[1] The appellant pleaded guilty shortly before trial to the murder of a taxi driver, Abdulrahman Ikhtiari, and to assault with intent to rob Mr Ikhtiari. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 15 and a half years. The appellant’s co-offender, Randell Brown, pleaded guilty to manslaughter. He was sentenced to five and a half years imprisonment with an MPI of three years and eight months.[1]
[2] The appellant’s appeal focuses on the length of the MPI. In particular, it is submitted he should have been given a greater discount for his guilty plea, remorse, youth (he was 17 at the time of sentencing) and personal circumstances. The appellant also says the extent of disparity between his sentence and that of Mr Brown cannot be justified.

Background

[3] The incidents giving rise to the offending took place in the early hours of 6 December 2008. The appellant and Mr Brown had been drinking heavily for several hours. At about 12:45 am they caught a taxi to go back to the appellant’s address to get some money. Mr Ikhtiari was driving the taxi.
[4] After calling at the appellant’s house, Mr Ikhtiari drove the two men back to town. Both the appellant and Mr Brown sat in the back of the cab.
[5] The events which followed are described by French J in the sentencing remarks in this way:

[5] At about 1 a.m., as Mr Ikhtiari was driving along Worcester Street [the appellant] told him to stop. [The appellant] got out, opened the driver’s door and produced a knife, demanding money. A struggle ensued, with ... Mr Brown, still in the back seat, reaching forward and grabbing Mr Ikhtiari around the neck or head area, pinning him to the driver’s seat.

[6] Mr Brown [says he was] unaware [then that the appellant] had produced a knife. However, [Mr Brown accepted] that at some point [he] did see the knife and yet continued to restrain Mr Ikhtiari.

[7] During the struggle [the appellant] held the knife to Mr Ikhtiari’s throat. He inflicted two superficial wounds to his throat, as well as three stab wounds to his lower left leg and a cutting wound to the middle and ring fingers of his right hand. Mr Ikhtiari also received cuts to his eye and nose where his glasses had been knocked from his head.

[8] The struggle continued until at one point [the appellant] stabbed Mr Ikhtiari in the left side of his chest. The injury was fatal.

...

[10] Mr Ikhtiari got out of his car, but then in the middle of the road collapsed and died.

[11] A post-mortem concluded that he had died from one fatal stab wound to his chest which penetrated his heart.

[12] He sustained 12 separate injuries to various parts of his body, the pathologist describing the defensive wounds as “likely indicating an ongoing and determined assault”.

[13] [The appellant] ran to a family member’s address, where [he] disposed of the knife.

[14] The two [men] later met up again and walked back into the central city, where [they] continued to visit licensed premises.

[15] At around 3 a.m. the two [men] got into another taxi. When [they] reached [their] destination and the driver asked for his fare [the appellant] hit that driver in the face with [his] hand, and the two [men] then ran away without paying.

[6] Initially, both the appellant and Mr Brown were charged with murder. The matter was set down for trial in late February 2010. About a fortnight earlier, the appellant accepted he was the principal offender and would plead guilty to murder. Prior to that, the appellant had claimed that Mr Brown inflicted the fatal wound. French J said that the appellant’s admission opened the door to Mr Brown’s proposal to plead guilty to manslaughter.

The sentencing remarks

[7] It was common ground that life imprisonment was the correct sentence for the appellant. He was accordingly sentenced to life imprisonment. There was also no dispute that the MPI in this case would be 17 years unless that would be manifestly unjust. That was because the murder was committed in the course of another serious offence (assault with intent to rob).[2] It was also common ground that the MPI should not be more than 17 years. On this basis, the key issues before French J were, first, was 17 years manifestly unjust? And second, if so, what was the appropriate lesser period?
[8] On the first issue, French J concluded that 17 years would be manifestly unjust on the basis of a combination of the guilty plea and the appellant’s age. As to the appropriate lesser period, French J gave the appellant the benefit of a discount of about 20 per cent of the discretionary component of the MPI. That led to an MPI of 15 and a half years.
[9] The Judge imposed a concurrent term of imprisonment of six years on the assault with intent to rob.
[10] In terms of Mr Brown, French J accepted his was the lesser role. Nonetheless, the Judge said Mr Brown had played an active role in restraining Mr Ikhtiari and preventing him from defending himself. Mr Brown had seen the knife but continued to restrain Mr Ikhtiari knowing he was being attacked by someone wielding a knife. Emphasising the fact of the knife, the Judge took a starting point of nine years imprisonment.
[11] From that point, the Judge gave a discount of one-third for the guilty plea, and a further discount for Mr Brown’s age (20 years old at sentencing) leading to an end sentence of five and a half years imprisonment. On the assault with intent to rob charge, a concurrent sentence of four years imprisonment was imposed.
[12] The Judge considered the seriousness of Mr Brown’s offending and the need to fulfil the sentencing purposes of accountability, denunciation and deterrence warranted an MPI. The MPI imposed reflected two-thirds of the full term resulting in an MPI of three years and eight months.

The issues on appeal

[13] The appeal raises the following issues:

(a) Was the discount manifestly inadequate?

(b) Was the disparity between the two sentences too great?

