R v McFarlane

[2021] NZHC 1332

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-087-0226

[2021] NZHC 1332

THE QUEEN

v

JAMES MCFARLANE

Hearing:	4 June 2021
Appearances:	D McWilliam for the Crown S Franklin for the Respondent
Judgment:	4 June 2021

SENTENCING NOTES OF POWELL J

R v MCFARLANE [2021] NZHC 1332 [4 June 2021]

[1]        James McFarlane, you come up for sentence today on one charge of wilfully attempting to pervert the course of justice.1

The offending

[2]        You were charged because of statements you gave to Police after the death of your uncle, Thunder Savage. Your father and Mr Savage were temporarily staying with you and the rest of the whānau in Edgecumbe.

[3]        At about 8 am on 2 October 2019, your father and your uncle got into an argument. As the argument escalated, you were woken up. You found your father trying to force himself into the family home as your uncle had shut him out. You and your uncle then started fighting. While you were fighting, your father stabbed your uncle below the left armpit with a large knife. Shortly afterwards your uncle collapsed, unresponsive and bleeding, from the stab wound.

[4]        Police and an ambulance arrived but Mr Savage could not be revived. You approached the Police and handed over the knife that your father had used.

[5]        When interviewed by the Police that day, you said Mr Savage had fallen on the knife during the struggle that occurred between him, yourself and your father. You said that you noticed the blood when you and your uncle ended up on the ground but that you had no idea exactly how he received the stab wound. A few weeks later, on 23 October 2019, you asked to speak to the Police again. This time you told them you had “left out some critical information” and that everything you said earlier was true apart from “how he got stabbed”. The present charge resulted.

Approach to sentencing

[6]        Sentencing you today is a two-stage process.2 First, I must fix the starting point this type of offending would attract. This involves identifying the aggravating and mitigating features of your offending, the matters that make your offending more or less serious, which enables me to arrive at an appropriate term of imprisonment. I

1      Crimes Act 1961, s 117(e). Maximum penalty seven years’ imprisonment.

2      Moses v R [2020] NZCA 296.

must decide whether this starting point should be adjusted for totality considerations so that the overall offending is relative to the term of imprisonment. I must then at the second stage take into account any of your personal circumstances that are relevant, including your guilty plea. I must determine whether the starting point should be adjusted through uplifts or discounts as a result of those personal circumstances.

[7]        In sentencing you today, I must have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. This Court must impose a sentence that holds you accountable, denounces your conduct and deters you and others from committing similar offences. I must further consider the gravity of your offending, your degree of culpability, and the seriousness of your offending. In addition, I note the desirability of consistency with appropriate sentencing levels and, most importantly in this case, I should impose the least restrictive sentence that is appropriate in the circumstances.

Starting point

[8]        In setting the starting point, I note there is no guideline judgment for sentencing attempts to pervert the course of justice. This is because the circumstances which this type of offending entails vary greatly, which means it is not particularly helpful to compare the facts of your case to other cases.3 Traditionally, the courts have found 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.”4 That said, it is accepted a non-custodial sentence can be appropriate in less serious cases.5 When fixing the starting point, a court must focus on “the intention behind the attempt and on its potential effect.”6

[9]        As Mr McWilliam noted on behalf of the Crown, unlike some others who have been charged with this kind of offending, you did not try and intimidate a witness or destroy evidence.7 Instead, you attempted to divert or mislead the Police inquiry by

3      See Deane v R [2011] NZCA 60 at [14].

4      R v Churchward CA439/05, 2 March 2006 at [14].

5      See R v Clutterbuck CA372/99, 17 November 1999 at [12].

6      M (CA469/2013) v R [2013] NZCA 385 at [11].

7      In Hamiora v Police [2013] NZHC 98 at [27], it was observed that witness intimidation cases tend to receive higher starting points, with destruction of evidence cases attracting “significantly lower” starting points.

claiming that your uncle fell on the knife that he was holding and this caused the fatal wound. You obscured the truth and caused delays in the investigation and indeed misdirected that investigation. By the same token, it was also you who ultimately revealed what had happened when you came forward a few weeks later and admitted that you had not told the truth. Eventually, matters were resolved when your father confessed to the Police in late November. I accept, as Mr Franklin submitted in his written submissions, that you wanted to protect your father out of a misguided sense of loyalty. You told the writer of the PAC report that the whole situation surrounding your uncle’s death was traumatic for you and you were deeply concerned your father was going to get into trouble. Although your actions were not lawful, they were understandable at least to a degree.

