R v McFarlane
[2021] NZHC 2943
•28 October 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-087-000226
[2021] NZHC 2943
THE QUEEN V
JAMES GRAEME MCFARLANE
Hearing: 28 October 2021 Appearances:
D J McWilliam & I J Hayden for Crown R O Gowing Defendant
Sentence:
28 October 2021
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Tauranga
R v MCFARLANE [2021] NZHC 2943 [28 October 2021]
[1] James McFarlane you appear for sentence this morning on one charge of wilfully attempting to pervert the course of justice.1 The maximum penalty for the offence is seven years’ imprisonment.
Background
[2] On the morning of Wednesday 2 October 2019, you became involved in a heated argument with your brother-in-law, Thunder Savage who at the time was staying with you and your wife and family for a few days. Mr Savage attempted to shut you out of your own house and you forced your way back inside.
[3] Your son who was sleeping in the garage at the rear of your property was woken by raised voices and came to the house and attempted to intervene. He then became involved in a struggle with Mr Savage who had armed himself with a short bladed oyster knife which he and your son were then struggling over. While that was happening you obtained a knife from the kitchen and as Mr Savage and your son continued to struggle over the oyster knife that Mr Savage was holding you stabbed Mr Savage below his left armpit in an attempt to stop him from stabbing your son and in order to defend your son from him. The knife wound you inflicted caused Mr Savage to collapse, and he bled profusely from the wound. Police and Ambulance were called and attended but Mr Savage could not be revived and he died at the scene.
[4] A post-mortem examination confirmed that Mr Savage had suffered a fatal stab wound to the left-hand side of his body just below the left armpit. The wound was over 205 millimetres deep and pierced his left fifth rib, punctured his lungs and major arteries leading from the heart.
[5] Your son told Police that Mr Savage had been stabbed once and said it was self-defence on his part. At the same time, he handed the Police a large black knife. The Police also recovered the oyster knife from the scene. Your son was initially charged with assaulting Mr Savage with a weapon, however that charge was
1 Crimes Act 1961, s 117(e). Maximum term of imprisonment: seven years.
subsequently withdrawn after you admitted to Police that it was you and not your son who had fatally stabbed Mr Savage.
[6] You were subsequently charged with Mr Savage’s murder or alternatively manslaughter. At your trial which concluded on 21 May 2021 you were found not guilty of both.
The attempting to pervert the course of justice offending
[7] It is the events that followed Mr Savage’s death that give rise to the charge of attempting to pervert the course of justice, to which you pleaded guilty prior to the commencement of your trial.
[8] On 2 October 2019 you made a formal statement to Police in which you said that your son and Mr Savage were engaged in a struggle during which Mr Savage was holding the large black knife that was handed by your son to the Police at the scene. You told the Police that during the struggle, Mr Savage had fallen on the knife he had been holding and in effect had stabbed himself.
[9] On 7 October 2019, you were re-interviewed for a video recorded reconstruction of the events during which you again repeated your account of how Mr Savage had fallen onto the knife he was holding. You made this statement to Police knowing that your son had been charged in relation to Mr Savage’s death.
[10] On 21 October 2019, and this was I think the sixth occasion on which you addressed the issue of how the fatal wound was inflicted, you voluntarily went to the Whakatāne Police Station and made another formal statement, in which you said it was you who had stabbed Mr Savage and not your son.
[11] You said that Mr Savage had pinned your son against the wall and was holding and threatening to strike him with the oyster knife. You said that you reacted to this by getting a large black handled knife from the kitchen and had ‘stuck’ Mr Savage in his side with the knife from the kitchen. You said that you had acted in self-defence of your son who Mr Savage was threatening to stab with the oyster knife.
[12] You said that you wiped Mr Savage’s blood off the large knife onto your clothing and had hidden it in the garage. However when you realised that the oyster knife blade was too small to have caused Mr Savage’s injury you retrieved the large knife from the garage, and put it on the rear deck of your house near to where Mr Savage had collapsed and was lying. You did not offer an excuse for the misleading statements, saying that your son had picked the knife up from the ground after you had told him not to touch it.
Approach to sentencing
[13] Sentencing involves a two-step process. I shall first determine a sentencing starting point that reflects the seriousness of your offending by reference and comparison to similar cases, and to any aggravating or mitigating features of your offending. Having determined that starting point I will make adjustments to it – either up or down – to take account of your personal circumstances, and your guilty plea.2
[14] I am required to have regard to the statutory purposes and principles of sentencing.3 I must hold you accountable for your offending and encourage you to be responsible for and acknowledge the harm that you have caused. The sentence I impose on you must hold you accountable for your offending and denounce your conduct. I must consider the gravity and seriousness of your offending and also take the impact of your offending on victims into account. The sentence imposed is to be the “least restrictive” that is appropriate in the circumstances, consistent with comparative and appropriate sentencing levels.
