Cross v The King

[2025] NZHC 1883

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2025-419-42 CRI-2025-419-43

CRI-2025-419-44 [2025] NZHC 1883

BETWEEN

TONI MARIE CROSS

Appellant

AND

THE KING

Respondent

Hearing:	9 July 2025
Appearances:	J Tarrant and S L Prescott for Appellant K Dillon for Respondent
Judgment:	10 July 2025

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 10 July 2025 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

J Tarrant, Barrister, Hamilton

Hamilton Legal, Office of the Crown Solicitor, Hamilton

CROSS v R [2025] NZHC 1883 [10 July 2025]

[1]    Ms Cross pleaded guilty in the District Court to three charges of wilfully attempting to pervert the course of justice1 and two charges of using forged documents to obtain a pecuniary advantage.2 On 24 March 2025, Judge A I M Tompkins sentenced her to two years four months’ imprisonment.3

[2]    Ms Cross appeals against sentence. She contends the Judge erred by failing to provide her with discounts to reflect several mitigating factors. She maintains this error has resulted in an end sentence that is manifestly excessive. Should the sentence be reduced to one of less than two years’ imprisonment, she argues it should be converted to a sentence of home detention.

The charges

[3]    The charges that Ms Cross faced can be divided into three distinct groups. The first relates to offending that occurred in May 2022, when one of Ms Cross’s friends, Ms F, was the subject of criminal charges in the District Court.4 She elected trial by Judge-alone and Ms Cross assisted her in preparing her defence to the charges, which related to the use of forged documents. Ms F and Ms Cross approached a person who was vulnerable and suffered from mental health issues. In an attempt to influence the outcome of the trial, Ms F and Ms Cross asked this person to alter some official documents and give evidence for the defence at trial. Ms F told him that if he did not do so she would kill herself and this would leave her children and Ms Cross’s children with nobody to look after them. As I shortly explain, Ms F was also looking after  Ms Cross’s children at this time.

[4]    During the hearing, the Judge asked a duty solicitor to speak to the witness regarding the evidence that he proposed to give. This resulted in the witness telling the duty solicitor that Ms F and Ms Cross had asked him to give false evidence for the defence. The Judge then referred the matter to the police for investigation. A charge of wilfully attempting to pervert the course of justice was laid as a result of this series of events.

1      Crimes Act 1961, s 117(e).

2      Section 257(1)(b).

3      R v Cross [2025] NZDC 7187.

4      I have anonymized this person’s name because they still face charges in the District Court.

[5]    The second group of charges relates to events that occurred between March and May 2023 after Ms Cross applied to a medical centre to be enrolled as a patient. The medical centre sent her an email acknowledging her application. She subsequently altered this email and submitted the forged document to the Family Court in proceedings relating to the care of her children.

[6]    The final group of charges related to a dispute between Ms F and one of her neighbours. Ms F filed a proceeding in the Disputes Tribunal seeking compensation from her neighbour for damage allegedly caused by the neighbour when her vehicle collided with Ms F’s vehicle. Ms Cross supported Ms F by providing her with two forged documents to be adduced in evidence before the Disputes Tribunal. One of these had purportedly been issued by a firm of panel beaters, whilst the other had been issued by a veterinary practice. Both documents were submitted in an attempt to mislead the Disputes Tribunal.

The sentence

[7]    Ms Cross entered her guilty pleas after the Judge gave her a sentence indication on 4 October 2024. The indicated sentence was one of 36 months’ imprisonment less a discount of eight months, or 20 per cent, for guilty pleas. The Judge referred to the fact that Ms Cross’s then counsel had also sought discounts to reflect prior good character and mental health issues but did not say whether these would attract a further discount.

[8]    At sentencing, the Judge maintained the indicated starting point and discount for guilty pleas.5 However, he declined to reduce the sentence to reflect other mitigating factors for the following reasons:

[11] Overall, I am not satisfied that further discounts should be allowed for the matters referred to by Mr Bhardwaj. The offending for which Ms Cross appears for sentence today was repetitive endeavours to pervert the course of justice by forgery and other dishonest altering of documents and although to some extent Ms Cross attributes particularly the first offence to a misguided endeavour to help her co-offender, the other offending was particularly aimed at improving falsely and dishonestly her own position.

