by his anti-social lifestyle, including his peer group and his use of alcohol and drugs.
Submissions
[81] Turning now to the submissions I have received from your counsel, Mr More, he accepts that you must be sentenced to life imprisonment and that you will be sentenced to a minimum period of imprisonment of at least 10 years. Mr More also accepts that s 104 applies, but contends that it would be manifestly unjust to sentence you to a minimum period of imprisonment of 17 years for several reasons:
(a) He says the evidence against you of Lacey Macahan is unreliable and should be discarded.
(b)He says whatever your involvement in the offending, it was not causative of Mr McFarlane’s death. In other words, it is contended you struck no fatal blows.
(c) Mr More said that though you tied Mr McFarlane up, it was loosely.
(d) He contended you went to Mr McFarlane’s property to purchase
drugs, not to assault him.
(e) He suggested your involvement was as a secondary party, and not as a principal offender.
(f) And finally, Mr More contended you are genuinely remorseful and
would like to meet with Mr McFarlane’s family.
[82] I have also been referred by Mr More to an unsolicited email reference, which I have read, which shows that despite your flaws, you still have support and I hope this continues.
Aggravating features personal to you
[83] Turning to look at the aggravating features personal to you Mr Ryan Geary- Smart, you too have an appalling criminal history. However, there is nothing among its entries which I think would warrant any uplift given the nature of the current offence.
Mitigating features personal to you
[84] Turning to the mitigating features personal to you, you were aged 23 at the time and were just the oldest of the offenders convicted of murder here, Mr Ryan Geary-Smart. I am therefore in two minds whether I incline to afford you any credit for youth. However, I would give you some small credit for your remorse. The psychological report obtained does not indicate to me any basis for affording you any further discount and of course you are not entitled to any credit for a guilty plea.
Section 103 MPI
[85] Turning to s 103, as I consider your culpability for the offending, generally similar to that of Mr Boskell and Mr Cumming, I would fix your starting point, Mr Ryan Geary-Smart, at 16 years’ minimum period of imprisonment. I would apply no uplift. I would allow you a six month discount to arrive at an end sentence of 15 and a half years’ minimum period of imprisonment.
Manifest injustice?
[86] Turning now to consider the issue of manifest injustice, from all of this I have reached the clear view that you have advanced no compelling argument as to why the imposition of the 17 year minimum under s 104 would be manifestly unjust.
[87] And as with Mr Boskell and Mr Cummings, the question I must now address is whether I should increase the minimum period of imprisonment. In my view an uplift is again warranted in this case. There can be no doubt that at least two, if not more, of the s 104 factors are here engaged and, as I have said already, Parliament has seen fit to prescribe a regime mandating the imposition of that minimum period of imprisonment of 17 years where only one of these features is operative. Where, as here, I have found probably four are invoked this must in appropriate cases be reflected in sentencing.
[88] Viewing your involvement here and your culpability in the round, Mr Ryan
Geary-Smart, I think a minimum period of imprisonment of 18 years is appropriate.
Life imprisonment with a minimum period of imprisonment of 18 years will therefore be your sentence.
Jacob Geary-Smart
[89] Next, I turn to you Mr Jacob Geary-Smart. Though I do not consider on the evidence which was before the Court that you were necessarily one of the central players in the beating, Mr Jacob Geary-Smart, you were nonetheless involved and have been found guilty by a jury of murdering Mr McFarlane.
Pre-sentence report
[90] Your pre-sentence report observes that due to anxiety issues and panic attacks, you are a sickness beneficiary. Indeed, you have for many years been on medication for these conditions. Though you have no job or specific leisure activities, you report that you help your mother around the house with cooking and cleaning.
[91] You have a harmful pattern of alcohol consumption, drinking daily, but say that your substance consumption is recreational and limited solely to Ritalin. You have multiple previous offences including driving and violence matters.
[92] In terms of the current offending, in my view to an extent you present as having little insight. You were adamant you were in no way involved in the vicious attack. Despite your protestations of non-involvement, you report that you feel guilty about not being able to prevent what happened, but say that you were not responsible for the actions of others. You are nonetheless aware that a lengthy period of imprisonment is likely.
