R v Everitt HC Whangarei CRI 2006-088-3601

[2007] NZHC 1685

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-088-3601

THE QUEEN

v

EILEEN VERNA EVERITT

Hearing:         28 February 2007

Counsel:         D J D Sayes for Prisoner

M B Smith & B M O’Connor for Crown

Sentencing:     Accessory after the fact to a murder – 12 months Imprisonment28

February 2007

SENTENCING NOTES OF RANDERSON J

Solicitors:           D J D Sayes, PO Box 903, Whangarei

R V EVERITT HC WHA CRI 2006-088-3601  28 February 2007

Crown Solicitor, PO Box 146, Whangarei

[1]      Ms Everitt, you appear for sentence on one count of being an accessory, after the fact, to a murder committed by Mr Fenton in Whangarei on 27 August 2006. The maximum penalty for that offence is seven years imprisonment.

[2]      You pleaded guilty to this charge at depositions in January 2007.

[3]      You formerly had a relationship with Mr Fenton.   You told the police that you became aware early on that Mr Fenton was wanted for murder.  It is accepted that you contacted Mr Fenton’s sister on 29 August shortly after the murder was committed.    Then  it  is  also  accepted  that  you  and  Mr  Fenton  exchanged  text

messages  on  1st   or  2nd   September;  and  you  were  picked  up  by Mr  Fenton  the

following day (3 September) in a BMW which you knew was stolen.   You then admitted accompanying him and assisting him in evading the police over the period from 3 to 7 September 2006.  You told the police you knew what you did was wrong but wished to have one more day with him.  You assisted him by purchasing food and other items while he remained in the car out of sight and by the theft of items used during the course of the time he was on the run.

[4]      In respect of any issue of theft I put that to one side since charges of theft were withdrawn against you at an earlier stage.

Pre-sentence Report

[5]      The pre-sentence report shows that you are 29 years of age.   You met Mr Fenton four or five years ago and formed a relationship with him.   You told the probation officer that he was violent towards you on a number of occasions during the relationship and that you were hospitalised on at least five occasions as a result. Some of those assaults have caused you permanent injury.  Immediately before these events, you suffered an unfortunate miscarriage which was undoubtedly a traumatic event for you.  Your counsel has said today that the father of the twins involved in the miscarriage was Mr Fenton.  This led you to indulge in alcohol and drugs.  You told the probation officer that when Mr Fenton came to Auckland on 3 September

you were frightened and expected to be beaten up if you did not go with him.  That explanation  directly contradicts  the  statement  you  made  to  the  police  and  your counsel has stated today you do not rely upon compulsion as an explanation for why you went with Mr Fenton when you made contact with him.  Indeed, Mr Sayes on your behalf has accepted that you went voluntarily and it was you who first made contact with Mr Fenton’s sister offering assistance.  You have been in custody since these events and told the probation officer that you expect to be imprisoned and, indeed, that you would welcome that because you say you feel safe while in custody. You have had some relatively minor previous convictions for crimes of dishonesty and some violence but I do not place much weight on those for sentencing purposes.

Counsel’s submissions

[6]      For the Crown, Ms O’Connor submitted that the aggravating features were the level of premeditation involved; the fact that you made contact with Mr Fenton through his sister and initiated the offer of assistance; the length of time you spent with Mr Fenton; and the acts of assistance you provided to him while he was on the run.

[7]      It was submitted for the Crown and it is not disputed by your own counsel that a term of imprisonment is called for.   That is consistent with the approach adopted by the Court of Appeal in R v Raroa [1987] 2 NZLR 486. Interference with the course of justice by assisting those who commit murder to escape arrest calls for a deterrent sentence.

[8]      On your behalf, Mr Sayes accepts that a term of imprisonment is appropriate and does not seek leave to apply for home detention should the sentence be one of two years or less.   He has drawn my attention to a number of mitigating factors including your confession to the police and your early guilty plea.  He has also dwelt at some length in his submissions on what he describes as your fragile state arising from your past relationship with Mr Fenton, the history of which was corroborated by two persons spoken to by the probation officer and recorded in your pre-sentence report.   He submitted that you may well be suffering from battered women’s syndrome but there is nothing specific in the way of medical evidence to corroborate

that.   Nevertheless I am prepared to accept for sentencing purposes that you did suffer at the hands of Mr Fenton and despite his violence towards you, you wished to continue your relationship with him.  I also accept, because it has been corroborated by persons spoken to by the probation officer, that you did suffer a miscarriage and it was on the very day of the murder that the bodies of the two babies were returned to you.  I accept that that event was the cause of serious emotional upset to you and helps to explain your conduct.

[9]      Mr Sayes also submitted that you were not fully aware of the circumstances of the murder although he submits you felt pain and hurt that Mr Fenton would kill someone and that in the state you were in at the time, you were fully prepared to die yourself at the hands of Mr Fenton while the two of you were travelling about in the Auckland and Northland regions.

[10]     Both counsel have referred to a range of comparable cases indicating that a range of sentences between community work at the lowest end to around three years imprisonment have been imposed.   There is clearly no tariff for offending of this kind but I accept your offending is at a moderate level in comparison to some other cases where, for example, a person has rendered assistance in disposing of a body following a murder or attempting to cover up a crime to enable the killer to avoid arrest.

[11]     I have considered the purposes and principles of sentencing including the principle that any sentence of imprisonment should be the minimum which is appropriate having regard to the seriousness of the offending.  As indicated, I regard your offending as moderately serious.   You chose to assist Mr Fenton to escape apprehension  knowing  he  had  committed  a  murder.     Despite  the  widespread publicity at the time, you continued to assist him over a period of three days in the ways  I  have  described.     The  police  undoubtedly  committed  very  substantial resources to the capture of the two of you and that is an aggravating factor.  As well, the Northland community would understandably have been fearful with an alleged murderer at large in the community.  You contributed to the need for precious police resources to be employed  and  to  the risk  to  public safety  until  Mr Fenton  was apprehended.

[12]     As your counsel has accepted today, your assistance meant that he was at large for a longer period than would otherwise have been the case.   On the other hand you are entitled to credit for your confession to the police and your guilty plea at an early stage.  I also take into account what Mr Sayes had to say, supported by the probation officer, about your fragile emotional state at the time of these events.

[13]     In the circumstances, I consider the appropriate starting point is 18 months imprisonment from which I deduct six months for your guilty plea and the other mitigating factors to arrive at a final sentence of 12 months imprisonment.  I impose the standard conditions of release under s 93 Sentencing Act 2002.  I record there is

no application for leave for home detention.  (Stand down please).

A P Randerson, J Chief High Court Judge