Deane v R
[2011] NZCA 60
•10 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA496/2010 [2011] NZCA 60 |
| BETWEEN TRACEE MARIE DEANE |
| AND THE QUEEN |
| Hearing: 22 February 2011 |
| Court: Arnold, Gendall and Allan JJ |
| Counsel: S J Zindel for Appellant |
| Judgment: 10 March 2011 at 10.30 am |
JUDGMENT OF THE COURT
A An extension of time to appeal is granted.
BThe appeal is allowed. The sentence of two years eight months’ imprisonment is quashed and a sentence of two years four months’ imprisonment is substituted.
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REASONS OF THE COURT
(Given by Gendall J)
This is an application for leave for an extension of time to appeal against an effective sentence of two years eight months’ imprisonment imposed by Judge Zohrab in the District Court at Nelson on charges of conspiring to bring a false accusation in breach of s 115(a) of the Crimes Act 1961 (two years’ imprisonment) and three summary charges of using a document with intent to obtain pecuniary advantage, two of theft, one of driving whilst licence was suspended and one of breach of community work, (eight months cumulative imprisonment). Leave to bring this appeal out of time is necessary. As the appellant’s previous counsel filed her appeal in error in the High Court, but within time, it is not contended by the respondent that leave should be declined and it is accordingly granted. The matter proceeds on the merits.
Initially counsel for the appellant had advanced as a ground for appeal the proposition that the District Court had no jurisdiction to sentence the appellant. This was because the lead offence was indictable, so that sentence had to be imposed by the High Court. However, counsel overlooked the fact that the District Court Judge had an indictable warrant and had jurisdiction to impose sentence. The appeal has accordingly proceeded solely on the basis that the effective sentence of two years eight months’ imprisonment was manifestly excessive.
Background
On 7 May 2009 the appellant and her daughter were at Nelson Public Library using computers. A 25 year old male, who has a mental impairment, was also present using a computer. He was known to the appellant. There had been a history of animosity between the appellant and the man. After he left the library the appellant and her daughter discussed a plan as to how they could “set him up”. Their aim was to frame him with a crime. So they returned to the library, the appellant went to the toilet and her daughter entered the computer area. A short time later the daughter left the library, telephoned the police and made an allegation that a man, identified as the 25 year old male, had indecently touched her. Police patrols began to look for the alleged offender. The daughter made her statement to the police describing and identifying the male, claiming that he had indecently assaulted her in a number of ways as she was leaving the library. She not only described the proposed victim, but gave his name.
The appellant was present when her daughter made the statement to the police and supported her description. She falsely stated that she heard her daughter scream and she named the alleged offender as the man whom she saw removing his hands from her daughter’s body. Another person, a male, obviously acting in concert with the appellant, described to the police hearing the appellant’s daughter scream when the man attempted to touch her whilst she was seated in the library. All of these statements were false.
But based upon them the victim was arrested and held in custody for several hours, charged with indecent assault and released on bail. He protested his innocence but to no avail.
The police made further inquiries and on viewing surveillance tapes from video cameras at Nelson Public Library, began to have doubts about the statements that had been made. The plot unravelled when the appellant’s male associate was re-interviewed and admitted he had been coached to lie when he made a statement to the police. Then both the appellant and her daughter were interviewed. They denied lying to the police. But later the appellant admitted to the police her fabrication, explaining that she hated the victim. The appellant’s daughter eventually retracted her statement and said she had been encouraged by the appellant to lie to the police. The charge of indecent assault naturally was then withdrawn, and the appellant charged.
The appellant was also to be sentenced on summary matters to which she had pleaded guilty, namely theft of a wallet on 21 March 2009, theft of a singlet on 10 December 2009, using a document (a retail receipt) with intent to obtain pecuniary advantage on 10 December 2009, driving a motor vehicle whilst her driver’s licence was suspended on 7 May 2009, failing to complete a sentence of community work on 10 November 2009, obtaining a pecuniary advantage by using a Westpac ATM card on 21 March 2009 and again on 6 April 2009, failing to report to a probation officer pursuant to a sentence of community work on 21 March 2009, and burglary between 1 January and 28 February 2009.
