Thomas v R [2020] NZCA 257 (29 June 2020)

Last Updated: 7 July 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA98/2020 [2020] NZCA 257

	BETWEEN	CHRISTOPHER GREGORY THOMAS Appellant
	AND	THE QUEEN Respondent

Hearing:	21 May 2020
Court:	Cooper, Duffy and Edwards JJ
Counsel:	P J Kaye for Appellant Z A Fuhr for Respondent
Judgment:	29 June 2020 at 10 am

JUDGMENT OF THE COURT

1. An extension of time to appeal is granted.
2. The appeal is allowed.

100. The sentence of 14 months’ imprisonment is quashed and substituted with a sentence of 10 months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

• [1] Mr Thomas was sentenced to 14 months’ imprisonment for attempting to pervert the course of justice.^[1] He was found guilty of that charge following a jury trial in the District Court at Waitakere. The jury could not reach a unanimous verdict on an additional charge of injuring with intent to injure,^[2] which was subsequently withdrawn by the Crown.
• [2] The charges arose out of alleged offending that occurred on the evening of 23 November 2018. The Crown case at trial was that Mr Thomas grabbed the complainant and punched her seven or eight times in response to her questioning him about pornographic material on his phone. Four days later, and knowing that the police were involved, Mr Thomas sent the following text message to the complainant:

You need to tell the police you were very angry and were trying to smash a 4th windscreen with a big rock when I came in to prevent you from doing so you tried to get past me and we both tripped awkwardly and you hit your head against the side of the house

• [3] That was followed by a second message stating “[t]hat’s what happened”. The complainant refused to alter her testimony and gave evidence at trial consistent with her original police statement.
• [4] Judge Glubb fixed the sentence by taking a starting point of 18 months’ imprisonment, uplifting it by four months for previous convictions and the fact that the offending occurred while Mr Thomas was on parole, and then discounting it by eight months for the 12-month period Mr Thomas spent in custody having been recalled.^[3]
• [5] Mr Thomas appeals his sentence on the basis that:

(a) the starting point of 18 months was too high and was effectively set by reference to the withdrawn charge of injuring with intent; and

(b) the uplift of four months’ imprisonment for previous convictions and the fact that the offending occurred while on parole was also too high.

• [6] The appeal was filed 39 working days out of time. There is no prejudice to the Crown in granting an extension of time, and we do so accordingly.

Was the starting point too high?

• [7] There is no guideline case for attempting to pervert the course of justice. This Court has said that the real focus in each case must be on the intention behind the attempt and on its potential effect.^[4] Deterrence and denunciation are the overriding principles.
• [8] We start with the features of the offending. At issue in this case was a single text message sent in the morning, several days after the alleged incident, and when Mr Thomas knew the police were involved. The text did not contain an explicit threat or bribe to ensure the complainant’s compliance. There was no history of violence between the pair and any implicit threat arising from the charge of injuring with intent that was subsequently withdrawn also had to be put to one side.
• [9] Counsel for Mr Thomas compared this offending to that in the High Court decision of Judson v Police.^[5] The appellant in that case coached the complainant to give an alternative version as to what had occurred. A starting point of 18 months’ imprisonment for that offending was found to be within range.^[6] We accept that the offending in Judson was more serious than the current case, but the starting point adopted must be seen in context. The focus of the appeal was on the global starting point adopted for numerous charges, and the 18 months had been applied by way of an uplift.^[7] We consider little weight can be put on the starting point adopted in those circumstances.
• [10] In Maney v R, this Court summarised other relevant cases as follows:^[8]

(a) M (CA469/2013) v R in which the appellant had kept the complainant, his nine-year-old daughter, away from court for a week. A starting point of two and a half years’ imprisonment was upheld on appeal. The Court said that while there may not have been “overt intimidation or threats” the appellant had “exerted control over his daughter by virtue of his relationship with her”.

(b) Next, there is Miller itself, where the appellant had written a letter from prison overtly threatening two witnesses, both of whom were subsequently placed in witness protection where they were required to assume new identities and leave their friends and families. As noted earlier, this Court upheld the sentencing Judge’s starting point of three and a half years’ imprisonment.

