Skelton v R [2011] NZCA 35 (24 February 2011)

Last Updated: 1 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA663/2010 [2011] NZCA 35

BETWEEN KAY HALTON SKELTON Appellant

AND THE QUEEN Respondent

Hearing: 7 February 2011

Court: Ellen France, Potter and Miller JJ

Counsel: G J King for Appellant M J Inwood for Respondent

Judgment: 24 February 2011 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by Potter J)

Introduction

[1] Following a late plea of guilty to one count of perjury on 20 July 2010, Kay Skelton was sentenced to two years eight months imprisonment by Judge Tompkins.[1] She appeals against her sentence on the grounds that it is manifestly excessive and inappropriate. She seeks that her appeal be allowed and that a short term of home detention be substituted, taking into account the period she has already spent in prison since 1 October 2010.
[2] The Crown’s response is that the sentence imposed was a proper one; that the appellant engaged in a sustained and calculated attempt to mislead the Family Court and such conduct requires a condign sentence.

Background

[3] The appellant had been involved in lengthy Family Court proceedings with her former partner over custody and access rights in relation to their young son. By mid-2006 when the son was aged six, interim parenting orders in favour of the father of the child, Mr Jones, were in place and a Family Court hearing in the matter was imminent.
[4] In May 2006 Ms Skelton contacted DNA Solutions Pty Limited, a Melbourne based laboratory capable of conducting paternity tests on DNA samples. She obtained a “do-it-yourself” DNA test kit from DNA Solutions. She obtained buccal swabs which she falsely labelled as coming from herself, her husband Brett and her son, and forwarded these to DNA Solutions in Melbourne seeking paternity analysis. The result of the analysis, based on the samples provided by the appellant, was that her husband was the biological father of her son. The analysis excluded the possibility that Mr Jones was the biological father of the child.
[5] The Family Court hearing was fixed for 31 May 2006. The appellant filed an affidavit with the Court seeking an adjournment and dismissal of the Family Court proceedings. In the affidavit she described having undertaken a paternity test and tendered in evidence a letter from DNA Solutions, Melbourne advising the result.
[6] The hearing proceeded. At the hearing the appellant gave evidence under oath about obtaining the paternity test, and testified to the buccal swabs she had obtained for the test.
[7] The buccal swabs she sent to DNA Solutions, Melbourne were subsequently seized by Police. They were sent to the Institute of Environmental Science and Research in New Zealand for independent analysis, along with a reference DNA sample from the appellant’s son.
[8] The result of this analysis established that the buccal swab sample sent by the appellant to DNA Solutions in Melbourne, labelled as a swab from her son could not have originated from the child and that the sample labelled in her name could not have originated from her.
[9] Once the falsity of her evidence was investigated and confirmed the appellant was charged in September 2008 with perjury.
[10] Ms Skelton entered a not guilty plea to the perjury charge and maintained that plea through a scheduled but adjourned trial, to the eve of a second trial. She finally entered a guilty plea on 20 July 2010, nearly two years after she was charged with the perjury offence.
[11] In the meantime, when it became apparent to the appellant that her dishonest scheme would not have the outcome she had planned of excluding the possibility that Mr Jones was the biological father of the child, she and her family abducted the child and kept him concealed for a period of some months in contravention of Family Court orders.
[12] The appellant was sentenced to three months imprisonment in 2006 for defying a Court order, following issue of a writ of habeas corpus. Subsequently, she and others involved were charged in relation to the abduction, and sentenced on 18 December 2008.

The sentencing decision

[13] After summarising the facts, Judge Tompkins noted that there is no tariff for perjury because: [2]

... as a number of the decided cases have stated, perjury can range, in its circumstances, between frightened persons who perjure themselves for misguided but perhaps understandable reasons, through to serious cases, such as this, involving calculated and orchestrated offending.

