Worthy Redeemed v R
[2013] NZCA 61
•15 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA792/2011 CA408/2012 [2013] NZCA 61 |
| BETWEEN WORTHY REDEEMED (AKA LEE ERROL JAMES SILVESTER) |
| AND THE QUEEN |
| Hearing: 23 October 2012 |
| Court: Arnold, Ellen France and French JJ |
| Counsel: L L Heah for Appellant |
| Judgment: 15 March 2013 at 2 pm |
JUDGMENT OF THE COURT
AThe appellant’s application to adduce new evidence is declined.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is allowed. The sentence of 14 years’ imprisonment with a minimum period of imprisonment of seven years is quashed and a sentence of 13 years, six months’ imprisonment with a minimum period of imprisonment of six years, nine months is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Arnold J)
Introduction
The appellant, Mr Worthy Redeemed, was convicted following a jury trial before Whata J of three counts of manslaughter, one count of causing grievous bodily harm with reckless disregard for the safety of others and two counts of injuring with reckless disregard for the safety of others. The charges arose out of a collision between a car in which the appellant was travelling in the front passenger seat and a bus, which left three people dead and several having suffered serious injury. The essential allegation was that the appellant had grabbed the steering wheel and caused the car to turn into the path of the bus, which was travelling towards the car on the opposite side of the road.
Whata J sentenced the appellant to imprisonment for a term of 14 years, with a minimum period of imprisonment of seven years.[1] Mr Redeemed now appeals against both conviction and sentence.
Factual background
[1] R v Redeemed HC Christchurch CRI-2010-061-982, 25 October 2011.
The appellant, who was 38, had been drinking one evening with some friends, including Dean McCartney. The appellant and Mr McCartney went to sleep in a car which the appellant had borrowed. The following morning they decided to drive the car to visit Reece Dick-Durham, a 17 year old whom they knew through an organisation at which the appellant was a tutor. They arrived at his house around 10 am. Mr Dick-Durham observed that they had been drinking. There were two further young people at Mr Dick-Durham’s house, Kodee Rapana and Jethro Cooper. They all decided to visit some addresses to see whether they could purchase some cannabis. They went in the car. Mr McCartney was driving, with the appellant in the front passenger seat. In the backseat were Mr Cooper on the right hand side, Ms Rapana in the middle and Mr Dick-Durham on the left.
At trial, two witnesses gave evidence that shortly before the crash the vehicle was behaving erratically:
(a) Mr Mathers said that the car pulled out in front of him at a T intersection without stopping at a stop sign. It then veered over the middle line onto the wrong side of the road as it passed through a junction. He said that while this was occurring, he could see the the front seat passenger seat leaning over as though trying to grab the steering wheel and the driver attempting to push him away.
(b) Mr Connor, who was driving in front of the car when the crash occurred, said that shortly before the crash the car was tooting at another car parked nearby and was veering erratically toward the centre line and back again.
Witnesses who observed the collision said that the car swerved sharply over the centreline and into the bus, which was travelling towards the car on the other side of the road. Of the car’s occupants, only the appellant and Mr Dick-Durham survived, although both suffered serious injuries. Subsequent testing revealed that the driver of the car, Mr McCartney, and the appellant were intoxicated at the time, Mr McCartney having a blood alcohol limit that was double the legal limit.
Mr Dick-Durham gave evidence that immediately prior to the collision, the appellant had leaned forward, looked at the on-coming bus, grabbed the car’s steering wheel and jerked it to the right, putting the car into the path of the bus. A paramedic gave evidence that while still trapped in the wrecked car, Mr Dick-Durham said that the guy in the front had grabbed the wheel of the car. The paramedic was unable to remember the name used by Mr Dick-Durham but said it started with W and was something like Worthy or Worthington. A fireman who attended the accident gave evidence that he heard Mr Dick-Durham say something like “Worthy you dumb bastard, why did you grab the steering wheel for?” Another witness heard him shouting “why did he do that, what made him do that?”
There was some suggestion in Mr Dick-Durham’s evidence that the appellant may have attempted to jerk the steering wheel back to the left at the last instant, as though he was simply playing chicken. However, none of the other witnesses to the collision saw the car veer back toward the centre line. Senior Constable McIntyre of the Serious Crash Unit carried out a crash site analysis. His evidence was that the indications were that the car was still travelling towards the right-hand side of the road when it struck the bus.
