McCausland v The Queen

[2017] NZHC 2380

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-89

CRI-2017-409-90 [2017] NZHC 2380

BETWEEN

NIKITA CHELA MCCAUSLAND

Appellant

AND

THE QUEEN

Respondent

Hearing:	21 September 2017
Appearances:	S Teki-Clark for Appellant C White for Respondent
Judgment:	29 September 2017

JUDGMENT OF MANDER J

[1]    Ms Nikita McCausland was sentenced to an effective sentence of 25 months imprisonment on two charges of receiving, and one each of perverting the course of justice, unlawful possession of ammunition, possession of utensils, and dangerous driving. She now appeals that sentence. She maintains it was manifestly excessive and that a sentence of home detention should have been imposed.

Factual background

[2]    In late October 2015, Ms McCausland was sentenced to 100 hours community work on a charge of driving whilst suspended. She breached her community work the following month, and was charged with that breach in January 2016.

MCCAUSLAND v R [2017] NZHC 2380 [29 September 2017]

[3]    In July 2016, Ms McCausland, in breach of a bail condition, visited her partner in prison. She advised him that she had arranged for another person to complete her community work. Notwithstanding his warnings she could face jail if caught, Ms McCausland on two separate occasions arranged for a friend to complete her day’s community work. She drove the friend to Community Probation, where the friend signed in on the daily worksheet as Ms McCausland and completed the community work.

[4]    In August, Ms McCausland appeared for sentence on the earlier charge of breaching her community work. A letter was provided by a probation officer which advised that Ms McCausland had made a better effort with her community work. As a result, Ms McCausland pleaded guilty and was convicted and discharged. It is these events which give rise to the charge of perverting the course of justice.

[5]    The charges of receiving and possession of ammunition and utensils arise out of the execution of a search warrant at Ms McCausland’s home in June 2016. Police found two stolen laptops, various amounts of ammunition, and a glass pipe used to smoke methamphetamine.

[6]    In August 2016, Ms McCausland was driving on a busy residential road with her cell phone out in front of her. She was observed passing two vehicles on the left hand side of the carriageway, using the bicycle lane, before crashing into another vehicle which had stopped at an intersection. The impact pushed the other car forward, where it narrowly missed being hit by an ambulance passing through the intersection.

District Court sentencing

[7]    In sentencing Ms McCausland on the charge of attempting to pervert the course of justice, Judge MacAskill, noted the strong element of premeditation present in the offending. His Honour observed and that Ms McCausland appeared to have actually succeeded in perverting the justice process by successfully achieving a conviction and discharge on the strength of the community work that she had arranged her associate to complete.

[8]    Notwithstanding Judge MacAskill’s acknowledgement of Ms McCausland’s compliance with electronically monitored bail (EM bail), he considered any sentence less than imprisonment was precluded by the seriousness of the offending, the appellant’s long list of previous convictions, and her failure to respond to previous lenient sentences.

[9]    On the lead charge of attempting to pervert the course of justice, the Judge took a starting point of 20 months imprisonment. While noting the pre-sentence report writer had assessed Ms McCausland as being motivated to change her lifestyle and having a good support network which had assisted her to focus on addressing the issues that had contributed to her offending, the Judge also observed that she was currently assessed as being at high risk of reoffending. Judge MacAskill did not consider there to be any personal mitigating factors which warranted a reduction in the sentence for this charge. However, he afforded her maximum credit for the entry of her guilty plea, which resulted in an end sentence of 15 months imprisonment.

[10]   Taking the other charges together as a group, a starting point of 12 months was applied. To this was added an uplift of four months to reflect the offending had occurred whilst on bail, and Ms McCausland’s substantial list of previous convictions, including her dishonesty convictions. No allowance was made for any personal mitigating considerations, however, a full discount was applied for her guilty pleas, in addition to a two month reduction in recognition of time spent on EM bail. This resulted in an effective end sentence for this group of charges of 10 months imprisonment.

[11]   In imposing the cumulative final sentence of 25 months imprisonment, Judge MacAskill observed that even had Ms McCausland been eligible to be sentenced to home detention, for the reasons traversed in relation to the charge of attempting to pervert the course of justice, he did not consider such a sentence to be appropriate.

