Skelton v The Queen

[2010] NZCA 495

IN THE COURT OF APPEAL OF NEW ZEALAND

CA663/2010
[2010] NZCA 495

BETWEENKAY HALTON SKELTON

Appellant

ANDTHE QUEEN

Respondent

Counsel:B J Hart for Appellant

N P Chisnall for Respondent

Judgment:29 October 2010 at 9 am

(On the papers)

JUDGMENT OF HAMMOND J

The application for bail is dismissed.

REASONS

Introduction

[1]        On 21 July 2010 the appellant was convicted in the Hamilton District Court on one count of perjury, having entered a guilty plea to that charge.  She was remanded on bail.  She was subsequently sentenced on 1 October 2010 to two years and eight months imprisonment.[1]  On that same day, she lodged an appeal to this Court against the sentence.  On 6 October 2010 the appellant was denied bail pending her appeal by Judge Tompkins in the District Court at Hamilton.

[1]      R v Skelton DC Hamilton CRI-2008-019-7272, 1 October 2010.

[2]        The appellant has now applied to this Court for bail pending the determination of the appeal, pursuant to s 70 of the Bail Act 2000.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.  The parties consented to my doing so, on the papers.

[3]        The test to be applied in relation to the application is that set out in s 14 of the Bail Act.  Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.

[4]        Whilst not determinative, the considerations in s 14(3) are material and are a convenient framework for analysis.  They are:

(a)          The apparent strength of the grounds of appeal.

(b)         The length of the sentence that has been imposed on the appellant.

(c)          The likely length of time that will pass before the appeal is heard.

(d)The personal circumstances of the appellant and the appellant’s immediate family.

(e)         Any other consideration that the Court considers relevant.

Apparent strength of proposed grounds of appeal

[5]        The offending in this case was very serious and deliberate, going to the administration of justice.  This occurred in the context of a prolonged dispute over several years between Ms Skelton and the father of their young child relating to contact and subsequently custody and parenting rights.

[6]        The history was conveniently summarised by Judge Tompkins in his sentencing notes of 1 October 2010.[2]  The Judge adopted a description of Ms Skelton as having participated in “a continuation of years of lies and manipulation of the Family Court and judicial system ...”.[3]  The charge of perjury was initially laid in September 2008.  A not guilty plea was maintained through the committal procedure and then up to and past a scheduled but aborted trial on 30 June 2010.  Ms Skelton only entered a guilty plea on the eve of what was to be a second trial following that earlier aborted trial.

[2]      Above.

[3] At [7].

[7]        The appeal against sentence appears to be on the footing that the starting point of three years imprisonment was too high.  However, given the nature of the offending, and the appellant’s earlier conviction for abducting her son (with an intentionally lenient sentence that resulted in home detention), this ground of appeal is not propitious.  It is very hard to see how, in light of the circumstances, this ground has any realistic prospect of success.

Likely length of time that will pass before the appeal is heard

[8]        The appellant will not be eligible for parole until 22 August 2011.  Hence this is not a “short sentence”.  The appeal will not be rendered nugatory if not heard urgently.  It could be anticipated that the appeal – which is a quite straightforward one – will be heard relatively early in 2011, some several months before parole might be allowed.  And, in accordance will well-established principle and practice, if home detention (which is what the appellant really seeks) were to be allowed, it would be calculated by reference to the time spent in custody.

Personal circumstances of Ms Skelton and her immediate family

[9]        This is the central plank in the application.  Ms Skelton is in the ninth month of her seventh pregnancy.  If the baby lives, it will be her third surviving child.  She deposes to having suffered four miscarriages.  Ms Skelton is concerned about the conditions in prison or associated with it relating to the imminent delivery of her child; and the particular circumstances of her youngest son, Brody, aged two and a half.  Brody is asthmatic and, it is said, suffering without his mother, as he is unable to breastfeed.  There is a suggestion that high levels of anxiety and the impact on Ms Skelton are having an effect on her pregnancy.

[10]       By the standards of most bail appeals extensive material has been provided in support of this aspect of the application, including medical evidence.

[11]       There are instances in which this Court has previously concluded that the combination of a difficult pregnancy and a child with pre-existing medical complications can amount to exceptional circumstances which justify bail pending an appeal.[4]  That said, what is called for in each case is an evaluation of all the circumstances in light of the statutory scheme.

[4]      R v G [2009] NZCA 138.

[12]       Given that, unfortunately, pregnant women do sometimes find themselves incarcerated, necessarily and appropriately the Department of Corrections has comprehensive policies regarding the care of pregnant prisoners.[5]  These provide that pregnant prisoners are to be managed in a sensitive manner that takes into account their particular needs and risks whilst optimising the wellbeing of the baby.  All women’s prisons have 24-hour access to, and are able to liaise with, appropriate hospital and community-based obstetric and midwifery services.  It is possible for pregnant prisoners to be temporarily removed from the prison for medical examination and for the birth of the baby.  And once the baby is born, the mother is able to care for that child in prison until the baby is up to nine months of age.  I also note that Ms Skelton might apply under s 62 of the Corrections Act 2004 for temporary release or removal if her medical needs cannot adequately be met within the prison environment.[6]

[5]These policies are publicly available, see Department of Corrections “PS Operations Manual: Female and Pregnant Prisoners” at [M.03.02] <      See R v de Bruin [2007] NZCA 76 at [24].

[13]       The Crown put before the Court a letter from Barbara Jamieson, Operations and Movements Manager, Auckland Regional Women’s Corrections Facility (which is where Ms Skelton is incarcerated).  That letter indicates that Ms Skelton has been placed in the self-care unit pending the birth of her baby.  Ms Jamieson says it is:

a good place for her to be because it is close to medical facilities, there are not the same pressures on prisoners that can occur in the bigger units, and she will get enough rest while she is housed there. 

Visits for self-care prisoners are more relaxed.

[14]       Ms Jamieson further describes that women who go into labour while in prison are assessed by the medical staff on site or the midwife and travel to Middlemore Hospital under escort to give birth.  They remain in hospital for approximately four hours before being returned to the corrections facility.  If there are difficulties associated with the birth they are not returned until cleared by the hospital.

[15]       Once back at the carceral facility they receive ongoing care from the midwife and the baby remains with the mother.  Ms Skelton has been given approval for her baby to remain with her in prison following the birth.  Without reciting all the details, she will probably be able to keep her baby with her until the time she gets a release from the Parole Board, in some months time.

[16]       It is clear from Ms Jamieson’s letter that Ms Skelton has been receiving regular assessments by the midwife.

[17]       Ms Skelton deposes to incidents that she says have occurred in the facility relating to pregnant women and what she suggests to be lack of prompt attention and associated matters.  Indeed, Ms Skelton went so far as to suggest that the Auckland Regional Women’s Corrections Facility is “an unsafe environment for pregnant women”.  That is a very strong assertion.  Mr Chisnall indicated that the proposition is not accepted at all.  It has to be said that it is not the kind of assertion which can be properly dealt with by this Court on a bail application.

[18]       As to the position of Ms Skelton’s son, the conditions for him may not be optimal, but satisfactory arrangements have been put in place to address the concerns relating to the son’s health care.

Other considerations

[19]       There can be no question that Ms Skelton has a very distinct history of frustrating court processes.  There are numerous statements of judicial concern as to the delaying tactics employed by her, as by changing of lawyers many times; not attending fixtures, failing to comply with court orders, and in the High Court proceedings relating to the abduction of her child, Priestley J described Ms Skelton’s litigation stance in the Family Court proceedings as being “outrageous in many areas”, and observed that Ms Skelton “had exhibited defiant behaviour”.[7]

[7]      R v Skelton HC Auckland CRI-2007-019-6530, 18 December 2008 at [14].

[20]       Against this Crown counsel suggested an underlying risk that granting Ms Skelton bail may well lead to the appeal process being delayed.  However, it is clearly in her interests to advance the appeal expeditiously.

Conclusion

[21]       I am not satisfied, notwithstanding the voluminous material which has been filed on Ms Skelton’s behalf, that it has been demonstrated that it is in the interests of justice that bail should be granted pending appeal.  It is a matter of great sadness that a child has to be born to a woman who is incarcerated.  One could hope that it would be otherwise.  But the corrections system has long since had to deal with this problem.  The existing system in Corrections is well established, after careful consideration.  It has not been shown that this is an exceptional case which warrants a departure from the usual course.

Solicitors:

Crown Law Office, Wellington for Respondent