Starting point
[15] In setting the starting point of your sentence, I note that there is no guideline judgment for sentencing of attempts to pervert the course of justice.4 The reason for this is that the circumstances of offending of this type vary widely and so generally speaking comparing the facts and gravity of the offending of your case to others can be of limited assistance.5 The Court of Appeal has said that the real focus in each case
2 Moses v R [2020] NZCA 296 at [46]–[48].
3 Sentencing Act 2002, ss 7 and 8.
4 R v McFarlane [2021] NZHC 1332 at [8].
5 See Deane v R [2011] NZCA 60 at [14].
must be on the intention behind the attempt and on its potential effect.6 Appellate guidance reinforces that because of its potential effect “deterrence and denunciation are the overriding principles”.7 The orthodox approach taken by the courts is that: “any attempt to disturb the process of administration of justice is to be deplored and
… in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.”8 However, it is accepted that a non-custodial sentence can be appropriate in less serious cases.9 And as I have said when determining the appropriate starting point, the court must focus on the intention behind the attempt and its potential effect.10
Submissions
Crown
[16] For the Crown, Mr McWilliam submits that an appropriate starting point for the offending is 24 months’ imprisonment as it falls “within the lower range of seriousness” of this type of offending. The Crown draws my attention to the Court of Appeal’s decision in H v R11 upholding a decision of Nicholas Davidson J who adopted a starting point of 18 months’ imprisonment. The offending in that case involved what was described as an unsophisticated and opportunistic attempt to dissuade a central and important prosecution witness by means of signals made to her by the defendant while she was in the course of giving her evidence in Court.
[17] The Crown further notes that cases in which attempts have been made to conceal or destroy evidence have tended to attract significantly lower starting points than cases that involve witness intimidation.
[18] The Crown submits that the present case does not involve attempts to dissuade a witness from giving evidence, but rather the making of a number of false statements, to Police with the intention of obscuring the truth of what occurred, and causing delays
6 Miller v R [2014] NZCA 382 at [11].
7 Thomas v R [2020] NZCA 257 at [7].
8 R v Churchward CA439/05, 2 March 2006 at [14]. See recent affirmation in M (CA469/2013) v R [2013] NZCA 385 at [9].
9 See R v Clutterbuck CA372/99, 17 November 1999 at [12].
10 M (CA469/2013) v R [2013] NZCA 385 at [11].
11 H (CA6/2016) v R [2016] NZCA 101.
in the Police investigation, which were only resolved when you subsequently confessed to the Police that it was you who had fatally stabbed Mr Savage – and not your son.
[19] The Crown says that the key aggravating factor of your offending Mr McFarlane was your failure to confess promptly, which resulted in your son being charged and spending eight weeks in custody and also diverting and causing the Police delay in their investigation of the death of Mr Savage.
[20] The Crown submits that no discount for guilty plea should be allowed, as it was entered at a late stage on the morning of your trial. The Crown does not seek an uplift for your previous convictions, but says that it means that no credit can be given for your good character. The Crown accepts that you spent a lengthy period on restrictive bail conditions and that a discrete discount may be applied on that account. However, any such discount should not be to the same degree as those allowed where an offender has spent a length of time on restrictive electronically monitored bail.
The Defendant
[21] Mr Gowing on your behalf submits that the sentencing of your son is the most immediate and relevant comparison in terms of sentence. In your son James’ case, Powell J adopted a starting point of 18 months’ imprisonment as the offending fell at the less serious end of the spectrum of this type of offending.12 However, Mr Gowing acknowledges that because you lied to protect yourself, and your son lied to protect you, your offending is for that reason more serious than his, and Mr Gowing submits that a 22 month starting point is appropriate in your case.
[22] Mr Gowing also refers to several other cases, including the case of Thomas v R in which Ms Thomas lied to Police in order to protect the intoxicated driver of a vehicle who had driven into and injured Ms Thomas’ son.13 Ms Thomas told the Police that she had driven the car when it struck and injured her son, and she underwent an evidential breath test returning a reading of 250 micrograms. However, the following
12 R v McFarlane, above n 4, at [10].
13 Thomas v R [2019] NZHC 396.
day Ms Thomas confessed to Police that she had lied and on that occasion she identified the driver but by then the driver she identified could not be tested for driving with excess breath or blood alcohol. Ms Thomas received a sentence of three months’ community detention. Mr Gowing submits that that offending was more serious than yours, Mr McFarlane, as it resulted in the complete obstruction of the administration of justice by thwarting the drink/driving procedures being carried out in relation to the actual driver of the vehicle.
