|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 17 September 2019
|
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
|
|
CRI-2019-443-19
[2019] NZHC 2283 |
|
BETWEEN
|
GREGORY ROSS BUCHANAN
Applicant
|
|
AND
|
THE QUEEN
Respondent
|
|
Hearing:
|
11 September 2019
|
|
Appearances:
|
S J Grey for the Appellant
K L Kensington for Respondent
|
|
Judgment:
|
11 September 2019
|
JUDGMENT OF COOKE J
[1] On 7 June 2019 Mr Buchanan was sentenced before Judge Hikaka in the District Court at New Plymouth to five years’ imprisonment after pleading guilty to one representative charge of blackmail.1
[2] Mr Buchanan appeals his sentence on the grounds that the sentencing decision contained factual errors, that the true nature of the offending was not recognised in the sentence imposed, that the starting point was not in line with the authorities concerning protest action, and that inadequate discount was given for Mr Buchanan’s age and remorse.
[3] The Crown submits there was no error in the sentence and the sentencing Judge was entitled to proceed on the summary of facts before him. It says the starting point was justified and discounts for mitigating factors appropriate.
BUCHANAN v R [2019] NZHC 2283 [11 September 2019]
Factual background
[4] The Department of Conservation (the Department) is responsible for conserving New Zealand’s natural and historical heritage. One of the Department’s key programmes is eradicating invasive species such as rats, stoats and possums, which pose a threat to native wildlife. Part of this programme involves use of the biodegradable pesticide known as 1080. 1080 is highly effective for the control of pests and controlling the spread of bovine tuberculosis. But the Department’s use of 1080 has caused controversy. There are a number of active protest groups and organisations against the use of 1080. Mr Buchanan is one such protestor.
[5] On 25 September 2017 the Department’s New Plymouth office received a letter from Mr Buchanan. The letter did not name an author but purported to be from “The Hunters of New Zealand Taranaki”. The letter stated that the Hunters of New Zealand had purchased 25 top breeding hinds and six top Sika stags and released them into the wild between Waverley and Mokau. The letter threatened to continue to release deer if the Department did not stop using 1080.
[6] The Department confirmed the presence of Sika deer in the Taramoukou Conservation Area in October 2017. Sika deer are notoriously difficult to hunt and eradicate from forests once they become established. There was reportedly no prior Sika deer population in the Taramoukou Conservation Area or wider Taranaki conservation lands administered by the Department. The Department commenced an eradication operation and were successful in culling most of the deer by late December 2017.
[7] The Department received a second letter from Mr Buchanan on 4 December 2017. Again, the letter was signed off from “The New Zealand Hunters”. The letter warned the Department that the war on 1080 was starting, saying “we are going to bring you bastard to your knees” and “this will be a war like no other”. It contained a number of threats:
(a) The New Zealand Hunters had already released 20 Sika hinds and they had now released 25 more.
(b) They threatened to take down helicopters supporting 1080 drops and “take down people one by one. Blood [will] fall. Watch this happen”.
(c) They would collect 1080 pellets themselves and target open milk vats, meat processing companies to “bring the meat and milk industry to their knees”.
(d) The New Zealand Hunters had more guns than the Department and police.
[8] The letter concluded “let the war begin, the war begins, just be very careful stop using 1080”. Mr Buchanan also sent copies of the letter to the Taranaki Daily News and it received national media attention.
[9] On 27 July 2018 the Department received a third letter from Mr Buchanan. The back of the envelope read “the hunters of New Zealand we will win you watch, 1,600,000 registered gun owners”. The letter stated the hunters of New Zealand had released twenty Sika hinds and four stags in four separate drops from Waikawai to Waverley. The letter wrote:
Be very careful that if you keep dropping 1080 on our mountains and bushland we will target Mt Egmont with Sika deer and wild pigs. If you push us we will target the milk vats and meat.
[10] Again, copies of the letter were sent to the Taranaki Daily News.
