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High Court of New Zealand Decisions |
Last Updated: 11 May 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2011-470-0033 [2012] NZHC 871
BETWEEN CHANEL DESIRE STEVENS Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 30 April 2012
Counsel: A A M Schulze for Appellant
R W Jenson for Respondent
Judgment: 2 May 2012
JUDGMENT OF HEATH J
This judgment was delivered by me on 2 May 2012 at 10.00am pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Tauranga
Lance Lawson, Rotorua
STEVENS V NEW ZEALAND POLICE HC TAU CRI 2011-470-0033 [2 May 2012]
The appeal
[1] On 21 December 2011, in the District Court at Tauranga, Judge Wolff sentenced Ms Stevens to a term of imprisonment of six months. Ms Stevens had previously entered pleas of guilty to charges of attempting to pervert the course of justice and driving with an excess breath alcohol concentration.
[2] The issue on appeal is whether the Judge was right to impose a sentence of imprisonment. Mr Schulze, for Ms Stevens, contends that the sentence was manifestly excessive and that a less restrictive outcome, home detention, ought to have been imposed.
Procedural background
[3] The appeal came before Duffy J, on 27 February 2012.1 During the course of argument the Judge expressed some concern about whether the District Court Judge may have fallen into error by failing to take account of the need to impose the least restrictive outcome. She said that the Judge had “not in the sentencing notes expressed any recognition of the principle that where the offender has not previously served a term of imprisonment, greater weight may be given to the statutory requirement to impose the least restrictive outcome”.2
[4] Duffy J adjourned the appeal, calling for a home detention report. On one view, the appeal might be regarded as part-heard. If that were the case, it would need to be relisted before that Judge. However, counsel have agreed that I should embark upon the appeal afresh, on the basis of the arguments originally put to Duffy J, which have been repeated before me. That course is not inconsistent with the approach that the Judge appears to have had in mind. She concluded her judgment by saying that the obtaining of a home detention report “should not be understood to
reflect how the appeal might possibly end”.3
1 Stevens v Police [2012] NZHC 293.
3 Stevens v Police [2012] NZHC 293 at para [12].
The facts
[5] At about 3am on Wednesday 16 March 2011, Ms Stevens was driving a motor vehicle along Bellevue Road, Tauranga. She was stopped for a roadside breath test. The test was positive and she was asked to accompany a police officer to the Tauranga police station to take an evidential breath test, blood test or both.
[6] When Ms Stevens was asked to give her personal details, she gave a false identity. She said that her name was Ashlee Renee Pourewa. Ms Pourewa is Ms Stevens’ cousin. Throughout processing that night, Ms Stevens maintained her cousin’s identity.
[7] A positive evidential breath test was returned; 638 micrograms of alcohol per litre of breath. Ms Stevens (in the name of Ms Pourewa) was released on summons to appear in the District Court on 22 March 2011 to answer a charge of driving with an excess breath alcohol concentration.
[8] As she was taken through the Court process, Ms Stevens continued to assume her cousin’s identity. Her actions went as far as swearing an affidavit in her cousin’s name, in which she deposed that she intended to plead guilty to the charge of excess breath alcohol when she was to appear in the District Court on 26 April 2011. The purpose of the affidavit was to demonstrate to the Court “special circumstances” that might avoid the possibility of imposition of a mandatory period of disqualification from driving. It is unnecessary to go into the detail of the affidavit. It is enough that she was prepared to instruct a lawyer to prepare it in a false name for her to swear. The lawyer did not know about the deception.
[9] After a plea of guilty was entered, a conviction for driving with an excess breath alcohol concentration was recorded against Ms Pourewa. Ms Stevens’ deception did not reveal itself until a government agency wrote to her cousin to inquire about the fine that had been imposed on her “conviction”. At that stage, Ms Pourewa reported what had happened to the Police.
[10] As a result, Ms Stevens was prosecuted for both the excess breath alcohol offence and attempting to pervert the course of justice. Ms Pourewa’s conviction has been set aside.
