The Queen v McCord [2007] NZCA 312 (24 July 2007)

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The Queen v McCord [2007] NZCA 312 (24 July 2007)

Last Updated: 4 June 2008

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/06 [2007] NZCA 312

THE QUEEN

EUGENE HAPI MCCORD

Hearing: 28 March 2007
Court: O'Regan, Ellen France and Wilson JJ
Counsel: M B Dodds for Appellant

S B Edwards for Crown

Judgment: 24 July 2007 at 3pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is dismissed.

REASONS OF THE COURT

(Given by Wilson J)

R V EUGENE HAPI MCCORD CA CA412/06 [24 July 2007]

Introduction

[1] On 7 September 2006 the appellant was sentenced by Judge D J McDonald in the Kaikohe District Court to three years six months imprisonment for one count of kidnapping, with concurrent terms for single counts of wounding with intent to injure (two years), male assaults female (one year) and sexual intercourse with a person under 16 (one year). Mr McCord appealed against his sentence on the basis that it was manifestly excessive and arose from an incorrect assessment of the facts by the sentencing Judge.

Background

[2] The appellant originally faced seven counts. Two were representative charges of sexual intercourse with a person under 16, relating to his conduct over two separate time periods: 1 April to 19 May 2005 and 20 May to 14 August 2005. During this time, he was in a sexual relationship with the (at the time) 15-year-old complainant. The appellant was discharged on the first count after it was shown that he was in prison during the relevant time period.

[3] A further two counts were laid in respect of events on 11 August 2005. On that day, the appellant punched the complainant in the head as they travelled by car between Auckland and Whangarei. He was charged with the alternative counts of male assaults female and injuring with intent to injure. On arraignment on 22 May 2006, the appellant pleaded guilty to the charge of male assaults female.

[4] The final three counts, wounding with intent to injure, kidnapping, and sexual violation by rape, arose out of events on 14 August 2005. On that day, the appellant, the complainant and several others were driving in a van between Paihia and Kawakawa. After some trouble in the van, the driver stopped and told the appellant and others to get out. The van drove off, whereupon the appellant threw the complainant down a metal bank, causing her to hit and wound her head. He proceeded to punch and beat her. The head wound sustained by the complainant led

to the charge of wounding with intent to injure, to which the appellant also pleaded guilty on 22 May 2006.

[5] The appellant then dragged the complainant back up the bank and flagged down a car. The driver took them to a Kawakawa service station, where they managed to get another man to drive them to the home of a relative of the appellant on the outskirts of Kawakawa. When they arrived, the complainant ran into a neighbouring house and hid. There are differing accounts as to how the complainant came to leave the neighbour's house, but when she emerged the appellant dragged her back into his relative's house. His detention of her at this time, for at least as long as it took to get between the two houses, is the basis of the kidnapping charge.

[6] The final charge was of sexual violation by rape. This was founded on what occurred between the appellant and the complainant after he took her into his relative's house and before the police arrived.

[7] The appellant's jury trial began on 22 May 2006. As he had been discharged on one count and had pleaded guilty to a further two, four charges remained for the jury:

(a) a representative charge of sexual intercourse with a person under 16
(for the period 20 May to 14 August 2005);
(b) injuring with intent to injure (on 11 August 2005, laid in the
alternative to the male assaults female charge, to which the appellant
had pleaded guilty);
(c) kidnapping (on 14 August 2005);
(d) sexual violation by rape (on 14 August 2005)

[8] The first Crown witness was the complainant. She began her evidence in chief on 22 May and completed it at 11:30 am on the following day. Cross-examination began at 11:50 am and continued until the 1:00 pm lunch adjournment. When the cross-examination resumed at 2:15 pm, there was a dramatic

change in the complainant's demeanour and the way in which she responded to questions. In essence, she refused to answer any further questions and also refused to explain why. The Judge had ordered that she be screened from the appellant at all times while giving evidence, but she may have seen the appellant as she returned to the witness box after lunch. This was advanced by Ms Cull (a lawyer appointed by the Court to advise the complainant on the legal consequences of failing to co-operate) as a reason for the complainant's change of heart about giving evidence.

