R v Veatupu
[2018] NZHC 2640
•11 October 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2017-063-4300 [2018] NZHC 2640
THE QUEEN
v
DARALEE VEATUPU
Hearing: 11 October 2018 Appearances:
A Hill for the Crown
N Utting for Ms D VeatupuJudgment:
11 October 2018
SENTENCING NOTES OF POWELL J
Solicitors:
Crown Solicitor, Rotorua
N Utting, Tauranga
R v VEATUPU [2018] NZHC 2640 [11 October 2018]
Introduction
[1] Daralee Veatupu, you appear for sentencing today having pleaded guilty to one charge of attempting to influence, by threats or bribes or other corrupt means, a member of a jury.1
Background
[2] I begin by setting out the matters that have brought you before the court today. You will be familiar with them, and have accepted them by pleading guilty, but as
sentencing is a judicial function which must be exercised in public, I am obliged to repeat them.
[3] Your offending occurred during the trial of your ex-partner, Christopher Jolley. Mr Jolley and a number of his associates were on trial for a number of charges arising out of an altercation that took place in Rotorua in 2015. The most serious charge was attempted murder, with Mr Jolley personally defending charges of participation in an organised criminal group and possession of an offensive weapon.
[4] The trial commenced in the High Court at Rotorua on 13 November 2017. You were frequently in attendance in the public gallery in the first two weeks. On Thursday
30 November, the jury began considering its verdict.
[5] The jury continued its deliberations for the next two days until they were sent home for the weekend. At about 3.30 pm on Saturday 2 December, you went to the residence of one of the jurors and knocked on the door. The juror recognised you immediately, having seen you in the public gallery throughout the trial. You were distinctive at that time being seven months pregnant and with dyed blonde hair.
[6] You told the juror you wanted to speak to her about the trial, as one of the defendants was your boyfriend. The juror describes you as softly spoken, and says you appeared upset. You told her that you had not seen your partner properly for two years and wanted to spend time with him over Christmas. The juror repeatedly told you she could not speak about the trial. You then offered to give her $5,000 “right
here, right now”. The juror told you she couldn’t take the money, returned inside, and immediately called the Police.
Personal circumstances
[7] Ms Veatupu, you are now 26 years old. You have four children, the two youngest to Mr Jolley, although I understand that relationship has now ended. You have suffered post-natal depression following the birth of your youngest child. You had a difficult upbringing and were raised by your Grandmother until you were 12, when she passed away. You mother had addiction issues and your father was gang affiliated. These issues, and poverty, followed you during your childhood. By age 17 you were pregnant and in a relationship with a Black Power member. This relationship was violent but you describe it as better than being at home with your mother.
[8] You are currently living with your aunt on bail, and if granted home detention would serve your sentence at that address. Your aunt has filed an affidavit following my request for a report under s 27 of the Sentencing Act 2002. She confirms details of your upbringing you reported to the probation officer, noting that you have had no positive role models your whole life. She adds that you have recently completed the Toi Oho Mai women’s empowerment programme. You have also obtained your learner drivers licence, and aspire to qualify as a nurse, like your aunt.
[9] Your aunt reports she has noticed a “real change” in you since you have been at her address. She says you have focused on your course and caring for your children. She intends to help you access some counselling in order to deal with your past.
Approach to sentencing
[10] In sentencing, there are a number of steps that must be followed. First, I must identify a starting point for your offending. In doing so I will take into account any aggravating and mitigating features of what took place at the time of your offending. I will then turn to your personal circumstances, and any aggravating or mitigating factors special to you. I will then apply a discount for your guilty plea. Finally, I must stand back and consider whether the sentence arrived at properly reflects your culpability.
[11] In sentencing you I am guided by the purposes and principles of sentencing contained in the Sentencing Act. Given the nature of your offending the particular purposes of sentencing which are engaged in your case are the need to denounce your conduct and deter others from committing similar offences. On the other hand the need to assist in your rehabilitation and reintegration into the community is also clearly important.
[12] I also take into account the gravity of the offending including your own responsibility for the offending and the seriousness of the offence. I accept I must take into account the desirability of consistency with appropriate sentencing levels and impose the least restrictive sentence which is appropriate in the circumstances. I must also take into account any particular circumstance which might make the sentence unreasonably severe in your case, as well as your personal, family, whānau, community and cultural background in sentencing you with a partly or wholly rehabilitative sentence.
Setting a starting point
[13] As you have heard, for the Crown, Mr Hill has submitted that a starting point of four years’ imprisonment is warranted. Ms Utting, on your behalf, has submitted a starting point of less than two years and nine months is warranted.
