ROBERT JAMES CUMMINGS Appellant. THE QUEEN Respondent. RYAN WARREN GEARY-SMART Appellant. JACOB CHRISTOPHER GEARY-SMART Appellant

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA131/2015 [2016] NZCA 509 BETWEEN AND ROBERT JAMES CUMMINGS Appellant THE QUEEN Respondent CA132/2015 BETWEEN AND RYAN WARREN GEARY-SMART Appellant THE QUEEN Respondent CA134/2015 BETWEEN AND JACOB CHRISTOPHER GEARY-SMART Appellant THE QUEEN Respondent Hearing: 1 September 2016 Court: Counsel: Judgment: French, Miller and Asher JJ A Stevens for Appellant Cummings D J More for Appellant R W Geary-Smart J M Ablett-Kerr QC for Appellant J C Geary-Smart L C Preston and A R McRae for Respondent 20 October 2016 at am JUDGMENT OF THE COURT CUMMINGS V R, RW GEARY-SMART V R AND JC GEARY-SMART V R [2016] NZCA 509 [20 October 2016]

2 A B The application for leave to adduce fresh evidence is declined. The conviction appeals are dismissed. C The sentence appeals are dismissed. REASONS OF THE COURT (Given by Asher J) Table of Contents Para No Introduction [1] The facts [8] Application for leave to adduce fresh evidence [17] The proposed affidavit [17] The issue [18] Our decision [21] Admission of the propensity evidence [25] Failure to direct as to the appellants statements [36] Inadequate party directions [38] Other criticisms of the summing-up [44] Unreasonable verdict Mr Ryan Geary-Smart [51] Unreasonable verdict Mr Jacob Geary-Smart [58] The sentence appeals [62] The Judge s approach [62] The sentence of Messrs Cummings and Ryan Geary-Smart [68] Our assessment [76] The sentence of Mr Jacob Geary-Smart [91] Conclusion on sentence [103] Result [104] Introduction [1] On the night of 10 September 2013 Justin McFarlane was sleeping in the isolated farmhouse he occupied 20 minutes out of Oamaru. He was a farm worker, and due to start the morning milking at 4.30 am. The three appellants, Robert Cummings, Jacob Geary-Smart and Ryan Geary-Smart, together with an

3 associate, Steven Boskell, decided to visit him. He was known to some of them. They went out in one car, driven by Ryan Geary-Smart s partner, Ms McCormack. [2] It is common ground that all four of the men at various stages entered Mr McFarlane s home at about 2 am. After their visit Mr McFarlane was dead. He was found face down in the living room, his head wrapped in a sheet. He had suffered 11 diverse blunt force contacts to the head. It appeared he had been stomped on, punched and kicked, tied with electrical cords, and hit with a heavy heater. The pathologist considered that it was the cumulative effect of the head injuries that led to his death. The pathologist noted at least 20 other injuries to his body including three facial fractures, scrotal bruising and a full-thickness laceration to his elbow. [3] The three appellants and Mr Boskell were charged with the murder of Mr McFarlane. A jury trial, presided over by Gendall J, proceeded over nine weeks in the High Court at Dunedin. The Crown case was that each of the four men was a principal or a party to murder under s 168 of the Crimes Act 1961, or alternatively under s 167(b) of that Act. Of the four male defendants, only one, Mr Boskell, gave evidence. Each defendant through counsel during the trial, and in Mr Boskell s case also through his evidence, minimised his involvement in the events that led to Mr McFarlane s death. Ultimately all four male defendants were found to be guilty of murder. [4] Gendall J sentenced each of the three appellants and Mr Boskell to life imprisonment. 1 Messrs Cummings, Boskell and Ryan Geary-Smart were each given a minimum term of 18 years, and Jacob Geary-Smart a minimum term of 17 years. [5] Mr Boskell abandoned his appeal against conviction and sentence, and his case is not before us. Mr Cummings has appealed his sentence, 2 and Messrs Ryan Geary-Smart and Jacob Geary-Smart have each appealed both their convictions and sentences. 1 2 R v Boskell [2015] NZHC 286 [Sentencing notes]. Mr Cummings abandoned his appeal against conviction.

4 [6] Mr More, on behalf of Mr Ryan Geary-Smart, sought leave to adduce evidence from Mr Boskell on the appeal. At the trial Mr Boskell had given evidence, the overall effect of which was to minimise his involvement in any violence inflicted on Mr McFarlane, to maximise the actions of Mr Cummings inflicting violence, and also to involve Messrs Ryan and Jacob Geary-Smart. He now deposes that this evidence was wrong, and that he was the person who was responsible for the attacks to the head. [7] We have decided not to grant leave. To explain our reasons, and so we can discuss the detailed grounds of appeal against conviction and sentence, it is necessary to set out the facts in more detail. The facts [8] In the evening of 10 September 2013 the three appellants had gathered together in the Oamaru area having picked up Mr Boskell from out of town. As we discuss later, the background propensity evidence showed them all to have been variously involved in previous acts of intimidation and violence as a group. It was the Crown case that when the four were together they had a discussion about going to Mr McFarlane s isolated property for the purposes of stealing drugs and a motor bike. They did not contact Mr McFarlane and it was the Crown case that they intended to rob him. [9] They proceeded to travel to his address, with Ms McCormack driving. Messrs Boskell and Cummings went to the door of the house and knocked, while the Geary-Smarts and Ms McCormack waited in the car. [10] On being awakened by the knocking Mr McFarlane met Messrs Boskell and Cummings at the door and they all went inside the house. Cannabis was demanded and it appears that a quantity was given to them by Mr McFarlane. The two then proceeded to attack Mr McFarlane, and to inflict on him the various injuries we have referred to. For part of the initial attack Mr McFarlane was sitting on a chair. A considerable amount of blood was found where his head had been resting against the back of the chair. Part way through the attack both Messrs Jacob and Ryan Geary-Smart left the car and entered the house. They then participated in the