In addition, propensity evidence was given by Mr Moore. He said that when the appellant had been a passenger in his car on a previous occasion, he had reached over and grabbed the steering wheel while the car was travelling down the open road, apparently shortly after a truck had gone past on the other side of the road. The appellant turned the wheel to the right, causing the car to veer towards the opposing lane although it did not cross the centre line. Mr Moore said that the appellant said something like “I could end it”. He said that at the time he thought it was a joke, although he was unhappy about what had happened.
The appellant did not give evidence. In his statements to the police he said that he could not remember what happened. His trial counsel suggested that Mr Dick-Durham was wrong when he said that the appellant had grabbed the car’s steering wheel immediately before the crash and was confusing that with the skylarking that had occurred earlier. Obviously, the jury rejected that explanation.
Basis for appeal against conviction
[10] For the appellant, Ms Heah (who was not trial counsel) advanced two grounds in support of the conviction appeal. First, she argued that new evidence should be admitted. She filed a statement of evidence from Professor John Raine, who is a crash analysis expert. Professor Raine challenged aspects of Senior Constable McIntyre’s analysis of the crash scene. Ms Heah argued that if this evidence had been before the jury, different verdicts might reasonably have resulted.
[11] Second, Ms Heah argued that Mr Moore’s propensity evidence was wrongly admitted and, apart from that, the Judge’s instructions to the jury on it were inadequate.
[12] We will address each ground in turn.
New evidence
[13] We will deal first with the nature of the new evidence, then summarise the applicable law before giving our evaluation. This is against the background that Ms Heah’s principal submission was that Professor Raine’s evidence supported the possibility of an inadvertent steering input and this might have caused the jury to have a reasonable doubt had they heard it.
(a) Nature of the new evidence
[14] To place the new evidence in context we must begin with Senior Constable McIntyre’s evidence. He said that when the car struck the bus, the car was travelling on a path approximately 30 degrees to the right of the car’s ordinary line of travel (the principal direction of force). This indicated that the crossing of the centre line was not a gradual movement or the result of “drift”; rather, it was the result of a significant late steering input. The Senior Constable could not, of course, say who was responsible for that significant late steering input but his analysis was consistent with the eye-witness accounts, including that of Mr Dick-Durham (subject to Mr Dick-Durham’s suggestion in evidence that the appellant had tried to jerk the wheel back at the last moment).
[15] Professor Raine filed an initial statement and a supplementary statement. He was not cross-examined by the Crown. Rather, an agreed statement of the key points in his evidence was filed.
[16] In his initial statement, Professor Raine disagreed with Senior Constable McIntyre’s assessment that the principal direction of force was approximately 30 degrees. He said that a sudden manoeuvre resulting in a 30 degree deviation from the car’s proper course would not have been possible and the angle of deviation was probably between five and ten degrees. Professor Raine said that a ten degree deviation would have required an active steering input. A five degree deviation would probably also have required an active steering input, but might possibly arise from a passive steering input through, for example, driver inattention. The professor said that crossing the centre line through driver inattention would generally involve only a two to three degree deviation, but a five degree deviation was possible if the driver was very sleepy or distracted.
[17] Professor Raine said that it was not possible to infer that the lane change was sudden simply as a result of the damage to the car and the bus or from their post-impact movements. However, he indicated that he agreed with Senior Constable McIntyre that, on the basis of the eye-witness statements, the car seemed to have moved suddenly into the path of the bus and this reported suddenness suggested a deliberate steering intervention rather than inattention or carelessness.
[18] Professor Raine also commented on a statement by Mr Dick-Durham concerning the movement of the appellant’s hand at the crash impact. Under cross-examination, Mr Dick-Durham said the appellant’s right hand had hit the passenger-side pillar and that would not have happened if the appellant had not grabbed the wheel. Professor Raine expressed the view that the appellant’s hand hitting the pillar did not necessarily mean that his hand was on the wheel at the moment of impact.
[19] Professor Raine expanded on his views in a supplementary statement. At the conclusion of that supplementary statement he said:
In my opinion, as noted in my main statement of evidence, the question of whether [the appellant] grabbed the steering wheel and steered the [vehicle] into the path of the oncoming bus remains dependent on witness testimony and a judgement on the reliability of [Mr Dick-Durham’s] evidence.
(b) Applicable test
[20] In Fairburn v R the Supreme Court confirmed that the test for the admission of new evidence was as stated by this Court in R v Bain and approved on appeal by the Privy Council.[2] In general, the evidence must be fresh, credible and cogent. To be cogent, the evidence must be such that had it been called at trial it might reasonably have led to a verdict of “not guilty”.