The sentencing judge took as a starting point on the lead offence of conspiring to bring a false allegation a term of two and a half years. He gave the appellant a discount for the guilty plea of approximately 20 per cent so as to provide a lead sentence of two years’ imprisonment. For the other multiple offending the Judge adopted a starting point of 12 months’ imprisonment. Cumulative sentences were thought appropriate but the Judge allowed a discount of one-third for the early guilty pleas, so reaching an end cumulative sentence of eight months’ imprisonment. He disqualified the appellant from driving for six months and made reparation orders in respect of the minor theft matters.
The Judge was clearly conscious of the need to consider whether further credit could be given for the personal circumstances of the appellant. He had before him letters written by the appellant’s husband, family members and children about her good qualities, and urging the Judge not to imprison her given that she had good family support and had multiple or complex needs justifying a rehabilitative sentence. Judge Zohrab then said:[1]
The concern that I have with your offending is, in terms of the conspiracy charge, it strikes right at the heart of the justice system. You have in a premeditated, that is in a planned way decided to set up this mentally impaired person. The other concern that I have is in terms of the offending ... involving the theft of the wallet and the use of the wallet and the use of the document, [the victim] was vulnerable and you knew that, and that is why you offended in that fashion.
The other matter of concern is that you have given all manner of explanations for your offending to the police and also to the writer of the pre-sentence report and frankly it is difficult to accept anything you say. I assess you as a complete stranger to the truth. What concerns me is that you are being sentenced to prison today and I have read and have been quite concerned about the effect that this is going to have on your children because of the important role that you play in their lives, but you are supposed to be a role model. You have continually lied and misled people and have failed to accept responsibility for your actions. You have been a very poor role model. ... You should have thought about what might happen to your family before you offended in this fashion, so it is totally inappropriate to give you any further discount for your personal circumstances.
[1] R v Deane DC Nelson CRI-2009-042-1852, 14 April 2010 at [42] – [43].
On behalf of the appellant, Mr Zindel has submitted that a sentence of home detention should have been imposed, given the availability of the family home at which the appellant’s husband and four children or stepchildren live. He emphasised that the offending of the appellant may be linked to a mental or psychological state and her risk of reoffending was assessed as low to medium. He submitted that the sentence imposed upon the appellant’s daughter (the major complainant to the police in respect of the attempt to set up the male victim) was one of home detention and there was therefore disparity in outcome.
Mr Zindel further submitted that the imposition of a cumulative sentence of eight months’ imprisonment in respect of what he said were relatively minor property crimes was excessive and offended against the totality principle. He contended the end sentence should have been less than two years’ imprisonment so as to have enabled a sentence of home detention to be imposed.
Mr Zindel pointed to R v Hillman[2] where the Court of Appeal reduced a sentence to 18 months in respect of an offence of attempting to dissuade a person from giving evidence and R v Reedy,[3] where an appellant’s sentence of nine months’ imprisonment was upheld for an offence of conspiring to have another accept responsibility for possession of cannabis. But the offences charged there were different; reference to other cases for comparison purposes is not particularly helpful in such circumstances.
Discussion
[2] R v Hillman CA14/92, 14 May 1992 (noted at [2005] 2 NZLR 681).
[3] R v Reedy CA329/05, 8 March 2006.
Thankfully, the crime of conspiring to bring false accusations in breach of s 115 of the Crimes Act 1961 is rare. We have been able to locate only one other sentencing decision in New Zealand in relation to this offence, it being Police v Neal.[4] But the facts are hardly comparable because the conspiracy there was between the driver and passenger of a motor vehicle in which they conspired to allege that the passenger was the driver so “the victim” was one of the conspirators. The sentencing judge referred to the offence as being effectively obstructing the course of justice.
[4] Police v Neal DC Tauranga CRI-2009-075-158, 13 May 2009.
In the present case, however, the offence whilst obviously aimed at interfering with the course of justice, has a different sinister flavour. It relates to a premeditated attempt to frame an innocent person. Obviously, offending under s 115 can take a variety of forms and it is not helpful to try to compare factual circumstances of sentences imposed for impeding the administration of law or justice because so much will depend upon a multiplicity of factors.
As Hammond J observed in R v Mackie,[5] when sentencing a gang member who gave false evidence at a murder trial in order to produce an acquittal of the accused, there is no set tariff for perjury because cases vary infinitely; sentences must reflect the integrity of the criminal justice process, with denunciation and deterrence being essential and condign sentences necessary. Ultimately the punishment imposed should be proportionate to the seriousness of the underlying offence.
