R v Jones
[2018] NZHC 984
•3 May 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2016-019-007230
[2018] NZHC 984
THE QUEEN v
STEPHEN JOHN JONES
Hearing: 3 May 2018 Appearances:
D McWilliam for the Crown R Boot for the Defendant
Sentence:
3 May 2018
SENTENCING NOTES OF HINTON J
Counsel/Solicitors:
Philip Morgan QC, Hamilton Gavin Boot Law, Hamilton Almao Douch, Hamilton
R v STEPHEN JOHN JONES [2018] NZHC 984 [3 May 2018]
Introduction
[1] Mr Stephen Jones, you appear for sentencing today having been found guilty at trial of offences of wilfully attempting to prevent the course of justice, and failing to stop after an accident. For the second offence, you were found guilty as a party to the offending of Mr Dylan Cossey.
[2] The maximum penalty under s 117(e) of the Crimes Act 1961, for wilfully attempting to prevent the course of justice, is seven years’ imprisonment.
[3] The maximum penalty under s 36(1)(c) of the Land Transport Act 1998, for failing to stop after an accident, is five years’ imprisonment, and mandatory disqualification from driving for a period of at least one year.
Facts
[4] I set out the facts relevant to the terrible accident that occurred on 24 June 2016 when I sentenced Mr Cossey. I set those out only briefly now. I want to make it clear at the outset that you were acquitted by the jury of any involvement in that accident. I am sentencing you for offences that followed the accident ˗˗ failing to stop and attempting to prevent the course of justice.
[5] On the evening of 24 June 2016, your co-defendant, Mr Cossey was driving his Honda Integra north on Ohaupo Road towards Te Awamutu. You were seated alongside him in the front passenger seat. In the rear of the vehicle was another person.
[6] Somewhere after Te Awamutu, the vehicle in which the three of you were travelling, met up with the Nissan Skyline being driven by Mr Lance Robinson.
[7]Mr Cossey and Mr Robinson raced one another for about nine minutes.
[8]You recorded part of that race on your iPhone.
[9] While Mr Robinson and Mr Cossey raced north along Ohaupo Road, a Toyota Hiace, driven by Mr Matthew Scheepers was travelling south along the same stretch of highway.
[10] The Skyline driven by Mr Robinson overtook the Honda, lost control and collided with the Toyota Hiace.
[11]The four occupants in the Nissan Skyline were killed in the collision.
[12]Mr Matthew Scheepers, in the Toyota Hiace, was seriously injured.
[13] Mr Cossey pulled up alongside the Nissan Skyline and initially slowed his vehicle. At this point, Mr Jones, you said “Gap it, bro. Gap it”. Mr Cossey then accelerated away from the scene.
[14] On 27 June 2016, the Police organised to speak with both you and Mr Cossey. You met with the Police the next day on 28 June. You provided Police with an 11-second video of the incident. You then provided Police with a 13-second video of the incident.
[15] Forensic analysis of your iPhone revealed that the original video was 38 seconds in length and had been edited more than once, the last occasion being at about 9:00 am on 28 June, approximately two hours prior to your interview with Police.
Victim Impact Statements
[16] Mr Jones, you were present at the sentencing of Mr Cossey, and you heard the victim impact statements read out by the families of the deceased. I need to be clear again that you were not responsible for the tragic deaths, Mr Scheepers’ injuries and the terrible sorrow of the families. But it takes little imagination to understand how the families feel about your leaving the scene and editing the video.
[17] I have re-read the statements with particular focus on how they relate to your offending. Several of them condemn the lack of decency which you and Mr Cossey
exhibited after the crash, when you fled the scene rather than stopping to provide assistance.
[18] Several of the statements are kind enough, as I said in sentencing Mr Cossey, to urge both you and Mr Cossey not to waste the opportunities your youth and future offer, but to treat this moment as a turning point and to learn from your mistakes.
Personal circumstances
Prior convictions
[19] Mr Jones, I note, that until now, you have never been charged with, or convicted of an offence.
Pre-sentence reports
[20] Two pre-sentence reports have been prepared by the Department of Corrections and supplied to this Court for the purposes of sentencing you today. The second of these is dated 30 April 2018. It deals only with the suitability of an alternative address for home detention.
