The Queen v Ingrid Barratt

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 164/01

THE QUEEN

INGRID BARRATT

Hearing:	27 August 2001
Coram:	Richardson P Heron J Chambers J
Appearances:	S M Earl for Appellant J M Jelas for Crown
Judgment:	27 August 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

This is an appeal against a sentence of 14 months imprisonment imposed by the District Court at Palmerston North on a charge of wilfully attempting to defeat the course of justice under s117(d) of the Crimes Act 1961.
The complainant is a former fiancé of the appellant, Ms Barratt. Soon after Ms Barratt broke off the engagement in July 2000, she began a new relationship with a Mr Brent Allen. He and the complainant had been friends. In September 2000 Mr Allen was charged with assaulting his former partner. The complainant was to give evidence for the Crown at Mr Allen’s trial. Following various incidents, some directed at the appellant but one involving the throwing of a Molotov cocktail through a window of the house of the complainant’s parents, the complainant’s parents received an anonymous letter in the following terms:
… The organisation apologises for the troubles that have come your way, as it is not you, but your son that is the cause of it all. Perhaps he should think before he speaks. He has helped to remove one of our valuable members, we think it would be unfortunate for this to happen to him. The choice is now as to whether we have to take actions further. Before was just a warning.
It was discovered that the fingerprints on the letter matched Ms Barratt’s. Not unreasonably, the Fentons took the last sentence as referring to the Molotov cocktail incident. The letter can only be taken as an attempt to deter the complainant, who was living at the house of his parents, from giving evidence against Mr Allen, who is now Ms Barratt’s husband. Following committal for trial, Ms Barratt pleaded guilty to the charge of wilfully attempting to defeat the course of justice.
The sentencing Judge noted that Ms Barratt was not charged in relation to the throwing of the Molotov cocktail and accepted that this act could not be regarded as Ms Barratt’s. He rejected Ms Barratt’s claim in an affidavit put before him that her main aim in writing the letter to the complainant’s parents was to discourage the complainant from acting violently towards her. The Judge stated that Ms Barratt’s desire to prevent the complainant from giving evidence was at least equally significant.
The Judge noted that Ms Barratt had only one prior conviction in relation to a minor traffic offence, that she showed considerable promise and was training to become a school teacher. However, he stated that a sentence of imprisonment had to be imposed and recorded that Ms Barratt’s counsel accepted this.
Having referred to various authorities, the Judge identified 18 months imprisonment as the starting point, noting that this was at the bottom of the range referred to by this Court in R v Clutterbuck (CA372/99, judgment 17 Nov 1999). He reduced the sentence by four months on account of Ms Barratt’s guilty plea. Citing the need to deter others from attempting to defeat the course of justice, the Judge refused to suspend the sentence. The Judge granted Ms Barratt leave to apply for home detention, her application was granted and she is able to work in two jobs.
On what is now the crucial issue as to suspension the Judge noted that counsel "referred to the factors which need to be considered noting the factors as being, firstly, youth of the offender [speaking to Ms Barrett] and you are youthful; that you have a previous good record as a consequence of which you have a long period free of offending. Fourthly, he referred to the need for rehabilitation and, fifthly, your likely response to the sentence, he submitting that your likely response to the sentence would be a positive one. He also referred to diminished culpability through coercion by a co‑offender, and lack of premeditation or provocation"; and, the Judge concluded, having given careful consideration to those matters, that while factors in favour of suspension were present "the need for deterrence is paramount in this particular case and accordingly I come to the view that the need to deter others requires that the sentence not be suspended".
In support of Ms Barratt’s appeal, Ms Earl argued that the sentencing Judge gave too much weight to general deterrence and inadequate weight to the particular circumstances of the offending and of the offender. The offence was committed at a time when the appellant was distressed because of a violent disagreement between her husband and the complainant. She wanted to improve matters and lacked any serious criminal intent. Furthermore, the appellant’s letter did not succeed in deterring the complainant from giving evidence. The Probation Officer’s pre-sentence report states that Ms Barratt is generally an honest person, is remorseful, is very unlikely to reoffend and suggests that a non-custodial sentence may be appropriate.
In her oral argument Ms Earl accepted that imprisonment was an appropriate sentence and that the term of 14 months imposed was not excessive. She submitted that the imprisonment should have been suspended possibly along with the imposition of community service up to the maximum of 200 hours. She emphasised Ms Barratt's state of mind at the time of the offending to which we have referred in paras [4] and [8] above, her personal circumstances (para [5] above), that her behaviour was out of character and in that regard that the victim impact statement from Mr Fenton's mother was supportive attributing the offending to her being led into it by Mr Allen.
Ms Jelas for the Crown submitted that the sentencing Judge had taken the relevant factors into consideration and that suspension of the appellant’s sentence was inappropriate because of the need to deter and what the sentencing Judge saw as the limited remorse reflected in her affidavits.
This Court in R v Hillman (CA 14/92, judgment 14 May 1992) noted that any attempt to dissuade a witness from giving evidence strikes at heart of the administration of justice and must be met by the courts with a stern response. For this reason, despite the fact that the appellant personally may be unlikely to reoffend, general deterrence is an important consideration in cases involving an attempt to pervert the course of justice, as was emphasised by this Court in R v Gemmell (CA 257/96, judgment 2 October 1996). Only limited weight can be given to the appellant’s emotional state and the fact that her threat did not achieve its aim.
We are satisfied that the imposition of a suspended sentence would be an inappropriate response to the premeditated conduct involved in attempts of this kind to defeat the course of justice. We note that although this Court in R v Robinson (CA 51/98, judgment 1 April 1998) on which Ms Earl relied,suggested that a suspended sentence might have been appropriate on the facts of that case, there are significant differences between that case and the present case. In Robinson the Court described the respondent’s attempts to discourage the complainant from giving evidence against him in relation to an assault as “a clumsy attempt to make amends to the victim” and the Crown accepted that the offending was “stupid rather than ‘criminal’”. Robinson was thus clearly an exceptional case, and custodial sentences must be the norm where someone attempts to pervert the course of justice.
We are satisfied that the Judge was fully entitled to refuse to suspend the sentence of imprisonment and the appeal is dismissed.

Solicitors
Lower Hutt Legal Chambers, Lower Hutt
Crown Law Office, Wellington

[2001] NZCA 239

27 August 2001