The Queen v Churchward [2006] NZCA 16 (2 March 2006)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA439/05

THE QUEEN



v



THERESA MARIE CHURCHWARD

Hearing: 21 February 2006

Court: William Young P, Williams and Gendall JJ

Counsel: M D Downs and C J Boshier for Crown
P D Stevens for Respondent

Judgment: 2 March 2006

JUDGMENT OF THE COURT

A Leave to appeal against sentence is granted.

B The sentence of 250 hours Community Service is quashed and in lieu thereof the respondent is sentenced to nine months imprisonment with leave to apply for home detention and deferral of the commencement of her sentence to the earlier of two months from the date of delivery of this judgment or the date on which her application for home detention is determined.

REASONS

(Given by Williams J)

[1]	Following a short trial in the Wellington District Court the respondent, Ms Churchward, was, on 11 August 2005, convicted by a jury on one count of attempting to pervert the course of justice between 8 - 12 January 2005 by threatening two persons with violence if one did not make a further statement to the Police that Ms Churchward’s then partner, a Mr Peacock, did not commit assault.
[2]	On 20 October 2005 Judge Behrens QC sentenced Ms Churchward to 250 hours community service.
[3]	The Solicitor-General applies for leave to appeal against that sentence on the ground it was manifestly inadequate and wrong in principle.

Facts

[4]	As shown by the sentencing notes and the Solicitor-General’s submissions, on New Year’s Day 2005 Mr Peacock struck a Mr Forrest in the face with a bottle causing him a nasty wound. Mr Peacock was charged with wounding with intent to injure. He is now serving a lengthy sentence of imprisonment for the offence.
[5]	On 9 January 2005 Ms Churchward sent a text message to Mr Forrest’s partner, Ms Clifton, following that up with a call to Ms Clifton wanting to know "if David [Forrest] would sign a statement saying Tim [Peacock] didn’t do it" as otherwise Mr Peacock would be imprisoned. She asked to speak to Mr Forrest. She sent a text message the next day repeating the request and then repeatedly called the mobile phone without response. Ms Clifton reported these occurrences to the Police and, while she was at the police station, she received a call, overheard at her request by Police, from Ms Churchward, seeking an affidavit from Mr Forrest saying Mr Peacock did not assault him but that if Mr Forrest would not comply Mr Peacock "would hold a grudge forever".
[6]	Ms Churchward’s statement to the Police admitted the telephone contact but was otherwise wholly exculpatory. She did not give evidence at trial.

Sentencing remarks

[7]	The Judge took the view that it was only in the telephone call overheard at the police station that threats were made which resulted in the respondent’s conviction.
[8]	After reviewing authority, particularly R v Barratt CA164/01 27 August 2001, the Judge took the view Ms Churchward’s offending was not particularly serious. There was a lack of premeditation and no more than a request for an affidavit, coupled with Ms Churchward’s belief that the evidence to be given at Mr Peacock’s trial would otherwise be false. So, Ms Churchward was "not in a situation of threatening someone to not give evidence of the truth, ... rather you were, in the end, making veiled threats that someone should tell the truth".
[9]	After acknowledging imprisonment is the usual sentence for convictions for attempting to pervert the course of justice, the Judge took the view that the respondent’s personal circumstances were sufficiently compelling a prison sentence should not be imposed. The personal circumstances included her hopes of employment reinstatement and pressures from Mr Peacock and others and her use of drugs and alcohol. That led the Judge to conclude "I do not really think that you really meant or understood that what you were doing was perverting the course of justice". Prison, he said, in those circumstances, would be unjust and unfair.

Submissions

[10]

For the Solicitor-General, Mr Downs submitted the Judge was in error in the remarks cited since Ms Churchward’s conviction necessarily meant she had wilfully undertaken the conduct described. The Judge’s remarks, Mr Downs submitted, were inconsistent with the verdict and his minimizing of the offence overlooked the length of time over which, and the number of occasions on which, Ms Churchward had contacted or attempted to contact Mr Forrest and his partner. It was irrelevant, Mr Downs suggested, for the Judge to take the view the respondent saw her actions as designed to elicit the truth, particularly given the lack of evidence or any statement to that effect: R v Taffs [1991] 1 NZLR 69, 73. Ms Churchward, he noted, did not encourage Mr Forrest or his partner to attend Court to give what she saw as truthful evidence but sought the provision of an affidavit to avoid the prosecution proceeding.

