R v Jamieson

[2009] NZCA 555

IN THE COURT OF APPEAL OF NEW ZEALAND

CA92/2009
CA94/2009
CA106/2009
[2009] NZCA 555

THE QUEEN

v

JOHN OLIVER JAMIESON
DANIEL RAYMOND KREEGHER
SIMON ANTONY ANGLEM

CA138/2009
CA139/2009
CA140/2009

SOLICITOR-GENERAL

v

NICHOLAS JOHN PETERS
MORGAN CHRISTOPHER JAMES PARKER
ASHLEY JORDAN MOFFAT

Hearing:6 October 2009

Court:William Young  P, Panckhurst and MacKenzie JJ

Counsel:S A Saunderson-Warner for Mr Jamieson

A J Logan for Mr Kreegher
J A Westgate for Mr Anglem
J H M Eaton for Mr Peters
W N P van Vuuren for Mr Parker
P H B Hall and K H Cook for Mr Moffat
K A L Bicknell and A R McRae for Crown

Judgment:25 November 2009 at 11 am

JUDGMENT OF THE COURT

AThe appeals against sentence (CA92/2009, CA94/2009 and CA106/2009) are allowed in part.  The following orders are made:

(i)Mr Jamieson’s sentence of nine years’ imprisonment and four years six months’ minimum period of imprisonment is quashed.  A sentence of eight years’ imprisonment with a minimum period of imprisonment of four years is substituted.

(ii)Mr Kreegher’s sentence of eight years’ imprisonment and four years’ minimum period of imprisonment is quashed.  A sentence of seven years eight months’ imprisonment is substituted..

(iii)Mr Anglem’s sentence of seven years six months’ imprisonment and three years nine months’ minimum period of imprisonment is quashed.  A sentence of seven years five months’ imprisonment is substituted.

BLeave for the Solicitor-General to appeal (CA138/2009, CA139/2009 and CA140/2009) is granted and the appeal is allowed.  Mr Peters, Mr Parker and Mr Moffat’s sentences of four years six months’ imprisonment are quashed.  Sentences of five years three months’ imprisonment are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1]        Following a trial the appellants/respondents were found not guilty of murder, but guilty of manslaughter.  In a group attack they had caused the death of the victim by a combination of punching, kicking and stomping. 

[2]        The trial Judge, Cooper J, sentenced the offenders on 12 February 2009.  The Judge considered that the prisoners fell into two groups, being three principal offenders (John Jamieson, Daniel Kreegher and Simon Anglem) and three secondary offenders (Nicholas Peters, Morgan Parker and Ashley Moffat).  In broad terms the division reflected a finding that the principals were involved in kicking and stomping the victim at the final and fatal stages of the attack.  By contrast, the secondary offenders were present and offering encouragement, but not necessarily involved in the final acts of violence.

[3]        The three principals were sentenced from a common starting-point of nine years’ imprisonment.  The end sentences were nine years for Mr Jamieson, eight years for Mr Kreegher, and seven and a half years for Mr Anglem.  Each was also ordered to serve a minimum period of imprisonment (MPI) of 50 per cent of the end sentence. 

[4]        The secondary offenders were each sentenced from a starting-point of six years to an end term of four and a half years, with no minimum period of imprisonment.

[5]        The principal offenders challenge their sentences on various grounds, including that the sentences are clearly excessive and disparate by comparison to those passed on their co-offenders.  In relation to the secondary offenders there is a Solicitor General’s appeal.  An increase to the four and a half year terms is sought on the basis that the sentences are manifestly inadequate and, as a result, disparate by comparison to the sentences received by the lead offenders.

[6] This Court has previously dismissed an appeal against conviction by Mr Moffat: [2009] NZCA 437.

The crime

[7]        Wayne Bray was aged 26 years at the time of his death.  In early February 2008 he set out to attend a young woman’s birthday party at Bouverie Street, Timaru.  The three secondary parties (Messrs Peters, Parker and Moffat) attended the party as invited guests.  The principal offenders arrived uninvited at the party later in the evening. 

