R v Hadfield CA337/06 [2006] NZCA 524 (14 December 2006)

Last Updated: 7 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA337/06

THE QUEEN

v

WARREN ROBERT HADFIELD

Hearing: 28 November 2006

Court: Chambers, Randerson and Potter JJ Counsel: A G Speed for Appellant

M D Downs for Crown

Judgment: 14 December 2006 at 10 am

_{JUDGMENT OF THE COURT}

A Leave to appeal out of time is granted. B The appeal is allowed.

C The sentence of six years’ imprisonment is quashed. In substitution

_{therefor, a sentence of four and a half years’ imprisonment is imposed.}

REASONS OF THE COURT

_{(Given by Chambers J)}

R V HADFIELD CA CA337/06 14 December 2006

Assisting the authorities

[1] Warren Hadfield flew into Auckland International Airport from Japan in February 2005. Customs officials said they wanted to search him. He volunteered that he had drugs concealed on his person. He had brought 800g of pure methamphetamine into the country.

[2] Once apprehended, Mr Hadfield offered to, and did in fact, assist in the detection and apprehension of four other people who were involved in the importation. Without his assistance, the police would not have discovered their identity. When the others were apprehended and arrested, they were found in possession of $306,000, which the police seized.

[3] Mr Hadfield pleaded guilty at the earliest possible time to one count of importing the class A drug methamphetamine. On 20 May 2005, Venning J sentenced him to six years’ imprisonment.

[4] Following that sentencing, two of the others arrested with Mr Hadfield’s assistance pleaded guilty as parties to the importation. Two others who were charged pleaded not guilty. Mr Hadfield gave evidence at their trial. One was found guilty; the other was acquitted.

[5] Mr Hadfield now seeks leave to appeal out of time, on the basis that a further discount is appropriate for additional assistance provided to the authorities since he was sentenced.

Issues on the appeal

[6] There is no real dispute that Mr Hadfield should be given leave to appeal out of time. Given the basis of his appeal, he could not appeal until he had finished providing assistance to the authorities. His delay in appealing is therefore explicable, and leave to appeal out of time is accordingly granted. The Crown raised, however, whether the current practice of appealing out of time in respect of post-sentence assistance is appropriate. We agree that is an issue we should resolve.

Accordingly, the first issue this appeal raises is: how should sentencing judges approach the task of providing discounts for an offender’s assistance to the authorities which is in part yet to be provided?

[7] The next matter raised by Mr Speed, for Mr Hadfield, was the judge’s starting point of 11 years’ imprisonment. Mr Speed faintly suggested that the starting point could have been ten years’ imprisonment. We do not propose, however, to discuss this issue any further: clearly, on the basis of this court’s decisions, the judge’s 11 year starting point was quite unexceptional.

[8] The principal question Mr Speed pursued was whether Mr Hadfield should get a further discount for his post-sentence assistance to the authorities. Venning J had given a discount of five years (45%) on the basis of Mr Hadfield’s guilty plea and assistance to the authorities (presumably, to the date of sentencing). Mr Speed submitted that a further discount was now appropriate. He submitted, based on authorities to which he referred, that the discount should now be in the order of 60%. He submitted that we should substitute a sentence of four and a half years’ imprisonment in place of Venning J’s six years. Whether we should accede to that request is the second issue we shall discuss.

How should sentencing judges approach the task of providing discounts for an offender’s assistance to the authorities which is in part yet to be provided?

[9] Mr Downs submitted there appeared to be a practice developing whereby sentencing judges gave credit for assistance to the authorities already provided by the time of sentencing, but not for any anticipated future assistance. If such future assistance eventuated, then the expectation is that this court will reduce the sentence on appeal. For examples of this recent practice, see R v Sanchez-Silverio CA196/05

4 November 2005, R v Stark CA104/06 31 July 2006, and R v Zhou CA314/05

1 November 2006. Indeed, in Stark, this court went so far as to say at [12]:

However, the [sentencing] Judge was not to know, and could not give an allowance for the fact, that the appellant might make good his promise to give evidence against Rys. The Judge could not factor that contingency into the sentencing process.

