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Court of Appeal of New Zealand |
Last Updated: 5 May 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA684/2009 [2010] NZCA 150BETWEEN JONO PAUL WILSON
Appellant
Hearing: 13 April 2010
Court: Hammond, Chisholm and Priestley JJ
Counsel: M J Levett for Appellant
K Raftery for Respondent
Judgment: 27 April 2010 at 4.15 pm
JUDGMENT OF THE COURT
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The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hammond J)
[1] This is an appeal against sentence. The specific concern is a narrow one, namely whether a ten percent figure for a reduction in sentence was sufficient where a plea was entered after the commencement of a trial.
[2] The appellant was convicted of a total of nine charges: four of wounding with intent to cause grievous bodily harm; four of aggravated robbery; and one of assault. He was sentenced to twelve years’ imprisonment, and a minimum period of imprisonment of six years was imposed.
[3] The charges related to a series of events in the early hours of 15 January 2008. A group of four, not necessarily close friends, were driving around the North Shore region of Auckland in a car. They discussed committing some “street robberies” to obtain cash.
[4] The first victim was riding a bicycle when the car pulled up alongside him. The appellant jumped out of the car and pursued this victim, throwing a punch at the cyclist, and landing a glancing blow to his neck. This victim escaped on foot through private properties. That led to the charge of assault.
[5] The next victims were a couple in a parked car at Milford Beach. The occupants were approached and were asked for a beer. Both were struck in the face and beaten around the head with metal bars. Both suffered serious injuries with lasting consequences. The appellant maintained that he did not actually strike any of the victims during this episode, although he subsequently pleaded guilty to the four resultant charges of wounding with intent to cause grievous bodily harm and aggravated robbery (two of each charge being one for each victim). Pleas of guilty in respect of the two aggravated robbery charges (counts four and five) were entered at the depositions hearings.
[6] The next set of victims – a man and a woman - were attacked while walking along a road. Both were again hit around the head with metal bars and the woman’s bag was stolen. Both suffered serious injuries with lasting impacts. The appellant pleaded guilty to the further four charges, mirroring those from the previous attack, arising from this attack.
[7] It is important to note, given the argument addressed to us, the sequence of the pleas. The appellant pleaded guilty to counts four and five and to the charge of assault at depositions. On the first day of the trial he pleaded guilty to count two, and on the third day of the trial, having heard the evidence of the first complainant, the appellant then pleaded guilty to the remaining counts, being counts 6, 7, 8 and 9.
[8] The trial of the appellant and his companions had been estimated to take some two weeks. On the third day his co-accused changed their pleas to guilty, perhaps as a result of the pleas entered by the appellant. It was emphasised before us that the appellant’s pleas provided an incentive to co-accused to plead guilty which in turn shortened the trial.
[9] The Judge was faced with a lengthy catalogue of offending of the most serious kind by several persons. The nature of the offending by the various participants who were before the Court was clearly right at the top of the three bands set out by this Court in R v Taueki.[1] It was responsibly accepted by Mr Levett that the starting point of fourteen years’ imprisonment adopted by the trial Judge, Judge Field, was not in this case excessive.
[10] We will deal with the Judge’s reasoning in relation to this appellant shortly. But we interpolate here that of the other offenders in these incidents, only one received a substantially lesser sentence. That offender’s role was primarily as driver and in his case the Judge assumed a starting point of twelve years. Ten percent was deducted for his guilty plea, and a further deduction was made for his youth and previous good record. The end sentence imposed on the driver was nine and a half years, with no minimum period of imprisonment imposed above the statutory minimum non-parole period.
[11] In the case of Mr Taiapa – one of the prime movers in the offending – the Judge adopted a starting point of fourteen years’ imprisonment; and concluded that any discount for his guilty pleas and remorse was balanced out by a significant record of violence and offending while subject to release conditions from prison. In his case the Judge also imposed a minimum period of imprisonment of eight years.
[12] In relation to another co-offender – Mr Kirton – the Judge also adopted a starting point of fourteen years’ imprisonment; he allowed a discount of three months for time spent on electronically-monitored bail and a ten percent discount for his guilty pleas and remorse. Thus, in Mr Kirton’s case the final sentence was eleven years six months’ imprisonment. The Judge imposed a minimum period of imprisonment in his case of six years.
[13] Turning to the situation of the present appellant, as we have noted the Judge again adopted a starting point of fourteen years’ imprisonment. Although the language in [40] of the sentencing notes could have been a little clearer, it was common ground before us that the Judge reached a sentence of imprisonment of twelve years, “[taking] into account a ten percent deduction for your plea and such other matters of mitigation as I can find in the report and in your counsel’s submissions, including the letters of apology”. This represented a total discount for mitigating factors of 14.3%. The Judge then imposed a minimum period of imprisonment of six years’ imprisonment.
[14] Mr Levett’s only complaint was that he said the ten percent figure should have been greater because of the downstream effect he claimed that it had on the projected course of trial. We should note here that this sentencing took place before the recent guideline judgment on discounts for guilty pleas handed down by this Court in R v Hessell.[2] In any event, as counsel acknowledged, the facts of this case are peculiar and do not fit squarely into the Hessell guidelines (although the Court there noted that even after a trial has commenced and a very late plea is taken, for particular reasons a discount may be appropriate).[3]
[15] The appellant must demonstrate that the Judge was wrong to adopt the course he did. We are not persuaded on the point raised. There is no challenge to the starting point. The course adopted by the Judge appears to have differentiated fairly where differentiation was required, and the Judge adopted a uniform course in similar circumstances. It is difficult to know what might have occurred if Mr Wilson had not pleaded to the counts he did plead to, on the third day. It is a commonplace in judicial experience that in cases involving multiple accused some change of position is not uncommon as the trial progresses. But in any event the change of position on the counts raised was very late. One victim who was grievously injured,
Mr Khotchenko, had to give evidence.
[16] We again repeat that this is effectively an appeal against the exercise of a discretion by the Judge who had all the benefits of a trial Judge in having had to deal with the matter in Court in a complex trial, and the advantage of being able to assess the impact of what had taken place, and the changing circumstances in his Court. There is no basis for this Court to intervene and say that his estimate of the appropriate discount, in the particular circumstances of this case, was incorrect.
[17] Finally, even if this Court were to intervene it would likely amount to no more than tinkering, which is not an appropriate course for an appellate court to take in a case such as this. A massive discount would have to be imposed to have any impact on the minimum period of imprisonment. Mr Levett, somewhat bravely, suggested a further ten percent. But in the way the sentences were framed, that would have no real impact on the outcome as far as Mr Wilson is concerned.
[18] The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Taueki
[2005] 3 NZLR
372.
[2] R v
Hessell [2009] NZCA
450.
[3] At
[18].
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