Young v The Queen

[2017] NZHC 1576

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-000016 [2017] NZHC 1576

BETWEEN

JORDAN MITCHELL YOUNG

Appellant

AND

THE QUEEN Respondent

Hearing:	7 July 2017 (at Wellington)
Counsel:	M J Phelps for Appellant (via AVL) M L Wong for Respondent
Judgment:	7 July 2017

JUDGMENT OF COLLINS J

Introduction

[1]      In March 2016, Mr Young was remanded in custody in relation to three charges of burglary and one charge of receiving stolen goods.  While in prison he wrote a letter to a friend.   The key parts of the letter acknowledge it was “pretty blatant”, but nevertheless Mr Young asked his friend to “put his hand up” for various items found in Mr Young’s car with “the aim [of] … get[ting] rid of the 3 burglary charges [Mr Young was] looking at …”. As an inducement, Mr Young told his friend he would receive “10 grand cash … pretty much whatever you want name the price”. The  letter  was  intercepted  by prison  authorities  and  never  reached  its  intended recipient.

[2]      On 23 November 2016, Judge Rea sentenced Mr Young to two years and

seven months’ imprisonment in relation to the burglary and receiving charges.  He

was also ordered to pay $5,880 by way of reparation.1

1      New Zealand Police v Young [2016] NZDC 23750.

YOUNG v R [2017] NZHC 1576 [7 July 2017]

[3]      Mr Young initially pleaded not guilty to a charge of attempting to pervert the course of justice in relation to the letter he had written to his friend.2

[4]      Following a failed attempt to have the letter ruled inadmissible, and eight months after the attempting to pervert the course of justice charge had been laid, Mr Young pleaded guilty and came before Judge Adeane for sentencing on 7 April

2017.  Judge Adeane sentenced Mr Young to a term of three years’ imprisonment.3

That  sentence  was  imposed  cumulatively  on  the  two  years  and  seven  months’

imprisonment previously imposed by Judge Rea.

[5]      Mr Young now appeals the sentence imposed by Judge Adeane on three grounds, namely:

(1)       That  the  starting  point  of  three  years’ imprisonment  adopted  by

Judge Adeane was manifestly excessive.

(2)That an uplift of 12.5 per cent made by Judge Adeane  to reflect Mr Young’s    previous    offending    was    excessive    and    that    a corresponding reduction of 12.5 per cent to reflect Mr Young’s guilty plea was inadequate.

(3)That Judge Adeane erred by not reducing the sentence to take account of the totality principles in s 85 of the Sentencing Act 2002.

[6]      This judgment explains why I am allowing the appeal in part by substituting the sentence of three years’ imprisonment with one of 18 months’ imprisonment, which is to be served cumulatively with the sentences imposed by Judge Rea.

Mr Young

[7]      Mr  Young  is  36  years  old.    He  has  77  previous  convictions,  including convictions in 2006 and 2002 for attempting to pervert the course of justice.   Mr

Young was sentenced to periods of imprisonment for those offences, which were imposed concurrently with sentences of imprisonment for other offending.

District Court decision

[8]      Judge Adeane placed Mr Young’s offending within the more serious range of cases of attempting to pervert the course of justice.  He said Mr Young’s actions were a “highly calculated attempt” that sought to “impose on the loyalty of his friend and offer a large cash bribe to create false criminal convictions”.4

[9]      Judge Adeane took into account Mr Young’s guilty plea, which he said would normally attract a discount of 12.5 per cent but that in the circumstances of this case, that discount should be offset by an uplift of 12.5 per cent to recognise Mr Young’s criminal history.

[10]     Judge Adeane considered the totality of Mr Young’s offending and that he had already been sentenced for the burglary and receiving charges.  Judge Adeane said:5

I liken the situation today to that of sentenced prisoners committing violent offences within the prison environment.  Issues of totality are not so pressing where   sentenced   offenders   deliberately   choose   to   compound   their wrongdoing by further and different offending.

[11]     Judge Adeane reasoned that an adjustment for totality was not appropriate in light of Mr Young’s background and the nature of his offending.   Accordingly, a cumulative sentence of three years’ imprisonment was imposed.

Approach to appeal

[12]     An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should

be imposed.6  The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.7

Analysis

Starting point

[13]     Mr Phelps for Mr Young, and Ms Wong for the Crown, have referred to a number of cases in an effort to draw analogies for the purposes of setting a starting point.

[14]     In  R  v  Churchward,  the  Court  of Appeal  emphasised  the  seriousness  of attempting to pervert the course of justice and said that offending of this nature “is, in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment”.8

[15]     After canvassing a number of authorities, Andrews J observed in Rakete v

Police:9

... that a starting point of three years’ imprisonment is a benchmark for relatively  serious  cases,  and  a  starting  point  of  18  to  24  months’ imprisonment is appropriate for less serious cases …

[16]     In my assessment, the key features to Mr Young’s offending can be distilled

to the following points:

(1)He made a “blatant” attempt to pervert the course of justice when he wrote to his friend.

(2)      There was no threat of violence or attempt to intimidate in this case.

In this respect Mr Young’s circumstances can be distinguished from

Miller v R,10  when the Court of Appeal endorsed a starting point of three and a half years for an appellant who wrote a letter from prison

6      Criminal Procedure Act 2011, s 250; see Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR

482.

