Neilson v The Queen
[2013] NZCA 645
•12 December 2013 at 12:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA656/2013 [2013] NZCA 645 |
| BETWEEN | ANDREW FRANCIS NEILSON |
| AND | THE QUEEN |
| Hearing: | 21 November 2013 |
Court: | Randerson, Heath and Asher JJ |
Counsel: | W T Nabney for Appellant |
Judgment: | 12 December 2013 at 12:30 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Asher J)
Following a trial in the Tauranga District Court in June 2013, Mr Neilson was convicted of three counts of wilfully attempting to pervert the course of justice. Judge L M Bidois sentenced him on 27 August 2013 to two years, two months imprisonment.[1] He appeals that sentence.
[1]R v Neilson DC Tauranga CRI-2011-070-3112, 27 August 2013.
At about 10.00 pm on New Year’s Day 2011, Mr Neilson was involved in an incident where, after some confrontational behaviour, he attracted the attention of the police. He was found to have been in possession of a knuckle duster. When the police attempted to arrest Mr Neilson for possession of an offensive weapon, he had to be held on the ground and handcuffed before being placed into the police car by force after a significant struggle. He was then transported back to the police station, and charged with possession of an offensive weapon, resisting arrest and assaulting the police.
On arrival, Mr Neilson made allegations that the arresting officers had violated his anus with a torch, pen or finger while he was being transported to the police station. A doctor called to the police station noted a two centimetre abrasion on Mr Neilson’s forehead. He carried out an external visual examination of Mr Neilson’s anus and detected no bleeding or bruising.
In the hours that followed, Mr Neilson continued to make allegations that the police had acted in a way that was unprofessional and confrontational; used force to arrest him that was excessive and constituted an assault; and penetrated his anus with a torch, pen or finger while en route to the police station.
Some time after originally being bailed from the police station, but prior to photographs being taken on 4 January 2011, Mr Neilson fabricated injuries. This was done to support his claim that the police had smashed his head into the pavement at the time of his arrest and then into the side of a car. He faked an abrasion on his forehead, cuts to both ears and showed blood coming out of each ear. He maintained right through to his trial that the photographs accurately recorded injuries inflicted on him by the police.
Following the photographs being taken on 4 January 2011, the police initiated an investigation into the complaint. He was interviewed in detail on 7 January 2011 over an hour and 50 minutes. He claimed that the police rammed his head into the road tarseal and the side of the police car three or four times. He stated that his anus had been penetrated by around 10 centimetres by the grinding in of a torch or similar object. Although he maintained that this had happened through his clothing while he was in the police car, he went on to assert that his lower clothing was later pulled down by officers so that he was in a state of undress when he arrived at the police station. He claimed that he had put his hands down his pants and found them covered in blood from his damaged anus.
There was then a full police investigation. In excess of 30 civilian witnesses and police staff were formally interviewed, including the three police officers primarily responsible for his arrest and transport, and against whom these serious allegations had been made. Although charges were laid against Mr Neilson on 10 February 2011, an inquiry instituted by the Independent Police Conduct Authority went through to May 2011, a total of some five months.
On 18 May 2011, Mr Neilson was arrested and charged with the attempting to pervert the course of justice counts. In the meantime he had pleaded guilty to the 10 February charges arising from the initial incident of possession of an offensive weapon and resisting arrest.
The starting point
The Judge treated the charge of perverting the course of justice that related to the alleged sexual violation as the lead charge. He decided that given the maximum penalty of seven years imprisonment, a starting point on that count alone of 18 months was appropriate. He then considered the further two counts of perverting the course of justice that related to the claims of assault and knowingly fabricating the appearance of assaults on his face to support the false allegations. He decided that an uplift of 12 months was appropriate to reflect the culpability for that offending. In doing so he bore in mind the totality principle. The ultimate starting point for the charges combined was therefore two and a half years imprisonment.
Mr Nabney for Mr Neilson referred to a number of cases which he submitted showed that the overall starting point fixed by the Judge was too high. In particular, he referred to R v Hillman[2] and Deane v R.[3] In Deane v R, a starting point of two and a half years was considered to be, if anything, on the low side for conspiracy by the appellant with two others to bring a false complaint of indecent assault against an entirely innocent person, who was then arrested and briefly held in custody. In R v Hillman, a sentence of three years’ imprisonment was reduced to 18 months’ imprisonment by this Court on appeal, where there had been an attempt to persuade a witness to withdraw her complaint of assault against an associate gang member.[4] However, there are a considerable number of variables in the ways in which perverting the course of justice counts arise, and as was observed in Deane v R, it is not helpful to compare factual circumstances of sentences imposed for impeding the administration of law or justice because so much will depend on the particular details of the defendant’s actions.[5]
[2]R v Hillman [2005] 2 NZLR 681 (CA).