Submissions
[93] Your counsel Mrs Ablett-Kerr QC’s submissions, are two-fold. First, her primary submission is that it would be manifestly unjust to sentence you to life imprisonment. As you have heard, I am of the view that this is not the case. Her second submission is that if life imprisonment is to be imposed, despite the application of s 104, it would be manifestly unjust to sentence you to a minimum
period of imprisonment of 17 years. Indeed, she submits that 10 years, the statutory minimum, is appropriate for you.
[94] The reasons claimed to support these submissions include the following:
(a) It is suggested you were found guilty as a secondary party pursuant to s 168 and not as a principal party pursuant to s 167. It is said you played no part in the attack on Mr McFarlane.
(b)Mrs Ablett-Kerr QC notes you have for many years been treated for anxiety and panic attacks which, in her submissions, diminishes your culpability. Mrs Ablett-Kerr QC was, however, she says, unable to discuss your mental state with the Department of Corrections’ psychologist.
(c) She notes your age, being only 22 at the time of the offence.
(d)Mrs Ablett-Kerr QC contends that your reluctance to accept full responsibility for your part in the crime should not be viewed as a lack of remorse but, rather, an inability to understand how you were found guilty. Despite you not accepting responsibility, you feel guilty over what happened.
(e) And lastly, Mrs Ablett-Kerr QC submitted that despite your substantial criminal history, at your relatively young age, you should be afforded the opportunity to make constructive use of your life, uncrushed by an unduly severe sentence.
Aggravating features personal to you
[95] Turning now to the aggravating features here which are personal to you, Mr Jacob Geary-Smart, your criminal history is very concerning. You have multiple convictions for serious violence offending. I am unable to discount these from the sentencing exercise. I would therefore allow a small uplift for your previous violent offending.
Mitigating features personal to you
[96] As to mitigating features personal to you, for you, Mr Jacob Geary-Smart, I would allow a small discount for your age. Again, as I have noted, you were 22 at the time of this offence. But I can give you no credit for remorse in light of your steadfast denials of your involvement. And of course you are entitled to no credit for a guilty plea.
Section 103 MPI
[97] Turning to s 103, given I have found to an extent, Mr Jacob Geary-Smart, you were the least involved in the attack on Mr McFarlane, that must be reflected in the starting point I adopt. The general thrust of the cases, including those which I set out in the addenda, are such that I think for you a starting point of 14 and a half years would be appropriate. I would uplift this by six months to account for your offending history but I would allow a six month discount for your age. That leaves me with an end minimum period of imprisonment of 14 and a half years.
Manifest injustice?
[98] Turning now to the issue of manifest injustice. This issue, Mr Jacob Geary- Smart, has troubled me most in its application to you and your role in the offending. However, after careful consideration and taking into account your counsel’s submissions and all the material before me, I am satisfied that you have laid no adequate foundation which would enable me to conclude that it would be manifestly unjust for s 104 to apply to you.
[99] To reflect your lesser culpability here, I see no need however to increase the minimum period of imprisonment beyond 17 years. Life imprisonment with a minimum period of imprisonment of 17 years will therefore be your sentence.
Accessory after the fact to murder sentencing [100] I turn now to you Ms McCormack. Purposes and principles of sentencing
[101] In sentencing you today, Ms McCormack I must consider the general purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act. In any case involving assistance given to a principal offender after a homicide has been committed, the purposes of deterrence and denunciation are of particular importance. In a case called Duff, Lang J said “[people] must know that if they harbour or assist fugitives they are likely to be dealt with severely if they are caught.”26
[102] Nevertheless, I must also impose a sentence that is consistent with other sentences imposed in similar contexts. I have had regard to the cases cited by counsel, as well as the cases which I set out in Annexure B to my sentencing notes, and I have considered all of these. There is no tariff for offending of this kind.27
There is, however, a judicially-endorsed continuum of s 176 offending, which as the
case of Duff accepts is that:28
… the top end of the range is conduct that involves destruction of evidence so that a successful prosecution may be thwarted. At the other end of the scale is an isolated one-off incident in which some form of assistance is given to a fugitive.