5      R v Cross, above n 3, at [7]–[8].

The appeal

[9]    On appeal, Ms Cross does not contest the starting point the Judge selected for the sentence or the level of discount given for guilty pleas. However, she contends the Judge ought to have provided her with further discounts of five per cent each to respectively reflect her previous good character, mental health difficulties from which she suffers, the effect a sentence of imprisonment will have on her children and her offer to pay reparation to the victims of her offending.

Should the Judge have applied to discount to reflect previous good character?

[10]   At 30 years of age, Ms Cross has not previously been convicted of any criminal offending. Ms Tarrant argues on her behalf that the Judge ought to have provided her with a discount to reflect that fact.

[11]   However, as Mr Dillon points out for the Crown, Ms Cross’s offending occurred over a period of two years and involved repetitive attempts to mislead courts in three separate jurisdictions. It could not be regarded as “one off” offending or a momentary lapse of judgment by a person who was normally of good character. Given these factors, I do not consider the Judge was required to provide a discount to reflect previous good character.

Should the Judge have applied a discount to reflect mental health issues from which Ms Cross suffers?

[12]   It is now well established that a sentence may be reduced to reflect the fact that offending may have been caused in whole or in part by underlying mental health issues.6 Alternatively, such issues may make it more difficult for the offender to serve a sentence of imprisonment than would usually be the case.7

[13]   The pre-sentence report recorded that Ms Cross had provided the writer of the report with medical evidence relating to her history of mental and physical issues. She has been diagnosed with post-traumatic stress disorder (PTSD) due to issues arising within a family context and was on medication to address the ongoing effects of these.

6      E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70].

7      At [69].

[14]   Even accepting that this is the case, however, it is difficult to see any causal nexus between the issues from which Ms Cross was suffering and the present offending. No link was suggested in the pre-sentence report and Ms Tarrant has not sought to place any further information before the Court on the appeal.

[15]   Similarly, nothing in the pre-sentence report suggests that Ms Cross is likely to find it more difficult to serve a sentence of imprisonment than would be the case if she did not suffer from these issues. I therefore do not accept that the Judge was required to provide Ms Cross with a discount to reflect her mental health issues.

Should the Judge have applied a discount to reflect the offer of reparation?

[16]   Prior to sentencing, Ms Cross offered to pay reparation to the victims of her offending in the sum of $15 per week. The only means by which she could make such payments was to have them deducted from her benefit once she is released into the community. Ms Tarrant contends the Judge ought to have given Ms Cross credit for this offer, along with the fact that she also offered to attend a restorative justice conference.

[17]   Whether a sentencing Judge is prepared to apply a discount to reflect an offer of reparation will depend on several factors, including the genuineness of the offer, the likelihood of payment actually being made and whether it has been accepted by the victim.8 In the present case I consider the offer of reparation was so small that the Judge was not required to take it into account as a mitigating factor. Nor was he required to reduce the sentence to reflect the fact that Ms Cross had offered to attend a restorative justice conference.

Should the Judge have reduced the sentence to reflect the effect of a sentence of imprisonment on Ms Cross’s children?

[18]   It is now established that the Court may reduce a sentence of imprisonment to reflect the impact it will have on the offender’s children.9 In the present case, however, Ms Cross was not looking after her children on a day-to-day basis. It appears that the

8      Sentencing Act 2002, s 10(2)(a) and (b).

9      Simon v R [2025] NZCA 269 at [9]–[10], citing Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.

Family Court had directed that the children were to be looked after by Ms F and not by Ms Cross. The level of contact that Ms Cross was having with her children by the time she was sentenced is unknown. That being the case, I do not consider the Judge was required to apply a discount to reflect the impact of a sentence of imprisonment on Ms Cross’s children.

Result

[19]The appeal against sentence is dismissed.

Lang J