R v Potter
[2015] NZCA 25
•25 February 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA510/2014 [2015] NZCA 25 |
| BETWEEN | THE QUEEN |
| AND | HELEN DIANA POTTER |
| Hearing: | 9 February 2015 |
Court: | Wild, MacKenzie and Lang JJ |
Counsel: | S K Barr and F G Biggs for Appellant |
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told her aunt that her allegations were truthful, explaining Ms Potter had encouraged her to lie to have them withdrawn.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 a verdict and were discharged.
Meanwhile, in November 2012, Ms Potter had been charged with attempting to pervert the course of justice. Her defence at trial in July 2014 was a denial of the charge. The jury found Ms Potter guilty.
Subsequently, in October 2014, Mr Tamaiparea pleaded guilty to a representative count of indecent assault on the complainant.
Judge Kellar’s Sentencing
In sentencing Ms Potter, the Judge identified four aggravating factors: the complainant’s vulnerability; the breach of trust involved; the impact on the complainant; and lastly the nature of the allegations. The Judge observed “[t]hey involve what is allegedly serious offending although the outcome of which I am unable to determine at this point”.[2]
[2]At [9].
Judge Kellar then referred to the sentencing decision of Rodney Hansen J in R v W, a case he considered bears remarkable similarities to Ms Potter’s. [3] He noted “[t]he Judge adopted a starting point of two years and three months imprisonment and ultimately considered that a sentence of home detention achieved sentencing objectives”.[4]
[3]At [11], citing R v W HC Auckland CRI-2010-044-3206, 1 September 2011.
[4]R v Potter, above n 1, at [14].
Judge Kellar noted that Rodney Hansen J, in R v W, had relied on R v Hillman,[5] treating it as “… effectively a guideline decision”.[6] Rodney Hansen J had said:
[16] … The Court of Appeal said in that case that 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. After referring to three previous decisions the Court said that in serious cases a sentence of three years' imprisonment must be taken as the benchmark.
[5]R v Hillman [2005] 2 NZLR 681 (CA).
[6]R v Potter, above n 1, at [11].
Judge Kellar then referred to M(CA469/2013) v R.[7] He summarised the “somewhat different”[8] facts of that case but noted:
[16] The Court repeated what seems to be said in all such cases that any attempt to disturb the process of the administration of justice is to be deplored and in all but the most exceptional cases is to be met with a moderately lengthy term of imprisonment.
[17] The Court also said at para 10 that interfering with a witness so as to prevent him or her from giving evidence is a matter of grave concern and is to be met with a strong response commensurate with the threat that such conduct poses to the administration of justice and as a result the appeal against sentence was dismissed.
[7]M(CA469/2013) v R [2013] NZCA 385.
[8]R v Potter, above n 1, at [15].
Next the Judge recorded the sentencing objectives, which most significantly included “to denounce [the offending] and to act as a deterrent in a general sense”.[9]
[9]At [18].
He identified two significant mitigating personal factors, the first being Ms Potter’s previous good character. The other, which he noted had not been mentioned by counsel, was “that [her] former occupation working for Corrections is a characteristic that would make serving a prison sentence particularly difficult”.[10]
[10]At [24].
After considering these factors, Judge Kellar determined a starting point of two years and three months’ imprisonment. He gave a discount of three months for good character and then a further discount of three months “to reflect the fact that a prison sentence would be more difficult for [Ms Potter] given [her] prior occupation than for the usual offender”.[11]
[11]At [25].
The Judge then explained why he was prepared to commute the resulting end sentence of one year and nine months’ imprisonment to 10 months’ home detention:
[26] As Rodney Harrison J did in R v W I too consider that this is a case where societal interests can adequately be served by a sentence of home detention. You are at low risk of further reoffending and such a sentence would promote your reintegration and continued rehabilitation. This is not a case where the safety of the community is a concern.
Appropriate starting point
Mr Barr submitted Judge Kellar’s reliance on R v W was not helpful, as the authority of R v Hillman on which it was based had been doubted by this Court’s judgment in M(CA469/2013) v R. In that case the Court stated:[12]
[11] We add an observation about the continued, widespread reliance on R v Hillman as establishing a benchmark of three years for serious offending of this kind. We have reservations as to whether this approach correctly reflects current sentencing practices. It was a decision that pre-dates the Sentencing Act 2002 and, in particular, would seem to be inconsistent with the effect of s 8(c) and (d) which require that the maximum penalty and penalties near to the maximum be imposed for offending that is within the most serious of the cases and near to the most serious of the cases for which the penalty is prescribed. Given that the maximum penalty for attempting to pervert the course of justice is seven years imprisonment, there is no apparent justification for continuing to view a starting point of three years imprisonment for serious cases as properly reflecting the effect of s 8(c) and (d).
[12]M(CA469/2013) v R, above n 7.
There is reinforcement for those statements in Miller v R where this Court observed:[13]
[11] The real focus in each case of an attempt to pervert the course of justice must be on the intention behind the attempt and on its potential effect. Because of its potential effect, deterrence of others as well as denunciation of the act itself must be the overriding sentencing principles.
[13]Miller v R [2014] NZCA 382.
In M(CA469/2013) v R this Court upheld the sentencing starting point of two and a half years. [14] The appellant had caused the trial of his friend on a charge of sexual violation to be adjourned by deliberately going away with the complainant, who was his nine year old daughter. Mr Barr submitted Ms Potter’s case was more serious, because she had forced the complainant to withdraw her allegations against Mr Tamaiparea.
