R v Brett HC Auckland CRI 2006-044-7302

[2007] NZHC 1979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-044-007302

THE QUEEN

v

ELISHA BARBARA BRETT

Appearances: K J Glubb for the Crown

P Brock for the Prisoner

Sentence:       8 August 2007

SENTENCING NOTES OF PRIESTLEY J

Counsel:

P Brock, P O Box 32-462, Devonport, North Shore

K J Glubb, Meredith Connell & Co, P O Box 2213, Auckland

R V BRETT HC AK CRI 2006-044-007302  8 August 2007

[1]      This  is  a  difficult  sentencing.    The  culpability  involved  is  not  high  but weighing the purposes of both denunciation and rehabilitation it is perplexing.

[2]      Until 6 August the prisoner was facing a charge of being an accessory after the fact in respect of attempted murder.   As a result of an amended indictment against her co-offender, Mr Tuheke, and his guilty plea to causing grievous bodily harm, an amended charge was laid to which Ms Brett pleaded guilty.

[3]      Mr Tuheke was in a domestic relationship with the prisoner.   For various reasons she obtained a protection order against him under the Domestic Violence Act.  I suspect one of her motivations in obtaining that order was to bolster up her position so far as three dependent children were concerned, there being a perceived risk that a child might be removed from her.

[4]      The agreed summary of facts makes it clear that in the same time frame as Mr Tuheke was served with this protection order he wrongly assumed that the prisoner was associating with another man.   In the early hours of 7 July 2006 Mr Tuheke drove to Ms Brett’s address, taking with him a 15 cm bladed hunting knife.  During the ensuing altercation this knife was thrust through the complainant’s left cheek and punctured his sinus cavities.  The force of the blow broke off the blade of the knife. Fortunately, the injuries to the victim permitted the extraction of the knife blade without his death.  Mr Tuheke has previously offended in a similar manner before.

[5]      The prisoner was originally oblivious to Mr Tuheke’s intention.  When the assault commenced she intervened and tried to place herself between Mr Tuheke and the victim.  The charge she faces, of being an accessory after the fact, is based on post-assault events.  She left the address taking with her the couple’s two year old child.   She then met Mr Tuheke and drove him to Northland in an endeavour to avoid his detection by the police.

[6]      Mr Brock’s helpful submissions deal in part with her motivation.  There was clearly, as is so often the case in domestic violence situations, a close emotional bond between the prisoner and Mr Tuheke.  Her instructions were that at the time of

her offending she was very upset and shaken.   She had no long term objective in mind, but wanted to protect Mr Tuheke from arrest.

[7]      She  made  a  fairly  full  statement  to  the  police.    I  accept  Mr  Brock’s submissions that the incident in the early hours of that morning would have been extremely distressing to Ms Brett and that her offending was very much a spur of the moment decision.

[8]      Ms Brett pleaded not guilty to the previous charge she faced.  It strikes me that plea was well grounded, given her belief that her partner was not intending to kill the victim.   However, on the first available opportunity, two days ago, she pleaded guilty to the amended charge.

[9]      I decided on 6 August to deal with the matter today without benefit of a pre- sentence report.   I did this because it seemed to me that, given the well known dynamics of domestic violence a custodial sentence was unlikely.  There is nothing I have heard or read since that changes me in this view.

[10]     The prisoner will be  24  in  a  fortnight’s  time.    She  has  two  convictions flowing from February 2004 of assault and threatening to kill in respect of which she was sentenced to 200 hours community work coupled with nine months supervision. I am told from the Bar that she faces other drink/driving offending and a charge of receiving which have yet to be dealt with.

[11]     The   prisoner’s   accommodation   over   the   past   few   weeks   has   been problematic.  She is currently living in a motel in Auckland but intends to return to Paparoa and to live there in a rural environment with her mother.

[12]     One of the problems with imposing a community work sentence would be her rural isolation and also the need for her to drive.  Similar problems would attach to a supervision sentence.

[13]     Mr Glubb realistically does not urge, in the circumstances of this case, a term of imprisonment.  He submits, and correctly so, the denunciation aspect, however,

needs to be recognised by the Court.  His submissions refer to recent authorities of

R v Thompson (CA348/96, 23 October 1996), R v McNab (CA425/90, 14 February

1991), and Fogarty J’s recent decision of   R v McKenzie (CRI 2005-009-6159, 10

March 2006).  In all of these a custodial sentence was imposed.   In McKenzie the prisoner was the brother of the principal offender.  Mr Glubb submitted a sentence of community work might be appropriate.

[14]     There is a fascinating policy difficulty arising out of the charge to which the prisoner has pleaded guilty under s 71(1) of the Crimes Act 1961.   Subsection (2) effectively prevents a charge of being an accessory after the fact being laid against a spouse or civil union partner who has enabled the other partner to escape after arrest or  avoid arrest or conviction.  It is clear from the factual matrix that at the relevant time, despite the protection order, Ms Brett could be termed a de facto partner or recent  de  facto  partner  of  Mr  Tuheke.    It  seems,  with  respect,  anomalous  that although s 71(2) has recently been amended by the provisions of the Relationships (Statutory References) Act 2005 to include a civil union partner, there has been no extension to de facto partners, despite legislative initiatives in recent years extending the substantive law which applies to husbands and wives to de facto couples, such as the Property (Relationships) Act and other family law legislation.

[15]      The anomaly is heightened by the fact that many of the ancient common law procedural  protections  in  respect  of  spouses  have  been  abolished  by  the  new Evidence Act.   It is my intention, in due course, to refer this anomaly to the Law Commission for further investigation.

[16]     Returning, however, to the dilemma  I face, I have already convicted the prisoner on what must be regarded as a serious offence.  Given, however, the fact that she comes close to the policy of s 71(2), and given the mitigating factors to which counsel have referred me, including her guilty plea, the dynamics of domestic violence, and the lack of premeditation, I consider that conviction will constitute sufficient  denunciation  and  deterrence.    I  am  concerned,  however,  by the  clear predicament of the prisoner.  She has still to face other charges in the District Court. What the outcome of those charges will be I know not.  I think it will be salutary, however, for Ms Brett to know that, if from today she embarks on further offending,

she could well be sentenced by this Court on a less lenient basis than the one I am prepared to extend to her today.

[17]     Accordingly, I order, pursuant to s 110(1) of the Sentencing Act 2002, that Ms Brett is to appear for sentence, if called on to do so, within a period of nine months, running, in terms of s 110(2), from 6 August 2007.

...........................................… Priestley J