R v Bowling HC WN CRI-2007-032-3065

[2008] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-032-3065

BETWEEN  THE QUEEN

AND  LLOYD JAMES BOWLING

Counsel:         M Anderson for Crown

K Jefferies for Accused

Judgment:      30 May 2008

SENTENCE OF DOBSON J

[1]      Mr Bowling, you appear this morning for sentence on one conviction of being a party to an attempt to corrupt a juror pursuant to s 117(b) of the Crimes Act

1961.  The maximum sentence for this offence is seven years’ imprisonment.

[2]      As  to  the  circumstances  of  the  offence,  four  men  styling  themselves  as

‘White Supremacists’, a majority of whom were acquaintances of yours, were appearing at a High Court trial in Wellington in July 2007 where they were charged with offences of kidnapping, aggravated robbery and wounding of a tourist who was a Canadian Indian.   In the closing stages of that trial, a note endorsed with the Swastika symbol reading “Not Guilty” was left at the door of the home of one of the jurors in the trial.  The juror concerned, who was Maori, revealed his receipt of the note to Court staff and he was discharged from the jury.

[3]      You were subsequently charged with being a party to the preparation and use of that note, and have been duly convicted after a defended trial on 9 April this year.

R V BOWLING HC WN CRI-2007-032-3065  30 May 2008

[4]      I have had regard to a victim impact statement prepared by the juror.   It confirms that, on receipt of the note, he had serious concerns, particularly for the safety of his immediate family, and that on-going fears about their safety forced him and his family to accelerate what had been long-term plans to leave New Zealand so as to relocate somewhere away from the potential threat represented by delivery of that note.

[5]      Relocation to another country cost the juror a significant amount in financial terms, and has also caused the distress of being separated from his extended family and friends.  Nonetheless, he is satisfied, as he puts it in the recent victim impact statement, that the move away from New Zealand was justified, on account of the peace of mind his family enjoy now they are removed from the perceived threat after receipt of the note.

[6]      Mr Bowling, you should know that at all stages the administration of justice in New Zealand treats very seriously any attempt to tamper with its fair and impartial processes.  Respect for the administration of justice is a cornerstone of a civilised society, and the Courts are always vigilant in protecting that.  The Court of Appeal observed in R v Churchward CA439/05 2 March 2006, which is one of the cases the Crown urged the Court to take into account, that:

…any 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. [14]

[7]      In Churchward, the offender had threatened two people with violence if one of them did not make an additional statement that counteracted an earlier statement complaining of assault.  Within the confines of a Solicitor-General’s appeal from a sentence of 250 hours’ community work, the sentence was increased to nine months’ imprisonment.

[8]      In another case, R v Hillman [2005] 2 NZLR 681, which was reported in

2005 but was actually before the Court of Appeal in 1992, the offender appealed against sentence on conviction for perverting the course of justice under s 117(d) of the Crimes Act.  In that case, the offender had tried to convince a complainant and

witness to drop assault charges that had been filed against him.  The offender had not used actual violence, but had been very intimidating.  In that case as well, the Court of Appeal emphasised the stern response that the Courts will provide to any attempt to dissuade a witness from giving evidence because it strikes at the administration of justice.   In that case, the Court reduced the original sentence of three years’ imprisonment to 18 months’.

[9]      In submitting that the parameters of sentencing indicated for the Crown are too high, Mr Jefferies on your behalf has referred to the case of R v Robinson [2007] NZCA  336.    That  case  involved  an  offender  who  was  facing  cannabis-related charges sending copies of a pamphlet describing the benefits of cannabis to persons who were on a jury list and what he contended their obligations would be as jurors. In the course of dismissing an appeal against both his conviction and the sentence, the Court of Appeal observed that a sentence of 200 hours’ community work was “moderate” in those circumstances.

[10]     Although there is that guidance at a general level in respect of offences seeking to disturb the administration of justice, I do not have the guidance of any cases specifically considering sentences for convictions under s 117(b) of attempting to influence a juror.   It has been submitted for the Crown that cases involving interference with jurors should be seen as more serious than those involving attempts to interfere with witnesses, because jurors are entirely unrelated participants discharging their citizens’ duty as an important aspect of the actual administration of justice, whereas witnesses are involved by virtue of some interest in the subject matter.   As a generality, that proposition may be valid, but I see no purpose in attempting to rank the relative seriousness of the range of potential offences provided for in each of the subsections of s 117.  The wording of the section does not suggest any variation in their relative gravity, and each is subject to the same maximum penalty.  Each case will depend on all of its particular circumstances.  In this case, the completely unconnected status of the complainant, and the positive responsibility he was endeavouring to discharge as a serving juror in a second week of a serious High Court trial, certainly underscore the seriousness of what occurred.