[14] The Judge said that a constant theme running through the cases referred to him, was that a conscious and deliberate course of perjury must be regarded as a very serious form of conduct.[3] He noted that all of those cases envisaged a starting point of imprisonment. He referred to R v Mackie[4] where in the context of perjured evidence given in a murder trial, four years was taken as the starting point. He referred to other cases where false affidavit evidence was involved and lesser starting points had been taken.
[15] The Judge then referred to Ms Skelton’s late guilty plea and noted that defence counsel accepted that a much reduced guilty plea discount was the only approach properly available in terms of this Court’s decision in R v Hessell[5] (which was the applicable guideline judgment at the time of sentencing).
[16] The Judge noted, with apparent approval, the Crown’s submission that with the undoubted need for general deterrence and the circumstances of this case, home detention was not a suitable sentence.
[17] He then referred to the defence submission that:[6]

... the detrimental effect of the almost decade-long sequence of events, triggered by the commencement of the custody dispute together with the effect of a number of personal difficulties and tragedies, in effect diminished Ms Skelton’s culpability for this offending at the time she committed the offence.

Further, that the stresses created by the prospect of losing her then only child meant that she was “desperate and unwell”, although the defence accepted that state of affairs had arisen almost entirely as a result of the consequences of Ms Skelton’s own choices and conduct.[7]

[18] The Judge rejected a submission by the defence that the offending had a relatively low level of potential consequence. He said the immediate and potential consequences of the unexpected production of the affidavit by Ms Skelton on the eve of the Family Court hearing were dramatic, placing suddenly and directly in real jeopardy Mr Jones’s access to his child and his involvement in the child’s entire future.

8. He next referred to the sentencing of Ms Skelton for her part in the abduction of the child. He noted that the abduction occurred some two and a half months after the perjury had occurred, and referred to the defence submission that the perjury and the abduction were related offending. He said that was true in the sense that both offences were intended to defeat Mr Jones’s claim to any future role in his child’s life but that in his view: [8]

... the High Court Judge’s sentencing comments mean that there is no room for the application of the totality principle to this sentencing. The learned High Court Judge specifically said that he put this offending completely to one side when imposing sentence for the abduction. I do the same.

[20] The Judge noted that Ms Skelton was in the relatively advanced stages of pregnancy but said that personal circumstances of the offender could be given only reduced weight in such a case. He noted that the High Court took “similar factors” into account when imposing the “lenient sentence” for the abduction offending at which stage Ms Skelton was the mother of a young infant. He said that he had not overlooked “both those factors” when reaching his determination.[9]
[21] The Judge considered a starting point of three years imprisonment to be appropriate on the basis that the offending was less serious than that in R v Mackie “... although not dramatically so”.[10] He said the starting point reflected “... the very conscious and deliberate way in which Ms Skelton went about conceiving and carrying out her dishonest plan”.[11] He allowed a discount of four months for the late guilty plea, but considered that no other discount was properly available. He said that Ms Skelton’s “... insight into, and remorse for, her offending, as opposed to her present predicament, is superficial”. [12]
[22] The end sentence imposed was two years eight months imprisonment. The Judge cancelled the community work sentence.

