R v N HC Auckland CRI 1999-055-65692

[2010] NZHC 1982

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PRISONER AND VICTIM

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-1999-055-65692

THE QUEEN

v

N

Charges:         Attempting to procure murder (2) Plea:  Guilty

Appearances: K J Glubb and N A Speir for Crown

M E Jenkins for Prisoner

Sentenced:     9 November 2010

3 years imprisonment on each count (terms concurrent)

SENTENCING NOTES OF RODNEY HANSEN J

SOLICITORS

Meredith Connell (Auckland) for Crown

Megan Jenkins (Pukekohe) for Prisoner

R V N HC AK CRI-1999-055-65692  9 November 2010

Introduction

[1]      You appear for sentence on two charges of attempting to procure murder.  On one of those charges you pleaded guilty in this Court.   On the other charge you pleaded guilty on 19 August in the Papakura District Court and have been committed to  this  Court  for  sentence.    The  charges  carry a maximum  penalty of 10 years imprisonment

Facts

[2]      I deal first with the factual basis on which I sentence you.

[3]      You moved to Brunei in 1988 to take up a position as a teacher, leaving your then wife and two sons in New Zealand.  You continued to support your family and visited New Zealand regularly.   In 1995  you learned that  your wife was seeing another man and that led to a rapid and significant deterioration in your relationship. Your reaction was such that she obtained protection orders against you, but you continued to maintain contact and to make regular visits back to New Zealand.

[4]      In late 1997 you approached a man named Sam Heke at the Auckland District Court and asked if he knew of anyone who would, to quote the police summary, "do his wife over".  You told him you would have plenty of money to pay him once your wife  was  dead.    Two  days  later  you  met  with  him  and  supplied  him  with  a photograph of your wife, details of her movements, and a sketch plan of the family home.  You specified how you wanted the death to appear and you told Mr Heke that you would pay him $25,000.  After that initial contact you left New Zealand.

[5]      On a subsequent visit back around the middle of 1998 you again attempted to contact Mr Heke.  Believing that he was in prison, you made contact by telephone with his partner, Marjorie Edwards.  You met with her and told her that you wanted your wife killed.  You showed her around the area of your home, indicating possible escape routes.  You stated to her that you wanted your wife beaten and stabbed and that you would pay her $20,000.

[6]      For reasons which are not explained in the summary of facts those contacts came to nothing.   Then on 3 May 1999 you approached Ropati Falaniko at the Otahuhu District Court.  You offered him a ride home.  Once he was in the car you asked him if he wanted some work.  You told him that you wanted him to kill your wife.  You gave him a photo of her, an internal sketch of your home on which you jotted down her weekly movements, and you gave him a contact number in Brunei. You told him how you wanted the death to appear and that you would pay him

$10,000 for completing the job.  I understand from what Mr Glubb has said today that your offending came to the notice of the police when Mr Falaniko's flatmate informed them of what had happened.

Personal circumstances

[7]      You are a man of 62 years of age.  You emigrated to New Zealand from Fiji in 1970.  You obtained a degree in economics in 1973, married your former wife and had two sons.

[8]      To the probation officer you reported amicable relationships with your sons, something that I will speak further of a little later in my sentencing remarks.  You maintained contact with your family after moving to Brunei.   They visited you at least three times a year until 1995.

[9]      In 2007  you met and married  your present wife, a Filipino woman with whom you have a two year old son.  They are currently residing in the Philippines and are financially dependent on you.   Your hope, once your sentence has been completed, is to return overseas and to resume your former profession as a teacher.

[10]     To the probation officer you describe yourself as mentally disturbed at the time of the offending.   You say your wife was never in danger.   There is some support for the contention that at the time of this offending you were in a depressed state.  I have had the benefit of reading a letter from a psychiatrist whom you saw over the period 1997-2000 in Kazakhstan where you were working.  It is significant, however, as Mr Glubb has pointed out, that over the period of the offending you were in fact actively undergoing treatment for your depression.

[11]     Your life since 1999 has from all accounts been free of any kind of offending. As the probation officer commented, you have the necessary skills and support to re- build your life following your release from prison.  You are assessed as at low risk of re-offending.

[12]     You have two previous convictions for common assault and a charge of procuring a person to rape your wife for which you were sentenced to a suspended term of imprisonment of one year in 1996.  It is important that I emphasise, however, that, although pleading guilty to procuring a man to rape your wife, no rape in fact eventuated.  He went to the house where your wife was living and assaulted her for some 15 minutes but it appears that there was no sexual element ultimately to the attack.

Aggravating features

[13]     It is accepted that the aggravating features of your offending include the significant level of premeditation shown by your actions; and the fact that the offending was persistent and took place over a lengthy period of time with, as Mr Glubb has said, a somewhat sinister progression from what had occurred in 1996. It is also accepted that your wife was completely unaware of the danger she was in and as a consequence vulnerable to harm had those you approached gone through with the plan.  What is now clear, however, and I will return to this aspect of your sentence in more detail later, is that there has been no lasting harm to your wife as a result of what happened.

