R v Thomas
[2013] NZCA 133
•7 May 2013
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA461/2012 [2013] NZCA 133 |
| BETWEEN THE QUEEN |
| AND EDWARD ZBEDO THOMAS |
| Hearing: 19 April 2013 |
| Court: Randerson, Harrison and Stevens JJ |
| Counsel: M D Downs for Appellant |
| Judgment: 7 May 2013 at 11:00am |
JUDGMENT OF THE COURT
AThe appellant is granted an extension of time to appeal.
BThe appellant is granted leave to appeal and the appeal is allowed.
CThe sentences imposed on the respondent in the District Court on 19 May 2011 of four years imprisonment for aggravated burglary and arson are quashed.
DA sentence of five and a half years imprisonment is substituted on each of the aggravated burglary charges and on the charge of arson.
EThe sentence of one years imprisonment on the charge of assault with a weapon is undisturbed.
FAll sentences are to be served concurrently.
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REASONS
(Given by Randerson J)
Introduction
This appeal against sentence by the Solicitor-General raises a novel question. The respondent, Mr Thomas, was charged along with three other men, with aggravated burglary, assault with a weapon and arson. He received a significant discount when sentenced in the District Court on the basis of his agreement that he would assist the police in the prosecution of his co-offenders. As matters transpired, Mr Thomas did not provide the assistance he had promised. The issue is whether this Court should increase the sentence on a Solicitor-General’s appeal on the ground that the sentence was manifestly inadequate.
Background facts
In the early hours of the morning of 10 April 2010, a group of offenders broke into an apartment in an Auckland suburb. They did so for the purpose of retrieving a cellphone which they thought had been stolen from one of their friends. The victim was awoken by the sound of the front door breaking. He confronted the intruders, armed with a baseball bat. According to the victim’s evidence, one of the men in the group swung a machete at him, striking him in the arm with the side of the weapon. The victim was able to escape without further injury. The offenders took a number of items from the apartment which was later set alight and badly damaged. The cost of repairs amounted to nearly $60,000.
When interviewed by the police on video on 16 April 2010, Mr Thomas admitted it was he who had kicked down the door of the apartment. He denied taking any weapons to the address but admitted picking up a pole from inside the apartment. He also admitted lighting the fire.
Mr Thomas and the three other men (Messrs Tagica, Langi and Holani) were all charged with aggravated burglary (two counts), and assault with a weapon. Initially, all four were also charged with arson but the prosecution on that charge ultimately proceeded against Mr Thomas alone.
The sequence of events thereafter is best described in the form of a chronology:
26 October 2010 Mr Thomas pleaded guilty to all the charges except arson.
4 March 2011 Mr Thomas’ lawyer (Mr D J Young) contacted Mr E J McCaughan, a solicitor appearing for the prosecution. Mr McCaughan was advised that Mr Thomas was willing to provide a statement testifying against his co-defendants but he wished to deny the arson charge.
8 March 2011 Mr Young and Mr McCaughan spoke again and agreed that any meaningful assistance would require Mr Thomas to be a prosecution witness.
9 March 2011 Mr Thomas was re-interviewed and made a statement to the police in which he stated that, on the night in question, he was accompanied by the three co‑offenders and that Mr Tagica was armed with a machete. Contrary to his initial statement to the police, he said it was Mr Holani who had lit the fire.
16 March 2011 Mr McCaughan advised Mr Young that the Crown would still pursue the arson charge against Mr Thomas but the Crown position at sentencing would be that Mr Thomas would be entitled to a credit of up to 60 per cent on the other charges on the basis of a guilty plea and his indication he was willing to assist police in the prosecution of the co-offenders. Mr McCaughan also told Mr Young that he was prepared to acknowledge that Mr Thomas had offered to make a second statement as far back as October 2010.
21 March 2011 At a call-over in the District Court, Mr McCaughan spoke again with Mr Young. He reiterated what he told Mr Young on 16 March and added that if Mr Thomas pleaded guilty to the arson charge, it was the prosecution’s view that he would be entitled to a full credit for his guilty plea on that charge since the only evidence available to the Crown was Mr Thomas’ own admission that he had committed the arson. After obtaining instructions, Mr Thomas was arraigned later the same morning and pleaded guilty to arson.