[10]      As a result, I agree with counsel that your offending was at the less serious end of the spectrum. Courts tend to adopt starting points of 18 months to two years in these cases.8 Taking into account the need to denounce your conduct and deter others from committing similar offending, I set the starting point at 18 months’ imprisonment.

Personal factors

[11]      There are no personal factors that make it necessary to raise this starting point. Your convictions, as Mr McWilliam has noted, are neither major nor relevant to the charge I am sentencing you on today.

[12]      In terms of personal factors that mitigate your offending, I am satisfied that you should be allowed a discrete discount for your remorse over and above that that is already implicit in your guilty plea.9 It is apparent from both the PAC report and the Cultural Report that you feel genuinely remorseful and indeed ashamed at what occurred. You have acknowledged this poor decision-making that led to your offending. You have apologised to the Police, and you also have said that you have learnt from this experience and are prepared to take full responsibility by accepting any punishment that you are given. This should be taken into account, especially

8 At [26].

9      See Sentencing Act 2002, s 9(2)(f). A discount for remorse is available when the expressed remorse is genuine and goes beyond mere acceptance of responsibility through entering a guilty plea: Hessell v R [2010] NZSC 135 at [64].

against the background of your offending – which as I have noted occurred because you said you “freaked out” about your father getting into trouble but voluntarily came forward with the truth after you had some time to reflect. Taking these matters together, I consider a discrete discount of 10 per cent is appropriate.

[13]      Furthermore, you are entitled to a discount for your guilty plea. Mr McWilliam notes that the plea was entered over a year after you were charged but acknowledges it was entered shortly after you had a change in counsel. Given this, and what I have already said about your acceptance of responsibility, I find a discount of 20 per cent to be appropriate.

Appropriate sentence

[14]      Applying these discounts and rounding them brings your sentence down to  14 months’ imprisonment. This is what is known as a short sentence of imprisonment. It means I am able to consider a community-based sentence, that is a sentence of home detention or community detention instead of imprisonment, and Mr McWilliam has accepted that such would be appropriate in this case. Because in a short sentence offenders are released after serving half their sentence, it is customary to halve the end sentence if either home detention or community detention is imposed.10 Halving the term of imprisonment I just calculated would mean a final sentence of seven months’ home detention.11

[15]      This is the sentence I would have ordinarily imposed on you today. However, as you have heard me discuss at length with counsel, I consider it to be important to acknowledge the lengthy period you have already spent in detention as a result of this offending. After you were charged you spent just on two months in custody. You were then released on bail on 27 November 2019, and thereafter subjected to a 24 hour a day 7 day a week curfew, with only specific exceptions made to those conditions until that curfew was relaxed (I think) last month. In total, it is accepted that you have spent about 18 months on what were generally strict conditions with no recorded breaches of bail.

10     See Burton v Police [2017] NZHC 664 at [29].

11     Community detention would be unavailable as the maximum term of community detention a Court can impose is six months: Sentencing Act 2002, s 69B(2).

[16]      How much weight an offender’s time on bail is given in sentencing is a matter of judicial discretion. It is not uncommon for courts to give a discount of up to 50 per cent of the time an offender spent on EM (electronically monitored) bail.12 In Parata v R, the Court of Appeal rejected a standard one-for-one credit could be given for time on EM bail as it is for home detention.13 The primary rationale for this appears to be a concern where bail restrictions were not otherwise equivalent to detention.