[11] On 1 November 2018 Mr Buchanan sent another letter to the Department. The envelope read “first of many to fall, a war like no other watch this space”. Department staff noticed a blue substance protruding from the envelope opening. The letter was not opened by staff, fearing for the unknown substance. ESR initially suspected the substance was rodenticide but a second analysis revealed it was not poison.2 It was blue chalk. The letter enclosed read:
Anti 1080 The hunters, O deer how sad, first of many to fall from the sky. Remember One by One we will take you down bastards. Stop this call you all
on very dangerous ground. 1080 milk/1080 meat. Release wild pigs and deer at the same time on mount Egmont. 50 cal will do the job. Next time be careful a war like no other”.
[12] Copies of the letter were also sent to the news outlet, Stuff.
[13] On 6 November 2018 police executed a search warrant at Mr Buchanan’s address. They located blue pellets and blue crushed powder in a garden shed on the property. Mr Buchanan denied being the author of the letters. He said he did not know anything about the blue substance.
[14] The victim impact statements reveal the extent of the harm the letters caused to the Department, their employees nationwide, and contractors. The Director General expresses the shock and devastation felt throughout the Department. The New Plymouth office was temporarily shut to ensure employee safety. Extra security was sourced for the New Plymouth office, Taranaki visitor centres and the homes of staff. The Department has spent an estimated $128,000 on investigating the threats, sourcing extra security and a further $85,000 to eradicate the Sika deer. The Director General also spoke of the difficulties associated with postponing and deferring vital conservation work while the threats were managed, as well as the emotional toll on employees.
District Court decision
[15] After outlining the charges and the facts, the Judge noted the significant impact of the offending as recorded in the victim impact statements. He outlined the pre- sentence report and its reference to Mr Buchanan’s genuine expression of remorse and his initial willingness to participate in restorative justice. As to Mr Buchanan’s personal circumstances, the Judge recorded Mr Buchanan was 65 years old and had been married for 40 years. He had his own landscaping business and had provided letters of support attesting to his good character.
[16] The Judge examined the authorities in relation to an appropriate starting point, particularly R v Kerr.3 That case concerned the 2014 1080 infant formula blackmail
3 R v Kerr [2016] NZHC 512.
threat. In that case a starting point of 11 years, six months’ imprisonment was taken. Citing R v Kerr, the Judge considered the following aggravating features of Mr Buchanan’s offending:
(a) the threats were violent, threatening the use of weapons, bloodshed and the use of contaminated products,
(b) the threats were repeated four times,
(c) the significant loss caused by the threats,
(d) the vulnerability of the victims as Department workers often work in remote and isolated areas and are identifiable by way of uniform and branded motor vehicles,
(e) the level of sophistication and pre-meditation in the threats, including the use of blue powder to mimic the colour of 1080 pellets, and
(f) hostility to a particular group, being the Department and their workers.
[17] The Judge identified Mr Buchanan’s age and remorse as mitigating factors. He also noted Mr Buchanan was entitled to a full discount for guilty plea.4 There was no additional penalty for previous convictions but likewise there was no credit for previous good character given his five previous convictions.
[18] Overall the Judge determined a starting point of seven years’ imprisonment was appropriate. After discounts for remorse, age and guilty plea, the end sentence was five years’ imprisonment.
Approach to appeal
[19] This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence ought to be imposed.
4 At [61].
[20] A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.5 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.6
Factual errors in the summary of facts and new evidence
[21] Ms Grey for Mr Buchanan submits the appellant was sentenced based on “assertions in the summary of facts which were unfair, incorrect and/or which the Crown (when asked) was unwilling or unable to support with evidence”.
[22] In support of this argument, the appellant seeks leave to adduce further evidence on appeal. That evidence is an opinion from an expert, Mr Alan Frank Simmons. Mr Simmons evidence attests to the Sika deer populations present in the Taramoukou Conservation Area and wider Taranaki conservation lands prior to Mr Buchanan’s release of Sika deer. That is at odds with the statement contained in the summary of facts that “prior to the illegal release there were reportedly no Sika deer populations in the TCA or wider Taranaki lands administered by DOC”.