[11]

He submitted Ms Churchward’s personal circumstances were neither exceptional nor special when considered in light of many another accused and he noted the pre-sentence report to the effect that the respondent continued to maintain her innocence and expressed no remorse. The offending was, therefore, he submitted, too serious to warrant community work relying on the following remarks of this Court in R v Hillman [2005] 2 NZLR 681 at [6], [7] :

[6] Any attempt to dissuade a witness from giving evidence strikes at the administration of justice and must be met by the Courts with a stern response. In assessing the seriousness of the criminality involved in the particular case it is helpful to refer to three sentencing appeal decisions in this Court. The first is R v Ormsby (CA 80/79, 4 September 1979). In that case Ormsby sat down beside a witness who was waiting to give evidence and asked in a very threatening way whether the witness was intending to drop the charges. The dissuasion succeeded and the witness refused to give incriminating evidence. A sentence of three years was upheld. The second is R v Laugalis (CA 277 and 278/83, 3 May 1984). In that case Laugalis had been sentenced to four years’ imprisonment for 41 counts of theft by misappropriation and a cumulative sentence of three years’ imprisonment for attempting to defeat the course of justice by inciting an undercover constable who had been deployed because of a concern that Laugalis might make such an attempt to threaten or bribe witnesses and jurors in Laugalis’ then forthcoming trial. On the totality principle the overall sentence of seven years’ imprisonment was reduced on appeal with two and a half years being allocated to the charges of attempting to defeat the course of justice. The third is R v Monika (CA 139/90, 20 November 1990). In that case Monika was facing a charge of burglary of a house. He and some others returned to the house, severely damaged the property and threatened the occupants and a sentence effectively of three years’ imprisonment was upheld.
[7] In those three cases three years was taken as the benchmark for what was very serious offending of its kind. We are satisfied that by comparison the sentence of three years in this case must be held to be excessive and should be reduced to 18 months’ imprisonment. In doing so we emphasise that in all cases of this kind a condign and deterrent sentence is required because of the nature of the offending, striking as it does at the proper administration of justice, and with the additional factor in this case that the appellant was influenced in his conduct by staunchness to his gang allegiance.

[12]

Decided in 1992 (though not noted in the New Zealand Law Reports until 2005), Hillman has frequently been followed: R v Gemmell CA257/96 2 October 1996, R v Clutterbuck CA372/99 17 November 1999 at [12], [13], R v Going CA358/99 1 February 2000 at [7] and R v Spratt CA142/05 8 September 2005 at [30] are examples. Mr Downs accordingly submitted that a sentence of 12 months imprisonment would have been appropriate but that, this being a Solicitor-General’s appeal and Ms Churchward having now completed part of her sentence, some allowance could properly be made for those factors.

[13]

Mr Stevens submitted the sentence was appropriate and according to principle. All the circumstances on which Mr Downs relied had, he submitted, been before the Judge. Barratt was distinguishable. There was only one telephone call where contact was made. There were extenuating circumstances, not least that Ms Churchward has now completed 94 hours of the sentence.

Discussion

[14]	As has been repeatedly observed in this Court and the courts below, any attempt to disturb the process of administration of justice is to be deplored and, following conviction, is, in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.
[15]	Ms Churchward consistently attempted over a period of days to contact the complainant in a case involving a very serious assault by the respondent’s partner, with the intention that Mr Forrest should alter his evidence. That she may have believed any evidence so altered would be the truth was not to the point. By the means she employed, she attempted to stifle prosecution of her partner. Protection by the Courts of the course of justice and punishment for those who wilfully attempt to pervert it is so important an issue that the personal circumstances of those who engage in such conduct is only to be given modest weight at best, perhaps, reducing to a degree a prison term of some length.
[16]	We are satisfied that in this case, though the Judge had presided at trial, he drew conclusions concerning Ms Churchward’s motivation which went beyond the evidence and as a result, with respect, both unduly minimized her offending and allowed her personal circumstances to weigh too heavily in the sentence imposed.
[17]	Leave to appeal should accordingly be granted and the appeal allowed.
[18]	The question accordingly becomes what sentence should be imposed in lieu.
[19]	In that regard, having regard to the authorities mentioned, there is force in Mr Down’s submission that the appropriate starting point for the length of the gaol term to be imposed on Ms Churchward is of the order of 12 months.
[20]	There are, however, significant mitigating features. First, Ms Churchward has now completed nearly 40% of her sentence. Secondly, her personal circumstances have changed substantially since sentencing: she is now pregnant with twins by a man other than Mr Peacock and expects to be confined in mid-August 2006. Third, this is a Solicitor-General’s appeal with the limitations on sentencing that necessarily entails.

Result

[21]

In the result, we conclude the appropriate sentence to substitute for the sentence of 250 hours community work is one of nine months imprisonment. However, given Ms Churchward’s circumstances, we are satisfied it is appropriate to grant her leave to apply for home detention. We are also satisfied that her personal situation is such as to amount to exceptional circumstances justifying deferral of the start date of the sentence to the sooner of two months from the date of delivery of this judgment or the date on which her application for home detention is finally determined.

Solicitors:
Crown Law Office, Wellington
P D Stevens, Masterton for Respondent