R v Anderson [2018] NZHC 987 (8 May 2018)

Last Updated: 10 July 2018

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THECRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-043-1229 [2018] NZHC 987

THE QUEEN

v

CARL VINCENT ANDERSON

Hearing:	8 May 2018
Counsel:	C E Clarke for Crown N P Bourke for defendant
Sentence:	8 May 2018

SENTENCING NOTES OF DOBSON J

[1] Mr Anderson, I have now recorded your acceptance of the sentence indication I gave, you have pleaded guilty and I enter a conviction to the charge. *I will not repeat the reasons for my sentence indication, and will annex the terms of it to these notes. The form annexed will be anonymised to take out the name of the complainant and your co-defendant.

[2] I sentence you to a term of six months’ home detention to be served at the [home detention] address, to commence on 15 May 2018. The commencement date is subject to application by either the Crown (if further time is required) or on your

R v ANDERSON [2018] NZHC 987 [8 May 2018]

behalf to vary it as soon as a reconfirmation of the suitability of that address for serving an electronically monitored sentence is confirmed. *I urge that priority be given to that assessment, so that it is available as soon as possible.

[3] The conditions that will apply are that on your release, you are to go directly there and to await the arrival of the Probation Officer or other personnel who will monitor your sentence. *In addition, I direct that the standard post-detention conditions in s 80O of the Sentencing Act 2002 are to apply until 15 May 2019. Given the desirability of resolving the sentencing whilst I am in New Plymouth, I have done so without a pre-sentence report, which you have reasonably indicated is not required, and also without an update to the appendix that is expected to reconfirm the suitability of the address. I reserve the prospect of adding additional conditions, should any be recommended when the updated appendix is provided.

[4] I should add that in a number of the cases I considered where a home detention sentence is substituted for a prison one for a conviction for perverting the course of justice, it is coupled with a sentence of community work. But the location of the address you are going to serve it at I consider renders that impracticable. And that is one factor I have taken into account in not reducing it month for month for the period that you have been on remand.

[5] I have a concern which is not reflected in the sentence about your ability to serve a sentence at that isolated address and I urge you very genuinely to make sure you do comply.

[6] I acknowledge that I have added to the terms of the sentencing as delivered, in the passages marked with an asterisk. These additional matters were canvassed with counsel before formally sentencing Mr Anderson.

Dobson J

Solicitors:

Crown Solicitor, New Plymouth

Counsel:

N P Bourke

APPENDIX

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865734.html

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-043-1229

THE QUEEN

v

CARL VINCENT ANDERSON

Hearing:	8 May 2018
Counsel:	C E Clarke for Crown N P Bourke for defendant
Indication:	8 May 2018

NOTES ON SENTENCE INDICATION OF DOBSON J

[1] Mr Anderson, you can remain seated, but I now address you with my sentence indication.
[2] You have asked for a sentence indication on the one charge of attempting to pervert the course of justice that you face. Together with your co-defendant, T, on that charge you have elected a judge alone trial, which is due to commence next Monday.

[3] The summary of facts describes the circumstances of the offending as starting the day after T’s arrest and remand in custody on 29 July 2017. The following day, the complainant in the matter involving violent and sexual offending contacted you. Although she told you that T had strangled her and beaten her up, she maintained from the outset that she wanted the charges dropped and repeatedly complained that the Police had forced her to make a statement about it.

[4] For a period of months, you were effectively a go-between between T and the complainant. The Police have logged 74 calls from T to you when he was in prison, and those are the ones that you answered. For a short period at the end of October 2017, you had the complainant staying with you and your wife. The calls included discussions directly between T and the complainant and, more relevantly, between you and T as to how to support the complainant in frustrating the prosecution and denying the version of events recorded in her video interview. At various times in the large number of communications between you and the complainant, you provided advice on how to deal with the Police and the prosecutor in reviewing her evidence before trial, and then how to perform in the witness box.

[5] The Crown points to a difference in approach between you and the complainant. She was happy to resile from all of her statement, although she maintained in the discussions that she was indeed sexually assaulted by T. You, on the other hand, I find from the summary took T’s side on the extent of any offending. That involved acknowledging that physical assaults had occurred, but no form of sexual offending.

[6] Mr Bourke has emphasised on your behalf that you did not initiate the dialogue, which was designed to disrupt the Crown case in prosecuting T. When you became involved, you would reasonably have seen it as a situation where the complainant and T were strongly committed to each other and both wanted to frustrate the Crown’s attempt to prosecute T, where the Crown would rely on the complainant’s
statement about the nature and circumstances of the alleged offending, recorded on video soon after the events occurred. So, you would have seen her as committed to that course anyway and looking for help as to how she could do it.

