R v Aoapaau [2012] NZHC 700 (17 April 2012)

Last Updated: 28 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-19159 [2012] NZHC 700

THE QUEEN

v

CYNTHYIAH MARINA AOAPAAU

Hearing: 17 April 2012

(Heard at Wellington)

Counsel: J A Ongley for Crown

R P Chambers for Prisoner

Sentence: 17 April 2012

_{SENTENCING NOTES OF DOBSON J}

[1] I have to sentence you today on one conviction for perjury relating to the false evidence you gave at your ex-husband’s trial for murder in June 2010.1

[2] Your offending started during the homicide investigation into the death of a Mr Motunuu. The investigation led to the man who was then your husband, Mr Aiono, being charged with Mr Motunuu’s murder. In early 2009, whilst your ex-husband was in Samoa, you had a brief sexual relationship with Mr Motunuu. When Mr Aiono returned from Samoa on 24 February 2009, he confronted you about the relationship and made threats towards Mr Motunuu. On 25 February 2009,

_{the Crown case is that Mr Aiono went to Mr Motunuu’s address in Manurewa, and}

1 R v Aiono HC Auckland CRI-2008-092-3238, commencing 8 June 2010.

assaulted him with a concrete paver and kicks and punches to the head. Mr Motunuu died later that night in Middlemore Hospital from the injuries from that assault. You say you were not aware of Mr Aiono’s violent intentions until he arrived home that evening and you saw blood on his hands.

[3] The following day, you and Mr Aiono became aware that there was Police activity at the Manurewa address and you came to the conclusion that Mr Motunuu had died. You expected to be questioned by the Police and you and Mr Aiono decided to create a false, made-up version of events by telling the Police that you had told Mr Aiono that you had been raped by Mr Motunuu and that that had provoked Mr Aiono’s assault. Mr Aiono was arrested and charged with murder following the Police interviews. On 27 February 2009, you were interviewed again by Police, when you admitted that you had consensual sex with Mr Motunuu, but you still said that you had told Mr Aiono that you were raped. The Police obtained a statement from a cousin of yours, which revealed that you had told that cousin that you and Mr Aiono were going to make up a story of rape to the Police, a statement which you later denied.

[4] You were then called by the Crown to give evidence at Mr Aiono’s trial for murder, commencing on 8 June 2010 at the Auckland High Court. Your evidence was consistent with your Police interview: that is, that you had told Mr Aiono that you had been raped by Mr Motunuu, even although you did in fact have consensual sex with him. The nature of this evidence was important to both the Crown and defence cases, as Mr Aiono was relying on the defence of provocation. The trial was aborted in the second week for unrelated reasons and set down to recommence on

31 October 2011.2

[5] You say that you became deeply troubled after the first trial and felt responsible for everything that had happened. You said that you felt that what you did was wrong at that point, and when you spoke to Police before the second trial you admitted to lying in your interviews with Police immediately after the killing, and when you gave evidence at the first trial. You confessed that you told Mr Aiono

_{that you had consensual sex with Mr Motunuu all along, and it was only when you}

2 R v Aiono HC Auckland CRI-2008-092-3238, 31 October 2011.

discovered that Mr Motunuu had died that you and Mr Aiono agreed to create a false version of events.

[6] You gave evidence again when Mr Aiono stood trial for a second time, where you acknowledged that you lied at the earlier trial, and admitted that you told Mr Aiono prior to the assault that you had consensual sex with Mr Motunuu. You explained to the Police that you felt responsible for the death of Mr Motunuu, because it was your actions that prompted Mr Aiono to assault Mr Motunuu. You felt you had a responsibility to help him in the homicide investigation, as you were fearful of the outcome and wanted to lessen the possible seriousness of the charge. You say that you were not under any duress or intimidated by Mr Aiono to give a false statement. After the second murder trial, you were charged with perjury, you pleaded guilty promptly and a conviction was entered in this Court on 23 March

2012.

[7] In imposing your sentence I am guided first by the Sentencing Act 2002. Under that Act, the Court is directed by the sentencing purposes and principles contained in ss 7 and 8. Those sections require provision of a sentence that will deter you and others from committing similar offences in the future and to hold you accountable for your actions, but also require the Court to impose the least restrictive outcome that is appropriate in the circumstances and to assist in your rehabilitation.