[21] The first report paints a positive picture. You are assessed as being a low risk of harm to the public and at a low risk of reoffending. The report notes that you have a small, close-knit family, who have supported you throughout and for which you are grateful. According to the report-writer, you displayed no sense of entitlement, nor an anti-authoritarian attitude.
[22] You are currently employed full-time. Your employer, Mr Greg Price, holds a very high opinion of you, to such an extent that he attended the interview with the Probation Service alongside you as a show of support. He was at pains to ensure that they understood you as the young man he perceives you to be. He says you are kind, thoughtful and respectful, full of promise, eager to learn and to work, and you strive to do the best job you can.
[23] It is a reflection of how positively you engaged with the Probation Service in the interview that, given the relative seriousness of the offences of which you have
been found guilty, the report recommended either a sentence of supervision, coupled with community work, or home detention.
[24] As I said during Crown submissions, I consider a sentence of supervision too light for offending of this nature.
Character references
[25] The Court has received several character references, all of which paint a positive picture of you.
[26] I have already referred to your employer, Mr Price. He says that he values your employment such that he is doing his best to develop a recognised apprenticeship scheme for aluminium joiners, since he fears he will otherwise lose you to another industry. That provides encouragement that you have a good future ahead of you, provided you are given the opportunity to make amends and move forward.
[27] Mr Michael Pearce, principal of Christian Home Educators Learning Centre Agency, who has known you for several years, spoke of your strength in reaching positive outcomes, not only for yourself, but also for others. On multiple occasions, he witnessed you encourage other students who were younger, less able or less confident than you, building them up and helping them to achieve their own goals, while meeting expectations set for yourself.
[28] Mr Andre Machell and Mrs Jen Machell, pastors of a youth group you attended some years ago, and people you have remained in contact with, expressed similar opinions of you. They speak of regularly witnessing the encouraging and uplifting way in which you interact with your family and friends, particularly those younger than you, and the resulting love and respect which those same people have towards you. They perceive immense potential in you, and are concerned at the effect that any punishment this Court might impose could have on your future.
[29] Your mother, Mrs Marcia Jones, describes the positive changes she perceives you to be undergoing and the emotional toll that the events of 24 June 2016 have had
on you. She describes the times where you have struggled to sleep, the instances where you have broken down in tears over what happened, and your regret at fleeing the scene without stopping to help.
Purposes and principles of sentencing
[30] I consider the relevant purposes I should take into account when sentencing you are the following:
(a)First ˗˗ making you accountable for the harm done to the victims and to the community. Your accountability to the victims resides in the fact that you were a party to failing to stop after the accident and, with respect to the community, in your attempting to prevent the course of justice.
(b)The second purpose I take into account is the need to instil in you responsibility for that harm.
(c)The third is denunciation of your conduct.
(d)And the fourth, rehabilitating and reintegrating you into society. This last purpose of sentencing I consider to be particularly relevant today.
[31] I do not agree with Crown’s written submissions that the community needs protection from you, Mr Jones. I am satisfied that you present as a low risk of reoffending, that you have positive social support in the form of family, friends and employment to keep you on the right track, and that you are personally committed to turning your life around.
[32]The relevant principles of sentencing you include:
(a)Taking account of the gravity of your offending, including your degree of culpability.
(b)The general desirability of maintaining consistency in sentencing; and
(c)The requirement to impose the least restrictive outcome that is appropriate in the circumstances.
Submissions
Crown submissions
[33] With regard to the offence of wilfully attempting to prevent the course of justice, the Crown contends that a starting point of at least 18 months’ imprisonment is appropriate.
[34] For the offence of failing to stop, the Crown contends again that a starting point of at least 18 months’ imprisonment is appropriate.
[35] The Crown submits that considering your age, Mr Jones, and your previous good character, you are entitled to a discount to your sentence.
[36]Finally, the Crown opposes home detention.
Defence submissions
[37] Your counsel suggests, in respect of the offence of wilfully attempting to prevent the course of justice, a starting point of between 12 and 15 months is appropriate.
[38] With respect to the offence of failing to stop, Mr Boot contends that a starting point of nine months is appropriate.