Dr van der Westhuizen’s report

[23] The appellant seeks that the Court receive under s 389(a) of the Crimes Act 1961, a report by Dr van der Westhuizen, Consultant Psychiatrist, relating to the appellant dated 18 October 2010. Mr King advised that because the report was not available at the sentencing date, 1 October 2010, an adjournment had been sought but declined. However, he had been unable to obtain any record of either the application or the refusal of the adjournment.
[24] The appellant submitted that it is necessary or expedient in the interests of justice for the Court to consider the report in the determination of the appeal, contending that the report is relevant to the issue of the appellant’s diminished culpability at the time the offence was committed in terms of s 9(2)(e) of the Sentencing Act 2002, and is generally relevant and probative to placing the offending in its proper context.
[25] The Crown opposed the report being admitted. While accepting that the evidence in the report is sufficiently credible or cogent, the Crown maintained that the evidence is not fresh because it could reasonably have been made available for sentencing.
[26] The report was not available at the time of sentencing, although it became available soon afterwards. It provides a detailed history in relation to the appellant and an assessment of her current state. We admit the report as evidence relevant on the appeal.
[27] However, we observe that Dr van der Westhuizen’s report was completed more than four years after the perjury offending and more than two years after the appellant was charged with this offending. The report states that it was emotionally very distressing for the appellant to talk about the offending and that she seemed at a loss to explain why she did it. Dr van der Westhuizen concludes that the appellant is affected by severe Adjustment Disorder with accompanying symptoms of depression and Post Traumatic Stress Disorder. But there is no suggestion that these conditions or any of them were causally linked to the perjury offending or even that they were present at the time of the offending. This is hardly surprising given that the report was prepared four years after the offending, when the appellant was in custody serving her sentence for the offending.

Grounds of appeal

[28] The appellant advances her appeal on four grounds, each of which we shall consider in turn.

Failure to apply the totality principle

[29] The appellant noted that the Judge expressly declined to apply the totality principle although he did cancel the remaining community work hours outstanding from the sentence for the abduction offending. The appellant submitted that it was absolutely correct for Priestley J to put the perjury allegation to one side when sentencing the appellant on the abduction offending, because at that time no conviction had been entered on the perjury charge.
[30] In sentencing for the perjury, however, the abduction sentence was highly relevant to the overall exercise and the totality principle should have been applied.
[31] Mr King accepted in the course of oral submissions, that the situation here does not fall strictly within the totality principle, but he noted that the perjury offending and the abduction offending had been committed within a period of three months, and were closely related. He submitted that this required the Judge to consider the overall situation, and that it was not appropriate to put completely to one side that the appellant spent three months in custody and successfully completed a sentence of nine months home detention and twelve months post detention conditions, in relation to the abduction offending. Further, that she has completed some of her community work and has voluntarily continued counselling (a letter from Link House Agency dated 14 September 2010 was submitted).
[32] The Crown submitted that the disclaimer by Judge Tompkins of the applicability of the totality principle, if anything worked to the appellant’s advantage. The appellant was the beneficiary of an intentionally lenient sentence for the abduction offending, she had the advantage of being treated as a first offender, and the sentencing Judge took no account of the appellant’s “disgraceful and contemptible” conduct in the Family Court.[13] The Crown submitted that had the two matters been dealt with together, which could have been the case had the appellant entered a prompt guilty plea to the perjury offending, it would have been open to the Court to impose a considerably longer effective term of imprisonment than that which the appellant has received.
[33] The essence of the totality principle is that where concurrent or cumulative sentences are imposed, in arriving at the appropriate sentence for several offences, the sentencing Judge must not only consider each offence individually but also assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of his or her conduct.[14] The totality principle applies not only to sentencing on a single occasion for related or unrelated offences, but also to successive sentences for connected events and successive but proximate sentencing for separate events.[15]
[34] The perjury offending and the abduction offending by the appellant were not offences of a similar kind, but they were proximate in time and connected events in that they were both part of the determined strategy pursued by Ms Skelton to exclude Mr Jones, the biological father of her son, from the child’s life. We consider it was necessary for the sentencing Judge to assess the reality of the situation, including the overall culpability of the offending and the previous sentences imposed and served. The approach properly taken by Priestley J on the abduction sentencing did not exclude the necessity for Judge Tompkins when sentencing for the perjury offending to “stand back and look in a broad way at the totality of the criminal behaviour”.[16] He also needed to consider whether her current personal circumstances required some recognition. In declining to consider these matters the Judge was in error. We return to this aspect later in this judgment.