Approach to appeal

[12]   In order for an appeal against sentence to be successful the appeal Court must be satisfied there has been an error in the imposition of the sentence and a different

sentence should be imposed.1 The appeal Court may intervene and substitute its own view if it concludes that the sentence being appealed is manifestly excessive or cannot be justified upon the application of relevant sentencing principles.2

The appeal

[13]   Ms McCausland relies on four grounds in support of her contention that the sentence was manifestly excessive:

(a)The starting point for the charge of attempting to pervert the course of justice was too high.

(b)Insufficient credit was afforded for the time Ms McCausland had spent on EM bail.

(c)Insufficient weight was given to relevant mitigating features personal to Ms McCausland.

(d)The resulting sentence should have been two years or less, and the sentencing Judge was wrong in his determination that a sentence of home detention would not sufficiently achieve the relevant principles and purposes of sentencing, in particular, accountability, denunciation and deterrence.

Starting point for the charge of perverting the course of justice

[14]   Mr Teki-Clark on behalf of Ms McCausland submitted the sentencing Judge erred in adopting a starting point of 20 months imprisonment on the charge of attempting to pervert the course of justice. He submitted a review of relevant case law supports a starting point of no more than 12 months imprisonment in the circumstances of Ms McCausland’s case.

1      Criminal Procedure Act 2011, s 250.

2      Ripia v R [2011] NZCA 101 at [15].

[15]   Based on the Court of Appeal’s decision in Miller v R, counsel are agreed there is no tariff decision for offending of this type.3 In that case the Court observed:

[11]  The real focus in each case of an attempt to pervert the course of  justice must be on the intention behind the attempt and on its potential effect. Because of its potential effect, deterrence of others as well as denunciation of the act itself must be the overriding sentencing principles.

In R v Churchward, the Court had earlier observed:4

[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.

[16]   As with any other offending, the imposition of the appropriate penalty will largely rest upon where it is to be placed across a continuum of seriousness whereby the most serious offences will attract the maximum sentence.5 Both Mr Teki-Clark and Mr White on behalf of the Crown referred to a number of sentencing decisions which assist in assessing whether the starting point of 20 months imprisonment was within the range of sentence available to the sentencing Judge in the exercise of his discretion.

[17]   In Tie v Police, the appellant challenged a starting point of two years and six months imprisonment.6 The appellant upon his arrest provided the name of a third party known to him. His photograph was taken on that occasion, and the third party’s details registered on the police national computer system. Over the period of a year the appellant was stopped by police on some five occasions, and he accumulated, in the name of the third party, fines in the sum of $2,250. On appeal this Court considered the aggravating factors of the offending to be its repetitive and premeditated nature and the impact on the third party victim. It considered that a starting point of two years may have been more appropriate, although the overall sentence was not disturbed because of the appellant’s previous record.

3      Miller v R [2014] NZCA 382.

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

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

6      Tie v Police HC Auckland CRI-2009-404-41, 19 March 2009.

[18]   In Dean v Police, the appellant provided false details after returning a failed breath alcohol test.7 The appellant had a number of prior convictions for drink-driving and, in an attempt to avoid a term of imprisonment, maintained a false name until his appearance in court. A starting point of two years was upheld by this Court on appeal.

[19]   In Taylor v Police, the appellant was charged with driving with excess blood alcohol under a false name, which he had provided after failing the evidential blood test.8 He was convicted and sentenced under the false name. The deception was only discovered after the person whose name he had used returned from overseas. A starting point of 12 months imprisonment was not disturbed on appeal.

[20]   In Zurich v Police, a starting point of two and a half years imprisonment was upheld where the appellant had falsely accused her partner of being violent towards her.9 As a result, the partner had been arrested, charged and held in custody for a month.

[21]   In Hiki v R, the appellant’s partner faced charges of blackmail and obtaining by deception.10 The appellant went to the complainant’s address wearing his Mongrel Mob patch and intimidated the witness to alter her evidence. He visited twice the following day. Peters J found that a starting point of two years imprisonment was manifestly excessive in the circumstances of that case and adopted a starting point of 18 months imprisonment.

