R v D HC Rotorua CRI-2009-063-6473

[2010] NZHC 2211

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-6473

THE QUEEN

v

D

Hearing:         9 December 2010

Appearances: Mr F Pilditch and Mr S Simmers for Crown

Mr H Edward for Prisoner

Judgment:      9 December 2010

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Rotorua

Mr H Edward, Rotorua

R V D HC ROT CRI-2009-063-6473  9 December 2010

[1]      Ms D  , you appear for sentence today having pleaded at the third callover in this Court to a charge of being an accessory after the fact to murder.   The maximum penalty for that charge is one of seven years imprisonment.

The facts

[2]      The facts that give rise to the charge are contained in a summary, with which you take no issue.   It has its genesis in an incident in the streets at Murupara on

3 October 2009, when a 17 year old youth was beaten to death in front of other people by a group of men.  Some of the witnesses identified your brother as one of the persons involved in the attack on the victim.   For that reason the police immediately began searching for him.

[3]      Your  brother  responded  by  fleeing  the  Murupara  area.    At  some  stage thereafter you assisted him by taking him to Auckland and arranging for him to live at an address there.  You also provided him with material assistance in the form of money and clothing.

[4]      The police ultimately learned of the address in Auckland and executed a search warrant there on 23 October 2009.  Your brother was not there at that time, but the police found a large number of items that confirmed that he had been living there in the recent past.  Immediately after the police had visited the address you sent your brother another text telling him not to go back.   You also told him to hand himself in.

[5]      One  would  have  thought  that  that  would  have  been  the  end  of  any involvement that you would have in assisting your brother.  Unfortunately, that is not the case.  You then provided him with the cellphone from which you had sent him the text message.  This was of value to him, because he and you were aware by this stage that the police were intercepting messages from the cellphone that he was then using.   You provided  him with a “clean” cellphone that he could use to make communications without the police being able to intercept them.  When the police finally arrested your brother, he was still in possession of the cellphone that you had given him.

[6]      The police were unable to locate your brother until 30 October 2009.  They were only able to achieve that objective after going to considerable trouble and effort, including obtaining warrants enabling them to intercept cellphone communications.  These revealed that he was receiving assistance from a number of people, including you.  You provided that assistance notwithstanding the fact that the police told you at an early stage that they were looking for your brother and that you should not help him to evade capture.  They also told you of the consequences that would follow if you took that course.

[7]      When  the  police  interviewed  you,  you  were  co-operative  and  frankly admitted your involvement in assisting him to evade capture.

Sentencing Act 2002

[8]      In sentencing you, I have to bear in mind the purposes and principles of sentencing set out in the Sentencing Act 2002.   In any case involving assistance given to a potential offender after a homicide has taken place, issues of deterrence and denunciation arise.   People must know that if they harbour or assist fugitives they are likely to be dealt with severely if they are caught.

[9]      Having said that, it is important that I impose a sentence that is broadly consistent with other sentences imposed in similar contexts.  That is not particularly easy to do, because in this field the circumstances of offending can vary so widely.

[10]     I am also required to impose a sentence that is the least restrictive outcome in the circumstances.  That is important here, because you present as a person with no previous convictions at all.  It is therefore a large step to immediately send a person in your position to prison.

[11]     There is no tariff, or guideline, judgment from the Court of Appeal regarding the starting point for the sentence to be imposed on you.  The starting point is the sentence that reflects all the features of the offending itself, but does not take into account any of the factors that are personal to you.  The reason for this is simple.  As I  have  already  said,  the  circumstances  in  which  this  type  of  offence  can  be

committed vary enormously.   As counsel for the Crown pointed out during his submissions,  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.   I accept the Crown’s submission that your offending falls somewhere in the middle.

[12]     The  aggravating  factors  here  are  that  your  assistance  occurred  over  a reasonably lengthy period of time.   It also meant that the police were required to expend considerable resources in terms of time, effort and money to arrest your brother when that should have been a simple matter.  The level of assistance that you provided can be gauged from the fact that all other persons whom the police were seeking in relation to the incident on 3 October were rounded up within three days, whereas it took them 27 days to find your brother.

[13]     There is also the fact that you provided assistance in different forms, and you did so in circumstances where the police had told you in no uncertain terms that you should not take that step.  The fact that you were prepared to provide your brother with a clean cellphone even after they had raided the address in Auckland is a further aggravating factor.

[14]     Having said that, I accept that your motivation for assisting your brother may have  been  out  of  a  misguided  loyalty towards  him  for  family reasons.    It  was certainly not done for monetary gain or in an effort to thwart the prosecution in other ways.

[15]     Counsel have referred me to a variety of authorities dealing with cases of this type.  All of them point to a starting point of around 18 months imprisonment being appropriate, and your counsel accepts that that is the case.

[16]     In terms of factual similarity, the case of R v Everitt HC Whangarei CRI

2006-088-3601,  28  February 2007,  is  probably the  closest  and  in  that  case  the sentencing Judge adopted a starting point of 18 months imprisonment.

[17]     I therefore take the same approach and adopt that starting point.