[8]        Problems arose at the party and the guests were required to leave.  This occasioned a gathering out in the street.  It was at this point that Mr Bray arrived on the scene.  There was a history of ill-feeling between him and Mr Anglem.  Mr Bray had formed a relationship with Mr Anglem’s former partner.  Over the previous months this led to incidents of a minor nature.

[9]        Mr Anglem attacked Mr Bray by punching him.  Mr Bray endeavoured to escape by running down Bouverie Street. 

[10]       From this point the trial Judge described matters in these terms:

[2]   I am satisfied on the evidence that all of you pursued him.  Near the intersection of Bouverie Street with Luxmore Road you caught up with him and a fight ensued.  It was six on to one, and he had no chance.  He was punched and kicked to the ground, falling just around the corner in Luxmore Road.  He was then further kicked and stomped on.  The neighbours observing the attack thought that all of you were involved at that stage.  The events seem to have occurred, insofar as the fatal attack is concerned, over a period of about four minutes.  Some defence counsel have described the attack as being of short duration.  No doubt there have been cases involving longer assaults, but here, whatever its duration, the assault was severe enough to kill.

[3]   The pathologist, Dr Sage, gave evidence identifying five or six blows to the head any of which, singly or in combination, could have been responsible for Mr Bray’s death.  He was of the opinion that there would very probably have been more blows to the head, but he could not identify whether that was the case because of the obscuring effects of the surgery which Mr Bray underwent after the attack.  The surgery was unsuccessful and four days later Mr Bray died as a consequence of the injuries that were inflicted on him that night.  I will need to say something more about the facts later when I come to consider your individual positions.

[11]       Later in his sentencing remarks Cooper J set out this further evaluation:

[52]   This is a tragic case.  It is plain from the various victim impact reports which I have referred to earlier, and from the statements that have been made by victims today, that the callous assault in which Mr Bray lost his life has had a devastating affect on his family.  Nothing he had said or done justified the attack – still less its severity.  The events are rendered perhaps even more tragic when one considers how it was simply an awful coincidence that he happened to be in Bouverie Street at the time that the party you had been attending began to break up.  He was, I need hardly add, simply a citizen lawfully going about his business.

[53]   The jury’s verdict of manslaughter, however, means that they were not satisfied that any of you meant to cause Mr Bray’s death.  That meant that they were not satisfied beyond reasonable doubt that any one of you had deliberately caused his death or deliberately acted to encourage or assist others to bring about that result.  And I have to sentence you on the basis that that is what the jury decided, because it is the jury who makes these decisions and not the Judge.

[54]   On the facts of this case I interpret the jury’s verdict as having been reached on the basis that they were not sure that any of you had appreciated that the force that was being used by you, was sufficient to kill Mr Bray.

[12]       The Judge then turned to the evidence which prompted his conclusion that Messrs Jamieson, Kreegher and Anglem should be sentenced as principals, and the other offenders as secondary parties.  We shall need to refer to the nature of this evidence shortly and, in Mr Kreegher’s case, to something of its detail.

The personal circumstances of the appellants

[13]       It is a feature of this case that the offenders’ backgrounds were significantly similar.  Aside from a spread of ages (to which we will refer) the appellants tended to be young men who had not achieved well at school, ceased their secondary education at a young age, but soon obtained steady employment.  Predominantly they obtained work in the local meat and fishing industries.  As the pre-sentence reports attested, the appellants all drank heavily most weekends, the weekend of 2-3 February 2008 included. 

[14]       Mr Jamieson was the oldest of the group, being 20 years at the date of the offence and therefore 21 years at the date of sentencing.  He had a considerable list of previous convictions for traffic matters, disorder offending and offences of dishonesty, and also two convictions for assault in relation to which he was imprisoned.

[15]       Mr Kreegher was just 19 years at the date of the offence.  He had some previous convictions, mainly for traffic matters.  Mr Anglem was 17 years at the date of the offence.  His only previous conviction was for wilful damage.

[16]       Messrs Peters, Parker and Moffat were all likewise 17 years in February 2008.  Mr Peters had a handful of previous convictions including one for assault and one for possession of an offensive weapon, in relation to both of which he was fined.  Mr Parker had a similar number of previous convictions, but none of particular relevance.  Mr Moffat had no criminal record.