The discount

[14] Mr King makes three principal submissions in relation to the discount. First, he submits that any discount should apply against the full term of the MPI and not just against the period in excess of ten years.
[15] Secondly, Mr King submits that given the appellant’s age and emotional immaturity, a greater discount should have been given for his late guilty plea. Essentially, Mr King says that the appellant’s youth and emotional immaturity as well as his gross intoxication at the time of the offending meant it took him a longer period of time to understand or accept what he had done.
[16] Finally, Mr King submits that there should have been a further modest discount on account of the appellant’s unfortunate upbringing and his genuine remorse. Mr King notes that the pre-sentence report and the appellant’s letter to the family of the victim set out his troubled upbringing, both his parents and his grandmother having been in prison. He was raised in an environment of drugs, gangs, violence and disruption. The letter also shows the appellant’s remorse at his offending.
[17] Mr King’s submission is that if all of these matters are properly taken into account an MPI of around 13 years was the appropriate outcome and would provide some light at the end of the tunnel for a young man.
[18] We take first Mr King’s argument that the overall discount should apply against the full term. The approach to be taken to guilty pleas in murder cases raises “special difficulties”.[3] This Court in Hessell made the point that the guidelines for guilty pleas set out in that case cannot apply in an unmodified form to murder cases as that would undermine the legislative intent behind s 104 of the Sentencing Act 2002.[4] The Court also said that the discount for guilty pleas in cases like the present was a matter for the discretion of the sentencing Judge.[5] In that context, the Court noted a suggestion from counsel assisting the Court that one approach was to treat the first ten years of the MPI as a statutory minimum which remained unaffected by other factors, including the guilty plea. The Court said that this approach was certainly “worth consideration”.[6]
[19] Against this background, the Judge cannot be criticised as a matter of principle for the approach taken. That said, the real question in our view is whether, however it was reached, the ultimate sentence was manifestly excessive. In making that assessment, we need to deal first with Mr King’s two other submissions.
[20] As to the impact of the appellant’s age and maturity, the Judge recognised the appellant’s explanation in the pre-sentence report and in his letter to the family that he was very drunk, did not remember all of what had happened and could not understand why he had committed the offending. French J attached some weight to the insight indicated by the appellant’s ability to write the letter. But the Judge was also entitled to recognise the reality that the plea was very late and the impact of that delay. For the victim’s family, and for Mr Brown, matters were not resolved until very late in the piece, some 14 months after the offending and about two weeks before the trial.
[21] In terms of remorse, as French J found, there was nothing particularly exceptional about the appellant’s response. Indeed, as we have noted, the appellant maintained up until his guilty plea that Mr Brown was the principal offender. Nor do we consider the appellant’s personal circumstances required a further discount. His story, in this respect, is unfortunately not an uncommon one.
[22] In any event, the matter does have to be considered against the fact that the Judge did rely on the appellant’s guilty plea and youth as a basis for concluding it was manifestly unjust to impose a 17-year MPI. There were no factors associated with the offending which warranted any departure from the 17-year sentence. Indeed, the offending was, as Mr King accepted, a “cowardly and senseless attack”.[7] The appellant, armed with a knife, had the victim stop before the car reached the central city in an area where there would not likely be many passersby and was doing so for the purpose of committing aggravated robbery. It is offending which had a tragic outcome. French J put it in this way:

[21] The man killed ... was a man who had sought refuge in New Zealand in the hope that he and his family could live a safer life. ...

[22] ... As is only to be expected, Mr Ikhtiari’s death has deeply affected his widow and their five children in every possible way.

[23] The only grounds on which it was seen to be manifestly unjust to impose a 17-year MPI were the mitigating features. In that situation, we consider Ms Edwards for the Crown is correct to say that the departure from the statutory minimum is in itself significant.[8] The 18-month reduction given is sufficient to reflect what are not, unfortunately, extraordinary personal mitigating features.

Parity of sentences

[24] In terms of disparity, it is accepted there was a need for “very considerable’ disparity between the two sentences. However, it is submitted that given Mr Brown’s active involvement in the offending the final disparity is simply too great and so satisfies the test set out in R v Lawson.[9] Mr King also says that the effect of applying the discount only to the period in excess of ten years distorts the end result.
[25] We accept the submissions for the Crown that there was ample justification for the difference in sentence. Mr Brown’s offence was a lesser one. Further, the Judge accepted submissions made on behalf of Mr Brown which affected the assessment of his culpability. In particular, French J accepted that the appellant, without warning, suddenly attacked Mr Ikhtiari; Mr Brown had no knowledge of the knife and did not see the actual stabbing so did not realise Mr Ikhtiari had been stabbed rather than cut. Mr Brown’s offending therefore lacked any pre-meditation. Given these factors, this is not a case where the differences in the sentences are such as “not to be consonant with the appearance of justice”.[10]

Disposition

[26] For these reasons, we consider there is no basis to interfere with the sentence imposed. The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Boyes-Warren HC Christchurch CRI-2008-009-19959, 10 March 2010.
[2] Section 104(1)(d) of the Sentencing Act 2002.
[3] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[4] At [70].
[5] At [67] and [73].
[6] At [71].
[7] Sentencing remarks at [21].
[8] R v Williams [2005] 2 NZLR 506 (CA) at [71] – [73].
[9] R v Lawson [1982] 2 NZLR 219 (CA).
[10] Ibid, at 223.

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