[9] Once it became clear that the complainant could not properly be cross-examined, the Judge discharged the jury pursuant to an application under s 347 of the Crimes Act 1961. Efforts to persuade the complainant to give evidence at a later trial were not successful.

[10] On 2 August 2006 the appellant was re-arraigned and pleaded guilty to two further charges: the representative charge of sexual intercourse with a young person, and the kidnapping charge. The charge of injuring with intent to injure, which had been laid in the alternative to the male assaults female charge, was discharged, as was the charge of sexual violation by rape.

Sentencing remarks

[11] The sentencing Judge was therefore required to sentence the appellant on four charges. He treated kidnapping as the lead offence, on the basis that it carried the highest maximum penalty (14 years imprisonment). The Judge noted that there were no applicable tariff cases, but said that he had been assisted by R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (CA) and R v Hayes CA 171/06 20 July 2006. He also referred particularly to R v Taueki [2005] 3 NZLR 372 (CA) at [34] as being applicable to violent offending in domestic situations.

[12] The Judge took a starting point of three and a half years having regard to the totality of the offending. He found there to be nothing in mitigation other than the offender's guilty pleas, which he thought deserved limited credit. He considered a six-month discount to be as much as he was able to give in recognition of the guilty pleas and the difficulties that the appellant had had in his life. The Judge then added

six months on to the sentence in recognition of personal aggravating factors, particularly the offender's list of previous convictions.

Appellant's submissions

[13] Mr Dodds first submitted that the Judge had overstated the facts in his sentencing decision on four particular points, and that these overstatements influenced his sentencing decision to the appellant's detriment. First, the Judge said: "Because of the aggravation in the van, particularly between you and her, the driver of the van stopped and told you to get out which you did." Mr Dodds submitted that the evidence did refer to aggravation in the van but not to particular aggravation between the appellant and the complainant. The next paragraph of the sentencing remarks began: "Well, you got out [of the van] and then you dragged her out". Mr Dodds disputed that the complainant was dragged. The Judge then referred as follows to the number of times the appellant punched the complainant in the subsequent assault: "You followed her down the bank and assaulted her by punching her in the head, you say twice, I find probably more than that." Mr Dodds submitted that the appellant's version of events should be preferred because the complainant was not able to be cross-examined on her evidence on this point.

[14] The final alleged overstatement relates to how long the appellant detained the complainant. The Judge referred to the appellant having taken the complainant "out of [the neighbour's] house and back to your relative's house where you took her down to a bedroom where you detained her until the Police, who having been called, arrived". Mr Dodds submitted that the problem with this statement was that the appellant pleaded guilty to kidnapping the complainant on the basis that he detained her between the neighbour's deck and his relative's house. Any detention after that related to the count of rape, which was discharged pursuant to s 347.

[15] The second strand of Mr Dodds' argument was that the sentence imposed on the appellant was manifestly excessive. He claimed that the Judge adopted too high a starting point and applied too small a discount for the appellant's guilty pleas. Mr Dodds argued that a starting point of two years six months imprisonment would have been appropriate for the facts acknowledged by the appellant. As to the

discount for guilty plea, he pointed out that the discount of six months applied by the sentencing Judge amounted to only one-sixth of the starting point. While accepting that the level of discount is discretionary, Mr Dodds submitted that the Judge unnecessarily diminished the credit he gave for the appellant's guilty pleas for two reasons. First, he made an incorrect assumption about the circumstances surrounding the pleas made at the second arraignment, attributing them to pragmatism rather than any acknowledgement of guilt or remorse. Secondly, he wrongly took into account the unfavourable pre-sentence report to diminish the mitigating effect of the guilty pleas.

[16] In relation to the four alleged overstatements of fact, Ms Edwards first submitted that the Judge was entitled to form the view that he did on those matters. She pointed to evidence that supported the Judge's view, both in the complainant's evidence-in-chief and in her admittedly limited evidence on cross-examination.