[2] Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25], referring to R v Bain [2004] 1 NZLR 638 (CA) at [22]–[24] and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
[21] Evidence will not be fresh if it could, with reasonable diligence, have been called at trial. However, the freshness requirement is not absolute. Ultimately the test is what will best serve the interests of justice: the courts have recognised that, on occasion, important evidence has not been called when it should have been, creating the risk of a miscarriage of justice. So, expert evidence may be treated as “fresh” even though it could have been obtained before trial if the court is satisfied that trial counsel made a serious error in failing to call it.[3]
(c) Evaluation
[3] Fairburn, above n 2, at [33].
[22] Professor Raine’s evidence could, with reasonable diligence, have been called at trial. Trial counsel has deposed that he did not consider it necessary to retain an independent crash expert. Did trial counsel make a serious error in this respect?
[23] We do not consider that he did. We do not accept that Professor Raine’s evidence might reasonably have led to different verdicts had it been called. The important aspect of Senior Constable McIntyre’s evidence was that the car’s deviation from its proper course was likely to be the result of a significant steering input rather than inadvertence. Professor Raine’s evidence is essentially to the same effect. Although he said that the degree of deviation was much less than that indicated by the Senior Constable, he agreed that the most likely explanation for the deviation was a significant steering input, given the evidence of those who observed the collision. Obviously, neither the Senior Constable nor Professor Raine was able to say what the significant steering input was. That was for other witnesses, in particular Mr Dick-Durham, whose evidence the jury plainly accepted. Professor Raine made this point clear in the extract from his supplementary statement which we have quoted at [19] above.
[24] As to the evidence about the movement of the appellant’s hand on impact, we do not consider that it was of any great significance. The other evidence about the appellant’s actions was much more important.
[25] In summary, then, while it was theoretically possible that driver inadvertence might cause a deviation of as much as five degrees, the eye-witness evidence was not consistent with that explanation. Accordingly, we do not consider that the new evidence is sufficiently cogent and decline to admit it.
Propensity evidence
[26] As we have said, there are two complaints in relation to Mr Moore’s propensity evidence. The first concerns its admissibility and the second concerns the Judge’s instructions in relation to it. We deal with each aspect in turn.
(a) Admissibility of Mr Moore’s evidence
[27] Under s 43(1) of the Evidence Act 2006 the prosecution may offer propensity evidence “only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant”. Section 43(3) sets out a non-exhaustive list of relevant considerations.
[28] In a minute dated 2 September 2011, Whata J recorded that defence counsel had no objection to the Crown’s proposal to adduce propensity evidence from Mr Moore. The Judge indicated that counsel were to agree the scope of Mr Moore’s evidence. Presumably that occurred.
[29] Ms Heah submitted that Mr Moore’s evidence had little if any probative value in relation to an issue in dispute and that any probative value was outweighed by the risk of prejudicial effect.
[30] The unlawful act that the Crown relied on to establish the manslaughter charges was an offence against s 270(1)(b) of the Crimes Act 1961, namely that the appellant, with reckless disregard for the safety of persons or property, did something to a transport facility (interfered with the steering wheel of the car) that was likely to cause danger to persons or property. Accordingly, the jury had to be satisfied that the appellant did grab and jerk the steering wheel so that the car went into the path of the oncoming bus in circumstances where he was aware of the risk of danger to others from his action and deliberately ran that risk. In our view, Mr Moore’s evidence was relevant to two issues in dispute. It went both to the conduct that the Crown alleged the appellant committed (grabbing the steering wheel and jerking it to the right) and to his awareness of risk associated with that action.
[31] As the Supreme Court said in Mahomed v R, the cogency of propensity evidence turns on ideas of coincidence and probability.[4] Deliberately grabbing the steering wheel of a car while it is being driven by someone else on a public road and jerking it so that the car veers to the right is highly unusual conduct (absent, of course, some emergency). The fact that the appellant had acted in that way in the past was relevant to whether or not he had done so on this occasion. Even though the propensity evidence consisted of a single incident, its highly unusual nature and compelling similarity with what was alleged on the present occasion makes it relevant.[5]
[4] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3] per Elias CJ, Blanchard and Tipping JJ and at [51] and [81] per McGrath and William Young JJ.
[5] See, for example, O’Reilly v R [2011] NZCA 32 at [12].
