IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA509/2019
 [2020] NZCA 295

	
BETWEEN	
CHRISTOPHER RAMIA SMITH
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
25 June 2020	

Court:	
Gilbert, Ellis and Katz JJ	

Counsel:	
M E Goodwin and C M Chester-Cronin for Appellant
Z R Johnston for Respondent	

Judgment:	
16 July 2020 at 9 am	

JUDGMENT OF THE COURT

A	The application to adduce the s 27 report is granted.
B	The appeal against sentence is allowed.
C	The sentence of six years’ imprisonment imposed in the High Court on the charge of manslaughter is set aside.  A sentence of five years’ imprisonment is substituted.  The concurrent sentence of three years’ imprisonment for the charge of kidnapping is confirmed.	
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)
[1]	Following a trial by jury in the High Court at Hamilton, Mr Smith was found guilty of manslaughter and kidnapping.  He was sentenced by Davison J on 6 September 2019 to six years’ imprisonment.  Mr Smith now appeals against his sentence.  
Grounds of appeal
[2]	Mr Smith contends the starting point adopted of seven years’ imprisonment was too high, particularly when compared with the eight-year starting point adopted for Mr Walker, a co-offender.  Mr Walker played a more significant role and directly caused the death by placing the victim in a sustained chokehold whereas Mr Smith merely assisted by restraining the victim’s legs.  Mr Smith also contends that the global discount of 12 months’ imprisonment was inadequate for the five personal mitigating factors accepted by the Judge — no previous convictions, previous good character, motivation to address his drug addiction, genuine remorse and seven months spent on electronically monitored (EM) bail.  This equates to an overall discount of 14 per cent.
[3]	Mr Smith also applies to adduce further evidence in support of the appeal, being a cultural report prepared by Ms Turner under s 27 of the Sentencing Act 2002.  As will become apparent, the report is highly relevant to Mr Smith’s personal mitigating factors and we are prepared to receive it in the interests of justice.  We grant the application accordingly.
The facts
[4]	The offending occurred after Mr Wilson, the president of the Waikato chapter of the Nomads gang, discovered that the victim, Mr Paterson, had been going around making disparaging remarks about him.  In the early hours of the morning on Thursday, 12 July 2018, Mr Wilson made arrangements for Mr Paterson to be brought before him to answer for this.  Mr Walker, a Nomad’s gang prospect, either offered or was directed by Mr Wilson to find Mr Paterson and bring him to Mr Wilson’s address.  He was joined by two others who were present when the arrangements were made, Ms Kerridge, who was then Mr Walker’s partner, and Mr Boyle.  The three of them went in Mr Boyle’s car and located Mr Paterson at an address in Mill Lane, Hamilton.  Mr Smith was not involved at this stage.
[5]	Mr Walker lured Mr Paterson outside on the pretence of conducting a drug deal.  Although he was apparently suspicious, Mr Paterson went back inside briefly to get something needed for the drug deal.  Mr Walker exchanged text messages with Mr Wilson to report what was happening and to coordinate their subsequent actions.  At 2.17 am, Mr Wilson sent a text to Mr Walker saying “just at bp gv us a yeeha whn u gt hym in da car”.  Mr Wilson sent this text using Mr Smith’s phone.  Mr Wilson was with Mr Smith and another associate, Mr Wickens, in Mr Smith’s car at the time.  At 2.23 am, Mr Walker sent another text to Mr Wilson saying “he inside makin it … He sus as not keen on jumping in car”.  A short time later, Mr Walker sent a follow-up text saying simply “come”.  Mr Wilson, Mr Smith and Mr Wickens then proceeded immediately in Mr Smith’s car to Mill Lane.  
[6]	When Mr Paterson came back outside, Mr Walker “encouraged” him to get into the back seat of Mr Boyle’s car, although Mr Paterson was clearly reluctant to do so.  Mr Boyle was in the driver’s seat, Ms Kerridge was in the front passenger seat and Mr Walker was in the rear seat beside Mr Paterson.  As soon as Mr Paterson was secured in the back seat, Mr Walker and Ms Kerridge told Mr Boyle to “drive”.  Messrs Wilson, Smith and Wickens led the way in Mr Smith’s car, with Mr Smith driving.
[7]	The Judge described what happened next as follows:
[10]	During the drive back to Mr Wilson’s place it appears that Mr Paterson resisted Mr Walker and struggled vigorously to free himself from the choke hold that Mr Walker had put him in by having one arm around Mr Paterson’s neck, and the other arm around his head so as to restrain him and prevent him from escaping. … The struggle in the back seat continued and although Mr Walker appears to have been able to restrain Mr Paterson by means of the hold around his neck, Mr Paterson was still able to use his legs and feet.  Mr Boyle said that as he drove he could feel his driver’s seat being kicked and hit and the car was being shaken.  … In what was clearly a desperate struggle and when the car was still travelling along Victoria Street, Mr Paterson managed to use his feet to kick out the rear right-hand passenger window of Mr Boyle’s car.
[11]	What then happened was Mr Boyle straight away stopped his car.  Seeing it stop, Mr Smith, you also stopped, or were directed to stop your vehicle by Mr Wilson.  Mr Wilson then directed you, Mr Smith, to go and get into Mr Boyle’s vehicle in order to assist Mr Walker to restrain Mr Paterson.  Mr Smith, you complied with Mr Wilson’s direction, and leaving your car, you went back to Mr Boyle’s car, opened the rear passenger door, and got in.  Once inside your physical size and presence prevented Mr Paterson from making any further use of his legs to resist Mr Walker.  Whether you sat on Mr Paterson’s legs, or whether you squeezed into the back alongside him so as to prevent him from moving his legs, is in my view of no significance, as you were there to assist Mr Walker to restrain Mr Paterson for the remainder of the drive back to Mr Wilson’s house – and that is what you did.  Mr Boyle also said in his evidence that on the way back to Mr Wilson’s place the two men in the back seat, meaning you Mr Smith and Mr Walker, were “taunting” Mr Paterson, saying words such as “We’ve got you now” and, “You fucked‑up”, and “shouldn’t have done what you did.”  While it cannot be established just when during the drive between Mill Lane and Mr Wilson’s house Mr Paterson lost consciousness and died, Mr Smith your action of getting into the back of Mr Boyle’s car, restraining Mr Paterson’s movement and joining with Mr Walker in taunting Mr Paterson clearly shows that you were participating and assisting in carrying out the group’s plan to detain Mr Paterson and take him back to Mr Wilson’s place for a confrontation over what it was thought he had been saying about Mr Wilson.
…
[14]	Both vehicles arrived back at Mr Wilson’s address pretty much together.  Mr Paterson was carried or dragged out of Mr Boyle’s car into the garage located at the rear of Mr Wilson’s property, where he was observed to be blue in the face and unresponsive, with a small trickle of blood visible on his lips.  Mr Walker attempted to wake Mr Paterson by slapping his face, and when that was unsuccessful, he attempted CPR.  However, it soon became apparent that Mr Paterson could not be revived and that he was dead.  No one called the emergency services.
Was the starting point too high?
[8]	Mr Walker pleaded guilty to all charges prior to the trial.  In sentencing him, Peters J adopted starting points of five years’ imprisonment for the manslaughter charge and three years’ imprisonment for the kidnapping charge.  The Crown submitted at sentencing that the same starting points should be adopted for Mr Smith.  However, Davison J considered that Mr Smith’s role in the offending was not as serious as that of Mr Walker.  Mr Walker was the one who put Mr Paterson in the chokehold and maintained it for an extended period causing Mr Paterson’s death.  The Judge considered a lesser overall starting point of seven years’ imprisonment was appropriate for Mr Smith.
[9]	Mr Goodwin, for Mr Smith, submits that the appropriate overall starting point ought to have been between four and four and a half years’ imprisonment.  It emerged at the hearing that Mr Goodwin’s primary contention is that the seven-year starting point for Mr Smith cannot be justified on a parity basis with the eight-year starting point adopted for Mr Walker.  
[10]	It is well established that this Court will not interfere with an otherwise appropriate sentence on the grounds of disparity unless the disparity appears unjustifiable and is gross.  The test is whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would conclude that something had gone wrong with the administration of justice.  
[11]	There is no suggestion, nor could there be, that the overall starting point of eight years’ imprisonment adopted by Peters J for Mr Walker was outside the available range when the aggravating factors are considered.  The offending was gratuitous, premeditated and involved two attackers with multiple others in support.  The attack was directed to the head and airways of the victim, involved the sustained application of considerable force and ultimately resulted in the victim’s death.  It may be observed that the overall starting point of eight years, for both the kidnapping and manslaughter charges, still only places the offending near the middle of band two of this Court’s guideline judgment in R v Taueki for serious violent offending. 
[12]	Davison J was not bound by the starting point adopted by Peters J for Mr Walker.  Mr Walker pleaded guilty and was sentenced on the basis of an agreed summary of facts.  By contrast, Mr Smith was sentenced after being found guilty by the jury following trial.  As the Judge who presided over the trial, Davison J was best placed to determine the full facts of the offending and the relative culpability of Mr Walker and Mr Smith having heard all the evidence.  We can see no justification for interfering with his careful assessment of the starting point.  
[13]	The aggravating factors of the offending we have detailed above also apply to Mr Smith, albeit to a somewhat lesser degree.  Mr Smith was an active participant in the unlawful acts that caused Mr Paterson’s death.  He knew that Mr Paterson was engaged in a desperate struggle to break free from Mr Walker to the point of kicking out the rear side window of the car.  Mr Smith chose to assist Mr Walker by getting into the backseat of the car and helping to overcome Mr Paterson’s resistance.  By one means or another, he prevented Mr Paterson from putting up any further resistance to the chokehold Mr Walker had him in.  In our assessment, the Judge gave adequate recognition to Mr Smith’s somewhat lesser culpability by adopting a starting point 12 months lower than that adopted by Peters J for Mr Walker.  We are quite satisfied that an objective independent observer, looking at the respective starting points and knowing all the facts, would have no concerns that something had gone wrong with the administration of justice in this case.  This ground of appeal fails.  
