The Queen v Mita McLean

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 351/00
CA 05/01

THE QUEEN

MITA MCLEAN

AND

IHAIA JOHN HOTO

Hearing:	19 February 2001
Coram:	Gault J
Robertson J Potter J
Appearances:	M J Levett for McLean G J Newell for Hoto P K Hamlin for Crown
Judgment:	28 February 2001

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

On 14 April 2000, one of the appellants, Mr McLean, pleaded guilty in the District Court at Hamilton, at the end of a deposition hearing, to two charges of kidnapping, one of aggravated robbery and one of unlawfully taking a motor vehicle. All charges arose from an incident which occurred in Hamilton on 2/3 June 1999.
The other appellant, Mr Hoto, entered pleas of guilty to the same charges some weeks later at a pre-trial hearing in the Hamilton High Court.
Both appeared before Penlington J in the High Court at Hamilton on 29 and 30 August 2000. Mr McLean was sentenced to 6 years imprisonment on the first count of kidnapping; on the second charge of kidnapping to 8 years imprisonment; on the charge of aggravated robbery to 10 years imprisonment; and on the charge of unlawfully taking a motor vehicle to 3 years imprisonment. All sentences were to be served concurrently.
Mr McLean had also pleaded guilty in the District Court at Auckland on 27 April 2000 to one charge of fraudulently using a document, to which Penlington J sentenced him to 9 months imprisonment, and to one charge of possession of cannabis for supply, to which he was sentenced to 6 months imprisonment. These sentences were cumulative on the other charges and on each other. The total effective sentence imposed on Mr McLean was 11 years and 3 months. In respect of Mr McLean, the Judge imposed a minimum term of imprisonment of 9 years.
Mr Hoto was sentenced to 6 years imprisonment on the first charge of kidnapping; 8 years imprisonment on the second charge of kidnapping; 9 years and 6 months imprisonment on the charge of aggravated robbery; and on the charge of unlawfully taking a motor vehicle, 3 years imprisonment. These sentences were to be served concurrently.
The total effective sentence imposed on Mr Hoto was 9 years and 6 months, and the Judge imposed a minimum prison term of 7 years.
The McLean appeal was advanced on the basis that :
[a]the sentence overall was manifestly excessive;
[b]the imposition of a minimum term of imprisonment was not justified; and
[c]in any event the minimum term of imprisonment was excessive.
Mr Hoto appealed on the basis that :
[a]the sentence of 9½ years imprisonment for aggravated robbery was manifestly excessive; and
[b]the offending was not sufficiently serious to justify a minimum term of imprisonment.
The four charges which both appellants faced arose out of an incident in Hamilton on 2/3 June 1999. A substantially sized house was occupied by a group of Taiwanese nationals, some of whom had recently immigrated to New Zealand and others of whom were visiting.
At about 10 pm, Mr McLean, Mr Hoto and another person entered the house. They initially located three of the occupants and placed them in the ground floor study, where they were detained.
A 79 year old woman was in the downstairs bathroom of the house at the time. The bathroom door was smashed in and she was taken from the bathroom to the study and also detained there.
The intruders were armed with garden tools which had been obtained from the garage on the property and which they used as threatening weapons. They were disguised with balaclavas and gloves. The three men in the study were bound and blindfolded with insulation tape which the intruders had taken with them onto the property. They, together with the elderly woman (who was left unbound), were held in the study and forced to lie face down on the floor. Whilst one of the intruders acted as a guard, the other two searched upstairs. There they found another woman. She was in her bedroom dressed only in underwear. After being threatened, she attempted to fight off the intruders. As a result, she was assaulted with a punch to the face. Ultimately, she was overpowered and taken to the study with the others. The house was searched and car keys were taken together with a purse, passports, jewellery and other items, to a monetary value of about $40,000. Many of the items had particular sentimental value.
The younger woman was taken from the property in a Toyota vehicle which was driven to Te Rapa. From there, the three intruders and their hostage went to Meremere in another vehicle. By this time the police had been alerted to the incident. Mr McLean then travelled to Auckland where he tried to sell jewellery. Mr Hoto and the other offender remained in the Meremere area but by the time Mr McLean returned, the hostage and the co-offenders had moved away. At about 4 am on the morning of 3 June, the woman hostage was found on State Highway 1 in a distressed condition.
It transpired that she had been bound with her hands behind her back and taken from the River Road property in the boot of the first car. While it stopped near Te Rapa, she had managed to kick in the back seat and unlock the door in an attempt to escape from the car, but her actions were thwarted by her captives. She was put into the boot of another vehicle, driven further, and eventually left bound in an abandoned water tank.
The Crown alleged that she had been subjected to other indignities, including sexual violation, but the Judge rejected the contention that the present appellants were parties to that and ignored it for the purposes of sentencing.
Each of the present appellants, when initially confronted with their involvement in the offending, advanced complete denials. Subsequently, they claimed that they had acted under duress, a proposition which was rejected by the sentencing Judge and is not further advanced here.
Quite unrelated to the incident of the 2/3 June, Mr McLean faced a separate charge with regard to the misuse of an American Express Gold Card.
He also faced a separate charge relating to the possession of cannabis for sale. This charge arose from the police search of a flat in Birkdale where 7.4 grams of cannabis was found in 27 separate plastic bags, along with other paraphernalia consistent with peddling.
In this Court, Mr Levett, on behalf of Mr McLean, accepted that the sentence on the aggravated robbery (which reflects the totality of the offending in respect of the incidents on 2/3 June), having regard to the decision of this Court in R v Mako [2000] 2 NZLR 170, was unchallengable. The Judge concluded that a starting point of 12 years would be justified, having regard to serious aggravating factors, including :
[a]the planning;
[b]the number of participants;
[c]the use of weapons;
[d]the property stolen;
[e]the effect on the victims.

