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The Queen v Tate [2006] NZCA 254 (15 September 2006)

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The Queen v Tate [2006] NZCA 254 (15 September 2006)

Last Updated: 19 September 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA28/06

THE QUEEN

v

DAVID JOHN TATE

Hearing: 26 July 2006

Court: Robertson, Goddard and Gendall JJ

Counsel: M I Sewell for Appellant
S B Edwards for Crown

Judgment: 15 September 2006 at 10 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

B The sentences of four years’ imprisonment on each charge of arson are quashed. In lieu, sentences of three years’ imprisonment are imposed, to be served concurrently with the sentences of two years’ imprisonment for conspiracy to commit arson and 18 months’ imprisonment for attempted arson. The arson-related sentences are to be served cumulatively upon the term of five and a half years’ imprisonment previously imposed on the appellant for methamphetamine offending.

____________________________________________________________________

REASONS OF THE COURT
(Given by Goddard J)

[1] The appellant pleaded guilty in the District Court at Christchurch on the morning of trial to two charges of arson, conspiracy to commit arson and attempted arson. He was sentenced by Judge Saunders on 13 December 2005 to concurrent sentences of four years’ imprisonment for the arson charges, two years’ imprisonment for the conspiracy to commit arson, and 18 months’ imprisonment for the attempted arson. Although concurrent, the sentences were directed to be served cumulatively upon a term of five and a half years’ imprisonment already being served by the appellant for charges relating to the manufacture and supply of methamphetamine, conspiracy to manufacture methamphetamine and possession of equipment capable of being used in the manufacture of methamphetamine. Those sentences were imposed by Panckhurst J in the High Court at Christchurch on 29 July 2004.
[2] The appellant now appeals against the sentence of four years’ imprisonment imposed for the arson charges, on the grounds that an overall sentence of nine and a half years’ imprisonment is manifestly excessive and not in accordance with the totality principle. Specifically Ms Sewell submitted that in determining an end sentence of four years’ imprisonment for the arson charges, Judge Saunders had failed to take into account as a mitigating factor delay on the part of the police in bringing the arson charges; rehabilitation efforts made by the appellant in prison; and the guilty pleas, notwithstanding they were entered on the morning of trial.

Background facts

[3] The offending concerned organised arson attacks in late 2000 on two Christchurch businesses, the Voodoo Lounge and Charlie’s Massage Parlour. The appellant was involved in organising the attacks and his role extended to responsibility for recruiting others to carry out the arsons, offering and paying money to those persons and providing them with transport and petrol costs for travel between Dunedin and Christchurch. The first planned arson was to be carried out on 17 October 2000 but had to be aborted because people were present at the scene. On 21 October 2000 there was an unsuccessful attempt to set fire to the Voodoo Lounge with a molotov cocktail. This incident gave rise to the attempted arson charge. On 29 October 2000 arson attacks were successfully carried out on the Voodoo Lounge and on an adjoining business, Chanelle’s Massage Parlour, and both premises were destroyed by fire. On 8 November 2000 the building that housed Charlie’s Massage Parlour was badly damaged by fire. Those attacks gave rise to the two charges of arson. The conspiracy charge covered the period 1 October to 21 October 2000.
[4] A principal co-offender, Mr Samuels, was involved in the attempted arson and the two completed arsons. On 15 February 2002 he was sentenced by Judge McDonald to four years’ imprisonment in respect of each arson and to a concurrent sentence of two years’ imprisonment for the attempted arson. The starting point identified by Judge McDonald in his case was five and a half years’ imprisonment. Others involved in the offending received sentences of between three and a half years’ imprisonment and 12 months’ imprisonment for their respective roles.