[11]     Here, the totality of the conduct was certainly very serious.  Those associated with openly racist and aggressively expressed views used a universally recognised symbol of White Supremacist claims to reinforce a threat that the juror ought to return a not guilty verdict.  That threat was targeted against a Maori member of the jury, and  had considerable  impact.    Not  only is  that  deplorable  conduct,  but  it constitutes serious criminal offending.  Had all of the elements of this offending been established against you, then a starting point in the range of three to three and a half years’ imprisonment would have been appropriate.

[12]     However, although the legal consequences of your being charged as a party means that you are liable to conviction irrespective of the relative importance of your part in the total offending, in deciding an appropriate sentence, I must be cognisant of the part your conduct contributed to the matter overall.  It is submitted on your behalf that you have consistently denied having any part in placing the note at the home of the juror, so that your part in the offending was confined to the preparation of the note.  Certainly, there was no evidence at the trial linking you with the placing of the note at the juror’s home.  The circumstances of preparation and use of the note do have the hallmarks of a joint enterprise between you and others involved in, or at least sympathetic to, the defendants’ cause in the kidnapping trial.  The Crown has urged strongly that a range of circumstances warrant the inference that you were a party to targeting this particular juror.  However, I do not consider it is appropriate to sentence you on a basis as if you had carried out all of the elements of the crime alone.

[13]     That leads to the question of whether targeting a Maori member of the jury, which was undoubtedly on a racist basis, can be attributed to you.  There are grounds for drawing that inference, but I consider it would be unsafe to sentence you on the basis that your part included targeting a Maori juror.   That is significant because s 9(1)(h) of the Sentencing Act 2002 would require me to treat as an aggravating factor, that this was a so-called “hate crime”, in the sense of being motivated by prejudice against, or accompanied by overt hostility towards, a particular group in our society.  The Crown has submitted that this is an aggravating factor here, and to an extent any use of the Swastika emblem in confrontational circumstances is discriminatory, given its anti-Semitic connotations.  In that sense, your participation

contributed to what was a hate crime, and it ranks as a modest aggravating factor. Not, however, to the extent that would have applied, had you committed the crime alone.   Weighing all aspects of your contribution to this offending, I consider an appropriate sentence for the offending would be one year and nine months’ imprisonment.

[14]     In  terms  of  your  own  personal  circumstances,  two  are  of  concern  as aggravating factors.  First, is the existence of a very long list of previous convictions spanning  some  three  decades.    Your  most  recent  conviction  was  for  violent offending, and s 9(1)(j) of the Sentencing Act requires me to have regard to your previous criminal history.  Lessening that is the fact that you kept out of trouble in terms of convictions between 1991 and 2007.

[15]     Secondly, your contribution to this present offending occurred whilst you were on bail for other matters.  I am required by s 9(1)(c) of the Sentencing Act to have regard to that.   I am advised by the Crown that you were on remand for a charge of injuring, which is the offence on which you have most recently been sentenced for hitting another man in the face with a bottle.  The Crown advises that the Court on sentencing noted that the victim on that occasion was a Turkish man whom you hit because he was not from New Zealand.

[16]     In combination, these two adverse personal factors must add to the ultimate sentence that is appropriate.   I cannot find any material mitigating factors.   The aggravating factors require an uplift of at least three months, and not fixing it higher than that is being lenient towards you.

[17]     Having regard to all of these matters, I consider the appropriate term of imprisonment would be two years.   A sentence of that length entitles you to consideration of the alternative of home detention.   The pre-sentence report recommends that course.   The Appendix to the report advises that your mother is prepared to have you reside with her in Foxton.  Section 10(a) of the Sentencing Act

2002 recognises a hierarchy of sentences, and the suitability of an address at which to serve home detention does not necessarily lead to that outcome.  The Crown, if you  qualified  for  home  detention,  would  oppose  it  nonetheless  because  of  the

seriousness of the group of offences in 2007 and your failure to comply with bail terms and the fact that part of this offending occurred at your home address.

[18]     Mr Bowling, there has to be a strong deterrent signal sent in relation to any involvement in such serious offending and the combination of the circumstances of your offending and your own circumstances weigh against the alternative of home detention in this case.

[19]     Accordingly you are sentenced to a term of imprisonment of two years.

Dobson J

Solicitors:

Luke Cunningham & Clere, Wellington for Crown
Jefferies Raizis, Wellington for Accused