[103] Your level of offending, Ms McCormack, and ultimately your sentencing, falls to be charted along this spectrum of severity.
Aggravating and mitigating factors of the offending
[104] Turning now to aggravating and mitigating features of your offending, other than the generally aggravating factors which are inherent in this offending, you face certain difficulties here, Ms McCormack. Although the level of assistance you
provided was comparatively limited, and its duration short-lived, you enabled the
26 R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010 at [8].
27 At [11]; R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007 at [10].
28 R v Duff, above n 26, at [11].
principal offenders, to some extent, to evade Police capture for a period sufficient to assist them in the destruction of and discardment of a significant amount of incriminating evidence.29 There are no mitigating features of the offending.
[105] Your counsel has helpfully adduced two authorities, Duff and the case of Vaux-Phillips, which are of assistance in this sentencing exercise, despite both being more serious than your offending.30 Those cases adopted starting points of
18 months’ and three years’ imprisonment, respectively. This was due to the high level of culpability and serious aggravating features involved. Such starting points are not warranted by the facts before me today.
[106] In terms of factual similarities, the cases of McKenzie in 2006 and Afamagasa in 2014 resemble your actions, Ms McCormack, most closely.31 In both cases, the defendants drove the offenders away from the scene of the murder to enable them to avoid arrest. The defendants in Afamagasa faced the compounding aggravating fact that they had attempted to tamper with or suppress evidence.32 In those cases, the sentencing Judges adopted starting points of ten months’ and nine months’ imprisonment.33
[107] It cannot be said that your offending here Ms McCormack surpassed a “moderate” level, as far as that term has been judicially determined for the purposes of s 176 sentencing. In a case called Everitt, the defendant accompanied and assisted the offender in evading police for four days, which Randerson J deemed to be “a
moderate level in comparison to some other cases”.34
29 R v Everitt, above n 27.
30 R v Duff, above n 26; R v Vaux-Phillips [2012] NZHC 1119.
31 R v McKenzie HC Christchurch CRI-2005-009-6159, 10 March 2006; R v Afamasaga [2014] NZHC 2142.
32 R v Afamasaga, above n 31, at [72]. However, Woolford J held that this evidential tinkering was as much for the defendants’ own benefit as for the principal offender’s.
33 The culpability of Samuel Lachmaiya was assessed as being “slightly higher” than his co- defendants’, because he “led the discussions to create false alibis and attempted to arrange them with friends of his. He also had conversations relating to the disposal of the remaining ammunition used in the shooting”: R v Afamasaga, above n 31, at [86].
34 R v Everitt, above n 27, at [10].
[108] Given your comparatively low level of culpability here, Ms McCormack, I therefore follow the approach of the Judges in McKenzie and Afamagasa, and adopt a starting point of ten months’ imprisonment.
Aggravating and mitigating factors relating to Ms McCormack
[109] Turning now to aggravating and mitigating features relating specifically to you, Ms McCormack, you have a varied conviction history which is an aggravating factor I must take into account. In addition, I note that you were convicted of breaching community work, as well as committing other offences while remanded on bail for this offence. An uplift of two months’ imprisonment is appropriate, given this habitual offending. This takes the starting point to 12 months’ imprisonment.
[110] The principal mitigating factor in your case, Ms McCormack, is your willingness to accept responsibility for your offending. You have written to this Court to express your sincere remorse, and your acknowledgement of the harm that was inflicted on the victim and his family. I duly take this into consideration. As counsel has impressed upon me, I note also the commendable steps you have taken to rectify your behaviour since the offending, namely, participation in anger management and parenting courses. In total, I will allow a discount of one month. Because you are not entitled to any discount for a guilty plea, this would bring the end sentence to eleven months’ imprisonment.
Home detention
[111] Consequently, I have the ability to sentence you to home detention, which I now turn to consider.35 This is not a discretion lightly exercised, however, because the charge that you face is a grave one. Although you were not directly involved in Mr McFarlane’s death, your offending stems from the murder by your associates of a member of your community.