[32] Mr Moore’s evidence, if accepted, showed that the appellant was, on a previous occasion, prepared to interfere deliberately with another person’s steering of a motor vehicle while it was being driven on a public road so as to cause it to veer to the right. In addition, by making the statement “I could end it” on that earlier occasion, the appellant showed that he was aware of the possible consequences of his conduct. This also was relevant to the present charges as it helped to establish that the appellant was aware of the risk attached to the conduct he was alleged to have committed. The propensity evidence did not, however, go so far as to show that the appellant had a tendency to act with a reckless disregard for the safety of others as there does not appear on the evidence to have been any real risk of harm on the earlier occasion, given the absence of oncoming traffic at the time.
[33] We consider that Mr Moore’s evidence had probative value. Like all propensity evidence, it also had prejudicial effect, but it was not unfairly prejudicial. Accordingly, the propensity evidence was, in our view, rightly admitted.
(b) The Judge’s directions
[34] Ms Heah argued that Whata J’s directions concerning the use the jury could make of the propensity evidence were inadequate. She submitted that the Judge did not identify the particular conduct and the mental state that was in issue and did not explain precisely how the propensity evidence might bear on the question of the appellant’s guilt.
[35] Whata J’s direction on propensity was as follows:[6]
[78] I now want to address what has been called propensity evidence. Mr Moore gave evidence that the accused grabbed Mr Moore’s steering wheel on another occasion. Mr Moore also gave evidence that the accused then said, “I could end it or something” …. This is referred to as propensity evidence. It is put to you by the Crown to show that the accused had a tendency to act in that way, knowing the consequences of it.
[79] That line of reasoning is permissible, but only if the circumstances of the earlier incident establish a tendency on the part of the accused to act in a certain way. Here the key issue is whether the accused grabbed the steering wheel. The Crown highlights that on both occasions, the accused grabbed the steering wheel and moved it to the right causing the car to move to the right. If you accept that those similarities are present, and that on the first occasion the accused did grab the steering wheel, then that is evidence you can take into account in deciding if the accused is the offender on this occasion.
[80] The defence accepts that there is some similarity but contests the reliability of the evidence. Mr Rapley says that because Mr Moore told Mr Dick-Durham about his incident before the crash, Mr Dick-Durham’s evidence is of lesser value and that in fact Mr Moore’s recollection affected Mr Dick-Durham’s recollection.
[81] Mr Rapley is correct when he says that this is relevant to the weight you can give to the significance of the coincidence. It might be said that Mr Dick-Durham may have been influenced by Mr Moore. But it is also relevant that Mr Dick-Durham made the statements at the scene of the crash. It might be said that, given the circumstances, Mr Dick-Durham is unlikely to have had the opportunity to contrive what he said.
[82] The difference between the defence and the Crown on this is a matter for you, applying your commonsense to decide whether Mr Dick‑Durham was affected by Mr Moore’s statement or whether his statements at the time of the crash and subsequently are reliable.
[83] I simply wish to add that just because the accused may have acted in a similar way on a previous occasion does not mean that he did it this time.
[6] R v Redeemed HC Christchurch CRI-2010-061-982, 15 September 2011 [summing up].
[36] In Mahomed William Young J, delivering the judgment of McGrath J and himself, said:[7]
[7] Mahomed, above n 4.
[95] When giving a propensity evidence direction a judge should:
(a)Identify the evidence in question and explain why it has been led and the legitimate respects in which it might be taken into account by the jury. We see no need for the judge to define “propensity” (compare step (2) of Stewart)[8]. In cases in which a demonstrated propensity could legitimately be a stepping stone in the reasoning process of the jury, that should be identified using concrete language addressed not to “propensity” as an abstract concept, but rather specifically to the particular pattern of behaviour or thinking which is in issue. In most cases, the legitimate reasoning available to the jury will be based around coincidence or probability. That should be explained to the jury in simple and direct language addressed to the particular facts and what is said to be the implausible coincidence or how the evidence otherwise bears on the probability of the defendant being guilty. This is likely to require a discussion of the similarities involved in the conduct alleged. Where there are factors which may explain the postulated coincidence (for example, suggested collusion between the witnesses) that too should be addressed. We see no need for the judge to otherwise go through the s 43(3) criteria (compare step (3) of Stewart).[9] These criteria are addressed to the admissibility decision the judge must make and not the factual assessment which is for the jury.
(b) Put the competing contentions of the parties.
(c)Caution the jury against reasoning processes which carry the risk of unfair prejudice associated with the propensity evidence. This should usually be along the lines that the fact that the defendant has or may have offended on other occasions does not establish guilt and that the only legitimate reasoning process available to the jury is the one which has been outlined.