[14] As Ms Utting has accepted, this is serious offending it strikes at the heart of this country’s criminal justice system. Your offending had the potential to derail a multi-defendant trial for serious charges including attempted murder. As Asher J said in R v Mail an earlier case:2
Juries lie at the heart of our system of criminal justice. They must decide the facts of the case and they determine whether a verdict of guilty or of not guilty is to be entered. … [A] Law Commission paper … describes jury functions as: fact-finder, the conscience of the community, a safeguard against arbitrary or oppressive government, an institution which legitimises the criminal justice system, an educative institution, and a powerful democratic symbol.
[15] While it is not inevitable that offending of this type will result in a sentence of imprisonment,3 a sentence emphasising denunciation and deterrence is required.4
Comparable cases
[16] As you have heard today both counsel have referred to the case of R v Mail, a case which I agree is similar in a number of respects to your offending. In that case a starting point of two years and nine months was fixed.5 I do not accept the Crown’s submission that the starting point in R v Mail was manifestly inadequate. It is consistent with the starting point adopted for similar types of offending.6 However taking into account the serious and corrosive aspects of this type of offending it is important to keep constantly under review whether the starting point in R v Mail still serves its purpose and sends the appropriate message to the community.
[17] In R v Mail, Mr Mail’s charge arose out of events during a murder trial in which the defendant was his cousin. Three weeks into the trial, Mr Mail went to the home address of a juror, information he had procured from a colleague. He told the juror he was the defendant’s cousin and indicated he could pay the juror. He was told by the juror they couldn’t talk about the case, and was told to leave. The juror called the Police, and was later discharged from the jury. The juror reported feeling genuinely concerned for his own safety and that of his family.
[18] The aggravating factors identified by Asher J in that case were that Mr Mail’s actions were deliberate, the indication there might be a bribe, the harm (and risk of even greater harm) to the trial, and the real effect on the juror.
[19] Another case involving interference with a juror is R v Bowling.7 In that case Mr Bowling did not himself approach the juror but in the course of a trial of four white supremacists assisted in preparing a note with a swastika reading “not guilty” which was left at the door of the home of one of the jurors. The juror showed the note to court staff and was discharged from the jury. In that case the juror also expressed
3 H (CA6/2016) v R [2016] NZCA 101 at [19].
4 Vince v R [2017] NZHC 2358 at [22]; R v Churchward CA439/05, 2 March 2006.
5 R v Mail HC Auckland CRI-2008-004-16181, 26 June 2009.
6 See R v Tumata [2012] NZHC 805 at [10].
7 R v Bowling HC Wellington CRI-2007-032-3065, 30 May 2008.
serious fears for his family’s safety. A starting point of one year and nine months’
imprisonment was adopted.
[20] In my view your offending is on its face more serious than that in R v Bowling. Like Mr Mail you carried out the offending by confronting the juror in their home. You also offered to pay the juror money in order to get a favourable finding. However, your offending lacks some of the most serious features of the offending in R v Mail. I also consider it relevant that although the most serious charge faced at the trial was attempted murder, Mr Jolley himself only faced charges of participation in an organised criminal group and possession of an offensive weapon. In that regard you were not seeking to interfere in a trial related to charges as serious as in R v Mail or R v Bowling, although your behaviour did have that effect.
[21] Likewise, the juror in this case, while understandably put out by the fact she was discharged from the jury, has not described feelings of fear or concern for her safety. She has described your behaviour as “very cheeky and rude”. Moreover, unlike the obviously intimidatory behaviour in R v Bowling, you pleaded with the juror, were softly spoken, and appeared upset. It appears on your part to have been more an act of desperation than intimidation. This is borne out by the wider context to your offending which you have heard me discuss with counsel this morning, which strongly suggests that others were in fact behind your approach to the juror at a time when you were in a particularly vulnerable state. In particular as the summary of facts discloses:
(a)On the evening after the jury first retired, Mr Jolley and one of his co- defendants saw one of the jurors out driving. The two men pulled into a local petrol station. As the juror drove past, Mr Jolley waved out to her.
(b)Later the same evening a young man knocked on the juror’s front door and asked to see “Jerry”. The juror informed him that no one at the address went by that name. The young man told her he had just been informed “Jerry” lived two doors down from the juror’s house. The juror told the young man she lived three doors down. The young man left but did not go to the house next door.
[22] It was following those initial contacts that you visited the juror. Quite obviously, and unlike in R v Mail, you did not take active steps to find the juror. Moreover as both the pre-sentence report and your aunt’s affidavit make clear you remain fearful of disclosing exactly what happened, with the probation officer noting that you were “very afraid of telling the real truth” and you aunt observed that you are:
…constantly looking over [your] shoulder and I know we are being watched. The criminal charge is also something that “others” are particularly interested in. Daralee won’t talk much about the situation that led to this charge. She knows it is safer to keep quiet.
