The Queen v Turner

[2008] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND

CA22/2008
[2008] NZCA 217

THE QUEEN

v

LEON DELSHANNON TURNER

Hearing:30 June 2008

Court:Ellen France, Gendall and Venning JJ

Counsel:D N Bunce for Appellant

D R La Hood for Crown

Judgment:9 July 2008 at 10.30 am 

JUDGMENT OF THE COURT

An extension of time for the filing of the notice of appeal is granted but the appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1]       The appellant pleaded guilty to one charge of perverting the course of justice.  Judge Crosbie sentenced him to imprisonment for three and a half years: DC CHCH CRI-2006-009-011012 12 December 2007.  Judge Holderness had earlier sentenced a co-offender to 14 months’ imprisonment with leave to apply for home detention: R v Whangapirita DC CHCH CRI-2006-009-011012 28 September 2007.  The appellant appeals against his sentence on the ground of disparity.

Background

[2]       In March 2006 there were tensions between rival chapters of the Mongrel Mob in Christchurch.  On 26 March 2006 an aggravated burglary took place at an address where members of the Notorious chapter lived.  The co-offender was present at the time.  She made a statement to the police in which she identified the appellant as one of the offenders.  As a result the appellant and an associate were arrested and charged with aggravated burglary. 

[3]       While the appellant was on remand he sent text messages to the co-offender and spoke to her by telephone to organise what evidence she should give at depositions so that he would not be identified and the charges against him would be dismissed.  The co-offender was a willing participant in that scheme.

[4]       The depositions hearing was held on 29 June 2006.  The co-offender did not identify the appellant when giving her evidence.  As a result the aggravated burglary charges against him were dismissed. 

[5]       The co-offender was later spoken to by the police about her role in having the charges dismissed.  She admitted speaking to the appellant by phone and text message in order to come up with a story so that the charges against the appellant would be dismissed and he would be released.  The appellant was also spoken to about it but he denied that it had happened and declined to speak further about it.

[6]       At the time of the offending the co-offender was a 19 year old, unemployed female associated with one chapter of the Mongrel Mob.  The appellant was a 31 year old patched member of another chapter of the same gang.  The co-offender pleaded guilty following her committal for trial.  In sentencing her Judge Holderness noted that a start point of somewhere between two and two and a half years’ imprisonment was appropriate.  He settled on two years and then, taking account of the co-offender’s personal circumstances, namely her relatively early guilty plea, age and the fact she was a first offender, the Judge determined the appropriate sentence for her was 14 months. 

The sentence of the appellant

[7]       Judge Crosbie referred to the sentencing decision of Judge Holderness but considered the appellant’s culpability was considerably higher than that of his co‑offender.  The Judge took a starting point of four years, noted that the appellant’s history of offending required an uplift, and then gave credit for the late guilty plea to arrive at a final sentence of three years six months. 

Grounds of the appeal

[8]       Mr Bunce submitted that the disparity in the sentences, particularly the difference between the starting points adopted by the two Judges, led to an end sentence for the appellant which was manifestly excessive.

[9]       He submitted there was really not a great deal to differentiate between the nature of the offending by each of the offenders.  It was planned, it succeeded in its object and it was entered enthusiastically by both parties. 

[10]     Mr Bunce submitted that the appellant’s influence over the co-offender was not likely to have been extensive and that she may have thought that she would receive some benefit within the Mongrel Mob by acting in the way she did.  He submitted she was a willing participant in the scheme. 

[11]     He properly conceded that there were significant differences between the personal situations of both offenders particularly in relation to the appellant’s previous convictions, which would support a difference in the end sentence but, in his submission, not to the extent of a disparity of almost two and a half years.