Sentencing in the District Court
[11] Understandably, Judge Wolff took the charge of perverting the course of justice as the lead offence. It is a crime that carries a maximum penalty of 14 years imprisonment. As the Judge rightly said:4
[9] This attempt at deception strikes at the heart of the judicial system, running the risk as it does, that someone is wrongly convicted. In some circumstances, persons who are wrongly convicted, find themselves arrested for failing to meet their fines or obligations and so you placed your cousin at severe risk.
[10] The authorities are plain. The Court of Appeal has indicated that in cases of this type, they mentioned in a case called R v Hillman [2005] 2
NZLR 681 (CA):
“We emphasise that in all cases of this kind a condign and deterrent sentence is required because of the nature of the offending, striking as it does at the proper administration of justice”.
[11] The Crown also refers to R v Churchward (CA439/05, 2 March
2006) and Buchanan v Police (HC, Rotorua, CRI-2008-470-000026, 27
August 2008), cases which make similar references.
[12] The Judge decided that imprisonment was necessary. He imposed a period of six months:
[13] I am satisfied that the authorities tell me that save in the most unusual of cases, a sentence of imprisonment is the only sentence available on this sort of offending. The factors of this case do not fall in my view, in that unusual category because you compounded the offending by the filing of the additional affidavit. I am satisfied that the appropriate start point is a sentence of 12 months’ imprisonment. You are entitled to a credit for your early plea of guilty, but before that happens, you should be accorded an extra credit for your absence of previous convictions.
[14] Combining those two features together, the end result is a sentence of six months’ imprisonment. Compared with the other sentence, that is shorter than other people have faced on similar occasions, but it reflects the seriousness of the offending that has occurred in the present case.
[13] Judge Wolff was not prepared to entertain the possibility of home detention as a suitable alternative to imprisonment. He referred to “the need to send a clear and condign message” as indicated in the Court of Appeal decisions to which he had referred. The Judge concluded that home detention was not appropriate for such serious offending.5
Analysis
(a) Imprisonment/home detention
[14] In R v D(CA253/2008)6 the Court of Appeal considered the hierarchy of sentences that appears in s 10A of the Sentencing Act 2002 (the Act) and the circumstances in which home detention might be imposed in substitution for imprisonment.
[15] The starting point is s 16 of the Act:
16 Sentence of imprisonment
(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) No other sentence would be consistent with the application of the principles in section 8 to the particular case.
(3) This section is subject to any provision in this or any other enactment that—
(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or
5 Ibid, at para [16].
6 R v D(CA253/2008) [2008] NZCA 267.
(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.
[16] After discussing the advantages of home detention as a discrete sentence,7 the Court said it was necessary to make an assessment of whether a sentence of imprisonment was required to meet the sentencing goals identified in s 16(2)(a). The relevant sentencing purposes are set out in s 7:
7 Purposes of sentencing or otherwise dealing with offenders
(1) The purposes for which a court may sentence or otherwise deal with an offender are—
(a) to hold the offender accountable for harm done to the victim and the community by the offending; or
(b) to promote in the offender a sense of responsibility for, and an acknowledgement of, that harm; or
(c) to provide for the interests of the victim of the offence; or
...
(e) to denounce the conduct in which the offender was involved;
or
(f) to deter the offender or other persons from committing the same or a similar offence; or
(g) to protect the community from the offender; or
...
[17] In R v D(CA253/2008), the Court of Appeal said:8
[62] Section 16 also requires the Court to satisfy itself that no other sentence would be consistent with the application of the principles set out in s 8 of the Act; for present purposes, the most important of which is the need to impose the least restrictive outcome, having regard to the hierarchy of sentences set out in s 10A(2): s 8(g).
[63] Section 7(1)(d) and (h) of the Act (to which reference is not made in s 16) refer to the need to provide reparation for harm done by the offending or to assist in rehabilitation and reintegration. Ordinarily, where rehabilitation and reintegration is the primary sentencing objective, a community-based sentence will be imposed.
7 Ibid, at paras [58]–[60], drawing on R v Hill [2008] 2 NZLR 381 (CA) at paras [19]–[26] and
[33].