Various grounds of appeal

The required approach

[17]       This appeal suffers from the complication that there are various interacting grounds of appeal.  This was caused in part by the division of the offenders into principal and secondary parties, which prompted an argument on behalf of Daniel Kreegher that the Judge was wrong to place him in the principal offenders’ group.  This is logically the first appeal issue.

[18]       A major and overarching issue is the question of disparity.  Messrs Jamieson, Kreegher and Anglem contend that the disparity between the sentences imposed upon them (as the principal offenders) and those imposed on the secondary offenders is too great, to the point where the difference is not consonant with the appearance of justice: R v Lawson [1982] 2 NZLR 219 (CA). In addition, counsel for these appellants argued that the imposition of MPIs was both inappropriate and served to increase the disparity. They also challenge the appropriateness of the nine year starting-point adopted in their cases; and the adequacy of the allowance made for a pre-trial offer to plead guilty to manslaughter.

[19]       The Solicitor-General’s appeal against the sentences imposed in relation to the secondary offenders likewise raises the issue of disparity.  Counsel argued that the difference in the respective levels of sentence was so significant as to create the appearance that something had gone wrong with the administration of justice.  The Crown did not dispute the factual findings of the trial Judge.  But, even accepting these assessments, the Crown characterised the disparity between the two groups of sentences as much too great.  Counsel contended that the sentences of four years six months received by the secondary offenders did not adequately reflect their level of culpability.  Only a “minimal distinction” was required between the principal and secondary participants. 

[20]       Given the interacting mix of appeal issues we shall first consider the argument concerning Mr Kreegher’s placement in the principals’ category.  Then, we will examine the question of disparity, at least on a first impression basis.  But a final conclusion concerning disparity must await consideration of the specific arguments directed to the composition of the principals’ sentence levels, being the appropriateness of the starting-points, the allowance made for the offers of manslaughter pleas and the imposition of MPIs.

Was Daniel Kreegher properly cast as a principal offender?

[21]       Counsel for the Mr Kreegher, Mr Logan, argued that the basis upon which the Judge found Daniel Kreegher to be a principal party was flawed.  Ms Bicknell, for the Crown, submitted that the trial Judge was well-entitled to reach the factual finding which he did and that the appellant’s sentencing did not proceed on an erroneous factual basis.  

[22]       Cooper J said in relation to this issue:

[58]   In your case Mr Kreegher, the Crown again relies on the eye witness accounts of your involvement with the group as a whole and in your case refers to evidence given by Ms Hodgson that she heard someone behind her say “I stomped on his head” and that she was “pretty sure” that it was you.  I accept Mrs Stevens’ submissions that the totality of her evidence, including the cross-examination, of course, left a doubt about the accuracy of her identification of your voice on that occasion.  The Crown also relied on your presence during the conversation between Mr Jamieson and Mr Hartnett to which I have just referred, when it says that by your silence you effectively adopted what Mr Jamieson had said.  Once again, I do not think I can take that into account because of the lack of any positive act or statement by you from which it could be inferred that you accepted that what was said applied to you.

[59]   However, there was reference also to your having told Mr Purukamu that “they had just fucked somebody up”.  Again, to my mind it was never properly clarified at the trial whether by saying “they” the witness was intending to imply that you had in fact said “we” had just fucked somebody up.

[60]   Mr McRae also referred to evidence from Natasha Boyes, who described a conversation on the Sunday morning following the attack to the effect that, “they gave him a good hiding and kicked him until he stopped moving”.  There was further evidence from Ms Boyes that the words actually used were “we gave him a pretty good hiding, we kicked him until he stopped moving”.  I am satisfied that you did use those words and that they amounted to an admission of your involvement in the attack in a serious way.  In my view there is sufficient on the evidence for me to be satisfied beyond a reasonable doubt that your actions were those of a principal in causing the death of Mr Bray.