Mitigating factors

[18]     There is nothing about your personal circumstances that operate to increase the starting point that I have selected.  The only issue I have to decide is the extent to which it should be reduced to reflect mitigating factors personal to you.

[19]     The principal mitigating factor in your case is the fact that you have been prepared to accept responsibility for your offending.  You were originally charged in November 2009 and you did not enter your guilty plea until October 2010.  A delay of some 11 months means that it cannot be said that you entered a guilty plea at an early stage.

[20]     There is also the fact that the Crown case against you has always been strong because of the admissions that you made to the police.  Even in the absence of those admissions,  the  prosecution  would  also  have  been  entitled  to  rely  on  the  text message traffic and bank account transactions to establish you had provided material assistance to your brother.  For these reasons the likelihood is that you were probably always going to be convicted on either this charge or another charge that the Crown could have laid, namely obstructing the course of justice.

[21]     There is one factor, however, that I need to take into account in setting the discount and that is that your brother has not yet been convicted in relation to the homicide.  Your co-offender has elected to maintain a plea of not guilty and to await the outcome of his trial before proceeding to trial herself.  You could have adopted the same approach.  If your brother was acquitted completely of any involvement in the victim’s death, then the prosecution against you may well have been conceded. You have been prepared, however, to your credit, to accept responsibility knowing that your brother’s fate has not yet been determined.  I believe that I have to take that into account.

[22]     I also bear in mind the comments of the Supreme Court in the recent decision of R v Hessell [2009] NZCA 450. The Supreme Court has made it clear that the

timing of a guilty plea is but one of the factors to be taken into account in setting a discount.   The Court must effectively engage in a balancing process in which it evaluates all of the circumstances, including the circumstances in which the guilty plea was entered and the extent to which it has saved the State the need to proceed to trial.

[23]     Taking those matters into account, I have reached the conclusion that it is appropriate to provide you with a discount of four months, or around 20 per cent, from the starting point that I have selected.  This means that I am left with an end starting point of 14 months imprisonment.

Home detention

[24]     As a result, I have as a sentencing option the ability to sentence you to home detention.  That is probably the most difficult aspect of the sentencing exercise in this case, because the charge that you face is a serious one.  It also flows out of the death of a young victim in tragic circumstances.    Not surprisingly, that incident is viewed with dismay by the community within which it occurred and also by the public generally.  It needs to be borne in mind, however, that you were not involved in  any way in  the actual  incident  that  led  to  the victim’s  death.    Rather,  your involvement arose at a later stage.

[25]     Ordinarily a person with no previous convictions could be considered as a candidate  for  home  detention.    The  only  difficulty  in  this  case  arises  out  of comments made in the pre-sentence report.  The probation officer who prepared this report interviewed your father, with whom you will be residing if you are sentenced to home detention.   Also in that household will be  your mother who  has been incapacitated because of a stroke, and your three children.  You have also recently given birth to another child.

[26]     When interviewing your father, the probation officer gained the impression from him that some incident may have occurred involving violence in the home in respect of which you played a part.  There was also apparently another incident in which the police were called to the address as a result of some form of altercation

between yourself and your mother.  I am not privy to any of the details regarding that particular incident.

[27]     These factors are sufficient to warrant a recommendation in the report that a sentence of home detention not be imposed because of the fact that your placement within the home might not be appropriate in all the circumstances.  I have given that careful reflection, but have concluded that your previous record operates to render you a suitable candidate for home detention.  Somebody who has achieved the age of

33 years with no criminal convictions at all must be entitled to credit for that when considering whether or not a sentence of home detention is appropriate.

[28]     I record also that the Crown is neutral on the question of whether or not a sentence of home detention should be imposed, although it has the same concerns as me regarding the matters raised in the pre-sentence report.

[29]     I also bear in mind that it may be unjust to you to act upon the perceptions of the probation officer when the basis for those perceptions has not been fully articulated.   I accept, too, that there is a risk that the probation officer may have formed an adverse view to you and/or your father for reasons personal to her.

[30]     For that reason I have concluded that the comments in the report should not preclude you from receiving a sentence of home detention.   It will be a difficult sentence for you to complete because of the fact that you have a young child and you also need to care for other young children as well as your mother.  The inability to leave the property for a very considerable period is going to be extremely difficult.

Sentence

[31]     On the charge to which you have pleaded guilty you are sentenced to seven months home detention.

[32]     I now make the following directions in relation to that sentence:

a)       Upon release from Court you are to travel directly to 10 Oak Street, Murupara and there you are to await the arrival of a probation officer and security officer.

b)        You are to reside at that address for the duration of the sentence.

c)       You are not to possess or consume alcohol or illicit drugs for the duration of your sentence.

d)You are to undertake such family and/or parental responsibilities as you may negotiate with, and have approved, by a probation officer.

e)        You are to report to a probation officer as directed.

[33]     I record, Ms D  , that I am sure that you understand that any breach of the terms  of  your  sentence  will  inevitably mean  a  re-sentencing in  which  you  will receive a custodial sentence.

[34]     Stand down.

Lang J