[23] The Court must accept as proved all facts essential to a plea of guilty.7 Mr Buchanan pleaded guilty to the agreed summary of facts. Sentencing proceeds on the basis of that summary. An appeal must similarly be decided having regard to the facts in the agreed summary.8 It follows that leave to adduce the further report from Mr Simmons should be declined. It is not relevant to the appeal against sentence. It is also not sufficiently fresh.9
[24] That is not the end of the issue, however. Mr Buchanan was not charged with releasing, or being involved in the release of Sika deer into the Taramoukou Conservation Area. Neither did the summary of facts on which he was sentenced say
5 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
6 Ripia v R [2011] NZCA 101 at [15].
7 Sentencing Act 2002, s 24(1)(b).
9 Mark v R [2019] NZCA 121 at [16]; and Lundy v R [2013] UKPC 28; [2014] 2 NZLR
that he had been involved in such a release. The written submissions provided by counsel to the District Court reveal that the Crown invited the Court to draw the inference that the appellant was aware of and supportive of the release of the deer. The submissions for Mr Buchanan were, however, that he was not involved in any release, and that it was generally known to local hunters that Sika deer already existed within the conservation areas. It is apparent that the District Court Judge has nevertheless taken the inference the Crown sought him to draw. He said:
[48] There ... was obviously a clear link to the release of, the threat to release deer and the actual release of deer into DOC areas. They were not previously in those areas. You had the [knowledge], that is a clear implication, a clear inference from the facts of this case that deer had been released. So when they were found there in that area you refer to, the threat needed to be taken seriously.
[25] That is further confirmed by the Judge including the financial costs in the amount of $85,000 for eradicating the deer as part of the loss caused by the offending. Ms Kensington accepted that the Judge was wrong to do this. It involved the Judge proceeding on the basis that Mr Buchanan had knowledge of the unlawful release of deer, and a liable party, and that the threats that he had made needed to be assessed against that background. It effectively involved the Judge making an adverse factual finding on a matter that was disputed.
[26] It was not appropriate for the Judge to do this. Drawing additional inferences of fact from an agreed statement of facts may not be appropriate. Such agreed summaries can be carefully prepared and negotiated between counsel. Care needs to be taken when drawing additional inferences that are not squarely addressed in the agreed statement of facts. Judges are required to be realistic when addressing an agreed statement of facts which are not formulated in a vacuum. But when applying that realism the Court needs to be sure that the defendant is not being treated unfairly.
[27] Here the factual matter was squarely disputed. I accept that it was incorrect to sentence Mr Buchanan on the assumption that he had personal knowledge, and involvement, in the illegal release of deer.
[28] Ms Grey raised other alleged errors of fact in the sentencing process, but I do not accept there was any relevant error on those matters. It was clear at sentencing
that the blue powder was chalk and not poison. The additional matters sought to be advanced in relation to the financial effect of the offending and the threats to the food chain are not properly reassessed by this Court on appeal. As indicated the sentencing needed to proceed on the agreed summary of facts and other material such as the victim impact statements. Neither do I accept that any errors are identified in the further material now advanced.
[29] As indicated above, the ultimate question is whether the sentence ultimately imposed here was manifestly excessive. The fact that the Judge incorrectly proceeded on the basis I have described does not by itself establish that. But it is relevant to assessing whether the sentence ultimately imposed was within an available range.
Starting point too high
[30] Ms Grey submits that the starting point of seven years’ imprisonment adopted by the Judge was too high.
[31] In developing that submission, Ms Grey questions whether the appellant should have been charged with an offence of blackmail under s 237 at all. This is an offence carrying a 14 year maximum penalty. The Judge expressly referred to the starting point adopted being half of the maximum penalty.10 She compares that offence with an offence under s 307A of the Crimes Act 1961 which carries a seven year maximum penalty. Section 307A involves a person threatening to do actions such as disrupting infrastructure or civil administration by undertaking particular acts, by actions such as causing a risk to health, damage to property, or major damage to the national economy. Ms Grey points out that s 307A has a specific provision that provides that undertaking protest action, by itself, does not amount to an offence under this section (s 307A(4)). The element of the offence of blackmail that she says is potentially absent in the present case is the requirement to show that the person was seeking to obtain a “benefit” (s 237(1)(b) and (3)). Ms Grey accepts that this is not an appeal against conviction, but she has reserved for further consideration whether seeking to obtain a change to the policy concerning 1080 can really be regarded as obtaining a “benefit” under the blackmail charge.