13 May 2011 Mr McCaughan prepared a confidential sentencing memorandum for the Judge outlining the assistance which Mr Thomas had offered to the prosecution. This contained a submission that a total reduction of sentence in the region of 60 per cent would be an appropriate reflection of the significance of Mr Thomas’ guilty pleas and assistance.
19 May 2011 Mr Thomas and Mr Holani were sentenced by Judge David Wilson QC.[1] We refer to the sentence in more detail below but the Judge gave Mr Thomas an overall credit of around 60 per cent from a starting point of nine years. This resulted in a final sentence of four years imprisonment.
[1] R v Holani DC Auckland CRI-2010-004-9420, 19 May 2011.
27 February 2012 Mr Tagica pleaded guilty to a charge of aggravated burglary but disputed that he was carrying a machete.
9 July 2012A disputed facts hearing was conducted before Judge Wade in relation to Mr Tagica. The victim confirmed that he had been struck with a weapon similar to a machete but accepted in cross‑examination that he could have been mistaken about that. He did not know any of the offenders but gave a description of one of them. He later identified Mr Tagica as the person he believed had the machete.
Mr Thomas was uncooperative at the disputed facts hearing. Initially, he refused to be sworn and was warned by the Judge that he could be imprisoned for contempt. He was later declared hostile when he refused to give evidence in accordance with his statement of 9 March 2011. Contrary to that statement he denied Mr Tagica had the machete and maintained that it was he (Mr Thomas) who was carrying it. He named Mr Tagica as one of the group that had gone to the apartment on the night in question but denied any knowledge of the names of the other offenders. He said he had blamed Mr Tagica for taking the machete in his 9 March 2011 statement because he thought the others had “snitched” on him. He said it was he (Mr Thomas) who had struck the victim on the arm with the machete.
30 July 2012 Mr Langi pleaded guilty to aggravated burglary.
30 July 2012 The Solicitor-General filed the appeal against the sentence imposed on Mr Thomas.
31 August 2012 Judge Perkins sentenced Mr Tagica and Mr Langi on one charge of aggravated burglary on the basis that neither was in possession of any weapons at the time. Judge Perkins noted that, on the basis of the conflicting evidence at the disputed facts hearing, Judge Wade had discounted the presence of a weapon.
The sentencing hearing before Judge Wilson QC
Mr Thomas was sentenced before the disputed facts hearing at which he reneged on his statement of 9 March 2011. We have the advantage of Judge Wilson’s sentencing notes and a memorandum he provided to this Court at our request. Mr Thomas was sentenced on the basis that he was responsible for kicking down the door of the apartment, grabbing a metal pole from inside the apartment to arm himself, stealing various items from within the apartment and setting fire to it. The Judge accepted (no doubt on the basis of Mr Thomas’ statement of 9 March 2011) that Mr Thomas was not holding the machete. Rather, he sentenced on the basis that it was held by one of Mr Thomas’ associates and used to strike the victim’s elbow.
Judge Wilson noted that the offending was relatively grave; it involved a group of armed men entering a private home at night with a vulnerable victim; there was extensive damage as a result of the fire lit by Mr Thomas; he was one of the motivators and had a serious criminal record including a string of convictions for burglary and violence.
The starting point adopted for the aggravated burglary was five years imprisonment. The Judge took a starting point for the arson of four years to reflect an impulsive element in that offending. The sentences were to be cumulative, leading to an overall starting point of nine years. The Judge then allowed a total discount in the region of 60 per cent to arrive at a final sentence of four years imprisonment which was imposed on the aggravated burglary and arson charges. A sentence of one years imprisonment was imposed on the charge of assault with a weapon. All sentences were to be served concurrently.
It is apparent on the materials before us that both the Crown and defence proposed to Judge Wilson that Mr Thomas should receive a total discount for his guilty pleas and assistance to the police in the region of 60 per cent. For the purpose of the discount, no differentiation was made at sentencing between the charges to which Mr Thomas had pleaded guilty, including the arson. In the confidential sentencing memorandum, the Crown described Mr Thomas’ assistance as being “crucial” to a successful prosecution of Mr Langi since there was no other admissible evidence that Mr Langi was present during the aggravated burglary. The Crown also said that Mr Thomas’ assistance was “useful” in relation to the prosecution of Mr Tagica as it confirmed the victim’s belief that Mr Tagica was holding a machete that night.