Mr Levett contended that, even allowing for all the aggravating factors, it was a severe sentence.

Mr Newell, on behalf of Mr Hoto, argued that a starting point of 11 years, in respect of his client’s offending, was outside of the acceptable sentencing range. In support of this contention, counsel pointed to the fact that, although the offenders were armed, the weapons in this case were only a shovel and trowel which were available at the premises. They had not been specifically taken there, they would have engendered less fear than firearms and knives and they were not actually used. Further, counsel argued that the level of injury inflicted was at the lower end of the scale, and that the premises targeted were domestic and not commercial premises, where there is a risk that a greater number of people may be caught up in the course of offending.
We understand why Mr McLean has accepted the starting point of 12 years was within range, and we are not persuaded that the starting point for Mr Hoto of 11 years was outside of range. Having regard to the totality, including particularly the abduction and treatment of one of the victims, we would not accept that these starting points were severe.
This was an audacious intrusion on innocent people in what should have been the sanctuary of their home.
The Judge treated the two men differently because Mr McLean had the additional aggravating factor that he had been convicted of a very similar offence in 1988.
Complaint was made that insufficient allowance was made for the pleas of guilty. Mr McLean pleaded guilty at the end of depositions and after one person had given viva voce evidence.
He initially denied the offending and filed bail applications on the basis that he was an innocent man. He only admitted his guilt at a time when it became clear, because of the evidence which the Crown could call, that convictions would be entered. The Crown submits that in those circumstances an allowance of 18 months was appropriate to reflect the reality of the position.
Mr Hoto did not plead guilty until after the first callover in the High Court, although we note that was before the trial was set down for a fixture. He initially appeared unrepresented and his pleas of guilty were entered shortly after counsel became available for him.
It was noted that the trial would have taken 3 or 4 weeks and would have involved complainants travelling to New Zealand from overseas. It was submitted that in all the circumstances an allowance of 18 months was insufficient.
We are not persuaded that there can be any sensible challenge to this aspect of the decision. These are not people about whom it could be said that they co-operated with the authorities from an early stage or from whom there were genuine signs of contrition to be inferred from the pleas of guilty. The pleas changed in each case at a point when there was the stark realisation that the Crown had sufficient evidence to convict, but only at that point. The allowance made by the sentencing Judge was clearly within discretion.
A further allowance of 6 months was made to Mr McLean in the exercise of the discretion under s 138(6) of the Criminal Justice Act. Although Mr Levett submits it was not generous, realistically he accepts he cannot challenge it in this Court.
What is strongly attacked on behalf of Mr McLean is the fact that the sentences on each of the unrelated matters were made cumulative. The Judge took the view that they were totally discrete matters. That is undoubtedly the factual position. Each was unrelated to the others. Some Judges may have concluded that because of the length of the sentences on the Hamilton incident, these matters could have been dealt with by way of concurrent sentences. However, we are not persuaded that the Judge’s exercise of discretion was wrong in this case, where totally separate offences were committed after an involvement in the appalling events of the night 2/3 June 1999. The appellants’ behaviour indicated an attitude of lawlessness which was continuous, and cumulative sentencing was certainly not wrong.
We are not satisfied in respect of either appellant that the effective sentence determined for each of them was manifestly excessive or wrong in principle. We reject the submissions to the contrary.
Each of the appellants contend that the circumstances were not such as to justify a minimum period of imprisonment in terms of s 80(5) of the Criminal Justice Act 1985.
The relevant statutory provisions are :
[80     Minimum Periods Of Imprisonment
...
(4)     Where a court sentences an offender to a term of imprisonment of more than 2 years for a serious violent offence, it may, at the same time, order that the offender serve a minimum period of imprisonment.
[(5)     The court may impose a minimum period of imprisonment under subsection (4) if satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 89 or section 90, as the case may be.
(5A)     For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind, but the circumstances need not be exceptional.]
(6)     The duration of the period imposed under subsection (4) of this section shall be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender, but in no case shall the period exceed—
(a)     The period beginning on the commencement of the sentence and ending 3 months before the sentence expiry date; or
(b)     Ten years,—
whichever is the lesser.
(7)     Where the court makes an order under this section, it shall give the offender written reasons for so doing and the offender may appeal against the imposition of the minimum period of imprisonment in the same manner as he or she may appeal upon conviction against the sentence or sentences imposed.]
There is no question but that the jurisdiction existed under s 80(4). Although the section was amended to this form after the date of the offending, the amended section was made retrospective by s 2(1) of the Criminal Justice Amendment Act No 2 1999. We are of course aware of the view that this provision should not be given retrospective effect, R v Pora (CA 225/00, 20 December 2000).
In R v Hapi [1995] 1 NZLR 257, the Court, in discussing the operation of the provision before the amendment, noted at 261 :
Thus the legislation may be seen, as the Judge said in the present case, as reflecting and catering for a public concern to see very severe effective sentences imposed for particularly repugnant offending. The new form of sentence also enables the Court to further protect the public against recidivists and to send a particularly clear message of deterrence to would-be offenders, and no doubt the effect of use of the sentencing power will be to lessen the fear and insecurity engendered in the community by crimes of extreme violence; but these must be regarded as incidental by-products rather than the central objectives of the statutory amendment. ... the principal purposes are punitive and denunciatory envisaging a lengthening of the sentence that would otherwise be regarded as appropriate. ...