Principles – disparity

[12]     In R v Lawson [1982] 2 NZLR 219 at 223 this Court considered the principles that apply to the issue of disparity in sentencing, noting:

Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. ... But the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

Decision

[13]     There are differences between the culpability and position of the appellant and the co-offender in relation to this offence that support an increased starting point for the appellant before taking account of personal aggravating and mitigating factors.  The first significant difference arises from what the offending achieved.  The appellant has avoided the consequences of facing trial on a charge of aggravated burglary.  In R v Moore CA399/99 23 November 1999 this Court upheld the imposition of the maximum sentence of seven years on a charge of conspiracy to pervert the course of justice.  The appellant had literally got away with murder.  The Court noted it was a relevant factor in fixing the appropriate sentence that the offender had not been prosecuted for the primary offence.  While the appellant could not be punished for his alleged involvement in the primary offence the fact that the conspiracy was committed to avoid conviction for a serious charge, and was very material in achieving that goal, was plainly relevant to the appropriate start point for the sentence.  The same reasoning applies to the position of the appellant in the present case.

[14]     Next, both sentencing Judges drew the inference that the appellant’s role in the offending was more influential than the co-offender’s.  Judge Holderness referred to the co-offender’s age and the fact that the appellant was a significantly older man and an experienced criminal.  In sentencing the appellant Judge Crosbie accepted that his culpability was higher, considerably more so than the co-offender.  He noted the appellant was senior to the co-offender both in terms of Mongrel Mob lore and also in terms of age and experience.  Although Mr Bunce submitted the Judges should not have taken that approach, they were entitled to draw those inferences from the circumstances known to them at sentencing.  In the Mongrel Mob context the appellant was a patched male member of the gang, while the co-offender was a young female associate.  Also the appellant was much older, by approximately 12 years, than the co-offender. 

[15]     While Mr Bunce submitted that the text messaging showed that the co‑offender was a willing participant in the offence, the Judges did not suggest she was placed under pressure to assist, but rather recognised the reality of the different positions that the two held within the Mongrel Mob itself and the difference in their relationship given their ages and stages in life.

[16]     Next, it could be said that in taking a starting point of between two and two and a half years (and fixing on two years) Judge Holderness was lenient towards the co-offender.  In R v Hillman, noted at [2005] 2 NZLR 681, this Court reviewed a number of sentences for the offence of attempting to pervert the course of justice decided between 1979 and 1990. The Court noted that in a number of cases a sentence of three years had been upheld. In the more recent decision of R v Goldberg CA10/05 4 May 2006 this Court upheld a sentence of four years’ imprisonment on four related charges of attempting to pervert the course of justice.  The Court has also emphasised that this type of offending strikes at the administration of justice and must be met with a stern response.  On that analysis the start point of two years in the case of the co-offender could be said to be lenient.  A lenient sentence is not of itself a ground for interfering with a longer sentence imposed on a co-offender:  R v Rameka [1973] 2 NZLR 592 (CA).

[17]     The above considerations support a difference in the starting points for sentence between the appellant and the co-offender of at least a year.  Adopting Judge Holderness’ range, they support a starting point of between at least three and three and a half years in the case of the appellant.

[18]     There are then significant personal aggravating factors that apply to the appellant in this case.  He has a lengthy list of previous convictions.  A sentence will not be increased just because of previous convictions as that would result in a further sentence for a crime for which the offender had already been punished: R v Casey [1931] NZLR 594 at 597 (CA). But previous convictions are relevant where they show a propensity on the part of an offender to offend in a particular way and also where it is necessary to vindicate the principle of deterrence. The appellant has a number of convictions for dishonest offending and for breaching court orders. The current offending is a graduation in seriousness of such offending. That calls for an uplift. A further aggravating factor is that this offending was committed whilst the appellant was on remand in relation to the aggravated burglary charges. The Judge would have been quite entitled to uplift the starting point by at least nine months for the previous convictions and offending while on remand.

[19]     The only mitigating factor is the appellant’s guilty plea.  It was not entered at the earliest occasion.  The appellant only pleaded guilty on arraignment and after the co-offender had been sentenced.  At most a discount of between 15 to 20 per cent or approximately six to nine months would have been appropriate.  On that assessment, an end sentence in the range of three years to three years nine months would have been appropriate.  On that analysis the end sentence of three years six months was within range and cannot be said to be manifestly excessive.

Result

[20]     An extension of time for the filing of the appeal is granted but the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington