R v Martin HC Auckland CRI 2007-004-6140

[2007] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-6140

QUEEN

v

DONNA MARTIN

Hearing:         14 August 2007

Appearances: S Mandeno for Crown

C Rameil for Prisoner

Judgment:      14 August 2007

SENTENCING NOTES OF ANDREWS J

Solicitors:           Crown Solicitor, PO Box 2213, Auckland

Counsel:             Carolyn Rameil, PO Box 276041, Manukau City

R V D MARTIN HC AK CRI 2007-004-6140  14 August 2007

[1]      Donna Martin, you appear for sentencing today having pleaded guilty to one charge of wilfully attempting to pervert the course of justice.  I note that the charge was laid under s 117(d) of the Crimes Act 1961.  I have been advised today that the correct charge is s 117(e) of the Act and your counsel has agreed to that amendment.

[2]      The  maximum  sentence  that  can  be  imposed  on  conviction  for  such  an offence is imprisonment for seven years.

[3]      The circumstances are somewhat unusual in this Court.  In October 2005 you gave the Police details of what you said was a homicide.   This started when you heard a gunshot, as indeed there was a gunshot, but when you were interviewed by the Police as a possible witness, given that you were in the area, you added considerable  detail  as  to  what  had  occurred,  what  you  had  seen  and  who  was involved.   You described the body lying on the ground and what was done with it. Your story lead to extensive inquiry. It was not until three weeks later that you admitted that you had made it up, apart from the fact that you had heard the gunshot.

[4]      A  substantial  Police  team  was  involved  in  the  inquiry.     There  were

Detectives, photographers, experts, scientists, scene guards and costs of more than

$141,000.

[5]      I will explain the sentencing process.  First, I am going to talk to you about the general law relating to sentencing.   I will talk to you about the principles that are set out in the law that I have to apply.   Then I have to decide what sentence is appropriate for you, for your offending, taking those principles into account.

[6]      At that point there is a two-step process.    The first is to establish what is referred to as the starting point.  I will explain that to you.  It is what would be the sentence imposed for conviction on that charge, on which you have been convicted, if you had been tried in Court.

[7]      The second step is then to arrive at the actual sentence for you and for your offending.  I do this by considering whether there is anything about your offending

that makes it more (or less) serious.   These are aggravating (or mitigating) factors that would lead me to impose a sentence that is either greater or less.   I also consider matters that relate to you personally because these might also lead me to adjust that sentence up or down.

Purposes of sentencing

[8]      In sentencing you I have to take into account what  the law says are the purposes:

a)       I have to hold you accountable, to make you responsible for what you did;

b)       I have to consider deterrence and protection of the community;

c)       I also have to express to you that the type of offending on which you have been convicted is unacceptable in New Zealand society.

[9]      At  the same time the purpose is to  help  you  with getting  back  into  the community and being a useful member of it.

General principles

[10]     There are also some general principles of sentencing that must be considered. a)    I have to look at how serious your offending was.

b)       I have to look at that seriousness in comparison with other kinds of offences.

c)        I have to try to keep sentencing levels consistent.

d)I have to take into account any information provided about the effect of your offending on the victim and in this case the victim is the police.  The time and the cost of that substantial inquiry;  and

e)        I  am also  directed  to  impose  what  would  be  the  least  restrictive outcome that is appropriate in the circumstances.

[11]     While it is desirable to keep offenders in the community if that is practicable, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant in your case.   In your case the Crown has sought a sentence of imprisonment and your counsel acknowledges, properly, that a sentence of imprisonment is appropriate.

Starting point

[12]     I  first  look  at  the  features  of  your  offending,  whether  there  are  any aggravating or mitigating features of the offences.   I accept that there was little planning  involved.    However,  the  effects  of  your  offending,  the  major  Police exercise that it triggered, must be seen as aggravating factors.

[13]     I have now looked at  comparable cases because it  is desirable, as I said earlier, to maintain consistency.  Sentences for the charge on which you have been convicted  were  reviewed  in  the  case  of  R  v  Dutt1   in  2004.    The  Judge  there concluded that the appropriate starting point, if it is a serious case, is three years imprisonment.  If it is a less serious case the starting point is from 18 months up to

24 months imprisonment.

[14]     I also need to tell you that in a case of R v Coneybear2  the New Zealand Court  of  Appeal  said  that  offending  of  this  kind  must  be  dealt  with  severely. Engaging Police resources in the sense of commencing a homicide investigation is not something that can be treated as a joke.

[15]     Now  having  considered  the  authorities  and  the  circumstances  of  your offending I have concluded that the appropriate starting point is 18 months imprisonment.  That takes into account the effect of your offending.     I note that I have, in doing that, adopted the lower end of the range and that is largely to take into

1   R v Dutt HC AK T025524 2 April 2004, Potter J

2   R v Coneybear [1966] NZLR 52

account what I accept must have been a spur of the moment decision to tell the

Police that story.  It has had, as you now realise, very serious consequences.

Personal factors

[16]     I now turn to matters that relate to you personally.    You have a list of, I understand, 30 previous convictions which have covered a period of some 22 years. Most  of  them  appear  to  have  been  for  driving  offences,  drugs  and  dishonesty offences.