[14]M(CA469/2013) v R, above n 7, at [10].
Ms Levy pointed out that the sentence in R v W had been imposed after the Sentencing Act 2002 came into force. Notwithstanding that, we are not able to accept her submission that Judge Kellar was entitled to rely on that sentence as demonstrating the correct sentencing starting point here. R v W has been overtaken by M(CA469/2013) v R.
The point this Court reiterated in M(CA469/2013) v R was that offending of the most serious type must attract the maximum prescribed penalty, and offending near to the most serious a penalty near to the maximum: s 8(c) and (d) of the Sentencing Act.[15] Ms Potter’s offending was at least in the mid-range of seriousness. She persuaded a vulnerable child complainant who was in her care to lie to the police in order to protect Mr Tamaiparea and her relationship with him. She compounded the seriousness of that by then giving evidence for the defence at Mr Tamaiparea’s trial, countering the complainant’s evidence. Ms Levy submitted Ms Potter denied (and continues to deny) the offending and it cannot be an aggravating factor to give evidence denying her offending. Ms Potter’s conviction means her denial must be treated as false. Further, we are unable to reconcile her denial with the complainant’s statement that Ms Potter told her to lie to the police.
[15]At [11].
The maximum sentence for the charge of which Ms Potter was convicted is seven years’ imprisonment. Mr Barr submitted the correct starting point was three and a half years’ imprisonment. Given this is an appeal by the Solicitor-General, he accepted we should adopt a starting point of three years’ imprisonment. Ms Levy very responsibly accepted no issue could have been taken with a three year starting point, had Judge Kellar adopted it. As we have said, we place Ms Potter’s offending at least in the mid-range of seriousness. So the starting point ought to have been around three and a half years’ imprisonment. A starting point of three years’ imprisonment was the very minimum. The sentencing starting point of two years and three months’ imprisonment adopted by Judge Kellar was inadequate by a wide margin.
Appropriate discount
This is very much a subsidiary point, for reasons that shall become apparent below. As mentioned at [15] above, Judge Kellar gave Ms Potter two sentencing discounts. The Solicitor-General takes no exception to the first discount; three months to reflect Ms Potter’s previous good character. It is the second discount which the Solicitor-General challenges.
That challenge is well-founded. If a Judge is minded to allow a sentencing discount not sought by counsel, it would be wise at least to invite and consider submissions from counsel as to the appropriateness of that discount. The Judge did not explain why Ms Potter’s earlier employment with Corrections would make a sentence of imprisonment particularly difficult for her. We do not understand why this should be so, particularly since Ms Potter’s employment with Corrections had ended some 15 years earlier.
Effect on sentence under appeal
For two reasons, we decline to interfere with the sentence under appeal and to substitute a sentence of the order of two years and nine months’ imprisonment (three years less a three month discount for Ms Potter’s previous good character). First, doing so would not be consistent with what this Court said in R v Donaldson:[16]
The enactment of s 382(2) of the Crimes Act 1961, however, makes it plain that the Legislature expects this Court to intervene and grant leave to the Solicitor-General to appeal in appropriate cases.[17] At times, certainly, any deficiency or discrepancy in the sentence under appeal may be met by the Court indicating what the appropriate term of imprisonment would have been but nevertheless declining to reverse a non-custodial sentence. We would consider such a course appropriate where the minimum custodial term which would otherwise be substituted would be 2 years’ imprisonment or less.
[16]R v Donaldson (1997) 14 CRNZ 537 (CA) at 550 (emphasis added). A situation comparable to the present faced the Court in R v Kennedy [2011] NZCA 109, particularly at [29]–[33].
[17]Section 382(2) of the Crimes Act 1961 was repealed as of 1 July 2013. The equivalent provision is now s 300 of the Criminal Procedure Act 2011.
Ms Potter has now served six months of the sentence of 10 months’ home detention imposed on her. In this situation, six months home detention is not necessarily to be equated with 12 months’ imprisonment.[18] But, if that 2:1 relativity is adopted, then imposition now of a sentence of one year and nine months imprisonment is required. If the six months home detention served is equated with a lesser period of imprisonment, for example nine months, the required sentence is two years imprisonment. In either case, the custodial term which would be substituted falls within the Donaldson principle.
[18]A 2:1 ratio applies when a sentence is imposed, because parole is not available to a person serving a sentence of home detention. It may not be suitable for all purposes, as in this case where the issue is not about the imposition of the original sentence.
Secondly, quashing the sentence under appeal and substituting a sentence of one year and nine months’ imprisonment would mean Ms Potter would not be released on parole until the end of December 2015 or early January 2016. Had Judge Kellar sentenced Ms Potter to two years and nine months’ imprisonment, she would have been eligible for parole on 28 July this year. So, in terms of parole, there would be an adverse impact on her which we consider would be unjust.
Result
We reiterate that the sentence under appeal was manifestly inadequate and inappropriate. The sentencing starting point should have been at least three years imprisonment.
But, for the reasons we have explained, we decline to interfere with Ms Potter’s sentence, with the result that the Solicitor-General’s application for leave to appeal is declined.
Solicitors:
Crown Law Office, Wellington for Appellant
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