[23] It follows, that although we will never know exactly what happened in the run up to your offending there is sufficient information for me to conclude your offending is considerably less serious than that in R v Mail.
Starting point
[24] Overall, and despite my finding that this case is considerably less serious than R v Mail, a stern starting point is still required. Through your actions you sought to interfere with jury deliberations; to corrupt the jury process and impact on their fact- finding exercise. Although the juror acted responsibly in informing Police and was discharged from the jury, your offending had the potential to derail the trial, which would have caused damage not only to our system of justice, but also resulted in a vast amount of wasted expenditure and wasted time, requiring everyone involved: the judge, lawyers, witnesses, victims and, indeed, the defendants, to go through the whole trial process again.
[25] In my view a starting point of two years and four months’ imprisonment appropriately reflects the seriousness of your actions.
Aggravating and mitigating personal circumstances
[26] Turning to your personal circumstances, the Crown has responsibly accepted that no uplifts are appropriate.
[27] However, there are a number of matters which in my view justify a reduction to the starting point I have fixed. Most relevant are the factors concerning your
background.8 As I have already covered, I accept you had a difficult upbringing in which drug and alcohol problems and gang affiliations were common features. The households you have inhabited since have been blighted by the same issues, and you have been a victim of domestic violence. That provides further context in which your offending must be viewed.
[28] And since moving in with your aunt, her husband, her daughter, daughter’s partner and grandson, who the Crown accepts are pro-social influences,9 you have clearly made steps towards turning your life around. I have already noted the programme you have been involved in, and your focus on your children and improving yourself. You have also cut ties with Mr Jolley, and in a moving passage your aunt had noted:
Since she has come to live with us, Daralee is adjusting to having to be responsible. Everyone in the house works … and everyone does their bit. She sees that and how we all tick along because of that. I don’t think she has experienced that before.
[29] I accept that as well as benefiting you, this move has also benefitted your children.
[30] It follows that I am satisfied you are a strong candidate for rehabilitation. Your offending can be placed in the context of your lifestyle to that point, but you are now in a situation with a supportive whānau who are committed to your rehabilitation, as are you. In my view a discount of ten per cent is appropriate for that factor.10
[31] The probation officer reports that while immediately after your offending you did not express concern for the juror, upon reflection you expressed regret for putting the juror through “all of this”. However she also says you have very limited insight into how your actions may have affected the juror.
8 Sentencing Act 2002, s 8(i).
9 Ms Veatupu’s cousin’s partner has just finished serving a sentence of home detention for driving offending, but Corrections have not assessed this as an issue with granting home detention in this
case. The Crown has not raised any issue either.
10 See Solicitor General v SC [2017] NZHC 2252 at [52]-[53].
[32] I view those statements against the backdrop of your aunt’s evidence, that you are remorseful but do not know how to demonstrate your remorse. She says your responses are typical of someone who has lived with violence, to the extent you have become “almost desensitised”; that you do not know how to say sorry apart from the words. I accept that, and accordingly accept a discrete discount of five per cent is appropriate.
Guilty plea
[33] With regard to the guilty plea. Ms Veatupu, you entered a guilty plea on 18
July 2018, four months after the charge notice was filed and after a trial date had been set. The Crown submits that though your plea did not come at the first reasonable opportunity, it did come following a change in counsel, and accordingly a discount of
20 per cent is appropriate. Ms Utting has not taken issue with that discount and I agree it is appropriate.
[34] Applying the various discounts that I have talked to this leads to a nominal end sentence of 19 months’ imprisonment, within the range for which home detention is a sentencing option. I turn to consider that now.
What type of sentence should be imposed?
[35] As you have heard the Crown overall is opposed to a sentence of home detention but has accepted that it is an option that is available. Ms Utting submitted home detention is appropriate, given the rehabilitative benefits I have already discussed, as well as your commitment to your own rehabilitation and the care of your children.
[36] In my view home detention is the least restrictive outcome appropriate in the circumstances. I am conscious of the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.11 You pose no risk to this community. Moreover home detention is a
deterrent sentence in its own right, which is also capable of denouncing offending in most cases.12
[37] Your aunt’s address has been assessed as suitable, and you have expressed a willingness to comply with both the standard and special conditions recommended by Corrections. In my view, for the reasons I have covered, there are tangible benefits arising from you serving your sentence at that address.
[38] Taken together I conclude it would not be consistent with the purposes and principles of the Sentencing Act to impose a sentence of imprisonment. Instead I conclude home detention is appropriate, offering as it does a real possibility for you and your children to make a new start in a safe and supportive environment.
Sentence
[39] Ms Veatupu please stand. Ms Veatupu on one charge of attempting to influence, by threats or bribes or other corrupt means, a member of a jury, I sentence you to a term of nine months’ home detention on the conditions recommended in the Corrections report.
Powell J
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