IN THE COURT OF APPEAL OF NEW ZEALAND
CA860/2013
[2014] NZCA 356
BETWEEN
KRYSTEL THERESE POKAI
Appellant
AND
THE QUEEN
Respondent
CA7/2014
AND BETWEEN
CRYSTAL LOUISE BLACK
Appellant
AND
THE QUEEN
Respondent
Hearing:
21 July 2014
Court:
Stevens, Lang and Clifford JJ
Counsel:
T Epati for Ms Pokai
A M Simperingham and M Prinsloo for Ms Black
M D Downs for Respondent
Judgment:
7 August 2014 at 11.30 am
JUDGMENT OF THE COURT
A
The appeals against sentence are allowed in part.
B
The appeals against the sentences imposed in respect of the
manslaughter charges are dismissed. The sentences of six years and four
months’ imprisonment on those charges are confirmed.
C
The appeals against the sentences imposed in respect of the charges of
attempting to pervert the course of justice are allowed. The cumulative
sentences of two years, four months’ imprisonment on the charges of
POKAI V R CA860/2013 AND BLACK V R CA7/2014 [2014] NZCA 356 [7 August 2014]
attempting to pervert the course of justice are quashed and are replaced
with cumulative sentences of one year eight months’ imprisonment.
D
For clarity each of the appellants’ sentences are now a total of eight
years’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Table of Contents
Background facts
The structure of the sentence
Grounds of appeal
Starting point
The application of Taueki principles in the present context
Premeditation
Self-defence
Callousness
The appropriate starting point
Totality principles
Discount for guilty pleas
Discount for remorse
Result
[1]
Para No
[3]
[12]
[17]
[21]
[21]
[28]
[37]
[44]
[48]
[56]
[68]
[73]
[76]
Ms Black and Ms Pokai pleaded guilty in the High Court at Gisborne to
charges of manslaughter, theft, conversion of a motor vehicle, attempting to use a
document to obtain money and attempting to pervert the course of justice. On
16 December 2013 Gilbert J sentenced them both to six years, four months’
imprisonment on the manslaughter charge, and imposed a cumulative sentence of
two years, four months’ imprisonment on the charge of attempting to pervert the
course of justice.1
The Judge imposed concurrent sentences on the remaining
charges.2
1
2
R v Black and Pokai [2013] NZHC 3434 at [28] [sentencing notes].
At [29].
[2]
Ms Black and Ms Pokai now appeal to this Court against the sentences
imposed on both the manslaughter charges and the charges of attempting to pervert
the course of justice. They say that the end sentences the Judge imposed were
manifestly excessive.
Background facts
[3]
Both appellants pleaded guilty on the basis of an agreed summary of facts.
This recorded that on the evening of 28 December 2012 the appellants, who lived
together in a de facto relationship, attended a concert with friends. Whilst at the
concert they had an argument. This resulted in Ms Pokai leaving the concert early.
Outside the concert she accepted a ride from the victim, Mr Singh, who was driving
past and offered to drive her home. During the car journey, Ms Pokai exchanged
cellphone numbers with Mr Singh. Ms Pokai had never met Mr Singh before she
accepted the lift in his vehicle.
[4]
During the following day, Mr Singh and Ms Pokai exchanged a large number
of text messages. These resulted in Ms Pokai agreeing to meet Mr Singh at his home
at 3 pm. She duly went to Mr Singh’s address, where Mr Singh indicated that he
wanted to have sex with her. She refused that request and returned home.
[5]
Ms Pokai then ignored several text messages that she received from
Mr Singh. At 5.45 pm, however, she sent a text message indicating that she had
changed her mind, and that she now wanted to have sex with Mr Singh. As a result,
Mr Singh went to Ms Pokai’s home later that evening. Shortly after midnight he,
Ms Black and Ms Pokai travelled to Kaiti Beach in Mr Singh’s vehicle. Whilst at the
beach, Ms Black and Ms Pokai assaulted Mr Singh. At some stage thereafter they
dragged his body up the beach and left it hidden in a clump of bushes. Before
leaving, they removed Mr Singh’s wallet. They then drove away from the scene in
Mr Singh’s vehicle.
[6]
After leaving the beach the appellants drove to an ATM machine in a nearby
shopping mall where they attempted unsuccessfully to obtain money from
Mr Singh’s bank account using his EFTPOS card. They then drove to a relative’s
address where they obtained assistance from the occupant to clean fingerprints from
the car using disinfectant and window cleaner. They also removed property from the
car, including a bloodstained cardigan.