Was the discount for personal mitigating factors insufficient?
Personal and family background 
[14]	Mr Smith was born in Tokoroa, the middle child of three.  He identifies as Māori but says he “grew up white”.  He has an older brother and a younger sister.  At the time of the offending, his sister was Mr Wilson’s partner.
[15]	Mr Smith was brought up in a household where excessive drinking and violence were the norm.  He says many family members on his mother’s side were gang members.  He says if his parents were not at work, they were going to parties and drinking.  He recalls there being “heaps of fights”, including “full on brawls and punch ups” at these parties which occurred at their house or at the houses of other whānau members.  Mr Smith says that although his parents were seldom violent towards one another, he and his brother received regular “hidings” with the kettle cord or a wooden spoon.  He describes feeling lonely, abandoned and scared during his upbringing.  
[16]	Mr Smith says his older brother ran away from home at the age of 13.   Mr Smith was aged eight at the time and he says he developed a very close relationship with his sister after that.  He says he has always looked out for her and tried to be protective of her.  
[17]	Mr Smith says he started drinking regularly when he was aged 14 or 15.  He says he began using methamphetamine when he was aged 17 and had become a regular user by the time he was 21.  Despite these addiction issues, Mr Smith has held steady and regular employment and has achieved a stable family life.  He has a 17-year-old son from a previous relationship who lives with his mother.  He also has three children, aged 10, seven and three, with his current partner of 13 years who remains supportive of him.  Mr Smith and his partner also adopted his sister’s son, who is aged 13.  He explains that they adopted him as a baby because his sister’s drug use meant she could not look after him properly.  He also took in his sister’s other two children for a two-year period prior to the charges being laid against him.  Mr Smith’s partner now has to support their three children and whāngai son on her own.    
Lack of previous convictions/previous good character
[18]	We agree with the Judge that these factors are appropriately considered together.  The lack of previous convictions is not a mitigating factor on its own but provides support for the claim that Mr Smith is otherwise of good character. 
[19]	Mr Smith is now aged 36.  Apart from the index offending, he has no convictions of any kind.  Mr Smith’s previous clean record is very much to his credit given the challenges he has faced.  It suggests that his offending was out of character.  It appears that Mr Smith’s involvement in the offending is at least partly explained by his ongoing efforts to look out for his sister who was then in a relationship with Mr Wilson.  Although Mr Smith is not a member of the Nomad’s gang, this is what led him into the company of Mr Wilson who instigated the offending.
[20]	It appears the offending was an isolated occurrence that was out of character. His previous good character is relevant to his potential for rehabilitation and supports the probation officer’s assessment that Mr Smith is at low risk of reoffending.  In all the circumstances, we consider the Judge was correct to recognise Mr Smith’s previous good character as a personal mitigating factor requiring recognition in the sentencing exercise.  The discount for this factor needed to be more than token.
Genuine remorse
[21]	Given Mr Smith defended the charges at trial, it may surprise some that he was nevertheless given credit for genuine remorse.  However, we are satisfied the Judge was right to do so in this case.  Mr Smith submitted to a voluntary interview with the police and handed them a letter addressed to Mr Paterson’s family expressing his sorrow for their pain and loss and his sincere regret for his involvement.  He did not seek forgiveness.  He concluded his letter by writing:
I will never forgive myself for what happened that night and knowing a family has now have to live without there loved one.  I cannot believe or even know how your family feeling with this loss.  I hope that you find peace.  I am remourseful and sorry for what has been done.  I will regret that night for ever but that will not bring back Mitch [Mr Paterson] and that something I will live with for rest of my life.  
[22]	We agree with the Judge’s assessment that a modest discount for genuine remorse was appropriate. 
Motivation to address drug addiction