5 ongoing attack to a degree that we will discuss later in the judgment. It seems clear that Mr McFarlane suffered a number of injuries in the initial stage of the attack and then suffered further injury after the Geary-Smarts entered the house. It seems clear also that he was conscious when the Geary-Smarts entered the house. [11] It seems that a fire shovel and a golf club were used as weapons against Mr McFarlane at some stage. Mr McFarlane was attacked while he was lying face down on the floor. He appeared to have been stomped on and there were distinctive shoe pattern marks on the upper left side of his back and other marks on his upper left arm and head area. He was finally left lying on the ground with a sheet over his head and two black electric cords around his body and neck, one of which was attached to a heater. [12] The appellants searched the home. When they left they took with them a quantity of cannabis. Mr Jacob Geary-Smart received the keys to Mr McFarlane s car and went outside and endeavoured to start it. Ultimately after the alarm had been disabled, the car was started. [13] Mr Jacob Geary-Smart and Mr Boskell drove off in Mr McFarlane s car and the other three left in Mr Ryan Geary-Smart s car. Ms McCormack, who had been outside throughout, drove the vehicle. They drove erratically and at speed and ultimately Mr McFarlane s car was parked at the side of the road and set on fire. All five then proceeded in Mr Ryan Geary-Smart s car. They attracted the attention of a police car, and for a period there was a chase. The occupants of the vehicle threw items relating to the murder scene out of the window, including the golf club, a small silver case containing remnants of cannabis, and Mr McFarlane s car keys. Ultimately they all returned to Oamaru and their respective homes. [14] Mr McFarlane s body was found in the early morning by a co-worker who had arrived to wake him up for work. It was the police case that in the days following the murder the four men disposed of various items of clothing through burning them and washed other items.

6 [15] It was the evidence of the pathologist that the major operating mechanism of death was most likely to have been raised pressure and bleeding to the brain following external blunt force injury to the head. There were no injuries to Mr McFarlane s knuckles or fingers to indicate that he had been involved in inflicting blows. [16] Messrs Boskell and Ryan and Jacob Geary-Smart made statements to the police. Mr Boskell said that the plan was to go to the victim s house to get the dope and maybe give him a couple of thwacks and that he hit him in the head with a beer bottle and the side of his body with a fire poker and watched him while the others searched the address. Mr Ryan Geary-Smart stated that while he went to the scene and saw the victim, he did not know him and never touched him. Mr Jacob Geary-Smart said that he had gone inside the house when he heard banging and that he had thrown a television set at the wall while Mr McFarlane was sitting in the chair, to stop him looking at him and seeing his face. He stated that he never touched Mr McFarlane and that he drove off in Mr McFarlane s car. Mr Cummings declined to make a statement. Application for leave to adduce fresh evidence The proposed affidavit [17] Mr Boskell, in his new evidence presented in his affidavit filed in this Court, states that he had been in a relationship with a female associate of Mr McFarlane s. He claims that this associate told him that Mr McFarlane had beaten her up, and that he had said I would get him (him being Mr McFarlane). He did not tell the others about this agenda. In his new affidavit he recounts what happened in the house. He states that some of the evidence he gave at the trial was incorrect. He sets out an account of events which involves him personally carrying out all the assaults on Mr McFarlane. He indicates that he stayed on after the others had all left and continued to attack and assault Mr McFarlane. He goes on to depose that other assaults that the police alleged were carried out by the other defendants were in fact not carried out by them.

7 The issue [18] Approaching the question of whether to grant leave, we are mindful that the mere fact that a complainant or witness recants does not make his or her trial testimony unreliable or mean there must be a retrial. 3 A Court is not bound to accept a recantation. It will look at it critically. We bear in mind the observation made by the English Court of Criminal Appeal in R v Flower: 4 Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. [19] Needless to say there are occasions when a recantation is true. A critical question in assessing such evidence is the appellate Court s assessment of the credibility of the recantation and the new evidence. If the recantation is not, in the Court s view, credible, the appeal on this ground will be dismissed. If there is doubt, a retrial will be required. In certain exceptional circumstances, where the appellate Court is satisfied that the complainant s recantation is true and that is conclusive of the appeal, an acquittal may be entered. 5 [20] Therefore, we are sensitive to the possibility that Mr Boskell may have now decided to tell the truth, and may have lied in his original evidence to achieve the best outcome for himself. We are also sensitive to the possibility that now that he is convicted and sentenced and perceives he has nothing to lose, he may make up a version of events to help his former associates. Our decision [21] The following observations can be made about Mr Boskell s evidence: (a) No satisfactory evidence is given by him to explain why he has reversed his position from that taken in the trial. A submission made by Mr More, counsel for Mr Ryan Geary-Smart, that he might wish Hamon v R [2013] NZCA 540 at [62]. R v Flower [1966] 1 QB 146 (Crim App) at 150. Hamon v R, above n 3, at [62]; and R v Barr (Alistair) [1973] 2 NZLR 95 (CA) at 98.

