R v Cobb HC Hamilton CRI-2007-419-03

[2007] NZHC 1709

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2007-419-03

THE QUEEN

v

VICKI MARIE COBB

Hearing:         30 March 2007

Appearances: Ms L Dunn for Crown

Mr M Talbot for Prisoner

Judgment:      30 March 2007

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Hamilton

McCaw Lewis Chapman, Hamilton

R V COBB HC HAM CRI-2007-419-03  30 March 2007

[1]      Ms Cobb, you appear for sentence having pleaded guilty earlier today to a charge of wilfully attempting to pervert the course of justice.   I sentence you today without the benefit of a pre-sentence report because I have reached the clear view that a custodial sentence should not be imposed upon you.

[2]      The offending for which you appear for sentence arises following an incident that occurred at Waingaro on or about 7 June 2005.     You were residing at the address at that time with your partner, Dwayne Wilson.   For some time prior to that date you had also allowed Mr Kim Smith to reside at your property.   As you knew then, Mr Smith was wanted by the police on a number of outstanding charges.

[3]      Mr Smith was living in a garage on the Waingaro property.   On the evening of 6 June his partner, Ms Carrie Lyndon, was also at the property.   In the early hours of the morning of 7 June 2005, your partner, Mr Wilson, received a fatal gunshot wound whilst he was in the garage in the presence of Mr Smith and Ms Lyndon.   At that time you were asleep in your bed in the house.    Ms Lyndon immediately came into the house to tell you what had happened.    You then went out and attended to your partner, who was obviously severely injured.    Just before the arrival of the ambulance, Mr Smith departed from the property.

[4]      Not surprisingly, you were interviewed by the police once they arrived at the scene.   they interviewed both you and Ms Lyndon.   You made no mention at that time of the fact that Mr Smith had been staying at the property.   You confirmed that in both a written statement and a videotaped interview.     During neither formal interview did you disclose the fact that Mr Smith had been at the property.    As a result, the police, for some 36 hours, had no idea that Mr Smith had been there at the time that your partner was fatally wounded.

[5]      The police visited your address in Hamilton on 8 June 2005.    At this time you voluntarily disclosed to them that you knew who was at the property at the time of the shooting and you told them that it had been Mr Smith.    You then made a written statement to the police advising them that Mr Smith had been living at the property for two to three months.    You also confirmed that, as time went by, you knew that he was wanted by the police.     You told the police that you had not

advised them of this fact earlier because you were scared of the consequences of doing so, both for yourself and your family.

Sentencing Act 2002

[6]      Although I do not propose to refer to them in detail, I need to refer briefly to the relevant sections of the Sentencing Act 2002.

[7]      In the present case I consider that one of the most important factors that need to be taken into account in the sentencing process is the need to deter, not so much you, but others, from engaging in similar conduct in the future.   If people make false statements to the police or, if they omit to tell the police material facts and know that no consequences at all will follow, then that will be of  some detriment  to  our criminal justice system.

[8]      In my view the fact that you have pleaded guilty to the charge is sufficient acknowledgement on your part that you hold yourself responsible for the offending. For that reason, after the issue of deterrence, I consider that the most important factors  are the need, if possible,  to  ensure  that  a  community  based  sentence  is imposed so as to enable you to reintegrate yourself into society with the minimum possible long-term effects.

Starting point

[9]      There  is  no  “tariff”,  or  guideline,  judgment  for  charges  of  this  type. Offending of this type occurs in a wide variety of circumstances and the Court must pay individual attention to each.

[10]     Of itself, Ms Cobb, I would have thought that your offending would attract a short term of imprisonment.   This is because, although I know that you struggle to accept it, your actions did have consequences.     First, and most obviously, your omission to tell the police that Mr Smith had just left the property meant that they did not know that a wanted fugitive was nearby.   He was accordingly given time to escape and conceal himself again from the authorities.

[11]     More importantly, however, as you well knew, the police were investigating a homicide.    A person had died.    A person, your partner, had died as a result of gunshot wounds.    You yourself at this stage had no idea of the circumstances in which he came to be fatally wounded.

[12]     In any police investigation of this type it is absolutely essential that the police be given the full facts immediately so that they can make immediate enquiries. Your failure to say anything about Mr Smith’s presence at the time of the shooting meant that the police set off on a completely different track in investigating the shooting than they would have done if you had told them the truth at the outset.   It is important, as I have said, that people co-operate with the authorities, particularly in circumstances when serious incidents such as that occur.   For that reason, as I have said, I consider that the starting point in any charge involving circumstances such as these would ordinarily be a short sentence of imprisonment.

[13]     In  your case, however, because of  your particular  circumstances and the circumstances in which the offending occurred, I am prepared to accept that a non- custodial sentence should be imposed.   The issue really is what type of sentence that should be.

[14]     Having reflected on the matter over the last few months I have come to the conclusion that there would be absolutely no point in sentencing you to community work or any other form of sentence such as that.   I believe that you have learned a lesson from what occurred here and that you have been through enough over the last few months not to warrant any other additional form of punishment being imposed. The real issue I must determine today is whether, as your counsel submits, I should discharge you without conviction or whether I should convict and discharge you.

Discharge without conviction?

[15]     Your counsel has argued persuasively that  this  is  an  appropriate  case  in which the Court should exercise its discretion to discharge you without conviction, notwithstanding the seriousness of the charge that you face.   He points out that, in your own eyes, if you are convicted you will tainted by a conviction that relates directly to the most tragic event of your life.   He points out also that it has taken a

long time for you to even accept that you did anything wrong, and that it has taken some effort for you to accept that it is appropriate that you should plead guilty to the charge against you.

[16]     He emphasises the fact that this entire event was a matter of monumental proportions to you.    Not only did you lose your partner but you were subject to a lengthy police investigation and you initially faced a significant number of serious charges.    Ultimately, of course, virtually all of these were either dismissed by the Court or withdrawn by the prosecution.

[17]     Your counsel also refers to the fact that the offending occurred over a very short duration and that you disclosed it voluntarily.   Further, he points out that at the time that you omitted to tell the police of Mr Smith’s presence you were in a state of shock following your partner’s wounding and death.   Your own recollection of these events, he says, is blurry.   Mr Talbot says that it was not until some time later, when you spent some time at your grandparents’ house that you were sufficiently, in his words, “together” to be able to confront the police and tell them the truth.

[18]     I acknowledge that all of those are powerful reasons why you should not suffer any other form of penalty.    I accept that this entire incident has had lasting effects and repercussions for you.    It cannot have been easy for you to deal both with your partner’s death and  also the fact that  you were charged  with serious criminal offences.   This has had practical consequences for you, because you have been on bail for a significant period and this has restricted your activities.    In the end, however, I am left with a situation in which a vital witness who could provide material information to the police elected not to do so.

[19]     I accept that you may well have feared for your safety at the hands of Mr Smith and his associates.    That is not, however, a reason for the Court to enter a discharge without conviction.   The difficulty with that, Ms Cobb, is that it sends the message to people who use standover tactics that those who comply with such tactics will not receive any sanction at all.   If that was to become well known then strong- arm tactics would become the “norm”.

[20]     For these reasons, and whilst I have every sympathy for your situation, I consider that the seriousness of your offending is such that it must at least be marked by a conviction.

Sentence

[21]     The sentence of the Court is therefore that you be convicted and discharged. [22]     Stand down.

Lang J