(c) R v Potter, where the respondent had pressured the complainant to lie (which she did) in order to have charges against the respondent’s partner (Mr Tamaiparea) withdrawn. The sentencing Judge adopted a starting point of two years and three months’ imprisonment which, after giving a [discount] totalling six months for personal matters, was converted to a sentence of 10 months’ home detention. This Court dismissed an appeal by the Solicitor-General against that sentence.

(d) H (CA6/2016) v R, where the appellant was found to have made a “keep your mouth shut” signal to a witness, in the course of his trial. That witness then failed to come up to brief. A starting point of 18 months’ imprisonment was upheld on appeal in that case.

(e) Harting v R, where the charge arose out of a letter the appellant wrote to one of his adult stepchildren, A, on 30 July 2014. The letter suggested that the complainant should go to a lawyer and swear an affidavit saying that she wasn’t well and had made up the allegations against him. The complainant obtained a copy of the letter and passed it on to police. Mr Harting had also made three telephone calls to the stepdaughter in which he reiterated in a fairly aggressive manner his desire for the complainant to see a lawyer about withdrawing the charges. This Court held that the two-year starting point adopted by the sentencing Judge was “stern but not manifestly excessive”.

• [11] Maney involved a mother and son who conspired during a number of telephone discussions to get the complainant to change his evidence regarding an assault inflicted by the son. This Court found the starting point of two years and three months was too high.^[9] Drawing on the last of the decisions reviewed above, Harting v R, this Court found a starting point of no more than two years could have been justified.^[10]
• [12] More recently, in Vela v R, this Court said that no more than the 18-month uplift applied in that case could have been justified for the attempting to pervert the course of justice charge.^[11] The defendant in that case had also been found guilty of causing grievous bodily harm with intent to cause grievous bodily harm. The victim was the defendant’s partner and the lead offence involved a very serious assault to the victim’s head and face resulting in hospitalisation and long-lasting effects. The victim subsequently obtained a protection order against the defendant. While in prison, the defendant made over 1000 calls to the victim, repeatedly asking her to help him by changing her story because he was looking at a long prison sentence. In one of those phone calls, the victim told the defendant that a neighbour would be giving evidence implicating him. In a subsequent phone call the defendant told the victim to speak to the neighbour and tell him to “shut the fuck up”. It was those two calls that formed the basis of the attempting to pervert the course of justice charge.
• [13] We consider the surrounding circumstances of the offending in Vela make it more serious than the current case. Like many of the cases reviewed above, Vela involved physical violence which was discrete offending but was nevertheless related to the attempting to pervert the course of justice charge. That is not the case here —the attempting to pervert the course of justice charge stood alone. While there is nothing to suggest that the Judge in this case was taking into account the withdrawn charge of injuring with intent, this point of distinction needed to be reflected in the starting point adopted. Violent offending associated with an attempt to get a complainant to change his or her mind acts as an implicit threat underpinning the attempt. We agree with counsel for Mr Thomas that the absence of such a threat made Mr Thomas’ offending less serious than in many of the cases we have reviewed.
• [14] Overall, we consider the starting point of 18 months’ imprisonment was outside the acceptable range for the offending at issue in this case. We return at the end of this judgment to consider whether that gave rise to a manifestly excessive sentence.

Was the uplift of four months’ imprisonment too high?

