The Queen v Ahomiro - [2007] NZCA 23

IN THE COURT OF APPEAL OF NEW ZEALAND
CA316/06
[2007] NZCA 23
THE QUEEN
v
TAKATU AHOMIRO
Hearing:12 February 2007

Court:Arnold, Panckhurst and Priestley JJ
Counsel:C R Horsley for the Appellant

A Markham for Crown

Judgment:26 February 2007 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Priestley J)
Introduction
[1]        The appellant pleaded guilty to a count laid under s 117(e) of the Crimes Act 1961 of wilfully attempting to pervert the course of justice. The maximum penalty is seven years imprisonment.
[2]        He was sentenced in the High Court at Rotorua by Venning J on 17 August 2006 to a term of two and a half years imprisonment. That term was cumulative on an existing sentence the appellant was then serving.
[3]        This appeal challenges the sentence. The challenge is to its length, not to its cumulative imposition.
Background
[4]        In November 2004 the police executed a search warrant at the Te Puke home of Mr Ronaki, the appellant’s uncle. The appellant was at the property when the warrant was executed. He attempted to flee but was arrested and charged.
[5]        Those charges were subsequently withdrawn, although for a period the appellant was remanded in custody sharing, it would seem, a prison cell with his uncle.
[6]        The appellant gave evidence at Mr Ronaki’s trial in the High Court at Rotorua on 28 July 2005. The trial Judge not only gave the appellant the standard self-incrimination warning but also arranged for the appellant to be advised by a duty solicitor. The appellant gave evidence to the effect that the drugs found at the Te Puke address were his rather than Mr Ronaki’s. That evidence was false. Furthermore the jury disbelieved it and Mr Ronaki was convicted.
[7]        Giving false evidence had serious repercussions for the appellant. It was the basis for the Crown charging him with joint possession of methamphetamine and cannabis under the Misuse of Drugs Act 1975. The s 117(e) charge was laid in the alternative. To that the appellant pleaded guilty on 30 March 2006. In the ensuing trial on the Misuse of Drugs Act counts the appellant was acquitted.
The sentence
[8]        The Judge had before him a pre-sentence report and also a contrite letter written by the appellant. Counsel does not contend that the Judge overlooked any relevant matters in the sentencing process. Venning J’s remarks are thus replicated to record the sentence’s context:
[4]       You have told the probation officer that you gave the false evidence because of pressure from your family and your uncle and you felt defenceless. You said you were threatened and put under pressure. You explained to the probation officer that the only thing you could see to do was to tell the jury lies and that by your telling lies the jury would see you were innocent and your uncle was guilty without him realising what you were doing. Mr Ahomiro, I can’t accept that. You knew very well…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Ahomiro

Details

AGLC: The Queen v Ahomiro [2007] NZCA 23
Case: [2007] NZCA 23
Decision Date: 26 February 2007

CaseChat Overview and Summary

The appellant, Takatu Ahomiro, appealed against a sentence imposed by Venning J in the High Court at Rotorua. Ahomiro was found guilty of wilfully attempting to pervert the course of justice under s 117(e) of the Crimes Act 1961, for which the maximum penalty is seven years imprisonment. Venning J sentenced Ahomiro to a term of two and a half years imprisonment, cumulative on an existing sentence he was serving. The appeal challenged the length of the sentence, not its cumulative imposition. The appellant gave evidence at his uncle's trial, falsely claiming ownership of the drugs found at the Te Puke address, which led to his uncle's conviction. This led to the Crown charging him with joint possession of methamphetamine and cannabis under the Misuse of Drugs Act 1975, with the s 117(e) charge being laid in the alternative. Ahomiro pleaded guilty to the alternative charge on 30 March 2006. The Crown submitted an appropriate start point would be three to three and a half years, while counsel for the prisoner urged a start point of two to two and a half years imprisonment based on the Wilkinson decision. Venning J concluded that the appellant's personal circumstances were "perhaps more than counterbalanced" by his previous convictions and sentenced him to two and a half years' imprisonment.

The legal issue before the Court was whether the sentence imposed by Venning J was inconsistent with the outcome in Wilkinson and thus infringed s 8(e) of the Sentencing Act 2002, which provides as a principle that a court must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances. The Court rejected the submission that s 8(e) and Wilkinson in combination tied the hands of the Judge. It was noted that Venning J was specifically referred to Wilkinson and its end sentence of two years three months. The Court did not consider that sentence and the two years six months sentence imposed on the appellant contravened the s 8(e) principle. The Court further noted that it was artificial and contrary to the sentencing process mandated by the Act to focus on one principle, giving it disproportionate weight to other purposes and principles which the circumstances of offending bring into play. The Court found that both the start point of three years and the arrival at an end sentence of two years and six months after considering the relevant aggravating and mitigating factors were unassailable. The appeal was dismissed.

In conclusion, the Court of Appeal of New Zealand dismissed the appeal against the sentence imposed by Venning J in the High Court at Rotorua. The Court found that the sentence of two and a half years' imprisonment, cumulative on the existing sentence Ahomiro was serving, was not inconsistent with the outcome in Wilkinson and did not infringe s 8(e) of the Sentencing Act 2002. The Court further found that the sentence was appropriate in light of the appellant's serious offending, which struck close to the heart of the administration of justice.

Orders