R v W HC Auckland CRI-2010-044-3206

[2011] NZHC 1525

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-3206

THE QUEEN

v

W

Hearing:         1 September 2011

Appearances: J L S Shaw for Crown

K S Holden for the prisoner

Judgment:      1 September 2011

SENTENCING NOTES OF RODNEY HANSEN J.

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140 for the Crown

Ms K Holden, P O Box 27004, Auckland 1440 for the Prisoner

R V W HC AK CRI-2010-044-3206 1 September 2011

Introduction

[1]      Mrs W, you were found guilty by a jury of wilfully attempting to pervert the course of justice.   That offence carries a maximum sentence of seven years imprisonment.

Facts

[2]      The evidence was that in about 1987, after separating from your husband, you and your two daughters began living as a family with Mr W.  You subsequently married  him  in  January  1990.    Before  the  relationship  with  him  began,  Mr W disclosed to you that he had sexually abused the daughter of a woman with whom he had previously been living.  In 1995 he was actually convicted and sentenced for that offending.  Despite his having made that disclosure to you, you elected to continue with  the  relationship  although,  in  my  view,  you  must  have  realised  that  your daughters would be at risk.

[3]      In August 1990, your elder daughter R, who was then aged 12, disclosed to a school teacher that her stepfather had been indecently assaulting her.  The complaint was reported to Child Youth and Family Services and to the Police.   R was interviewed on 14 August 1990 by way of an evidential video.

[4]      You accompanied her to that interview.  The Police interviewer spoke to you on arrival.  You told her at the outset that R could well be lying about the abuse so that she could go  and live with her natural  father.   Because  your husband had previously confided to you that he had abused another girl, you told the interviewer that you believed that, if he had abused R, he would have admitted it to you.

[5]      Shortly afterwards, you visited R at the home of a friend of yours, Mrs H, whose   presence   I   acknowledge   in   Court   today,   with   whom   she   and   her sister were staying, at the direction of Child Youth and Family.  You went to see R with a letter.  You said to her that the only way that you could all be a family again

would be if R signed the letter to say that your husband had not done what she alleged.  In the letter you had written that the things R had said her stepfather had done were not true, and that she had made up the allegations as a way for her to go and live with her father.  What you had put in the letter was your view of what she had done.  Under pressure from you, R signed the letter.

[6]      Within  a  short  time,  the  Police  formally  discontinued  the  investigation. Because the Police file has been inadvertently destroyed, it is not clear exactly what the sequence of events was, but it seems likely that the letter was given to the Police. A note from the officer in charge of the investigation, which was found on Child Youth and Family Service files, records that R had admitted making the story up.

[7]     The letter came to light when R’s daughter (your granddaughter) made allegations of sexual abuse against Mr W in 2009.  R then re-activated her complaint. In response, Mr W presented to the Police a copy of the letter.  He was convicted after trial of abuse of both R and her daughter.  He is currently serving a sentence of eight and a half years imprisonment with a minimum period of four and a half years.

[8]      At trial, you denied R’s version of events.  You claimed that the letter had come into existence at her request when she said she wanted to apologise for making up the allegations

Victim impact

[9]      R is now 33 years old and the mother of four children.  She recounts in her victim impact statement that she signed the letter because she was desperate to be reunited with her family.  She was told never to speak of the matter again and she did not do so until she discovered the sexual abuse of her own daughter.

[10]     She  speaks  of  her  difficulty  in  accepting  that  you  remained  with  Mr W knowing that he had sexually abused her, putting him before her safety and her feelings.    She  says  this  has  robbed  her  of  a  normal  life  and  normal  family relationship.    It  has  affected  every  relationship  she  has  subsequently  been  in,

including her relationship with her own children.   She says she continues to ask herself the question why?

Personal circumstances

[11]     You are a 55 year old woman, originally from New Plymouth, the middle child of a family of seven.  Your upbringing is described as supportive.  R, as I have said, is the daughter of your first marriage which came to an end after seven years because of physical abuse by your husband.   That was when you then met and married Mr W.  That marriage, it would seem, has came to an end with his trial and prison sentence last year.

[12]     You  are  currently  unemployed,  receiving  accident  compensation  having suffered a back injury about ten years ago.  You have previously worked as a nurse aide and supermarket attendant.

[13]     As a result of what has come to light, you have lost contact with both your daughters and your grandchildren.   You have only a limited support network according to the pre-sentence report.   Family members in New Plymouth are an important source of that support.  One of your sisters and her husband are prepared to accommodate you for the purpose of a sentence of home detention.

[14]     The probation officer considers that you are genuinely remorseful for what has occurred. You are assessed as at low risk of reoffending.

Sentence

[15]     As  counsel  have  said,  there is  no  tariff  for this  sort  of offending.   The circumstances vary widely and, with those circumstances, the culpability of individual offenders which is the main determinant of sentence.

[16]     The leading case on sentence where there has been an attempt to prevent people giving evidence or to pursue a legitimate complaint is a case called R v

Hillman.[1]     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 may be taken as a benchmark. That was confirmed in the subsequent case called R v Clutterbuck.[2]

[1] R v Hillman [2005] 2 NZLR 681.

[2] R v Clutterbuck CA372/99, 17 November 1999.

[17]     In deciding where your offending fits on the spectrum, I need to consider the aggravating and any mitigating circumstances of the offending.   The aggravating features have, in my view, fairly been identified by Mr Shaw in his submissions. There are four

[18]     The first is the breach of trust involved.  R was 12 years old at the time.  She was entitled to your care and protection.  What you did involved a gross breach of her trust.

