R v R CA62/96 [1996] NZCA 297 (27 May 1996)

Last Updated: 13 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.62/96}

PUBLICATION OF NAME THE QUEEN

IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED

v

_R

Coram: Gault J Thomas J Keith J

Hearing: 27 May 1996

Counsel: L H Atkins QC for Appellant

B P Heather for Crown

_{Judgment: 27 May 1996}

_{JUDGMENT OF THE COURT DELIVERED BY GAULT J}

This is an appeal against sentences imposed in the High Court at Auckland on

8 February 1996 for one offence of extortion committed towards the end of 1993 and a series of other offences committed over a short period in August and September

1995.

The appellant, now over 40 years old, with long gang involvement and with a list of offending over 25 years, though much of it is not particularly serious, determined after the more recent offending to sever his gang connection and give assistance to the police. At the time of sentencing this had taken the form of the provision of information to the police in a number of matters with consequent personal danger for him and his family. The issue on the appeal is whether sufficient

credit was given for co-operation with the authorities. In that respect the co-operation has continued with the appellant giving evidence in a number of cases since the date of sentencing and we have been invited to take that into account also.

The circumstances of the offending and the sentences imposed can be summarised briefly. In 1993 the appellant with another, acknowledged as the principal offender, extorted from the complainant a sum in excess of $8,000 under threat of disclosing past alleged sexual abuse. The appellant acted as an intermediary and retained only $100 for his involvement. The victim it seems had sought the appellant’s assistance and regarded him as helping. The final payment was made in April 1994 and the matter came to the attention of the police in October 1995. For this offence the sentence was of imprisonment for two years. Along with all other offences we are concerned with there was a plea of guilty entered in January 1996. The appellant was ordered to pay half the sum of $8,100 by way of reparation. We have not been informed of whether the principal offender has been dealt with but it does appear he has not yet been sentenced.

There were four drug offences committed in August and September 1995 detected by electronic listening devices used pursuant to an interception warrant. They involved manufacture on two occasions of the Class B controlled drug morphine from a morphine sulphate tablet and two offences of administering and supplying the product respectively to the appellant’s partner and to an associate. The sentences for each of these offences were 18 months imprisonment save for the offence of administering the drug to the partner for which the sentence was three months imprisonment.

A further drug offence involved standing surety for payment by an associate purchasing morphine sulphate tablets. The sentence on that charge was imprisonment for one month.

There were three further offences. One was of assault by punching an associate for sitting in his vehicle without authority but no sentence appears to have been imposed for that. Another was of threatening and seeking to intimidate a constable considered to be paying unfairly close attention to the appellant. The sentence was one month imprisonment. The last offence was of receiving property valued at $550 stolen from a farm property by two persons living at the appellant’s address. The sentence was 12 months imprisonment.

It was after the appellant had been charged with four of the nine offences that he determined to assist the police. He made full statements on a number of matters and as a result his other offending was acknowledged. In due course he pleaded guilty to all charges.

The most serious previous offence for which the appellant has a conviction was of wounding with intent to injure in 1991 for which he received a term of 17 months imprisonment. There were also five convictions for common assault in the

1970s. On four of these he received concurrent sentences of imprisonment for six months. He also has had convictions for selling cannabis, supplying cannabis and possessing cannabis for supply.

Unfortunately the sentencing Judge in the present case did not indicate what he considered would be an appropriate sentence to reflect the totality of offending before taking into account mitigating factors. Ms Heather for the Crown submitted that a sentence in the order of three to four years would have been appropriate. Bearing in mind the lesser role of the appellant in the extortion, which the Judge regarded as the most serious offence, and noting that the drug manufacture was unsophisticated and not on any commercial scale but rather for the personal use of the appellant, his partner and an associate we accept that we are not concerned with

offending at the high end of the scale of seriousness. Nevertheless there were nine offences spread over a period and certainly not all of a minor nature. A starting point at the higher end of Ms Heather’s range would not have been interfered with for an offender with the appellant’s background.

Turning to the mitigating factors, there is first the plea of guilty. That warrants credit. Secondly there is the appellant’s record of moderating the conduct of gang members on occasions, of assisting with the education of young people against a criminal lifestyle and of assistance given in providing a valuable insight into gang behaviour. The unfortunate aspect is that these valuable efforts in the past have been so detracted from by lapses in offending in the gang environment.

The significance of the third factor, the recent co-operation with the authorities signalling a full commitment to an abandonment of a former lifestyle is perhaps more apparent now than it was at the time of sentencing although it must be said that the appellant clearly had set his course by that time. We have seen the report from the police to the sentencing Judge recording the assistance received and then anticipated. We also have received a further report giving details of the assistance provided since sentencing. Without setting out unnecessary detail the following summary from Mr Atkin’s synopsis suffices.

Earlier this year he gave evidence for the Crown in a trial in which the accused was a gang leader charged with attempted murder. The trial was not completed due to other factors and the appellant will be called upon to give evidence again. His evidence is regarded as being of great significance.

In another trial of seven gang members the appellant has given evidence at depositions. His evidence is regarded as crucial to the case.

In a third matter the appellant has given evidence at depositions and his evidence is regarded as good supporting evidence although not crucial.

In a fourth matter the depositions have been taken and his evidence is regarded as crucial.

In a fifth matter his evidence was accepted in statement form at depositions. It was regarded as very important evidence but not crucial.

In two other matters the situation is the same as in the last matter referred to. In one other matter the evidence is yet to be given and is regarded as crucial.

We were told that the evidence already provided and that to be given is considered likely to have a considerable effect in reducing gang violence. We were told also that the police are satisfied that the appellant has placed himself in real danger as a consequence of the assistance given. It is necessary for him to be held in a secure unit and was in the witness protection scheme before incarceration.

It is now well established that offenders who are prepared to assist in the detection and prosecution of serious crime by co-offenders and others are entitled to credit in the form of reduced sentences. That is the case whether the assistance is given before or after sentencing and whether motivated by self help considerations or the genuine desire to demonstrate contrition and commitment to reform. The authorities are conveniently assembled in Hall’s Sentencing para 1.7.2.

There are to be borne in mind not only the benefit to the public but also the increased harshness of imprisonment for informers who for their own protection must face isolation and loss of privileges. There is also a significant personal risk that is ongoing.

In the present case the Judge made allowance for the appellant’s co-operation along with the other mitigating factors mentioned. But having regard to the additional information available to us and the importance that such credit should be generous to ensure there is incentive to co-operate in this manner we consider a further reduction

in sentence is justified. This can be achieved by adjusting the heaviest of the concurrent sentences imposed.

Accordingly the appeal is allowed. The sentence for the offence of extortion is quashed and there is substituted the sentence of imprisonment for 18 months.

We confirm the order made prohibiting publication of the name and any particulars identifying the appellant and also the identity of the gang involved.

Solicitors

Crown Law Office, Wellington