8 to set the record straight now that he has nothing to lose was unsupported by any evidence from him. (b) The general mayhem of the homicide scene where there was blood found in different parts of the room and tipped and damaged furniture is more consistent with an attack by multiple offenders than by a single person. (c) It is inconsistent with Mr Boskell s claim that he was the sole attacker that Mr Cummings partially blood-stained shoeprints were found at four locations around or near the chair where Mr McFarlane was attacked to the head. In the expert s view the prints had been left by a shoe as a result of it carrying blood, rather than stepping into a deposited area of blood. (d) Mr Cummings shoeprint in mud was found on a board lying beside Mr McFarlane s body. That board had been struck twice violently by a golf club. A golf club was discarded by the group when the police were in pursuit. Mr Boskell had previously said in evidence that Mr Cummings had the golf club during the attack. (e) Mr Ryan Geary-Smart told the police that he was reluctant to use his car because he did not want it used in crimes, but later agreed to its use. This rather contradicts Mr Boskell s claim that the group had decided to go to Mr McFarlane s home to purchase drugs. (f) Mr Ryan Geary-Smith stated to a witness following the murder that he had nearly scissor-kicked Mr McFarlane s head off his shoulders. This also is inconsistent with the tenor of Mr Boskell s new evidence where he minimises Mr Ryan Geary-Smart s involvement. (g) Mr Boskell s statement that he was sleeping with the former female associate of Mr McFarlane s who Mr McFarlane had beaten up, which made him want to get Mr McFarlane, was unsupported by other

9 evidence, including the evidence of that female associate, who was called by the Crown. She had indicated in her evidence a friendship with Mr McFarlane, not hostility, despite a violent incident. There was nothing in her evidence to indicate that she had had any relationship with Mr Boskell, or any anger against Mr McFarlane or wish for revenge. [22] There is a further relevant matter. Mr Boskell was called for cross-examination before us. He was initially examined by counsel for the appellants. He accepted that he had given false evidence at the trial. At this sta ge in his evidence he was reminded by the Court of the privilege against self-incrimination. 6 It emerged that there were doubts about whether he had been fully advised of his privilege. It was arranged for independent counsel to speak to him before he continued with his evidence. After advice had been given by independent counsel about the privilege against self-incrimination and the dangers of giving evidence that might show him to be guilty of other offending, Mr Boskell refused to give any further evidence. [23] We have considered his new evidence carefully and what he did say in the witness box. His evidence does not approach the level of credibility, either inherent or contextual, that might persuade us that it should be admitted. To the contrary we have formed the view, based on the matters we have set out above that are inconsistent with what he now says, that he is lying. We decline to grant the application for leave to adduce Mr Boskell s fresh evidence. [24] We now turn to consider points raised in the appeal against conviction by Mr More, and Mrs Ablett-Kerr QC for Mr Jacob Geary-Smart. There are a number of general points they both raise. Admission of the propensity evidence [25] The parties were charged with murder both under ss 167 and 168 of the Crimes Act. Propensity evidence was called at the trial from a number of local 6 Evidence Act 2006, s 60.

10 Oamaru residents and witnesses. It related to eight incidents over a three-week period before the murder. The appellants and Mr Boskell were variously involved. [26] Justice Gendall gave two judgments regarding the propensity evidence, first a pre-trial ruling, 7 and second at the conclusion of the Crown case. 8 The incidents all involved both Geary-Smarts, save for what Gendall J in summing up called the fifth incident, which involved Mr Boskell, and the sixth incident, which involved Mr Ryan Geary-Smart but not Mr Jacob Geary-Smart. [27] On an overview, the incidents showed the involvement of Messrs Cummings, and Ryan and Jacob Geary-Smart in incidents involving violence and stand-over tactics and intimidation in the weeks before the murder. They were acting as a group to obtain advantages from others through threats. It is fair to say that Mr Ryan Geary-Smart was the most prominent of the intimidators, but Messrs Cummings, Boskell and Jacob Geary-Smart also featured to varying degrees. [28] It was the Crown case that the appellant s actions on the night of Mr McFarlane s death were a continuation of this pattern of behaviour. The Judge accepted that the evidence had shown that the appellants were acting as a group, some more than others, and this was of direct relevance and importance if the jury was to have a full picture of the lead-up to Mr McFarlane s death. 9 There were detailed defence submissions on the differences in the nature of the incidents, and the limited involvement of particular appellants that meant the probative value was limited, which the Judge did not accept and which did not persuade him. He also rejected an argument that the unfair prejudicial effect of the evidence outweighed the probative value. 10 [29] In his second ruling after the cases were closed and he was about to sum up the Judge noted that the Crown had chosen not to proceed with an alternative charge that the appellants, when they participated in the incident, were carrying out a R v Boskell [2014] NZHC R v Boskell HC Dunedin, CRI , 3 December 2014 (Ruling No 1 of Gendall J); and R v Boskell HC Dunedin CRI , 11 December 2014 [Reasons judgment]. R v Boskell, above n 7, at [75] and [82]. At [84].