[8] Perjury carries a maximum sentence of seven years’ imprisonment. All cases of perjury are treated as serious, as they threaten the integrity of the justice system. Our criminal justice system relies on people telling the whole truth when they take the oath to do so in Court.3 The overriding principles in sentencing perjury must therefore be to denounce the crime and to deter others who might be similarly tempted to undermine the criminal justice system.4

[9] There is no tariff case for sentencing for perjury, due to the wide range of contexts and circumstances that it covers.5 It can range from frightened persons who

3 _{R v Harding T12/02, 23 September 2003 at [7].}

4 R v Mackie (1998) 16 CRNZ 248 at 3, R v Wilkinson CA277/04, 16 December 2004 at [10]-[11]

_{and R v Sparkes HC Auckland CRI-2006-004-8965, 20 June 12006 at [20].}

5 R v Wilkinson at [10].

perjure themselves for misguided but understandable reasons, through to serious cases which involve calculated and orchestrated offending.6 Therefore the appropriate starting point should reflect comparable circumstances in other cases of perjury.

[10] I will attach to the notes of this sentencing a summary of the relevant features of six other sentencings for perjury. Those cases involve starting points from four years’ imprisonment down to a short prison sentence. The cases reflect a recognition that the Court should measure relatively how serious the perjury is by referring to relatively how serious the other trial in which the perjury occurred was. Clearly, perjury that affects a murder trial has to be seen as at the serious end of this scale. Motivation for giving false evidence in the sense of whether it is out of loyalty, for possible financial gain, or for other reasons, can also be taken into account in assessing relatively how serious the particular case of perjury is.

[11] So, from these other cases, a number of factors need to be taken into account in determining where your conduct falls on the scale of seriousness for perjury. One factor that needs to be considered is whether the perjury was conscious, deliberate, and pre-mediated.7 Here, you established a scheme with Mr Aiono where you would both lie to the Police and lie again at the trial as to what you told him about the circumstances in which you had sex with Mr Motonuu. You did that to try to reduce the seriousness of the charge and how responsible Mr Aiono would be seen to be in relation to the assault. You stuck to that story through three Police interviews and the first trial.

[12] The fact that you lied on oath before a jury in a murder trial places this at the more serious end of the spectrum.8 Those circumstances had the possibility to undermine the criminal justice process, in that the trial could have continued on the basis of false evidence which bolstered the provocation defence, and the trial was only abandoned due to an unrelated matter. Although I do not treat your conduct as

_{the same as perjury which suggests the offender did not do the criminal act,}9 _or

6 _{R v Skelton DC Hamilton CRI-2008-019-7272, 1 October 2010 at [12].}

7 _{Skelton v R [2011] NZCA 35 at [21], R v Sparkes at [32].}

8 _{R v Wilkinson at [14].}

9 R v Mackie at 5.

perjury that secures an acquittal,10 the fact is that it could have done so were it not for the abandonment of the trial. The effect of the lies, whether they influenced the jury or the ultimate verdict, is not as important as the purpose, which was to mislead the Court. Punishment for perjury should be proportional to the seriousness of the original offence, and lying on oath at a murder trial is one of the most serious situations in which you could perjure yourself.11

[13] Your motivation for perjury is also relevant in determining the starting point. There is a large difference between cases where someone commits perjury for money or because of gang affiliations,12 and cases where people perjure themselves under threats of violence or retaliation.13 Here, you were not intimidated by Mr Aiono into providing the false evidence, but you were motivated by a misguided loyalty to him14 and the guilt you felt over your role in the background to the assault. You felt that the only reason he assaulted Mr Motunuu was because of your actions, and therefore you had a responsibility to help to lessen the circumstances of the charge

that he was facing. The seriousness of this offending is therefore, overall, moderate.