[8] Stewart (Peter) v R [2008] NZCA 429, [2010] 1 NZLR 197 at [30].
[9] Ibid.
[37] Whata J’s directions on propensity must be read against the background of the Judge’s directions on the ingredients of the offences. In relation to the manslaughter charges, the Judge identified in general terms what the Crown had to prove, gave the jury an issues sheet setting out what they had to consider in the particular circumstances of this case and took the jury through that issues sheet. So the jury would have had a good appreciation of what the Crown had to establish. At [78] of his summing up, the Judge correctly identified the use to which the Crown sought to put the propensity evidence, referring to the tendency in terms both of conduct and awareness. It might have been helpful had the Judge taken the jury back to the issues sheet to assist his explanation at this point, but he did identify the two issues in respect of which the propensity evidence was relevant.
[38] The Judge then made it plain that propensity reasoning was permissible only if the relevant tendency was established. He went on to focus on the conduct alleged, identifying the key issue as being whether the appellant had grabbed the steering wheel. In the circumstances of the case, that was appropriate. If the jury concluded that the appellant had grabbed the steering wheel and jerked it so as to cause the car to veer suddenly to the right, it is difficult to see how they could reasonably have concluded that he did not have the necessary awareness or recklessness given that there was no apparent explanation for the conduct (apart from a suggestion that the appellant may have been “horsing around”).
[39] Finally, the Judge correctly warned the jury not to reason that the appellant was guilty simply on the basis of the propensity evidence. This followed a discussion about the reliability of Mr Dick-Durham’s evidence. The effect of these directions was that the jury was being told that the propensity evidence was only one item of evidence and that they should not jump to a conclusion on the basis of it but had to consider it with all of the other evidence that went directly to the alleged offending.
[40] In the result, although the instructions could have been a little more explicit, we consider that they were sufficient.
[41] Accordingly, we dismiss the conviction appeal.
Basis for appeal against sentence
[42] As we have said, Whata J sentenced the appellant to a term of 14 years’ imprisonment with a minimum period of imprisonment of seven years. Ms Heah argued that the end sentence was too high, essentially because the starting point was too high and too high an uplift was applied. She also argued that the imposition of a minimum period of imprisonment of 50 per cent was unjustified.
Evaluation
[43] Before addressing Ms Heah’s arguments, we set out the basis for the sentence imposed.
(a) Sentencing
[44] The Judge noted that the appellant has a significant history of offending, having more than 80 convictions for a variety of offences, including offences involving dishonesty, driving offences, offences of violence and kidnapping. He also noted that the appellant refused to participate in the preparation of the pre-sentence report. That report was not positive. It recorded that the appellant had a history of mental health problems and head injuries. It assessed the appellant as being at a high risk of re-offending unless he abstained from alcohol and drugs and obtained some stability in terms of his mental health and his lifestyle. The Judge also noted the significant impact that the offending had had on the victims and their families.
[45] The Judge fixed a starting point of 13 years on each of the manslaughter charges. In doing so, he considered a number of other motor vehicle manslaughter cases, where the starting points were between six and a half and 12 years. The Judge was satisfied that the offending in the present case was in a class of its own. The jury’s verdicts indicated that the jury was satisfied that the appellant knew his actions were likely to cause harm to the other occupants of the car but decided to go ahead regardless. Given the close proximity of the car to the bus when the appellant grabbed and jerked the steering wheel, serious injury or death was almost inevitable. This, together with the other offending of which the appellant had been convicted, justified a starting point of 13 years.
[46] To this starting point, the Judge added an uplift of one year to take account of the appellant’s previous convictions and his propensity for dangerous conduct when intoxicated and in a car. The Judge did not give any credit for mitigating factors. In particular, he was not satisfied that the appellant had shown any significant remorse. This produced an end sentence of 14 years’ imprisonment, which the Judge noted was the highest sentence that he could impose for motor manslaughter. However, given the deliberate nature of the appellant’s conduct, the Judge considered that this result was necessary.
[47] The Judge went on to impose a minimum period of imprisonment, for reasons we will explain at [54] below.
(b) Starting point too high?
[48] Ms Heah argued that the starting point was too high and resulted in an end sentence that is manifestly excessive. She submitted that the Judge had given too much weight to the deliberate nature of the appellant’s conduct and adopted a starting point that was too high when assessed against comparable cases, in particular because there were aggravating factors in those cases that are not present in this case.
