IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CRI-2019-419-000011
[2019] NZHC 573	

BETWEEN	NIKI JOHN GAMBLE-MACKESY
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	25 March 2019	
Counsel:	RB Quin for Appellant
ASC Alcock for Respondent	
Judgment:	26 March 2019	

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 26 March 2019 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Hamilton. RB Quin, Hamilton.

GAMBLE-MACKESY v R [2019] NZHC 573 [26 March 2019]

The appeal

[1]	Mr Niki Gamble-Mackesy committed a raft of offences between January and July 2018, some serious. Judge R L B Spear sentenced Mr Gamble-Mackesy to a term of four years and three months’ imprisonment.1 Mr Gamble-Mackesy appeals. He contends the sentence is manifestly excessive because the Judge made inadequate allowance for his guilty pleas, and no allowance for remorse. No other aspect of the Judge’s methodology is impugned; Mr Gamble-Mackesy accepts if the Judge did not err on these matters, his sentence is within range.

Facts

[2]	The offending is best introduced with a timeline:

(a)	23 January 2018 – dangerous driving, disqualified driving and failing to stop.

(b)	28 January 2018 – driving while disqualified.

(c)	26 May 2018 – injuring with intent to injure.

(d)	3 June 2018 – two charges of criminal nuisance by shining a laser at Police officers.

(e)	8 June 2018 – threatening to kill.

(f)	Between 9 June and 6 July 2018 – attempting to pervert the course of justice (a representative charge).

(g)	2 July 2018 – an unrelated attempt to pervert the course of justice.

[3]	The offences at [2](c), (e), (f) and (g) warrant elaboration. All but the last involve Mr Gamble-Mackesy’s former partner, whom I call the complainant.

1	R v Gamble-Mackesy [2019] NZDC 1556.

[4]	On 26 May 2018, Mr Gamble-Mackesy strangled the complainant until she lost unconsciousness: [2](c). Her body convulsed uncontrollably when she came to. The attack occurred after the complainant told Mr Gamble-Mackesy she wanted to end their relationship. About two weeks later, Mr Gamble-Mackesy tipped the complainant from her bed onto the floor. She locked herself in the toilet and later said she did not want to be with him. Mr Gamble-Mackesy picked up a hammer and said, “Do you want to die bitch? I’ll fucking kill you ... I’ll kill  you then bitch”: [2](e).  Mr Gamble-Mackesy was remanded in custody. From prison, Mr Gamble-Mackesy attempted to pervert the course of justice: [2](f). He:

(a)	Instructed a friend—Mr Hayden Anderson—to offer the complainant money to change her account.

(b)	Instructed Mr Anderson to contact a third person to persuade the complainant to make a false statement.

(c)	Used his father as a conduit to tell the complainant if the more serious charge was dropped, he would plead guilty to a lesser one of male assaults female.

(d)	Told Mr Anderson where the complainant lived so Mr Anderson could contact her.

(e)	Discussed the possibility of the complainant being kidnapped  with Mr Anderson.

(f)	Got information to the complainant the charges would likely be dropped if she did not attend Court.

[5]	The offence at [2](g) concerns  Mr  Gamble-Mackesy’s  attempts  to  have  Mr Anderson take responsibility for shining a laser at Police personnel. The defendant asked Mr Anderson to prepare an affidavit, in which Mr Anderson would say he did it, not the defendant. The pair then agreed to coerce a third person to make an affidavit, and have that person contact Mr Gamble-Mackesy’s lawyer when he had done so.

Sentencing

[6]	Given the confined nature of the appeal, little  need  be  recorded  here.  Judge Spear adopted a global 60-month starting point (having adjusted it for totality). The Judge reduced this by 15 percent for the defendant’s guilty pleas. The Judge declined to discount the sentence for remorse, concluding Mr Gamble-Mackesy was not remorseful.

Guilty plea discount

[7]	Mr Gamble-Mackesy contends he pleaded guilty early to all charges. Consequently, the Judge should have discounted the starting point by up to 25 percent, producing a sentence of three years and nine months’ imprisonment.