[23] Reference is also made to Cobb,14 where the offender was convicted and discharged by Lang J after failing to provide Police with a key piece of information during the course of their investigation. However in that case the false information was given to the Police by Ms Cobb following the fatal shooting of her husband in a garage on the rear of their property when she was not present. Because she was fearful for her own safety and that of her family, Ms Cobb failed to tell Police about a fugitive who was staying with them at the time and who was in the garage with her husband when the fatal shooting occurred. However the following day she told the Police the truth. In sentencing her, Lang J observed that where serious incidents have occurred, a failure to co-operate and tell the Police the truth the starting point will ordinarily be a short term of imprisonment. In that case he nevertheless discharged Ms Cobb after considering the wider circumstances including the death of her husband and her justifiable fears for her own safety.
[24] Mr Gowing also refers to Taylor v Police where the defendant provided Police with another person’s details when apprehended for driving whilst intoxicated.15 The Court noted with reference to the lie that:16 “[i]t cannot be minimised as a panicked reaction to being apprehended, as the appellant maintained the deception through to a Court hearing”. The starting point of 12 months on the perverting charge was not disturbed by the High Court on appeal. Mr Gowing submits that that case involved more serious offending than yours, Mr McFarlane, as the defendant’s lie was maintained through a period until the Court hearing on the charge.
14 R v Cobb HC Hamilton CRI-2007-419-03, 30 March 2007.
15 Taylor v Police [2014] NZHC 2285.
16 At [11].
[25] Mr Gowing nevertheless submits, that because your offending and that of your son involved the same incident and the same lie as to how Mr Savage was injured, it would be unrealistic of him to seek a lower starting point than that which was adopted by this Court for your son, and Mr Gowing submits that although your offending, he says, is less serious than was the case in Taylor and Thomas, the appropriate starting point for you is 22 months’ imprisonment.
The starting point I shall adopt
[26] At the outset of my consideration I note that the starting points suggested by the Crown, and your counsel do not differ significantly – by only two months. Your offending did not involve you seeking to dissuade a witness from assisting Police participating in a trial which is generally seen as a more serious type of offending.17 You lied to misdirect the Police investigation away from you in order to protect yourself and hoping the Police would accept the false explanation you gave them that Mr Savage had fallen onto the large knife he was wielding, and had effectively stabbed himself. You repeated that lie in a formal statement made to Police and in a re-enactment of the incident and in several discussions with Police. However, after the Police concluded that your son had fatally stabbed Mr Savage and was charged and remanded in custody, you eventually owned up and admitted that it was you who had stabbed Mr Savage in order to defend your son. By then eight weeks had elapsed during which your son had been held in custody.
[27] While your eventual confession meant that the original charge against your son was withdrawn, the effect of your lie was to initially mislead the Police and cause them to consider your son to have been responsible for causing Mr Savage’s death. I agree with your counsel that compared to your son’s, your offending was more serious. He lied to Police to protect you, and not himself. You however lied to protect yourself, and to avoid the consequences of having stabbed Mr Savage and causing his death. As I have said, when you first told the lie to Police it seems as if you were hoping that they would conclude that Mr Savage had died after falling on the knife and had stabbed himself, and you did not lie to falsely incriminate your son. On that basis it seems that you were hoping that as a result of your lie neither you nor your son would be
17 Hamiora v Police [2013] NZHC 98 at [27].
considered to be responsible for having caused Mr Savage’s death and neither of you would be charged. It was only after your son was charged with the offence of assault with a weapon and some eight weeks had passed that you finally went to the Police and told them that it was you who had fatally stabbed Mr Savage.
[28] I accept that there was an element of panic involved in the actions you took when you realised Mr Savage had died and it was in that context that you first lied to Police. However during the period that followed, and after you had had time to reflect, you repeated the lie several times knowing that by doing so you were misleading the Police and their inquiries. Your admission that you lied only came two months’ later after charges against your son had been brought and he was being held in custody. So you had been able to observe that unfold and did so without intervening to prevent your son from having to go through all of the consequences of being charged and held in custody for that extended period. Although you did eventually come forward with the truth about having stabbed Mr Savage and as a result the legal prosecution of your son did not proceed, the course of justice had by then been seriously interfered with and disrupted and your offending was both deliberate and sustained.