7      Ripia v R [2011] NZCA 101 at [15].

8      R v Churchward CA439/05, 2 March 2006 at [14].

9      Rakete v Police HC Auckland CRI-2009-404-179, 21 August 2009 at [25].

overtly threatening two  witnesses.   Mr Young’s conduct was also distinguishable from that of the offenders in R v Kingi11 and Harting v R,12  where the Court of Appeal upheld starting points of two years’ imprisonment  for  defendants  who  attempted  to  prevent  witnesses from giving evidence and changing their evidence.   There was an “undercurrent of violence” associated with the offending in those cases.13

(3)The inducement offered by Mr Young elevated the seriousness of his conduct.

(4)       Mr Young’s actions were planned, albeit with little foresight.

[17]     Taking  these  factors  into  account,  I  am  satisfied  that  Judge  Adeane overreacted when setting a starting point of three years’ imprisonment.  A starting point of two  years’ imprisonment more appropriately reflects the gravity of the offending in this case.

Uplift and discount

[18]     Mr  Phelps  acknowledged  that  his  original  concerns  about  the  Judge’s approach to an uplift to reflect Mr Young’s previous convictions and the discount for his guilty plea were not the strongest features of Mr Young’s appeal.   I will nevertheless deal with those grounds of appeal.

[19]     In uplifting a sentence to recognise previous convictions, it is essential that a defendant not be re-punished for earlier offending. As the Court of Appeal explained in Tiplady-Koroheke v R, the purpose of an uplift for previous offending is to address a tendency on behalf of a defendant to commit particular types of offences, to deter

others from similar offending and to protect the public.14

11     R v Kingi CA360/01, 1 May 2002.

12     Harting v R [2016] NZCA 296.

13     R v Kingi, above n 11, at [18]; and Harting, above n 12, at [17] and [21].

14     Tiplady-Koroheke v R [2012] NZCA 477 at [23] and [24].

[20]     In the present case the uplift of 12.5 per cent to reflect Mr Young’s two previous convictions for attempting to pervert the course of justice was consistent with the uplift imposed by the Court of Appeal in  Tiplady-Koroheke.   In these circumstances the uplift imposed was appropriate.  Similarly, no issue can be taken with the discount of 12.5 per cent for the guilty plea, which was entered eight months after the charge had been laid and  only after Mr Young unsuccessfully challenged the admissibility of the letter in question.

Totality

[21]     Judge Adeane declined to reduce the sentence on the basis of the totality principles in s 85 of the Sentencing Act.  In doing so, he drew a comparison with “sentenced prisoners committing violent offences within the prison environment”.15

That is not an apposite comparison.  Mr Young did not engage in any form of violent conduct.

[22]     In Tryselaar v R, the Court of Appeal observed that an adjustment may not be required to reflect the totality of a defendant’s offending where the offending in question occurs in a prison environment and is serious.16    That case also involved acts of serious violence against prison officers and is therefore not directly comparable to Mr Young’s case.

[23]     In Opetaia v R, the Court of Appeal explained that where a defendant is sentenced by different Judges for a series of offending, the proper approach for the Judge conducting the last sentencing exercise is to determine what the overall sentence for the defendant’s offending should be and make any adjustments that are

required.17

[24]     Adopting that approach I am satisfied that an adjusted end sentence of four years  and  seven  months’  imprisonment  would  still  be  out  of  proportion  to Mr Young’s offending.   I will accordingly reduce his sentence for attempting to

pervert the course of justice by a further six months to reflect the totality principles

15     R v Young, above n 3, at [7].

16     Tryselaar v R [2012] NZCA 353 at [18].

17     Opetaia v R [2013] NZCA 434.

in  s  85  of  the  Sentencing Act.    This  produces  an  end  sentence  of  18  months’

imprisonment for the attempting to pervert the course of justice charge.

Conclusion

[25]   The  starting  point  adopted  by  Judge  Adeane  was  significantly disproportionate to the gravity of Mr Young’s offending and resulted in an end sentence that was manifestly excessive.

[26]     A starting point of two years’ imprisonment was appropriate.  The uplifts for previous convictions and discount for the guilty plea cannot be criticised.  When the totality principles are applied however, it is necessary to reduce the sentence for attempting to pervert the course of justice charge by a further six months.   This produces an end sentence of 18 months’ imprisonment for the attempting to pervert the course of justice charge.   That sentence will be served cumulatively with the sentences previously imposed by Judge Rea.

[27]     This substituted sentence:

(1)       holds Mr Young accountable for the harm he has done;18

(2)promotes  a  sense  of  responsibility and  acknowledgement  for  that harm;19

(3)       denounces Mr Young’s conduct;20

(4)deters Mr Young or others from committing the same or a similar offence;21 and

(5)is    the    least    restrictive    outcome    that   is    appropriate    in    the circumstances.22

18     Sentencing Act 2002, s 7(1)(a).

19     Section 7(1)(b).

20     Section 7(1)(e).

21     Section 7(1)(f).

22     Section 8(1)(g).

[28]     The  appeal  is  allowed.    The  sentence  of  three  years’ imprisonment  for attempting to pervert the course of justice is quashed and substituted with a sentence of 18 months’ imprisonment to be served cumulatively with the sentences previously

imposed by Judge Rea.

D B Collins J

Solicitors:

Crown Law Office, Wellington for Respondent