[23]       We regard this as a careful evaluation of the issue.  We have considered the evidence of Natasha Boyes.  She related a conversation which occurred the day after “the fight”, which she described as “a hung over Sunday”.  Messrs Kreegher and Moffat were present.  She reported that Mr Kreegher said “they gave him a good hiding and kicked him till he stopped moving”.  In cross-examination by Mrs Stevens (trial counsel for Mr Kreegher), Ms Boyes agreed with the proposition that she could not tell from what was said who had inflicted the injuries.  To a further question in cross examination by Mr Eaton, counsel for Mr Peters both at trial and on appeal, the witness agreed she told the police that what Mr Kreegher said was “we gave him a pretty good hiding, we kicked him till he stopped moving”.

[24]       We are satisfied that the conclusion reached by the trial Judge was open to him.  The relevant statement was made in the course of an earnest conversation.  Ms Boyes was only a few metres away and said that she recalled the conversation when she made a statement to the police 11 days later because she was disgusted by it.  We do not regard the concession obtained in cross-examination as decisive.  It was the words spoken at the time which fell to be evaluated, not the witness’s opinion as to their meaning expressed months after the event at trial.  Moreover, it is commonplace for witnesses to report comments made in the first person by resort to an indefinite form of expression.

Disparity – first impressions

[25]       The disparity in sentences between the principal and secondary offenders ranges from four and a half years (in the case of Mr Jamieson) to three years (in the case of Mr Anglem).  But a more meaningful comparison exists if a comparison is made between the different starting points adopted by Cooper J, being nine years for the principal offenders and six years for the secondary offenders.  In our view this represents a very significant differentiation in the assessment of relative culpability, the more so when it is noted that the principals each received an MPI of 50 per cent of their sentence.

[26]       In assessing the three years (or one-third) difference we begin with s 8(a) Sentencing Act 2002, which provides as one of the principles of sentencing that account must be taken of the gravity of the offending in the particular case, including the degree of culpability of the offender.  This is both obvious and fundamental.  More difficult is the duty upon judges to evaluate individual culpability, particularly of offenders involved in a joint enterprise.

[27]       In some cases, notably those involving sophisticated and premeditated offending, there may be a need to distinguish between masterminds and those who played subservient roles.  But this is not such a case.  Here the crime was unplanned, even spontaneous in terms of its commission.  This suggests that there was only limited scope to differentiate between the roles played by individuals.

[28]       Nor do we think that the appropriate use of the labels principal and secondary offenders dictated the imposition of significantly different penalties as between members of the two groups.  All will depend upon the nature of the case.  As the High Court of Australia observed in Gas v R [2004] 217 CLR 198 at 209 there is no “universal principle that the culpability of an aider and abetter is less than that of a principal offender... A manipulative or dominant aider and abetter may be more culpable than a principal”.

[29]       The present case involved group or pack offending.  From humble beginnings the six offenders joined in a situation of marked and eventually fatal violence.  This was an aggravating feature of the kind described by this Court in R v Taueki [2005] 3 NZLR 372 at [31] (h):

Multiple attackers:  The greater the number of attackers and the greater the disparity between the number of the attacking group and the victim group, the greater the culpability will be.

[30]       In group attack cases the circumstance of participation in the group is integral to the offending and to the assessment of culpability.  The verdicts demonstrate that the secondary parties were deliberately involved in assisting or encouraging the principal offenders in the fatal assault, although without a conscious appreciation that the death of the victim was a likely outcome.  In these circumstances we do not accept there was a basis to distinguish between the principal and secondary parties to such a marked degree. 

[31]       But a final conclusion in relation to disparity must await consideration of the other grounds of appeal.  This will identify the reasons for the disparity and, ultimately, whether it need be addressed directly or by other means. 

The starting-point adopted for the principal offenders

[32]       The trial Judge adopted a starting-point of nine years in relation to the principal parties.  Counsel for Messrs Jamieson, Kreegher and Anglem contended that the starting-point was too high and contributed to end sentences which were clearly excessive.  We were referred to a considerable number of High Court sentencing decisions for manslaughter in which a starting-point no greater than seven and a half years was adopted for broadly similar offending.  Some of these cases concerned group street attacks where the victim died as a result of kicking and stomping to the head.

