R v Scanlon

[2018] NZHC 3376

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-063-3068

[2018] NZHC 3376

THE QUEEN

v

IRENE MARGARET SCANLON

Counsel:

L Dunn for Crown

M W Ryan for Defendant

Sentencing:

18 December 2018

Charges:

Wilfully attempting to obstruct the course of justice

Plea:

Not Guilty

SENTENCING NOTES OF BREWER J

Solicitors:

Almao Douch (Hamilton) for Crown

R v SCANLON [2018] NZHC 3376 [18 December 2018]

Introduction

[1]                  Ms Scanlon, you have sat in many docks in the past and listened to Judges talk about what you have done and listened while they imposed various sentences. Now it is my turn to do that on the charge of wilfully attempting to obstruct the course of justice.1 The maximum penalty for that charge is seven years’ imprisonment.

[2]                  The jury was hung on the charge of possession of methamphetamine for supply. Ms Dunn for the Crown has just told me the Crown will not proceed with that charge, and so I dismiss it.

Facts

[3]I will mention the facts briefly.

[4]                  You had been in and on-an-off relationship with Mr Heke for quite a number of years. During this time, he would abuse you physically. I accept the evidence you gave in Court on the nature and extent of that physical abuse.

[5]                  On 13 August 2017, Mr Heke had an active warrant out for his arrest. He had been involved in an incident in Morrinsville where he had fired many shots at three police officers.   Mr Heke fled the scene and he was not found until the night of     24 August 2017 at an address in Kaingaroa. He has since pleaded guilty to a charge of using a firearm against law enforcement officers.

[6]                  However, during the period he was on the run, you helped him. There were communications between you and him on 24 August 2017 that reveal that. These communications were intercepted by Police. They reveal you bought Mr Heke a Ford Mustang for $10,000 using cash you collected from a person who was holding it for Mr Heke. Mr Heke and one of his friends collected this vehicle from you on the morning of 24 August 2017. You bought the Mustang in another person’s name to avoid detection.

1      Crimes Act 1961, s 117(e).

Starting point

[7]                  There is no decision which tells me the levels of sentencing for obstructing the course of justice. The Court of Appeal has said the real focus must be on the intention behind the attempt and its potential effect.2

[8]                  I have taken guidance from a number of similar cases.3 Some of the cases involve convictions for being an accessory after the fact to murder.4 Although this is a different offence, the maximum penalty is the same and the underlying conduct similar, so I accept that the decisions are helpful.

[9]                  The Crown seeks a starting point of 18 months’ imprisonment. It points particularly to the degree of planning your assistance to Mr Heke required.

[10]               Mr Ryan, argues your offending delayed Mr Heke’s arrest only by three or four days. He says a starting point for your offending should be between 15 and 18 months’ imprisonment.

[11]               I am told that one of your co-offenders, Ms Telford, received a starting point of eight months’ imprisonment. She had  demonstrated  a  willingness  to  provide Mr Heke with a place of refuge, although I think this never actually happened. But I think her offending is much less serious than yours so I put it to one side.

[12]               There is one case I will refer to. It is R v Duff. In that case, Lang J said there is a scale for this type of offending. At the top end is conduct that involves the destruction of evidence so that a successful prosecution cannot take place; at the other end is an isolated incident in which some form of assistance is given to a fugitive.5 I accept that your offending is in that second category, but your help involved planning and persistence.

2      Miller v R [2014] NZCA 382 at [11].

3      R v Smith HC Hamilton CRI-2006-019-4626, 16 December 2006; R v Duff HC Rotorua CRI-2009- 063-6473, 9 December 2010; R v Te Tomo [2012] NZHC 71; R v Everitt HC Whangarei CRI- 2006-088-3601, 28 February 2007.

4      Crimes Act 1961, s 176.

5 At [11].

[13]               Justice Lang in that case of R v Duff applied a starting point of 18 months’ imprisonment. There the offender provided her brother, who was being sought in relation to a murder investigation, with clothes, money and a cellphone. Justice Lang noted that the offending occurred over a reasonably lengthy period of time and caused the Police to expend considerable resources. It took them 27 days to locate the offender’s brother.

[14]               I think your offending was less serious than that. It did not occur over so long a time, and the offending which you helped to cover up, while very serious, was not as serious as murder.

[15]I will adopt a starting point of 15 months’ imprisonment.

Personal circumstances

Previous convictions

[16]               The Crown seeks an uplift of six months to reflect your previous convictions. You have, of course, a lengthy criminal history, numbering 84 convictions since April 1991. They are mostly for non-compliance with Court orders, dishonesty, drug and driving offences.

[17]               As you have just heard, Mr Ryan submits there is nothing in your record that should require an uplift. He submits there is no connection between your past convictions and the present offending. That may be so literally, but the nature of your current offending is inherently unique so it would be unlikely that you would have offended similarly in the past. But, more broadly, the offence involves you defying the processes of justice and many of your convictions are for defying orders of the Court, similar defiance to this. So, I think an uplift is necessary in the interests of deterrence.

[18]               However, I also think the uplift suggested by the Crown is out of proportion to the starting point I have arrived at. I think an uplift of three months is adequate.

Remorse

[19]               As I have said, you have been in a violent relationship with Mr Heke for a number of years. You have written a letter in which you apologise for your offending. You say you never intended to assist Mr Heke and you thought his capture was inevitable.