[112] This is, however, a case where I consider the imposition of home detention appropriate. It meets the purposes and principles of sentencing, and has the added
35 Sentencing Act, ss 15A and 80A.
benefit of placing you in a position of rebuilding your life, re-establishing your relationship with your daughter and perhaps regaining custody of her.
[113] I have read the pre-sentence report on the suitability of your address and I am satisfied that it is suitable for the purposes of home detention, and that the occupants understand and consent to your serving the sentence in the residence in accordance with the conditions imposed.36
[114] I need to say that I have reached this conclusion, however, by only the finest of margins. As I have observed, you have offended twice whilst on bail for this present offence. Offending in such a way is nonsensical given your stated goals. You also in the past have an abysmal history of compliance. Nonetheless, you have not previously been sentenced to home detention and I am willing to afford you the indulgence of a chance at complying with such a sentence.
[115] What I must determine, though, is the length of your home detention sentence. It has sometimes been observed that due to the release date of a short-term of imprisonment being, generally, half of the sentence, a sentence of home detention roughly equates to half of the sentence of imprisonment that would have been imposed, at least in terms of time served.37 In your case this would be five and a half months. In my view that is not an adequate response. Home detention is less punitive than imprisonment.38 The length I consider appropriate is eight months’ home detention.
[116] The standard conditions apply39 and special conditions are imposed in terms of the sentence I will shortly pass.
Confiscation
[117] The final issue I must address before passing sentence upon you all is the confiscation of Mr Ryan Geary-Smart’s Nissan Skyline car. The Crown seeks such
an order. It is available under s 128 as a result of subs (1)(a) and (2)(a)(iii). I have
36 Section 80A(2)(a)(i) and (ii).
37 Savage v Police HC Whangarei CRI-2008-488-1, 14 February 2008 at [27].
38 Golding v Police HC Whangarei, CRI-2008-488-3, 14 February 2008.
39 Sentencing Act, s 80C(2).
had regard to the matters in subs (5). I consider this is an appropriate case to make an order in addition to the other sentences. I therefore exercise my discretion and order the Nissan Skyline vehicle registration “CKU15” be confiscated.
Sentences
[118] Can I ask you all to stand please. I now pass the following sentences upon you:
[119] Mr Boskell, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 18 years.
[120] Mr Cummings, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 18 years.
[121] Mr Ryan Geary-Smart, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 18 years.
[122] Mr Jacob Geary-Smart, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 17 years.
[123] Ms McCormack, on the charge of being an accessory after the fact to murder I sentence you to eight months’ home detention. In terms of your sentence, I make the following directions:
i.Upon release from Court you are to travel directly to […………............] and there you are to await the arrival of a probation officer and security officer.
ii. You are to reside at that address for the duration of the sentence.
iii. You are to undertake and complete the Short Rehabilitation
Programme to the satisfaction of your probation officer.
iv.You are to undertake and complete counselling for alcohol and drug abuse to the satisfaction of your probation officer.
v.You are not to possess or consume alcohol or illicit drugs for the duration of your sentence.
vi.You are to undertake such family and/or parental responsibilities as you may negotiate with, and have approved, by a probation officer.
vii. You are to report to a probation officer as directed. [124] Those are my sentences.
...................................................
Gendall J
Addendum
[125] In regard to Ms Stephanie McCormack, the standard post detention conditions are to apply until six months after sentence expiry date.
...................................................
