R v Patten CA 202/99 [1999] NZCA 104 (28 July 1999)

Last Updated: 17 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND CA202/99

THE QUEEN

V

JOHN RUSSELL PATTEN Hearing: 28 July 1999 (at Auckland)

Coram: Henry J Anderson J Robertson J

Appearances: P Winter for the Appellant

P K Hamlin for the Crown

Judgment: 28 July 1999

_{JUDGMENT OF THE COURT DELIVERED BY HENRY J}

[1] John Russell Patten appeals a sentence of 3 years 6 months imprisonment imposed in the High Court on 26 May 1999 on one count of attempting to procure the offence of murder.

[2] As a result of information received to the effect that the appellant was attempting to procure the murder of his female partner, the police commenced an operation involving the use of two undercover officers. In response to a message initiated by the police, one of the officers contacted the appellant on the appellant’s cellphone. The officer was told that the appellant wanted his female business partner killed, giving details of her residence and workplace. As directed by the

officer, he obtained a prepaid cellular telephone for the purposes of making “untraceable” contact with the person who would carry out the killing. The following day the appellant left a message with the officer asking him to “forget” it, as he did not have sufficient funds which could not be traced.

[3] The police, having ascertained that the appellant had a sum of $10,000 at his disposal, contacted him again. A discussion took place, and the cost was settled at

$10,000. The appellant outlined the intended victim’s personal details, movements and the movements of neighbours. It was agreed that a meeting would take place with the appellant making available a photograph of the intended victim and a floor plan of the residence, together with an initial sum of $1,000. A further payment of

$4,000 was to be made on completion of planning details, and the balance upon completion of the contract. The appellant then indicated that he had only $7,500 available and a discussion took place as to payment of the balance.

[4] Pursuant to the arrangement, the appellant went to a meeting place but on arrival was apprehended by the police. In his motor vehicle was a photograph of the intended victim, floor plans of her residence, and $1,000 in cash. When spoken to the appellant was co-operative with the police, stated he had no intention that his partner be killed, but could not explain his actions.

[5] The appellant is 35 years of age, and had been in a relationship with the intended victim for some five years. They were in a business partnership, and were living together at the time of the appellant’s arrest. There was no history of violence in the relationship, and the “victim” was extremely shocked on being advised of the circumstances. Importantly, she still wishes their relationship to continue and continues to stand by him at the present time. She expresses no concern for her personal safety.

[6] The appellant has previous offences of arson, theft, and possession of a restricted weapon. A psychiatric report disclosed no mental illness, and no need for psychiatric help. A report from a psychologist who had first had professional dealings with the appellant some 7 years previously was also available to the Court. This disclosed that at the time of offending the appellant was in a situation of

extreme distress as a result of financial circumstances and long hours of work. The report described him as irrational. Nothing of particular significance was revealed by the pre-sentence report. There was an early plea of guilty.

[7] The sentencing Judge, having referred to the judgment of this Court in R v Apostolakis (1997) 14 CRNZ 492, noted the relevant factors of pre-planning (over a period of about one week), the degree of preparation, and the circumstances of termination. The Judge concluded that up to the point of apprehension by the police, the appellant was prepared to proceed with the plan. He therefore viewed the matter seriously, particularly so in view of the appellant’s prior criminal conduct. Having allowed for what he described as some but little credit for the guilty plea the term of 3 years 6 months imprisonment resulted.

[8] For the appellant, Mr Winter submitted that a suspended sentence of two years imprisonment should have been imposed. As to the length of the term, it was submitted that insufficient weight had been given to the withdrawal by the appellant, to the renewal of the plan being instigated by the police, and to the plea of guilty. In setting out the narrative the Judge did not expressly refer to the withdrawal when addressing the factors relevant to sentence, a matter we agree was relevant. Although falling far short of entrapment, the further approach initiated by the police after being told “to forget that now mate” must be regarded as an encouragement which at least contributed to the plan being further pursued. The plea of guilty, whatever the reasons personal to the appellant which prompted it, was we think worth a greater discount than it appears to have received. The plea was entered at a relatively early stage, prior to depositions, and although on its face the prosecution case would seem to have had some strength, it did not have the appearance of an inevitable conviction situation. Mr Winter also placed some reliance on the duration of the plan, which on his assessment was of the order of three days rather than a week. Nevertheless the Judge was undoubtedly right to view the matter seriously. The attempt had progressed to the stage of the appellant being ready to make a down payment, and to provide the details requested by the intended perpetrator, although whether he had a real intention to pursue the plan to its ultimate conclusion must be conjecture; there are some indications to the contrary and there is a lack of an objectively understandable motive. Neither did the appellant come before the Court

with a clean record - his history disclosed matters of concern directly relevant to sentencing for the present offending.

[9] In Apostolakis, a case with some features similar to the present, a sentence of

18 months imprisonment was held by this Court to be appropriate, Sentences of five years and four years were imposed respectively in R v Church (S98/97

Auckland Registry 19 December 1997), and in R v M (CA172/92, 3 August 1993) both substantially more serious examples of s174 offending. Mr Hamlin has also drawn our attention to R v Smith CA256/97, 19 February 1998. That too had features more serious than the present. The sentence of four and a half years, imposed following a trial, reflected additional charges of threatening to kill and threatening to cause grievous bodily harm, and left the intended victim fearful for the continued safety and security of herself and her children.

[10] Some assistance is gained from other cases, but as always, each must be determined in the light of its own particular circumstances. Taking all relevant factors into account, we are persuaded that the term of three and a half years is excessive. A sentence of two and a half years will in all the circumstances, including the unusual feature of the intended victim’s attitude and desire to retain her relationship with the appellant, meet the overall ends of justice.

[11] The question of suspension under s21A therefore does not arise, but we make it clear that even had the statutory pre-requisite limit of two years imprisonment not been exceeded, the use of s21A would not have been appropriate. The seriousness of the offence required a full term custodial sentence, and its nature here was such as to not lend itself readily to the particular rehabilitation purposes of the section.

[12] The appeal is therefore allowed, the sentence of three and a half years quashed and a sentence of two and a half years imposed in its place.

Solicitors

Crown Solicitors, Auckland, for Crown