No credit for personal mitigating factors other than the guilty plea

[35] The appellant submitted that the Judge gave her no credit for her personal circumstances whatsoever and that at the very least her personal circumstances were relevant to placing the offending in its proper context. Mr King referred to the defence submissions made on sentencing which were noted by Judge Tompkins.[17] Counsel submitted that there was sufficient material before the sentencing Court to justify those submissions being made by the defence and being accepted by the sentencing Judge. Counsel submitted that if the appellant’s personal circumstances had been properly recognised a starting point of less than three years may well have been adopted. He submitted that rather than being placed in the “calculated and orchestrated” category, Ms Skelton’s offending was that of a “frightened and misguided” mother.[18]
[36] The factors the appellant submitted should have been taken into account by the sentencing Judge, and appropriate credit given included:

(i) The appellant’s diminished culpability;

(ii) Her lack of any convictions predating this offending;

(iii) Her compliance with her previous sentence including continuing with counselling of her own accord;

(iv) Parenting and caregiving responsibilities especially to her two year old son B;

(v) B’s serious health issues and treatment needs;

(vi) The negative effects of separating a mother from her young child;

(vii) Supervised access arrangements in relation to her eldest son J under the direction of the Family Court which at the time of sentencing were progressing well; and

(viii) Her advanced state of pregnancy at the date of sentencing and that the pregnancy was high risk.

[37] The Crown submitted that the appellant’s suggestion that the Judge erred by not reducing her sentence for personal mitigating factors is flawed. Deterrence is to be at the forefront of judicial thinking in sentencing for offences such as perjury with the result that limited weight is to be given to an offender’s personal circumstances.[19]
[38] Judge Tompkins referred to the submissions of defence counsel in relation to the personal circumstances of Ms Skelton, but said that “... personal circumstances of the offender can be given but reduced weight”.[20] He also referred to the High Court having taken “similar factors into account” in sentencing for the abduction offending.[21] It is clear that he allowed a discount only for the guilty plea.[22]
[39] The issue of the personal circumstances of an offender on sentencing is one of weight.[23] The Judge needed to consider the personal circumstances of the appellant, even if his ultimate assessment was that no, or only limited weight should be given to them in the circumstances of the case.

[40] We therefore turn to assess the personal factors advanced by the appellant:

(i) We have referred to the appellant’s claim of diminished culpability in relation to Dr van der Westhuizen’s report at [24] and [27] above. The propriety of a sentencing discount for a mental condition is dependent on the offender establishing either:[24]

• A clear causal link between the condition and the offence (thereby reducing moral culpability for the offending); or
• That the sentence will weigh more heavily on the offender than it would on a person of normal health.

There is no evidence in Dr van der Westhuizen’s report or otherwise, as to the appellant’s mental condition in May 2006, nor any evidence that establishes a clear nexus between her mental condition and the perjury offending, so as to support a finding of diminished culpability. The perjury offending was premeditated and determinedly implemented over a period of time, involving deliberate dishonesty at every stage. There is nothing in the report that would impact on the Judge’s assessment that this was “calculated and orchestrated offending”.[25]

Further, while Dr van der Westhuizen opines in his report that Ms Skelton is presently suffering from severe “Adjustment Disorder”, has “symptoms of a Major Depression”, “seems to be making use of rather immature defence mechanisms” and suffers from “reactive emotional stresses with a resultant biological component”, he expressly states that there is no personality dysfunction. Nor is there any suggestion of mental illness that could be a factor requiring an adjustment on sentence. The report does not provide any material evidence on these aspects that was not before the District Court on sentencing.

(ii) The appellant has previously received credit as a first offender on the abduction sentencing. At most this is the absence of an aggravating factor.

(iii) Compliance with her previous sentence constitutes the absence of an aggravating factor. Although Ms Skelton continued voluntarily with counselling, she continues to maintain her innocence, stating to the Probation Officer who prepared the pre-sentence report that she changed her plea to guilty because of the lengthy Court process.

