R v McArthur [2007] NZCA 237 (13 June 2007)

Last Updated: 16 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA281/05
CA389/05 [2007] NZCA 237

THE QUEEN

v

SCOTT IAN MCARTHUR BENJAMIN SIOUSE MARTIN

Hearing: 28 March 2007

Court: Chambers, Chisholm and Gendall JJ Counsel: P J Kaye for Appellant Scott McArthur

D S Niven for Appellant Benjamin Martin

K B F Hastie for Crown

Judgment: 13 June 2007 at 10 am

_{JUDGMENT OF THE COURT}

A The time for appealing is extended.

_{B The appeals are dismissed.}

REASONS OF THE COURT

_{(Given by Chambers J)}

R V MCARTHUR AND ANOR CA CA281/05 13 June 2007

Kidnapping and assault charges

[1] A jury found Scott McArthur guilty of two charges of kidnapping, one charge of injuring with intent to injure, and one charge of common assault. In the same trial, the jury found Mr McArthur’s co-accused, Benjamin Martin, guilty of two kidnapping charges and one charge of injuring with intent to injure. The victim of the alleged joint offending was Daniel Gover, a man at the time in his middle twenties. The offending had allegedly occurred over 22-23 October 2003. There were two other co-offenders who do not appeal in this proceeding.

[2] The trial judge, Frater J, subsequently sentenced Mr McArthur to a total effective sentence of nine years’ imprisonment. She also ordered he was to serve a minimum period of imprisonment (an MPI) of four and a half years’ imprisonment (50%). She sentenced Mr Martin to the same effective sentence, and also imposed on him an MPI of four and a half years.

[3] Both men now belatedly appeal against their convictions and sentences.

Issues on the appeals

A The McArthur appeal

[4] Mr Kaye, for Mr McArthur, raised four issues on Mr McArthur's conviction appeal. The first three related to things Mr McArthur's trial counsel, Anthony Balme, was said to have done wrong. Mr McArthur swore in support of his appeal an affidavit, on which he was cross-examined. That affidavit contained a number of diffuse complaints, but Mr Kaye helpfully marshalled them and, in the end, relied on the three main complaints.

[5] The first allegation was that Mr Balme had failed to follow Mr McArthur's instructions in not calling three witnesses. The prospective witnesses were Matthew Underwood, Noelene Murray, and Colleen Johns.

[6] The second complaint was that Mr Balme, in his final address to the jury, had called his own client a liar.

[7] The third complaint was that Mr Balme had jeopardised his client’s interests by suggesting a co-accused may have been responsible for what happened to Mr Gover on 23 October 2003, the second day of the kidnapping episode.

[8] The final issue on the conviction appeal related to fresh evidence. It was said

Mr Gover, the prime Crown witness as well as the alleged victim, had recanted.

[9] So far as sentence was concerned, Mr Kaye raised two issues. First, was the sentence manifestly excessive?

[10] Secondly, was this an appropriate case for an MPI order?

B The Martin appeal

[11] Mr Niven, for Mr Martin, raised two issues on Mr Martin’s conviction appeal. The first related not to what his own trial counsel had done, but rather to what Mr Balme had done in his closing address on Mr McArthur's behalf. Mr Martin complained that Mr Balme's closing unfairly jeopardised his (Mr Martin’s) defence and gave rise to a miscarriage of justice.

[12] Mr Martin’s second ground of appeal related to the alleged recantation by

Mr Gover.

[13] So far as sentence was concerned, Mr Niven raised the same two points

Mr Kaye had raised on Mr McArthur's part.

[14] Both appeals were filed very late. Ms Hastie, for the Crown, did not oppose the time for appeal being extended. We accept that the new evidence relating to Mr Gover was not available during the appeal period. In those circumstances, we are prepared to extend the time for appealing.

Did Mr Balme fail to follow instructions by not calling Mr Underwood, Ms Murray, and Ms Johns?

[15] Mr McArthur and Mr Balme discussed the possibility of Mr Underwood’s being called as a witness. Mr Underwood was well known to Mr Balme: indeed, Mr Balme had previously acted for Mr Underwood – indeed, had acted successfully for him. At the time of this trial, however, Mr Underwood was in prison, having been convicted of an aggravated robbery. Mr Balme knew of Mr Underwood’s lengthy criminal record, which, he surmised, no doubt correctly, would come out in evidence if Mr Underwood were to be called as a witness.

