R v Kendall HC Auckland CRI-2009-004-007655 [2011] NZHC 1102 (9 September 2011)

Last Updated: 16 October 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-004-007655}

THE QUEEN

v

GRAEME JOHN KENDALL

Appearances: N F Flanagan for Crown

G C Gotlieb for Prisoner

Judgment: 9 September 2011 at 9:00 AM

_{SENTENCING NOTES OF COURTNEY J}

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – N Flanagan

Staffard Klaassen Solicitors, P O Box 29185, Auckland

Fax: [phone]

Counsel: G Gotlieb, P O Box 47369, Ponsonby, Auckland

_{Fax: [phone]}

R V KENDALL HC AK CRI-2009-004-007655 9 September 2011

[1] Mr Kendall, you can remain seated if you would like.

[2] Graeme John Kendall, you appear for sentence today having been found guilty on two charges of perjury. These charges relate to two false affidavits that you made to support a statutory demand served on the company owned by your former wife. The statutory demand had no legal or factual basis. It was concocted solely to put pressure on your wife following the acrimonious break-up of your marriage. You swore the false affidavits in opposition to your wife’s application to set aside the statutory demand. Even in the face of clear evidence of their falsity you persisted. Fortunately the Court was not misled and the statutory demand was set aside. However, even in the face of that decision you maintained the fiction and gave evidence in your criminal trial asserting the truth of the affidavits before me.

[3] Your offending occurred at a time when your former wife was vulnerable. Your marriage had ended at her instigation to escape your controlling behaviour. Her daughter from her previous marriage was expecting a child in difficult circumstances and that child was born with medical problems. Pursuing the statutory demand caused her substantial cost in legal fees with consequent serious financial difficulties. There was serious disruption to her life through the stress associated with the proceedings, including adverse consequences to her health. She was forced to take sick leave and found it difficult to maintain the responsible employment she had occupied for a very long time.

[4] Perjury is an offence regarded by the courts as one that strikes at the integrity of the justice system. The circumstances of this kind of offending varies so much that there is no tariff judgment for the offence. But judges sentencing on perjury charges are generally concerned with denunciation and deterrence.[1] The significant aspects of your offending that I need to recognise in sentencing are that the offences formed part of a calculated and sustained campaign by you. They were not impulsive acts. You had several opportunities to draw back and, had you done so, it

is unlikely that matters would have got to the point that they did. The fact that you maintained the truth of these obviously false affidavits up to the point of trial and

_{during evidence speaks volumes of your arrogance. Your pre-sentence report makes}

depressing reading because you continue to deny your offending up until today where I acknowledge that Mr Gotlieb on your behalf has accepted the offending. But you showed in the pre-sentence report no empathy whatsoever with you wife and no remorse for the offending.

[5] I see no difference in principle in perjury in the context of a civil trial as opposed to a criminal trial, though the consequences in a criminal trial can be more serious, such as the acquittal of a guilty person or, of course, the conviction of an innocent person. In this case, the consequences you sought would have been financially devastating for your former wife. It is fortunate for you that the Court was not misled because, as a result, your offending does not fall into the category of the most serious type of offending. Nevertheless, it is serious and any sentence must reflect that fact, and the fact that there were two separate offences. In the usual course your offending would attract a custodial sentence.

[6] In approaching sentencing, therefore, my primary objectives are denunciation and deterrence for what has been disgraceful conduct on your part, ensuring accountability for the harm done to your victim and to the community. In achieving these objectives I must, however, ensure consistency with like offending in other cases and I have considered cases which bear comparison to the offending in this case[2]. It is clear that, in the usual course, a term of imprisonment would be imposed and recent cases that bear some comparison suggest that a starting point of three years imprisonment is the appropriate term.[3] However, I must also take into account your personal situation to ensure that any sentence is not disproportionately severe. Your lawyer has submitted that because of your age and your various medical problems a non-custodial sentence should be imposed. There have been several previous cases in which sentences have been discounted or non-custodial sentences imposed to reflect serious medical conditions and the difficulties a prisoner would face in prison.[4] It is apparent from these cases that the threshold for a non-custodial sentence is high. The Crown, however, asserts that your health problems are not

_{sufficiently severe to justify a non-custodial sentence. I have had the benefit of}

affidavit evidence from your doctor, your current partner and a needs assessment by the Auckland DHB. You currently suffer from pain and limited mobility as a result of a spinal injury sustained in an accident some years ago. This has required several operations. The accident has left you with limited movement and makes self-care difficult. You have difficulty walking and standing. You suffer from a significant level of pain for which you take daily medication and you receive acupuncture and massage. In addition you suffer from gout and hypertension, for which you require other medication.

[7] In addition to the information I have received about your medical conditions I also heard oral evidence from a representative of the Corrections Department regarding the facilities available within the prison system for prisoners with medical conditions. This evidence was very helpful and satisfied me that adequate care is available for a person with your needs in the prison system.

[8] I accept, though, that they are significant needs and combined with your age

– 70 years – prison would be difficult for you. I have, however, concluded, that the difficulties will not be so great as to preclude a custodial sentence and I consider that the appropriate course is to impose such a sentence. Given your personal circumstances though, it is clear to me that three years would be excessive and I take as an appropriate term for considering mitigating factors a term of two years as being the appropriate sentence.

[9] You are, however, entitled to credit for a number of factors. At 70 years of age, apart from a single, minor conviction many years ago, you have had no trouble with the law. You have contributed to society through your war service, your years in the Fire Service and success in business. For these factors I would deduct six months from the starting point.

[10] Also deserving of recognition in sentencing is your payment of reparation of over $25,000. That payment represented the difference between the costs awarded against you in the civil proceedings and the total amount of your wife’s legal costs. I note that this offer and payment was made belatedly and did not come with any expression of remorse but only as a wish to put the matter behind you as quickly as

possible. Nevertheless, it is a factor that would have had meaning for your wife and was a tangible means by which some of the harm that you did could have been remedied. I will allow a further six months for that factor. This would leave a final sentence of one years imprisonment.

[11] Mr Gotlieb has urged on me a sentence of home detention or community detention and has talked to me persuasively about the flaws in your personality that have brought you to this point – your idiosyncratic personality and tendency to become fixated on things. I understand and accept what Mr Gotlieb has said, but I am confronted with very serious offending and it is the job of this Court to send a clear message to offenders and to the community at large that offences of this kind that strike at the heart of our justice system will not be tolerated whatever the reason for the offending.

[12] Balancing the seriousness of the offending against the difficulties that you will face in prison, and taking into account the care that is available, I have reached the conclusion that a non-custodial sentence is not the right course and I therefore

_{impose a final sentence of one years imprisonment.}

P Courtney J

---

[1] R v Mackie (1998) 16 CRNZ 248; Forrest v R [2010] NZCA 34.

[2] _{R v Coura CA16/05 24 May 2005; R v Wilkinson CA277/04 16 December 2004.}
[3] R v Forrest [2010] NZCA 34; R v Koura CA16/05 24 May 2005; R v Wilkinson CA277/04 16 _{December 2004}

[4] R v Lavea [2007] NZCA 421; R v Gallagher (1994) 9 CRNZ 421.