[22]   In another case involving interference with a witness, R v Churchward, the respondent had consistently attempted, over a number of days, to contact the complainant with the intention of having the witness alter his evidence.11 Veiled threats were made. On a Solicitor-General’s appeal a starting point of 12 months imprisonment as sought by the Crown was considered appropriate by the Court of Appeal.

7      Dean v Police HC Napier AP58/2001, 13 December 2001.

8      Taylor v Police [2014] NZHC 2285.

9      Zurich v Police HC Whanganui CRI-2010-483-18, 30 March 2010.

10     Hiki v R [2014] NZHC 2570.

11     R v Churchward, above n 4.

[23]   As is apparent from the cases reviewed, the circumstances of each case will inevitably be different and sentences imposed in other cases have varied considerably. The seriousness of the present offending arises from the level of premeditation involved. This is marked by the recruitment of a third party and the repetition of her actions. This enabled her to avoid part of her sentence and secure a favourable outcome by being convicted and discharged on the breach charge she was facing at the time of the commission of the offence.

[24]   Mr Teki-Clark submitted that Ms McCausland’s offending was of a different order from those cases where attempts had been made to interfere with witnesses in order to avoid conviction on serious charges, and/or the offending had resulted in adverse consequences for innocent third parties. He submitted that Ms McCausland had not demonstrated an intention to avoid conviction on the breach charge, and that there was no risk of her avoiding that outcome. Mr Teki-Clark emphasised the relatively modest offences involved in the present case, namely the original driving whilst suspended charge and the breaching of community work. He noted that the latter carries a maximum penalty of three months imprisonment.

[25]   Counsel sought to demonstrate what he submitted was the relatively modest effect of Ms McCausland’s offending which resulted in her avoiding two days community work and, arguably, receiving a lesser sentence than may otherwise have been imposed in relation to a charge to which she had already pleaded guilty. The net effect, he argued, was that Ms McCausland presented at the time she came before the Court for sentence with 27 hours of community work outstanding from the 100 hours originally imposed, compared to the true position of 43 hours. There is some force in Mr Teki-Clark’s submissions when regard is had to the guidance provided by the Court of Appeal in Miller, whereby the focus when imposing a penalty for attempting to pervert the course of justice must be on the intention behind the attempt and its potential effect.12

[26]   However, this was not opportunistic offending involving a spur of the moment decision to provide false information at the time of an offender’s apprehension. Even

12     Miller v R, above n 3.

where this is the case, that is largely discounted as a mitigating factor because of the need to protect the process of the administration of justice. That consideration is equally important in order to ensure the integrity of community-based sentences is maintained. There is an obvious need for deterrence. As a result, as indicated by the Court of Appeal in Churchward, offending of this type will, in all but the most exceptional circumstances, attract a term of imprisonment.13

[27]   Having regard to the cases previously reviewed and relevant factors which bear on where Ms McCausland’s actions sit across the spectrum of offending of this type, which must always be considered serious, I consider a 20 month starting point to be excessive in the circumstances of this case and beyond the available range. At most a starting point of 15 months imprisonment was available.

[28]   Upon application of a full discount for Ms McCausland’s guilty plea entered at the time of her second appearance, an end sentence of 11 months imprisonment results. A four month adjustment might be considered perilously close to tinkering. However, it represents, in percentage terms, a 25 per cent reduction from the original starting point, and, because Ms McCausland is on the cusp of being eligible for home detention, it represents a worthwhile deduction.

Discount for time spent on electronically monitored bail

[29]   At the time Ms McCausland appeared for sentencing she had spent seven months and 21 days on EM bail. Judge MacAskill acknowledged that period on EM bail was required to be taken into account in assessing the appropriate sentence. He allowed a deduction of two months, observing that Ms McCausland had become subject to the restrictions of EM bail only because of her failure to comply with the original conditions of her bail and her further offending at that time.