[16] A few days prior to trial Mr McArthur gave Mr Balme a two and a half page brief of evidence, supposedly completed by Mr Underwood. (Mr Balme annexed that brief, which we shall call “the Underwood brief”, to his affidavit, sworn on

3 April 2006.) Mr Balme read the Underwood brief. In it Mr Underwood purported to give an account as to what had happened over 22-23 October 2003, even though on Mr Gover's account Mr Underwood was not even present. Mr Underwood said that Messrs McArthur and Martin were not present. Rather, the attack on Mr Gover was perpetrated by an unnamed “mate” of Mr Underwood’s. Although the brief was somewhat incoherent, Mr Underwood appeared to accept he might be “in trouble for what [had] happened” to Mr Gover. Mr Underwood said that he had found out Mr McArthur had been arrested for “kidnapping someone [called] Daniel”. He added:

I wanted to sort this out then, but not long after I got in trouble myself and ended up in prison. I saw Scott [McArthur] and Ben [Martin] and told them I wouldn’t let them go down for my shit.

[17] Mr Balme had, he told us in evidence, “serious reservations about...the veracity” of Mr Underwood’s supposed account of what had happened and was concerned about the late stage at which the brief had emerged. He thought it did not appear “particularly credible”. Indeed, from his extensive knowledge of Mr Underwood, he considered calling him “would be an unmitigated disaster”.

[18] Even if Mr Underwood was to be called, Mr Balme thought it more logical that Mr Tuck should call him. Mr Tuck was acting for Mr Martin at that time.

Mr Balme held that view for two reasons. First, the nature of the evidence Mr Underwood could give made it more logical that Mr Martin’s lawyer should call him rather than Mr McArthur's: the Underwood brief described events which had allegedly occurred at Mr Martin’s address and in the presence of Mr Martin’s partner. Secondly, Mr Balme felt it may well come out in evidence that he (Mr Balme) had previously acted for Mr Underwood. Mr Balme said he was concerned “the evidence was going to look like a jack-up, and it would look more like a jack-up if I, Mr Underwood’s lawyer, was putting it before the court”.

[19] Mr Balme says that he, Mr Tuck, Mr McArthur, and Mr Martin all discussed on the first day of the trial whether Mr Underwood should be called. According to Mr Balme, Mr Tuck was not interested in calling Mr Underwood. Following the discussion, he says it was agreed among the four of them that Mr Underwood would not be called.

[20] Mr McArthur’s account is somewhat different. He denies it was agreed Mr Underwood would not be called. His recollection of the day one meeting, at which he accepts Messrs Martin and Tuck were present, was that Mr Balme informed him that “there was still plenty of time to organise the witnesses and get them there”. Significantly, however, he called neither Mr Martin nor Mr Tuck to give evidence as to their recollections of the meeting on day 1 of the trial.

[21] It was not until Mr McArthur was being cross-examined before us that it emerged for the first time that the evidence he wanted Mr Underwood to give was not that contained in the brief he had given to Mr Balme. This came as a great surprise to us, especially since Mr McArthur had sworn an affidavit in response to Mr Balme's in which he had not suggested Mr Balme had referred to the wrong evidence when discussing the allegation that he (Mr Balme) had failed to comply with instructions in not calling Mr Underwood. It now emerged that the evidence Mr McArthur said he had wanted Mr Underwood to give was to the effect that Mr McArthur had had nothing to do with the drug activity, which was said by the Crown to be the provocation for the kidnapping of Mr Gover.

[22] Mr Balme was cross-examined after Mr McArthur gave his evidence. Mr Kaye chose not to cross-examine Mr Balme as to what evidence Mr Underwood had been supposed to give. So the bench decided to clear this matter up. We asked Mr Balme what he understood the gist of Mr Underwood’s evidence was to have been had he been called. He replied it was the Underwood brief. Although Mr Kaye asked some questions arising from ours, he chose not to tackle Mr Balme concerning that.