This item was later burnt.
They then
abandoned the vehicle on an empty section.
[7]
Mr Singh died as a result of the assaults.
The summary records that
Ms Black subsequently told her former partner that they had left Mr Singh on the
beach after they had beaten him up, and that when they returned later they found that
he had died. The obvious inference to be drawn from this is that Mr Singh was alive
when the appellants initially left him on the beach. It is not possible to discern from
the summary, however, the point at which the appellants dragged Mr Singh’s body
up the beach and left it in the bushes.
[8]
Mr Singh’s body was not discovered until 24 January 2013. By that stage it
was so badly decomposed that the pathologist who conducted a post-mortem
examination was unable to identify a specific cause of death.
[9]
When the police initially spoke to both appellants on 12 February 2013, they
denied having had any involvement with Mr Singh and his vehicle. When they were
subsequently interviewed on 25 February, however, they both accepted they had
been with Mr Singh on the night that he died.
[10]
The charge of attempting to pervert the course of justice was laid after both
Ms Pokai and Ms Black told the police during their interviews on 25 February 2013
that one of their associates had been involved in the assaults on Mr Singh that led to
his death.
During further interviews held on 13 March 2013 both appellants
acknowledged that this information was entirely false.
[11]
The appellants were initially charged with Mr Singh’s murder. In a judgment
delivered on 31 October 2013, Heath J held that the evidence was insufficient to
justify that charge.3 Heath J also indicated, however, that the evidence was sufficient
to justify a charge of manslaughter.4 Both appellants were subsequently discharged
3
4
R v Pokai and Black [2013] NZHC 2873 at [29]–[30].
At [32].
on the murder charge, and immediately entered guilty pleas to a new charge of
manslaughter on 22 November 2013.5
The structure of the sentence
[12]
Gilbert J correctly noted there is no guideline judgment from this Court for
the crime of manslaughter, because it can arise in such a wide range of
circumstances.6 He then drew guidance from the principles contained in this Court’s
judgment in R v Taueki,7 acknowledging that the range of sentences suggested in that
case would need to be adjusted to reflect the fact that a death had occurred.8
[13]
The Judge considered the offending had several aggravating factors. These
included the degree of premeditation, the use of extreme violence, the infliction of
serious injuries resulting in death and the fact that the appellants were responsible for
a concerted attack on the victim.9 The Judge also regarded Mr Singh as being
vulnerable because he weighed just 52 kilograms. In addition, the Judge considered
the offending demonstrated a degree of callousness, given the manner in which the
appellants left Mr Singh on the beach in an injured state and then subsequently
attempted to withdraw funds from his bank account.10
[14]
These factors prompted the Judge to conclude that the offending fell at the
higher end of band 2 identified in Taueki, for which a starting point of between five
and 10 years’ imprisonment will be appropriate. He also observed that an uplift to
reflect the fact that Mr Singh had died would be also be required. This led the Judge
to select a starting point of eight years’ imprisonment on the manslaughter charge.11
[15]
The Judge considered that a cumulative starting point of three years’
imprisonment was justified in relation to the charge of attempting to pervert the
5
6
7
8
9
10
11
R v Black and Pokai HC Gisborne CRI-2013-016-597, 22 November 2013.
R v Leuta [2002] 1 NZLR 215 (CA) at [57].
R v Taueki [2005] 3 NZLR 372 (CA).
Sentencing notes, above n 1, at [13].
At [14]–[18].
At [19].
At [21].
course of justice.12 He considered that this was a serious case of its kind, because it
involved a concerted effort to implicate an innocent third party.
[16]
Turning to mitigating factors, the Judge declined to accept as genuine the
appellants’ claims of remorse.13 He allowed a discount of 20 per cent to reflect their
guilty pleas, thereby producing an end sentence of six years, four months’
imprisonment on the manslaughter charge.14 He imposed a cumulative sentence of
two years. four months’ imprisonment on the charge of attempting to pervert the
course of justice. This produced an effective end sentence of eight years, eight
months’ imprisonment.
Grounds of appeal
[17]
Counsel for both appellants contend that the end sentence was manifestly
excessive for several reasons.
[18]
First, they submit that the Judge selected a starting point that was too high.