(iv)-(vii) Ms Skelton has given birth to two children since the perjury and abduction offending, the younger of whom was born after she was sentenced to imprisonment. Her eldest son J is now ten years old and we are advised, is in the care of his father, Mr Jones. At the time of sentencing Ms Skelton was exercising supervised access to J. B, the second child, is in the care of his grandparents. The youngest child is with the appellant in prison. It is inevitable that serious criminal offending by a child’s parent will result in hardship for the child. It is regrettable that as the result of their mother’s criminal offending the children must be separated from her and she from them. But these unfortunate outcomes are frequently experienced in relation to the children of criminal offenders. That factor cannot override the dominant purposes of deterrence and denunciation that apply in respect of perjury offending. As this Court said in R v Williams:[26]

... society cannot overlook serious offending by parents in order to save distress to their children. The principles of denunciation, deterrence and accountability cannot be ignored. This is not to say that mercy may not be prompted by domestic circumstances in certain cases.

While the circumstances for Ms Skelton’s children are unfortunate and for her the separation from her two older children that follows from her being in prison, is sad and painful, her circumstances are not out of the usual range. They are not so “particular” as to provide a basis for special, discrete mitigation or to render a sentence of imprisonment disproportionately severe in terms of s 8(h) of the Sentencing Act.

(viii) At the time of sentencing Ms Skelton was in an advanced state of pregnancy which was referred to in the pre-sentence report and noted by the sentencing Judge.[27] The child has since been born. There was no evidence before the sentencing Judge, and no subsequent evidence, of circumstances which would suggest this is a mitigating factor that necessitated a discrete discount under s 8(h) of the Sentencing Act on compassionate grounds.

[41] In summary, the personal factors advanced by the appellant, whether considered separately or cumulatively, do not justify a weighting that would result in any, or any significant discount in her sentence. This is particularly so when the gravity of the offending requires that the overriding principle in sentencing be denunciation and deterrence.[28]

Delay

[42] The appellant advanced as a mitigating factor the delay between commission of the perjury offending and the appellant being charged.
[43] The two year delay was not exceptional. The falsity of the DNA results tendered by the appellant was quickly revealed but a full investigation had to follow. There is no evidence of prejudice to the appellant from the period between her being arrested and charged, and we note that a further period of nearly two years elapsed before the appellant saw fit to enter a guilty plea to the perjury charge. This does not seem to be a factor considered by the sentencing Judge but we reject it as a mitigating factor.

Guilty plea

[44] The appellant received a discount of four months (eleven per cent) for a guilty plea entered twenty months after she was first charged, on the eve of what would have been her second trial. The appellant submitted that a greater discount for the guilty plea was available, citing the judgment of this Court in R v Hessell.[29]
[45] We do not accept that submission. This Court in Hessell stated that a ten per cent reduction was warranted if the guilty plea was entered three weeks before the commencement of trial, and that a small reduction of less than ten per cent may be warranted if a guilty plea is entered after the commencement of trial or hearing. The extent of the reduction would depend on the stage at which the plea was entered and the degree to which it prevented further trauma, stress and inconvenience and saved resources.[30]
[46] In this case the appellant’s plea was extremely late, and in the face of an overwhelming Crown case. There were no significant benefits from the plea at the stage it was entered as all the preparation for the trial had been completed and the evidence at trial was to be given by professionals for whom no significant trauma or stress were saved. The appellant expressed no remorse for which a discrete allowance could be made. The eleven per cent discount can only be described as generous.