[17]     I have read today the recent pre-sentence report.   I understand that you are now 38 years old.  At the time of this offending you were working as a sex worker. You have long had a drug addiction and said that at the time you made up this story to the Police you were under the influence of drugs.

[18]     The Probation Officer says that you have expressed remorse;  he said you are sorry for this offending and you have accepted your own responsibility for it.   Both of those are a good start, you have got a way to go.  The Probation Officer assesses you as still being at a high risk of reoffending.   It seems to me that that risk will continue unless you have a good treatment programme for the drug addiction and deal with other issues.

Counsels’ submissions

[19]     I now come to consider what Ms Rameil on your behalf and Ms Mandeno for the Crown have said today.

[20]     Ms Rameil referred me to a case that is familiar to us which is the woman in Papakura who was convicted of making a false complaint.  It has some similarities but she was charged under a different provision, which has a different sentencing regime.  It is also the case that the facts from the two cases are really not the same.

[21]     Ms Rameil again pointed to the comment, and I think on instructions from you, that at the time of your making the report and having the interview with the Police you were under the influence of drugs, heavily so she said.  You were unable

to separate fact from fiction.  You didn’t want to be interviewed by the Police and when you were eventually interviewed you made up the story and then you maintained that for three weeks until you finally said that it was false.

[22]     Ms Rameil says that over recent weeks there has been an enormous advance in your life.   You have now found yourself able to leave a violent relationship, whereas previously you stayed in them.    You have not gone back on the street or into drugs and you have been living with your mother over the last two weeks, drug- free.  I accept that is in your favour and again, it is some progress.

[23]     Ms Rameil, while acknowledging that imprisonment was inevitable, asked that it be for as short a term as possible.

[24]     Ms Mandeno pointed out that even if you made up a story on the spur of the moment and under the influence of drugs you did have the opportunity, at some stage before you did, to tell the Police that it was not true.  She quite rightly says it would have been apparent to you that the Police had launched a major investigation.

[25]     I could accept that once having told the story it would be difficult to come clean.   But you have to understand that at the time, as Ms Mandeno says, the Police were investigating two other homicides so the Police resources were very stretched by your having added to their work.

[26]     Ms Mandeno, on the basis of what  is in the pre-sentence report,  queries whether you have truly accepted responsibility.  She says it does not appear that you have actually taken steps to obtain any treatment for your drug addiction and she further notes that, in fact, when you left Matamata and returned to live with your mother you immediately were in breach of your bail residence condition.   Clearly, you should have told the Police you were moving.

[27]     To summarise what personal factors I will particularly take into account, the most significant one is the fact that you very early entered a guilty plea on the charge and for that you will be given credit.

[28]     I give you the benefit of the doubt that you have indeed expressed the fact that you are sorry for what you have done and I also give you the benefit of the doubt as to whether you in fact have taken steps and are intending to take steps to address your drug addiction.

[29]     In the end result your sentence, which I have set at 18 months imprisonment, I will reduce by six months and that takes account of those personal factors in your favour.

Sentences

[30]     Accordingly, on the charge of wilfully attempting to pervert the course of justice – you are sentenced to 12 months imprisonment.

[31]     On your release there are conditions that I will impose, and I will return to them shortly.  I will deal first with the matter of home detention.

[32]     As I have sentenced you to a sentence of less than two years imprisonment I am obliged  to  consider  whether  you  should  be  given  leave  to  apply  for  home detention.

[33]     Ms Mandeno has opposed leave being granted and this is largely on the basis of the authorities that  we have referred  to today,  which were to the effect  that deterrence is the paramount consideration and that the very charge on which you have been convicted shows a lack of respect for authority to date.  Ms Mandeno also points out that you have previous convictions of failing to answer bail and of course there has been the recent failure to advise the Police that you were moving.

[34]     The issue of home detention causes me considerable difficulty.  However, I

am aware that leave should be given unless there are truly compelling reasons not to.

[35]     In the circumstances I  will give  you  leave to  apply for  home  detention. Whether you are granted home detention or not is not a matter for me, it is a matter for the Parole Board, that is, if you make that application.

[36]     I will not release you on bail pending the making of that application; it is for you to persuade the Parole Board that it is appropriate, if you wish to apply for home detention.

[37]     I will impose two post-release conditions.  They are:

a)        To attend and complete a drug rehabilitation treatment  programme and any follow up as directed by the Probation Officer.

b)       To attend and complete any other counselling or treatment as may become necessary if directed by the Probation Officer.

You should understand Ms Martin that you will be required to attend any treatment or rehabilitation programme the Probation Officer directs.

[38]     I  will  not  impose  a  minimum term,  nor  will  I  make  an  order  directing reparation.

[39]     The summary of facts makes it clear that he cost of the exercise the Police were engaged in was some $141,000.  What you did in a moment of, I’m not sure, anger, annoyance whatever, led to very serious consequences.   I consider that to add to that with a requirement to make a substantial payment of reparation would be to add too greatly to the sentence of imprisonment that I have imposed.

[40]     Accordingly there will be no order for reparation.

[41]     You may stand down Ms Martin.

Andrews  J