They say this occurred because he applied Taueki principles in circumstances where
they were not appropriate. Counsel for Ms Black also contends that the Judge erred
in concluding that the appellants used extreme violence when they assaulted
Mr Singh. He also submits that the Judge wrongly drew other inferences adverse to
Ms Black from the summary of facts. Counsel for Ms Pokai contends that there was
a material error in the summary of facts that impacted adversely on her client.
[19]
Secondly, both counsel contend that the Judge ought to have applied a
discount of 25 per cent rather than 20 per cent to reflect guilty pleas. Counsel for
Ms Black also contends that the Judge was wrong to conclude that Ms Black’s
expression of remorse was not genuine.
[20]
Thirdly, both counsel submit that the Judge failed to have regard to totality
principles when he imposed cumulative sentences in respect of the charges of
attempting to pervert the course of justice.
12
13
14
At [22].
At [25].
At [28].
Starting point
The application of Taueki principles in the present context
[21]
At sentencing, counsel who then appeared for Ms Black endeavoured
unsuccessfully to persuade the Judge that it would be inappropriate to apply Taueki
principles in the context of the present case. Both counsel renew that submission on
appeal. They point out that Taueki provides sentencing guidelines in cases where the
Crown has established, or the offender has admitted, the infliction of injury with
intent to cause grievous bodily harm. The crime of manslaughter, however, may be
committed in circumstances where the offender does not have that intention. The
intentional commission of an unlawful act that has caused death is all that is required
to prove the charge.
[22]
Counsel submit that the application of Taueki principles in the present case
was inappropriate because, although both appellants acknowledged assaulting
Mr Singh in a manner that caused his death, neither admitted doing so with intent to
cause him grievous bodily harm. The summary of facts provided no assistance in
relation to the issue of intention, because it recorded the assaults leading to death in
the following terms:
While at Kaiti beach the accused have together assaulted Mr Singh causing
him injuries which then led to his death. The accused have then dragged his
body further up the beach to hide it under some bushes.
The accused have then taken Mr Singh’s vehicle and driven away from the
beach.
[23]
Given that the pathologist had been unable to determine the cause of
Mr Singh’s death, counsel for the appellants submit that it was impossible for the
Crown to prove the type or level of force that the appellants must have used when
they inflicted the fatal injury or injuries. It was similarly impossible to determine
what their intention may have been at that time. The most that can be said is that
they intentionally applied sufficient force to inflict the injuries that caused
Mr Singh’s death.
[24]
We accept this submission.
The summary of facts did not provide the
necessary basis for the Judge to conclude that the appellants assaulted Mr Singh with
the intention of causing him grievous bodily harm, or that they used extreme
violence. Counsel for the Crown also properly conceded that the Judge erred in
reaching the latter conclusion.
[25]
This Court has said on numerous occasions that care must be taken in
applying Taueki principles in manslaughter cases.15 Real difficulties can arise when
they are applied in circumstances where intention to cause grievous bodily harm is
neither admitted nor proved.
In such cases it will generally be preferable to
determine the starting point having regard to the material facts relevant to the
offending, and by comparing these with the facts and starting points adopted in other
similar manslaughter cases.
[26]
Such an approach also effectively deals with one of the main arguments
raised before us on Ms Pokai’s behalf.
Her counsel advised us that it is now
common ground that the summary of facts contained a material error. This was that
when Ms Pokai was interviewed by the police of 25 February 2013, she told them
that she had “wasted” Mr Singh. It now transpires that she told the police that she
herself was “wasted” at the time the assault on Mr Singh took place. By this we take
her to mean that she was severely affected by the alcohol she had consumed earlier
in the evening. Given the approach we propose to take in respect of determination of
the starting point, it is not necessary to consider this submission further.
[27]
We now turn to deal with the other areas in which counsel criticised the
inferences the Judge drew from the summary of facts.
Premeditation
[28]
The Crown contended at sentencing that the offending was premeditated and
the Judge accepted that submission.16 On appeal, counsel for Ms Black submits that
the Judge wrongly concluded that Ms Black and Ms Pokai lured Mr Singh to their
15
16
See for example Ioata v R [2013] NZCA 235 at [26], referring to R v Jamieson [2009]
NZCA 555 at [32]–[36].
Sentencing notes, above n 1, at [15].
address on the evening of 29 December 2012. He also contends that the Judge erred
in concluding that they meant to cause Mr Singh harm when they left their address to
travel to the beach in Mr Singh’s vehicle.
