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The Queen v Ahomiro [2007] NZCA 23 (26 February 2007)

Last Updated: 16 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA316/06
[2007] NZCA 23

THE QUEEN

v

TAKATU AHOMIRO

Hearing: 12 February 2007

Court: Arnold, Panckhurst and Priestley JJ

Counsel: C R Horsley for the Appellant
A Markham for Crown

Judgment: 26 February 2007 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Priestley J)

Introduction

[1] The appellant pleaded guilty to a count laid under s 117(e) of the Crimes Act 1961 of wilfully attempting to pervert the course of justice. The maximum penalty is seven years imprisonment.
[2] He was sentenced in the High Court at Rotorua by Venning J on 17 August 2006 to a term of two and a half years imprisonment. That term was cumulative on an existing sentence the appellant was then serving.
[3] This appeal challenges the sentence. The challenge is to its length, not to its cumulative imposition.

Background

[4] In November 2004 the police executed a search warrant at the Te Puke home of Mr Ronaki, the appellant’s uncle. The appellant was at the property when the warrant was executed. He attempted to flee but was arrested and charged.
[5] Those charges were subsequently withdrawn, although for a period the appellant was remanded in custody sharing, it would seem, a prison cell with his uncle.
[6] The appellant gave evidence at Mr Ronaki’s trial in the High Court at Rotorua on 28 July 2005. The trial Judge not only gave the appellant the standard self-incrimination warning but also arranged for the appellant to be advised by a duty solicitor. The appellant gave evidence to the effect that the drugs found at the Te Puke address were his rather than Mr Ronaki’s. That evidence was false. Furthermore the jury disbelieved it and Mr Ronaki was convicted.
[7] Giving false evidence had serious repercussions for the appellant. It was the basis for the Crown charging him with joint possession of methamphetamine and cannabis under the Misuse of Drugs Act 1975. The s 117(e) charge was laid in the alternative. To that the appellant pleaded guilty on 30 March 2006. In the ensuing trial on the Misuse of Drugs Act counts the appellant was acquitted.

The sentence

[8] The Judge had before him a pre-sentence report and also a contrite letter written by the appellant. Counsel does not contend that the Judge overlooked any relevant matters in the sentencing process. Venning J’s remarks are thus replicated to record the sentence’s context:

[4] You have told the probation officer that you gave the false evidence because of pressure from your family and your uncle and you felt defenceless. You said you were threatened and put under pressure. You explained to the probation officer that the only thing you could see to do was to tell the jury lies and that by your telling lies the jury would see you were innocent and your uncle was guilty without him realising what you were doing. Mr Ahomiro, I can’t accept that. You knew very well what you were doing. You and your uncle were cellmates for a period of some months before his trial. You and he practised the story over that time before his trial. Before you gave evidence at your uncle’s trial the Judge warned you in stern terms as to the possible consequences of what you were getting into and of your giving evidence. The Judge also arranged for you to be seen by a solicitor who repeated that warning and gave you independent advice.
[5] Mr Ahomiro I acknowledge you have said in the letter you have written to the Court which I have read that you have repeated you only lied because you felt threatened. I have to tell you, you had plenty of opportunity to seek protection or assistance from the appropriate authorities if you were threatened in that way. Despite that and the warnings you had you went ahead and gave false evidence. You deliberately lied in the witness box in front of a jury.
[6] Mr Ahomiro, each case of attempting to pervert the course of justice is different. Yours, however, is a serious type of case.
[7] Although the charge you have pleaded guilty to is attempting to pervert the course of justice your offending has much in common with a similar charge of perjury.
[8] In sentencing you I have to take account of the need to denounce offending of this nature. It is offending which strikes at the very heart of the justice system. I also have to take account of the need to ensure that others are deterred from offending in this way.

[9] Reference was then made by the Judge to R v Wilkinson (CA277/04, 16 December 2004). The Crown submitted an appropriate start point would be three to three and a half years. Counsel for the prisoner urged a start point of two to two and a half years imprisonment based in the main on the Wilkinson decision.
[10] The Judge then commented that although the appellant’s objective of saving Mr Ronaki from conviction failed, he nonetheless, despite advice and judicial warnings, gave false evidence on oath in a trial involving a serious charge (possession of a Class A drug for supply) with the intention of misleading the jury.
[11] The Judge then concluded:

[12] I take as a start point in your case three years’ imprisonment.
[13] I then have to take account of personal aggravating and mitigating factors. In your case Mr Ahomiro your previous record counts against you. You have an extensive list of previous convictions. The offences include dishonesty, violence and breach of Court orders. You are currently serving a sentence of imprisonment for assault and robbery.
[14] In mitigation in your favour I take into account your unfortunate personal position and background. I accept as has been said you were the subject of a bad incident of violence as a young boy. Also I note you have been diagnosed with schizophrenia and hepatitis B. You are currently waitlisted for the Addictions Treatment Unit Programme at prison.
[15] In your letter to the Court which I acknowledge is a thoughtful letter, you express regret and you say you have now reached a turning point in your life. You also say you have the support of your partner. I take that into account.
[16] I also take into account your plea of guilty. I accept the plea of guilty was entered early. However, it had to be because of the other charges you faced on the basis of your evidence given at your uncle’s trial. Your only possible defence to those charges, given your earlier evidence, had to be that you had lied at your uncle’s trial. In the circumstances it was inevitable that a conviction would follow on the alternative charge of attempting to pervert the course of justice.