Gendall J
Solicitors:
Gresson Dorman & Co, Timaru
Trevor Shiels QC, Dunedin
J A Westgate, DunedinJudith Ablett-Kerr QC, Dunedin
D J More, Dunedin
Anne Stevens, DunedinFarnan Garthwaite Law, Dunedin
Annexure A – examples of murder sentencing
| Case | Facts | Aggravating and Mitigating Features | MPI |
| R v McDonald [2014] NZHC 2054. | Pleaded guilty to rape, murder, aggravated robbery, causing GBH with intent, wounding with intent, reckless driving. Mr McDonald moved to Christchurch and was invited to occupy a spare room in the victim’s home with her partner. Victim’s partner was in custody for the night and victim arrived home. McDonald had injected himself with methamphetamine and was watching pornography. The victim declined sexual advances but McDonald overpowered her. McDonald bound the victim and raped her twice. When the victim refused to watch pornography with him he began strangling her and began a lengthy period of violence. The combination of violence, including strangulation coupled with the effect of the cords, cloth, and tape, caused her death. He then drove to the West Coast and committed aggravated robbery against two tourists as well as injuring them. | Aggravating factors: use of weapon in the aggravated robbery , offending at victim’s house (rape in her home), victim impact (loss and harm caused to family), particular cruelty/brutality, vulnerability of victims (all three victims were particularly vulnerable), previous convictions. Mitigating factors: early guilty plea. | 21 years for murder; seven years eight months for rape. |
| R v McKenzie [2009] NZCA 169. | Mr McKenzie was associated with a white supremacist group. He and his two co-offenders saw Mr Kim hitch- hiking. They picked him up, drove him to a remote area and killed him. The sole reason for doing so was that Mr Kim was Asian. | The sentencing judge, Simon France J, considered the combination of motive, the fact that this was the second time McKenzie had committed a race-based murder, and the grave risk he posed to society warranted a starting point of 24 years’ imprisonment. Three years credit was given for plea and assistance. A 21 year MPI was imposed (and upheld on appeal). | 21 years (upheld on appeal). |
| Thurgood v R [2012] NZCA 23. | Mr Thurgood went to the home of his estranged partner and gained access. He was not entitled to be there. He was wearing a beanie and was carrying a broken grubber handle. Once inside he proceeded to launch a vicious attack against his victim, involving repeated blows with the grubber handle and also stabbing. There was also an attempt to strangle the victim. | The sentencing judge, Cooper J, concluded that there was a degree of planning and premeditation in the offence and was of no doubt that s 104 applied. | 19 years (upheld on appeal). |
| Pandey-Johnson v R [2012] NZCA 595. | Mr Pandey-Johnson was the leader of a gang. He and two other men were drug dealers who had allegedly decided to kill the victim because business relations had soured. | The sentencing judge, Woolford J, considered both appellants equally culpable. There was substantial premeditation, and offending involved a high degree of | 18 years (upheld on appeal). |
| taking him to Auckland, arranging for him to live at an address there and providing him with money and clothing. Immediately after the Police had visited the address while he was away, she sent him a text telling him not to go back and to hand himself in. She also provided him with a “clean” cellphone that he could use to make communications without the Police being able to intercept them. When interviewed by the Police, Duff was co-operative and frankly admitted her involvement in assisting her brother to evade capture. | “There is no tariff or guideline, judgment from the Court of Appeal regarding the starting point for the sentence to be imposed” in this type of offending. His Honour also charted a continuum of s 176 offending, accepting the Crown’s submissions that “the top end of the range is conduct that involves destruction of evidence so that a successful prosecution may be thwarted. At the other end of the scale is an isolated one-off incident in which some form of assistance is given to a fugitive.” In this case, Duff ’s offending fell “somewhere in the middle.” | time; (b) Police were required to expend considerable resources in terms of time, effort and money to arrest her brother when that should have been a simple matter; and (c) Duff provided assistance in different forms and in circumstances where the Police had told her in no uncertain terms that she should not do so. Mitigating factors: (a) late guilty plea; (b) preparing to accept responsibility knowing that her brother’s fate had not yet been determined in Court; and (c) accepting responsibility for her offending. These amounted to a discount of four months, with a final starting point of 14 months’ imprisonment. Duff had achieved the age of 33 years with no criminal convictions, and she was entitled to credit for that when considering whether or not a sentence of home detention was appropriate. Negative comments in the probation report should not preclude her from receiving a sentence of home detention. | ||