[7] Nor did you stand to gain anything by your involvement. You did it because T is a relatively long-standing friend and the complainant is also a friend of your more recent acquaintance.

[8] Mr Bourke argues that it should rank towards the bottom end of relative seriousness of cases of attempting to pervert the course of justice because of the absence of any threat or strong pressure exerted on the complainant to change her story, and the absence of any motive for personal gain for yourself. He emphasises that at no stage did you tell the complainant that she should lie.

[9] As against that, the Crown emphasises your willingness, or even eagerness, to be involved because of your strong dislike for the Police, and you were keen to help the others in disrupting the Police and the Crown in their legitimate aim of prosecuting alleged serious criminal conduct. Taken in isolation, some of your discussions with the complainant could be seen as strengthening her resolve, or keeping her on track to support T.

[10] The Crown also argues that your encouragement of the complainant should be seen as more serious because you would, or should, have appreciated that she was vulnerable because of the nature of the abuse she had suffered at T’s hands, and her previous diagnosis of PTSD.

[11] In the course of managing pre-trial stages for your trial, I have acceded to the complainant’s requests to hear personally from her about her position as complainant in the course of a Crown application for leave to play the videoed interview with her as part of her evidence-in-chief. At the time of that pre-trial hearing, the complainant was served with a summons to appear and her clear intention, at least at that time, was that she would appear and vigorously deny the accuracy of the statements made in her videoed interview. She warned me that she would blame the Police for tricking her into making the statement, would deny that T had offended against her as charged, and
repeat her view that T should not be judged by the standards of the relevant sections of the New Zealand Crimes Act.

[12] Ms Clarke now reports that the complainant will not provide a victim impact statement, and that she believes you have not attempted to pervert the course of justice. She wants the charge against you withdrawn.

[13] On the Crown’s pre-trial application for directions as to how the complainant would give her evidence, the Crown urged that I should obtain a medical report on the stresses that might be caused by her giving evidence in light of her previous diagnosis of PTSD. The psychiatrist’s report after assessing the complainant’s was that use of a screen between her and T when giving her evidence was unlikely to assist, and that the stresses involved arose from the continued existence of the charges, rather than the ordeal of being in the witness box. The psychiatrist’s opinion appears to coincide with my own layperson’s view, having seen the complainant, that she is indeed staunchly supportive of T, so I do not accept that you should have appreciated she would be vulnerable in the sense of being easily persuadable by you to take T’s side.

[14] However, having said that, the Crown is correct in treating this as an unusually prolonged course of conduct designed to frustrate the Police and the Crown in discharging their responsibility to prosecute serious alleged offending as described by the complainant in her recorded interview.

[15] The Crown urge me to see this as a serious case of attempting to pervert the course of justice. Because it is so important to discourage any interference of this sort in the criminal justice processes, judges readily see just about all instances of attempting to disrupt criminal cases as serious. Ranking it in relative terms, however, I consider it is of low to moderate seriousness when compared to the circumstances of a significant number of other sentencing decisions for perverting the course of justice that have been referred to me.

[16] Mr Anderson, you will know that the maximum penalty is seven years’ imprisonment. Because the circumstances in which this type of offending can occur vary so widely, there is no guideline judgment from the Court of Appeal that proposes
starting points for various features of the offending. Although older cases included an expectation that prison terms were to be expected, and in many cases reasonably substantial prison terms relative to the seven year maximum were imposed, that is no longer a uniform starting position.¹

[17] Among the cases with some similarities to your alleged offending is that in M v R,² which also did not involve any threats. In that case, the father of a nine year old girl who was the complainant in charges of sexual offending brought against a friend of the father’s, contrived to keep the complainant out of locations where she could be contacted during the week in which the trial was intended to occur. Mr M, the defendant in that case, was convicted following a jury trial and in the District Court the sentencing judge rejected his claim that he kept the girl away because he thought that was in her best interests. He was sentenced to two and a half years’ imprisonment and that was upheld by the Court of Appeal. I rate that as more serious than your offending here.

[18] In the High Court sentencing in R v Thurgood,³ one of the defendants, a Mr Moorby, was also not implicated in threats made to witnesses. Rather, Mr Moorby made a false allegation that someone unrelated to a murder had admitted to doing it. The falsehood was discovered but the trial judge found that the attempt had a harmful consequence, not only for the young man wrongly accused, but also in terms of delay and cost for the Police investigation of the murder. He was sentenced to eight months’ home detention and 300 hours’ community work.