Starting point

[14]     I now need to give consideration to what is the appropriate starting point for sentencing purposes and, as offending of this nature is fortunately quite rare, it is necessary for me to give some consideration to the few cases in which the courts have imposed sentences.

[15]     The first of them is a case called Apostolakis[1] in which the Court of Appeal said that it is not appropriate to set sentencing levels for this sort of offending as circumstances can vary dramatically from case to case.  In that case the court upheld a suspended sentence of 18 months which had been reached after allowing for a guilty plea and previous good character.   That was also a case of a jealous and embittered husband who attempted to arrange for an undercover police officer, as it turned out, to shoot his  wife and her new partner for which the appellant was prepared to pay $2,000.

[1] R v Apostolakis CA227/96, 26 February 1997.

[16]     The next case is Smith[2] where the Court of Appeal upheld a sentence of four- and-a-half  years imposed after the appellant was found guilty after trial of two counts of attempting to procure murder, two counts of threatening to kill, and one count  of  threatening  to  do  grievous  bodily  harm.    That  was  a  case  in  which, following the breakup of his marriage and the loss of access to his children, the appellant became bitter and hostile to his wife and his mother-in-law.  He threatened to kill both on several occasions, threatened his wife's lawyer with grievous bodily harm, and then subsequently approached a friend and asked him to kill his wife and her mother.  Over a period of two months or so he took a number of steps to advance his plan including offering to meet the costs of a weapon, proposing a reward of

$25,000, and providing details of the layout of the house.   The plan was not implemented because the person he had approached became concerned and informed the police.  In that case the Court of Appeal discussed the extent of premeditation and put some weight on the fact that the plan was not abandoned by the appellant but by the actions of the person whom he had approached.

[2] R v Smith CA256/97, 19 February 1998.

[17]     The final case I want to refer to is that of Patel.[3]     Again this is a case involving a man who was convinced that his wife was having an affair.  He plotted to kill the man he suspected she was involved with and made threats to kill both him and his wife.   He gave a police informant detailed instructions on what to do and how he could do it.   The offending was brought to an end again when the police intervened.  In that case a starting point of four-and-a-half years imprisonment was

seen as appropriate and the final sentence on all charges was five years.  In adopting the starting point of four-and-a-half years Venning J saw the facts as not dissimilar to those in Smith.  He uplifted the four-and-a-half years by six months to take account of previous convictions for violence against family members.

[3] R v Patel HC Auckland CRI-2004-404-014009, 4 April 2007.

[18]     Having regard to those authorities the Crown submits that I should adopt a starting point of between four and five years for a single charge, with a starting point to reflect both charges of between five and six years.   Ms Jenkins argues that the starting point for the totality of the offending should be four-and-a-half years on the basis that your culpability is generally equivalent to that of Mr Patel.

[19]     All of these cases provide helpful guidance but none are on all fours with the facts which confront me.  The duration of your offending and the repeated attempts that were involved, in effect three separate attempts, make it more serious than the cases I have referred to.  Against that there was only one intended victim, unlike in Smith and Apostolakis, and there were no associated threats to kill as there were in Smith and Patel.

[20]     It is not clear to me whether there was a serious intention on your part to put the plan into action.  No money ever changed hands.  No weapon was ever procured. Things seemed to fizzle out without anything happening.  That is in contrast to Smith and Patel where the offending ceased as a result of police intervention.  There are some indications in my mind that this was an elaborate role play in which you acted out your feelings of anger and betrayal.  However, that is necessarily speculative.  I must sentence you on the basis of your conduct and not on the basis of conjecture as to where it might have led.

[21]     The final point of distinction between your case and those that I have referred to is that there were no direct threats to your wife and there has been no harm done to her either in the short or the long run as a result of your offending.

[22]     Having regard to all of those considerations it is my view that a starting point of five years adequately reflects the totality of your offending.   It is accepted by Ms Jenkins, your counsel, that an uplift is required to take into account the previous

offending involving your wife.  There is pretty much a consensus between the Crown and your counsel that the appropriate adjustment that should be made on that account is one of 12 months imprisonment.   I consider that is appropriate.   It is a serious aggravating factor that you should have embarked on further elaborate plans to harm your wife after earlier subjecting her to the terrifying experience of a home invasion and what was from all accounts quite a brutal assault by the man whose assistance you had solicited.

Mitigation

[23]     Those considerations take me to a sentence of six years imprisonment and what is required now is for me to consider the extent to which that should be reduced to take account of mitigating factors.

[24]     As both counsel have acknowledged, this is arguably the most difficult aspect of the sentencing exercise because, as I will come to elaborate, you enjoy an extraordinary level of support from your former wife and your two sons and they have written moving testimonials to your good character and to their wish that I should be merciful in the sentence which I impose.

[25]     The letters from your sons show that you have retained their affection and goodwill despite what has happened.   I have read the letters from  your former employers and colleagues which show that you are held in high esteem for your professionalism as a teacher.  I have read your own letter in which you express deep remorse and have told me something about your work including your voluntary work in overseas countries.   It is clear that whatever happens this sentence is going to cause hardship to your present wife and your son who are struggling financially in the Philippines, although I note that to the enormous credit of your former wife she has taken steps to ensure that they are financially supported while you are in prison.