Those conclusions underpinned the
Judge’s finding that the assaults on Mr Singh were premeditated.
[29]
Reduced to its essentials, the argument for Ms Black is that there is a
reasonable possibility that she and Ms Pokai did not lure Mr Singh to their house,
and that they travelled with him to the beach for an entirely innocent purpose.
[30]
In developing this argument, counsel for Ms Black sought to rely upon
factual material that did not form part of the summary of facts. This included
material that counsel had received from the police during the disclosure process. We
do not propose to have regard to that material for present purposes. This Court has
made it clear in cases such as R v Apostolakis and R v Whiunui that, in cases where
counsel have reached agreement regarding the factual summary on which a guilty
plea is to be entered, sentencing must proceed on the basis of that summary. 17 Any
appeal against sentence must similarly be decided having regard to the facts
contained the summary.
[31]
It is also clear, however, that a sentencing Judge is entitled to draw inferences
from an agreed summary of facts provided they are grounded on established primary
facts.18
[32]
The summary in the present case records that the text messages between
Mr Singh and Ms Pokai after Ms Pokai had returned home from Mr Singh’s house
on the afternoon of 29 December 2013 showed that Mr Singh had wanted to have
sex with Ms Pokai at his home but she did not want that. The summary then
contains the following passage:
By this time both accused had been drinking throughout the afternoon with
friends at their home. Ms Pokai continued using Ms Black’s phone to text
Mr Singh, although Ms Black was taking part in the texting and on occasions
sent texts herself.
17
18
R v Apostolakis (1997) 14 CRNZ 492 (CA); R v Whiunui CA212/05, 9 November 2005 at [14].
R v Kinghorn [2014] NZCA 168 at [21] and [31], citing Caswell v Powell Duffryn Associated
Collieries Ltd [1940] AC 152 (HL) at 169–170.
The two accused had decided to falsely lead Mr Singh to believe that
Ms Pokai wanted to have sex with him. They did so in an effort to have him
come to their house at Munro Street.
At 5.48 pm the accused sent Mr Singh a text that read:
I wont u to FUK me tanite … I wont u!!
[33]
We consider that these passages entitled the Judge to conclude that the
appellants had deliberately lured Mr Singh to their home under false pretences. They
encouraged him to come to their home on the false premise that Ms Pokai had
changed her mind and now wanted to have sexual intercourse with him. This
conclusion also assists in determining their intention when they went with Mr Singh
to the beach, as do the events that occurred after Mr Singh arrived at the house.
[34]
As noted in the passage from the summary set out at [32] the appellants had
been drinking with friends at their home during the evening of 29 December. The
summary goes on to record that those persons were still there when Mr Singh
arrived, and he was introduced to these people as being Ms Pokai’s friend. One of
the friends noticed that the appellants were behaving unusually, and that they were
trying to create the impression to Mr Singh that they were not a couple. The
summary then says:
Ms Pokai went up to a bedroom where she got dressed up including putting
on earrings and necklace.
Ms Pokai told the friend that “The Indian fella had done something to do
her” and “that was why they had rung him up”. The friend noticed that when
she said this Ms Pokai sounded angry and that Ms Black, who was present
during the conversation, also looked angry.
Straight after this comment was made Ms Black informed the friend that
they were going out with Mr Singh and that they wouldn’t be long.
[35]
Viewed in light of the events that had occurred earlier in the day and the
circumstances in which Mr Singh had come to the house, this passage conveys the
strong impression that the appellants had formed a plan to take Mr Singh away from
their home in order to cause him harm. If they did not have that intention, it is
difficult to see why they would have gone with him to the beach at that hour of the
night. If they genuinely wanted to spend time with him, a scenario that is highly
unlikely given their apparent animosity towards him, there is no reason why they
could not have remained with him at their home. The fact that Ms Pokai got dressed
up before going out also suggests that she was endeavouring to further persuade
Mr Singh that she had changed her mind and now wanted to have sex with him.
Ms Pokai’s comments to the friend reinforce the impression that she and Ms Black
intended to harm Mr Singh before they left the house.
[36]
It follows that we are satisfied the Judge was entitled to draw inferences
adverse to the appellants in relation to the important issue of premeditation.