11 common unlawful purpose under s 66(2) of the Crimes Act. 11 Defence counsel submitted that the propensity evidence should now be excluded. The Judge was again not persuaded. He considered that despite the s 66(2) allegations not being pursued little had changed. 12 There remained a level of similarity that meant the incidents bore directly on why the defendants went to Mr McFarlane s house on the night of September, and their actions at his house. 13 [30] Despite the detailed submissions for counsel to us on the point, we are unable to see any flaw in the Judge s reasoning. The previous incidents of intimidation and violence showed a tendency on the part of the appellants to gain benefits from vulnerable people by acting collectively and with Mr Boskell, and by threatening individuals from whom they sought advantage with violence, and on occasions by inflicting actual violence. This was relevant given that the goal of the defence counsel at the trial was to minimise the involvement of each defendant in acting aggressively towards Mr McFarlane, in assaulting him and in helping or encouraging the others. The background of physical intimidation made such defence arguments harder to sustain. [31] Mrs Ablett-Kerr QC for Mr Jacob Geary-Smart referred to a propensity decision that was given by Dunningham J in relation to the case against Ms McCormack. 14 She was charged as an accessory after the fact. This evidence as it related to her concerned three of the eight incidents. Ms McCormack had not been involved in the acts of intimidation but she had acted as the driver on at least one of the incidents. The Judge held that given that her act of driving was not in dispute, there was no basis for admitting the propensity evidence on that issue. 15 The evidence did not have any probative value in respect of whether she assisted the defendants with the purpose of enabling them to avoid arrest or conviction on the night of the murder Reasons judgment, above n 8, at [1]. At [11]. At [12]. R v Lawrence [2014] NZHC At [45]. At [50].

12 [32] We see this decision as of no assistance to the appellants. It was made by Dunningham J with knowledge of the ruling already made by Gendall J admitting the evidence against the appellants and Mr Boskell. It was entirely specific to the particular position of Ms McCormack, and we can see why Dunningham J thought that the intimidation evidence did not have any probative value in relation to the charge faced by Ms McCormack. [33] There was also criticism of the way in which Gendall J directed the jury on propensity evidence. It was argued that there was insufficient attention given in the summing-up to the purpose of the admission. However, the Judge gave detailed directions on the propensity evidence that were entirely orthodox. The Judge explained how the Crown sought to use the propensity evidence by arguing that there were similarities in the threats, intimidation and stand-over tactics involving degrees of violence. [34] He then went on to give the standard directions about the need for the events to be proven, the need to decide whether the individual defendants were involved, and the need to decide that there were the similarities alleged. There was a direction that the jury should not be prejudiced into thinking that because a defendant had acted badly, he also acted badly on the night in question. The Judge also set out the essence of the defence response to the propensity allegations. He directed that the jury would need to be satisfied the particular defendant concerned was involved in the incident. There is no basis for the criticisms that have been made. [35] We therefore reject the propensity grounds of appeal. Failure to direct as to the appellants statements [36] It was argued that the Judge erred in not fully directing the jury on the admissibility and weight to be given to the statements by one defendant in respect of actions of other defendants, relying on the hearsay nature of those statements when used against other defendants and s 27 of the Evidence Act [37] However Gendall J warned the jury repeatedly both during the evidence and during the summing-up as to the limited admissibility of the statements of the

13 defendants and how they could not be used against other defendants. The Judge explained this was subject to the rider that Mr Boskell s evidence at trial was admissible against all the defendants. The directions the Judge gave at the beginning of the summing-up were entirely orthodox and would have left no reasonable juror in any doubt on the topic. When the Judge later referred to the statements of Messrs Ryan and Jacob Geary-Smart and Ms McCormack he repeated the caution that they were only admissible against the defendant in question. 17 The jurors would have fully appreciated that they could not use a statement by one defendant against another defendant. Inadequate party directions [38] There was also criticism made of the Judge s party directions. First, it was suggested that the jury was not adequately directed on secondary party liability, in particular on the required intention, knowledge and acts of a defendant, and the relevance of the timing of that evidence. [39] Party liability fell only to be considered under s 66(1). Gendall J addressed the jury in orthodox terms on this issue. 18 Colour-coded question trail sheets were then given to the jury to guide them through the various questions. There were different colours for question trails as to liability as a principal and liability as a party. The party liability sheets were only to be considered if the principal liability sheets had resulted in negative answers. Importantly the question trial directed the jury to consider whether the appellants knew both the physical and mental elements of the essential facts of the offence to be committed by the principal. In our view the directions were adequate. [40] Second, Mrs Ablett-Kerr submitted that the Judge failed to adequately link the elements of party liability to the evidence against Mr Jacob Geary-Smart. This was said to be a significant failure because party liability was the primary basis for the Crown s case against him. Mrs Ablett-Kerr relied on the majority judgment in Ahsin v R, where McGrath J commented that in summing up it is necessary to Mr Cummings declined to make any statement to the police. The jury was given a green information sheet that set out the legal elements of principal liability for murder and s 66(1) party liability.