[33]       There is no guideline judgment of this Court in relation to manslaughter.  The reasons for this were discussed in R v Leuta [2002] 1 NZLR 215 (CA). At [62] of the majority judgment aspects of the offence of manslaughter were discussed. Unlike most other offences the consequence (a death) is unintended. The death may be caused in unusual circumstances and even by a comparatively minor unlawful act. These considerations prompted the Court to observe that care was needed in assessing the contention that the level of manslaughter sentences should begin above those imposed for the most serious assaults which occasion serious injury. Regardless of the outcome, a death, offences of manslaughter may involve moderate or even minor personal culpability on the offender’s part.

[34]       The present case, however, involved serious violence where serious injury (if not death) was a foreseeable outcome.  We think in cases of this nature the guideline judgment in R v Taueki is of considerable assistance in fixing the penalty for manslaughter.  The matters which contribute to the seriousness, or mitigate the seriousness (or not), of grievous bodily harm offending as discussed in [31]-[33] of Taueki are also relevant to the assessment of culpability for manslaughter of the present kind.

[35]       This case exhibited the features of a group attack (or multiple attackers as it is described in Taueki), attacking the head, vulnerability of the victim (particularly when he was knocked to the ground and defenceless) and a fatal outcome.  Although weapons in the conventional sense were not used, the use of feet to kick and stomp is little removed from the use of a weapon.

[36]       Assessed in terms of the Taueki gradations the Judge adopted a starting-point towards the top end of band 2 or the bottom end of band 3, albeit he did not rely on that case.  Proceeding by analogy, and assessing the present case in terms of the Taueki bands of seriousness, we consider the aggravating features justified this starting-point.  Nine years is towards the top end of band 2 (10 years) and at the bottom end of band 3 (nine years).  Accordingly we are not persuaded that it would be appropriate to differ from the starting-point identified by Cooper J.

What allowance was appropriate for the offers to plead guilty to manslaughter?

[37]       Various offers were made to the Crown (we shall refer to the details shortly) if the charge was reduced from murder to manslaughter.  At sentencing the Judge considered that the offers warranted a reduction in the sentences otherwise appropriate.  The extent of the reduction was not expressly identified (save in the case of Mr Jamieson), but the likely amount of the reduction can be deduced from the tenor of the sentencing remarks. 

[38]       Recently, this Court delivered a guideline judgment in R v Hessell [2009] NZCA 450 as to the appropriate reduction for guilty pleas. Although the Court said at [74] that the guideline would apply from 3 October 2009, we propose to have regard to it in relation to the present ground of appeal. At [76] the Court observed that appeals relating to pre Hessell sentences would be decided in accordance with the law as set out in previous appellate authorities, but we doubt that the guideline mandates any change of relevance to this case.  If it does, the change may be favourable to the appellants, if anything.

[39]       The willingness of an accused to plead guilty to the charge upon which he was eventually convicted justifies a reduction in sentence similar to that which is available where the case is actually resolved by a plea of guilty (see Hessell at [40]-[44]). The Court noted that this approach is not new. It represents a reaffirmation of existing practice, subject to some additional guidance, including a recommendation that defence counsel should record an offer to plead guilty in writing to the prosecutor, with a copy made available to the trial Court.

[40]       In this case defence counsel did record their offers to plead guilty to manslaughter in writing.  Mr Jamieson did so in a letter dated 30 July 2008 and, moreover, his defence at trial was conducted on the footing that he was guilty of manslaughter, but not murder.  Mr Parker conveyed an offer by email on 8 October 2008, and Mr Anglem by a letter of 9 October 2008. 

[41]       The position in relation to the remaining three appellants is summarised in a memorandum of counsel filed following the appeal hearing:

By 15 October 2008 (or shortly before that date) both Mr Peters and Mr Moffat had indicated by telephone that they would offer to plead guilty to manslaughter.  Although Mr Kreegher had earlier made enquiry by letter of 29 September 2008, by 15 October 2008 it appeared he was not prepared to plead guilty to manslaughter.

All parties formally offered to plead guilty to manslaughter by Saturday 25 October 2008.  This was confirmed by an email to the officer in charge. 

(Emphasis added.)

[42]       The trial commenced on 3 November 2008.  While the defence of Mr Jamieson proceeded on the basis he was at least guilty of manslaughter, all other accused contended they were not guilty of either murder or manslaughter.