[23] We make the following findings concerning this first allegation. First, we are satisfied that the possible evidence Mr Underwood was to give was that contained in the Underwood brief. We do not accept the revised account, first given in cross-examination, as to the nature of Mr Underwood’s proposed evidence. In any event, we observe there is no evidence that Mr Underwood could or would have given evidence in line with Mr McArthur's assertion in cross-examination.

[24] Secondly, we accept Mr Balme’s account of the meeting on day 1 of the trial. It is significant that, even though Messrs Martin and Tuck have both sworn affidavits in support of these appeals, neither chose to give an account of this meeting.

[25] Thirdly, we share Mr Balme’s assessment that the Underwood brief lacked credibility and that calling him could well have been “an unmitigated disaster” from the defence perspective. The Underwood brief was not only hopelessly inconsistent with Mr Gover's account of what had happened to him but also was almost as inconsistent with the evidence Mr McArthur gave at trial. The Crown prosecutor would have had a field day in cross-examining Messrs McArthur and Underwood on the significant inconsistencies between their two accounts.

[26] In short, therefore, we are satisfied that Mr Balme did not fail to follow instructions by not calling Mr Underwood. On the contrary, he and Mr McArthur agreed Mr Underwood would not be called – and that was a very sensible decision in the circumstances.

[27] The alleged failure to call Ms Murray and Ms Johns can be swiftly disposed of. We are satisfied no instructions were given to call them. In any event, there is no evidence at all as to what either would have said had she been called as a witness.

Did Mr Balme in his final address call his own client a liar?

[28] Mr McArthur, in his first affidavit, made only one reference to this topic. It was this:

However, in addition, Mr Balme told the jury that I had lied in the evidence that I had given on oath in the witness box. Not only was this untrue but this was done completely without my instructions once again.

[29] In his second affidavit, Mr McArthur expanded on this - but only to a marginal extent. He said:

At one stage in his closing [Mr Balme] told the jury I lied in evidence to protect my co-accused. I was shocked. My own lawyer attacked my credibility.

[30] Mr Balme categorically denied he had called Mr McArthur a liar. He could only surmise that Mr McArthur had got confused about what he had said to the jury. He thought there were two possible sources for Mr McArthur’s confusion.

[31] First, he did suggest Mr Gover may have lied out of fear of one of Mr McArthur’s co-accused, namely Mark Kimber. This is a point we develop in the next section of these reasons.

[32] Secondly, Mr Balme thought it possible Mr McArthur may have misunderstood the standard explanation Mr Balme gives to juries “about how to deal with an accused person’s evidence”. Mr Balme explained to us that he always explains to juries that, if they accept an accused’s evidence, it is a complete answer to the charges against him or her. But he goes on to explain, he says, that “even if they find [the accused’s] evidence might reasonably be true, nevertheless the Crown would have failed to prove its case”.

[33] Unfortunately we have no record of exactly what Mr Balme said to the jury. The evidence in this case was not recorded on FTR; traditionally, no record is kept of counsel’s addresses.

[34] Notwithstanding the absence of a record, we have no doubt that Mr Balme did not call Mr McArthur a liar. We have reached that view for the following reasons.

[35] First, it would be highly unusual for any counsel to accuse his own client of lying. Mr Balme is a very experienced criminal barrister. It is very unlikely he took leave of his senses, especially in circumstances where his performance throughout the rest of the trial appears to have been both effective and orthodox.

[36] Secondly, had Mr Balme called his client a liar, we would have expected some reference to that matter either in a judicial bench note or in the judge’s summing-up. There is no such reference in either a bench note or the summing-up. On the contrary, when the judge was summarising Mr McArthur’s defence, she made the following references bearing on the current point:

[117] Then there was Mr Balme, who opened by suggesting that there was more truth in Mr Hollister-Jones’ [the prosecutor's] timeline than in Mr Gover's evidence. He submitted that that does not lie, that the calls and texts were made, and that that lent a lot of support to what Mr McArthur told you when he went into the witness box. ...

[118] Mr Balme submitted that Mr McArthur was in a different position from the other three accused: first, he was not on the phone as they were; and, secondly, he went into the witness box and was cross-examined, so you had the opportunity of assessing him. And so that if you conclude that what he said might be true as a reasonable possibility, he was entitled to be acquitted.