[17] Ms Edwards then suggested that the first two issues of factual inconsistency (relating to how the appellant and the complainant came to leave the van on 11 August) were of little significance to the sentencing decision. She acknowledged that the latter two issues (relating to the assault and the detention on 14 August) were more significant, and that cross-examination of the complainant on those issues might have benefited the appellant. However, she submitted that the Judge was entitled in all the circumstances to take the view of the facts that he did. Even if that were not the case, the factual differences claimed by the appellant did not materially affect the overall seriousness of the offending.

[18] As to the overall length of sentence, Ms Edwards submitted that the starting point of three and a half years was appropriate. She pointed to a range of cases to show that it was well within the available range. The 14 percent discount for the guilty plea was within the discretion of the sentencing Judge. Particular factors justifying that level of discount included the staggered timing of the pleas and the fact that they came too late to relieve the complainant from the burden of giving evidence at the first trial.

[19] Finally, Ms Edwards pointed out that the sentencing Judge's addition of six months after discount to take account of further aggravating factors was particularly lenient, given the seriousness of the appellant's criminal history, which included convictions for kidnapping, violence and indecent assault. She submitted that this, in combination with the appellant's poor response to previous sentences and his refusal to address offending issues, could have justified an addition of more than six months. In summary, counsel submitted that the final sentence of three and a half years properly represented the totality of the offending in this case, and the particular combination of aggravating and mitigating factors.

Discussion

Factual inconsistencies

[20] Section 24 of the Sentencing Act 2002 addresses proof of facts in sentencing as follows:

24 Proof of facts

(1) In determining a sentence or other disposition of the case, a court—

(a) may accept as proved any fact that was disclosed by
evidence at the hearing or trial and any facts agreed on by
the prosecutor and the offender; and
(b) must accept as proved all facts, express or implied, that are
essential to a plea of guilty or a finding of guilt.

(2) If a fact that is relevant to the determination of a sentence or other
disposition of the case is asserted by one party and disputed by the
other, —

(a) the court must indicate to the parties the weight that it would
be likely to attach to the disputed fact if it were found to
exist, and its significance to the sentence or other disposition
of the case:
(b) if a party wishes the court to rely on that fact, the parties
may adduce evidence as to its existence unless the court is
satisfied that sufficient evidence was adduced at the hearing
or trial:
(c) the prosecutor must prove beyond a reasonable doubt the
existence of any disputed aggravating fact, and must negate
[beyond a reasonable doubt] any disputed mitigating fact

raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d) the offender must prove on the balance of probabilities the
existence of any disputed mitigating fact that is not related to
the nature of the offence or to the offender's part in the
offence:
(e) either party may cross-examine any witness called by the
other party.

(3) For the purposes of this section, —

aggravating fact means any fact that—

(a) the prosecutor asserts as a fact that justifies a greater penalty
or other outcome than might otherwise be appropriate for the
offence; and
(b) the court accepts is a fact that may, if established, have that
effect on the sentence or other disposition of the case.

mitigating fact means any fact that—

(a) the offender asserts as a fact that justifies a lesser penalty or
other outcome than might otherwise be appropriate for the
offence; and
(b) the court accepts is a fact that may, if established, have that
effect on the sentence or other disposition of the case.

[21] This is not a case of guilty pleas being entered on the basis of a summary of facts.

[22] Section 24(1) provides that a court can sentence on the basis of both agreed facts and facts proved by evidence. The sentencing Judge in this case relied in part on evidence given by the complainant in the first hearing that was unable to be tested by cross-examination. Factual findings of significance based on such evidence are unsafe. Section 24 affirms the right of an accused to have the case against them proved beyond reasonable doubt. Facts that constitute elements of an offence are automatically considered proved once an offender has pleaded guilty to that offence (s 24(1)(b)), but aggravating facts asserted by the prosecution remain to be proved to that same criminal standard (s 24(1)(c)). The right to cross-examine witnesses is fundamental to any such proof (s 24(2)(e)). Untested evidence from a witness should not be relied upon to resolve disputes of fact.