[39] He argues that a significant reduction in your sentence is appropriate, given your age, previous good character and remorse.
[40]Mr Boot seeks a sentence of home detention.
Sentencing approach: cumulative or concurrent?
[41] Section 84 of the Sentencing Act states that cumulative sentences are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they form a connected series. Concurrent sentences are appropriate if the offences are of a similar kind and are a connected series of offences. Under s 84(3), in determining whether offences are connected, the Court may have regard to the time at which they occurred, the overall nature of the offending and any other relationship between the offences that the Court considers relevant.
[42] Court of Appeal authority suggests that a cumulative sentence is usually appropriate where an offence of wilfully attempting to prevent the course of justice and another offence are being sentenced together.1 I agree. Although the attempt to prevent the course of justice occurred in relation to the incident on 24 June, out of which the charge of failing to stop also arises, the editing of the video first occurred on 27 June, three days later. Moreover, the offences of failing to stop and wilfully attempting to prevent the course of justice are two very different kinds of offending.
[43] Therefore, the offences will be sentenced separately, and will be served cumulatively with one another.
Starting point ˗˗ wilfully attempting to prevent the course of justice
[44] There is no tariff case for the offence of wilfully attempting to prevent the course of justice.
[45] The cases cited by the Crown were accepted by Mr McWilliam as not being analogous to the present case. Rather, they were directed towards identifying the general principles the Court should consider when sentencing for such an offence.
[46] In Deane v R, a sentencing appeal on an offence of conspiring to bring a false accusation, the Court of Appeal suggested it is not often helpful to consider the factual circumstances of sentences imposed for offences relating to impeding the
1 Fitzgerald v R [2012] NZCA 558 at [15].
administration of law or justice ˗˗ so much will depend on the particular factors in each case.2
[47] In M v R, the Court of Appeal approved a previous decision of the same Court, noting that “… any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional circumstances, to be met with a moderately lengthy period of imprisonment.”3
[48] Crown counsel points to a decision of Katz J, where the Judge noted that while all attempts to prevent the course of justice are serious, cases involving witness intimidation are considered to be particularly serious and this is reflected in the sentencing case law.4 She further noted that cases in which attempts have been made to conceal or destroy evidence tend to attract lower sentences.
[49] In making the above remarks, Katz J, referred to Stevens v Police, where the offender, after being pulled over and testing positive for excess blood alcohol, gave a false identity to Police.5 Ms Stevens then maintained this false identity throughout the entire Court process. When the deception was uncovered, she was charged and convicted of wilfully attempting to prevent the course of justice. In the District Court, Judge Wolff adopted a starting point of 12 months’ imprisonment, deducting a total of six months for good character and an early guilty plea.6 Heath J, on appeal, while refusing to grant home detention, noted that offending involving the provision of false information is different in kind from intimidating witnesses, and attracts a lower sentence.7
[50] Your counsel directed me towards Kelly v Police, where the offender had made intimate recordings of the female victim without her knowledge.8 The offender then persuaded a female friend to tell Police the images were of her and that she did not wish to make a complaint as the recording was consensual. Mr Kelly corroborated
2 Deane v R [2011] NZCA 60 at [14].
3 M v R [2013] NZCA 385 at [9].
4 Hamiora v Police [2013] NZHC 98 at [26].
5 Stevens v Police [2012] NZHC 871.
6 R v Stevens DC Tauranga CRI 2011-070-4149, 21 December 2011.
7 Stevens v Police [2012] NZHC 871 at [25].
8 Kelly v Police [2014] NZHC 3168.
this story to Police, but eventually his ruse was uncovered and he was charged and convicted of wilfully attempting to prevent the course of justice. The District Court adopted a starting point of 12 months’ imprisonment, which was upheld on appeal to the High Court.
[51] Your counsel also directed me towards O’Sullivan v R, a case which offers little assistance in determining what an appropriate starting point might be, as the charge of attempting to prevent the course of justice was treated as justifying an uplift of six months’ imprisonment on the lead offence of racing causing death.
[52] I accept that a sentence for attempting to prevent the course of justice needs to be dealt with on the specific factors in the case, without relying too heavily on drawing analogies with other cases.