8 Ibid, at paras [62], [63] and [65].
...
[65] Home detention is a hybrid sentence, regarded as neither custodial nor community-based. It is not listed among the community-based sentences set out in s 44 of the Act. On the other hand, s 80A(5) makes it clear that an offender who is sentenced to home detention is not in custody while that sentence is served.
[18] More recently, the Court of Appeal gave consideration to the circumstances in which a sentence might be “commuted” from imprisonment to home detention. In delivering the judgment of the Court of Appeal in Doolan v R,9 Stevens J said:10
[37] This issue was the subject of observations by William Young P in his dissenting judgment in R v Vhavha as follows:
[29] Eligibility for home detention depends upon the sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A of the Sentencing Act
2002. In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of
imprisonment. There is nothing in the Sentencing Act to suggest a
presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act. (emphasis added)
[38] These comments were endorsed by this Court in Osman v R. In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.
[39] In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision. (my emphasis in paras [38] and [39])
[19] Explaining the function and purpose of home detention, as a discrete sentence, the Court of Appeal said in R v Hill:11
9 Doolan v R [2011] NZCA 542
10 See also R v Vhavha [2009] NZCA 588 and Osman v R [2010] NZCA 199 at para [20].
11 R v Hill [2008] 2 NZLR 381 (CA) at para [33].
[33] The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The explanatory note [to the relevant Bill] at p 5 identifies the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”. (my emphasis)
(b) The nature of the crime
[20] Judge Wolff referred to Court of Appeal decisions in which it had been emphasised that sentences of imprisonment should ordinarily be imposed to respond to attempts to pervert the course of justice. He cited R v Hillman,12 a case in which the accused was found guilty of that crime by attempting to persuade a complainant to withdraw her complaint of assault against him. The Judge adopted its reference to the need for “a condign and deterrent sentence”.13
[21] In Hillman, the Court of Appeal identified cases in which there was a need for a sentence of that type:14
[6] Any attempt to dissuade a witness from giving evidence strikes at the administration of justice and must be met by the Courts with a stern response. In assessing the seriousness of the criminality involved in the particular case it is helpful to refer to three sentencing appeal decisions in this Court. The first is R v Ormsby (CA 80/79, 4 September 1979). In that case Ormsby sat down beside a witness who was waiting to give evidence and asked in a very threatening way whether the witness was intending to drop the charges. The dissuasion succeeded and the witness refused to give incriminating evidence. A sentence of three years was upheld. The second is R v Laugalis (CA 277 and 278/83, 3 May 1984). In that case Laugalis had been sentenced to four years’ imprisonment for 41 counts of theft by misappropriation and a cumulative sentence of three years’ imprisonment for attempting to defeat the course of justice by inciting an undercover constable who had been deployed because of a concern that Laugalis might make such an attempt to threaten or bribe witnesses and jurors in Laugalis’ then forthcoming trial. On the totality principle the overall sentence of seven years’ imprisonment was reduced on appeal with two and a half years being allocated to the charges of attempting to defeat the course of justice. The third is R v Monika (CA 139/90, 20 November 1990). In that case Monika was facing a charge of burglary of a house. He and some others returned to the house, severely damaged the property and threatened the occupants and a sentence effectively of three years’ imprisonment was upheld.
12 R v Hillman (Note) [2005] 2 NZLR 681 (CA).
13 R v Stevens DC Tauranga CRI 2011-070-4149, 21 December 2011 at para [10], set out at para
[11] above.
14 R v Hillman (Note) [2005] 2 NZLR 681 (CA).
[22] The Hillman approach was referred to by the Court of Appeal in R v Churchward15 in which the Court of Appeal quashed a sentence of 250 hours community service and substituted it with a sentence of nine months imprisonment, with leave to apply for home detention. The commencement of the sentence of imprisonment was deferred to enable an application for home detention to be made to and determined by the Parole Board. Ms Churchward had threatened two persons
with violence if one did not make a further statement to the Police that Ms Churchward’s partner, Mr Peacock, did not commit an assault. Churchward was decided at a time when home detention was not a discrete sentence. However, the fact that leave to apply for home detention was given and the starting date deferred suggests strongly that the Court of Appeal considered home detention would respond adequately to that particular offending.