Self-defence
[37]
Counsel for Ms Black contends that the Judge had failed to take into account
as a mitigating factor Ms Black’s assertion that she and Ms Pokai assaulted Mr Singh
in self-defence, after he had already struck them.
[38]
The Judge’s task in dealing with this issue was not assisted by the manner in
which the summary of facts was worded, and the manner in which all counsel
approached the issues to be determined at sentencing. Some of these difficulties
reflected the fact that the pathologist was unable to determine the cause of
Mr Singh’s death. The Judge’s task at sentencing would have been made a great deal
easier, however, if counsel had taken greater care in compiling the summary of facts
and identifying issues in dispute that the Judge needed to resolve at sentencing.
[39]
The only passage in the summary that provides a hint of self defence is the
following:
Both accused then met up with [Ms Black’s former partner] and spoke with
him at their home. Ms Black said that “they had just killed a fella”. She said
that he was Indian and he wanted to go for a walk with them down the
beach. She said that Mr Singh said he would give them a cell phone if they
kissed, which they did. She went on to say that the Indian man then went
“psycho” and that they beat him up. She said that they left him there and
took off in his vehicle and that they had gone back to see if he was alive but
that he was dead.
Ms Black showed [Ms Black’s former partner] her knuckles on both hands
and explained to him how she had beaten Mr Singh up. Her knuckles were
red on each hand.
Plainly this passage does not provide a sufficient evidential basis for self defence to
be advanced as a mitigating factor, and the Judge was therefore entitled to reject it as
such.
[40]
If counsel for Ms Black had wished to take this issue further at sentencing, he
should have ensured that material relevant to the issue of self-defence was included
in the summary of facts. If the Crown did not agree, counsel could have asked the
Judge to determine the issue as a disputed fact under s 24(1) of the Sentencing Act
2002.
[41]
We consider that Ms Black would have faced an insurmountable hurdle in
advancing self-defence as a mitigating factor at sentencing in any event. First, the
claim was only advanced in Ms Black’s third interview by the police. As recorded
above, in her first interview she had flatly denied having any involvement with
Mr Singh and/or his vehicle. In the second interview she tried to place part of the
blame for Mr Singh’s death on an innocent third party.
The Judge would
undoubtedly have approached the third explanation with a significant degree of
scepticism.
[42]
More importantly, the explanation is wholly inconsistent with the
circumstances leading up to the assaults. Given our assessment that the Judge was
entitled to conclude that the two appellants took Mr Singh to the beach with the
intention of causing him harm, the version of events described by Ms Black in her
third police interview is highly improbable.
[43]
This aspect of the appeal fails as a result.
Callousness
[44]
Counsel for Ms Black submitted that the Judge was wrong to conclude that
the appellants had acted in a callous manner towards Mr Singh. This submission
refers to the following passage from the Judge’s sentencing remarks:19
19
Sentencing notes, above n 1, at [19].
Although not a factor specifically referred to in the Taueki case, I agree with
the Crown submission that you displayed a level of callousness and this is a
further factor that needs to be taken into account. You knew that you had
inflicted severe injuries on Mr Singh. You knew that you may well have
killed him but you were not sure whether he was dead. Rather than checking
on him or seeking assistance for him, you dragged him up the beach and hid
him under bushes knowing that he would be unable to get help and was
unlikely to be found for some time.
[45]
Counsel for Ms Black submitted this passage suggests the Judge accepted
that the appellants had dragged Mr Singh’s body up the beach and hidden it in
bushes whilst he was still alive. He pointed out that a more favourable inference was
equally available, namely that when the appellants initially left the beach Mr Singh
was still alive but when they returned later he was dead. It was only then that the
appellants dragged Mr Singh’s body up the beach and hid it in bushes.
[46]
This submission overlooks the fact that under either scenario the appellants
failed to seek assistance for Mr Singh in circumstances where they knew he was
seriously injured. The callousness to which the Judge referred arises out of that
aspect of the appellants’ conduct, rather than the timing of the point at which they
dragged Mr Singh’s body up the beach and hid it in bushes. The callousness of the
conduct also extends, in our view, to the manner in which the appellants
subsequently drove away in Mr Singh’s vehicle and attempted to gain access to his
bank account.
[47]
We therefore do not consider the Judge erred in describing the appellants’
actions as being callous.
The appropriate starting point
[48]
In light of these conclusions we now turn to consider the factors relevant in
the present case to determining the appropriate starting point. For the reasons set out
above we put to one side the Judge’s conclusion that the appellants used extreme
force when they assaulted Mr Singh, although the fact that death ensued as a direct
result of the assaults is obviously relevant to the starting point.