[119] Mr Balme's submission was that you should accept what

Mr McArthur said as the truth.

...

[125] Mr Balme submitted that Mr McArthur's position that he was not at the property the next day was only ever challenged – or was not challenged in any more than a peripheral way in cross-examination and that, at the end of the day, you have to consider the evidence of Mr Gover and Mr McArthur, and, when it comes to an issue of credibility, you should consider who gave the better evidence, who was more convincing and who gave evidence in a more reliable manner.

[126] In conclusion, he submitted that you could not exclude Mr McArthur’s evidence that there was no assault in the car, that there was no detention at Windermere at the point that Mr McArthur left, and that the alleged threatening to kill and the firearm offence happened, if they did at all, at a time when Mr McArthur was not at the property.

[37] In our view, the judge’s summary of Mr Balme’s final address is strongly supportive of Mr Balme’s account of what he says he said and provides no support at all for Mr McArthur’s contrary assertion.

[38] Thirdly, we think it very likely that Mr McArthur has got confused and that Mr Balme’s explanation for that confusion, as set out at [31]–[32] above is, probably right.

[39] Fourthly, looking at the matter overall, we much prefer Mr Balme's credibility to Mr McArthur's, where there is conflict between the two.

[40] This ground of appeal fails.

Did Mr Balme jeopardise his client’s interests by suggesting a co-accused may have been responsible for what happened to Mr Gover on 23 October?

[41] Before answering this question, we need to provide some further background. Messrs McArthur and Martin were two of four accused. The other two were Mr Kimber and Regan Walling. (The latter’s role was peripheral.) There were nine charges, some joint, in total. Seven of the nine charges related to the kidnapping and related crimes, which took place over 22 and 23 October 2003. The two kidnapping charges spanned the two days. Only two of the charges related to events occurring exclusively on the second day, namely 23 October. Those charges were threatening to kill, contrary to s 306 of the Crimes Act 1961, and committing a crime, namely threatening to kill, using a firearm, contrary to s 198B. Only Mr McArthur and Mr Martin faced those 23 October charges.

[42] As we have said, Mr McArthur gave evidence at the trial. His evidence was that he had not been present at the house where Mr Gover was being held on

23 October. (He admitted to having been there the previous day.) Mr McArthur’s

evidence was directly contrary to Mr Gover’s evidence. Mr Gover had given detailed evidence about Mr McArthur having come in that morning with a sawn-off shotgun and telling him that he was going to blow his (Mr Gover’s) head off. Mr Martin was also present. He then said that Mr McArthur had jammed the shotgun in his mouth, while kicking and screaming at him. During all this time, Mr Gover’s hands remained tied behind his back. Mr McArthur, according to Mr Gover, then put his foot on Mr Gover’s throat and started standing on him, trying to hold his head down. Mr McArthur then jammed the shotgun in Mr Gover’s mouth, chipping Mr Gover’s teeth as he did so. Mr McArthur then said again that he was going to blow Mr Gover’s head off. At the same time, Mr Martin was using a gas torch to try to scare him. A little later Messrs McArthur and Martin left the room. At that point, Mr Gover managed to snap the tape holding his hands, broke the window of the room in which he was being held, dived out it, and ran to a neighbouring property where he was able to ring the police.

[43] During the evidence phase of the trial, the four defence lawyers generally tried not to undermine each other. Three of the four defendants were, after all, close friends and two were members of the same gang. But the arrangement started to unravel during counsel’s final addresses. Mr Mabey QC, for Mr Kimber, addressed first. It appears to be common ground on this appeal that Mr Mabey strongly suggested that others, and in particular Mr McArthur, were responsible for all the offending. Indeed, Mr Balme can recall saying to Mr McArthur after Mr Mabey had closed, “Well, the gloves are off now.”

[44] Mr Tuck addressed second. Mr Balme followed him. There is no quarrel with Mr Balme’s final address so far as it covered the events of 22 October: so far as that day was concerned, Mr Balme urged on the jury his client’s account and strongly submitted Mr Gover’s account was untrue.