An amendment in 1999 to the Criminal Justice Act means that the reference to exceptionality in the original legislation is modified by the terms of the new expression, namely, “sufficiently serious”, which will be met if the Court is satisfied that the circumstances take the offence “out of the ordinary range of offending” of the particular kind.
We acknowledge that there can be some difficulty in the interpretation and application of this approach in particular circumstances.
Counsel for the appellants submit that serious and reprehensible though the activities in Hamilton were, they do not fulfil the criteria referred to in paragraphs 5 and 5(A) of the statutory provision.
The sentencing Judge, having noted that the jurisdiction under s 80(4) existed, said :
The next hurdle for the Crown is s 80(5A): the question of whether the offending was sufficiently serious. In this regard the Court has to be satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind but the circumstances need not be exceptional.
Mr Douch for the Crown contended that this case was outside the ordinary range of offending. On the other hand, Mr Roose and Mr Newell joined issue. They contended that the threshold test had not been satisfied.
I note that I must address the circumstances of the offence. The circumstances of the offender are not relevant at this stage.
The definition is in the singular: “The circumstances of the offence”. In my view, a sensible construction where there are two or more offences is to look at the totality of the offending and ask the question: am I satisfied that it was out of the ordinary range of offending of the particular kind, here both aggravated robbery and kidnapping in combination? To be satisfied implies the weighing of the opposing contentions and the reaching by me of a clear conclusion that the ground exists. See Angland v Payne [1944] NZLR 610 per Smith J. See also R v White [1988] 1 NZLR 264 (CA), R v Leitch (CA 195/97, 13 November 1997).
Having carefully considered the submissions, I am satisfied, that while the circumstances were not exceptional they did take the case out of the ordinary. I refer to the combination of the matters set out earlier and in particular, the extent of the premeditation and planning; the combination of weapons, numbers and disguise; the use of violence and threatened violence to the occupants, irrespective of age and sex; the intensity of the fear and coercion imposed on the victims; the amount of time over which they were subjected to such coercion; the effects on the victims, the value of the goods taken; the continued kidnapping of C involving the taking of her to Te Rapa, the thwarting of her escape, and then on to Meremere where she was kept for several hours and finally abandoned.
The thrust of Mr Levett’s argument was that the circumstances, although serious and deserving of significant condemnation, were still within those reasonably contemplated for the commission of these criminal offences and the maximum penalties adequately provided for them. Particular emphasis was placed on the approach of this Court in R v George Robert Murray (CA 272/96 (1997) 14 CRNZ 524) where Thomas J said :
Nevertheless, we consider that, having imposed a severe lead sentence, it was unnecessary and inappropriate to impose a minimum period of imprisonment extending the period during which Mr Murray would be ineligible for release by a further year. As we have indicated, the sentence of 12 years imprisonment was the most severe sentence which could have been imposed in the circumstances. It was itself "punitive and denunciatory". No doubt the learned Judge considered that the addition of a year to the minimum term which Mr Murray must serve before becoming eligible for release added force to the statement his sentence was intended to express. We consider, however, that the lead sentence itself accomplished this objective and the imposition of a further year serves little or no functional purpose.
It was further argued that the effect of the imposition of the minimum terms in this case was to effectively take away the allowances which otherwise had properly been given. In respect of Mr McLean, on the 10 year sentence he would have been eligible to apply for parole after two-thirds of that sentence, and in respect of the other two offences he would have been eligible after one-third. In other words, after a total period of 7 years and one month he would be eligible to apply for release.
The minimum sentence of 9 years imposed on Mr McLean would be that which would apply if there was a finite sentence of 13½ years. It effectively meant that any allowances which were given for co-operation, assistance, early plea of guilty and the like, were more than removed from him.
In Mr Hoto’s case the difference is less marked. Without a minimum sentence he would have been required to serve at least two-thirds of the 9½ years sentence, which would be 6 years and 4 months. The minimum sentence imposed upon him was 7 years. The additional minimum sentence in his case is only 8 months. But its impact at the end of the sentence will not be insignificant, and the prospect of the exercise of the jurisdiction even to impose moderate increases gives no encouragement for offenders in the future to co-operate and enter pleas of guilty. Nevertheless, in appropriate cases, the legislation plainly intends the jurisdiction to be exercised in such a fashion.
The calculations used to determine the appropriate term of imprisonment, for each of these cases, has led to an unjustifiable disparity in the sentencing of these two offenders. The Judge was of the view that Mr McLean’s prior offending justified his receiving an extra 12 months imprisonment. Because of the cumulative sentences in respect of the additional offending, the difference in the overall sentences was 2 years and 3 months; but the minimum sentence could be imposed only in respect of violent offending. Although it is not clear, we suspect that the Judge may have overlooked the fact that the minimum sentencing regime could not apply in respect of the sentences relating to the fraudulent use of the credit card or the peddling of cannabis. The Judge in fact imposed a minimum term of 9 years in respect of total offending (that is, the events of 2/3 June 1999) which he otherwise said should be met by a sentence of 10 years imprisonment for Mr McLean. Yet in the case of Mr Hoto, for whom he fixed the sentence of 9 years, a minimum of only 7 years was stipulated. For that reason, proportionality leads us to reduce the minimum term for Mr McLean from 9 years to 8 years.