The sentencing judgment

[5] After traversing the background facts, Judge Saunders noted that the arson offending was "somewhat historic", that there had been a delay in laying the charges and that the appellant had since been sentenced to imprisonment for the unrelated methamphetamine offending. He referred to the explanation given by the Crown for the delay in bringing the charges. That delay was said to be occasioned by the preparedness of Mr Samuels to give evidence against the appellant only after he had finished serving his own sentence of four years’ imprisonment.
[6] On his release Mr Samuels did give evidence at the depositions hearing and his evidence was not challenged. Ms Sewell advised that following depositions she was instructed by the appellant to locate a potential witness for the defence who unfortunately did not prove to be available. The guilty pleas were then entered on the morning of trial, it being apparent that Mr Samuels was available to give evidence but that the appellant’s witness would not be available. Judge Saunders noted Ms Sewell’s submission that the delay in bringing the charges had caused prejudice to the conduct of the appellant’s trial in this way and her plea that the delay should therefore be taken into account as a mitigating factor alongside the guilty pleas ultimately entered.
[7] Judge Saunders accepted that the arson offences necessarily warranted a separate discrete term of imprisonment from that imposed in the High Court for the methamphetamine offending and identified the question of the overall sentence to be imposed for the arson offences as the matter of greatest concern. He noted the need to have regard to parity with the sentence imposed on Mr Samuels, also a principal offender. He discerned that Judge McDonald in Mr Samuels’ case had identified a starting point of five and a half years’ imprisonment and then deducted a total of 18 months’ imprisonment for his early guilty pleas and his co-operation with the police. Judge Saunders was satisfied that the appellant’s involvement had extended to recruiting Mr Samuels and to providing him with a financial incentive to carry out the arsons and that the mitigating factors of early guilty pleas and co-operation were not present in his case. The added factor of importance in the appellant’s case, however, was the requirement to consider the totality of the sentence to be imposed. The Judge declined to impose a minimum non-parole period because the imposition of a cumulative sentence would delay the appellant’s eligibility for parole.
[8] Adopting the same starting point of five and a half years’ imprisonment, and having regard particularly to the sentencing principles in ss 84 and 85 of the Sentencing Act 2002, Judge Saunders concluded that if the appellant’s sentencing had stood alone it would have demanded a sentence in the order of four and a half to five years but, having regard to the totality principle, that an end sentence of four years’ imprisonment was appropriate, to result in an overall sentence of nine and a half years’ imprisonment.

The appellant’s case

[9] Ms Sewell pitched her case on the basis that the delay in charging the appellant with this earlier offending ought to be factored into this case in mitigation of sentence. The delay in question was almost three years.
[10] The chronological record provided by Ms Sewell shows that after the arson offences were committed in October and November 2000 the police began to interview suspects in December 2000 and the appellant was interviewed on
12 December 2000. A police job sheet entry a year later on 7 December 2001 records that the officer in charge advised the appellant’s then counsel, Mr Eagles, that the appellant "will be charged" with the arsons. However he was not.
[11] Mr Samuels and the appellant’s other co-offenders were all convicted of the arson charges in February and May 2002.
[12] On 17 June 2004 the appellant was convicted on the methamphetamine charges, after pleading guilty to the charges of conspiring to manufacture methamphetamine and manufacturing and supplying methamphetamine, and being found guilty of the charge of possessing equipment capable of being used in the manufacture of methamphetamine. Whilst in prison awaiting sentence on those charges, he was visited by the police and formally charged with the arson matters.
[13] Ms Edwards submitted that the reasons put before Judge Saunders for the delay were valid, that delay being primarily caused by Mr Samuel’s unwillingness to give evidence while he remained a prison inmate. Apparently the case against the appellant was not considered viable in the absence of his evidence. She accepted however that a further delay of almost a year had then occurred following
Mr Samuels’ release from prison before the appellant was charged, but submitted this was not an excessive period of delay overall and could not be said to have prejudiced the appellant.

The effect of delay

[14] The right to be tried without undue delay, contained in s 25(b) of the New Zealand Bill of Rights Act 1990, is directed to the prosecution of charges once laid. That right is relative to the right to a fair trial, referred to in s 25(a), and the prejudice that may arise through an unreasonable period of delay: Martin v District Court at Tauranga [1995] 2 NZLR 419 (CA).
[15] This Court has not conclusively determined whether an available remedy for delay in criminal proceedings includes a reduction in sentence. Despite the argument of counsel, we are not satisfied that it is the critical issue which arises in determining the current case. The factual situation as outlined above is clearly unusual but we have concluded that the justice of the matter is more properly responded to by an application of the conventional approach to totality.