[23] The process outlined in s 24(2) must therefore be followed where disputes of relevant fact remain before sentencing. A sentencing Judge should indicate to the parties the weight that might attach to disputed facts that are relevant to the determination of the sentence, and their significance to that determination. Parties then have an opportunity to adduce further evidence. Aggravating facts (i.e. those that might justify a greater penalty) must be proved by the prosecution beyond reasonable doubt.

[24] The first two factual inconsistencies identified by Mr Dodds (relating to the circumstances in which the complainant and the appellant left the van) are not aggravating facts for the purposes of s 24. They provided context for the charge of wounding with intent to injure but would not on their own have justified a greater penalty being imposed on the appellant. They did not therefore have to be proved by the prosecution beyond reasonable doubt. In any event, it appears to us that there was sufficient material available to the Judge to make the findings which he did on these points.

[25] The second two disputed facts are of more concern, being questions of degree relating to key elements of the offending. It is not disputed that the appellant punched the complainant, and later detained her, but the appellant disputes the number of punches and the duration of detention. The number of punches in an episode of violent offending and the duration of detention in a kidnapping are relevant to the determination of sentences for that offending. Indeed, the sentencing Judge expressly identified, as aggravating factors, that he was required to take into account, "[t]he violence on two separate occasions [and] the detaining of her in the way that I have described".

[26] This Court considered s 24 in R v Gatenby CA511/04 28 April 2005. The disputed fact in that case was the purpose for which the offender had cultivated cannabis. He maintained that the cultivation was for personal use. The police did not accept that, and provided opinion evidence that the purpose must have been commercial. The sentencing Judge said that it was "quite obvious from a common-sense point of view" that the offending was in category 2 of Terewi (R v Terewi [1999] 3 NZLR 62 (CA)) rather than category 1 (i.e. had a commercial rather than a

personal purpose). This Court described that finding as one that was "adverse to the appellant when the process prescribed by s 24 had not been followed" (at [14]), noting that:

[15]... The appellant's personal use assertion, although dubious, cannot be rejected out of hand as wholly implausible or manifestly false, Proof beyond reasonable doubt was necessary. The finding cannot stand.

[27] Similarly here, it cannot be rejected out of hand that the appellant only punched the complainant twice when they were down the bank. Nor can it be ignored that the appellant's plea of guilty to the kidnapping charge may have been on the understanding that it encompassed a shorter-term detention than that described by the sentencing Judge. Without properly contested evidence or a disputed facts hearing, those findings cannot stand.

[28] When the appellate Court in Gatenby came to the same conclusion, it considered that it then had two options: to conduct a disputed facts hearing itself or to determine the appeals as matters stood. In the end, the delay inevitable in the first option decided the matter. The Court concluded:

[19] In these circumstances we conclude that the only practical course is to determine the appeal as matters stand. The dispute concerned an aggravating fact. There was no hearing to resolve the conflict between Mr Gatenby's denial, and the officer's opinion that a commercial purpose was manifest. The onus of proof was not met.

[20] [The Court re-sentenced under category 1 of Terewi and reduced the appellant's effective sentence from two years three months to 15 months imprisonment.]

[21] This outcome, we acknowledge, is less than satisfactory. The actual criminality involved in the offence was never established in terms of s 24. The appellant may well be fortunate. The case serves to indicate the necessity to comply with the requirements of the statutory process.

[29] This case is in a different category from Gatenby, in which the disputed fact was a primary determinant of the sentence range open to the sentencing Judge. Here, the two disputed aggravating facts were not so significant in the context of the overall criminality of Mr McCord's offending. Mr Dodds acknowledged that they would not, without more, justify a different sentence. We do not consider that there

would be any practical benefit in holding a disputed facts hearing at this stage. We consider that the sentence imposed on the appellant does properly reflect the criminality of his offending, even on his version of the disputed facts.