[45] But what was to be said about events of 23 October? That was a matter Mr Mabey had not had to deal with, as Mr Kimber was not charged with any specific offences relating solely to that day. Mr Balme felt Mr Tuck had not really provided a satisfactory explanation for what Mr Gover said had happened on the 23rd. It just did not ring true that Mr Gover was making up the events of the 23rd, in

circumstances where there was independent evidence that the window had been broken and that a petrified Mr Gover had sought refuge at a neighbouring house. Mr Balme decided there needed to be an explanation for the 23rd other than the rather feeble one that Mr Gover’s account was a tissue of lies. So what he decided to do, with respect to the 23 October counts, was suggest that Mr Gover might have untruthfully identified Mr McArthur as being involved on 23 October “because he was more frightened of others”. Mr Balme freely agreed that the effect of this submission “would have been to raise the possibility that it was Mr Kimber who came to the house on 23 October”. The idea that Mr Gover might have been more frightened of Mr Kimber than of Mr McArthur had, in fact, a solid evidential foundation. Of the three principal accused, there was no doubt at all that Mr Kimber was, as Mr Balme said, “the senior man of the three” and “the boss”.

[46] As it turns out, Mr Balme’s tactic appears to have borne fruit. Both

Mr McArthur and Mr Martin were acquitted on the two counts relating to the

23 October offending. The only plausible explanation for those verdicts is that the jury must have been unsure as to whether Mr Gover was telling the truth when he named Messrs McArthur and Martin as his sole attackers on the 23rd.

[47] So the answer to this issue is clear. Mr Balme, far from jeopardising his client’s interest by suggesting a co-accused (by implication, Mr Kimber) might have been responsible for what happened to Mr Gover on 23 October, enhanced his client’s interest and probably secured him his acquittals on those two charges. It may be Mr McArthur did not appreciate that tactic and it may be also that Mr Kimber was angry at Mr Balme, and by extension at Mr McArthur, for the suggestion that he was involved in the 23 October attacks, even though he faced no charges in respect of them. But no miscarriage of justice to Mr McArthur’s detriment resulted, as the tactic led to acquittals, whether deserved or not.

[48] This finding also disposes of the first ground of Mr Martin’s appeal. Mr Balme by his closing address certainly did not jeopardise Mr Martin’s defence with respect to the two 23 October charges. On the contrary, Mr Martin can probably thank Mr Balme for his acquittals on those two charges.

[49] We reject, therefore, all the complaints made against Mr Balme. We consider them entirely unjustified. We consider Mr Balme handled Mr McArthur’s defence with real skill, even though he has apparently received not a word of thanks from his client for so doing. Unfortunately, the role of a defence counsel is frequently thankless.

Has Mr Gover recanted?

[50] On 4 May last year, Mr Tuck swore an affidavit for this appeal. He said that on 26 April 2006 he had received a letter. He did not say from whom he had received the letter. The letter read as follows:

Sunday 23 April 2006

To whom it may concern,

My name is Daniel Gover I am residing in Australia. I am writing this affidavit concerning a court case in New Zealand Rotorua involving a friend of mine, Benjamin Martin.

At the time I was under the influence of the Methamphetamine Drug. I was paranoid and scared for my well being, I was not thinking straight at the time and said things that were untrue.

Now that some time has passed I want to do what is right and tell the truth, and let the court know that my friend Benjamin Martin did not detain me at all, I willingly went went with him. Ben was the one who was there for me.

I feel that there has been an injustice handed out to my friend Benjamin. It was not Benjamin I was scared of at all, he was not the person who assaulted me he was trying to help me.

I have since overcome my addiction and have began to live a more stable lifestyle.

Please accept my sincerest apologies for misleading the courts without thought for anyone but myself.

I now feel I am a better person for addressing these issues and hope for my friends forgiveness.

Yours sincerely

Daniel Gover

[51] Mr Martin swore an affidavit in support of his appeal subsequently, namely on 18 July 2006. He did not mention Mr Gover’s letter, even though, according to

Mr McArthur in his evidence before us, it was Mr Martin who told him about

Mr Gover having sent the letter.

[52] The police, not unnaturally, followed up this matter. On 18 September 2006, Detective Logan Nicholas telephoned Mr Gover in Australia. According to Detective Nicholas, Mr Gover said he had received a visit in Australia from a New Zealander he did not know. Under coercion from that person, Mr Gover said that he had been forced to make the statement against his will. Detective Nicholas swore an affidavit testifying to this.