| R v Tavita and Lafaele HC Auckland CRI-2009-092-5263. | Simi (“S”) stabbed victim to death with fishing knife. S informed Tavita (“T”) of this, | 18 months’ imprisonment. | Aggravating factors: lying to police and her preparedness to help S to get out of country. | Seven months’ home detention. [Lafaele’s personal |
| Ms Lafaele. | whereupon T got into S' vehicle and drove S past the spot where the deceased was lying on four occasions. During that time S pointed to deceased and showed T the knife he had used to stab deceased. The following morning, T heard confirmation S that stabbed deceased to death on radio. T then assisted S to hide his vehicle. L received text message from her sister asking her to come to house where S and T were staying. L was told that S stabbed deceased to death. L's sister asked L to purchase airline ticket to Samoa for S so that he could leave NZ. L agreed, knowing S had killed and was wanted by police. T and L drove S to airport where L purchased S an airline ticket to Samoa. Police spoke to L later that day but she lied to them and denied having contact with S or any knowledge about case. | Mitigating factors include: co- operation with the police and limited involvement. The sentence was reduced to 12 months’ imprisonment to reflect Lafaele’s guilty plea and remorse. | circumstances, lack of previous convictions, and good record to date meant that a sentence of home detention was appropriate.] | |
| R v Tavita and Lafaele HC Auckland CRI-2009-092-5263. Mr Tavita. | See factual matrix above. | 15 months’ imprisonment. | No aggravating factors. Sentence reduced to nine months’ imprisonment to reflect guilty plea, remorse, youth, and lack of previous convictions. | Five months’ home detention. |
| R v Te Tomo [2012] NZHC 71. | Accessory after the fact to participating in an organised criminal group. Te Tomo | 15 months’ imprisonment. Obiter at [9]: “Had the | Mitigating factors: (a) mother of two young children and about seven months pregnant; (b) aged | Four months' home detention and 100 hours community work. |
| assisted her partner, a member of the Mongrel Mob, to evade police for several weeks, knowing he was on the run. His offending involved beating a young man to death. Assistance included accommodation, money, clothing and encouraging him to remain at large and avoid arrest. Te Tomo told the probation officer that towards the end of that period she was trying to encourage him to give himself up to the Police. | accessory after the fact charge been murder then an 18 month start point would be justified.” His Honour cited R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010; and R v Everitt HC Whangarei CRI-2006-088- 3601, 28 February 2007. | 21 at the date of this offending, not affiliated to any gang; (c) told probation officer that could see that life would be much better for her outside the gang culture; (d) several supportive friends and whanau members including her mother who was in Court; (e) offending a one-off matter; (f) risk of re-offending assessed to be low; (g) a sense of whanau loyalty drove offending, albeit misguidedly; (h) tried to persuade partner to surrender himself; and (i) charge had been hanging over her for more than two years. Discount of four months for these factors and 10 to 15 percent discount for guilty plea resulted in an end sentence of 9.5 months' imprisonment. | Priestley J found this commuted sentence to be “both principled and justified. It is also in accordance with the recommendation of the presentence report. It is furthermore in accordance with Sentencing Act principles and purposes. Home detention will not remove you from your children and you will have whanau support near the proposed address. However, I consider the deterrence purpose requires an additional sentence to be imposed on you of community work.” | |
| R v Granich [2013] NZHC 2657. | While a group of associates assaulted the victim inside the victim’s house, Granich stayed outside on the footpath. As a result of the group’s actions, the victim died the following day. At the request of one of the principal offenders, and knowing that they would be of interest to Police investigating the death, Granich disposed of the shoes the offender had worn | 15 months’ imprisonment. | Mitigating factors: Granich assisted the Police in finding the shoes, was remorseful and pleaded guilty as soon as possible. These factors warranted a one-third reduction in sentence, to ten months’ imprisonment. | Five months’ (or 150 hours) community detention with 150 hours of community work and 12 months’ supervision. [Home detention was considered, but acknowledged as posing “a significant risk that you will not be able to continue with your employment.” Ronald Young J held that: “In this case I think I can construct a sentence |