[19] Yours is a contribution to an apparent attempt to pervert the course of justice by providing a link between T and the complainant, and supporting her resolve to resile from her statement that the Police, and now the Crown, have relied on. That context is different, but I rate it as somewhat similar, although arguably somewhat more serious.

¹ H (CA6/2016) v R [2016] NZCA 101 at [19].

² M (CA469/2013) v R [2013] NZCA 385.

³ R v Thurgood HC Auckland CRI-2009-055-2162, 3 March 2011.

[20] Ms Clarke has also cited the decision in Coombs v Crown Law.⁴ There, the defendant was charged with assaults, intent to injure and breach of a protection order arising out of domestic violence. Sometime after the alleged violent offending he was remanded in custody and prevailed on his father to encourage the complainant to withdraw her complaint. The defendant then spoke directly to the complainant, instructing her to change her statement and offering her a sum of money to withdraw her complaint. The sentencing judge in the District Court adopted a starting point of two years and six months’ imprisonment on the perverting the course of justice charge. On appeal, the High Court Judge upheld that starting point, identifying the bribe, the fact that the defendant had enlisted his father to help and that the victim had succumbed to the pressure as indications of its seriousness. That was offset by the absence of any threats of violence. Again, I consider that is more serious than your offending here.

[21] In your case, Mr Bourke has urged on me a starting point of 16 months. I consider that the circumstances of the offending here would warrant a starting point of 21 months’ imprisonment.

[22] I am troubled by the length and variety of your list of previous convictions. I accept Mr Bourke’s point that the rate and seriousness of offending has dropped in recent years, but the list is a long one. Most directly relevant is the 1996 conviction for perverting the course of justice for which you served a nine-month term of imprisonment. Although it is 23 years ago, it should still have served as a reminder about what amounted to breaking the law in this area. I would be minded to treat your previous convictions, including that one in particular, as an aggravating factor that would warrant an increase of two months’ imprisonment. So that increases the starting point to 23 months’ imprisonment.

[23] The Crown agrees with Mr Bourke’s proposal that you would be entitled to a 25 per cent discount for a guilty plea. That sounds generous when it is just the week before trial, but I accept you have been indicating a wish to have a sentence indication for quite some time and, in relative terms, your trial has been rushed on.

⁴ Coombs v Crown Law [2015] NZHC 584.

[24] Mr Bourke argues that in addition to that discount, you deserve credit for steps taken to shorten the proceedings.⁵ I accept in your case that you have done everything possible to facilitate the joinder of the recent charge against you to T’s case. You have co-operated in allowing the matter to proceed as promptly as it has, including respecting T’s wish to withdraw the earlier election for trial by jury and agreeing to trial by judge alone. The case for joinder may have been compelling but you forwent your right to challenge that and to maintain the original election of trial by jury. In the circumstances of this case, that mitigating conduct, which is often not recognised as significant, would justify an additional discount of five per cent or one month. So applying that first would reduce the starting point to 22 months’ imprisonment.

[25] From that, a discount of 25 per cent for your guilty plea would reduce the sentence to one of 16 months’ imprisonment.

[26] A sentence of that length entitles you to be considered for home detention. The Crown submits that home detention would be inappropriate, given the relative seriousness of the offending.

[27] On your behalf, Mr Bourke submits that home detention is a sufficient deterrent and would be the appropriate end sentence. The proposed home detention address, some considerable distance out of Wairoa, has been assessed for electronic monitoring in the course of an application for electronically monitored bail, and, perhaps surprisingly to me, has been found suitable. Although it would not be decisive in a decision to transform the type of sentence, I have received numerous letters of support urging that outcome if at all possible, including two separate communications from your partner, pleading for you to be able to serve a sentence of home detention because of the positive influence she perceives you can be for your five children and the specific needs of one of your children who has developmental delays and other difficulties.

[28] Mr Anderson, unless factors not presently known arise that were compellingly against home detention, I would commute the length of prison sentence contemplated to one of home detention for eight months.

⁵ Sentencing Act 2002, s 9(2)(fa).

[29] Now, the period of remand in custody would operate to reduce the length of that sentence, but I am not in a position to be decisive as to the extent of that.⁶ A final sentence of that type I think would appropriately await an update of the assessment of suitability and factors that I might not know about now.

Dobson J

Solicitors:

Crown Solicitor, New Plymouth

Counsel:

N P Bourke, New Plymouth

⁶ Laloni v R [2015] NZCA 55.