10 At [64].
[32] Ms Grey not only refers to the significantly lower maximum penalty under s 307A, but also refers to sentences for that offence, as well as other protest action offences. For example in Taylor v R the Court upheld an appeal against sentence under that provision, substituting a sentence of two months’ home detention for that of two and a half years’ imprisonment in relation to Mr Taylor’s repeated planting, and then reporting of imitation bombs in public places.11
[33] Ms Grey submits the Judge erred in referring to R v Kerr in adopting a starting point. She argues that that case was significantly more serious. She says that other, less serious, blackmail cases should have been used as a guide. She cites Kirkby- Parker v R12 as an example, and involves a category of cases involving threats to publish compromising photographs or recordings of the victim.13 The victim is usually known to the defendant. Starting points have ranged from sixteen months to five years’ imprisonment.14 In Kirby-Parker the appellant had threatened to publish a nude photograph of a 15 year old girl if she did not return the appellant’s messages. Cull J upheld a starting point of two years’ imprisonment.15
[34] I accept that it can be relevant to consider other offences for which the defendant could have been charged, and the range of sentences imposed for such offending, when seeking to assess an appropriate starting point for this offending. That may be particularly helpful when there is no tariff decision. The offence under s 307A appears to be directed to the kind of conduct Mr Buchanan engaged in. By contrast, a classic case under s 237 involves a blackmailer seeking to extort money. Section 307A is itself a serious offence. It does not have the additional element of coercion, or seeking to force a change in actions, although it would encompass such activities. Such attempted coercion is a significant feature of the present offending. In my view s 307A provides a useful comparison point in relation to sentencing, including because of the seven year maximum penalty.
11 Taylor v R [2017] NZHC 1356.
12 Kirby-Parker v R [2017] NZHC 2548.
13 See, for example R v Stewart [2013] NZHC 3152; R v Hulme [2012] NZHC 1766; R v Needham
[2014] NZHC 736; R v Hore [2012] NZHC 1575; and R v Thomas CA138/05, 6 July 2005.
14 R v Hore, above n 13; and R v Thomas, above n 13.
15 In R v Low-Wai, Lee & Dass, CA49/94, 53/94 & 68/94, 22 June 2019 a Hong Kong businessman resident in Auckland received a package in the mail containing a bullet, a bottle of acids and a letter containing a series of threats if a million dollars, later reduced to $300,000, was not paid. The Court of Appeal rejected an appeal against an end sentence of six years.
[35] I also accept that there are several features of Kerr that make it distinguishable from the present case. Foremost is the extent of the damage involved in that case. Fonterra said that it had lost in excessive of $20 million and Federated Farmers over
$100,000.16 Supermarkets were also seriously impacted. Here the financial cost of
Mr Buchanan’s offending was assessed at $128,000 (assuming the cost of eradicating the deer is excluded). Venning J also recorded that the defendant’s actions had posed a major threat to the trading relationship of New Zealand with other countries.17 He also held that the defendant in that case made the threats to improve his own financial position, and his actions were premeditated.18 That places the present case in a different category.
[36] Ms Kensington relied on Attorney-General’s reference no 113 of 2007 (Deborah Morrison) in which the Court of Appeal of England and Wales dealt with the sentence for a person who had sent threatening letters to companies involved in animal research.19 There a sentence of eight months’ imprisonment imposed by the lower Court was overturned, with the Court adopting a starting point of six years’ imprisonment, and ultimately imposing a term of three years. I accept that there is some comparison with this case, although direct comparison cannot be made because of the differing circumstances and the approach adopted to sentencing in New Zealand.
[37] Mr Buchanan’s offending is serious for the reasons identified by the District Court Judge, and which are summarised at [7] above. The actions were not only coercive, but designed to cause fear, and did cause fear for personal safety amongst Department of Conservation staff. Whilst the envelope sent to the Department only contained blue chalk, it was obviously designed to cause significant fear on behalf of those who received it. The actions were also designed to cause more widespread fear of these kinds of actions in the community at large, demonstrated by the sending of the letters to the media and the media attention given. Whilst the release of Sika deer was the most credible of threats, the other threats of serious personal harm were
16 R v Kerr, above n 3, at [20].
17 At [21].
18 At [35].
19 Attorney-General’s reference no 113 of 2007 [2008] EWCA Crim 22; [2008] 2 Cr.App.R (S.) 51.
meaningful. Denunciation and deterrence become very important considerations when imposing a sentence for this kind of offending.