[14] The Crown has submitted that a starting point of three to three and a half years’ imprisonment is appropriate. Your counsel argues for a starting point of two and a half years’ imprisonment. I consider a starting point of three years’ imprisonment is appropriate, because although it is very serious to lie at a murder trial, the evidence was not as material as it could have been, and in the end it did not secure an acquittal for murder. At a later trial you co-operated and supplied the correct evidence and that is an important factor. So the starting point of three years reflects all the circumstances of the offending itself.

[15] Now from that starting point, I turn to consider the aggravating and mitigating factors that are personal to you as the offender.

[16] I have read the pre-sentence report prepared by the Department of

_{Corrections. That report records that you are now living in Upper Hutt with your}

10 _{R v Wilkinson at [14].}

11 _{R v Mackie at 5.}

12 _{R v Wilkinson at [11] and R v Sparkes at [10].}

13 _{R v Sparkes at [10].}

14 R v O’Keefe CA41/85, 14 March 1985 at 4.

new partner, your three year old son from your marriage with Mr Aiono, and that you are eight months’ pregnant with a child to your current partner. The report notes that the relationship is stable and that your partner is the only support person in your life at present, and that you have had no contact with Mr Aiono since he was remanded in custody. The relatively isolated circumstances of your life in Upper Hutt have also been emphasised by Mr Chambers this morning and I have taken that into account.

[17] The pre-sentence report also records that you were the subject of physical abuse as a child, which you perceive as normal given the circumstances of your family upbringing. You attended school in Auckland and left without any formal qualifications. You then completed a business administration course with the Pacific Institute of Education, which led you to a job as an Immigration Officer for two years. For the last two years you have been unemployed and in receipt of a Domestic Purposes Benefit. Your child was taken from your care by Child Youth and Family Services (CYFS) in 2010 for seven months following reports of neglect. He is back in your care now but legally in the custody of CYFS who say they monitor his welfare.

[18] The writer of the report notes the remorse you feel for the offending, and the fact that you were not aware, and are still not aware in his view, of the serious implications of your actions. The report records that you believe that community detention is a sufficient sentence and that you are motivated to comply with such a sentence. The report records you have no drug, alcohol or gambling problems and no rehabilitative needs. The report estimates the risk of your re-offending as low. The report writer expressed concern over your capacity to give a fictitious story to the Police, given the seriousness of the offending that you tried to conceal. It accordingly ends with a recommendation of a sentence of imprisonment, as community work would not reflect the seriousness of the behaviour. Both counsel this morning have said that the severity of the sentence recommended by the Probation Officer surprises them.

[19] You pleaded guilty at the first opportunity. You are entitled to a discount in that respect. The maximum that you are entitled to is 25 per cent.15 However, you are not automatically entitled to a discount to that extent, and I must stand back and consider whether, in the circumstances of this case, that extent of reduction is justified. The Crown suggests that it is. I have to weigh the strength of the prosecution’s case. Here, you admitted the offending after Mr Aiono’s first trial,

which revealed that the Police may have had enough evidence to charge you with perjury, in the form of the statement from your cousin and text messages which came to light at the first trial. Although you pleaded guilty in the sense that you did not attempt to defend the charge of perjury, you waited over two years to admit to the Police that you had been lying. By pleading guilty when you did, you have saved the State considerable expense and time in prosecuting you, and I accept that you do feel genuinely remorseful for your offending. I am therefore satisfied that the full discount of 25 per cent, or nine months, from the 36 month starting point is justified.

[20] I also take into account that this is your first offence, so you have no previous convictions.16

[21] Now s 9(2)(a) of the Sentencing Act allows me to take your relative youth into account as a mitigating factor, but it does not automatically entitle you to a discount.17 In Churchward v R, an offender’s youth was said to be relevant to sentencing in three ways:18

(a) First, there are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b) Secondly, the effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