Totality

[16] The arson offending occurred long before the methamphetamine offending. The police knew of the matter and there is no good reason why, when Mr Tate was before Panckhurst J in 2004 all the offending of which the police had knowledge and an intention to charge should not have been considered at the one time. That did not occur. In our judgment the proper inquiry to be made in respect of the sentencing in 2005 is what additional penalty would the Court have imposed in 2004 had all the matters been before it.
[17] The probation report before Panckhurst J for the methamphetamine sentencing made it clear that the appellant’s adult life has been blighted by drug abuse. The author of the report referred to the difficulty in accurately assessing the extent of his drug and alcohol problem at that time, given his "previous level of denial of such a problem". She recorded that he had seen a range of professionals whilst previously on parole, including a general practitioner, an ACC counsellor and a psychiatrist and noted that he had not revealed his drug problem or its extent to any of those people. She opined that he had a high risk of drug re-offending. On sentencing Panckhurst J said the following of the appellant:

[10] ... I am left with the impression, Mr Tate, that you are basically a decent person. But like so many others who we have to sentence in this court drug use is your ruin. You say that you have had enough, that you are ready to accept treatment. I hope so. I hope you do accept treatment and stop taking drugs. Otherwise you will be back here again, or in another dock somewhere, and hearing the same things from some other Judge.

[18] As the subsequent probation reports made clear, the arson offending had, to a large extent, been a manifestation of the drug-dominated lifestyle in which the appellant had become enmeshed.
[19] On a simple arithmetic basis, the two tranches of offending could have led to a total sentence of eleven years’ imprisonment. We are satisfied that would have been manifestly excessive for the total offending. Panckhurst J, in July 2004, noted that there were indications that this man was at a point where he was ready to accept treatment. He was at a crossroads where the Court would inevitably have been persuaded that there should be some light at the end of the tunnel as far as this man was concerned.
[20] Notwithstanding the serious offending which had occurred, a degree of emphasis had to be given to the future without compromising the important principles of deterrence and denunciation.
[21] We are satisfied that the proper total sentence, which would have been imposed in 2004, was eight and a half years’ imprisonment. On the basis that a sentence of five and a half years was imposed at that time, the justice of the matter now requires that the subsequent sentence (for offending which was earlier in time) should effectively be three years.

Conclusion

[22] The appeal is allowed. The sentences of four years’ imprisonment on each charge of arson are quashed. In lieu, sentences of three years’ imprisonment are imposed, to be served concurrently with the sentences of two years’ imprisonment for conspiracy to commit arson and 18 months’ imprisonment for attempted arson. Those sentences are to be served cumulatively upon the term of five and a half years’ imprisonment previously imposed on the appellant for methamphetamine offending.