[3]Deane v R [2011] NZCA 60.
[4]In M v R [2013] NZCA 385 at [11] this Court expressed reservations about the widespread reliance on R v Hillman as establishing a benchmark of three years for serious offending of this kind, observing that it was a decision which pre-dated the Sentencing Act 2002, and that it is not correct to view such a benchmark as properly reflecting the effects of s 8(c) and (d) of the Sentencing Act 2002.
[5]Deane v R, above n 3, at [14].
We take into account that the maximum penalty on each of the three counts was seven years’ imprisonment. This Court said in R v Hillman:[6]
… we emphasise that in all cases of this kind a condign and deterrent sentence is required because of the nature of the offending, striking as it does at the proper administration of justice …
[6]R v Hillman, above n 2, at 683
Mr Neilson’s culpability arose from his deliberately false claims of serious wrongdoing by the police, supported by fabricated evidence. In our view, the starting point was more easily assessed in the round, examining all the aggravating factors, rather than by fixing a separate starting point for one count and then uplifting the starting point to reflect the other two counts.
In assessing culpability overall, we note the following particular factors:
(a)While the initial allegations may have been spontaneous, there was particular premeditation involved in Mr Neilson returning to the police station the next day and making a formal complaint.
(b)This was compounded by Mr Neilson harming himself to fabricate evidence to support his false claims.
(c)He persisted with his false claims for over two years through to June 2013 when his trial took place. It would appear that during the course of the trial he abandoned his contention that he had been anally violated, but he continued to maintain his false claim that he had his face smashed against the pavement and the car by the police officers.
(d)The three police officers involved filed victim impact statements. They revealed considerable suffering as a consequence of the false allegations and the investigation that followed. They faced a full investigation of these alleged serious crimes for a period of five months, and remained under threat of these allegations for over two and a half years until the end of the trial.
The three police officers were all affected and suffered stress. One of the officers has a serious medical condition which has been exacerbated by the inquiry. He had to endure an eight hour suspect interview. He has blood cancer affecting his immune system, and the investigation and trial put his immune system under great stress. He tended to get ill every time there was a callover or trial date set. He described having to sit down with his family and tell them that he was being investigated for “rape”. Needless to say if the allegations were true, the police officers would have been found guilty of most serious crimes that would have involved lengthy sentences of imprisonment and the end of their careers.
(e)This offending involved serious and unfounded allegations of misconduct by police officers carrying out their duties.
The Crown in its submissions did not rely on s 9(1)(fa) of the Sentencing Act 2002 which provides that targeting a constable is a particular aggravating feature, as the section took effect on 18 September 2012, after this offending. Regardless of the applicability of the section, there is no doubt that the fact that the object of the false allegations was police officers was an aggravating factor that could be properly considered by the Judge under the general discretion given to judges in s 9(4)(a), to take into account any other aggravating or mitigating factors that the Court thinks fit.
The police officers, dealing as they were with a violent and confused situation, were particularly vulnerable to false allegations. They were carrying out their duties and dealing with an incident of public disorder, and only as a consequence of those duties did they become the subject of these false allegations. The false allegations were an attack on the integrity of the police and the administration of justice. False allegations against the police in addition to causing suffering to the police officers involved, waste police resources, damage the reputation of the police and must affect the ability of the officers involved to carry out their duties. There was a need to hold the offender accountable for the harm done to the victims and the community by the offending. Such conduct must be denounced, and offenders deterred from committing the same or similar offences.
We consider that the factors listed show a high degree of culpability on the part of Mr Neilson. Taking into account the aggravating factors and culpability that we have summarised, we consider that the starting point of two and half years to be entirely within the available range.
The notice of appeal referred to the Judge having failed to give adequate regard to mitigating factors, but that aspect of the appeal has not been pursued and there is no challenge to the deduction made of four months for remorse and an offer to make amends. We observe that this was generous, given the vigorous defence of the counts by Mr Neilson.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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