[53] Crown counsel suggested that the editing of the video on two occasions, providing Police with an 11-second video, a 13-second video and failing to inform the Police that a 38-second video originally existed (and in fact still existed in the possession of a third party), are all aggravating features of your offending. Editing the video and concealing from Police the original video is the essence of your offending. While the editing and the concealment are to be considered in assessing your culpability, I do not consider every aspect of your offending is aggravating.
[54] Your counsel suggests that your attempt to prevent the course of justice was a misguided effort to assist Mr Cossey. I accept that such an explanation is possible, but given the deceptive conduct involved, I am not prepared to accept that explanation as to your motivation. I do not know what the longer video would have shown because you destroyed it. I am not prepared to give you the benefit of the doubt in those circumstances.
[55] You said in evidence that it was your video and you were entitled to edit or preserve it as you wished. I am of the opinion that you knew much better than that, Mr Jones. You knew the video captured a fatal car crash, along with the critical moments leading up to that crash. You knew the Police were investigating the incident
and they would have been entitled to see it. You did not need to know the precise reach of the law to know that would be true, as a matter of simple common sense.
[56] I am in agreement with Katz J, that offending which involves the destruction of evidence is less serious than offending which involves the intimidation of witnesses. While Crown counsel is quite correct that both strike at the heart of the administration of law and justice, offending which attempts to dissuade witnesses from appearing before the Courts is to be particularly abhorred.
[57] Nonetheless, I consider your offending to be quite serious and more so than the cases of Stevens and Kelly to which I referred earlier.
[58] I therefore adopt a starting point of 18 months’ imprisonment for the offence of wilfully attempting to prevent the course of justice.
Starting point ˗˗ failing to stop
[59]I now turn to the starting point for the offence of failing to stop.
[60]Again, there is no tariff case.
[61] Crown counsel referred to Gray v Police where on appeal, Wylie J adopted a starting point of 15 months’ imprisonment.9 The offender had caused an accident while fleeing from Police and had failed to stop to ascertain whether the person in the other vehicle was injured. Wylie J noted that, in contrast with decisions like Dalliessi v Police,10 Mr Gray’s vehicle did not actually impact the victim, although it did impact the victim’s vehicle. This justified a lower starting point.
[62] Crown counsel also referred to Kingsley v Police, where Gendall J noted that convictions for failing to stop and ascertain injury usually attract a sentence of home detention or imprisonment.11 Gendall J did not allow Mr Kingsley’s appeal against sentence and said that a sentence of 150 hours’ community work was lenient,
9 Gray v Police [2018] NZHC 103.
10 Dalliessi v Police [2014] NZHC 1136.
11 Kingsley v Police [2016] NZHC 1304 at [27].
considering the offender had fled the scene after his fully-laden truck, weighing approximately 38 tonnes and being 23 metres in length, had crossed the centre line, collided with a milk tanker, and caused injury to the driver.
[63] Your counsel also referred to Gray and Kingsley. No other cases were referred to.
[64] I consider that the obviously serious nature of the crash is an aggravating feature of the failing-to-stop offending. It could not be considered for a second that the passengers in both vehicles were not in dire need of assistance. I consider failing to stop in such circumstances was callous and is deserving of the Court’s denunciation.
[65] Against this factor, a mitigating feature, albeit a minor one, is the fact that the car in which you were travelling did not have any contact with the Nissan Skyline. I accept that at the time of the accident, there was a material distance between the Honda Integra in which you were travelling and the Nissan Skyline.
[66] Your counsel suggests that, since you were a party to the offending, you therefore played a more limited part in the offence. He says that your role was secondary. It involved encouraging Mr Cossey to flee the scene, your direction to Mr Cossey being to “Gap it bro. Gap it”.
[67] However, I am of the opinion that you played a material, if not equal, role in the offending.
[68] Therefore, I consider that a starting point of 15 months’ imprisonment is appropriate. In adopting that, I reject the submission of your counsel that a starting point of nine months’ imprisonment is appropriate. I consider that the obviously very serious accident which occurred, in which four people were killed and one seriously injured, absolutely necessitated yourself and Mr Cossey stopping to see what assistance could be rendered to the victims.
