Thomas v Police [2013] NZHC 2552 (1 October 2013)

Last Updated: 17 October 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-84 CRI-2013-409-85 [2013] NZHC 2552

BETWEEN	GRAHAM WILLIAM THOMAS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 September 2013
Counsel:	C M Yardley for appellant C E Butchard for respondent
Judgment:	1 October 2013

RESERVED JUDGMENT OF DOBSON J

Introduction

[1] This is an appeal against sentence imposed in the District Court at Christchurch on 23 August 2013. On that day, Mr Thomas was sentenced by Judge A A Couch to a term of 12 months’ imprisonment on one conviction for perverting the course of justice, together with a cumulative sentence of two months’ imprisonment for driving whilst disqualified.

[2] Mr Thomas appeals against these sentences on the basis that they are manifestly excessive. In the alternative, it is argued on his behalf that the Judge erred in not substituting a sentence of home detention.

Background

[3] On 29 May 2013, Mr Thomas had appeared in the Rangiora District Court on a third or subsequent charge of driving whilst disqualified. He had pleaded guilty and Ms Yardley made submissions on his behalf that the matter be dealt with under

THOMAS v NEW ZEALAND POLICE [2013] NZHC 2552 [1 October 2013]

s 94 of the Land Transport Act 1998 (the Act), seeking that no further disqualification of his licence should be imposed.

[4] In her oral submissions, Ms Yardley explained that the Police prosecutor had objected to the Court relying on the circumstances of the offending, as relayed informally, in her submissions on sentence. The sentencing Judge stood the matter down, affording Mr Thomas an opportunity to formalise, by means of an affidavit, the explanation that Ms Yardley was instructed to give to the Court.

[5] Ms Yardley duly did that, completing an affidavit in longhand that stated an immediate requirement of Mr Thomas’s work had been the imperative that caused him to drive whilst disqualified.

[6] Having tendered that affidavit to the Court, Mr Thomas was sentenced in reliance on its content. Section 94 of the Act was invoked, with no further disqualification being imposed. The Police subsequently ascertained that the explanation provided was incorrect. The Police applied for Mr Thomas to be re-sentenced and he faced the additional charge of attempting to pervert the course of justice.

[7] In her oral submissions, Ms Yardley acknowledged that she had promoted the idea of invoking s 94 as a result of the instructions she took from Mr Thomas on the day of the original sentencing. She completed the affidavit in accordance with Mr Thomas’s instructions, obviously being entirely unaware of the untruths it contained. Ms Yardley acknowledged that when the Judge stood the matter down to enable an affidavit to be completed, Mr Thomas was given an explicit warning about the serious consequences of any untrue statements in the affidavit. In addition, Ms Yardley acknowledged that the Judge’s reliance on the content of the affidavit was referred to in the sentencing remarks, as were the consequences of any subsequent discovery that it had been incorrect.

[8] Notwithstanding those features, Ms Yardley submitted on the appeal that the Judge had started with a manifestly excessive starting point of 18 months’ imprisonment because this offending was treated as relatively more serious than was

warranted. Consistently, she submitted that the discount of six months for an early guilty plea still left the end sentence as being manifestly excessive.

Relative seriousness of the offending

[9] Charges of attempting to pervert the course of justice arise in widely varying circumstances. It is not possible to attribute a confined set of criteria for weighing the relative seriousness of a particular instance.

[10] Factors that place this offending at the relatively less serious end of any continuum include the relative lack of seriousness in the original offending to which the attempt to pervert the course of justice related. Driving whilst disqualified is an offence attracting a maximum penalty of two years’ imprisonment. That places it at the lower end of the relative seriousness of the offending to which an attempt to pervert the course of justice might relate.

[11] Secondly, the perjury is fairly seen as arising informally, on the day of the sentencing, with counsel’s unwitting involvement in preparation and filing of the affidavit within the space of the Court sitting day. The circumstances of its preparation may have made it more difficult for Mr Thomas to resile from the folly of his initial untrue statements that were relayed informally. On the other hand, the Police are entitled to treat the circumstances in which the affidavit was completed as involving a measure of pre-meditation, in that there was an opportunity for Mr Thomas to resile from the initial statement on which counsel relied. That opportunity arose when Mr Thomas was given an explicit warning as to the seriousness of untruthful evidence in the context it was being used.

[12] Thirdly, affidavits such as the one completed by Mr Thomas would usually be submitted to the Court in advance of a sentencing hearing. Mr Thomas’s more spontaneous conduct all occurring during the day of the sentencing makes it less likely to recur. That is because where such an affidavit is filed in advance, the Police would have opportunities to check the accuracy of its content, acting as a disincentive to any perjury. As against that, the perjury on this occasion was effective in that the Court did rely on it, on the spot.

[13] As against those factors which attest to the relative lesser seriousness of this conduct, a number of its features make it relatively more serious. First, it is an attempt to pervert the course of justice undertaken entirely in the face of the Court. Mr Thomas must have seen the full circumstances of the Court’s reliance on his perjured affidavit and maintained the false story after an explicit warning of the adverse consequences.

[14] Secondly, the perjury was utterly self-serving. It was to gain a material advantage in terms of sentencing, which would predictably arise from the Court’s reliance on perjured statements in the affidavit.

[15] Thirdly, I do not accept that the context in which the Court relied on the statement, being for sentencing rather than a matter going to the elements of an offence, makes the attempt any less serious. The corollary to that is that there was a direct connection between the untruth and what would otherwise have been an unjustifiably lenient outcome.

Was the end sentence manifestly excessive?