[17]      In this case, I am satisfied that the restrictions on your bail were clearly more onerous than would have been the case if you had been sentenced to a term of community detention and were in fact very close to what would have been applicable in a sentence of home detention, notwithstanding the lack of electronic monitoring. It is therefore apparent that the 18 month restrictive bail on its own far exceeds the community based sentence that I have indicated would have otherwise been appropriate, even without taking into account the two months that you have spent in custody – which in a short sentence effectively amounts to a further four months’ imprisonment.

[18]      In reaching this conclusion, I have carefully considered the submissions of counsel that you have heard this afternoon. Having heard those submissions, I am unable to see any principled basis for concluding that the time that you have spent on restrictive bail should not be given appropriate credit.14

12     Hall v R [2020] NZCA 183 at [37]. Time on EM bail is also a mandatory consideration under the Sentencing Act 2002, s 9(2)(h).

13     Parata v R [2017] NZCA 48 at [10]-[14].

14     As I noted in R v Walker-Haturini [2021] NZHC 1208 at [24].

“While I am conscious that New Zealand courts have not typically seen restrictive EM bail as valuable if it occurs before sentence as afterwards, I cannot see the basis for any such distinction where it involves the same restrictions on the liberty of the defendant. In the absence of any principled basis for concluding that the same type of detention magically becomes four times more valuable if it occurs after conviction than while awaiting trial, it should be appropriately credited in terms of the nature of the detention that has been imposed. It is important as the courts embrace Te Ao Mārama that we are fully transparent, consistent and fair in the application of credits for this type of detention. In my view, this means crediting pre-conviction detention for restrictive or EM bail in the same way as an electronically monitored community-based sentence unless good reasons exist for not doing so. This is particularly important in circumstances where defendants have spent more time on restrictive and EM bail awaiting trial as a result of delays caused by the Covid-19 pandemic.”

(footnote omitted)

[19]      Likewise, I have considered Mr McWilliam’s submission that it may be appropriate to sentence you to four months in prison. Given the time that you were remanded in custody, that would effectively mean you would be released once you arrived at prison on the basis of time served. The problem with that, as I discussed with Mr McWilliam, is it would mean that the 18 months’ restrictive bail that you also served would be worth only the equivalent of three months’ home detention. As I discussed with Mr McWilliam, it is difficult to see how this can possibly be a fair outcome when, as I have noted, I am satisfied you have already served more than the sentence that I could reasonably impose in this case.

[20]      As a result, I am satisfied that you have already served the punitive element of any sentence that I can impose today, and no further term of detention (whether imprisonment, home detention or community detention) is required, is necessary or can be otherwise justified.

[21]      On the contrary, I cannot see any reason why you should not be released into the community. The very positive PAC report has detailed how you moved away from alcohol and drugs and severed your gang connections that you had in your youth. The report makes clear that you have used the time you have spent in the course of your detention to reflect on what you have done and why it was wrong. This has led you to reengage with your church and to recommit to your family, especially your wife and your young daughter, to whom there is no doubt you are a “hands on, loving father”. You have supportive role models in your life and I note you now have a thirst to rediscover your Māori identity. Despite that, as you have heard Mr Franklin submit on your behalf, it is accepted by you that a sentence of six months supervision would be of assistance to you to place some more structure around your life and to ensure that you are able to attend further courses as may be necessary and to ensure that the progress that you have been making over the last couple of years is continued. On that basis, I accept that such a sentence would be both appropriate and necessary. On the basis of the submissions that have been made in the reports that I have read, I consider I can have considerable confidence that with the assistance of a period of supervision you will continue with the good progress you have been making and will go on to find employment, which you have obviously not been able to do while the proceedings were going on.

Sentence

[22]Mr McFarlane, please stand.

[23]      For the reasons I have outlined in my sentencing notes today, on the charge of wilfully attempting to pervert the course of justice to which you have pleaded guilty you are convicted and sentenced to six months’ supervision.

[24]You may stand down.

Powell J