15 _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].}

16 _{Sentencing Act 2002, s 9(2)(g).}

17 _{Day v R [2010] NZCA 172 at [20].}

18 Churchward v R [2011] NZCA 531 at [77].

(c) Thirdly, young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

[22] Of these factors, I consider the most important one in your case to be the first. You are not considered a youth in the traditional sense of the word, although I accept that that concept extends beyond 18 years of age, depending on how youth affects the offender’s overall culpability.19 The weight to be given to youth as a mitigating factor diminishes the closer the offender approaches maturity.20 You were 19 when

you initially told your fictitious story to the Police and 21 at the time of the offending (and that is the first trial), which is hardly a tender age and at the upper level of the age bracket which would entitle you to a discount. Your relative youth did mean that you failed to appreciate the seriousness or the consequences of lying under oath. The pre-sentence report also notes that you were not aware of the serious implications of your actions at the time of offending. Although you were not particularly susceptible to influence by Mr Aiono, your relative youth impaired your judgement in circumstances which were very emotional for you, and the Crown accepts that a small discount may be appropriate on account of your age.

[23] Treating your lack of convictions and your relative youth together, I consider that they warrant a further discount of five months off the length of imprisonment.

[24] The other factor I must consider when determining the appropriateness of a sentence of imprisonment is that you are currently eight months’ pregnant and have a young son who lives with you. Pursuant to s 8(h) of the Sentencing Act, I consider this to be something that could render a sentence of imprisonment disproportionately severe. The Court of Appeal in R v Devine stated that it was undesirable to keep a mother and her newly born child in prison or rear a child away from the mother. However, women who are pregnant should not be treated as immune from

_{imprisonment by reason only of that fact.}21 _{The Devine decision, which has}

19. Churchward v R at [98]. In Day v R at [20], approximately 10 per cent discount applied where youth was not seen to reduce the appellant’s culpability.

20 _{BP v R [2010] NSWCCA 159 at [5].}

21 R v Devine CA 371/97, 18 December 1997 at 4.

followed two other Court of Appeal decisions, R v Maney and R v Sylvia,22 relies on the legislative provisions that deal with pregnant prisoners, namely s 94(1)(a) of the Criminal Justice Act 1985, which allows the Minister of Corrections to release a

_{female prisoner early if they have given birth in prison. I also note:}

s 81A of the Corrections Act 2004 which also allows a mother to apply to the chief executive of the Department of Corrections to have the child with her in

_{prison until the child is 24 months old;}

s 41(1)(a) of the Parole Act 2004, which allows the Parole Board to release

_{an offender on compassionate grounds if they have given birth; and}

the ability for a pregnant prisoner to apply to the Governor-General for the

_{exercise of the prerogative of mercy.}

[25] The Crown, in its written submissions lodged with the Court before the hearing, submitted that the legislature intended these provisions to adequately address the issue, and that pregnancy should not prevent the imposition of a prison sentence if that would otherwise be imposed.23

[26] However, that does not mean that I should not have regard to the additional adverse consequences of confinement in prison for a pregnant woman. All the legislative sections referred to are designed to deal with the case of a woman who is expected to give birth, and who then does give birth, in prison. Whilst I accept that pregnant women are not immune to a sentence of imprisonment, and there are legislative mechanisms to deal with imminent birth of a child should the need arise, that does not supplant the need to take into account pregnancy when assessing the

appropriateness of prison,24 especially in this case where that could be avoided by

_{substituting a sentence of home detention.}

22 _{R v Maney CA 12/88, 18 April 1988, R v Sylvia CA 316/88, 7 December 1988.}

23 _{R v Devine at 5.}

24 See R v Tuakei CA86/98, 27 May 1998 at 4.

[27] The issue of your personal circumstances as the offender is one of weight.25

It would be regrettable that you may be separated from your two children as a result of offending, but that factor cannot override the purpose of deterrence and denunciation that apply in respect of perjury.26 A sentence of home detention is available where the end sentence settled upon is 24 months’ imprisonment or less which would prevent some of the adverse consequences to you and your children.27

Here, I have identified mitigating circumstances that reduce the length of sentence from 36 months by 14 months, to 22 months’ imprisonment.

[28] However, the question remains whether home detention would be sufficient to serve the needs of deterrence and denunciation in your case. The Probation Officer reflected a failure on your part to appreciate the seriousness of your offending, as shown by your proposing an unrealistically lenient sentence as the appropriate one. Mr Chambers, no doubt on your instructions, has suggested that I can come down the hierarchy of sentences to community detention, but I am not persuaded that that would be sending a sufficient deterrent signal.