[23] The question whether a sentence should be one of imprisonment or home detention is now determined by reference to the Act. The critical question, in this case, is whether a sentence of imprisonment was needed to respond adequately to the purposes to which s 16(2)(a) refer.16
[24] I have already mentioned that Duffy J had concerns about whether the District Court Judge ought to have expressly considered the fact that Ms Stevens had not previously served a term of imprisonment in determining whether imprisonment was necessary. In her judgment, she described that as a “principle”, basing her view on comments made in Tarrant v Police.17 The observations in Tarrant were, in turn,
derived from R v Earle.18 Earle does no more than to identify such a situation as an
“important factor” in determining whether an offender should receive a custodial sentence. It was said by the Court of Appeal in the context of s 7 of the Criminal Justice Act 1985 (now repealed) which stated the desirability of keeping offenders in the community, in a manner consistent with the sentiments that are expressed in
s 16(1) of the Act.19
15 R v Churchward CA439/05, 2 March 2006.
16 Section 16 is set out at para [15] above. The sentencing purposes are set out at para [16][16]
above.
17 Tarrant v Police HC Palmerston North CRI 2007-454-10, 14 May 2007 (MacKenzie J).
18 R v Earle CA414/91, 9 March 1992.
19 Ibid, at pp 2 and 4. Section 16(1) is set out in para [15] above.
[25] Undoubtedly, Ms Stevens’ offending is different in kind from those involving witness intimidation. That is recognised in the length of the sentence imposed. However, any conduct that is designed to release the offender from criminal responsibility by endeavouring to secure a conviction against another is insidious. Like the cases involving suborning of witnesses, such conduct strikes at the heart of the criminal justice system. It must, as Hillman recognises, be met “with a stern response”.
[26] Moving to the facts of this case, Ms Stevens was, at the time of the offending,
23 years old. From a letter that she wrote for my attention, it is clear that she is articulate. I do not accept, as was put to me by Mr Schulze on her behalf, that she acted on impulse in something akin to a “flight or fight” mode and then was compelled to “live the lie”. Not only did she see through the process in Court but she went to the remarkable lengths of swearing an affidavit in a false name in order to attempt to cushion the harshness of a sentence that might be handed down.
[27] Ms Stevens’ actions had all the hallmarks of a deliberate decision to avoid a criminal conviction. The conduct persisted from the time she was stopped to take a passive breath test right through to the time at which she was sentenced, in Ms Pourewa’s name. It included swearing a false affidavit. That could have been charged separately. As it was not, I treat it as a seriously aggravating factor. She took no steps, at any time, to correct the position.
[28] In those circumstances, can a sentence short of imprisonment hold Ms Stevens accountable for the harm done to the victim and the community by her offending, denounce the conduct in which she was involved and deter her and others from committing the same or a similar offence? Those are the sentencing goals that I consider are most important in the current context.
[29] While Ms Stevens has not been the subject of any term of imprisonment before, the nature of her conduct is such that it required a stern response. Having regard to the principles about appellate intervention in a decision on whether to
impose imprisonment or home detention,20 I cannot say that Judge Wolff erred in his
20 See Doolan v R [2011] NZCA 542 at paras [38] and [39], set out at para [18] above.
approach. He responded effectively to an offence which, while short of intimidating behaviour, left an innocent person with a conviction against her name. In my view, that response was necessary to make it clear, both to Ms Stevens and members of the public, that conduct of this type will not be tolerated.
[30] In those circumstances, I cannot say that the sentence was either manifestly excessive or inappropriate.
Result
[31] For those reasons, the appeal is dismissed.
[32] Ms Stevens shall present herself at the Tauranga police station at 10am on
Friday 4 May 2012 to begin her sentence of imprisonment.
[33] I thank counsel for their assistance.
P R Heath J
Delivered at 10.00am on 2 May 2012
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