R v Potter - [2015] NZCA 25

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2014
[2015] NZCA 25

BETWEEN	THE QUEEN Appellant
AND	HELEN DIANA POTTER Respondent

Hearing:	9 February 2015
Court:	Wild, MacKenzie and Lang JJ
Counsel:	S K Barr and F G Biggs for Appellant N Levy for Respondent
Judgment:	25 February 2015 at 11.30 am

JUDGMENT OF THE COURT

The Solicitor-General’s application for leave to appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

In the Christchurch District Court on 28 August 2014 Judge Kellar sentenced the respondent, Ms Helen Potter, to 10 months home detention.[1] Ms Potter had been convicted of one count of attempting to pervert the course of justice (Crimes Act 1961, s 117(e)), after a jury found her guilty at trial.
[1]R v Potter DC Christchurch CRI-2012-061-1116, 28 August 2014.
The Solicitor-General applies for leave to appeal Ms Potter’s sentence. He submits it is manifestly inadequate and wrong in principle, in particular because the Judge failed to recognise the serious and insidious nature of this type of offending and the need to denounce it and deter others.

Background

In August 2012 Ms Potter was living with her partner, Mr Tamaiparea. A 14 year-old relative was also living with Ms Potter and had been for some years. She made allegations of sexual misconduct against Mr Tamaiparea. Consequently, Child Youth and Family Services (CYFS) removed her from the home but she returned after Mr Tamaiparea had moved away.
In September 2012 the complainant told the police she had lied about her allegations against Mr Tamaiparea. She then made a formal written statement withdrawing them.
In October 2012 the complainant told her aunt that her allegations were truthful, explaining Ms Potter had encouraged her to lie to have them withdrawn. After she had confirmed this to both CYFS and the police the investigation into Mr Tamaiparea’s conduct was resumed.
Mr Tamaiparea was tried in the High Court in March 2014. He faced five counts of indecently assaulting the complainant and one of sexually violating her by unlawful sexual connection. In her evidence for the Crown the complainant said Ms Potter had twice put pressure on her to withdraw her allegations against Mr Tamaiparea. The first occasion was at home shortly before she had gone with Ms Potter to the police station on 22 September 2012 to complete Ms Potter’s formal statement. Ms Potter had again pressured her while they were on their way to the police station. On both occasions the pressure had taken the form of Ms Potter telling her about the financial consequences of Mr Tamaiparea going to prison, in particular because he was helping to pay the rent and to pay for things the complainant needed both at home and at school.
The complainant was cross-examined on the basis her evidence would be contradicted by Ms Potter. Ms Potter then gave evidence for the defence. After 10 hours of deliberation the jury indicated to the trial Judge they were unable to reach…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Potter

Details

AGLC: R v Potter [2015] NZCA 25
Case: [2015] NZCA 25
Decision Date: 25 February 2015 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence by the Solicitor-General from a decision made in the Christchurch District Court. The case involved Ms Helen Potter, who was convicted of attempting to pervert the course of justice. The Solicitor-General argued that the sentence of 10 months home detention was manifestly inadequate and wrong in principle, asserting that the seriousness of the offence and the need to denounce it and deter others were not adequately addressed by the sentencing Judge. The primary legal issue before the Court was whether the sentence imposed by the sentencing Judge was appropriate and whether there were grounds to grant leave to appeal against it. The Court examined the starting point for sentencing, the mitigating factors considered by the sentencing Judge, and the effect of the sentence under appeal.

The Court found that the starting point for sentencing was inadequate. While the maximum penalty for the offence was seven years imprisonment, the Court determined that the appropriate starting point should have been around three and a half years imprisonment, placing the offending in the mid-range of seriousness. The Court also found that the second discount applied by the sentencing Judge was not adequately justified. However, despite these findings, the Court declined to interfere with the sentence under appeal. This decision was based on the principles set out in R v Donaldson, which indicated that the Court should not substitute a custodial sentence if it would result in an unjust adverse impact on the offender in terms of parole eligibility. Since Ms Potter had already served six months of the sentence, substituting a custodial sentence would result in her not being eligible for parole until the end of December 2015 or early January 2016, whereas a sentence of imprisonment imposed by the sentencing Judge would have made her eligible for parole on 28 July that year. Therefore, the Court declined to grant leave to appeal against the sentence, resulting in the Solicitor-General's application being dismissed.

Orders