[10] Mr Downs accepted there was jurisdiction to adopt the course this court has recently been following. That is clearly right: see s 385(3) of the Crimes Act 1961. But it is important to note, as this court did in Sanchez-Silverio at [12], that taking into account factors which have occurred since the imposition of the sentence appealed from should be reserved for “exceptional circumstances”: see R v Moriarty CA109/84 10 August 1984. The thrust of Mr Downs’s submission was that the course recommended in “exceptional circumstances” was fast becoming the norm.

[11] Mr Downs submitted that the more appropriate course was for sentencing judges to take into account anticipated future assistance at the time of sentencing and to give the offender whatever discount the judge thought appropriate for all assistance to the authorities, whether actual or prospective. He acknowledged there would be the odd case where the offender failed to live up to his or her promise of future assistance. The remedy in those cases, Mr Downs submitted, was for the Solicitor-General to seek leave to appeal out of time against the sentence, on the basis that an undue discount had been wrongly obtained by the offender. Mr Downs accepted his suggestion was contrary to what this court had said in Stark (as quoted above), but he submitted, with respect, that Stark went too far in suggesting sentencing judges could not factor in future promised assistance.

[12] Mr Downs submitted that his approach would provide two advantages over what he said seems to be becoming current practice. First, most offenders who promise assistance keep their promise. At the moment, each of them has to appeal out of time if he or she is to get appropriate credit for post-sentence assistance. On his suggested approach, there would need to be fewer appeals, as the Solicitor-General would need to appeal only in those rare cases where the offender egregiously failed to fulfil his or her promise.

[13] Secondly, the risk of the offender tailoring his or her evidence at the post-sentence trial of co-offenders is much reduced if the offender has already been finally sentenced before giving that evidence, as opposed to, on current practice, the sentencing having been in effect only provisional. There is a risk, Mr Downs submitted, that some offenders may think that, the “better” their evidence from the

Crown’s perspective, the greater the discount they might receive on their subsequent appeal based on post-sentence assistance.

[14] We think Mr Downs’s submission soundly based, for the reasons he gives. We accept there is always a risk of improper inducements being offered for “really good evidence” and that risk can materialise even if all matters of assistance are to be weighed at sentencing. But the risk is still greater under current practice, as the offender may think that, if his or her post-sentence evidence is “really good”, the police could well provide a further letter for the Court of Appeal, in support of a further discrete reduction based on evidence given post-sentence. At sentencing, all relevant factors are in the mix, assistance to the authorities being only one. But, under current practice, the appeal hearing focuses just on the one aspect of post-sentence assistance.

[15] Accordingly, for the future, we recommend sentencing judges take into account, where appropriate, not only past assistance to the authorities but also promised future assistance. To the extent Stark may have suggested it was inappropriate for sentencing judges to factor in future promised assistance, it should be regarded as overruled.

[16] There is another practical matter which was raised on this appeal. Traditionally sentencing judges in their sentencing notes have not referred to the assistance which the offender has given to the authorities or to the discount the offender has derived therefrom. The sentence under appeal is no exception. The problem with current practice is that, if the sentence comes on appeal, the Court of Appeal has to guess how the judge reached his or her conclusion.

[17] The rationale behind current practice is clear: offenders who give assistance to the authorities frequently do so at considerable personal risk. Nothing should be done to discourage the giving of assistance to the authorities; assisters must be protected, as far as reasonably possible. This may mean that sometimes it will be appropriate for sentencing judges to refrain from detailing in public the assistance the offender has given or promised. At the same time, however, this court needs to

be properly and fully informed as to how the sentencing judge reached his or her discount figure

[18] We think the solution is for the sentencing judge to record his or her reasoning on the assistance point and any discount in respect thereof in a separate confidential memo. This could be kept, along with the police advice as to assistance, in a sealed envelope on the file marked “Not to be opened save by leave of a judge”. The envelope could then be made available to the Court of Appeal in the event of an appeal against sentence.