[5] R v Mackie (1998) 16 CRNZ 248 (HC) at 249–250.
In Zurich v Police[6] a sentence of 18 months’ imprisonment for attempting to pervert the course of justice was upheld. There an appellant had alleged to the police that her partner had been violent, and he was arrested and charged with injuring with intent and other offences. However, the appellant eventually admitted she had lied. The Judge agreed that a starting point of two and a half years’ imprisonment was available to the sentencing judge, with the element of premeditation and the fact that the victim was held in custody as significant aggravating features.
[6] Zurich v New Zealand Police HC Wanganui CRI-2010-483-18, 30 March 2010.
For completeness, we record that England does not have a comparable statutory offence. However, the perverting justice case of R v Fletcher[7] is of some relevance. The appellant alleged her former partner had come into her home for the purpose of raping her. He was arrested but released on police bail and had to wait three months before the police elected to take no further action. The appellant was arrested herself and a sentence of two years’ imprisonment was upheld on appeal even though it was recognised to be “relatively high”.[8]
[7] R v Fletcher [2005] EWCA Crim 3284, [2006] 2 Cr App R (S) 24.
[8] At [11].
The relevant considerations when sentencing for conspiring to bring a false accusation against another must inevitably include:
(1)The allegation must be known to be false by the conspirators;
(2)Another innocent person is the target of the conspiracy;
(3)The number of persons involved in bringing the false allegations, because the more witnesses who allege criminal actions against another and submit false statements, the more credible the police may find the accusations to be;
(4)The nature of the accusations and the charges which follow from them;
(5)The vulnerability of the victim;
(6)Whether the conspiracy is carried through to completion of the offence, where the making of the false accusation leads to the arrest (or even conviction) of the innocent victim;
(7)Whether the offenders withdraw from the conspiracy or voluntarily acknowledge wrongdoing so as to end the prosecution;
(8)The manner in which the prosecuting authorities were able to bring to light the true position, so as to prevent the wrongful prosecution of the victim proceeding. In this case the victim was particularly fortunate that the police were able to access CCTV footage from the library, which alerted them to the possibility that all might not be as simple as the complaining witnesses said.
As observed in R v Churchward[9] any attempts to disturb the process of administration of justice are to be deplored. Apart from falling into that category, the offending here carried the malicious aspect that it was aimed at an innocent victim, designed to put him in jeopardy of arrest, kept in custody, enduring a trial with the possibility of conviction for sexual offending.
[9] R v Churchward CA439/05, 2 March 2006 at [14].
We are not persuaded that the starting point of two and a half years taken by Judge Zohrab for the lead crime alone was too high. If anything it might have been on the low side. The allowance of 20 per cent for the guilty plea was also appropriate and there can be no quarrel with the ultimate sentence of two years’ imprisonment for that crime.
The cumulative sentence of eight months’ imprisonment, which arises from the concurrent sentences for the other offending, was derived from a starting point of 12 months with a one-third concession for guilty pleas. These offences were generally small-scale opportunistic offending, although one had the disturbing aspect of the appellant targeting another vulnerable victim, from whom she was able to obtain and use a bank card. The appellant’s eight previous convictions (involving five for dishonesty offences) had been accumulated over a relatively short span from July 2008 until March 2009 and she had defied a community work sentence on a charge of burglary. So she could not call in aid mitigating circumstances of a good record. The offences required a cumulative sentence for the small-scale opportunistic offending.
Viewed in the round, however, we think the starting point for the other minor offences of 12 months’ imprisonment was too high. A starting point of six months was the most that could have been justified, with a deduction of two months for the guilty plea. So as a consequence the overall effective sentence of two years eight months’ imprisonment was too high. A sentence of two years four months’ imprisonment should have resulted. We recognise that the Judge took a somewhat benevolent approach in fixing the starting point for the lead sentence but some adjustment of the overall sentence is required. For that reason we allow the appeal to the extent that the concurrent sentences in respect of the matters other than the s 115 crime should attract a sentence of four months’ imprisonment (concurrent on each offence), cumulative upon the two years’ imprisonment on the lead offence.
Result
It follows that the appeal is allowed to the extent that the sentence is varied as we have said, the end result being that the effective sentence is now two years four months’ imprisonment. Questions of home detention do not arise.
Solicitors:
Zindels, Nelson for Appellant
Crown Law Office, Wellington for Respondent
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