The Judge did not make any separate confidential note of the discount allowed for assistance to the authorities as recommended in R v Hadfield.[2] However, the facts were confirmed by affidavits from Mr McCaughan as well as Mr D J Dufty who was the senior solicitor involved in the prosecution.
Mr Thomas’ evidence before us
[2] R v Hadfield CA337/06, 14 December 2006 at [18].
When this appeal was first called in this Court in December 2012, Mr Thomas was not represented. We adjourned the appeal so that he could obtain representation on legal aid. We are grateful to Ms Pecotic for accepting instructions. She prepared an affidavit sworn by Mr Thomas who remains in prison serving his sentence. Mr Thomas maintains that his statement on 9 March 2011 was correct other than his statement that Mr Tagica was the man armed with a machete. He confirmed the evidence he gave at the disputed facts hearing that he had blamed Mr Tagica because he thought the other men had snitched on him and he wanted to “push the blame somewhere else”. Mr Thomas complained that he was not spoken to by the police before he went to Court on 9 July 2012. He had heard nothing from them between the date he was sentenced on 19 May 2011 and the disputed facts hearing on 9 July 2012. He then said:
From the time I signed my statement on the 9th March 2011 until the day I went to Court on the 9th July 2012 things had changed with my co-offenders. I heard they were snitching on me. I was angry about this. I was also angry because I knew my statement about Isikelo [Mr Tagica] was wrong and I could not correct it. This is why when I went to Court to give evidence I refused to be sworn in. I wanted to correct what I said but I didn’t know how. I did try to correct things in Court that’s why I said he wasn’t the one with the machete. I also believed that I was doing the time for everyone. I was the one who had taken responsibility. That is why I said I had the machete. But the truth is there was no machete that I saw. At the time I just wanted to do my sentence and get on with things. I was angry and I shouldn’t have said what I said in Court and I am very very sorry.
Mr Thomas added that he was not told that his sentence could be increased on appeal if he did not give evidence against the co-offenders. He also maintained, when cross-examined before us, that he was not told by his counsel or anyone else that it had been agreed he would give evidence in Court against the other co‑offenders. He thought that the fact he had made his statement was sufficient. He was aware he was to receive a discount on his sentence but he did not see the written submissions made by Mr Young at sentencing nor did he hear any oral reference in Court to a requirement that he give evidence.
We are prepared to accept that Mr Thomas may not have been told that if he refused to give evidence his sentence might be increased on appeal. However, we do not find it credible that he was not aware of the terms that had been agreed between Mr McCaughan and Mr Young. On the evidence, Mr McCaughan and Mr Young agreed that the prosecution would recommend to the Court a discount totalling 60 per cent to reflect Mr Thomas’ guilty pleas and assistance to the police. Negotiations between the two had extended over a number of months. The clear expectation was that Mr Thomas would give evidence if required against his co‑offenders along the lines of his statement to the police on 9 March 2011. We are satisfied Mr Young must have discussed that with Mr Thomas and that he understood what he was required to do.
Submissions
The essence of Mr Downs’ submission on behalf of the Solicitor-General was that Mr Thomas had received a generous discount on his sentence by agreeing to provide assistance to the police in the prosecution of his co-offenders. In breach of his undertaking, Mr Thomas had blatantly refused to provide the promised assistance. In consequence, the application by the Solicitor-General for an increase in his sentence was appropriate since his sentence had been determined on a false premise. An increase in the sentence was required in order to correct what amounted to an error in the sentencing process and to restore public confidence in the proper administration of criminal justice.
Mr Downs relied on this Court’s judgment in R v Hadfield[3] in which it was held that sentencing judges were entitled to give a discount for anticipated assistance to the authorities by an offender, such as an agreement to give evidence for the prosecution against a co-defendant. The Court in that case also observed that where the anticipated assistance was not provided, the Solicitor-General could seek leave to appeal out of time against the sentence on the basis that an undue discount had been wrongly obtained by the offender.[4] Counsel also referred to Australian authorities which we discuss below.