[49]
The level of premeditation leading up to the assaults is clearly an aggravating
factor, as is the fact that Mr Singh was confronted on the beach by two assailants.
We also agree with the Judge that Mr Singh was vulnerable because, weighing just
52 kilograms, he was considerably smaller than the appellants and was outnumbered.
Finally, the callous manner in which the appellants left Mr Singh to die on the beach,
even though they must have known he was seriously injured, is another significant
aggravating factor.
[50]
This Court reviewed the approach taken in manslaughter cases in Kepu v R.20
Citing R v Tai,21 the Court observed that a starting point of seven years’
imprisonment is not unusual in cases where death has been caused by a single
punch.22
[51]
More recently, this Court upheld a starting point of eight years’ imprisonment
in Te Pana v R.23
In that case, the appellant and members of his family had been
drinking in the family home. The appellant became angry because he was jealous of
the relationship that his stepfather had with his (the appellant’s) partner. He then
attacked his stepfather, punching him several times to the head and face with his
fists. The victim was initially left with a black eye and a cut above the lip, but
overnight his condition deteriorated and he was found unconscious in his bed the
next day. He subsequently died as a result of a subdural brain haemorrhage caused
by the punches to his head.
[52]
This Court observed that the circumstances surrounding the offending made
the case quite different to cases where death is caused by a single blow. Although
the Court observed that another sentencing Judge may have adopted a starting point
of seven years’ imprisonment, it considered an uplift of at least 12 to 18 months was
required to reflect aggravating factors personal to the appellant. 24 This meant that
the end sentence of eight years, six months’ imprisonment that the Judge imposed
was within the available range.
[53]
There are both similarities and differences between the offending in Te Pana
and that in the present case. The offending in Te Pana was spontaneous and not
20
21
22
23
24
Kepu v R [2011] NZCA 104 at [21].
R v Tai [2010] NZCA 598 at [23].
Kepu v R, above n 23, at [21].
Te Pana v R [2014] NZCA 55.
At [14].
premeditated. It also involved a single attacker rather than two. To that extent, the
offending in the present case is more serious. As in the present case the victim was
vulnerable, in that case by virtue of his age rather than his size. The main point of
difference is that the assaults that caused death in Te Pana were forceful blows to the
head, whereas it is impossible to tell in the present case precisely what caused
Mr Singh’s death. It is clear, however, that more than one blow must have been
struck. That is the obvious inference to be drawn from Ms Black’s comment to her
former partner that they had beaten Mr Singh up.
[54]
As this discussion illustrates, it is difficult to compare the facts of the present
case with those in other cases in any meaningful way because it is not possible in the
present case to determine the degree of force that the appellants used when they
assaulted Mr Singh. Viewed as a whole, however, we see the overall culpability of
the offending in the present case as being at least as serious as that in Te Pana, albeit
for different reasons. Like the Court in that case, we consider the aggravating factors
in the present case place it in a very different category to those in which death is
caused by a single punch delivered during a spontaneous incident.
[55]
Having regard to sentences imposed in other manslaughter cases, a slightly
lower starting point may have been justified on the manslaughter charge alone. An
uplift was required, however, to reflect the callous manner in which the appellants
dealt with Mr Singh’s property after they left him to die on the beach. We therefore
accept the Crown’s submission that a starting point of eight years’ imprisonment was
within the available range to reflect the appellants’ culpability on all charges other
than that of attempting to obstruct the course of justice. It follows that the starting
point the Judge selected was not too high.
Totality principles
[56]
Section 85(2) of the Sentencing Act requires a sentencing judge to have
regard to totality principles in any case where cumulative sentences are imposed.
The enquiry is as to whether the imposition of cumulative sentences will “result in a
total period of imprisonment wholly out of proportion to the gravity of the overall
offending”. Given that the Judge imposed cumulative sentences in the present case,
he was required to turn his mind to this issue. Counsel for both appellants submit
that he failed to do so.
[57]
It is common ground that the Judge did not deal expressly with the issue of
totality during his sentencing remarks. After he had passed sentence, however,
counsel then acting for Ms Black raised the issue with the Judge. The following
exchange then occurred:
MR MATHIESON:
Did Your Honour intend to cover the issue of any adjustment for totality?
