R v Grant HC Gisborne CRI 2009-016-2451
[2010] NZHC 426
•5 March 2010
IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY
CRI 2009-016-2451
THE QUEEN
v
DOUGLASINA GRANT
Hearing: 5 March 2010
Appearances: S Manning for Crown
A Simperingham and Ms Lloyd for accused
Judgment: 5 March 2010
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Gisborne
Rishworth Wall & Matheson, Gisborne
R V GRANT HC GIS CRI 2009-016-2451 5 March 2010
Ms Grant, you appear for sentence this morning having pleaded guilty to
three charges of attempting to pervert the course of justice. The maximum penalty for that offence is seven years imprisonment.
Factual background
On 18 June 2008 you went to the Gisborne police station and made a statement to the police about prolonged domestic violence suffered by you over a period of nearly two years, at the hands of your partner, Mr Jury. He was charged with a number of serious offences, including attempted murder. While he was in custody, you and he agreed that you should make yourself unavailable to the police so that you would not be able to testify against him at his trial. You also discussed steps that ought to be taken in order to preclude an order declaring you to be a hostile witness.
In furtherance of your arrangement with Mr Jury, you failed to appear at the preliminary hearing on 16 September 2008. A warrant was issued for your arrest. Again you failed to attend the rescheduled preliminary hearing on 20 October 2008.
A sufficient case was however established on other evidence and Mr Jury was committed for trial in this Court on 27 July 2009. On that day you did appear, but gave evidence which contradicted your original statement. You were declared hostile by the presiding Judge. Your evidence in chief was not completed on that day, and you were advised to return to court the following day at 10 am. You failed to do so. Then, or at any time thereafter, the trial could not continue.
Ultimately, Mr Jury pleaded guilty to amended lesser charges, and was sentenced to a term of four and a half years imprisonment.
Personal circumstances
You are a 29 year old single mother with three young children aged seven, six and two years respectively. You are currently living at your mother’s home. You have been in a relationship with Mr Jury for some 10 years. Over that period you have been the victim of prolonged abuse – physical, verbal and psychological. Some of it has been witnessed by your children. There is a background of Mongrel Mob affiliation, although you are not yourself a member. Mr Jury is, and so are members of his family.
Although Mr Jury is in prison he continues to exert some degree of influence over you through his Mongrel Mob associates, and family members. For present purposes the Court is concerned only with what occurred during the period covered by this offending. I should say that I have seen a letter Mr Jury wrote, handed up by Mr Simperingham this morning, in which he endeavours to accept sole responsibility for what occurred, and apologises to the Court for his conduct. Effectively, he exonerates you from blame. That does not amount to a complete exculpation, but it is something I take into account. Mr Simperingham advises the Court that his brother, Junior, was present during conversations between you and Mr Jury, and was instrumental in ensuring that you actually followed Mr Jury’s instruction not to give evidence.
Your counsel submits you felt you had no choice but to observe his directions, given that you are permanently surrounded and watched by other Mongrel Mob members. Accordingly, you say you were motivated by fear and a desire to protect yourself from Mr Jury and his associates.
That indication needs to be measured and tested against your apparent continuing desire to resume your relationship with Mr Jury when he is released from prison. You told the probation officer that you hoped he would turn over a new leaf, and that both you and the children miss him.
[10] In my view these considerations are not entirely reconcilable. But I do not
consider it would be proper to impose upon you any increased penalty simply by
reference to the fact that you retain a degree of affection for Mr Jury, despite all that he has done to you.
[11] You have 11 prior convictions, including breaches of community work and driving offences.
Crown submissions
[12] The Crown contends that the offending was serious and that you repeatedly attempted to derail the course of justice in order to protect your partner. Eventually you were successful, in that the trial had to be abandoned. The Crown accepts that you were subjected to pressure from Mr Jury, but points out that he was in custody at the time and you willingly conspired with him to defeat the course of justice.
The Crown argues that a starting point is a term of imprisonment. Although in written material filed by the Crown home detention was opposed, Mr Manning says today that he will leave home detention for the Court’s determination.
Defence submissions
Mr Simperingham argues that although the starting point must be a sentence of imprisonment, the Court ought to adopt the lowest point on the available range because this case differs from others, in that you were in reality the victim of the unlawful intimidation and pressure and not the perpetrator of it. From that he argues that home detention is an appropriate alternative, but that other lesser community based sentences might properly be selected in the particular circumstances of this case.
Discussion
[15] The general principle is that laid down by the Court of Appeal in R v Hillman [2005] 2 NZLR 681 at [6]:
Any attempt to dissuade a witness from giving evidence strikes at the administration of justice and must be met by the Courts with a stern response.
[16] In R v Churchward CA439/05, 2 March 2006, the Court of Appeal observed that any attempt to disturb the process of the 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.
[17] However, in R v Gemmell CA257/96, 2 October 1996 at 6, the Court noted that although perverting the course of justice was a serious charge and may in some circumstances warrant imprisonment:
The heading covers a wide range of conduct and although it is always a serious offence we accept that in many instances, a sentence short of imprisonment is in fact thought appropriate.