Totality

[30] The sentencing Judge said that he had been assisted by two decisions of this Court, Hayes and Wharton. Mr Dodds placed some reliance on the same cases, arguing that the offending in this case was less serious, so that a lower starting point than three and a half years should have been adopted by the sentencing Judge.

[31] Hayes involved an 18-year-old offender and a 17-year-old victim. The offender had pleaded guilty before trial to male assaults female, and was found guilty of kidnapping after a jury trial. The offending arose out of a dispute over the ending of the relationship. An assault on the victim involving strangling, head-butting and kicking was followed by the offender forcing the victim into his car, where he punched her in the head. He told the victim that he had a gun in the boot of the car and dragged her back to the car by her hair when she tried to escape. The victim eventually escaped, after a detention lasting around three hours.

[32] The sentencing Judge in Hayes took a starting point of three years for the kidnapping and male assaults female charges, which this Court found on appeal to have been well within the range available to him. He applied a 20 percent discount for all mitigating factors, arriving at an end sentence for the lead offence of kidnapping of two and a half years imprisonment. The offender was sentenced to 18 months (concurrent) on the male assaults female charge and received a cumulative six-month sentence for unrelated offending.

[33] Wharton also involved an offender who was found guilty at trial of kidnapping but who had earlier pleaded guilty to another charge (in this case, assault with intent to injure). The victim in that case was Mr Wharton's former partner. The parties had a long history of a violent relationship and there was a protection order in place. Mr Wharton lured the victim to his home on the false pretext that there was something wrong with her child. He then subjected her to a violent assault, and detained her overnight. This offending occurred while Mr Wharton was on bail for serious charges involving the same victim, and it was suggested that his detention of the victim was designed to influence her with regard to these prior allegations.

[34] The sentencing Judge sentenced Mr Wharton to four years six months imprisonment on the lead charge of kidnapping, but that was reduced on appeal to this Court, which found that a sentence of three years six months imprisonment appropriately reflected the totality of Mr Wharton's offending.

[35] Mr Dodds submitted that Hayes and Wharton both involved more serious offending than was involved here. He pointed out that in this case there was no protection order in place, there had been no previous offending involving the same victim, there was no serious injury to the complainant, and the kidnapping involved only a very short detention. We agree that those particular aggravating factors were not present here, but there were other aggravating factors that the Judge in this case had to consider. For one thing, the victim was at the age of 15 very young and vulnerable in relation to the appellant, who was 24 at that time. Although the victim in Hayes was 17, the offender was only one year older. A second factor is that Mr McCord was facing a more serious raft of charges than the offenders in Hayes and Wharton, including wounding with intent to injure and sexual intercourse with a person under 16.

[36] We are not persuaded that a comparison with Wharton and Hayes warrants any lower starting point. Looked at on a totality basis, the offending here was not materially less serious than in those cases. The starting point of three and a half years adopted by the sentencing Judge was not manifestly excessive for this type of offending (see also R v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627 (CA) Solicitor-General v Green CA 179/99 29 July 1999 and R v Reihana-Ruka CA449/02 5 June 2003 (CA)).

Guilty plea discount

[37] Although the sentencing Judge stated at paragraph [1] of his sentencing remarks that the appellant had pleaded guilty to one charge on the morning of the trial, he corrected the position at paragraph [32] by recording that there had been a plea of guilty to two charges at that time.

[38] The Judge deducted six months for the appellant's guilty plea, before adding six months back on to reflect the aggravating feature of the offender's extensive criminal record. As previously noted, the six-month deduction represents a 14 percent discount from the starting point. Mr Dodds argues that this level of discount was too low in the circumstances, and that the sentencing Judge was improperly influenced by the pre-sentence report as to the extent of the appellant's remorse. We consider however that a discount of 14 percent for such late guilty pleas as were made in this case is not inappropriate.