[20]               This is contradicted by the verdict delivered by the jury. In addition, I do not think your expressions in the letter show a degree of remorse which the law would take as being sufficient for a separate discount.6

[21]               As for your relationship with Mr Heke, I acknowledge it has been a violent one. However, this is a factor that would be better argued under the seriousness of your offending, rather than as a factor personal to you. The abusive side of your relationship with Mr Heke is relevant because it provides some explanation for your offending. I accept your offending was linked to your relationship with Mr Heke in that without the relationship you would not have assisted him. But I am not persuaded that the abuse that otherwise characterised this relationship was an overriding operative factor in your offending.   There was no evidence that on this occasion    Mr Heke had threatened you or compelled you. I appreciate there was an inherent underlying compulsion or threat, but I will deal with that later in my sentencing rather than offering a discount on the factor of remorse.

Time spent on EM bail

[22]               Mr Ryan informs me you have been subject to EM bail for over a year. He says your compliance has been good and there is nothing in the pre-sentence report to contradict that.

[23]               Time spent on EM bail is a mitigating factor I must take into account, considering the period of time spent on bail, the restrictiveness of the conditions, the level of compliance and any other relevant matters.7 There is no arithmetical formula

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

7      Chea v R [2016] NZCA at [108].

to be applied.8 However, the Court of Appeal recently commented that a discount of four to six months is potentially available for 12 months spent on EM bail where the conditions are restrictive and there has been compliance with the terms.9

[24]               Mr Ryan seeks a discount of between 10 and 15 percent. The Crown acknowledges a discount is appropriate.

[25]               I think it is more appropriate to grant a discount in terms of months rather than percentages. That is because the discount should be proportionate to the actual time spent on EM bail rather than proportionate to the rest of the sentence itself. In that way, the discount reflects the loss of liberty already incurred.

[26]               I will accord you a discount of four months for the time you have spent on EM bail.

End sentence

[27]I therefore reach an end sentence of one year and two months’ imprisonment.

Home detention

[28]               I must now consider whether to commute the sentence of imprisonment to one of home detention.10 It is a fundamental principle of sentencing that the Court must always impose the least restrictive outcome appropriate in the circumstances.11

[29]               You have just heard Mr Ryan’s submissions on this point. He submits I should commute your sentence to one of home detention. You have also heard the submissions of Ms Dunn. Ms Dunn’s submission is that because of your record and the nature of the offending, the principle of deterrence would not be met sufficiently by a sentence of home detention.

8 At [110].

9      R v R [2017] NZCA 210 at [14].

10     Sentencing Act 2002, s 15A.

11     Section 8(g).

[30]               Ms Dunn is certainly correct that a short-term period of imprisonment should not always be commuted to a sentence of home detention. What a Judge has to do is make a considered and principled choice between the two forms of sentence, recognising, as Mr Ryan has submitted, that both serve the principles of denunciation and deterrence. The Judge has to identify which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.12

[31]               The pre-sentence report assesses your risk of re-offending as medium given your criminal history. It also points out that your past compliance with community- based sentences has generally been poor.

[32]               I am going to sentence you to home detention. I am going to do it for the reason that Mr Ryan advanced, and that is because I accept your current offending related to an attempt to help Mr Heke and underlying any request by Mr Heke has to be the history of violence in your relationship.

[33]               Mr Heke was recently sentenced by Whata J to six years and eleven months’ imprisonment.13 This was imposed cumulatively on top of an existing sentence of five years and five months.

[34]               The short point, Ms Scanlon, is that Mr Heke will be in prison for a long time. His influence on your life and your conduct will be minimal for the foreseeable future. Given this, I do not think you pose a risk of reoffending such that a sentence of imprisonment is required. In my view, a sentence of home detention will provide an appropriate balance between denunciation and deterrence on the one hand and assisting you in your rehabilitation on the other. To be specific, I do take significant account of the violence you have suffered at Mr Heke’s hands. He was not an easy man for you to say ‘no’ to, and with him in custody for some years to come I will give you the best chance I can to make a positive change in your life.

[35]               I am not optimistic, Ms Scanlon. I have been involved in the criminal law for nearly 40 years. But at the age of 45, and with 10 pages of previous convictions, it is

12     Fairbrother v R [2013] NZCA 340 at [30].

13     R v Heke [2018] NZHC 3168.

about time you started living your life differently. I accept Mr Heke has had a real effect on you over the last many years. He is now locked up. I am giving you a chance at your age and stage to change your life.

Sentence

[36]Ms Scanlon, will you stand please.

[37]I sentence you to seven months’ home detention.

[38]               The sentence is to be served at 29 Riverside Drive, Riverside, Whangarei. The following special conditions will apply:

(a)On your release from prison or the Court, you will travel directly to the address of 29 Riverside Drive, Riverside, Whangarei and await the arrival of the monitoring company representative. You are not to make any unnecessary stops or deviate from the most direct route to Whangarei.

(b)You will attend an assessment for a Departmental programme. You will attend and complete any appropriate Departmental programme as recommended by the assessment to the satisfaction of the probation officer and programme provider. Details of the appropriate programme will be those determined by a probation officer.

(c)You will attend, participate in and adhere to the rules of the maintenance group to the satisfaction of a probation officer and group facilitators.

(d)You will undertake and complete any appropriate treatment/counselling, including employment/training and education, to the satisfaction of the probation officer and treatment provider. Details are to be determined by a probation officer.

(e)You are to abstain from the consumption of illicit drugs, including psychoactive substances, throughout the duration of your sentence.

(f)You are not to have contact or otherwise associate with Mr Heke, directly or indirectly, unless you have the prior written consent of your probation officer.

Post-detention conditions

(g)You are to abstain from the consumption of illicit drugs, including psychoactive substances, throughout the duration of post-detention conditions.

(h)You are to attend and complete any other such counselling/treatment or programmes as may be directed by your probation officer.

[39]You may stand down.

Brewer J