[43]       Does this stance affect the entitlement to a reduction for the offers to plead guilty to manslaughter?  This point was not expressly addressed in Hessell.

[44]       We see no reason why the tactic adopted at trial, following the Crown’s decision to persevere with the murder charges, should affect the availability of the normal discount.  The question is to be evaluated at the time the offers were made.  Had they been accepted, the need for a trial would have been averted.  And, if the offer to plead guilty is subsequently vindicated by verdict of a jury, we think it is only appropriate to recognise the offer in the normal manner.  To impose a further requirement that the offender must also conduct his defence on the basis that he is guilty of the lesser charge, introduces complexity, where there have been good reasons for the stance at trial.  This is also an area where clear rules or guidelines are desirable.

[45]       In terms of Hessell Mr Jamieson was entitled to a 20 per cent reduction for his offer to plead guilty to manslaughter.  An end sentence of nine years’ imprisonment was reached after the Judge adopted the nine year starting-point, made an uplift of one year on account of the appellant’s recent past convictions for violent offending and the circumstance that the manslaughter was committed while the appellant was on bail, but after a reduction of one year was then made for the offer to plead guilty to manslaughter.  Hence, the allowance made for the offer to plead guilty was 10 per cent.

[46]       Mr Kreegher and Mr Anglem were likewise sentenced from a starting-point of nine years’ imprisonment from which a reduction was made of one year and 18 months, respectively, in recognition of their youth and their belated offers to plead guilty to manslaughter.  The actual allowance for the offer was not identified, but the allowance made for both elements was 11 per cent (Mr Kreegher) and 17 per cent (Mr Anglem). 

[47]       Messrs Peters, Parker and Moffat from a starting-point of six years’ imprisonment received a reduction of 18 months (or 25 per cent) in recognition of their youth and the belated offers to plead guilty to manslaughter.

[48]       In Mr Jamieson’s case we substitute a 20 per cent allowance for the offer of a guilty plea.  Adhering otherwise to the approach of the trial Judge a deduction of two years from the 10 year notional sentence produces an eight year end sentence.

[49]       In terms of Hessell the other two principal offenders are entitled to a 10 per cent allowance for their offers to plead guilty.  In relation to Mr Kreegher from a nine year starting-point we make a reduction of 16 months, about 15 per cent, in recognition of his youth as well (19 years at the time).  Mr Anglem is entitled to a reduction of 19 months (about 17½ per cent) from the starting-point, given that he was only 17 years at the offence date.  The end sentences are, therefore, Mr Kreegher seven years eight months and Mr Anglem seven years five months.  We note two points.  Hessell stipulates that a plea discount should be the last and a discrete step, so that the actual reduction is identified.  For convenience, however, we have followed the Judge’s approach.  The overall reductions to the sentences are four months and one month, respectively.  This would ordinarily be seen as tinkering, but in the context of a multi-appellant appeal where various adjustments have been made to the sentences originally imposed, we make the reductions nonetheless.

Was the imposition of MPIs in relation to the principals justified?

[50]       Counsel for the appellants argued that the imposition of an MPI of 50 per cent of the end sentence was not justified, essentially because the culpability of the offenders was sufficiently met by the imposition of lengthy terms of imprisonment.  Messrs Kreegher and Anglem also advanced their personal circumstances, including the absence of past violent offending and their good employment records. 

[51]       Before imposing the MPIs the Judge said that he thought that course was not necessary with respect to the secondary offenders, but that in relation to the principal offenders:

Unless such an order is made I do not consider that the purposes of holding you accountable for the harm you have done, denouncing your conduct and of deterrence would be sufficiently served.

[52]       We consider there are two dimensions to this issue.  The first is whether the imposition of MPIs was justified in terms of the statutory test posed by s 86 of the Sentencing Act 2006; and the second is the issue of consistency – whether it was appropriate to further distinguish between the two classes of offenders by the imposition of MPIs in the case of one class, but not the other. 

[53]       Ordinarily we would be loath to differ from the assessment of a trial Judge who had a feel for the case which we cannot replicate, particularly in regard to the s 86 evaluation.  However, for the reasons already given we do not see this as a case where a marked differentiation in the sentencing outcome as between offenders was justified.  The imposition of the MPIs certainly served to accentuate the difference in the end sentence levels.  We have already reduced that disparity by adjustment of the allowance made for the offers to plead guilty and on account of youth, but only to a very modest extent in the cases of Messrs Kreegher and Anglem.

