R v Green
[2019] NZHC 1481
•26 June 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2018-019-4429
[2019] NZHC 1481
THE QUEEN v
JAMES LEE GREEN
Hearing: 26 June 2019 Appearances:
J Foster for Crown
S Cameron for Defendant
Judgment:
26 June 2019
SENTENCING NOTES OF JAGOSE J
Solicitors/Counsel:
Almao Douch, Hamilton
Sheila Cameron, Barrister, Hamilton
R v GREEN [2019] NZHC 1481 [26 June 2019]
[1] Mr Green, you come before me for sentence, having pleaded guilty to charges of conspiring to defeat justice,1 interfering with human remains,2 and driving while disqualified.3 As you know, these charges arose following Mitchell Paterson’s death and disposal of his body in July last year.
[2] The Crown suggests a sentence of two years and nine months’ imprisonment, to be discounted for your guilty plea. Your counsel, Sheila Cameron, seeks an end sentence of two years’ imprisonment or less, enabling you to apply for home detention. In the end, the decision is mine; I am not bound to follow either of their views.
The offending
[3] You played no part in Mr Paterson’s death early on 12 July 2018. Others are charged with his murder, manslaughter and kidnapping. But you assisted Kyra Betteridge and a co-offender to dispose of his body, and the vehicle carrying it.
[4] You were called in the early hours of 13 July 2018 to assist. Although Ms Cameron says you did not know you were to help dispose of Mr Paterson’s body, I must sentence you on the basis of the summary of facts, which records a co-offender discussed what had occurred with you by phone. You went to meet Ms Betteridge and the co-offender, and the three of you agreed to dispose of Mr Paterson’s body at McLaren Falls. You arrived there around 4 am. You and the co-offender removed Mr Paterson’s tarpaulin-wrapped body from the back of the vehicle and threw it over a bridge railing into the water below. The three of you then discussed disposing of the vehicle. You volunteered a nearby rural address at which the vehicle could be left. You all then left McLaren Falls. Mr Paterson’s body was discovered later that morning by members of the public.
1 Crimes Act 1961, s 116. Maximum penalty is seven years’ imprisonment.
2 Section 150(b). Maximum penalty is two years’ imprisonment.
3 Land Transport Act 1998, ss 32(1) and 32(3). Maximum penalty is three months’ imprisonment or a $4500 fine. The court must order the person be disqualified from driving for 6 months or more.
Victim impact statements
[5] The Crown justifiably treats Mr Paterson’s family as victims of your offending, being disadvantaged by it.4 I have statements from Mr Paterson’s father and mother (Craig and Valerie Paterson), and his former partner (Philippa Taitoko) with whom he has a daughter (Jasmine), for my sentencing of you. You have heard Mr Paterson read his statement directly to you. Although those statements largely speak of the devasting effect Mr Paterson’s death has had on their lives, they are relevant, given you intended to help those responsible for his killing. You contributed to the family’s hurt. Mr Paterson’s father says to treat his son “as a bag of rubbish” was the act of a despicable person.
Personal circumstances
[6] The pre-sentence report assesses you at medium risk of reoffending, and of causing harm to others. Your drug use and recent gang involvement are seen to be factors contributing to your offending. The report-writer says you isolate yourself from pro-social support, leaving you vulnerable and susceptible to anti-social influence. You appear undermined by estrangement from your former partner and your two-year- old son. While you resisted responsibility for your actions, you expressed some remorse to the report-writer, although largely self-directed. Your attendance at rehabilitative programmes has been intermittent, indicative of low motivation. Ultimately, the pre-sentence report recommends a sentence of imprisonment, given the serious nature and circumstances of your offending. Further, you have previous convictions for non-compliance and a low motivation to comply on sentence.
[7] You suffer from congestive heart failure, leading you to fear dying in prison. Although I have your explanation of its effect on you, including having only five years to live as the best advised case, I lack any medical evidence of its likely course. I accept you have experienced challenges in prison treatment of your condition.
