R v M (25/02)
[2002] NZCA 343
•20 March 2002
ORDER PROHIBITING PUBLICATION OF NAME ADDRESS OR PARTICULARS IDENTIFYING APPLICANT OR HIS WIFE
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA25/02 |
THE QUEEN
V
M (25/02)
| Hearing: | 19 March 2002 |
| Coram: | McGrath J Robertson J Durie J |
| Appearances: | V C Nisbet for the Applicant S P France for the Respondent |
| Judgment: | 20 March 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
This case is focused principally on one issue, namely the credit to be given for assistance provided by the applicant. The applicant calls in aid also the co-operation of his wife. The application for leave (which is not opposed) is necessary because the appeal is out of time. That is explicable by the turn of events as subsequently noted.
The applicant faced a variety of charges involving the importation, supply and possession of both LSD and MDMA.
Having pleaded guilty to a total of 13 charges in the District Court and that Court having declined to sentence him eventually in the Wellington High Court on 11 May 2001 he was sentenced to an effective term of five years’ imprisonment.
It is clear from the sentencing comments that the Judge was aware of the applicant’s co-operation and assistance to the authorities and that it was anticipated that some further assistance would be given. A credit of one year was allowed.
The case is now advanced on the basis that, bearing in mind the assistance which he had previously provided, and in light of what has occurred since, and what is still to happen, the one year allowance in a sentence of this length was insufficient bearing in mind the approach of this Court in cases such as R v D (CA43/00, 23 March 2000) and R v Z (CA138/00, 27 June 2000).
There is no challenge to the sentencing Judges’s starting point of eight years. The issue relates to the appropriate discount for all relevant circumstances.
The Crown fairly acknowledged that the assistance provided by the applicant is within an area where a discount would normally be accorded and does not oppose some further allowance. It accepts on the basis of the cases referred to above this could be appropriate but because of the Crown’s interest in the prosecution that the further assistance would facilitate it does not take a definite position.
Prior to the original sentence the applicant and his wife both agreed to give evidence both at the depositions for and trial of two co-accused. What they promised was delivered at depositions.
The trial was due to proceed in December but shortly before it began one of the co-accused committed suicide and the other left the country and is unlikely to return.
In our judgment five factors are important in this case.
(a) the applicant testified at the depositions for two co-accused at which he was the only non-police witness. He was cross-examined for around four hours but remained consistent in his testimony;
(b) he was available to testify at a subsequent trial of the co-accused although that was not necessary because of other events;
(c) the applicant has agreed to testify against a third person who is currently being extradited substantially on the basis of the applicant’s evidence;
(d) subsequent to his testifying at the depositions hearing the applicant’s brother received a threat against the family if the applicant were to testify at trial; and
(e) as the applicant and his wife are involved in the Police Protection Scheme there are continuing pressures on them. While the applicant is serving time in custody it is necessary that he be kept apart in a special unit.
While in no way minimising the applicant’s initial criminal involvement, in accordance with well established principle, these are all issues which require recognition.
In all of the circumstances we are persuaded that the various factors, including the applicant’s lack of any previous criminal history and immediate co-operation and remorse, when coupled with the assistance he has provided since his sentencing and it is anticipated he will provide in the future, indicate that a sentence of three years’ imprisonment would be appropriate.
Accordingly leave to appeal is granted. The sentences imposed in the High Court are quashed. On each of the counts he is now sentenced to three years’ imprisonment.
The applicant’s name was suppressed in the High Court in an effort to protect him from the consequences of his giving assistance to the Police. There will be a continuation of the order that his name and identifying particulars and that of his wife shall not be published in respect of these proceedings.
Solicitors
V C Nisbet, Wellington, for Applicant
Crown Law Office, Wellington
0
0
0