[54]       But does retention of the MPIs still bring about an unacceptable level of disparity as between the two classes of offenders?  Before we endeavour to answer this question, the Crown appeal against the inadequacy of the sentences received by the secondary offenders should first be considered.  Until then, the final extent of the disparity is unknown.

The Crown appeal against the inadequacy of the secondary offenders’ sentences

[55]       The Solicitor-General seeks leave to appeal against the sentences of four and a half years’ imprisonment received by Messrs Peters, Parker and Moffat.  The essence of the appeal is that the starting-point adopted, six years’ imprisonment, was too low with the result that the end sentences were clearly inadequate.  There was no challenge to other aspects of the sentencing process, including the reductions made for personal mitigation and the Judge’s conclusion that MPIs were not justified.

[56]       Ms Bicknell stressed that all six offenders were actively involved in the attack upon the victim.  This was not a case where the secondary parties only offered encouragement to the principals.  The distinction between the two classes was drawn on the basis that the attack lasted about four minutes and that it was not established to the required standard that Messrs Peters, Parker and Moffat were involved at the point when Mr Bray was most defenceless and sustained the fatal injuries.  Against this background counsel urged that the attack was to be viewed as a common enterprise, where the culpability of all offenders was high, with the result that any distinction drawn between the offenders should have been minimal.  Ms Bicknell also submitted that a better approach would have been to adopt a common starting-point for all six offenders and then make adjustments on the basis of individual personal circumstances.

[57]       We do not accept the latter argument.  In terms of the Taueki approach the starting-point adopted in sentencing effects a measure of individual culpability, after which circumstances personal to offenders are brought to account.  We think the trial Judge was able to conclude that a different starting-point was appropriate for the different classes of offenders.  The real issue is whether the differential was too marked. 

[58]       We have already discussed this aspect and expressed the view that a three year, or one-third, differentiation in the respective starting-points was too great.  The final gap has been narrowed to between three and a half years to two years 11 months (44 – 39 per cent), by virtue of the reductions made to the principal offenders’ sentences.  We think this difference is still high in the circumstances of this case. 

[59]       The more difficult question is whether, in the context of a Crown appeal, this remaining level of disparity must be addressed.  Not only is the differentiation too large, but we also accept the submission that the overly generous starting-point adopted in relation to the secondary offenders produced end sentences which were too low.

[60]       Leave to appeal is granted, and the Solicitor-General’s appeal is allowed in relation to all three respondents.  We adopt an increased starting-point of seven years in relation to the secondary offenders and make a similar reduction (25 per cent) in recognition of the offers to plead guilty and youth.  Such starting-point recognises the fact that this is a Crown appeal.  The end sentences therefore are five years three months.

Conclusion

[61]       It remains to reach a final view concerning the MPIs imposed in relation to Messrs Jamieson, Kreegher and Anglem.  An MPI may often be required in relation to sentences for crimes of this nature.  The Court said in Taueki (at [57]):

In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.

Where death is the outcome there may be added reason to impose a minimum period.  But we face the problem that there was no appeal against the non-imposition of MPIs in relation to the secondary offenders.

[62]       What, then, is to be done?  With MPIs in place, particularly in relation to Messrs Kreegher and Anglem, we think the now remaining disparity (26 - 29 months) is still too marked.

[63]         We remain of the view that Mr Jamieson should serve one half of his sentence before he is eligible to be considered for parole.  He stands apart from his co-offenders both in terms of age and, more particularly, in terms of his past record.  In his case the MPI is upheld.

[64]       However, in relation to Messrs Kreegher and Anglem we conclude that the MPIs cannot stand, because their imposition further emphasised the disparity of sentence levels.  This aspect of their sentences is therefore quashed.

Solicitors:

Aspinall Joel, Dunedin for Mr Jamieson

Ross Dowling Marquet Griffin, Dunedin for Mr Kreegher

Petrie Mayman Clark, Timaru for Mr Parker

Crown Law Office, Wellington