R v Giles [2014] NZHC 1776 (29 July 2014)

Last Updated: 7 January 2019

ORDER PROHIBITING PUBLICATION OF THE SENTENCING NOTES IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL OF CO- ACCUSED, ZEBULIN MARIO DAVOREN. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-004424 [2014] NZHC 1776

THE QUEEN

v

JASMINE GILES

Hearing:	29 July 2014
Appearances:	M D Anderson for the Crown R Mansfield for the Defendant
Judgment:	29 July 2014

SENTENCING NOTES OF WOOLFORD J

R v GILES [2014] NZHC 1776 [29 July 2014]

[1] Jasmine Giles, you appear today for a sentence indication on a charge of conspiring to pervert the course of justice under s 116 of the Crimes Act 1961. A sentence indication has been sought by you through your counsel, Mr Mansfield.

[2] For the purposes of the hearing I have received an agreed summary of facts. I have considered that summary in accordance with s 61(3) of the Criminal Procedure Act 2011. I have also considered the charge contained in the indictment, including the specified particulars, your criminal record, or should I say lack of any criminal record, detailed written submissions filed by your counsel and the Crown, and oral submissions that have been made to me this morning.

[3] I am satisfied that the information available to me is sufficient for the purpose of giving a sentence indication. As required by the Criminal Procedure Act, I have conducted the hearing in open Court and I am giving this sentencing indication orally.

[4] The charge in the indictment reads – the said Crown Solicitor further charges the Zebulin Mario Davoren and Jasmine Giles, between 1 November 2012 and 28 November 2012, at Auckland, conspired to pervert the course of justice. The particulars are specified as conspiring to prevent the Official Assignee from restraining Zebulin Davoren’s vehicles and being released from custody on bail under false pretences.

[5] You were in a relationship with Mr Davoren, who was arrested and remanded in custody on 1 November 2012 following the termination of a Police operation targeting the manufacture and distribution of methamphetamine. Whilst in custody, Mr Davoren had access to a mobile phone. Between 11 November 2012 and 27 November 2012 a series of conversations between you and Mr Davoren were intercepted. During these conversations you discussed ways in which to retrieve a 1966 Chevrolet Impala, which was owned by Mr Davoren, and seized by the Police on 2 November 2012. You told Mr Davoren that your mother had received a $30,000 tax refund and that this could be used to disguise the true origin of the money used to purchase the vehicle. You continued discussing whether the aim of getting the car back could be achieved by doing this and you talk about exactly what your mother would say. During one call, you are recorded as explaining that your mother was
unsure about doing this, however, you had told her that she just needed to say that she had lent the money to Mr Davoren.

[6] Further conversations were had in relation to Mr Davoren wanting to provide a bail address in order that he be released on bail. You offered a family address just outside of Whangarei and the two of you discussed how the Police would want to check both the suitability of the address and the occupants. You decided to get another family member to lie about giving Mr Davoren a job and exactly who lived there as you were concerned about the criminal convictions of an occupant of the address.

[7] Your counsel submits that this is an appropriate case for the Court to impose a community-based sentence. The present offending does not involve any threatened or actual violence, nor does it involve any significant planning or premeditation. The alleged conspiracy was not in any way carried out and no steps were taken to advance the same.

[8] He submits that, given this offending is at the lowest end of the scale for this type of offending, a sentence of conviction and discharge, a fine or a short sentence of community work is the appropriate starting point. He submits that there are no aggravating factors personal to you, but a number of important mitigating factors, including your relative youth, your low risk of reoffending and the support you have from your family and the community.

[9] Furthermore, he submits that you should be entitled to a substantial discount of 25 per cent for a guilty plea and your remorse, in which case the end sentence should be a conviction and discharge.

[10] Crown counsel accepts that a community-based sentence would be appropriate in all the circumstances. He also accepts that you may be entitled to a discount for your relative youth and previous good character and that a discount of 15 per cent would be appropriate, should you accept any sentence indication given.
[11] However, Crown counsel submits that an end sentence of community work and/or community detention and not a conviction and discharge is necessary to meet the relevant sentencing purpose of denunciation and deterrence.

[12] There is no tariff case for conspiracy to pervert the course of justice. I am of the view that general deterrence is a primary consideration when sentencing for offences against the administration of justice.

[13] I acknowledge the comments of the Court of Appeal in R v Churchward:¹

[A] ny attempt to disturb the process of administration of justice is to be deplored and, following conviction, is, in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.

[14] However, this is not one of those cases that should be met with a term of imprisonment. I accept that the agreement was not carried through. No property was concealed from the Police, nor was Mr Davoren granted bail on false pretences.

[15] Nonetheless, this offending should not be met with a conviction and discharge. I am of the view that the nature and circumstance of the offending make it appropriate for you to be held accountable to the community by making compensation to it in the form of work. Community work is also appropriate, in my view, having regard to your character and personal history. Community work has a punitive element and should not be regarded by the public as a minor or insignificant response to offending.

[16] In all the circumstances, therefore, if you were to plead guilty to the single charge of conspiracy to pervert the course of justice, I would adopt a starting point of a conviction and sentence of 150 hours community work. There are no aggravating or mitigating factors of the offending itself. However, you would be entitled to a substantial discount – totalling 33 per cent - to take into account a number of specific factors, including the length of time you have been on bail, your previous good character, your guilty plea and your remorse. This would leave an end sentence of a conviction and 100 hours community work.

¹ R v Churchward CA439/05, 2 March 2006 at [14].

[17] Finally, this sentence indication has effect until the expiry of five working days after today’s date.

Note

Mr Mansfield then took the opportunity to obtain instructions. He advised the Court that Ms Giles accepted the sentencing indication and wished to be arraigned.

Ms Giles was then arraigned and pleaded guilty. On her behalf, Mr Mansfield waived any requirement for a pre-sentence report.

[18] Ms Giles, on the basis of your guilty plea, you are convicted and sentenced to 100 hours community work in accordance with the sentence indication that I have just given. You may stand down.

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Woolford J