[19]     The second is her vulnerability at the time. When she was approached to sign the letter, she was in a particularly vulnerable position.  She had been removed from the home.   She was desperate to be reunited with her family.   You exploited that vulnerability, putting your own interests in maintaining the relationship with Mr W ahead of her interests.

[20]     The third aggravating feature is the harm that has arisen from the offending. R’s victim impact statement, which I have already referred to, shows just how deep- seated, pervasive and enduring (to use Mr Shaw’s words) is the psychological harm she  has  suffered.     It  has  affected  and  will  continue  to  affect  her  personal relationships, including those with her own daughters.  While I accept that you could not have foreseen that your actions would result in the abuse of your granddaughter, you must face the fact that that offending would not have occurred if you had supported R in 1990 as your duty as a mother required.

[21]     The fourth  aggravating  factor  put  forward on  behalf  of the Crown  is  in contention, and that is your belief at the time.   Mr Shaw submits that I should

proceed on the basis that at the time you persuaded R to sign the letter, you had, at the very least, good cause to believe that her allegations were true.   Ms Holden submits to the contrary that at the time you genuinely believed R was lying and had fabricated the allegations so that she could go and live with her father.   I do not accept that.  You knew from what Mr W had told you that he had a predilection to sexual offending against girls of R’s age.   You said at the time, and at trial, that because Mr W had told you of that offending, he would have owned up if he had offended against your daughter. You said that is why you accepted his word ahead of hers.  I do not accept that either.  I consider that that explanation and the suggestion that you believed R had lied so that she could live with her father, are simply convenient means of rationalising the choice that you made to support your husband ahead of R.  I consider that it was a self-interested act on your part which flew in the face of your paramount duty as a mother to support and protect your daughter.

[22]     These features combine to put your offending into a serious category of its kind.  There were not the threats of violence which is an aggravating feature of many cases of this kind, for example R v Barratt[3]  and R v Baillie.[4]    And there were not financial inducements which is an egregious element in some cases such as R v Geary[5]and  Clarke  v  R.[6]      But  what  there  was,  was  emotional  blackmail  of  a vulnerable girl which, in my view, is no less reprehensible.

[3] R v Barratt CA164/01, 27 August 2001.

[4] R v Baillie [2010] NZCA 507.

[5] R v Geary CA181/97, 24 July 1997.

[6] Clarke v R [2011] NZCA 336.

[23]     I take the view that the aggravating factors  I have referred to warrant a starting point for sentence in the range of between two to three years imprisonment as suggested by the Crown.  There are no mitigating factors of the offending.  As I have said, I reject the contention that you genuinely believed in your husband’s denial.  Taking all circumstances into account, I have concluded that the appropriate starting point for sentence is one of two years and three months imprisonment.  That is required primarily for the purpose of denunciation and deterrence which assume

great importance in cases of this nature.

Personal mitigating factors

[24]     Although there are no mitigating features of the offending itself, there are significant personal mitigating factors.   This offending apart, you are a person of good character. You are entitled to generous credit for that.

[25]     I  accept  that  you  are  genuinely  remorseful,  even  if  you  have  sought  to minimise your offending.  I accept also that, in a sense, you are also a victim. That is not because, as Ms Holden submitted, you were betrayed by Mr W, although, in one sense, you were because I believe that, at some level anyway, you knew what was going on and chose to close your eyes to it.  Rather, you are properly seen as a victim because the choice  you  made to  put  your husband  ahead  of  your daughter has ultimately led to your losing both your daughters and your grandchildren.  That is a severe punishment in itself, particularly as, in other respects, it appears that you have been a good mother.  Indeed, that has been confirmed by the letter I received from your old friend, Mrs H this morning who pays tribute to what you have sought to achieve as a mother, and as a grandmother might I add.

[26]     The factors that I have referred to combine to justify discounting the starting point for sentence from two years and three months to one of 18 months imprisonment.

Home detention

[27]     I need to consider now whether it is appropriate for me to sentence you to home detention rather than a sentence of imprisonment.

[28]     In  cases of attempting to pervert the course of justice, denunciation and general deterrence assume great importance and custodial sentences are the norm.[7]

[7] R v Barratt CA164/01, 27 August 2001 at [12]. See Also R v Gemmell CA257/96, 2 October 1996 at [6]

However, I consider this is a case where societal interests can adequately be served

by a sentence  of home  detention.   You  are  at  low  risk  of  reoffending.    Home

detention will promote your reintegration and continued rehabilitation.  The safety of the community is not a concern.

[29]     In any event, as has often been said, home detention is not to be seen as a soft option.    It  carries  a  significant  punitive  element.    I  am  satisfied  that  it  is  an appropriate response to your offending.

[30]     Based on a sentence of 18 months imprisonment, a sentence of nine months home detention is appropriate.   That will not be an easy sentence for you.   Its commencement date will be deferred until tomorrow in order to allow you time to return to New Plymouth and for arrangements to be made for the installation of electronic monitoring equipment.

Result

[31]     You are sentenced to a term of nine months home detention to commence on

2 September 2011, subject to the following conditions:

(a)       You are to report to 37 Seaview Road, New Plymouth by 9.00 a.m. on

2 September 2011 and await there the arrival of the probation officer and a representative from the monitoring company.

(b)You are to reside at 37 Seaview Road, New Plymouth for the duration of the sentence.

(c)       You are not to undertake employment either paid or unpaid without the written consent of the probation officer.

[32]     For the avoidance of any doubt, I make an order under s 139 of the Criminal Justice Act prohibiting the publication of the name or identifying particulars of the complainant.   The practical effect of that will be that your own name will not be published, Mrs W. You may stand down.