[49] As is apparent from what we have said at [45] above, the Judge was well aware of other relevant cases and of the fact that some involved aggravating features not present in this case. However, he considered that that feature was more than offset by the degree of foresight and risk involved in the appellant’s actions. We agree with the Judge that this case is in a class of its own. What the appellant did involved a degree of deliberateness and danger not usually found in motor manslaughter cases. As the Judge said, it is difficult to fathom why anyone would turn a steering wheel into the path of an oncoming bus. The appellant was fortunate not to be facing murder charges.
[50] Moreover, the context of this offending should not be forgotten. The appellant’s connection with Mr Dick-Durham came though the appellant’s role as a tutor. Mr Dick-Durham and his two friends who died in the crash were young people who, on account of their youth, were to some extent vulnerable. The appellant acted in blatant disregard of this.
[51] In our view, the starting point of 13 years was within range.
(c) Uplift too great?
[52] Ms Heah submitted that the uplift of 12 months which the Judge imposed to reflect the appellant’s previous offending was too great having regard to the number and age of the appellant’s relevant offending. The incident at issue occurred in May 2010. The appellant’s relevant recent offences were a conviction for driving with excess blood alcohol (third or subsequent offence) in 2007 and three driving related offences in 2004. Apart from those convictions, the appellant’s convictions since 2004 are relatively minor property and public order offences. Prior to 2004, the appellant had been convicted of numerous driving offences, offences against property and several offences involving violence, but this was in the period 1986 to 1995. In 1995 he had been sentenced to ten years’ imprisonment on kidnapping and aggravated robbery charges.
[53] Against this background, we consider that there is force in Ms Heah’s submission that the uplift imposed in this case was excessive. A modest uplift might have been justified to reflect the appellant’s previous relevant criminal history. But, as with all such uplifts, care had to be taken to ensure that any uplift did not amount to unfair “double punishment” and that the offender’s record was not purely historical but was linked in some meaningful way to the current offending.[10] In this case, the appellant’s criminal history, while extensive, has only a modest link in terms of substance and timing to the current offending. Accordingly we consider that a 12 month uplift was excessive and no more than six months was justified. This would produce an end sentence of 13 years, six months’ imprisonment.
(d) Minimum period of imprisonment
[10]See, for example, the discussion in Beckham v R [2012] NZCA 290 at [84] and Cooper-Siggleko v R [2012] NZCA 580 at [16]–[18].
[54] The Judge imposed a minimum period of imprisonment of seven years (50 per cent of the end sentence). The Judge referred to the factors identified in s 86 of the Sentencing Act 2002, namely the need for accountability, denunciation, deterrence and protection of the community. The Judge then noted that the offending was serious and that it was necessary to punish, deter and denounce it. He also noted that in two comparable cases minimum periods of imprisonment had been imposed. The Judge then said:
[76] On balance, I consider that a minimum period of imprisonment is necessary to meet the s 86 purposes. You have an extensive history of convictions. You have a propensity to act and have acted with a blatant disregard for the wellbeing of others. While I acknowledge that you would benefit from rehabilitative course[s], this is outweighed in my view by the need to hold you to account, to denounce your actions and to strongly deter your behaviour.
[55] In challenging the Judge’s conclusion that a minimum period was necessary, Ms Heah argued that the rate and seriousness of the appellant’s offending had decreased since 2004. The appellant did not have a propensity for dangerous behaviour and the imposition of a minimum period would delay the appellant’s opportunity to participate in rehabilitative programmes. In the alternative, Ms Heah argued for a minimum period of less than 50 per cent.
[56] In the absence of a minimum period, the appellant would be eligible for release on parole after serving one third of his sentence (four years, eight months of 14 years or four years, six months of 13 years, six months.). Like the Judge, we consider that this period is insufficient to hold the appellant accountable and to denounce his actions given the features of the offending that we have identified at [49]–[50] above. Moreover, the appellant’s history indicates that a minimum period was also necessary to protect the community. We see no basis for interfering with the Judge’s selection of 50 per cent of the end sentence.
[57] In the result, then, we allow the appeal against sentence, but only to the extent that the end sentence will be reduced by six months to 13 years, six months’ imprisonment and the minimum period of imprisonment will be reduced by three months to six years, nine months’ imprisonment.
Decision
[58] The appellant’s application to adduce new evidence is declined.
[59] The appeal against conviction is dismissed.
[60] The appeal against sentence is allowed. The sentence of 14 years’ imprisonment with a minimum period of imprisonment of seven years is quashed and a sentence of 13 years, six months’ imprisonment with a minimum period of imprisonment of six years, nine months is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
5
0
0