4 Victims’ Rights Act 2002, ss 4 and 17AA(a)(i)(B) and 20(1).
Approach to sentencing
[8] Sentencing involves a three-stage process.5 With reference to relevant cases, I first decide the starting point your offending attracts. I then adjust that up or down to take into account your personal circumstances. Finally, I will give a discount to reflect your guilty pleas.
[9] I do all that with regard for the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. In summary, I must hold you accountable for your offending, and encourage in you a sense of responsibility for the harm you have caused. The sentence should be sufficient to denounce your conduct, and deter others from offending similarly.
[10] Ms Cameron says deterrence is not relevant here. She says you do not need any personal deterrent, and the “entire situation is so unusual” general deterrence for others is “quite inapt”. I disagree. “Interference with the course of justice by assisting those who commit murder to escape arrest calls for a deterrent sentence”.6 While the charges against your co-defendants remain to be proven, the proposition remains relevant. In every case of an attempt to pervert the course of justice, “deterrence of others as well as denunciation of the act itself must be the overriding sentencing principles”, given its potential effect.7
[11] I must also take into account the gravity and seriousness of your offending, its effect on the victims, a need for consistency with appropriate sentencing levels, and imposition of the “least restrictive sentence” appropriate in the circumstances.
Starting point
[12] I will adopt a global starting point to encompass the charges of conspiring to defeat the course of justice and misconduct in respect of human remains, as they appropriately attract here concurrent sentences.8 This is the approach I took in sentencing Ms Betteridge.
5 R v Taueki [2005] 3 NZLR 372 (CA); and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
6 R v Raroa [1987] 2 NZLR 486 at 495.
7 Miller v R [2014] NZCA 382 at [11].
8 Sentencing Act 2002, s 84.
[13] Parity with Ms Betteridge’s starting point of two years and six months also is necessary. Ms Cameron says your culpability is significantly less than Ms Betteridge’s. She says you only became involved at the “tail end of [the] conspiracy”, and as such a starting point of two years and three months’ imprisonment is appropriate. Certainly you came to this late, and without prior knowledge of Mr Paterson. But you were a willing participant, who volunteered assistance in critical respects. Although you knew Ms Betteridge, there is no sufficient reason to think you had to help her avoid worse trouble. You voluntarily joined the conspiracy, even given gang connections to the principal offending, and you must take responsibility for that.
[14] The focus when sentencing for attempts to pervert or prevent the course of justice “must be on the intention behind the attempt and on its potential effect”.9 Only you can speak to your motivation. But you played an active and voluntary role to help Mr Paterson’s killers avoid detection.
[15] Once the original plan to burn the body and car changed, you became significantly engaged in planning the disposals. While not “full scale orchestration and planning”, your involvement was not spur of the moment.10 The extent of harm arising from the offence also is aggravating. Your disposal of Mr Paterson’s body was callous. It had potential to “cause great anguish to next of kin and considerable distress to the whole community”.11 You did not know if or when the body would be discovered; you probably hoped it would not happen for quite some time, if at all.
[16] As Thomas J has noted, cases involving the disposal of a body often attract a starting point of around two and a half to three years’ imprisonment.12 Convictions for being an accessory to the fact after murder also are indicative.13 In light of the above comparable case law, and the starting point adopted for Ms Betteridge, I adopt a starting point for you of two years and four months’ imprisonment.
9 Miller v R, above n 7, at [11].
10 R v Taueki, above n 5, at [30].
11 R v Raroa, above n 6, at 495.
12 R v Crook [2016] NZHC 215 at [39].
13 R v Scanlon [2018] NZHC 3376 at [8]; R v Crook, above n 12 (two years, six months); R v Te Kani [2018] NZHC 3134 (two years); and R v Leach HC Wellington CRI-2006-08504461, 27 October 2016 (two years, six months).
[17] You also have a second conviction for driving while disqualified. A sentence of imprisonment is available. Non-compliance with court orders has previously been held to justify an uplift in the interests of deterrence in cases of obstruction of justice.14 Here, it is an aggravating fact of your offending, and I uplift the sentence by one month. The difference in the kind of offending, even while connected to the index offending, justifies imposition of a cumulative sentence.15
[18]That brings your starting point to two years and five months’ imprisonment.