Solicitors:
Crown Law Office, Wellington

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[5]	After traversing the background facts, Judge Saunders noted that the arson offending was "somewhat historic", that there had been a delay in laying the charges and that the appellant had since been sentenced to imprisonment for the unrelated methamphetamine offending. He referred to the explanation given by the Crown for the delay in bringing the charges. That delay was said to be occasioned by the preparedness of Mr Samuels to give evidence against the appellant only after he had finished serving his own sentence of four years’ imprisonment.
[6]	On his release Mr Samuels did give evidence at the depositions hearing and his evidence was not challenged. Ms Sewell advised that following depositions she was instructed by the appellant to locate a potential witness for the defence who unfortunately did not prove to be available. The guilty pleas were then entered on the morning of trial, it being apparent that Mr Samuels was available to give evidence but that the appellant’s witness would not be available. Judge Saunders noted Ms Sewell’s submission that the delay in bringing the charges had caused prejudice to the conduct of the appellant’s trial in this way and her plea that the delay should therefore be taken into account as a mitigating factor alongside the guilty pleas ultimately entered.
[7]	Judge Saunders accepted that the arson offences necessarily warranted a separate discrete term of imprisonment from that imposed in the High Court for the methamphetamine offending and identified the question of the overall sentence to be imposed for the arson offences as the matter of greatest concern. He noted the need to have regard to parity with the sentence imposed on Mr Samuels, also a principal offender. He discerned that Judge McDonald in Mr Samuels’ case had identified a starting point of five and a half years’ imprisonment and then deducted a total of 18 months’ imprisonment for his early guilty pleas and his co-operation with the police. Judge Saunders was satisfied that the appellant’s involvement had extended to recruiting Mr Samuels and to providing him with a financial incentive to carry out the arsons and that the mitigating factors of early guilty pleas and co-operation were not present in his case. The added factor of importance in the appellant’s case, however, was the requirement to consider the totality of the sentence to be imposed. The Judge declined to impose a minimum non-parole period because the imposition of a cumulative sentence would delay the appellant’s eligibility for parole.
[8]	Adopting the same starting point of five and a half years’ imprisonment, and having regard particularly to the sentencing principles in ss 84 and 85 of the Sentencing Act 2002, Judge Saunders concluded that if the appellant’s sentencing had stood alone it would have demanded a sentence in the order of four and a half to five years but, having regard to the totality principle, that an end sentence of four years’ imprisonment was appropriate, to result in an overall sentence of nine and a half years’ imprisonment.

[9]	Ms Sewell pitched her case on the basis that the delay in charging the appellant with this earlier offending ought to be factored into this case in mitigation of sentence. The delay in question was almost three years.
[10]	The chronological record provided by Ms Sewell shows that after the arson offences were committed in October and November 2000 the police began to interview suspects in December 2000 and the appellant was interviewed on 12 December 2000. A police job sheet entry a year later on 7 December 2001 records that the officer in charge advised the appellant’s then counsel, Mr Eagles, that the appellant "will be charged" with the arsons. However he was not.
[11]	Mr Samuels and the appellant’s other co-offenders were all convicted of the arson charges in February and May 2002.
[12]	On 17 June 2004 the appellant was convicted on the methamphetamine charges, after pleading guilty to the charges of conspiring to manufacture methamphetamine and manufacturing and supplying methamphetamine, and being found guilty of the charge of possessing equipment capable of being used in the manufacture of methamphetamine. Whilst in prison awaiting sentence on those charges, he was visited by the police and formally charged with the arson matters.
[13]	Ms Edwards submitted that the reasons put before Judge Saunders for the delay were valid, that delay being primarily caused by Mr Samuel’s unwillingness to give evidence while he remained a prison inmate. Apparently the case against the appellant was not considered viable in the absence of his evidence. She accepted however that a further delay of almost a year had then occurred following Mr Samuels’ release from prison before the appellant was charged, but submitted this was not an excessive period of delay overall and could not be said to have prejudiced the appellant.

[18]	As the subsequent probation reports made clear, the arson offending had, to a large extent, been a manifestation of the drug-dominated lifestyle in which the appellant had become enmeshed.
[19]	On a simple arithmetic basis, the two tranches of offending could have led to a total sentence of eleven years’ imprisonment. We are satisfied that would have been manifestly excessive for the total offending. Panckhurst J, in July 2004, noted that there were indications that this man was at a point where he was ready to accept treatment. He was at a crossroads where the Court would inevitably have been persuaded that there should be some light at the end of the tunnel as far as this man was concerned.
[20]	Notwithstanding the serious offending which had occurred, a degree of emphasis had to be given to the future without compromising the important principles of deterrence and denunciation.
[21]	We are satisfied that the proper total sentence, which would have been imposed in 2004, was eight and a half years’ imprisonment. On the basis that a sentence of five and a half years was imposed at that time, the justice of the matter now requires that the subsequent sentence (for offending which was earlier in time) should effectively be three years.