[29] The Crown, in its written submissions, submitted that serious perjury invariably attracts a sentence of imprisonment. That may be the case for repeat offenders,28 or for offences with the most serious consequences. In your case, although the context in which you told lies on oath was extremely serious because it was in the course of a murder trial, the consequences of it were not among the most serious. In addition, the combination of mitigating circumstances in your favour,

including the pending birth of another child, do not require a prison sentence as the inevitable outcome. Increasingly, those involved in monitoring sentences of home detention are acknowledging the substantial difficulties imposed on those serving longer periods of home detention, and for periods nearing the maximum of

12 months it is not right to see it as a soft option compared with a short term of

_{imprisonment.}

25 _{Hessell v R [2010] NZSC 135 at [37] and [43].}

26 R v Skelton at [40]. In that case, separation from children was not considered to be disproportionately severe even though hardship would result for the young children of the appellant.

27 _{Sentencing Act 2002, s 15A.}

28 In R v Sparkes at [42] where the end sentence for perjury was two years’ imprisonment, but

home detention was not considered to be appropriate due to the criminal history of the appellant.

[30] In your case, I am persuaded that the less restrictive sentence of home detention is sufficient to meet the requirements of the Sentencing Act, but it will be a relatively lengthy period of home detention. Accordingly, in substitution for the period of 22 months’ imprisonment that I would have imposed, I sentence you to a period of 11 months’ home detention.

[31] The appendix to the pre-sentence report confirms the suitability of your Upper Hutt address for home detention. There you would continue to live with your current partner, who is considered a suitable occupant, and you are considered a suitable candidate for an electronically monitored sentence.

[32] I have also considered deferring the start date of home detention under s 80W(1) of the Sentencing Act, as recommended by the pre-sentence report, either until the end of the third trial at which you are expected to give evidence and which commences on 7 May 2012, or until after the birth of your child.

[33] After hearing from counsel, I am not persuaded that it is necessary to defer the commencement of that sentence until after you have given birth, because although home detention usually means literally detained at home, in your case I am confident that those monitoring your sentence will make sufficient arrangements with you to enable you to leave the address for the purposes of medical consultations prior to the birth of your child, and after the birth of your child where there are needs for the child or for you that require you to leave the address.

[34] Accordingly, I sentence you to a period of 11 months’ home detention which is to be served at 6/3 Tawai Street, Trentham, Upper Hutt. That sentence is to commence at 7am on 21 May 2012. You are required to be at that address at that time to make yourself available for the fitting of the appropriate device. Your ability to leave the address for that period of 11 months will be a matter that I hope Mr Chambers is able to help you with, but it will be a reflection of reasonable absences agreed with those who will be monitoring your sentence.

[35] Until then you will be remanded on bail, initially on the present conditions that have applied until this morning. But I anticipate that there will be a need for a

variation to be completed to enable you to travel, notionally in Police custody, by road to Auckland for the duration of your giving evidence at Mr Aiono’s re-trial. Any variation of bail terms that is needed hopefully will be by consent and can be referred to me at relatively short notice.

Dobson J

Solicitors:

Crown Solicitor, Auckland

Counsel:

R P Chambers, Auckland for prisoner

Appendix

Summaries of potentially comparable cases

[1] In R v Skelton,29 the defendant submitted false evidence to the Family Court in the form of DNA samples which erroneously showed that her husband was the biological father of her child, when in fact he was not. When it became clear that her dishonest scheme would not work, she abducted the child and hid him in contravention of Family Court orders. The sentencing Judge noted that a conscious and dishonestly orchestrated scheme which involved perjury was at the higher end of seriousness for this kind of offending.30 He noted that Ms Skelton was at the advanced stages of pregnancy, but that was given a reduced weight as it was taken into account when imposing an earlier “lenient sentence” for the abduction offending. The Judge imposed a starting point of three years imprisonment, which the Court of Appeal upheld.31 A discount of four months was applied for a late guilty plea, leaving an end sentence of two years eight months’ imprisonment. Home detention was not considered to be appropriate in a case of this seriousness and would have been insufficient to achieve deterrence and denunciation.