[3] R v Hadfield, above n 2, at [11], [14] and [15].
[4] See footnote 3.
Mr Downs calculated that the total discount Mr Thomas actually received at sentencing was 56 per cent. He accepted that a discount of up to 33 per cent for the guilty pleas on the aggravated burglary and assault with a weapon charges was appropriate given that the pleas on those charges were entered reasonably promptly at a time when this Court’s decision in R v Hessell[5] was applicable. However, since the guilty plea on the arson charge was entered only at a late stage of the prosecution, he submitted that a discount of no more than 10 per cent would have been justified on that charge.
[5] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
We are not disposed to differentiate between the charges when making our assessment of the appropriate discount for Mr Thomas’ guilty pleas since the Crown did not make any such differentiation at sentencing. On the assumption that a 33 per cent discount was justified on all charges, the remaining portion of the discount would have been 23 per cent (56 per cent less 33 per cent). Mr Downs’ submission was that an increased sentence should reflect not less than the equivalent of the discount of 23 per cent Mr Thomas received for his offer of assistance to the authorities. He said the usual restraint the Court exercised in increasing sentences on a Solicitor-General’s appeal was not appropriate in cases such as the present since the appeal was premised on restoring the correct sentence.
Here, Mr Thomas’ evidence was regarded as crucial to a successful prosecution of Mr Langi since he had denied being present and Mr Thomas’ evidence was the only admissible evidence on the point. Mr Thomas’ evidence was also useful in relation to the prosecution of Mr Tagica, as Mr Thomas confirmed the victim’s belief that it was Mr Tagica who was holding a machete.
Ms Pecotic did not dispute that the Solicitor-General was entitled to apply for an increase in sentence in cases such as the present. Rather, her submission was that his assistance should not be treated as having no value. Mr Thomas had provided assistance to the police by making his statement. Advice that Mr Thomas would be a witness at Mr Tagica’s trial was influential in the latter’s decision to enter a guilty plea some five months before the disputed facts hearing. Mr Langi had also pleaded guilty as had Mr Holani. It was likely Mr Langi’s guilty plea was influenced by knowledge of Mr Thomas’ statement of 9 March 2011 even though this was after Mr Thomas had refused to implicate Mr Langi at the disputed facts hearing.
Ms Pecotic accepted that Mr Thomas’ failing was that he did not confirm that Mr Tagica had a machete in his hand. But she submitted that the Court should take into account that Mr Thomas was not aware he might be required to give evidence against the co‑accused; he was not spoken to by the police either before or after the disputed facts hearing; he was not advised that he might be at risk of an increased sentence should he give evidence contrary to his statement of 9 March 2011; and he was not actually required by the police to give evidence at trial in relation to Mr Holani, Mr Langi or Mr Tagica.
Ms Pecotic submitted that any increased sentence should not exceed half of the 23 per cent which she accepted had been allowed for assistance to the authorities.
Discussion
R v Carran[6]was the only decision of this Court we were referred to in which a sentence had been increased on appeal for failure to provide assistance to the authorities. The appellant had been sentenced in the High Court to nine months imprisonment on drugs charges but the sentence was suspended for 18 months. This was due in part to her cooperation with the police and her willingness to give evidence against others involved in the offending including, in particular, her partner. When called to give evidence at the trial of her partner, she refused to give evidence. She was found guilty of contempt and sentenced to four weeks imprisonment. However, the Judge also decided that her suspended sentence should take effect in consequence of her failure to provide the anticipated assistance in the prosecution of her partner.
[6] R v Carran CA469/95, 11 December 1995.
This Court held in terms of the then s 21A(4) of the Criminal Justice Act 1985 that it was not unjust to activate the suspended sentence in the circumstances. The original sentence was lenient. The appellant had benefited from her willingness to cooperate with the police but had made a deliberate decision to run the risk of refusing to give evidence. She had done so having had ample opportunity for reflection on the known possible consequences. Her actions constituted an interference with the course of justice which the Judge had rightly viewed as serious.
The decision of this Court in Carran did not involve an appeal by the Solicitor-General to increase a sentence and was concerned only with the propriety of activating the suspended sentence under a statutory power to do so. However, the decision of the Court reflects the policy indications underlying Hadfield, namely that an offender who receives a discount at sentence for promised future cooperation with the prosecuting authorities, may not be able to retain that benefit if the promised assistance is not forthcoming.