[26]     In the victim impact statement submitted on behalf of your former wife and in the letter which is attached to it she has made a particularly eloquent plea for leniency.  She says that since the offending you and her have maintained a healthy and friendly relationship.  Your younger son has visited you overseas.  Both of your

sons and your wife have visited you while you have been in prison.  She says that she has no reason to fear for her safety.  You have left her completely alone.  You have both moved on in your lives.  She supported you when you remarried.  She was very happy that you should build a new life.   She has a healthy relationship with your  present  wife and  son  and,  as  I mentioned,  she  and  your  younger  son  are supporting your present wife and child financially.  Your former wife explains how it is that a sentence of imprisonment will carry with it a significant social stigma which will cause distress to her and to your sons, particularly because of its impact in the Indian community.

[27]     Her views, which include a request that I pardon you, are to be accorded the greatest weight.   Unlike many of the victims who make pleas of this sort to this court, she is a mature, intelligent and, if I may say so, highly erudite and impressive woman.  I acknowledge her presence and the presence of your sons in court today to support you.  I note her achievements in her own right over the last 15 years or so which include honours for services to the Indian community and appointment as a Justice of the Peace.

[28]     I do not have the presidential power to pardon you.  But I am in a position to give as much effect as I can to the pleas of your family consistent with the public interest and the requirements of the sentencing laws.  The views of victims may be taken into account, although they can never be allowed to dictate sentencing, and they should never outweigh public interest considerations.  But in cases in which a significant period of time has passed since the offending and an offender has shown that  he  has  turned  his  back  on  the  sort  of  offending  for  which  he  appears  for sentence, it is well established that proper recognition should be given to that in the sentencing process.

[29]     That principle is discussed in the Court of Appeal case of Goodwin[4] in which there is reference to an earlier case of Carruthers, a decision of a Full Court of the Court of Appeal where it was said that: [5]

... where in the years that have intervened the offender has demonstrated that he has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised.

[4] R v Goodwin [2008] NZCA 357.

[5] R v Carruthers CA401/94 10 April 1995,at 4.

[30]     The  Court  went  on  to  say  that  the  reason  for  this  is,  and  this  was acknowledged by Mr Glubb in his remarks, that in such circumstances:[6]

... events have shown that one of the objectives of sentencing, deterrence of the specific offender, is unnecessary.  The man to be sentenced today is not the same man who committed the offences.  Moreover, the interests of a new family unit, or other children, may need to be considered.

[6] Ibid, at 5.

[31]     Both of the factors referred to in that passage have application in your case. You are clearly not the man that you were 10 or 12 years ago when this offending occurred and when I accept you were in something of a disturbed mental state.

[32]     I  can  also  make  allowance  for  the  fact  that  this  sentence  will  have  a significant impact on your wife and young son.

[33]     Giving as much weight as I can to those considerations, I consider that the six year term  that  I have  reached  can  appropriately be reduced  by 18 months  to  a sentence of four-and-a-half years before I consider the further discount which must be imposed for the guilty pleas that you have entered.

[34]     There is no question that the plea of guilty that you entered on 19 August in the District Court at Papakura was entered at the earliest opportunity and that you are entitled to a full discount of 33⅓% under the principles of Hessell[7]  for the entry of that  plea.    There  has  been  some discussion  in  the  course  of  submissions  as  to whether the same discount can be applied in respect of the plea of guilty that you entered in this Court on 6 October.   That was entered at the first callover in this

[7] Hessell v R [2010] 2 NZLR 298 (CA).

Court and on a strict application of Hessell principles would attract a discount of

20% only.  On that basis the Crown's initial position was that an overall discount of

25% would be appropriate.

[35]     However, having had explained to me by Ms Jenkins the reason why there was a delay in entering a plea to that second charge, I am satisfied that the full discount should be applied in respect of both charges.   To state the reasons very shortly, it appears that you received erroneous advice from your then counsel which indirectly was responsible for a failure to enter a plea to the second charge at the earliest opportunity.

[36]     On that basis the sentence that I propose to impose is one of three years imprisonment, which is the four-and-a-half years less one-third to take account of your guilty pleas.

Name suppression

[37]     There is a further matter which I need to consider and that is the question of name suppression.

[38]     As I mentioned, the fact of your being sentenced to a term of imprisonment, should it become known in the Indian Community, will carry with it a significant social stigma that will bring considerable additional distress to your former wife and to your sons.   For that reason the Crown has sought, and obviously your counsel supports, an order for the suppression of your name in order to protect the victim and other family members.

[39]     I  consider  that  such  an  order  is  appropriate  and  I  will  make  an  order accordingly.

Result

[40]     The sentence that I impose on you on both charges of attempting to procure murder is one of three years imprisonment, to be served concurrently.

[41]     I make an order suppressing publication of your name and the name of the victim and of any particulars likely to lead to your identification.  You may stand down.