[23]	Mr Smith has long-standing issues with methamphetamine addiction, stemming from his early exposure to the drug at age 17.  In his pre-sentence report, the probation officer records that, following arrest, Mr Smith “realised that the drug had taken over his life” and admitted himself to a rehabilitation clinic in Rotorua.  Mr Smith has continued to make significant attempts to address his addiction and this speaks further to his good character and also to his strong rehabilitative prospects.  As noted, the probation officer assessed Mr Smith as being at low risk of reoffending or causing harm to others.  We set out the timeline of Mr Smith’s rehabilitative efforts since being charged on 25 July 2018 below.
[24]	With the assistance of the Salvation Army, Mr Smith was able to secure an early placement at a residential rehabilitation facility in Rotorua, Te Utuhina Manaakitanga.  Mr Smith commenced this programme on 1 October 2018.  Regrettably, after five weeks, he was stood down for two weeks for vaping (Mr Smith had been a heavy smoker).  Mr Smith resumed his programme on 12 November 2018 but was discharged for using a mobile phone to contact his partner (this phone had been brought to the site by another resident). 
[25]	Following his discharge, Mr Smith was remanded in custody for one month.  Upon release, he attended Pai Ake Solutions and Cambridge Community House for counselling and drug abuse treatment.  He completed 11 of the 12 sessions but, unfortunately, this facility closed permanently in June 2019 before Mr Smith could graduate.  
[26]	Mr Smith was sentenced on 6 September 2019.  It appears he has continued to make good progress while in prison.  We were provided with an interim report from Odyssey House dated 4 June 2020 stating that Mr Smith commenced a six-month drug treatment programme on 11 November 2019 (which has been extended due to COVID‑19 restrictions) and that he continues to progress towards graduation.  
[27]	The Judge was undoubtedly right to recognise Mr Smith’s insight and willingness to address his addiction as an important mitigating factor, deserving of a meaningful discount.  
Time spent on EM bail
[28]	Mr Smith spent seven months on EM bail subject to a 24-hour curfew.  There is no formula for the discount that this would justify.  However, an appropriate discount would be in the range of two to three months.  
Assessment
[29]	As Mr Goodwin accepted, sentencing judges are not obliged to quantify the particular discount allowed for each personal mitigating factor.  It is not always practical to do so because in many cases the factors will not be entirely discrete and there will be overlap.  Sentencing requires careful assessment of a myriad of factors and the exercise of overall judgment.  In the end, the sentencing Judge must stand back and ask whether the end sentence is appropriate in all the circumstances of the offence and the offender.  Nevertheless, in the interests of transparency and to the extent this is reasonably practicable, it is good practice to expose the reasoning for all aspects of the sentence calculation.  
[30]	The discount for time spent on EM bail is not calculated as a percentage.  Assuming the minimum reasonably permissible discount of two months was allowed for this factor, that means the Judge allowed 10 months (12 per cent) for Mr Smith’s personal and family background, his previous good character, genuine remorse and the commendable rehabilitative efforts he has made to address his addiction to methamphetamine.  This equates to an average of three per cent for each of these factors.  Even allowing for overlap, we consider the overall discount gave insufficient recognition to these important personal mitigating factors.
[31]	Mr Smith has accepted responsibility for his offending and acknowledged the harm he has caused.  Given his disadvantaged personal and family background, Mr Smith’s achievement in the community is deserving of recognition.  As a first‑time offender with a low risk of reoffending, we consider it is appropriate to give some prominence to the sentencing purposes of rehabilitation and reintegration into the community in this case.     
[32]	We consider an overall discount of not less than 25 per cent needed to be allowed for these factors, in addition to an allowance for time spent on EM bail.  In our view, the minimum credit for his personal circumstances, family background, previous good character and low risk of reoffending would have been 10 per cent.  A further discount of not less than 10 per cent was required for Mr Smith’s rehabilitative efforts.  The balance of five per cent was necessary to reflect, in more than a token way, Mr Smith’s genuine remorse.
Conclusion
[33]	We conclude that the sentence that should be imposed in terms of s 250(2) of the Criminal Procedure Act 2001 is five years’ imprisonment calculated as follows: 
(a)	starting point — seven years’ imprisonment — 84 months.
(b)	discount for personal mitigating factors (25 per cent) — 21 months:
(i)	personal/family background and previous good character (10 per cent);
(ii)	genuine remorse (five per cent); and 
(iii)	rehabilitative efforts (10 per cent); and
(c)	discount for time spent on EM bail — three months. 
Result
[34]	The application to adduce the s 27 report is granted.
[35]	The appeal against sentence is allowed.
[36]	The sentence of six years’ imprisonment imposed in the High Court on the charge of manslaughter is set aside.  A sentence of five years’ imprisonment is substituted.  The concurrent sentence of three years’ imprisonment for the charge of kidnapping is confirmed.	

Solicitors: 
Crown Law Office, Wellington for Respondent