[39] The fact that an offender pleads guilty is a statutory mitigating factor in sentencing (Sentencing Act, s 9(2)(b)). It is generally accepted that the earlier the plea, the more generous the discount. This Court noted in R v Mako [2000] 2 NZLR 170 (CA) at [14]:

The first [aspect of the submissions] is the guilty plea and the credit appropriate in the circumstances. This Court has repeatedly stated that pleading guilty should attract a meaningful discount from an otherwise appropriate sentence. The Court has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered. Generally, however, it is accepted that the earlier the plea the more generous the discount. This is not the appropriate occasion to reiterate the reasoning underlying such discounts but it can be said that an early plea is likely to reflect acknowledgment of wrongdoing and contrition. The consequent saving in resources and early release of victims from the anxiety of the long and upsetting criminal processes are further factors.

[40] The general range of discount for early pleas, combined with remorse and other lesser factors, is 20 to 33 percent (R v Tryselaar [2003] NZCA 70; (2003) 20 CRNZ 57 (CA) at [17]). A discount is still appropriate even when a plea is very late. In R v Te Pou [1985] 2 NZLR 508 (CA), two offenders pleaded guilty to rape only after the respective complainants had given evidence. Both received a one-year deduction for their guilty plea, from starting points of eight and nine years. In percentage terms, these were discounts of 11 to 12 percent.

[41] In R v Coleman CA80/05 31 August 2005, the offender had appealed to this Court against a sentence of 25 months imprisonment imposed by the High Court. He had pleaded guilty to cultivation of cannabis. After a jury trial on the related charges, he was found guilty of possession of cannabis but not guilty of a charge of supply. He was given limited credit for his guilty plea, as it related to a charge where a conviction was inevitable and was entered only two weeks before trial (almost 18 months after his arrest and almost 12 months after the preliminary hearing). The discount of 17 percent applied by the sentencing Judge for the guilty plea was said by this Court to be "generous", and the appeal was unsuccessful.

[42] More recently, this Court said in R v Fonotia CA 413/06 10 May 2007 at [50]:

We now finally turn to consider the reduction for the guilty pleas. This court has yet to deliver a guideline judgment on reductions for guilty pleas, although reference has previously been made to the excellent work which has been done on this topic by United Kingdom's Sentencing Guidelines Council and the New South Wales Court of Appeal in R v Thomson (2000) 49 NSWLR 383: see R v Hannagan CA396/04 18 July 2005 at [25], R v Growden CA67/05 25 October 2005 at [50], and R v Marsters (2005) 22 NZTC 19,649 at [27]. This court has regularly approved discounts of between 10% and 33%. The extent of the discount primarily reflects when the guilty pleas were entered: the earlier the plea is entered, the greater the discount. That accords with the position under the United Kingdom and New South Wales guidelines.

[43] A 14 percent discount for such late pleas as Mr McCord entered is consistent with these authorities.

[44] Mr Dodds also claimed that the sentencing Judge's determination of the discount was wrongly influenced by the pre-sentence report, which said that the appellant did not appreciate the seriousness of his offending. The pre-sentence report was written on the mistaken view that the appellant was also to be sentenced for rape. In the end, the charge of rape was dropped. The appellant cannot be said to have failed to appreciate the seriousness of his offending only because he denied a serious offence for which he was not convicted. We agree that the report was tainted in this regard. However, although the sentencing Judge took the pre-sentence report into account, he expressly recognised that the report writer had a mistaken view of

the convictions for which the appellant was to be sentenced. In our opinion, this did not lead to an unjust outcome for the appellant.

Result

[45] While it was unfortunate that the sentencing of Mr McCord proceeded with disputed facts unresolved, we consider that this resulted in no injustice to him. The starting point of three and a half years adopted by the sentencing Judge was not out of line with the overall seriousness of the appellant's offending. The six-month discount for his guilty pleas was also appropriate, given their timing, and the six-month addition for personal aggravating factors was, in our view, lenient.

[46] The final sentence of three and a half years is not manifestly excessive. Leave to appeal is granted, but the appeal is dismissed.

Solicitors:
Crown Law, Wellington