THE COURT:
I am not intending to adjust it for totality and I will record that in the
sentencing notes if you would like. I have considered it and I was going to
make an adjustment but as a result of the submissions that have been made, I
do not consider it is needed.
[58]
The Judge then amended the written transcript of his sentencing remarks so
that it read as follows:
[27]
Applying a discount of 20 per cent to allow for your guilty pleas
results in a provisional end sentence of eight years and eight months’
imprisonment. I do not consider that this sentence is wholly out of
proportion to the gravity of the overall offending. I therefore make no
adjustment in terms of s 85 of the Sentencing Act.
[59]
Before we can deal properly with the issue of totality, it is necessary to
consider the appropriateness of the starting point that the Judge adopted in relation to
the charges of attempting to pervert the course of justice. As we have already
recorded, that charge arose as a result of the fact that during their police interviews
on 25 February 2013 the appellants attempted to place at least part of the blame for
Mr Singh’s death on an innocent third party.
The attempt was singularly
unsuccessful, because police enquiries quickly revealed that the third party had had
no involvement in the events leading to Mr Singh’s death. As a result, she was never
at risk of being charged. Nevertheless, the false statements required the police to go
to the trouble of making additional enquiries that they should not have needed to
make.
[60]
Counsel for the Crown submits that the offending was serious and easily
justified the starting point of three years’ imprisonment that the Judge selected.
Counsel for the appellants did not take issue with the starting point, but submitted
that failure to apply totality principles led to an end sentence that was manifestly
excessive.
We consider that the answer to both issues is best determined by
comparing the gravity of the offending with that in other cases involving attempts to
pervert the course of justice.
[61]
Although the offending can be categorised as relatively unsophisticated, we
do not accept a submission for the appellants that it was a fleeting attempt to mislead
the police. Ms Pokai and Ms Black acted in concert in giving the police the false
information, and for that reason it was clearly premeditated.
It also occurred
approximately seven weeks after Mr Singh’s death, and after the appellants had
already endeavoured to deny any involvement with Mr Singh and his vehicle. They
did not subsequently advise the police that they had provided false information.
Rather, they left the police to discover the falsity of the information through
subsequent enquiries that included the third party being interviewed.
[62]
The unsophisticated nature of the offending leads us to describe it as being of
moderate seriousness. It is certainly not as serious as a case in which an offender
destroys or tampers with important evidence. Nor is it as serious as a case in which
threats are used to dissuade a victim or witness from giving evidence.
[63]
We consider that the gravity of the offending can usefully be compared with
that in Manukau v R.25 In that case the appellant had arranged for his partner to
create and store in her cellphone a text message ostensibly sent by a complainant
who had made allegations of sexual offending against the appellant. In the text
message the complainant purported to threaten to make a false allegation to the
police about the appellant in order to punish him and his partner because they had
evicted her from their home the previous day. The appellant told his partner not to
reveal the existence of the text message until after he had been arrested.
25
Manukau v R [2013] NZCA 217.
[64]
The appellant was ultimately arrested, and entered a guilty plea to a charge of
sexual violation. He subsequently applied to vacate his guilty plea, and persuaded
his partner to file a supporting affidavit exhibiting the text message and confirming it
was legitimate.
[65]
Subsequent investigations by the police uncovered the fact that the
complainant had not sent the text message.
The police then warned both the
appellant and his partner that they would be charged with attempting to pervert the
course of justice if they attempted to rely upon the affidavit any further. This was
sufficient to persuade the complainant to withdraw from the plan, but the appellant
was not dissuaded. He attempted to continue to rely upon the truthfulness of the
affidavit when the application to vacate the guilty plea was heard.
[66]
After the appellant was subsequently found guilty of attempting to pervert the
course of justice, the sentencing Judge took a starting point of two years six months’
imprisonment. He then reduced that by three months to reflect totality principles.
He imposed the resulting sentence of two years, three months’ imprisonment
cumulatively on a sentence of three years, two months’ imprisonment that the
appellant was already serving on the charge of sexual violation.
This Court
considered that totality principles required an effective end sentence of no more than
five years’ imprisonment on both charges.
It therefore reduced the cumulative
sentence to one year, ten months’ imprisonment.