14 discuss how the law applies to each individual case, making clear to the jury how the law relates to the particular evidence against each defendant. 19 [41] Ahsin v R was a complex case of party liability. The Crown case was based on overlapping alternatives under s 66(1) and (2) of the Crimes Act. 20 In this context, the Judge s failure to draw a sufficient connection between the law and the evidence against the individual defendants and to explain which evidence related to liability under subs (1) and which to subs (2) raised a risk of jury confusion. 21 This error, in combination with other deficiencies in the summing-up and question trail, meant there was a risk the jury would have taken an overly general approach to the evidence and the elements of party liability. 22 [42] It would have been helpful for Gendall J to link the elements of party liability under s 66(1) to the evidence against Jacob Geary-Smart. However, we are satisfied that in the circumstances the Judge s directions were sufficient and did not raise a risk of jury confusion. After giving the general directions on party liability the Judge carefully and fairly summarised the evidence against each defendant and the competing Crown and defence cases. In respect of Mr Jacob Geary-Smart, the Judge gave a detailed overview of Mrs Ablett-Kerr s submissions on party liability: [Mrs Ablett-Kerr] said also there was no evidence that Mr Jacob Geary-Smart intended to assist others to inflict grievous bodily injury, that is really serious harm, on Mr McFarlane for the purposes of robbery, nor was there any evidence that his actions in throwing the television set or in taking Mr McFarlane s car were to assist others to inflict that grievous bodily harm and there was no evidence he intended to assist them by throwing the television or taking the car. [43] As we have noted, the Judge provided individual question trails to the jury. Further, we observe that defence counsel did not complain about the directions at the time. There was no significant failure to link the elements of party liability to the evidence Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [162]. At [163]. At [163]. At [163] and [201].

15 Other criticisms of the summing-up [44] It was argued that the jury question trails were inadequate, and there was insufficient opportunity for counsel to discuss them. Although the question trails may not have been finalised until shortly before the summing-up, they had been made available some days before and had been the subject of discussion. Given the length of the trial and the number of issues, the Judge s efforts to obtain feedback on the question trails seem to us to have been more than adequate. Indeed, we cannot see how he could have done more. When question trails are circulated well in advance, it will generally be the case that they are not finalised until shortly before the summing-up. The important point is that the Judge circulated a draft in good time, and got counsel s comments. [45] We reject also a criticism that the Judge had delivered the summing-up too quickly. We see nothing exceptional in the timing or length of the summing-up, and we note that the jury had the benefit of very full question trails and no complaint was made at the time. [46] There were further submissions that the Judge erred in failing to identify the competing cases of the defendants in relation to central issues before the jury. However a review of the summing-up shows no error in this regard. Gendall J s summary of the competing cases was fair and balanced, and there were clear references to the material issues that arose. Defence counsels submissions were summarised in a balanced manner. There was no duty on the Judge to canvass all matters put forward by counsel. [47] There was also criticism of a lack of a direction that the evidence of one witness relating to statements made by Mr Cummings was not admissible against other defendants. However the Judge made it clear that the evidence in question related only to Mr Cummings. There was no error in his treatment of the evidence. [48] It was also submitted that the Crown in its closing overstated the evidence legitimately available against Mr Jacob Geary-Smart, and advanced matters that were factually unsupported by the evidence. Mrs Ablett-Kerr suggested this was in part a consequence of the Crown adopting a group approach to the evidence. It

16 was said that the Crown should not have produced a timeline document that failed to distinguish between admissible and inadmissible evidence. There were various detailed submissions of inaccurate or unfair submissions by the Crown. [49] In our view these criticisms of the Crown closing are unwarranted. The Crown had to summarise eight weeks of evidence, and put the case fairly, carefully and fully in accordance with its duties of the Court. It did so over two days. Crown counsel was entitled to present the case from the Crown perspective, and to do so in firm and positive language. Mr Jacob Geary-Smart of course had a full opportunity through counsel to set out the opposing position, and this opportunity was fully taken. [50] There can be no criticism of the use of the timeline, which was obviously a useful device to help the jury get a clear understanding of the sequence of events. Indeed Mrs Ablett-Kerr conceded that this was so before the jury, albeit with the proviso that in some regards it was misleading, and indeed addressed the jury using it. We find that the Crown prosecutor s references to various documents and the comments made to the jury to be entirely within the bounds of acceptable submission. There were no instances of overstatement, but even if there had been some overstatement of matters of detail, there was a full opportunity for defence counsel to rectify that, and to make the Crown case look weak because of such overstatement. Unreasonable verdict Mr Ryan Geary-Smart [51] It was submitted that the verdict convicting Mr Ryan Geary-Smart of murder was unreasonable. In our view there was sufficient evidence for a reasonable jury to conclude that Mr Ryan Geary-Smart had been a principal to the murder of Mr McFarlane. 23 [52] There was a considerable body of evidence implicating Mr Ryan Geary-Smart. It was uncontested that Mr Ryan Geary-Smart entered the house during the night of the assaults on Mr McFarlane. Detailed evidence 23 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17]; and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [10(c)].