Conclusions

[47] The starting point for sentencing of three years taken by the sentencing Judge was well within range on the basis of the authorities.[31] Indeed, given the seriousness of this offending an even higher starting point could not have been criticised.
[48] As we have said, the discount of eleven per cent for the guilty plea was generous. To the extent that personal circumstances justified any discount by way of mitigation it could only have been minimal and was sufficiently reflected in the generous discount of eleven per cent allowed for the guilty plea.
[49] Applying the totality principle, it is necessary to stand back and look at the overall culpability of the offending, the previous sentences imposed and the whole reality of the situation.
[50] Both the perjury and abduction offending were serious criminal offending. The sentence of nine months home detention and three hundred hours community work imposed for the abduction offending was, as Priestley J observed, lenient. It appropriately took into account the three months spent in custody by the appellant following her defiance of the writ of habeas corpus. The appellant has not completed the sentence of community work.[32] In relation to the perjury offending, she continues to deny that she misled the Family Court.
[51] The sentence imposed by Judge Tompkins of two years eight months imprisonment for the perjury offending was within the range available to the Judge. When considered along with the sentence for the abduction offending, the aggregate sentences cannot be regarded as wholly out of proportion to the gravity of the offences viewed as a whole. We are satisfied the term of imprisonment imposed was appropriate.
[52] We agree with Judge Tompkins that a sentence of home detention was not appropriate in the circumstances of this case. The offending was too serious. The transitional provisions in s 57 of the Sentencing Amendment Act 2007 applied such that jurisdiction to impose a sentence of home detention existed notwithstanding that the nominal term of imprisonment was above two years. But as this Court stated in Hessell,[33] the higher the prison sentence would have been above two years, the less likely it is that home detention would be appropriate as an alternative sentence. A sentence of home detention would never have been appropriate in this case to reflect the sentencing principles of accountability, denunciation and deterrence.
[53] We note for the sake of completeness that the sentence of community work which Judge Tompkins purported to cancel, will be automatically cancelled on the release of the appellant from prison under s 78(7) and s 80(5) of the Sentencing Act.

Result

[54] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Skelton DC Hamilton CRI-2008-019-7272, 1 October 2010.
[2] At [12].
[3] At [13].
[4] R v Mackie (1998) 16 CRNZ 248 (HC).
[5] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298, (2009) 24 CRNZ 612.
[6] At [22].
[7] At [22].

8. [8] This is clearly a reference to the sentencing notes of Priestley J in R v Skelton, Headley & Taylor HC Auckland CRI-2007-019-6530, 18 December 2008 at [68]. Priestley J said “I also make it clear, so far as Mrs Skelton is concerned, that the lenient sentence I have imposed is in no way intended to fetter the hands of any judge who may have to sentence you on other matters in the District Court.” The sentence imposed was nine months home detention and three hundred hours community work which the Judge said reflected the previous sentence of three months imprisonment served by Ms Skelton for defiance of the habeas corpus order.

[9] At [27].
[10] At [28].
[11] At [29].
[12] At [30].
[13] R v Skelton HC Auckland CRI-2007-019-6530, 18 December 2008 at [33].
[14] Sentencing Act 2002, ss 84 and 85; R v Bradley [1979] 2 NZLR 262 (CA).
[15] R v Johansen (1997) 15 CRNZ 111 (CA) at 120.
[16] R v Bradley at 263.
[17] Refer [17] above.
[18] Refer [13] above.

[19] Wilkinson v R CA277/04, 16 December 2004 at [11] and [15]; R v Ahomiro [2007] NZCA 23 at [26]; R v Koura CA16/05, 24 May 2005 at [19].
[20] At [27].
[21] At [27].
[22] At [30].
[23] Hessell v R [2010] NZSC 135 at [37] and [43].

[24] R v Tapueluelu CA172/99, 29 July 1999 at [15] and R v Sabuncuoglu [2008] NZCA 448 at [22]- [27]. See also R v E (CA689/2010) [2010] NZCA 13.
[25] At [12].
[26] R v Williams CA23/05, 15 March 2005 at [20].
[27] At [27].
[28] Wilkinson v R at [11].
[29] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298, (2009) 24 CRNZ 612.
[30] At [15]-[18].

[31] Wilkinson v R; R v Ahomiro; Forrest v R [2010] NZCA 34; and R v Mackie [1998] 16 CRNZ 248 (HC).
[32] The sentence of community work was suspended during the appeal process.
[33] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [102].