[29] Having regard to those features of your offending I consider that your offending was in the less serious to moderately serious range in terms of its gravity. The appellate guidance provides that “a sentence in the range of 18 months to 2 years imprisonment is suitable for less serious attempts to pervert the course of justice”.18
[30] I consider your offending to be more serious than the offending in the case of H v R, where a starting point of 18 months was adopted, and also more serious than that of your son James because he lied to protect someone other than himself, while you lied to protect yourself. Your offending was more sustained than the offending in H v R, as you maintained and repeated your lie over a period of two months. Having regard to the importance of consistency in sentencing levels19, and noting the start point of 18 months’ imprisonment adopted by Powell J in sentencing your son,20 I will adopt a starting point of 22 months’ imprisonment in your case.
18 Hamiora v Police, above n 17, at [26] citing: R v Clutterbuck CA 372/99, 17 November 1999; and
R v Dutt HC Auckland, 2 April 2004.
19 Sentencing Act 2002, s 8(e).
20 R v McFarlane, above n 4, at [10].
Personal factors
[31] There are no relevant personal factors that require me to uplift the starting point. I note that you have a relatively large number of previous convictions for offending, including for cultivating, possessing and supplying cannabis, and convictions for burglary and receiving as well as a number of driving related charges. However, and significantly, the last offending was in 1993, some 28 years ago. Those previous convictions and offending do not warrant any uplift of your sentence in relation to the current charge.
[32]There are however several personal factors which do mitigate your offending.
Pre-sentence report
[33] The Department of Corrections pre-sentence report writer assesses you as having a low likelihood of re-offending, with your last Court appearance, prior to the charges arising from Mr Savage’s death, being in 1993.
[34] In explanation for your offending you told the author of the pre-sentence report that had panicked, and your real concern was your son’s wellbeing and what could happen to him. You stated that you loved your brother in-law but described him as a very angry man and one who was difficult to get on with at times. You expressed what is described as your extreme sense of loss and remorse for Mr Savage’s death.
[35] The pre-sentence report also states that you have a close and supportive relationship with your wife and your children. In discussing the events that led up to Mr Savage’s death, both your wife and you described a dysfunctional family relationship between your immediate family and your wife’s siblings.
[36] The address where you live in Kawerau with your wife and adult members of your family and grandchildren is assessed as suitable for electronic monitoring. All other adult occupants of the house have acknowledged and consented to you residing at the address subject to an electronically monitored sentence.
[37] I note that you were bailed on a 24-hour curfew for a period of what now is over 18 months, with a non-association condition as regards your son James.
Discount for guilty plea
[38] The Crown has submitted that as you pleaded guilty to this charge on the morning of the trial no allowance for your guilty plea ought to be made. In sentencing you, as a mitigating factor I must take into account whether and when you pleaded guilty.21 On this point, the Supreme Court has said:22
Parliament has, in this provision, confirmed that a guilty plea may legitimately contribute to a reduction in the severity of the sentence and that an earlier plea should generally in that respect carry greater weight than a later one.
[39] The reason that the Court gives credit for a guilty plea is to facilitate the effective operation of the criminal justice system. It also serves a valuable social utility, saving witnesses from having to participate in a trial. However in your case, the guilty plea was only entered the day before trial, in circumstances where the prosecution case against you was compelling, as you had yourself admitted that you had lied to the Police. The circumstances of your plea are also relevant, as it was entered when your trial on the murder charge was about to commence and the charge of attempting to pervert the course of justice being heard along with that charge was no doubt considered to be disadvantageous to your defence on the more serious charge. Your counsel has realistically not sought any discount for your guilty plea in his written submissions, and I do not consider that any discount is warranted on account of your guilty plea.
Time spent on restrictive bail
[40] Appellate guidance states that:23 “compliance with a restrictive bail régime … can be taken into account in mitigation of sentence”. It is up to the sentencing judge to evaluate all the relevant circumstances. The Court of Appeal has said that the inquiry is into:24 “whether the bail conditions themselves are so restrictive as to equate
21 Sentencing Act 2002, s 9(2)(b).
22 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [50].