It is to be noted that this is offending which the Judge specifically found did not constitute exceptional circumstances for the purposes of s 80 although that is a finding we would not necessarily make ourselves. Prior to the amendment which removed the requirement to find exceptional circumstances there would not have been jurisdiction to impose a minimum term. That is a factor to be weighed as part of the overall assessment of the appropriateness of the effective sentences imposed, particularly when, as here, they involve a degree of retroactivity.
Despite the careful submissions on behalf of each appellant, we are satisfied that the circumstances in this case were sufficiently serious to meet the statutory requirements for a minimum term of imprisonment longer than the period otherwise applicable. When one considers the intrusion into a private dwelling, which (although at the time not subject to the recent Home Invasion amendment) has always been viewed by the Courts as a serious matter, the detaining of people in three separate incidents, the racist overtones in the intrusion, the continuing confinement of one woman who was taken away by car, the terrifying circumstances for her and the traumatic apprehension for those waiting to know of her fate, in our view this is out of the ordinary range of offending of this kind. Indeed, we are satisfied that the total offending was such that sentences were justified that would require these offenders to be ineligible for parole for 8 and 7 years respectively, however the sentences are formulated.
In respect of the appellant Mr McLean, his appeal is allowed to the extent that the minimum term of imprisonment imposed under s 80 is reduced from 9 years to 8 years. In all other respects the appeals are dismissed.

Solicitors:
Byron Legal Chambers, Takapuna
Crown Solicitor, Auckland

[2001] NZCA 36

28 February 2001