Adjustment for personal factors
[19] I now consider whether to adjust that starting point in light of any relevant factor personal to you.
—aggravating features
[20] You have several previous convictions, including for aggravated robbery, possession of an offensive weapon, and unlawful possession of a firearm, as well as some for breach of conditions of intensive supervision, breach of community work and failure to answer bail, but only four convictions for non-compliance with court orders and conditions. Viewed overall, they bear no connection to the present offending; neither are the latter so numerous to establish your predilection for perverting the course of justice.16
—mitigating features
[21] I have read your letter of apology to Mr Paterson’s family. Its limited insight continues to be largely self-directed, and it is too light and too late to justify any reduction in sentence. Neither am I prepared to give any credit for your poor health. It has not stopped your offending. I do not have anything before me to establish imprisonment, while presenting challenges to your treatment, would be disproportionately severe on you. Your own response to your health has been cavalier,
14 See R v Scanlon, above n 13, at [17].
15 Sentencing Act 2002, s 84(1).
16 R v Scanlon, above n 13, at [17].
and your ill-health cannot be relied on now to avoid accountability. 17 There is nothing to suggest your condition cannot properly be managed in prison.18 And you may be released for “compassionate or humane treatment”, or early if “seriously ill and unlikely to recover”.19
[22]Ultimately, no adjustment for personal factors is justified.
Guilty plea discount
[23] That brings me to your guilty pleas. Certainly you are entitled to some credit. The issue is how soon the pleas were made after your first reasonable opportunity to be informed of all the implications of a guilty plea.20 The Crown’s charges were formalised in November 2018, and detailed by summary of facts in April 2019. You pleaded guilty to the driving charge then, but the other charges only two weeks ago, on 11 June 2019. Of relevance is trial was to commence next week, on 1 July 2019. On balance, something less than the full 25 per cent discount is justified; I will apply a 15 per cent discount.
[24]Rounded down, that gives an end sentence of two years’ imprisonment.
Home detention
[25] That is a technical short term of imprisonment would make you a candidate for a sentence of home detention, if a suitable residence was available.21
[26] You wish to apply for home detention, if your health further deteriorates and a suitable address becomes available. As I have noted, home detention has been granted in cases involving similar offending.22 There are doubts about your suitability for home detention. In addition to your convictions for non-compliance, you have both
17 R v Luce [2007] NZCA 476 at [22]; citing R v Verschaffelt [2002] 19 CRNZ 638 (CA); R v Romano
[2007] NZCA 138; and R v KGB [2007] NZCA 292.
18 R v P (CA593/2008) [2009] NZCA 10 at [19].
19 Corrections Act 2004, s 62(2)(a)(ii) and Parole Act 2002, s 41(1)(b). These were held relevant in
R v Luce, above n 17, at [23] and R v P(CA593/2008), above n 18, at [19]–[21].
20 Hessell v R, above n 5, at [47] and [75].
21 Sentencing Act 2002, ss 15A and 80I.
22 See R v Leach, above n 13; and R v Boskell [2015] NZHC 286.
offended and absconded while on bail. But you have not previously been subject to home detention.
[27] By a slim margin, I take the view leave should be granted on the conditions it is sought: namely, your health deteriorates to a point you would be better treated from a private address, and such a suitable address is available. Other conditions will apply to the substituted sentence itself. Such would be the least restrictive outcome in the circumstances,23 especially given the qualifying material deterioration in your health.
Sentence
[28]Mr Green, please stand.
[29] On the charge of conspiring to defeat the course of justice, I sentence you to two years’ imprisonment. On the charge of misconduct in respect of human remains, I sentence you to six months’ imprisonment, to be served concurrently that is to say, at the same time. I grant you leave to apply for substitution of that sentence with one of home detention. Last, you are disqualified from driving for six months, to take effect from your release from prison or home detention, whichever is the later.
[30]You may stand down.
—Jagose J
23 Sentencing Act 2002, s 8(g).
4
9
0