[2] In R v Sparkes,32 the defendant committed perjury at a methamphetamine trial of an associate, in order to repay some of the drug debt he owed and earn extra reward. He claimed at trial that he was responsible for the manufacture of the methamphetamine instead of his associate, but nonetheless the associate was found guilty. After the trial the defendant admitted to lying on oath. He said that he was persuaded to perjure himself because of the drug debt, but over time got cold feet and wanted to back out of the scheme. This was met by serious threats against the defendant that if he did not commit perjury at the trial he and his partner would be harmed. The Judge set a starting point of three years, in light of the premeditation and monetary incentive, but also considering the desire to back out and the threats

_{against the defendants’ safety. He then applied a credit for guilty plea and steps to}

29 _{R v Skelton [2011] NZCA 35 (CA).}

30 _{At [14].}

31 _{At [47].}

32 R v Sparkes HC Auckland CRI-2006-004-8965, 20 June 2006.

address the offending of one third which led to a final sentence of two years’ imprisonment. Home detention was considered inappropriate due to the offenders’ history of drug offending and the seriousness of the offending.

[3] In R v Wilkinson,33 the defendant gave false evidence at a cannabis trial on the promise of payment of $10,000, saying that he had been in possession of the drugs, not the accused. It was only when the defendant was charged with the drug offences and facing trial that he admitted to lying at his associate’s trial. Unlike in Sparkes, the accused for whom Wilkinson lied was acquitted. In that case a starting point of three years was adopted (although the Court of Appeal noted that three years’ plus could well have been adopted), reduced to two years three months for a late guilty plea, which the Court of Appeal said was lenient given the sentence that

would have been imposed for drug offending.34 The Court of Appeal stated that

committing perjury on oath, before a jury, to secure the acquittal of a guilty man, was in the most serious category of perjury offences.35 It was also more serious that he waited for more than a year before he admitted perjury to the police, the day before his trial for possession had effectively begun, this was effectively choosing perjury as a softer option and “playing with the justice system”.36

[4] In R v Mackie,37 the defendant gave false evidence at a murder trial saying that the fingerprints which incriminated one of the accused (his gang associate) had been left on a previous occasion, and both accused were acquitted. The false evidence was material to the acquittals. Unlike Sparkes and Wilkinson, but similar to the present case, the defendant did not place himself in jeopardy of being charged with murder by giving the evidence. Hammond J referred to the English decision of

R v Knight38 in holding that punishment for perjury should be proportionate to the

seriousness of the original offence. Hammond J decided on a starting point of four years’ imprisonment, but noted that the perjury would not have come to light but for the defendant’s confession, remorse and cooperation, and therefore granted a

_{discount to impose a final sentence of 15 months’ imprisonment.}

33 _{R v Wilkinson CA277/04, 16 December 2004.}

34 _{At [15].}

35 _{At [14].}

36 _{At [14].}

37 _{R v Mackie HC Hamilton S982390, 16 November 1998.}

38 R v Knight (1984) 6 Cr App R (S) 31.

[5] In R v Harding,39 the defendant committed perjury at his own trial for rape, where he claimed a false alibi and was acquitted. The Court noted that it was particularly serious to lie on oath and provide an alibi, which is very difficult to disprove. However, the Judge was not convinced that but for the alibi, the defendant would have been convicted of rape, thus it was unsafe to take into account the seriousness of that earlier offence in sentencing for perjury. A starting point of four years’ imprisonment was imposed, then discounted to three and a half years.

[6] In R v Oliver,40 the defendant pretended she had committed traffic offences that her husband had in fact committed, appearing in court and pleading guilty for those offences. The traffic officer noticed a photograph on the file of the accused as a male and noticed the defendant in Court was female and realised perjury had been committed. The Judge stated that it was at the least serious end of perjury cases, and although it would usually attract a short prison sentence, the Judge took into account that the offender was motivated by loyalty to her partner, and the fact she had

_{recently lost a child, and sentenced her to 120 hours community service.}

39 _{R v Harding HC New Plymouth, T12/02, 23 September 2003.}

40 R v Oliver HC Wellington S27/90, 1 June 1990.