| during the assault. | as similar as possible to one of home detention with similar restrictions but with providing you the opportunity to continue to work.”] | |||
| R v Tamihana [2014] NZHC 90. | Tamihana was in prison at the time of the attempted murder. Two co-defendants walked into a cell and attempted to stab two victims using improvised weapons. Tamihana attempted to dispose of the weapons. | 15 months’ imprisonment. | No aggravating or mitigating factors justify uplift or discount. Discount of 20 percent for guilty plea. | 11 months’ imprisonment. |
| R v McKenzie HC Christchurch CRI-2005-009-6159, 10 March 2006. | Accessory after the fact to wounding with intent. McKenzie’s brother stabbed another man who later died. McKenzie later took his brother on “a reasonably lengthy car journey” to enable him to avoid arrest. | Ten months’ imprisonment. | Two and a half month discount for a guilty plea. No other aggravating or mitigating factors addressed. | Seven and a half months’ imprisonment. |
| R v Afamasaga [2014] NZHC 2142. Edgar Laloni | Having been told of the fatal shooting in the car, the accused (Edgar Laloni) drove the principal (Afamasaga) away from the scene to avoid arrest. Laloni’s assistance was limited to picking up Afamasaga directly after the shooting in circumstances where a pickup was already planned, and trying to tamper with or suppress evidence as much for his own benefit as for Afamasaga’s. (In addition to cannabis offending.) | Nine months’ imprisonment (cumulative on a two year start point for sale of cannabis). | From the cumulative sentence of two years nine months’ imprisonment, Woolford J discounted three months to reflect the restrictive bail conditions Laloni was subject to from August 2013 – July 2014. Having regard to the principle of totality, per s 85(2) of the Sentencing Act, the Judge then determined that a sentence of two years’ imprisonment would better reflect overall culpability. | 12 months’ home detention. At [78], Woolford J held that home detention met the sentencing purposes of deterrence and holding the offender accountable. His Honour added: “I express some concern at your previous history of breaching orders of supervision and community detention, but I note that you have not been sentenced to |
| home detention before. Needless to say, Mr Laloni, that if you decide to engage in similar conduct again, the result will almost certainly be a sentence of imprisonment.” | ||||
| R v Afamasaga [2014] NZHC 2142. Sosaia Laloni | See facts above. Culpability deemed to be much the same as offending also materially similar to Edgar Laloni’s). | Nine months’ imprisonment (cumulative on a two year start point for sale of cannabis). | Mitigating factors: limited prior conviction history (two minor traffic convictions); youth at the time of offending (aged 19 years); clearly “very much the junior figure in this group”; particularly vulnerable to outside pressure at the time of offending; and a “paramount” need to provide for Laloni’s future rehabilitation. Laloni’s youth and s 85(2) totality principles warranted a twelve month reduction in sentence, to a total of 21 months’ imprisonment. | Ten and a half months’ home detention. |
| R v Afamasaga [2014] NZHC 2142. Samuel Lachmaiya. | See facts above. Lachmaiya also faced sentence on an additional charge of possessing a firearm without lawful purpose. Lachmaiya pleaded guilty to all charges. In relation to the cannabis offending, his culpability deemed to be much the same as the Laloni brothers. However, after the victim’s death, Lachmaiya led the discussions to create false alibis and attempted to arrange them | Twelve months’ imprisonment (cumulative on a two year start point for sale of cannabis). | Mitigating factor: genuine remorse. Full discount for guilty plea and expressions of remorse reduced the accessory sentence to nine months’ imprisonment. Uplift of one month’s imprisonment to recognise the charge of possession of a firearm. Principles of totality, “significant steps towards a new life and the efforts… made towards rehabilitation” | Ten and a half months’ home detention. |
| with friends of his. He also had conversations relating to the disposal of the remaining ammunition used in the shooting. His culpability was thus “slightly higher” than the Laloni brothers in relation to the charge of accessory after the fact to murder. | warranted a reduction in sentence by 13 months’ imprisonment, leaving an end sentence of 21 months’ imprisonment. | |||
| R v Nikoro HC Christchurch T135/96, 1 May 1997. | Nikoro uplifted her son (who was later convicted of murder), by means of subterfuge and concealment. She intended to take him to Auckland to attend a funeral, after which he was to give himself up to police. Nikoro was apprehended in Picton. | Nine months’ imprisonment. | Relevant personal circumstances: Nikoro’s responsibilities for another young child. | Nine month term imposed, but suspended for two years; six months periodic detention and two years’ supervision. |
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