[53] On 15 March 2007, Mr Tuck received a second fax, purporting to be a statutory declaration. Again, no information is provided as to source. This document reads as follows:

To Whom it may concern,

I Daniel Mark Gover am writing this affidavit in relation to events involving Benjamin Martin, Scott Mc Arther and Mark Kimber. I wrote a letter last year and I stress to say that this was not written under duress or intimidation and would again like to state my apologies for wasting the courts time. I am sorry for everything and take back all I said in court as I was under the influence of drugs and hope I can begin to set things right by admitting the truth. This letter here, once against has not been written under any threats or intimidation. I apologise to the three accused and hope this may help to fix any wrong I have created.

Yours Sincerely

[54] Detective Nicholas then followed this matter up. Detective Nicholas spoke to Mr Gover on 27 March this year. Mr Gover told him that “a contact of Kimber/Martin/McArthur” had, on three or four occasions, asked him to make a statutory declaration to the effect that the evidence he had given at trial was “lies”. He also said that he had received over a dozen calls from Mr Martin, the last about two weeks before. Mr Gover said no direct threats were ever made, but he did recall Mr Martin saying things like “Come on, Daniel, you don’t want to get another visit again, do you?” Mr Gover took that as meaning “a visit from some heavy people that visited him on the first occasion, threatening him”.

[55] Mr Gover told Detective Nicholas that he had heard through these people that he (Detective Nicholas) had made an affidavit outlining the conversation they had

had about his having been coerced into making a statement. He said that, as a result of that, “these people [had] asked him to make another statutory declaration stating that [he and Detective Nicholas] had in fact never had such a conversation and that [Detective Nicholas] had lied”.

[56] Mr Gover knew of the imminent appeal hearing. He asked Detective Nicholas if there was “any way” in which his conversations with Detective Nicholas “could be passed directly to the Judge”. He was scared that this conversation would otherwise be relayed to Messrs McArthur and Martin (as the previous conversation had been, through Detective Nicholas’s affidavit). He feared that, if they found out, the “Australian people [would] continue to harass him”.

[57] Mr Gover reiterated that the evidence had given in court was correct.

[58] We are not satisfied there has been a recantation by Mr Gover. We believe that he has been intimidated into making the two statements now proffered on this appeal. Clear proof of that is, we think, provided by the statutory declaration. In that, he says that, since his departure from New Zealand, he has never spoken with or expressed any fears or concerns to “any police officers from New Zealand or Australia”. That is clearly untrue: we accept unreservedly Detective Nicholas’s affidavit that he has spoken to Mr Gover. Both documents reek of coercion. It defies belief that Mr Gover is voluntarily and truthfully now saying he was not “kidnapped, tortured and beaten”. There was clear independent evidence of his physical injuries, which were consistent only with his having been beaten. There was also the independent evidence to which we have referred (at [45] above) of Mr Gover arriving terrified at a neighbouring house and calling the police. We have no doubt that the alleged recantations are the result of improper pressure by persons unknown, persons acting at the behest of Mr Martin and possibly also Mr McArthur.

[59] This does not appear to be the first time these offenders have put improper pressure on Mr Gover. The first trial had to be adjourned after Mr Gover failed to appear to give evidence. The Crown's application for adjournment was opposed by all the accused: their counsel asked for a discharge. Allan J granted the adjournment application and dismissed the applications for discharge because he was satisfied that

Mr Gover’s disappearance was the result of pressure placed upon him by one or more of the accused. Allan J noted that Mr Gover had been in the witness protection programme, although there was evidence that “one or more of the accused, or interests associated with them” had found out his new identity and had visited him at the place where he was secretly residing. Just as Allan J was prepared to draw the inference that improper pressure had been put on Mr Gover pre-trial by one or more of the accused, so we are prepared to draw a like inference with respect to the purported recantation.

[60] There is no reasonable possibility that the recantation is genuine. We reject too this ground of appeal.

[61] That disposes of all grounds of appeal against conviction advanced by both

Mr McArthur and Mr Martin. Both their appeals against conviction are dismissed.