Mr Downs referred us to two Australian cases which are directly in point. In R v J[7] the Supreme Court of South Australia considered an application by the Attorney-General for leave to appeal against sentences imposed on the respondent who had received a significant discount in his sentences on the basis of his willingness to give evidence against his co-accused. In the event, he refused to give evidence against the co-accused and, in consequence, the Crown was unable to make out a case against them.
[7] R v J (1992) 59 SASR 145.
All three members of the Court were in agreement that it was appropriate to increase the sentences imposed on the respondent. For present purposes, the observations made by King CJ[8] are particularly pertinent. The Chief Justice considered that the Court’s power to receive evidence of events occurring subsequent to sentence which had the effect of falsifying the basis upon which sentence had been imposed should be exercised sparingly and with great circumspection. However, the Chief Justice went on to say:
On the other hand, it is most important for the integrity of the sentencing process that an offender should not be permitted to obtain leniency by reason of an undertaking which he does not carry out. To allow that to occur would provide encouragement to mislead the sentencing court by means of false undertakings.
Restraint is necessary in connection with appeals on this ground. The mere fact that the offender’s evidence has not measured up to prosecution expectations or statements which he has previously given, in all respects, would not be a sufficient basis for allowing an appeal. Where, however, the offender refuses to give evidence, or gives evidence exonerating rather than implicating the alleged co-offenders in contradiction of his undertaking or stated intention to give evidence against them the situation calls for re‑examination of the sentence which has been imposed on a basis which has been falsified by the event.
It must be kept in mind that the basis of principle for the review of the sentence is not the punishment of the offender for departing from his undertaking or stated intention, but that the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless. The reason for the offender’s failure to give evidence against the alleged co-offenders is therefore immaterial. He is simply not entitled to the leniency which was based upon the expectation that he would co-operate in the administration of justice by giving such evidence.
[8] R v J, above n 7, at 147.
The second Australian case was a decision of the Court of Criminal Appeal of New South Wales in R v El-Sayed.[9] In that State, the Crimes (Sentencing Procedure) Act 1999 (NSW)[10] recognises that a Court may impose a lesser penalty where the offender has assisted or has undertaken to assist law enforcement agencies. And, by virtue of the Criminal Appeal Act 1912 (NSW)[11] the Court of Criminal Appeal has a statutory discretion to increase a sentence on appeal by the Attorney-General or the Director of Public Prosecutions if satisfied that the offender has failed wholly or partly to fulfil an undertaking to assist law enforcement authorities. The respondent, Mr El‑Sayed had entered a plea of guilty and received a substantial discount of his sentence on the footing that he would give evidence against a co-offender. At the trial of the co-offender, the respondent refused to give evidence identifying the co‑offender. It was submitted on his behalf that he had not done so because his parents had received a threat that if he gave evidence, both he and his parents would be in trouble.
[9] R v El-Sayed [2003] NSWCCA 232, 57 NSWLR 659.
[10] Section 23(1).
[11] Section 5DA.
The Court of Criminal Appeal accepted that the power to increase the sentence under the Criminal Appeal Act was discretionary but held that the threats made did not justify the Court declining to exercise its discretion. The principal judgment of the Court was delivered by Simpson J with whom Wood CJ and Adams J agreed. Simpson J made the point[12] that King CJ had made in R v J that the power was not intended to be punitive but was merely to restore the offender to the position that would have pertained had the dishonoured undertaking not been given. Simpson J then added:[13]
The reduction in sentence for assistance to law enforcement authorities is purely utilitarian. Like a plea of guilty, which also results in a reduction of sentence on a utilitarian basis, the co-operation of the offender demonstrates a willingness to facilitate the course of justice. In the case of the assistance discount, it also requires a capacity to give assistance. Willingness alone, if the offender is not in possession of relevant information, will not result in a discounted sentence.
Further, an offender who is both willing and able, at the time he or she is sentenced, to afford assistance to the authorities, is only entitled to retain the benefit of the discount in sentence which results if he or she follows through with the promised evidence. A discount is necessarily given in trust, or in anticipation that the promised evidence will be forthcoming. Generally speaking (apart from situations such as that which arose in R v Bagnall and Russell) the reason for any failure to honour the undertaking is of little materiality.