23 R v Nepe [2008] NZCA 98 at [33]. See also: R v Cristia [2008] NZCA 19; R v Tamou [2008] NZCA 88 at [18].
24 R v Gray [2008] NZCA 224 at [14].
with a remand in custody”. If I consider that your “freedom of movement has been significantly infringed as a result, [I have] a discretion to reduce the starting point. But the discretion is to be exercised with care, and [it is] not automatic”.25 I may also reduce the length of a non-custodial sentence to make due allowance for time spent on these restrictive bail conditions.26
[41] A reduction equating to less than half the time spent on EM bail where restrictive conditions are imposed has been held to be an appropriate discount.27 And the Crown submits that reductions for lengthy periods spent on EM bail prior to sentence can warrant discrete reductions of sentence by between 40 and 60 per cent, and the Crown acknowledges that in your case a discrete discount is appropriate. I note that when considering a discount for time spent on EM bail, there:28
…is no rule as to how much discount (if any) should be given. The level of discount is left to the Judge's discretion. No arithmetical formula should be applied.
[42] While you were not on electronically monitored bail, the approximately 18 months, or now at least a month more, you spent was on very restrictive terms with a 24-hour curfew and condition prohibiting you from associating with your son, is a significant level of restriction. The restrictive nature of you bail conditions were not significantly different in your case to the effect of EM bail restrictions or a sentence of home detention, albeit that you were not electronically monitored. I also note that you spent a month in custody immediately following your arrest in October 2019.
[43] I shall accordingly allow a discount of nine months, or approximately half of the time you have spent subject to restrictive bail, which is a discount of approximately 40 per cent of the 22 month starting point that I have adopted. This discount also takes account of the one month you spent in custody following your arrest.
25 At [14].
26 See: Whitehead v Police [2021] NZHC 734.
27 Simon France (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA9.23A].
28 Chea v R [2016] NZCA 207 at [110] citing R v Faisandier CA185/00, 12 October 200 at [28]; R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; and Keown v R [2010] NZCA 492 at [12].
The appropriate sentence
[44] Applying the nine month discount to the starting point of 22 months’ imprisonment reduces the adjusted starting point to 13 months’ imprisonment. This is a “short-term” sentence of imprisonment.29 Your sentence is therefore well within the range where a sentence of home detention,30 or a less restrictive community-based sentence may be imposed.31
[45] I am required to impose, as I have said, the least restrictive sentence that is appropriate in the circumstances.32 That sentence must, however, meet the sentencing purposes of holding you accountable, denunciation, deterrence and community protection.33 I am satisfied that a community based sentence is appropriate in your case. You have already spent a lengthy period on restrictive bail conditions and, as I have noted, you have also spent a month in custody following your arrest in October 2019, and I am satisfied that you have already effectively served the punitive element of any sentence that I would otherwise impose, and no further term of detention, being imprisonment, home detention, or community detention as such, is necessary or justified. I am satisfied that there is no reason why you not now be released into the community subject to what I am about to say.
[46] The pre-sentence report says that you and your wife have a close and supporting relationship which extends to and includes your adult children and the grandchildren living with you. It is also clear from the pre-sentence report that you have adopted a positive and constructive approach to the consequences of your offending. You have expressed your willingness to undertake appropriate rehabilitation counselling and programmes to assist you in dealing with the grief you feel from the loss of your brother in law, Mr Savage, and the report recommends that that as a special condition of your sentence you be directed to attend the Waiariki Whānau Mentoring programme.
29 Parole Act 2002, s 4(1).
30 Sentencing Act 2002, s 15A.
31 Section 15.
32 Section 8(g).
33 Section 16(2).
[47] I agree with the pre-sentence report writer, that a sentence of supervision is appropriate in your circumstances. I am satisfied that a sentence of supervision will reduce any likelihood of further offending and promote your rehabilitation and reintegration and hold you accountable for your offending.34 I will also impose a concurrent sentence of community work, as the nature and circumstances of your offending, which interfered with the proper administration of justice, make it appropriate for you to be held accountable to the community and making a contribution to it in the form of community work.35
[48] The end sentence that I will impose on you is one of 12 months’ supervision, coupled with 150 hours of community work.36 As a special condition of your supervision, I direct that you are to attend and complete the Waiariki Whānau Mentoring programme, and any other counselling or programme as directed by your Department of Corrections Probation Officer.
Sentence
[49]Mr McFarlane would you stand please.
[50] On the charge of wilfully attempting to pervert the course of justice, you are sentenced to 12 months’ supervision, and to 150 hours’ community work. I direct as a special condition of your supervision that you are to attend and complete the Waiariki Whānau Mentoring programme, and any other counselling or programme as directed by your Department of Corrections Probation Officer.
[51]You may stand down.
Paul Davison J
34 Section 46.
35 Section 56(1)(a).
36 Section 19(4).
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