Mitigating features
[69] Mr Jones, you are clearly entitled to a significant reduction in sentence for the mitigating factors personal to you, which Crown counsel accepts.
[70] I first consider your age. You were 19 at the time of the offending – you are only 21 now. Sentences of imprisonment are particularly crushing on young people. Additionally, young people are considered to have greater capacity for rehabilitation, leaving behind any attitudes or beliefs which played a part in their offending in the first place.
[71] Moreover, offending by young people is frequently a phase which the individual moves through and leaves behind. Therefore, a measured response is required to ensure that the offender is not alienated from society by a sentence of imprisonment. The Court should, as far as possible, encourage the young person to reintegrate into the community, gain meaningful employment and play a worthwhile role in society.
[72] In this regard, I note the positive moves you are making in your own life towards becoming a mature and responsible member of your community and the significant support of your employer in retaining and encouraging you into a meaningful career in aluminium joinery.
[73] I accept that for you this was likely a horrific, one-off event, followed by a very grave error of judgment, but you have a lot to learn from it, Mr Jones.
[74] I also consider that you are entitled to a reduction for your previous good character. This is the first time you have appeared before the Courts. Moreover, your good character, both prior to and following the offending is not in dispute. The reference letters were positive in their praise of your character, as was the report received from the Probation Service.
[75] The Probation Officer and others say that you are remorseful. I accept that you have a level of remorse that can be taken into account. I place greater weight on your youth and previous good character.
[76] From starting points of 18 months’ and 15 months’ imprisonment respectively, I would grant a deduction of approximately 40 per cent apiece. That brings me to an end sentence for the offence of wilfully attempting to prevent the course of justice of 11 months’ imprisonment and an end sentence of nine months for the offence of failing to stop. Since the sentences are to be served cumulatively, that results in a total sentence of 20 months, or one year and eight months’ imprisonment.
[77] With regard to totality, which I have to take into account, I am concerned that the total of one year and eight months’ imprisonment does offend against the principle that the total period of imprisonment must not be wholly out of proportion to the gravity of the overall offending.12 For that reason, I would reduce both sentences by two months each. Therefore, the end sentences are nine months’ imprisonment for attempting to prevent the course of justice and seven months’ imprisonment for failing to stop after an accident, resulting in a cumulative end sentence of 16 months’ imprisonment.
Home Detention
[78] Since the end sentence I have reached cumulatively is under two years’ imprisonment, I can consider whether such a sentence should be commuted to home detention.
[79] When considering home detention, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.13
[80] As I said in sentencing Mr Cossey, home detention is not a soft option. People think it is. It is not. You will not find it easy. Nonetheless, I consider it vastly more
12 Sentencing Act 2002, s 85(2).
13 Sentencing Act 2002, s 16(1).
appropriate in this case than a sentence of imprisonment. I consider that your rehabilitation and reintegration into the community should be supported, particularly given your young age and considerable potential. I have no doubt that imprisonment would not be in your, or the community’s, best interests.
[81] The address you initially proposed for electronically-monitored home detention, being your parent’s home, was found to be unsuitable, since it has no cellphone reception. However, since then a new address has been proposed, being your sister and brother-in-law’s home. The second Corrections report notes that it is a suitable address; that the occupants are aware of the implications, their obligations and rights, and have signed the occupants’ agreement; and that there are no concerns for the children living at the address. I am satisfied that you are suitable for home detention.
[82] Your sentence of imprisonment is therefore commuted to home detention. Usually, a sentence of home detention is half of the alternative prison sentence because offenders on home detention are not eligible for parole and have to serve the whole period.
Sentence
[83]Mr Jones, please stand.
[84] For the offence of wilfully attempting to prevent the course of justice, I sentence you to four-and-a-half months’ home detention.
[85] For the offence of failing to stop after an accident, I sentence you to three-and-a-half months’ home detention. That sentence is to be served cumulatively with the sentence for wilfully attempting to prevent the course of justice.
[86]The total period of home detention is therefore eight months.
[87] I also disqualify you from driving for a period of one year, pursuant to s 36(2)(b) of the Land Transport Act 1998.
[88]You may stand down.
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Hinton J
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