[8]	Mr Gamble-Mackesy pleaded guilty to each charge within three months of it being laid—or amended. So, Mr Gamble-Mackesy is correct his guilty pleas were prompt. However, plea-timing is not the exclusive consideration in this context. The Supreme Court has stressed:2
... credit … must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

[9]	That Court has also made clear assessment of the benefit to a defendant of a plea arrangement is a matter to be assessed in this mix:3

Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

2	Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
3	At [62].

[10]	The injuring with intent charge was initially laid as injuring with intent to cause grievous bodily harm. This reduction benefited the defendant, a point Judge Spear noted when fixing discount at 15 percent, because an intent to cause grievous bodily harm was readily inferable (given the nature and length of the assault, and its potential consequences).

[11]	Mr Gamble-Mackesy contends this analysis is not available in relation to the two charges of criminal nuisance, which were initially charged as injuring with reckless disregard for the safety of others. This because neither officer suffered an injury, so this element could not have been established by the prosecution. However, the unchallenged summary of facts in relation to the nuisance charges refers to “temporary blindness and pain” on the part of both officers, caused by a “high power laser … [pointed] directly into [their] eyes”, and “immediate discomfort and a burning sensation in their eyes”.

[12]	To injure means to cause actual bodily harm, in turn requiring only hurt or injury interfering with health or comfort in a more than transitory and minor way.4 That this element could be met was distinctly arguable. Mr Gamble-Mackesy therefore benefited from the withdrawal of potential jeopardy in relation to a more serious charge.

[13]	Strength of evidence is relevant too. The lead charge was the attempted perversion of justice in relation to the complainant, and all these telephone calls were recorded. Conviction of this offence was inevitable.

[14]	Consequently, it was open to Judge Spear to afford Mr Gamble-Mackesy less than full credit notwithstanding the timing of his pleas. This is not to conclude greater credit—say, 20 percent—would have been wrong. Rather, it is to recognise the discretionary nature of the assessment contemplated by the Supreme Court.

4  Crimes Act 191, s 2(1).   And, see the commentary of the learned  author Simon France (ed)   Adams on Criminal Law – Offences and Defences (looseleaf ed, Thomson Reuters) at [CA2.15.01].

Alleged remorse

[15]	Mr Gamble-Mackesy contends Judge Spear erred by not providing “a small discount for remorse”. Mr Gamble-Mackesy told his probation officer he was “very remorseful” and “sorry”. Mr Gamble-Mackesy wrote a letter of apology to the victims and was prepared to attend a restorative justice conference.

[16]	It was open to the Judge to conclude Mr Gamble-Mackesy was unremorseful, or at least decline discount for remorse after “robust evaluation of all the circumstances” for three reasons.5

[17]	First, Mr Gamble-Mackesy’s apology letter is brief and general in nature. It displays no obvious insight to his offending.

[18]	Second, Mr Gamble-Mackesy’s expressions of remorse to the probation officer are  unendorsed  by   the   pre-sentence   report.   Instead,   the   report   concludes Mr Gamble-Mackesy presents “a very high risk of re-offending” and “a very high risk of harm to others”. Special conditions were sought to protect the complainant from “serious violent offending” when Mr Gamble-Mackesy is released from prison.

[19]	Third, Mr Gamble-Mackesy’s offer to participate in a restorative justice conference sits awkwardly with his determined and multifaceted attempt to pervert the course of justice in relation to the complainant.

[20]	This conclusion makes moot a concern about the sentencing process—albeit one not raised in support of the appeal. The Department of Corrections prepared a memorandum apparently intended as an addendum to the pre-sentence report. The memorandum essentially said Mr Gamble-Mackesy had been difficult in prison, including by repeatedly contacting the complainant, despite not being allowed to. The report was given to the Crown and Mr Gamble-Mackesy only at sentencing. No objection was taken to its receipt.

5	Hessell v R, above n 2, at [64].

[21]	Late provision of such potentially prejudicial material is discouraged for obvious reasons.6

Result

[22]	The appeal is dismissed.

……………………………..
Downs J

6	The Judge referred to the report in concluding Mr Gamble-Mackesy was not remorseful. As will be apparent, it was not necessary to do so.