[30]   Mr Teki-Clark submitted the sentencing Judge had erred in his approach because none of Ms McCausland’s offending occurred while she was on EM bail. He argued that it was not appropriate to limit the credit afforded to her because the Court viewed the restrictions placed on her to have been of her own making, and that she

13     R v Churchward, above n 4.

was fortunate to be on bail at all. He submitted Ms McCausland was entitled to a deduction of no less than four months imprisonment in acknowledgement of this feature of the period of her remand.

[31]   Section 9(2)(h) of the Sentencing Act 2002 requires a sentencing Court to consider the time spent on EM bail as a mitigating factor when imposing sentence. It is not contended that Judge MacAskill did not take this feature into account. The complaint was to the amount of credit extended to Ms McCausland for the time that she had spent on EM bail. There is no formula or rule for how much discount should be given for this feature.14 Relevant considerations include the extent to which an offender’s liberty has been curtailed by bail conditions, the duration of the remand, and whether there has been any breach of conditions.15

[32]   Mr Teki-Clark emphasised that Ms McCausland had not breached the comparatively restrictive conditions of her EM bail, but that is not decisive. There is no prescriptive formula to be applied in assessing credit for this aspect. It remains a matter of discretion for the sentencing Court, as was confirmed by the Court of Appeal in Hohua v R.16 In that case, while a higher discount could have been afforded to the appellant, a one month discount for six months spent on EM bail was held to be within the sentencing Judge’s discretion. The Court noted that the sentencing Court is best placed to assess the appropriate discount.

[33]   I do not consider the sentencing Judge’s consideration of Ms McCausland’s wider compliance with her bail obligations which led to her being subject to EM bail was an irrelevant consideration when assessing the credit to be afforded to her in the circumstances. The two month discount for the seven months spent on restrictive EM bail conditions was an assessment open to the sentencing Judge which he was entitled, in the exercise of his discretion, to determine to be a suitable discount.

14     Rangi v R [2014] NZCA 524 at [10].

15     Filoa v R [2010] NZCA 588 at [9].

16     Hohua v R [2017] NZCA 89 at [40].

Discount for mitigating features

[34]   During the course of Judge MacAskill’s detailed sentencing remarks he reviewed information provided in the pre-sentence report regarding Ms McCausland’s personal circumstances. While observing that Ms McCausland was assessed as being at high risk of reoffending and causing harm to others, a number of positive aspects of her situation were noted. These included Ms McCausland’s motivation to undertake appropriate rehabilitative interventions, including steps to abstain from using methamphetamine and to take up treatment options available to her. The establishment of a positive support network around her was also noted. This included the support of a person described by Ms McCausland as her surrogate mother, to assist her in gaining access and custody of her daughter and to address the issues that have contributed to her offending.

[35]   Judge MacAskill declined to extend credit for these features, concluding that there were no personal mitigating factors that justified any reduction. Ms McCausland had previously been sentenced in November 2014. The sentencing Judge at that time, Judge Farish, had imposed a lenient sentence on charges of aggravated robbery and joint possession of a firearm to which Ms McCausland was a secondary offender. At that time Judge Farish noted that Ms McCausland had the benefit of a very positive pre-sentence report and that she was someone who “was right on the cusp of removing herself from coming back to this Court on such a regular basis”. It appears Ms McCausland’s subsequent offending, perhaps understandably, led Judge MacAskill to the view that the Court’s prior confidence was misplaced and that Ms McCausland had failed to respond to the leniency previously extended to her. It appears this may have been why he was not prepared to place much weight on the more positive aspects of Ms McCausland’s personal circumstances as referred to in the pre-sentence report.

[36]   Mr Teki-Clark submitted the reason Ms McCausland had not made the anticipated changes to her lifestyle was because of significant personal hardships she has faced over the period since her previous sentencing. These included the death of her mother and grandfather, an incident of sexual assault by her father, domestic violence and an abusive relationship. Counsel submitted these unfortunate events have thwarted Ms McCausland’s ability to make serious life changes.  Mr Teki-Clark

submitted that Ms McCausland was now well placed to engage in change and that her sentence should take into account the prospects of her rehabilitation and reintegration, which should have been recognised by some sentence discount.

