R v Wickliffe

[2015] NZHC 2392

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2014-016-001256 [2015] NZHC 2392

THE QUEEN

v

RANGI MORRIS WICKLIFFE

Hearing:	1 October 2015
Appearances:	C R Walker for Crown M J Phelps for Defendant
Sentence:	1 October 2015

SENTENCING REMARKS OF LANG J

R v WICKLIFFE [2015] NZHC 2392 [1 October 2015]

[1]      Mr Wickliffe, you appear for sentence today having pleaded guilty on 4 June

2015 to a charge of conspiring to pervert the course of justice.   The maximum penalty for that charge is seven years imprisonment.

The facts

[2]      The events giving rise to the charge flow from the fact that in September

2014 you were in a remand unit in Rimutaka Prison. At that time, a man called Troy McHugh was placed in the cell beside yours.  Between September and February you and Mr McHugh were also on a work detail that enabled you to have regular contact with each other.

[3]      Mr McHugh was in custody on remand awaiting trial on a charge of murder. The charge was laid as a result of an incident that occurred in Gisborne in the early hours of 20 April 2014. The Crown case was that Mr McHugh had disguised himself and then gone into a house from which drugs were being sold with the intention of robbing it.  He was carrying a firearm at the time.  During the course of the robbery, he shot and killed one of the occupants of the address.

[4]      The principal evidence against  you at trial came from another inmate at Rimutaka Prison.  He was Mr Nathan Taal, and Mr Taal told the jury about events that occurred during the months leading up to Christmas 2014.  Mr Taal said that Mr McHugh had discussed his forthcoming trial with him, that is Mr Taal.  Mr McHugh was concerned that he stood little chance of acquittal because there was an eye witness to the shooting.

[5]      Mr Taal also recalls that during a meal time one day, Mr McHugh said to others in the room that he would pay $100,000 to any person who was prepared to place himself in Gisborne at the time of the shooting.  To Mr Taal, this meant that Mr McHugh was seeking volunteers to accept responsibility for the shooting in return for receiving the sum of $100,000.   Mr Taal said that other prisoners in the unit laughed at the suggestion, but that you appeared to take it seriously.  He then became more concerned over subsequent weeks as you appeared to be receiving goods from Mr McHugh for which you did not have the means to pay.   Mr Taal also saw documentary material in your cell that he believed comprised discovery material

provided to Mr McHugh’s counsel in relation to the murder charge.  Mr Taal became convinced that you were going to go ahead with this plan to accept responsibility for the shooting that, in actual fact, had been carried out by Mr McHugh.

[6]      That proved to be the case.  Mr McHugh’s trial was due to commence in the High Court at Gisborne on 9 February 2015.  On 2 February 2015, you undertook an interview with a lawyer. The lawyer made notes of the interview and then passed those notes on to the police.  During the interview, you accepted full responsibility for the shooting.  You also provided a great deal of detail about the circumstances in which the shooting had occurred.  Significantly, however, your version of events also claimed that the shooting was accidental and occurred after one of the persons at the address made a lunge at you.

[7]      The police then began to investigate the matter.  When they tried to interview you, you cooperated for some time, but then withdrew from the interview saying that you were uncomfortable because the police were asking matters of detail that you could not provide. That was probably a signal to the true state of affairs.

[8]      The police then investigated your claims further.  This led them to conclude that you had not been in Gisborne over the weekend when the shooting took place. Rather, you had been staying at a camp ground in Taupo and you had no access to a vehicle. As a result, the police charged both you and Mr McHugh with conspiring to pervert the course of justice. The charge was laid in early March 2015.

[9]      Not surprisingly, Mr McHugh’s trial had to be adjourned.  It was adjourned to

20 July 2015.   In early June 2015, I was scheduled to hear an application by the Crown to join the charges of conspiring to pervert the course of justice to the murder and aggravated robbery charges.   Shortly before that hearing your counsel filed a memorandum stating that you wished to plead guilty to the charge and that you accepted that your version of events was false.  You also apologised to the Crown and police for the efforts you had put them to in disproving your statement. You also made it clear prior to the trial that, if called to give evidence at trial, you would tell the truth.  In other words, you would tell the Court that you had nothing to do with the shooting and that you had been in Taupo on the weekend of the incident.

[10]     At trial, however, Mr McHugh continued to rely on your statement.  He based his defence, at least partially, on your acceptance of responsibility for the shooting. He did not, however, call you as a witness in support of his defence.

Sentencing Act 2002

[11]     In  any  case  where  conduct  of  this  type  occurs,  deterrent  sentences  are imposed.   Conduct like this strikes at the heart of the administration of criminal justice.   People who interfere with witnesses, or with police investigations or prosecutions, must know that deterrent sentences will be imposed if the offending is uncovered.

Starting point

[12]     Counsel have referred a number of cases to me today.  Your counsel relies in particular on R v Ahomiro, in which an offender had given false evidence accepting responsibility  for  offending  at  trial  notwithstanding  legal  advice  and  judicial warnings about the consequences of doing so.1   In that case, a starting point of three years imprisonment was selected.

[13]     In the present case, the starting point is driven largely by the conclusion I formed when  sentencing Mr McHugh.2      I took  the view  that  his  culpability in relation to this charge warranted a starting point of four and a half years imprisonment.  I considered that it was above mid-range for this type of offending, for which the maximum sentence is seven years imprisonment.

[14]     The Crown  accepts  that  your offending is  less  culpable  than that  of Mr McHugh for several reasons.  First, you acknowledged that your statement was false at a relatively early stage.  In addition, you made it clear that you would tell the truth if called on to do so.  The Crown therefore accepts that your offending can properly be distinguished from Mr McHugh’s.  I take the view that a starting point of three

years imprisonment is appropriate having regard to those factors.

1      R v Ahomiro, [2007] NZCA 23.

2      R v McHugh [2015] NZHC 2389.

Mitigating factors

[15]     Your counsel points to several mitigating factors.  The first and most obvious of these is the fact that you pleaded guilty.  The Crown accepts that a discount of 25 per cent is appropriate to reflect that factor.  This would result in a reduction of nine months from the starting point of three years.

[16]     In  addition,  your  counsel  points  out  that,  as  soon  as  you  accepted responsibility for your offending, you had to be placed in segregation because of the effect that your recantation was going to have on Mr McHugh’s trial.  You will also be required to serve your present sentence in segregation because of that factor.

[17]     I consider that that is an issue the Court can take into account, because it stems  from  your  acceptance  of  responsibility  for  your  offending  and  your willingness to tell the truth at Mr McHugh’s trial.  I propose to reduce the sentence by three months to reflect this factor.  This produces an end sentence of two years imprisonment.

Sentence

[18]     On the charge of conspiring to pervert the course of justice, you are sentenced to two years imprisonment.

[19]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Napier
Counsel:

M J Phelps, Hastings