Police v Knight DC Dunedin CRI-2011-012-4068 [2012] NZDC 584 (24 April 2012)

Last Updated: 7 January 2020

IN THE DISTRICT COURT AT DUNEDIN

CRI-2011-012-004068 CRI-2012-012-000434

NEW ZEALAND POLICE

Informant

v

JAMES MICHAEL KNIGHT PATRICIA EVELYN MANSELL

Defendants

Hearing: 24 April 2012

Appearances: Sergeant M Gasson for the Informant N L Rayner for the Defendant Knight C D Savage for the Defendant Mansell

Judgment: 24 April 2012

NOTES OF JUDGE M A CROSBIE ON SENTENCING

[1] James Michael Knight, you are 31 years of age, and Patricia Evelyn Mansell, you are 35 years of age. You are both here for sentence today. You are both charged with conspiring to pervert the course of justice and you, in addition, Mr Knight, are charged with Crimes Act 1961 assault.

[2] I have read counsel’s written submissions. I have heard from them today. I have heard from them previously and I have read the Crown’s written submissions also. The perverting the course of justice charge carries a maximum of seven years’ imprisonment, as I said. The Crimes Act assault carries a maximum of one year. In

POLICE V KNIGHT DC DUN CRI-2011-012-004068 [24 April 2012]

addition, Ms Mansell has related offending, being careless use and theft, quite separate that theft from 14 March theft of some chicken.

[3] But squarely the most significant offending is that of the conspiring to pervert the course of justice. What occurred was that on 21 September last year, you, Mr Knight, were at your home address in South Dunedin asleep. You had been drinking prior to going to bed. You, Ms Mansell, had been drinking with Mr Knight prior to driving to a friend’s address in Waimea Avenue and you were driving a Toyota Sceptre. On leaving your friend’s address at about 10.00 pm, you drove around a left-hand bend heading towards Riselaw Road. You lost control of the vehicle and you struck a parked Holden Commodore vehicle on the opposite side of the road. This caused damage to the front right of your car and substantial damage to the mid-right of the parked car, shunting it over the gutter onto the grass verge. You then continued to your home address.

[4] You got into bed beside Mr Knight, told him that you had crashed the car and that you would sort it out in the morning, and you went to sleep. At about 10.20 pm, the police arrived at the address. You, Mr Knight, answered the door and spoke to them. You said to them that you were the driver of the vehicle at the time of the crash. You were subsequently processed for driving with excess breath alcohol, because in fact you blew 1085 micrograms, and charged with careless driving for hitting the parked car. Your licence was suspended for 28 days.

[5] You appeared in this Court on 20 October and you were remanded for a week. You entered a guilty plea on 27 October and you were remanded to 15 December for sentencing. As a result of information that came to the police, you were both interviewed and you, Ms Mansell, acknowledged being the driver of the vehicle at the time of the crash. You said that you had discussed the events and decided to let Mr Knight continue with the blame.

[6] In explanation, you, Mr Knight, said you did not know why you said you were driving but it was probably to save your partner the hassle. You did not realise the effect of what you had done until the next day when you discussed it but believed there was no going back and you were sorry for wasting police time.

[7] In terms of the Crimes Act assault, the facts are relatively straightforward. The two of you had been arguing and it appears in the course of the afternoon had been drinking. At about 4.00 pm, your son came home at which point you, Ms Mansell, went out and you, Mr Knight, went to sleep off your day of drinking. About 6.30 pm, you woke to the sound of Ms Mansell knocking on the front door. You opened it. An argument ensued, resulting in you pushing her into the hall wall where she hit her back and head. She sustained no physical injuries. In explanation, you said that you and she had only had a verbal argument.

[8] In terms of the relevance of that offending, it is immediately relevant that in February of last year you were convicted of male assaults female and you were sentenced to community work and supervision; in December 2009, two charges of male assaults female, also to supervision; and 2009 also an assault on a child, so there is a history of violence.