[12] R v El-Sayed, above n 9, at 666.
[13] Ibid.
We have found the views expressed in the Australian cases to be most helpful and agree with them in general terms. We summarise the key points:
(a)The jurisdiction to increase a sentence on a Solicitor-General’s appeal in cases such as the present should be exercised sparingly. As a general rule, we would not expect the Court to exercise its discretion to increase a sentence except in cases where there has been a deliberate refusal to honour an agreement or undertaking to offer assistance to the authorities in a way that brings into question the integrity of the administration of justice.
(b)There must be evidence that the offender did in fact receive a significant discount at sentencing on account of the offered assistance.
(c)The rationale for exercising the discretion to increase the sentence is not to punish the offender but to restore the sentence to the position that would have pertained if the dishonoured undertaking had not been given. Put another way, confidence in the criminal justice system requires that a sentencing discount given on a materially false assumption of fact should be corrected.
(d)The power to increase the sentence exists where the sentence imposed is manifestly inadequate in the light of the subsequent refusal to provide the promised assistance.
(e)Since the power to increase the sentence is discretionary, the amount of the increase may reflect wholly or in part the extent of the discount for the offered assistance.
On a practical level, it would be desirable for prosecutors to ensure there is an adequate record of what is agreed, preferably in written form. This could be kept confidential as necessary. An additional safeguard is the preparation by the sentencing judge of a separate confidential memorandum (as we recommended in Hadfield), recording the reasons for the discount and the extent of it. We also consider it to be desirable for defence counsel to keep an adequate record of the nature and extent of the assistance offered and the advice given to the offender in that respect. Defence counsel should also advise the offender as appropriate that the sentence could be later increased if there is a failure to meet the undertaking and the Solicitor-General appeals out of time for such an increase. Again, an adequate record of that advice should be kept.
This case
We have no doubt that the circumstances of this case clearly justify an increase in Mr Thomas’ sentence. He deliberately refused to give evidence in accordance with his statement of 9 March 2011. He did so in the face of a warning from the Judge that he could be imprisoned for contempt if he refused to give evidence. Mr Thomas’ evidence would have placed Mr Langi at the scene of the crime and confirmed the victim’s belief that Mr Tagica was armed with a machete. Mr Thomas obtained the benefit of a 23 per cent discount in his sentence by his promise to give evidence of those matters in accordance with his statement of 9 March 2011.
He was sentenced on the basis of a false factual assumption that resulted in a sentence that was manifestly inadequate. The erroneous assumption requires correction in the interests of justice. However, we accept Ms Pecotic’s submission that there was some value in Mr Thomas’ assistance. We are prepared to accept that his statement probably influenced Mr Tagica’s guilty plea and may have affected Mr Langi’s guilty plea. We note, however, that the breach by Mr Thomas of his undertaking not only enabled him to obtain a significant sentencing discount but also meant that Mr Langi and Mr Tagica were sentenced on the basis that there was no reliable evidence that a machete was present.
We are satisfied that the sentence ought to be increased by 18 months imprisonment. This recognises that there was not a complete failure by Mr Thomas to provide the promised assistance and that some allowance should be made for the limited assistance he actually provided. There is no opposition to an extension of time to appeal and we propose to grant leave accordingly.
During argument there was some discussion about the adequacy of the starting point of 4 years imprisonment adopted by the Judge for the aggravated robbery charges. The starting point was not challenged on this ground and we make no comment as to its adequacy.
Result
In formal terms:
(a) The appellant is granted an extension of time to appeal.
(b) The appellant is granted leave to appeal and the appeal is allowed.
(c)The sentences imposed on the respondent in the District Court on 19 May 2011 of four years imprisonment for aggravated burglary and arson are quashed.
(d)A sentence of five and a half years imprisonment is substituted on each of the aggravated burglary charges and on the charge of arson.
(e)The sentence of one years imprisonment on the charge of assault with a weapon is undisturbed.
(f)All sentences are to be served concurrently.
Solicitors:
Crown Law Office, Wellington for Appellant
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