Should Mr Hadfield get a further discount for post-sentence assistance to the authorities?

[19] Venning J, having fixed a starting point of 11 years, referred only to Mr Hadfield’s “very early guilty plea” by way of specific mitigating factors: HC AK CRI 2005-004-002755 20 May 2005 at [9]. The only hint of Mr Hadfield’s assistance to the authorities was an oblique reference to the judge having taken into account Mr Hadfield’s “personal circumstances in so far as [the judge was] able to do so in a case of this nature”. Only the cognoscenti would have realised Mr Hadfield must have given assistance to the authorities, as no judge would ever have given a 45% discount (as Venning J did) on the grounds of a guilty plea alone, no matter how early. The very early guilty plea and the remorse said to be inherent in it were presumably worth about 30%. The balance (15%) must have been the allowance for the assistance to the authorities. We do not know whether the judge took into account future promised assistance or ignored it.

[20] In the circumstances, we think the only fair course is to assume that he ignored it. We therefore turn to consider the three authorities to which we earlier referred. In Sanchez-Silverio, this court increased the discount to 40%. That represented an additional 8% to recognise post-sentence assistance by Ms Sanchez-Silverio giving evidence against her ex-husband. Ms Sanchez-Silverio in her evidence had outlined both her and her ex-husband’s involvement in the importing of methampethamine. The police officer who provided a report to the court had said in that report: “Although the evidence was strong against

Henry Sanchez-Silverio, the assistance of Ms Sanchez-Silverio certainly helped to gain a fast guilty verdict.”

[21] In Stark, this court increased the discount by 10% to 60% to take into account the fact that Mr Stark “made good upon his offer to give evidence”: at [14].

[22] A 60% discount was applied in Zhou. In that case, the sentencing judge had allowed a discount of just under 30% to reflect Mr Zhou’s age, his pleas of guilty, and the co-operation which he had, prior to sentencing, provided to the police. This court thought the discount was “arguably inadequate”: at [19]. In any event, what Mr Zhou had done post-sentencing was very significant. Despite threats of physical harm to himself and his family in China, he gave evidence at a co-offender’s trial, which the Crown accepted “was of real significance”: at [20]. The Crown accepted a substantial discount “of up to 60%” was justified to reflect all mitigating factors. This court agreed.

[23] On the basis of these cases, Mr Speed sought an increase to 60%. He referred us to the updated memorandum from the police, which outlined the evidence Mr Hadfield had given post-sentence. According to the police, but for Mr Hadfield’s co-operation, “four high level drug dealers...would not have been identified and apprehended”. As a result of the evidence he gave at the preliminary hearing and subsequent trial, three of the four either pleaded guilty or were found guilty. This was “despite the dangers such actions would bring” to Mr Hadfield. Mr Speed submitted that Mr Hadfield’s overall assistance, coupled with the very early guilty plea, put this case in the same league as the others cited.

[24] Mr Downs opposed any further discount. This was not so much on the basis that Mr Hadfield’s “guilty plea/assistance” package was in a different category from the other cases cited, but rather because he thought as a matter of policy the courts should not be sanctioning a greater discount than 50% for such a package, and Venning J had already given 45%.

[25] We have reviewed some overseas authorities. We do not pretend this review has been comprehensive. The position in New South Wales appears to be that the

discount for a “guilty plea/assistance” package is generally in the range of 20% to

50%: see R v Chu NSW CCA BC9805504 16 October 1998 and R v El Hani [2004] NSW CCA 162. Although there is some authority suggesting the plea of guilty should earn a separate discount from that appropriate for assistance to the authorities (R v Halls [2002] NSWCCA 55; (2002) 127 A Crim R 209), the more common practice is to specify a combined discount: see El Hani and R v Hovan [2005] NSW CCA 179. There is, however, no guideline judgment as yet in New South Wales; Howie J in El Hani suggested the time might now be right for such a guideline judgment: at [74].