[9] As I have said, I have read the Crown submissions and at the heart of what today is all about is the process that you both engaged in and agreed to continue in until the point of almost being sentenced. It strikes at the heart of everything that occurs in this place. The initial decision may well have been out of a false sense of loyalty. It may well have been out of drunkenness because as we know, even though you were not driving, you had 1000 micrograms under your belt which is, on anyone’s analysis, drunk. But you perpetuated that by continuing with the process, allowing yourself to be brought before the Court and almost to the point of being sentenced. Some people might ask what is wrong with that. Fundamentally, everything is wrong with that because if people engage in that sort of conduct, then the wrong people can be dobbed in, people can take responsibility for other people’s actions and escape culpability which is precisely what you have tried to do in terms of escaping disqualification and that is forlorn because I can disqualify you by reason of the driving being in relation to your offending.

[10] The Crown has hit it on the head by noting several appellate decisions, including one of Chisholm J in R v Allan where His Honour said it is usual for a sentence of imprisonment to be imposed and in that case His Honour would have

done so but for the attitude of the Crown. He said society and the police do not need to tolerate people like you who attempt to pervert the course of justice.

[11] The Crown also cites R v Morrison in which the Court of Appeal dismissed an appeal against a nine-month prison sentence, noting counsel referred to several decisions of the High Court in the field of drivers pretending they are someone else when apprehended. In several of these, non-custodial sentences were imposed. None of them, however, appear to have the present combination of circumstances: namely, alcohol-impaired driving, driving while disqualified, and a sustained attempt to defeat the course of justice by giving false particulars. It is for that combination of circumstances that the appellant was to be sentenced and for which he received a total of nine months’ imprisonment.

[12] Dealing with you first, Mr Knight, you would be in enough trouble today just on the assault because of that previous history that you have but the primary offending is the perverting the course of justice. The course of justice did start and it was almost completed so the starting point, in my view, and counsel really do not seek to persuade me otherwise, is a sentence of imprisonment.

[13] The Crown I think characterises it correctly by stating that the starting point is in the range of six to nine months so for you, looking at the aggravating and mitigating features of the offending, based on R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, the starting point will be nine months’ imprisonment. There will not be any uplift for previous offending of that kind because of course there is none but there needs to be an uplift for the separate and discrete offending of male assaults female and because of your previous I intend to uplift that by a further nine months, meaning that there will be 18 months’ imprisonment as a start before discounting for your plea.

[14] I will discount that by 25 percent and in the round I will sentence you to 14 months’ imprisonment. What I will do is impose the 14 months on both the charges. I have taken into account the totality principle. It follows that as the sentence is less than two years I can consider whether home detention is appropriate. There needs to be obviously consideration of the parity between the two of you and I will come to that in a moment.

[15] For you, Ms Mansell, the position is exactly the same on the perverting the course of justice. I regard both of you as equally culpable. You both decided that the course of justice should continue and that starting point will be nine months’ imprisonment.

[16] In terms of the careless use itself, there should be no uplift for that and my view of the theft is it is so incidental with a lack of relevant previous that there should be no uplift for that. You should be given credit for your guilty plea and I will bring that back to seven months.

[17] Home detention. For you, Mr Knight, I am ruling out home detention or any sentence short of that. You have ruled yourself out in terms of your attitude to it in a previous Probation report and this one. But in my view it would be wholly inappropriate to sentence you to anything short of imprisonment because it would send the wrong message. It would be an inadequate deterrent. Those who set out in a purposeful way to pervert the course of justice need to know that they will be held to account, especially when that course of justice is let to go as long as it has in this case. In all the circumstances, the sentence will be one of imprisonment in the form that I have imposed.

[18] For you, however, Ms Mansell, the sentence will not be one of imprisonment. The sentence will be home detention for one reason only and that is to be compassionate in respect of the child so in all the circumstances, you will be sentenced to a sentence of four months’ home detention. In my view, any less than that would be inadequate in terms of the purpose of that sentence. You will also be disqualified for a period of 12 months commencing from today.

[19] I am obliged to counsel for their assistance.

[20] On the other two incidental matters for you, you will be convicted and discharged.

M A Crosbie District Court Judge