17 implicating Mr Ryan Geary-Smart was given by Mr Boskell at the trial. Mr Boskell stated that Mr Ryan Geary-Smart kicked, punched and stomped on Mr McFarlane and he was in the house when Mr Cummings said he was going to finish [Mr McFarlane] off. He also referred to Mr Ryan Geary-Smart ripping out the cord of the vacuum cleaner and using it to tie up the victim. [53] In his police statement Mr Ryan Geary-Smart stated that he was reluctant to allow the use of his car because he did not want it to be used in the crimes. The implication was that he knew crimes were to be carried out that night. [54] After the offending he had a sore foot, which could be seen as being consistent with him being involved in kicking Mr McFarlane. He gave inconsistent explanations about the cause of the injury. He burnt his shoes, pants and t-shirt and flushed needles down the toilet. His shoeprint with traces of blood was found in the middle of the room. [55] Mr Cummings girlfriend gave evidence that she heard Mr Ryan Geary-Smart say that he had nearly scissor-kicked Mr McFarlane s head off his shoulders. [56] Given that the injuries to Mr McFarlane s head caused his death, the jury would have had a proper basis for concluding that Mr Ryan Geary-Smart was guilty as a principal. If they were not so satisfied there was a very strong case that he had aided and abetted the murder. [57] We do not regard the verdict to be unreasonable and reject this ground of appeal. Unreasonable verdict Mr Jacob Geary-Smart [58] Unlike the position in relation to the other three defendants, there was no evidence of Mr Jacob Geary-Smart actually having physical contact with Mr McFarlane. It is not contested that he entered the house, picked up a heavy television set and threw it. Mr McFarlane was at that stage bleeding. In his statement to the police Mr Jacob Geary-Smart had said that he threw the television set at the wall because he did not want Mr McFarlane to see his face. At trial

18 Mr Boskell suggested that someone was standing on the cord when Mr Jacob Geary-Smart threw the television, so the television swung and went over or hit the wall. There is also uncontested evidence that Mr Jacob Geary-Smart received the keys to Mr McFarlane s car in the house, went to the car and after some trouble with the alarm, started it, and drove away with Mr Boskell. [59] Prior to the incident there had been texts between him and Mr Cummings saying that he was looking to get fukd up but he was short of cash. He told the police he agreed in the late night discussion to go to Mr McFarlane s house. The others wanted weed, but he was interested in taking a motor bike. [60] We agree with the defence submissions that the evidence did not establish that Mr Jacob Geary-Smart was a principal to the murder. However there was a good deal of evidence showing that he had encouraged and assisted. He was fully involved in the planning and lead-up. The throwing of the television and the taking of Mr McFarlane s car can be seen as acts of assistance. Clearly he was in the room for sufficient time to have the opportunity to support, encourage and assist. He was fully involved in the escape and attempts to cover up. The background, including the propensity evidence, supports the inference that he had the requisite intention. [61] We reject the submission that no jury applying the criminal standard of proof could reasonably have reached a guilty verdict on the murder charge on the evidence. Indeed in our assessment there was a strong case to show that Mr Jacob Geary-Smart was a party to the murder. This conviction appeal must fail. The sentence appeals The Judge s approach [62] The Judge in his sentencing notes commenced by summarising the facts, and the very significant impact on the victims. 24 He decided that life imprisonment was required for all of the defendants and rejected the argument of Mrs Ablett-Kerr that it would be manifestly unjust to impose a sentence of life imprisonment under s 102 of 24 Sentencing notes, above n 1, at [6] [18].

19 the Sentencing Act 2002 on Mr Jacob Geary-Smart. 25 He turned to the minimum period of imprisonment that he should impose on each defendant and adopted the two-stage approach to s 104 of the Sentencing Act set out in R v Williams. 26 He considered the purposes and principles of sentencing, and assessed the aggravating and mitigating features of the offending, finding that there were six aggravating features and no mitigating features. 27 He then turned to whether the factors set out at s 104 applied. [63] The Judge found that there were four factors that engaged s 104 of the Sentencing Act. These were unlawful entry into or presence in Mr McFarlane s home, 28 a murder occurring in the course of the commission of another serious crime (robbery or burglary), 29 a particularly brutal and callous murder, 30 and the vulnerability of Mr McFarlane. 31 [64] He then turned to consider the appropriate sentence for each of the four defendants. He determined that an appropriate starting point for the minimum term under s 103 of the Sentencing Act would have been 16 years imprisonment for Messrs Boskell, Cummings and Ryan Geary-Smart before turning to personal aggravating and mitigating factors. Mr Boskell was aged 18 at the time of the murder. After taking into account Mr Boskell s youth and a small discount for remorse, he considered that the end sentence for Mr Boskell should be 15 years imprisonment. 32 In relation to Mr Cummings, who was 22 years of age at the time of offending, had a previous record of violent offending and had demonstrated some remorse and willingness to alter his way of life, he concluded that the appropriate end sentence under s 103 would have been 15 years and nine months imprisonment. 33 In relation to Mr Ryan Geary-Smart he considered the appropriate At [24]. R v Williams [2005] 2 NZLR 506 (CA) at [52] [53]. Sentencing notes, above n 1, at [38] [43]. At [45]. At [46]. At [48]. At [51]. At [62]. At [72].