[12] The Judge considered that the appellant’s personal circumstances were "perhaps more than counterbalanced" by his previous convictions. He then concluded:

[17] ... However, taking account of your personal circumstances and the early guilty plea, and the expression of regret set out in your letter, the final sentence of this Court is two and a half years’ imprisonment. That sentence is to be cumulative on the existing sentence you are serving.

Discussion

[13] Mr Horsley conceded it was not possible to argue that the two and a half year sentence was manifestly excessive. Rather he submitted that the sentence was inconsistent with the outcome in Wilkinson and thus infringed s 8(e) of the Sentencing Act 2002 which provides as a principle that a court:

8(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.

[14] Counsel submitted that the s 8(e) principle obliged a sentencing court to strive for consistency with similar sentences imposed for similar offending in similar circumstances, which was a narrower inquiry than the normal threshold inquiry into whether a sentence was manifestly excessive.
[15] Counsel then embarked on an analysis of Wilkinson. He further submitted that Wilkinson should be regarded as a more serious example of s 117(e) offending because it led to an acquittal which was not the situation here. Even if the three year start point was appropriate it was inappropriate for the Judge to have arrived at an end sentence three months higher than that imposed in Wilkinson.
[16] Some brief analysis of Wilkinson is thus necessary. False evidence was given in the trial of an associate for possession of Class A and Class B drugs. The associate was acquitted. There was a suggestion that the associate had agreed to pay Mr Wilkinson $10,000 in return for giving false evidence, but only $1,500 was paid.
[17] The count faced by Mr Wilkinson was one of perjury which, similarly to s 117(e), carries a maximum of seven years imprisonment.
[18] The sentencing Judge, Keane J, fixed on a start point of three years imprisonment. After allowing for Mr Wilkinson’s personal circumstances, Keane J concluded that the offence was inherently serious and that accordingly those personal circumstances should assume less significance. The end sentence was two years three months imprisonment.
[19] Mr Wilkinson’s appeal against sentence was dismissed. The principal argument on appeal was that insufficient discount had been given to reflect Mr Wilkinson’s guilty plea and his personal attributes.
[20] In dismissing the appeal this Court commented at [15] that Mr Wilkinson "... was dealt with as leniently as possible and that the least restrictive sentence was imposed". It further commented that the start point could well have been higher.
[21] For the respondent Ms Markham submitted that a premeditated attempt to mislead the jury was a serious matter and that deterrence was an important sentencing purpose to weigh. The positions of the appellant and Mr Wilkinson differed. Mr Wilkinson’s criminal history was less extensive. Guilty pleas had been entered in slightly different circumstances.
[22] Ms Markham accepted that it was not possible to identify a precise discount attributable to the appellant’s guilty plea but that given the mix of aggravating and mitigating factors identified by the Judge, the end sentence of two years and six months imprisonment (the respondent submitting that the appellant’s previous convictions might have justified an uplift to three and a half years) was generous.

Decision

[23] We reject the submission that s 8(e) and Wilkinson in combination tied the hands of the Judge. Quite apart from distinguishing factors relating to both offenders and offending, this Court made it clear in Wilkinson that the result was lenient, the discount generous, and the start point could well have been higher.
[24] Venning J was specifically referred to Wilkinson and its end sentence of two years three months. We do not consider that sentence and the two years six months sentence imposed on the appellant contravene the s 8(e) principle.
[25] Section 8(e) is but one of ten sentencing principles specified in s 8. Equally important are the nine s 7(1) purposes. It is artificial and contrary to the sentencing process mandated by the Act to focus on one principle, giving it disproportionate weight to other purposes and principles which the circumstances of offending bring into play.
[26] The appellant’s offending is serious and strikes close to the heart of the administration of justice. Offending of this type must engage the s 7(1)(e) and (f) purposes of denunciation and deterrence and the s 8(a) principle of gravity.
[27] Quite apart from counsel’s concession that the sentence imposed was not manifestly excessive, we consider that in the situation before the Judge, both his start point of three years, and his arrival at an end sentence of two years and six months after considering the relevant aggravating and mitigating factors, are unassailable.

Result

[28] For these reasons the appeal is dismissed.

Solicitors:
Adams & Horsley, Solicitors, Tauranga for Appellant
Crown Law Office, Wellington

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[1]	The appellant pleaded guilty to a count laid under s 117(e) of the Crimes Act 1961 of wilfully attempting to pervert the course of justice. The maximum penalty is seven years imprisonment.
[2]	He was sentenced in the High Court at Rotorua by Venning J on 17 August 2006 to a term of two and a half years imprisonment. That term was cumulative on an existing sentence the appellant was then serving.
[3]	This appeal challenges the sentence. The challenge is to its length, not to its cumulative imposition.