• [15] Mr Thomas has 15 previous convictions, the most serious being a murder conviction from 2002. He was first paroled in May 2013, then recalled to prison in October 2014 for breaching his release conditions. He was released in March 2015, and then recalled again for offending in August 2015. That offending related to charges of wilful damage, common assault, and breach of release conditions. Mr Thomas was recalled to prison again as a result of the current offending. He spent approximately 12 months on recall awaiting sentence.
• [16] Prior convictions and offending while on parole are aggravating factors to be taken into account under s 9(1)(c) and (j) of the Sentencing Act 2002. As this Court has said on previous occasions, where the offender is recalled to prison, care must be taken to ensure the uplift applied does not amount to double punishment.^[12] Unlike the position with pre-sentence custody, time spent in prison as a result of a recall is not taken into account in calculating the sentence expiry date. It is appropriate therefore to apply a discount to reflect the time an offender spends in custody as a result of being recalled.
• [17] In this case, the Judge applied a four-month uplift for Mr Thomas’ previous convictions and the fact that he was on parole. This was one month higher than the uplift sought by the Crown and represented a 22 per cent uplift on the 18-month starting point. The Judge then discounted the sentence by eight months, being 66 per cent of the 12-month period Mr Thomas had spent in custody having been recalled.
• [18] We consider the four-month uplift applied by the Judge in this case was too high. An uplift could not be justified for Mr Thomas’s prior criminal history. The Judge did not identify the particular convictions he relied on in applying an uplift. The Crown submits that Mr Thomas’s three convictions for breach of release conditions are relevant. However, we consider there is only a weak correlation between those convictions and the conviction for attempting to pervert the course of justice. More importantly, for two of those offences, Mr Thomas was sentenced to come up for sentence if called upon. For the third, he was sentenced to two months’ imprisonment. An uplift of four months’ imprisonment for those convictions is disproportionate to the original sentences imposed. As this Court has previously held, uplifts that exceed the original sentences are unlikely to be considered proportionate.^[13]
• [19] That just leaves the question of the uplift for offending while on parole. We accept that an uplift was appropriate in this case. Mr Thomas had been recalled on two previous occasions and an uplift was required to reflect the principle of deterrence.
• [20] However, we do not consider the quantum of the uplift (22 per cent) could be justified in this case. It is true that uplifts of 22 and 23 per cent respectively were applied in both Vernon v R and Waterworth v R.^[14] But in both those cases the uplift was also for previous convictions for similar offending. Here, the uplift relates only to offending while on parole. Given the nature of the prior offences leading to recall, and the nature of the current offending, we consider an uplift of at most one or two months could have been justified to reflect the fact that it was offending while on parole.
• [21] We do not consider the excessive uplift adopted in this case was then corrected by the discount applied for the time spent on recall. The Judge applied a 66 per cent discount of the actual time Mr Thomas spent on recall. That discount was appropriate and in line with the discounts applied in other cases.^[15] It did not balance out the excessive uplift applied. The net effect of the uplift and the discount applied by the Judge is that the risk of double punishment remained.

Was the end sentence manifestly excessive?

• [22] As this Court has said on many occasions, the focus of an appeal against sentence is on the end sentence imposed rather than the individual components, or the methodology by which that sentence is fixed.^[16]
• [23] Standing back and considering the sentence as a whole, we are satisfied that the excessive starting point and uplift applied by the Judge tipped this sentence into the manifestly excessive realm. We consider a sentence of 10 months’ imprisonment was the least restrictive sentence available in the circumstances.^[17]

Result

• [24] An extension of time to appeal is granted.
• [25] The appeal is allowed.
• [26] The sentence of 14 months’ imprisonment is quashed and substituted with a sentence of 10 months’ imprisonment.

Solicitors:
Crown Law Office, Wellington, for Respondent

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^[1] R v Thomas [2019] NZDC 22805; and Crimes Act 1961, s 117(e).

^[2] Section 189(2).

^[3] R v Thomas, above n 1, at [11]–[13].

^[4] Miller v R [2014] NZCA 382 at [11].

^[5] Judson v Police [2018] NZHC 110.

^[6] At [14].

^[7] At [8].

^[8] Maney v R [2018] NZCA 193 at [20] (footnotes omitted).

^[9] At [19].

^[10] At [22], citing Harting v R [2016] NZCA 296.

^[11] Vela v R [2020] NZCA 153 at [37].

^[12] Sililoto v R [2016] NZCA 328 at [35] and [37], citing Oliver v R [2014] NZCA 285 at [9]; Te Aho v R [2008] NZCA 47 at [26]; and R v Paul CA409/05, 25 April 2006.

^[13] Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [41], citing Patel v R [2017] NZCA 234 at [61].

^[14] Vernon v R [2010] NZCA 308; and Waterworth v R [2012] NZCA 58.

^[15] O’Carroll v R [2016] NZCA 510; Tukuafu v R [2015] NZCA 251; Oliver v R, above n 12; and R v Griffiths [2018] NZHC 3132.

^[16] See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Feau v R [2019] NZCA 72 at [13]; and Vainu v R [2014] NZCA 375 at [26].

^[17] Sentencing Act 2002, s 8(g).