Was Mr McArthur’s sentence manifestly excessive?

[62] At sentencing, the Crown had sought a sentence in the vicinity of nine to ten years’ imprisonment. Mr Kaye, who appeared for Mr McArthur on sentencing, had suggested a six to eight year range, and plumped for a sentence of seven years’ imprisonment. As previously indicated, the judge ultimately fixed an effective term of nine years’ imprisonment.

[63] While we have previously described events of 23 October, we have not described what happened on 22 October, as described by Frater J. In the early evening, Mr McArthur and Mr Martin came to the house where Mr Gover was. They forced him to accompany them in their car. In the car, Mr McArthur started hitting Mr Gover on the head, saying he had “ripped him off” on a drug transaction. Later, after driving Mr Gover to Mr Kimber’s house (where Mr Kimber also threatened Mr Gover), they took Mr Gover to Mr Martin’s house and forced him into the garage. For what happened next, we refer to the graphic account in the judge’s sentencing notes:

Mr Gover’s evidence, which I accept, was that once inside the garage the roller door was closed, a sheet put down in the middle of the floor and he

was made to lie on it, on his stomach, with his hands behind his head. The two men, Mr Martin and Mr McArthur, then handcuffed him and tied his hands and legs together with number eight wire, which they then tied to the roof. Mr Gover was not able to see exactly what was happening because a black bag or something similar was put over his head and a sock doused in petrol jammed in to his mouth, which was taped over with insulation tape. What he did know was that the men then pulled on a rope so that he was pulled off the ground. They then released the rope slightly, with the result that his stomach touched the ground but his arms and legs remained in the air and then, Mr Gover said, they started kicking him in the face and ribs and hammered him on his right knee. He described it as like being hit with a sledgehammer. It was excruciatingly painful. They then poured petrol on the cuts on his head.

After a while they turned the lights out and left. As they did so they took the gag out of his mouth. He was left swinging. He could not handle the pain so started screaming. Mr Martin came out of the house and tried to undo the handcuffs but by then Mr Gover’s hands had swollen and the handcuffs had to be cut off. He was then tied up again with number eight wire and left once more. After a while he managed to undo the wire, untie himself and get free. He tried to escape but the door had been locked on the outside and there were bars all over the windows. The roller door was also locked with a padlock outside. In the dark he found as screwdriver and started undoing the hinges on the door. Just as he was about to undo the bolt a dog jumped up against the door. At this Mr Martin came running out with a machete in his hand. He slapped Mr Gover around the head with the flat edge of it and told him to get back inside the garage. Mr McArthur followed him. The two men made Mr Gover lie back on his stomach and re-connected the write so that he was spread out like a starfish or in a crucifix form. He was unable to move. They hit him a few more times as he tried to get away. Mr McArthur crouched down in front of him with a packet of matches telling him that he could do things like light some matches and stick them down his fingernails. He said he would burn him, but that that could wait till the next day. Mr McArthur then put the sheet over Mr Gover’s head and left the garage, telling him to be quiet. Mr Martin put the screws back in the door and hung it back.

Mr Gover thought that he was left in that position for a couple of hours. It felt like an eternity. At 3.00 am Mr Martin came back and found Mr Gover shaking with the cold. He thought he had hypothermia. Mr Martin took him inside and made him lie on a couch where he fell asleep.

[64] When he awoke, he eventually managed to escape. (The judge made no specific findings as to what had occurred on the 23rd, as Messrs McArthur and Martin had been acquitted with respect to charges relating to the 23rd.)

[65] This was quite horrendous offending. Frater J considered a number of appellate authorities, which she discussed in some detail. She noted a number of aggravating features, including the use of physical violence and weapons, the sadistic and gratuitous physical assaults inflicted on the victim at a time when he was

defenceless due to the restraints imposts on him, the high level of cruelty involved in the 16 hour detention that the victim was subjected to, and the physical and psychological harm inflicted on him. The judge rightly described the kidnapping as involving “extreme callousness, approaching torture”. She said that the victim rightly feared for his life.

[66] She also noted that at the time of this offending Mr McArthur was still subject to a lengthy prison sentence.