20 end sentence would have been 15 years and six months imprisonment. 34 each of these three defendants as principals in the offending. He treated [65] He saw Mr Jacob Geary-Smart as in a different position to the other three, because of his more limited involvement. 35 He concluded a starting point of 14 years and six months imprisonment was appropriate, boosted by six months on account of his offending history, but with a six-month discount for age (he was 22 years old at the time of the offending). This resulted in a minimum period of imprisonment of 14 years and six months. 36 [66] He then returned to s 104 and, because of the four s 104 factors he had identified, the minimum term had to be at least 17 years imprisonment. For Messrs Boskell, Cummings and Ryan Geary-Smart he considered that a one-year uplift was necessary to reflect their particular culpability, so there was an end minimum term of 18 years for each of them. 37 For Mr Jacob Geary-Smart he made no uplift, and sentenced him to a 17-year minimum term. 38 [67] There was an error in this approach. The sentence of Messrs Cummings and Ryan Geary-Smart [68] We first consider whether s 104 applied. We agree with the Judge that s 104 plainly applied to these two appellants, and indeed counsel did not suggest otherwise. However, for the purposes of the second step of whether a 17-year minimum term would be manifestly unjust, counsel argued that the appellants had been secondary parties to the offending and their culpability was less than a principal. Gendall J had clearly taken a different view. He noted that both Mr Cummings and Mr Ryan Geary-Smart were central antagonist[s] in the offending At [85]. At [89]. At [103]. At [65], [74] and [88]. At [99]. At [66] and [75].

21 [69] Counsel argued that there was insufficient further consideration of this topic, and an error made. For the reasons we now set out, we consider that the Judge incorrectly applied the two-stage test in R v Williams, and further that he under-assessed the culpability of these two appellants. Their culpability warranted a higher starting point for the minimum term. [70] In R v Williams there was a general discussion by this Court of how to determine a s 104 minimum term. 40 The approach that had been adopted in the High Court in that case, of comparing actual offending with that specified in s 104, was seen to give rise to difficulties. The Court considered a more straightforward way of proceeding was for the sentencing Court to consider the justified minimum period of imprisonment in two steps. First the Court would carry out the usual assessment of culpability by applying s For the purposes of this first step, the Court would take into account in the normal way the applicable aggravating factors, including those set out in s 104(1), as well as any mitigating factors. The Court would also have regard to the policy behind s 104 that the aggravating factors set out in that section are particularly serious. If the assessment of culpability for the offending and an offender s aggravating and mitigating factors resulted in a minimum term exceeding 17 years imprisonment, the minimum term reflects that assessment, and there would be no need to go to the second stage. 42 If it did not, then it would be necessary as the second question to decide whether the imposition of a minimum term of 17 years imprisonment by virtue of s 104 (which would effectively uplift the minimum term) would be manifestly unjust. The approach has been frequently followed, and has been recently discussed by the Full Court in R v Harrison. 43 [71] In this process the sentencing Court will bear in mind the provisions of s 103, which in addition to imposing the minimum term of 10 years imprisonment for all murders, sets out the need for the Court to impose a minimum term that holds the R v Williams, above n 26, at [52] [54]. At [52]. At [54]. R v Harrison [2016] NZCA 381 at [36] [42].

22 offender accountable, denounces the offending, deters the offender and protects the community. 44 [72] The Court will also have regard to other sentencing decisions and other cases to ensure reasonable consistency of outcome. 45 While the primary comparison is between the individual case and the s year minimum, such comparison is a necessary and important check. 46 [73] In this case the Judge did first consider and fix a notional mini mum term applying an orthodox sentencing approach under s 103. Then, however, he made what we respectfully view as an error. Because he determined that s 104 applied, he discarded the minimum terms that he had considered were appropriate (which were less than 17 years imprisonment for all offenders) and proceeded to treat 17 years as the starting point for the minimum term, and determine whether an uplift of that 17 years was appropriate. He decided an uplift to a minimum term of 18 years was appropriate for the defendants other than Mr Jacob Geary-Smart. [74] However, having assessed starting points of less than 17 years imprisonment at the first stage, he should not have then gone above that 17 years. The work of s 104 would have been done by pulling the minimum term up to 17 years imprisonment, and thereafter he should have proceeded to the second step of deciding whether the imposition of a 17-year minimum term was manifestly unjust. He should not have, as he did, considered whether the number and gravity of the s 104 circumstances warranted an uplift from 17 years and then imposed an uplift. [75] This does not mean that the sentences for Messrs Cummings and Ryan Geary-Smart, who have 18-year minimum terms, must be reduced to 17 years. For reasons that we now traverse, we consider that the assessments of sentence that the Judge carried out at the first stage were unduly generous to those appellants. They were too low Sentencing Act 2002, s 103(2). Robertson v R [2016] NZCA 99 at [80]. At [80]; and R v Howse [2003] 3 NZLR 767 (CA) at [63] and R v Bell CA80/03, 7 August 2003 at [9].