[37]   The pre-sentence report does suggest that Ms McCausland has some motivation to change her life. This was reinforced by material which was provided to me upon the hearing of the appeal. That information included documentation which corroborated the difficulties Ms McCausland has experienced. In particular, there is a letter from Ms Davina Blazey, who is the woman referred to in the pre-sentence report described as having taken on the role of a surrogate mother to Ms McCausland. Ms Blazey’s letter details the difficulties Ms McCausland has experienced and the support she and others are prepared to provide in an endeavour to assist Ms McCausland with her rehabilitation in an effort to overcome the issues which are at the seat of her continued offending.

[38]   The Crown in oral submissions expressed some disquiet at the introduction of this type of material on the hearing of an appeal against sentence. Mr White correctly observed that an appeal does not proceed as a second sentencing hearing whereby a defendant is provided with an opportunity to present a further plea in mitigation. However, it is conventional for an appeal Court to receive material of an updating or corroborative nature which relates to an issue which arises from the approach taken by the sentencing Court to a particular topic the subject of consideration at the original sentencing and bears on the approach taken at that time.

[39]   A sentencing Court is required to take into account the particular circumstances of an offender’s personal situation in order to assess the offender’s prospects of rehabilitation. I am confident the information now available would likely have influenced the sentencing Judge’s understandable scepticism of Ms McCausland’s motivation to change as a result of her having failed to take the opportunity previously afforded to her when last before the Court.

[40]   The pre-sentence report suggests that Ms McCausland does have a genuine desire to change her life, and this has been reinforced by the information provided, in particular, by those closely involved with her at the present time. While the discount

extended to Ms McCausland for her guilty pleas on the second group of charges was generous, I consider some separate discount in the region of five per cent should have been provided to acknowledge her apparent motivation to rehabilitate herself and, in particular, to address her use of methamphetamine. This would result in a small further reduction of some two months.

Appropriateness of home detention

[41]   It was urged on Ms McCausland’s behalf that should she become eligible for a sentence of home detention, that sentence should be substituted. The sentencing objectives of rehabilitation and reintegration, and the principle that the Court must impose the least restrictive outcome appropriate in the circumstances, were emphasised.

[42]   Judge  MacAskill  indicated  in  his  sentencing  remarks  that   even   had  Ms McCausland been eligible for a sentence of home detention, he would not have considered such a sentence appropriate. The Court of Appeal, in Palmer v R, held that the decision of whether to commute a sentence to home detention requires a case by case exercise of judgment by the sentencing Court and that there is no presumption either way.17

[43]   The sentencing Judge considered home detention would be an insufficient response. He reached that conclusion on the basis of the seriousness of her current offending, her previous history, which he observed was long and extensive, and her failure in the past to respond to sentences previously imposed, and to comply with community-based sentences. The need to denounce this offending and to deter her and others from such offending were predominant considerations. These factors are all valid considerations upon which the sentencing Court could properly conclude that home detention was not appropriate.

[44]   While I acknowledge that home detention is a sentence which can sufficiently meet the sentencing objectives of accountability, denunciation and deterrence, when regard is had to the seriousness of the charge of attempting to pervert the course of

17     Palmer v R [2016] NZCA 541 at [19].

justice, I am not brought to a position where I can conclude the sentencing Judge was in error. Even addressing the matter afresh, because of the nature and totality of Ms McCausland’s offending, which represents a continuation of her previous conduct, a term of imprisonment of moderate length marks the most appropriate response notwithstanding Ms McCausland’s personal difficulties and her adherence to the terms of her EM bail.

Result

[45]   The appeal against sentence is allowed. The sentence of 15 months imprisonment on the charge of attempting to pervert the course of justice is quashed and substituted with a sentence of 11 months imprisonment.

[46]   The sentence of 10 months imprisonment imposed on the receiving charge (CRN 16009011083) is quashed and substituted with a sentence of eight months imprisonment. That sentence is cumulative on the adjusted sentence of 11 months for the charge of attempting to pervert the course of justice.

[47]   The concurrent sentences of imprisonment imposed on the balance of the charges remain unchanged. Accordingly, the net effect of the appeal against sentence is the substitution of an effective sentence of 19 months imprisonment.

Solicitors:

Public Defence Service, Christchurch Raymond Donnelly & Co, Christchurch