[26] This is not a matter on which the United Kingdom’s Sentencing Guidelines Council has yet pronounced. There are, however, two Court of Appeal guideline judgments on the topic, both of which are referred to in the Sentencing Guidelines Council’s compendium of guideline judgments issued by the Court of Appeal prior to the Council taking over that role. One is R v Guy [2009] EWCA Crim 2745; [1999] 2 Cr App R (S) 24, in which the Court of Appeal reaffirmed the appropriateness of the range given in an earlier Court of Appeal decision, R v King (1985) 7 Cr App R (S) 227. In King, the Court of Appeal said at 230:

It is to the advantage of law-abiding citizens that criminals should be encouraged to inform upon their criminal colleagues. They know that if they do so they are likely to be the subject of unwelcome attention, to say the least, for the rest of their lives. They know that their days of living by crime are probably at an end. Consequently, an expectation of substantial mitigation of what would be otherwise the proper sentence is required in order to produce the desired result. The amount of that mitigation, it seems to us, will vary...from about one-half to two-thirds reduction according to the circumstances as outlined above.

[27] It is clear, in context, that that reduction range includes the discount for a guilty plea.

[28] The second guideline judgment is R v A and B [1998] EWCA Crim 3529; [1999] 1 Cr App R (S) 52, where the relevant principles were set out at 56. The court, having referred to King and other cases, referred to the fact that the extent of the discount will depend on “the value of the help given and expected to be given”. The court continued:

Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal. If the information given is accurate, particularised, useful

in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial. ...Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed. For all these purposes, account will be taken of help given and reasonably expected to be given in the future.

[29] It would seem the United Kingdom approach is somewhat more generous than the New South Wales approach. Our approach to date seems to be midway between the approaches adopted in those two jurisdictions. While 50% seems normally to be the maximum discount in New South Wales, thus providing some support for Mr Downs’s suggested maximum, the position is otherwise in the United Kingdom. Clearly, on the principles set out in A and B, the present case would fall near the top of the discount range.

[30] The New Zealand authorities are thus not seriously out of line with New South Wales or English authority. We have concluded it is appropriate to treat Mr Hadfield in line with the New Zealand authorities cited. They suggest Mr Speed’s 60% discount is appropriate. The mitigating circumstances in Mr Hadfield’s case are more akin to the factors pertaining in Stark and Zhou, rather than Sanchez-Silverio. Although Ms Sanchez-Silverio gave assistance to the police as described, she was not the cause of the authorities’ apprehension of her co-offender and the Crown evidence against him was strong even without her evidence. Nor did the giving of her evidence carry quite the personal risk that Messrs Hadfield, Stark and Zhou exposed themselves to. Ms Sanchez-Silverio received a further 8% discount for post-sentence assistance. Mr Speed’s suggested additional 15% discount for Mr Hadfield seems consistent with that. In due course, it may be appropriate for the permanent court to provide a guideline on this topic.

[31] Accordingly, we allow a discount of six and a half years on account of the very early guilty plea, the assistance given to the authorities in apprehending “four high level drug dealers”, and the giving of evidence at the co-accused’s trial. The additional one and a half years’ discount is exclusively for post-sentence assistance. We wish to stress that we consider Venning J’s sentence was entirely appropriate based on factors known to him at the time of sentencing. The substituted sentence is therefore four and a half years’ imprisonment.

One final point

[32] In case readers are wondering about our forthrightness in discussing Mr Hadfield’s assistance to the authorities, we record we were told by Mr Speed that Mr Hadfield, since giving evidence, has effectively been given a new identity for his protection. He will be leaving New Zealand on his release from prison.

[33] Mr Speed informed us there was therefore no need for any special precautions to be taken on the release of this judgment, or more particularly the reasons therefor. Notwithstanding that, we have decided to be sparing in so far as the precise details of Mr Hadfield’s assistance are concerned.

Solicitors:

Crown Law Office, Wellington