[16] Two days before the second sentencing, the Court of Appeal had made a number of relevant observations in dismissing an appeal against a sentence for a conviction of attempting to pervert the course of justice.[1] Understandably, the Court of Appeal’s observations in M v R were not drawn to the Judge’s attention on sentencing. I accept Ms Butchard’s submission that they are relevant in testing the submission from Mr Thomas that the sentence here was manifestly excessive. The Court of Appeal observed that:[2]

... any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.

[17] The Court then observed:[3]

We add an observation about the continued, widespread reliance on R v Hillman as establishing a benchmark of three years for serious offending of

this kind. We have reservations as to whether this approach correctly reflects current sentencing practices. It was a decision that pre-dates the Sentencing Act 2002 and, in particular, would seem to be inconsistent with the effect of s 8(c) and (d) which require that the maximum penalty and penalties near to the maximum be imposed for offending that is within the most serious of the cases and near to the most serious of the cases for which the penalty is prescribed. Given that the maximum penalty for attempting to pervert the course of justice is seven years imprisonment, there is no apparent justification for continuing to view a starting point of three years imprisonment for serious cases as properly reflecting the effect of s 8(c) and (d).

[18] Before reflecting on the starting point adopted by the sentencing Judge, it is appropriate to note that the extent of discount he gave for the guilty plea was inarguably generous. At one third of the starting point, it is beyond the guidance provided by the Supreme Court in Hessell v R,[4] when the Judge perceived only a measure of remorse, motivated more by concern for Mr Thomas’s own circumstances than an acknowledgement of the seriousness of his wrong-doing. Further, the prosecution case on the charge was very strong, with the elements clearly made out, and there was no prospect of any tenable defence.

[19] In responding to the appeal, the Police did not seek to make anything of a discount that may have been excessive.

[20] It probably goes further than the Court of Appeal’s observation in M v R intends, but one way of testing Ms Yardley’s submission is to contemplate a range of offending for this charge from the least to most serious convictions, placing them along a continuum containing seven dividers, representing one to seven years’ imprisonment. Such a continuum would overlook, at the least serious end, those exceptional cases where a term of imprisonment is not required at all, shading into the first divider where the offending is adequately marked by sentences of less than a year.

[21] Taking 18 months as a fraction of the seven year maximum, can it be said that the circumstances of this offending place it less than three fourteenths from the least serious end of a continuum for convictions on this charge? Viewed in that way, I am satisfied that there was no error, and that the starting point cannot be criticised as

being manifestly excessive. The review of criteria that I have undertaken to determine its relative seriousness would place this offending somewhat less than half way along the continuum. However, it could never be characterised as clearly in the lowest quartile.

[22] I acknowledge that such an analysis of the ranking of relative seriousness is vulnerable to criticism for being too arithmetic. The assessment of relative seriousness generally requires a more rounded approach. Nonetheless, conducting the exercise does tend to confirm the outcome of a more abstracted analysis of the relative seriousness of what was involved. On any view, a starting point of 18 months was not manifestly excessive. A reduction of one third was generous.

Was home detention appropriate?

[23] On the second aspect of the appeal, Ms Yardley argued that the sentencing Judge inadequately considered the criteria relevant to substituting a sentence of home detention. In sentencing Mr Thomas on the conviction for driving whilst disqualified, the Judge was mindful that this was Mr Thomas’s ninth conviction for driving whilst disqualified. In addition, he has eight convictions for driving with excess blood/breath alcohol. Although some of the alcohol driving convictions are more recent, including one last year, the Judge was cognisant that the last conviction for driving whilst disqualified was 18 years ago.

[24] The Judge imposed a cumulative sentence of two months’ imprisonment on the re-sentencing on the conviction for driving whilst disqualified. The Judge was mindful that Mr Thomas had undertaken the 80 hours of community work, which had originally been imposed.

[25] The Judge was therefore assessing cumulative sentences of 14 months’ imprisonment when evaluating whether to substitute home detention. Giving priority to the public interest in the proper administration of justice and the necessary denunciation and deterrence, the Judge decided that those interests would not be achieved by any sentence short of imprisonment.

[26] Ms Yardley criticised this reasoning as inadequate. She submitted that a sentencing judge cannot simply rely on the need for deterrence as sufficient to reject the alternative of home detention. Rather, the Judge should make his or her way through the factors enumerated in ss 7 and 8 of the Sentencing Act 2002. There was no consideration of all those factors reflected in the sentencing notes in this case.

[27] In responding on this aspect of the appeal, Ms Butchard resisted any notion that sentencing judges are required, as a matter of course, to evaluate the factors raised by ss 7 and 8 of the Sentencing Act in every case in order to evaluate whether home detention should be substituted for a short term of imprisonment.

[28] I agree with Ms Butchard’s response. Not all the considerations raised by those sections will have relevance to the prospect of substituting home detention for a short prison sentence. The inquiry has to focus on whether one or more relevant considerations from those sections were overlooked here.

[29] In the discretionary exercise, the judge must form a view on relatively how serious the offending is. The judge was appropriately mindful of a prison sentence sending a somewhat stronger deterrent message than a substituted sentence of home detention. I am not satisfied that the Judge overlooked any factor or combination of factors from ss 7 and 8 of the Sentencing Act that would render the approach he adopted wrong in principle.

Result

[30] Accordingly, the appeal against sentence is dismissed in both its aspects.

Dobson J

Solicitors:

Crown Solicitor, Christchurch

Counsel:

Clare M Yardley, Christchurch

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[1] M v R [2013] NZCA 385.
[2] At [9].
[3] At [11].
[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.