THE QUEEN v KEVIN FRANCIS HENARE MOORE [1999] NZCA 274 (23 November 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 399/99

THE QUEEN

V

KEVIN FRANCIS HENARE MOORE

Hearing:	23 November 1999
Coram:	Richardson P Heron J Robertson J
Appearances:	P J Mooney for Appellant M T Davies for Crown
Judgment:	23 November 1999

judgment of the court delivered by RICHARDSON P

[1] Following a second trial Kevin Francis Henare Moore was found guilty by a jury of conspiring to pervert the course of justice contrary to s116 of the Crimes Act 1961.On 17 September 1999 he was sentenced by Doogue J to a term of 7 years imprisonment, that being the maximum penalty under the section.

[2] The background to this offending is that in 1991 Mr Moore was charged together with his brother for the murder by stabbing of a man named Robert Jillings.The trial was held in New Plymouth in May 1992.A crucial piece of evidence against Mr Moore was the location of his fingerprints at an address where the victim had been residing shortly before his death.The evidence suggested that the fingerprints were fresh and it was obviously important for Mr Moore, who at first denied ever being at the house, to explain how they came to be there.

[3] At the trial the defence called a Mr Mackie.He gave evidence that he had accompanied Mr Moore to the victim's house two months before the murder to make a drug deal.This explained the presence of Mr Moore's fingerprints at that address.Mr Moore and his brother were both acquitted of murdering Mr Jillings.

[4] In 1996 a man named Arthur Garlick told police that Mr Mackie had lied at the trial.Mr Moore had told Mr Garlick that he had committed the murder and that Mr Mackie had "got him off".Mr Mackie subsequently confessed to the police that he had committed perjury.Prior to the trial Mr Mackie, who was a member of the same gang as Mr Moore, was serving in the prison where Mr Moore was placed on remand.The two agreed that he, Mr Mackie, would lie to explain away the vital fingerprint evidence.

[5] Mr Moore was charged with conspiring with Mr Mackie to pervert the course of justice.In addition to his evidence about Mr Moore, Mr Garlick also told the police that a man named Michael Preston had been involved as a getaway driver in the murder of Mr Jillings.Mr Preston had been a suspect but, for want of sufficient evidence, he had not been charged back in 1991.

[6] Mr Moore and Mr Preston were tried together, the former for conspiracy to pervert the course of justice and the latter for murder.Both were found guilty by a jury.On 17 December 1998 Mr Moore was sentenced by Randerson J to five years imprisonment.On appeal this Court held that Mr Moore's defence to the conspiracy charge was likely to have been seriously prejudiced by the concentration in the joint trial on who committed the murder or had been a party to it.The Court held that severance should have been granted; Mr Moore's conviction was quashed and a retrial ordered (R v Moore [1999] 3 NZLR 385).That retrial was held in August of this year.As at the first trial, the jury heard from Mr Garlick and Mr Mackie.Both said that Mr Moore had regarded Mr Mackie's false evidence as crucial to his acquittal:he told Mr Garlick that Mr Mackie "lied for him in court" and "got him off the murder";and said to Mr Mackie "thanks for helping me out, that I got him off".The jury convicted Mr Moore and, as noted above, he was sentence by Doogue J to seven years imprisonment.He now appeals that sentence.

[7] On appeal Mr Mooney for the appellant advanced three main arguments.The first concerns the disparity between the sentence imposed by Doogue J and that earlier imposed by Randerson J.Mr Mooney accepted that Doogue J was not bound by the sentence imposed following the first trial.He submitted, however, that Doogue J had paid too little regard to the earlier sentence and that the increase of two years had the appearance of punishing the appellant for appealing.Mr Mooney drew our attention to several judicial statements that the courts must be careful not to be seen to punish offenders for the necessity of a second trial: R v Miers (1994) 11 CRNZ 307 per Hardie Boys J and R v Gilmore (1979) 1 A Crim R 416 per Street CJ.Mr Mooney also submitted that Doogue J was wrong to consider that Randerson J had been influenced by R v Knight (1984) 6 Cr App Rep (S) 31, a case Doogue J regarded as having no application to the present facts.

[8] Second, Mr Mooney submitted that the Judge erred in approaching sentencing on the footing that the conspiracy resulted in Mr Moore's avoiding the sentence for murder.The Judge commented that Mr Moore had "by your conspiracy literally got away with murder and avoided life imprisonment". Randerson J had expressed similar views when he sentenced Mr Moore after the first trial.Mr Mooney accepted that the fact that the conspiracy related to a murder trial added gravity to the offence, but he argued that it cannot be assumed that but for the conspiracy Mr Moore would have been convicted of murder.

[9] Third, Mr Mooney submitted that the Judge failed to take account of two mitigating factors: Mr Moore's improved personal circumstances, increased family support and his desire for change; and the fact that Mr Moore did not initiate the conspiracy or coerce an unwilling participant in Mr Mackie.

[10] In reply Mr Davies for the Crown stressed, in reliance on R v Duffy (CA 106/80, judgment 12 August 1980) and R v Miers (1994) 11 CRNZ 307, that a judge sentencing an offender following a second trial is not bound by the sentence imposed by another judge, although he or she should pay due regard to that earlier judge's views.It is always for the sentencing judge to reach his or her own conclusions as to the appropriate sentence.

[11] In R v Gilmore Street CJ said at 419 that an accused "should ordinarily not receive" a longer sentence than that received following the first trial.In R v Bedford (1986) 5 NSWLR 711 that same judge emphasised that the word "ordinarily" must be given full room to operate. Street CJ continued at 714:

Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted.He is both at liberty, and indeed obliged, to give effect to his own assessment.It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view.

[12] In New Zealand the prima facie position has only ever been expressed as one that the offender should not ordinarily receive a sentence "substantially longer" than that first imposed: R v Miers.So in R v Bishop (CA 36/97, judgment 21 May 1997) and R v Christian (CA 594/95, judgment 6 May 1996) where the second sentences were not substantially longer, there was no need for a departure to be justified in terms of R v Miers.R v Bishop involved an increase in sentence from 12 months to 18 months and in R v Christian the increase was from four to five years.

[13] We do not find it necessary to debate whether the increase in the present case from five to seven years can be termed "substantial".That is because we are of the view that Doogue J was fully entitled to depart from the earlier sentence of Randerson J.

[14] First, in the earlier sentencing hearing the Crown referred Randerson J to R v Knight, in which the offender received 3 years for perjury.No other relevant cases were cited.As Doogue J noted, that case seems to be of little relevance: the offender there was not himself prosecuted for the primary offence; he was charged with perjury rather than conspiracy; and he pleaded guilty.Second, both Randerson J and Doogue J expressed the view that it was difficult to imagine a more serious offence of this nature. While the appellant cannot be punished for his alleged involvement in the murder, the fact that the present offence was committed to avoid conviction for this most serious crime, and seems to have been very material in achieving this goal, is plainly relevant.Doogue J emphasised that Mr Moore was being sentenced for the conspiracy and not the murder and in sentencing Mr Moore the Judge was fully entitled to take these matters into account.

[15] We agree with Mr Davies that this offending falls squarely within the band or bracket comprising the worst class of cases under this section and therefore qualifies for the maximum term.We also agree that the suggested mitigating factors are of little relevance when viewed against the background of the appellant's very extensive criminal history and the seriousness of this offending.We find that the sentence of seven years imprisonment was justified in the circumstances and the appeal is therefore dismissed.

Solicitors

Gordon & Mooney, Stratford, for appellant

Crown Law Office, Wellington, for Crown