Circumstances emerging from the decided cases vary considerably. For example, in Churchward itself, P struck F in the face with a bottle. P was charged with wounding with intent to injure. The appellant sent F’s partner text messages and phone calls asking F to sign a statement saying that P did not hit him, because otherwise P would be imprisoned. It was claimed that P would hold a grudge forever if F did not comply. There, the Court of Appeal allowed an appeal against a non-custodial sentence and imposed a sentence of nine months imprisonment with leave to apply for home detention.
More recently in Rakete v Police HC Auckland CRI 2009-404-179, 21 August 2009, Andrews J dealt with a case in which H was to give evidence at a defended hearing. Two days before the hearing the accused phoned H’s home. H’s nine year old daughter answered and indicated that her father was not there. The accused said to her “Tell Jerry to watch his back, no witness”. The Judge imposed an end sentence of 12 months imprisonment.
Routinely it is the intimidator, or at least the initiator of the approach to the intended witness, who faces a charge of perverting the course of justice. That is hardly surprising. But here, you were essentially the victim of utterly improper pressure.
[21 ] Accordingly, this case must be distinguished from cases where those responsible for the intimidation were before the Court. It is proper to classify this sort of case as falling within the class of exceptional cases identified in Churchward. It cannot be right, in my view, to treat the victim of the intimidation in the same way as the perpetrator of it.
That is not to say that a custodial starting point should not be chosen. But the proper approach is to adopt a starting point towards, or even at the bottom, of the available range.
In Rakete Andrews J concluded that a starting point of three years imprisonment was a benchmark for relatively serious cases, and that a lower starting point between 18 and 24 months imprisonment was appropriate for less serious cases.
But the cases surveyed by Andrews J were all cases in which the accused was the intimidator, not as here the victim of the intimidation. I am bound to take into account the fact that although Mr Jury was not physically present at the time, and so unable to intimidate you personally, you were nevertheless subjected to moral pressure from him and more direct pressure from his friends and associates, most of them Mongrel Mob members or affiliates. There is no evidence of any precise or direct threat, but I accept that Mr Jury’s Mongrel Mob associations would have placed you in an invidious position.
That is of course not to excuse what you did. There were other options. For example, you could have sought police assistance and protection. Your decision to absent yourself on three separate occasions resulted in the abandonment of certain serious charges faced by Mr Jury, although eventually he pleaded guilty to a number of lesser charges. So your behaviour cannot by any means be excused.
This offending is quite different from the ordinary run of cases. I consider the appropriate starting point to be 12 months imprisonment. That raises the question of home detention. As I earlier indicated, the Crown initially was inclined to oppose home detention, but now Mr Manning leaves it in the hands of the Court.
Mr Simperingham on the other hand, says that in all the circumstances home detention would represent an onerous restrictive obligation for you, and suggests that community work or community detention would enable you to better access your current support networks, including your mother and Awhina House.
In my view this offending is too serious to attract any non-custodial sentence save for home detention. Although this is an unusual case, the fact remains that this was a charge of perverting the course of justice which is always a grave charge, and will not normally appropriately be met by the lesser penalties of the sort advocated by Mr Simperingham.
From a starting point of 12 months imprisonment I allow a discount of about 20% for your guilty plea, which was not entered at the first reasonable opportunity, but was notified at the time of committal for trial. That would produce an end-sentence of about nine and a half months.
In my opinion it is appropriate to grant home detention. Your risk of future offending is assessed as being low, provided that you do not resume your relationship with Mr Jury and provided that you avoid the company of gang members and their affiliates. That may be easier said than done, given your present situation. There is also your current problem with alcohol which plainly needs addressing.
The alcohol issue is of concern but I am encouraged somewhat by the material handed up by Mr Simperingham this morning. That suggests you have done a great deal already to grapple with your problems. I am impressed at the steps you have taken; it seems you are determined to cope with the personal issues which are impeding your progress in life. A sentence of home detention will assist you to carry on the steps you have already taken by way of counselling and other oversight, and it will also enable you to preserve your relationship with your young children.
All in all I am satisfied that this is a case which calls for home detention rather than a full time custodial sentence.
The proposed home detention address is that of your mother who is highly supportive of you and has consented to your residence at her home, along with your three children.
Sentence
You will accordingly be sentenced to five months home detention upon the following conditions:
a)you are to travel directly to 24 Hooper Street, Tamarau, Gisborne, there to wait until your home detention connection is completed by a probation officer;
b)you are to reside there and not to move from that address without the prior written approval of the probation officer;
c)you are to remain there at all times unless an absence from the residence has been authorised by the probation officer;
d)you are to attend an alcohol and drug assessment at Awhina House Gisborne, or at a similar approved agency, and you are to complete such on-going counselling as deemed appropriate from the assessment, to the satisfaction of the supervisor, probation officer and the service provider;
e)you are to abstain from the consumption of alcohol and illicit drugs for the duration of your sentence of home detention.
C J Allan J
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