[67] The only case cited by Mr Kaye on this aspect of the appeal was R v Luo CA171/05 12 October 2005, when this court upheld a sentence of seven years’ imprisonment. The offending in that case was less serious than here. In our view, that decision, far from causing us to adjust Mr McArthur's sentence, reinforces our view that the sentence imposed on him was appropriate.

[68] We dismiss the appeal against sentence.

Was this an appropriate case for an MPI order in Mr McArthur’s case?

[69] The judge applied the test set out in the original s 86 of the Sentencing Act

2002, as interpreted in R v Brown [2002] 3 NZLR 670 (CA). The original s 86 was amended by the Sentencing Amendment Act 2004, which came into effect from

7 July 2004 (i.e. between the date of these offences and the date of sentencing). The judge clearly thought, however, the old law should apply. She no doubt had in mind this court’s decision in R v Chadderton [2004] NZCA 295; (2004) 21 CRNZ 566, which mandated that approach.

[70] Since Frater J sentenced these appellants, however, Chadderton has been overruled. This court in R v Te Huia CA327/06 21 December 2006 held Chadderton was inconsistent with a later Supreme Court decision, Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 1. This court held in Te Huia that the amended s 86 had to be applied to all sentencing taking place after it came into force.

[71] Accordingly, although Frater J applied the old s 86 in conformity with the appellate authority then current, later authority means she was wrong to do so. We must, therefore, re-evalulate the MPI in light of the amended s 86. This does not assist either appellant, however, as the new s 86 widens the range of circumstances in which an MPI will be justified: R v N (CA249/05) 14 December 2006 at [34].

[72] Like Frater J, we are satisfied that the standard one-third minimum period provided in s 84 of the Parole Act 2002 would be insufficient for the purposes of holding Mr McArthur accountable, denouncing his conduct, and deterring him from committing the same or similar offences. We are also satisfied Mr McArthur is a man from whom the community needs protection, a factor under the new s 86(2) which was not applicable under the original s 86. As this court said in R v Taueki [2005] 3 NZLR 372, “in cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon”: at [57]. Those considerations forcefully apply in the present case.

[73] We also are satisfied that the period of the MPI imposed was within the acceptable range for the circumstances of this case.

[74] We dismiss the appeal against the imposition of an MPI order.

Was Mr Martin’s sentence manifestly excessive?

[75] At sentencing, both Crown counsel and Mr Martin’s counsel, Mr Tuck, accepted that the circumstances surrounding Mr Martin’s offending were effectively the same as the circumstances surrounding Mr McArthur's offending, with the consequence that the end sentences should be the same. Frater J agreed with counsel’s assessment. She said that, “by and large”, the aggravating features were the same, and, as for Mr McArthur, there were really no mitigating factors.

[76] Mr Niven adopted a slightly different approach on the appeal. He suggested

Mr Martin was “entitled to some credit for his personal circumstances”. The first of

these was that Mr Martin at 25 years old, was “significantly younger than either of the two major co-accused”. Mr Kimber, he said, was aged 40 and Mr McArthur 31. The second factor was the “large number of references from family and friends”, to which the judge referred.

[77] Mr Niven submitted that the “final sentence” should not have been in excess of eight years’ imprisonment.

[78] Frater J had the huge advantage of having been the trial judge. She was in an excellent position to judge the respective culpability of Messrs McArthur and Martin. She found their culpability and the overall circumstances of the offending the same as between the two of them. In that she had the support of both Crown counsel and Mr Martin’s trial counsel. We are not persuaded that equality should be upset.

[79] In particular, we do not accept that the age difference between Mr McArthur and Mr Martin had any significance. Neither was a youth. And Mr Martin was a fully patched member of a gang, who, according to evidence before the judge, had no intention of giving up those gang ties.

[80] We dismiss the appeal against sentence.

Was this an appropriate case for an MPI order in Mr Martin’s case?

[81] Mr Niven accepted that Mr Martin could not be differentiated from Mr McArthur so far as MPI orders were concerned. We have already held the judge was justified in imposing a 50% MPI on Mr McArthur. For the same reasons, she was justified in imposing the like order on Mr Martin.

[82] That aspect of the appeal is also dismissed.

Solicitors:

Crown Law Office, Wellington