23 Our assessment [76] We proceed to carry out our own first-stage assessment of culpability, before turning to s 104. [77] An obvious aggravating factor, as the Judge recognised, was the element of home invasion. It is not clear on the evidence exactly what transpired when the appellants arrived at Mr McFarlane s home. Whether or not Mr McFarlane allowed Messrs Boskell and Cummings to enter, he was clearly in a position where he could have hardly resisted, given the arrival of two men at the door of his isolated home at approximately 2 am in the morning. Whether or not the initial entry was unlawful, the presence of the men became unlawful once the attack on Mr McFarlane commenced. The subsequent entry of Messrs Ryan and Jacob Geary-Smart was clearly unlawful. This is an aggravating factor listed in s 104(1)(c) so it deserves particular weight. [78] A second factor was that the murder showed a high level of brutality, cruelty and callousness. 47 There was a prolonged sequence of assaults. Mr McFarlane must have felt considerable pain and fear over many minutes as he was first punched and then ferociously attacked with various weapons. The attack was focussed on his head. It is clear that after he had been severely assaulted while sitting in the chair, he was still conscious when he fell or was pushed to the floor, where he was further assaulted. His injuries show significant damage to the head, but also other examples of extreme callousness and brutality, such as wounds to his arms where he tried to defend himself, and severe bruising around the scrotum where he has obviously been deliberately kicked or struck with a weapon. The only purpose of targeting the scrotum would have been to inflict pain. [79] We cannot accept the submissions from Mrs Stevens for Mr Cummings and Mr More that Messrs Cummings and Ryan Geary-Smart should be viewed as secondary parties and not principals. We have outlined the evidence of Mr Ryan Geary-Smart s individual acts of violence at [52] [55] above. In relation to Mr Cummings, Mr Boskell had given detailed evidence at the trial that 47 Section 104(1)(e).

24 Mr Cummings kicked, punched and stomped on Mr McFarlane when he was sitting in the chair. He said Mr Cummings was holding the golf club during the attack and when Mr Boskell left Mr Cummings said he was going to finish [Mr McFarlane] off. Mr Boskell said Mr Cummings later said skinhead I think I killed him. Mr Cummings girlfriend gave evidence that Mr Cummings told her he punched Mr McFarlane and put the sheet over his face. Mr Cummings partially blood-stained shoeprints were found around or near the chair and a shoeprint in mud was found on the board by Mr McFarlane s body. This board had been struck twice by a golf club. The Judge was entitled to see each as a central antagonist, and had set out earlier in his judgment the acts of violence. It was clear that the combination of their acts showed them to be liable with Mr Boskell as primary parties. [80] There is a third significant aggravating factor. The murder had been committed in the course of a serious crime, namely robbery or burglary, and this is another circumstance listed at s 104(1)(d). The group went to Mr McFarlane s property for the purpose of stealing his cannabis or motor bike. The group in fact took some cannabis, Mr McFarlane s car and various other items from the scene. [81] The Judge mentioned a further factor, being the particular vulnerability of Mr McFarlane. However, Mr McFarlane was an able-bodied man, albeit of small stature. The Judge, when he found this to be an aggravating factor, focussed more on Mr McFarlane being in a rural area without help or support, and one man against a number of other strong men. 48 He also mentioned how the victim was tied up in the course of the attack. We place no weight on this as an additional aggravating factor, as most victims are vulnerable to an offender s attack in one way or another, or become so during an attack and there was no particular innate vulnerability in Mr McFarlane s person. [82] However, we certainly agree that any of the first three factors identified by Gendall J were present, and to a serious degree. They warranted the application of s 104. They were all highly relevant to the first stage assessment of culpability, and combined they show a high level of culpability. 48 Sentencing notes, above n 1, at [42] and [49] [51].

25 [83] Other aggravating factors correctly identified by the Judge in addition to the three mentioned, included the effect on the victims of the murder. The loss and harm to Mr McFarlane s two surviving children, and his ex-wife, mother and sister, had been severe. 49 A further factor was the level of premeditation (although there was no finding of a plan to murder Mr McFarlane). 50 Nevertheless, the offenders had worked out a plan to travel to Mr McFarlane s property to steal from him. It can be assumed that violence was contemplated. In this regard there was a particularly chilling letter sent from Mr Cummings to Mr Ryan Geary-Smart, which read: I got a few plans skin for us to make some cash we just have to be smart about shit. No drinking aye brv you gota have a few with me mate for my late 21st we will be all good on the piss it can end 2 ways we could keep each other out of shit or get fucken legless and end up killing some nigger haha I say we risk it and see what happens lol. [84] We acknowledge this was an exchange between two of the offenders. However, all four were in close contact and working as a group, and in our view the letter can be seen as demonstrating their common approach to violence. [85] In assessing culpability generally, we take a more serious view of these aggravating factors than the sentencing Judge. It is significant that three of the s 104 circumstances existed as aggravating factors to a significant degree. The culpability of Messrs Boskell, Cummings and Ryan Geary-Smart was of a very high order. In our assessment an 18-year minimum period of imprisonment was appropriate. This is considerably more than the Judge s assessment. [86] It was an element of counsel s submissions that the Judge failed to identify with precision who had done what during the attack. However it is often the case in a group attack resulting in a death that it is not possible to definitively say who did what and in what sequence. Here, even if all the defendants had given evidence, the Judge would have been faced with conflicting accounts of what happened from a set of witnesses who were likely to be unreliable. While he could have gone into more detail on this topic, we can understand why the Judge expressed his conclusions in general terms. He was able to reach general conclusions on the level of responsibility, as he did, because he had heard all the evidence. In any event, as this At [40]. At [43].