[38] Ms Grey submitted that the District Court had erred in not taking into account Mr Buchanan’s right of freedom of expression, and the political protest aspects of his offending. She argued that Mr Buchanan was motivated by what he considered to be in the public interest. I do not accept that this is relevant. The fact that Mr Buchanan was not financially motivated means that this aggravating factor is absent. But the fact that he was seeking to coerce the acceptance of his views is nevertheless an aggravating factor. It does not seem to me to matter that he was politically motivated in doing so, or that he was acting in what he perceived to be the public interest. People with quite obnoxious views can believe that it is in the public interest for others to adopt them. Irrespective of motivation the relevant matter is the decision to engage in criminal offending in furtherance of a cause, whatever it may be.
[39] Given the above matters, the ultimate question is what the appropriate starting point is. In Kerr the High Court took a starting point of 11 and a half years’ imprisonment, and here the District Court Judge has taken a starting point of seven years’ imprisonment. Whilst the starting point is significantly lower than in Kerr, in my view it was still too high. That is particularly so bearing in mind that it was not alleged that Mr Buchanan was involved in any release of deer in a manner consistent with his threats, when this was the most concrete threat raised in his letters. There were, nevertheless, wider threats of a more menacing kind, and the involvement in the media broadened the legitimate concern caused by the threats.
[40] In my view in all the circumstances an appropriate starting point was four years’ imprisonment.
Insufficient discount for mitigating factors
[41] Ms Grey argues insufficient discounts were imposed for remorse and Mr Buchanan’s age. The Judge discounted five per cent, or four months, for age and remorse, before discounting 25 per cent for guilty plea.
[42] Ms Kensington points out that a minimal discount for remorse was justified as the Judge determined there was almost no expression of remorse:
[21] I received an advice to Court report dated 7 March 2019. That report refers to you expressing genuine remorse, stating that, “I understand that they just have a job to do”. That has been characterised as an apology. While the report writing was satisfied it was a genuine expression of remorse, it appears to be a simple statement of fact about what DOC officers do, that is, their job. But that said, it has been submitted that it is remorse, it is genuine and it amounts to you saying sorry for all the inconvenience and stress that you have caused.
[43] In awarding the discount the Judge noted he was “not entirely convinced that it could be characterised as an apology, but I do note it is there”. Where there is evidence of genuine remorse a discount of five to eight per cent is generally appropriate.20 Evidently the District Court Judge did not consider that Mr Buchanan’s statement did not amount to genuine remorse. A limited discount of 2.5 per cent was accordingly appropriate.
[44] As to age, the Judge awarded a discount of 2.5 per cent to recognise a sentence of imprisonment may be more difficult for Mr Buchanan than someone younger. By itself, old age alone is unlikely to justify a discount. If the offender’s age means the sentence will be disproportionately harsher, by reason of ill-health or otherwise, the sentence may be reduced to take account of that fact. Previous decisions have continually emphasised that any such reduction should be limited. For example, in M v R the Court of Appeal upheld a reduction of 12 per cent for a 78 year old offender in poor health.21 In KHP v R a two and a half year starting point was reduced by three months to reflect the 85 year old offender’s age and associated health difficulties.22 At 65 years old Mr Buchanan is not of such advancing years that a significant discount was warranted. And there is no evidence of associated health difficulties.
[45] I note that Mr Buchanan reports that he and his wife, who have lived together for 40 years, were financially dependent on the income Mr Buchanan received from the landscaping business, and Mrs Buchanan will clearly be adversely affected by
21 M (CA91/12) v R [2013] NZCA 325 at [54].
22 KHP v R [2015] NZHC 452.
Mr Buchanan’s imprisonment. By itself, however, this does not mean that a greater discount was appropriate. A 2.5 per cent discount was appropriate in the circumstances.
[46] In the end I see no reason to depart from the Judge’s assessment of a five per cent discount for these factors over and above the 25 per cent discount for Mr Buchanan’s guilty plea. Applying those discounts to the revised starting point brings the final sentence down to approximately two years eight months’ imprisonment.
Result
[47] The appeal is allowed and a sentence of two years eight months’ imprisonment is substituted for the sentence of five years’ imprisonment imposed by the District Court.
Cooke J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2019/2283.html