[67]
In the present case the concerted attempt by both appellants to place the
blame on an innocent third party clearly warranted a cumulative sentence. We
consider, however, that a starting point of three years’ imprisonment was too high
and also failed to reflect totality principles. In our view an appropriate starting point
on the charge of attempting to pervert the course of justice was a cumulative
sentence of two years’ imprisonment.
That would produce a combined starting
point of ten years’ imprisonment before taking into account mitigating factors. We
consider that this final starting point would properly reflect the gravity of the
offending, and would also take into account totality principles.
Discount for guilty pleas
[68]
Counsel for both appellants submit that the Judge ought to have applied a
discount of 25 per cent to reflect guilty pleas. They say that the appellants entered
their pleas at the earliest opportunity once the Court had discharged them on the
murder charge.
On that basis alone, the appellants contend they should have
received the maximum available discount of 25 per cent.
[69]
This submission ignores the fact that it was open to the appellants to offer to
plead guilty to manslaughter at any time after they were initially charged with
murder. They did not make that offer, however, until after they had been discharged
on the charge of murder. The offer was therefore made approximately nine months
after the appellants were first charged. For that reason we do not accept that the
appellants pleaded guilty at the first available opportunity.
[70]
More importantly, the Supreme Court emphasised in Hessell v R that the
discount to be given in respect of a guilty plea may reflect several factors.26 These
include not only the point at which the plea is entered, but also the strength of the
case against the defendant. Where conviction is inevitable, it may not be appropriate
to grant the maximum discount of 25 per cent.27
[71]
The case against both appellants was strong. They were the last persons with
whom Mr Singh was seen alive. They had also made comments to a number of
relatives and associates following the incident to the effect that they had assaulted
Mr Singh and believed they were responsible for his death. The police had also
obtained evidence linking them with Mr Singh’s vehicle. Both appellants had also
acknowledged involvement in the events leading to Mr Singh’s death during their
police interviews on 25 February 2013 and, in the case of Ms Black, her interview on
13 March 2013. Putting aside a defence based on self-defence, conviction on the
manslaughter charge was almost inevitable having regard to the likely Crown case at
trial. The same comment applies in respect of all the other charges.
26
27
Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [46].
At [65]–[67].
[72]
We are therefore satisfied that the Judge was entitled to apply a discount of
20 per cent rather than the maximum available of 25 per cent.
Discount for remorse
[73]
Counsel for Ms Black also contends that the Judge wrongly failed to give his
client any discount for remorse. The Judge dealt with this issue as follows:
Remorse
[25]
In all the circumstances, I am not prepared to accept as genuine your
claim of remorse as set out in the letters you have recently provided. A
discount for remorse cannot appropriately be given unless it is shown to be
genuine following critical analysis.
[74]
In making the observation contained in the second sentence of this passage
the Judge was no doubt mindful of the following passage from Hessell v R:
[64]
… Remorse is not necessarily shown simply by pleading guilty.
Sentencing Judges are very much aware that remorse may well be no more
than self pity of an accused for his or her predicament and will properly be
sceptical about unsubstantiated claims that an offender is genuinely
remorseful. But a proper and robust evaluation of all the circumstances may
demonstrate a defendant’s remorse. Where remorse is shown by the
defendant in such a way, sentencing credit should properly be given
separately from that for the plea.
[75]
Whether or not Ms Black’s remorse could be considered genuine was
quintessentially a matter for the Judge to determine.
The only expressions of
remorse were contained in comments she made to the person who prepared the
pre-sentence report and in statements she made in a letter handed up to the Judge at
sentencing. They are not echoed in her interviews by the police. In the absence of
any other tangible demonstration of remorse that the Judge may have overlooked, we
do not consider that this Court should revisit his assessment that the expressions of
remorse that Ms Black made just before sentencing were not genuine.
Result
[76]
The appeals against the sentences imposed in respect of the manslaughter
charges are dismissed.
The sentences of six years, four months’ imprisonment on
those charges are confirmed. The appeals against the sentences imposed on the
charges of attempting to pervert the course of justice are allowed. Applying the
adjustment necessary to provide a 20 per cent discount to an end starting point of ten
years’ imprisonment, cumulative end sentences of one year and eight months’
imprisonment must be imposed in relation to those charges.
[77]
The cumulative sentences of two years, four months’ imprisonment imposed
on the charges of attempting to pervert the course of justice are accordingly quashed
and replaced with cumulative sentences of one year and eight months’ imprisonment.
This means that the appellants’ sentences will be a total term of eight years’
imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent