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…

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 Young v The Queen

Details

AGLC: Young v The Queen [2017] NZHC 1576
Case: [2017] NZHC 1576
Decision Date: 7 July 2017

CaseChat Overview and Summary

Jordan Mitchell Young appealed against a sentence imposed by Judge Adeane, who had sentenced him to a term of three years' imprisonment for attempting to pervert the course of justice, in addition to the sentences he had already been given for his other crimes. The appeal was heard by Collins J. The appeal was based on three grounds: (1) the starting point of three years' imprisonment was manifestly excessive; (2) an uplift of 12.5 per cent made by Judge Adeane to reflect Mr Young's previous offending was excessive and a corresponding reduction of 12.5 per cent to reflect Mr Young's guilty plea was inadequate; and (3) Judge Adeane erred by not reducing the sentence to take account of the totality principles in s 85 of the Sentencing Act 2002.

Collins J found that the starting point adopted by Judge Adeane was significantly disproportionate to the gravity of Mr Young's offending. While the Court of Appeal had endorsed a starting point of three years' imprisonment for relatively serious cases of attempting to pervert the course of justice, Mr Young's case was less serious as there was no threat of violence or intimidation. The inducement offered by Mr Young elevated the seriousness of his conduct, but his actions were planned, albeit with little foresight. Therefore, a starting point of two years' imprisonment more appropriately reflected the gravity of the offending in this case.

However, the uplift of 12.5 per cent to reflect Mr Young's previous convictions for attempting to pervert the course of justice was consistent with the uplift imposed by the Court of Appeal in Tiplady-Koroheke v R. The discount of 12.5 per cent for the guilty plea was also appropriate, as it was entered eight months after the charge had been laid and only after Mr Young unsuccessfully challenged the admissibility of the letter in question. When the totality principles were applied, it was necessary to reduce the sentence for the attempting to pervert the course of justice charge by a further six months, producing an end sentence of 18 months' imprisonment for the charge. This sentence would be served cumulatively with the sentences previously imposed by Judge Rea.

The appeal was allowed, and the sentence of three years' imprisonment for attempting to pervert the course of justice was quashed and substituted with a sentence of 18 months' imprisonment to be served cumulatively with the sentences previously imposed by Judge Rea. This substituted sentence held Mr Young accountable for the harm he had done, promoted a sense of responsibility and acknowledgement for that harm, denounced Mr Young's conduct, deterred Mr Young or others from committing the same or a similar offence, and was the least restrictive outcome that was appropriate in the circumstances.

Orders