[4]	In November 2004 the police executed a search warrant at the Te Puke home of Mr Ronaki, the appellant’s uncle. The appellant was at the property when the warrant was executed. He attempted to flee but was arrested and charged.
[5]	Those charges were subsequently withdrawn, although for a period the appellant was remanded in custody sharing, it would seem, a prison cell with his uncle.
[6]	The appellant gave evidence at Mr Ronaki’s trial in the High Court at Rotorua on 28 July 2005. The trial Judge not only gave the appellant the standard self-incrimination warning but also arranged for the appellant to be advised by a duty solicitor. The appellant gave evidence to the effect that the drugs found at the Te Puke address were his rather than Mr Ronaki’s. That evidence was false. Furthermore the jury disbelieved it and Mr Ronaki was convicted.
[7]	Giving false evidence had serious repercussions for the appellant. It was the basis for the Crown charging him with joint possession of methamphetamine and cannabis under the Misuse of Drugs Act 1975. The s 117(e) charge was laid in the alternative. To that the appellant pleaded guilty on 30 March 2006. In the ensuing trial on the Misuse of Drugs Act counts the appellant was acquitted.

[9]	Reference was then made by the Judge to R v Wilkinson (CA277/04, 16 December 2004). The Crown submitted an appropriate start point would be three to three and a half years. Counsel for the prisoner urged a start point of two to two and a half years imprisonment based in the main on the Wilkinson decision.
[10]	The Judge then commented that although the appellant’s objective of saving Mr Ronaki from conviction failed, he nonetheless, despite advice and judicial warnings, gave false evidence on oath in a trial involving a serious charge (possession of a Class A drug for supply) with the intention of misleading the jury.
[11]	The Judge then concluded:

[14]	Counsel submitted that the s 8(e) principle obliged a sentencing court to strive for consistency with similar sentences imposed for similar offending in similar circumstances, which was a narrower inquiry than the normal threshold inquiry into whether a sentence was manifestly excessive.
[15]	Counsel then embarked on an analysis of Wilkinson. He further submitted that Wilkinson should be regarded as a more serious example of s 117(e) offending because it led to an acquittal which was not the situation here. Even if the three year start point was appropriate it was inappropriate for the Judge to have arrived at an end sentence three months higher than that imposed in Wilkinson.
[16]	Some brief analysis of Wilkinson is thus necessary. False evidence was given in the trial of an associate for possession of Class A and Class B drugs. The associate was acquitted. There was a suggestion that the associate had agreed to pay Mr Wilkinson $10,000 in return for giving false evidence, but only $1,500 was paid.
[17]	The count faced by Mr Wilkinson was one of perjury which, similarly to s 117(e), carries a maximum of seven years imprisonment.
[18]	The sentencing Judge, Keane J, fixed on a start point of three years imprisonment. After allowing for Mr Wilkinson’s personal circumstances, Keane J concluded that the offence was inherently serious and that accordingly those personal circumstances should assume less significance. The end sentence was two years three months imprisonment.
[19]	Mr Wilkinson’s appeal against sentence was dismissed. The principal argument on appeal was that insufficient discount had been given to reflect Mr Wilkinson’s guilty plea and his personal attributes.
[20]	In dismissing the appeal this Court commented at [15] that Mr Wilkinson "... was dealt with as leniently as possible and that the least restrictive sentence was imposed". It further commented that the start point could well have been higher.
[21]	For the respondent Ms Markham submitted that a premeditated attempt to mislead the jury was a serious matter and that deterrence was an important sentencing purpose to weigh. The positions of the appellant and Mr Wilkinson differed. Mr Wilkinson’s criminal history was less extensive. Guilty pleas had been entered in slightly different circumstances.
[22]	Ms Markham accepted that it was not possible to identify a precise discount attributable to the appellant’s guilty plea but that given the mix of aggravating and mitigating factors identified by the Judge, the end sentence of two years and six months imprisonment (the respondent submitting that the appellant’s previous convictions might have justified an uplift to three and a half years) was generous.

[23]	We reject the submission that s 8(e) and Wilkinson in combination tied the hands of the Judge. Quite apart from distinguishing factors relating to both offenders and offending, this Court made it clear in Wilkinson that the result was lenient, the discount generous, and the start point could well have been higher.
[24]	Venning J was specifically referred to Wilkinson and its end sentence of two years three months. We do not consider that sentence and the two years six months sentence imposed on the appellant contravene the s 8(e) principle.
[25]	Section 8(e) is but one of ten sentencing principles specified in s 8. Equally important are the nine s 7(1) purposes. It is artificial and contrary to the sentencing process mandated by the Act to focus on one principle, giving it disproportionate weight to other purposes and principles which the circumstances of offending bring into play.
[26]	The appellant’s offending is serious and strikes close to the heart of the administration of justice. Offending of this type must engage the s 7(1)(e) and (f) purposes of denunciation and deterrence and the s 8(a) principle of gravity.
[27]	Quite apart from counsel’s concession that the sentence imposed was not manifestly excessive, we consider that in the situation before the Judge, both his start point of three years, and his arrival at an end sentence of two years and six months after considering the relevant aggravating and mitigating factors, are unassailable.