Following a late plea of guilty to one count of perjury on 20 July 2010, Kay Skelton was sentenced to two years eight months imprisonment by Judge Tompkins.[1] She appeals against her sentence on the grounds that it is manifestly excessive and inappropriate. She seeks that her appeal be allowed and that a short term of home detention be substituted, taking into account the period she has already spent in prison since 1 October 2010.
[1] R v Skelton DC Hamilton CRI-2008-019-7272, 1 October 2010.
The Crown’s response is that the sentence imposed was a proper one; that the appellant engaged in a sustained and calculated attempt to mislead the Family Court and such conduct requires a condign sentence.

Background

The appellant had been involved in lengthy Family Court proceedings with her former partner over custody and access rights in relation to their young son. By mid-2006 when the son was aged six, interim parenting orders in favour of the father of the child, Mr Jones, were in place and a Family Court hearing in the matter was imminent.
In May 2006 Ms Skelton contacted DNA Solutions Pty Limited, a Melbourne based laboratory capable of conducting paternity tests on DNA samples. She obtained a “do-it-yourself” DNA test kit from DNA Solutions. She obtained buccal swabs which she falsely labelled as coming from herself, her husband Brett and her son, and forwarded these to DNA Solutions in Melbourne seeking paternity analysis. The result of the analysis, based on the samples provided by the appellant, was that her husband was the biological father of her son. The analysis excluded the possibility that Mr Jones was the biological father of the child.
The Family Court hearing was fixed for 31 May 2006. The appellant filed an affidavit with the Court seeking an adjournment and dismissal of the Family Court proceedings. In the affidavit she described having undertaken a paternity test and tendered in evidence a letter from DNA Solutions, Melbourne advising the result.
The hearing proceeded. At the hearing the appellant gave evidence under oath about obtaining the paternity test, and testified to the buccal swabs she had obtained for the test.
The buccal swabs she sent to DNA Solutions, Melbourne were subsequently seized by Police. They were sent to the Institute of Environmental Science and Research in New Zealand for independent analysis, along with a reference DNA sample from the appellant’s son.
The result of this analysis established that the buccal swab sample sent by the appellant to DNA Solutions in Melbourne, labelled as a swab from her son could not have originated…

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 Skelton v R

Details

AGLC: Skelton v R [2011] NZCA 35
Case: [2011] NZCA 35
Decision Date: 24 February 2011

CaseChat Overview and Summary

Kay Skelton appeals against her sentence for perjury in the Family Court, which was imposed after a late guilty plea. The Court of Appeal, consisting of Ellen France, Potter, and Miller JJ, dismissed the appeal against her sentence of two years and eight months imprisonment. The central issue was whether the sentence was manifestly excessive and inappropriate, warranting substitution with a term of home detention. The appellant argued that the sentence was too harsh and that her personal circumstances should have warranted a lesser penalty. The Crown contended that the sentence was appropriate, given the severity of the offence.

The Court noted that the appellant had engaged in a calculated and orchestrated attempt to mislead the Family Court by falsifying DNA test results to exclude the biological father from his child’s life. The Court found that the appellant’s attempt to deceive the court was a very serious form of conduct that required a condign sentence. The Court also noted that the appellant’s late guilty plea, entered on the eve of her second trial, warranted a discount, but no further discount was available.

The appellant argued that the totality principle should have been applied to her sentencing, considering her other criminal conduct related to the abduction of her child. However, the Court found that the totality principle did not apply, as the High Court judge had already imposed a lenient sentence for the abduction, which should be treated separately. The Court also found that the appellant’s personal circumstances, such as her pregnancy and caregiving responsibilities, did not warrant a significant discount, as the gravity of the offence required a sentence focused on deterrence and denunciation.

The Court concluded that the sentence imposed was appropriate and not manifestly excessive. The Court also noted that a sentence of home detention would not have been suitable in light of the seriousness of the offence and the need for accountability, denunciation, and deterrence. The appeal was dismissed, and the original sentence was upheld.

Orders