The Queen v Wilkinson

[2004] NZCA 319

IN THE COURT OF APPEAL OF NEW ZEALAND

CA277/04

THE QUEEN

v

ERIN STEPHEN SIMON WILKINSON

Hearing:9 December 2004

Court:O’Regan, Goddard and Wild JJ

Counsel:P J Kaye for Appellant

M F Laracy for Crown

Judgment:16 December 2004 

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS
(Given by Goddard J)

Introduction

[1]       The appellant pleaded guilty to one count of perjury and was sentenced to two years three months imprisonment from a starting point of three years imprisonment.  He appeals against that sentence on the ground that in the circumstances it is manifestly excessive.  His essential argument is that whilst a starting point of two to three years may have been appropriate, insufficient discount was given for his plea of guilty and to take account of his personal attributes and the reasons why he committed the offence.

[2]       The perjury in question was in the most serious category, having been committed on oath, before a jury, at the trial of an associate for possession of a class A drug and three categories of class B drug.  The appellant gave evidence for the defence, stating that it was he who had been in possession of the drugs and not his associate.

Facts

[3]       The brief facts of the drug offending were that in the early hours of the morning of 19 July 2002, the appellant and his associate, Henry Loheni, travelled into Auckland city in Mr Loheni’s motor vehicle.  They parked near the Kiwi Tavern in Britomart Place and went into the Tavern.  Some time later two police officers saw the appellant attempting to get into Mr Loheni’s vehicle and on approaching him thought they smelled cannabis.  They searched the vehicle and found five plastic zip-lock bags containing methamphetamine and an ecstasy table.  Approximately 800 new empty zip-lock bags were also found behind the front passenger seat.  The appellant was asked who the owner of the vehicle was and said it belonged to an associate who was in the Kiwi Tavern.  He was escorted into the tavern and asked to point Mr Loheni out, which he did.  On being searched Mr Loheni was found to be in possession of a cigarette packet containing a number of zip-lock bags, 10 of which were found to contain cocaine, a further 12 of which were found to contain methamphetamine, and two of which contained 42 ecstasy tablets.  In total, 4.82g of cocaine, 11.6g of methamphetamine and 43 ecstasy tablets were found, with a total approximate ‘street’ value of between $7,470-9,628.

[4]       In the event Mr Loheni was acquitted by the jury, and although Mr Kaye submitted that the appellant’s evidence may not have been critical in achieving those acquittals, we have little doubt that it was.  As would be expected, the appellant was subsequently charged with possession of the drugs, based on the admissions he had made at Mr Loheni’s trial.

[5]       According to the appellant, although Mr Loheni had agreed to pay him $10,000 for giving the false evidence at Mr Loheni’s trial, the appellant received only $1,500.

[6]       Mr Loheni’s trial had taken place on 29-30 April 2003 and the appellant was charged with the same offences one week later on 7 May 2003.   Depositions were taken on 28 January 2004 and a trial date set for early June 2004.  The Crown was, however, sceptical that the appellant was the true culprit and this scepticism had been reflected in the cross-examination of him at Mr Loheni’s trial.  On 8 June 2004, the morning of his trial, the appellant, through counsel, requested that he be given an opportunity to make a statement to the police.  In that statement he admitted that he had not told the truth when giving evidence on oath at Mr Loheni’s trial, and confirmed that the drugs concerned had been Mr Loheni’s.  He admitted that he had lied in order to mislead the jury and with the intention that they would acquit Mr Loheni.  He was charged with perjury pursuant to ss 108 and 109 of the Crimes Act 1961 (“the Act”) and the Crown applied for leave to file an indictment (before committal) pursuant to s 345(3) of the Act.  The appellant consented to such leave being granted, so as to expedite resolution of all charges against him.  Paterson J granted leave and the appellant pleaded guilty to the following charge:

… on or about 30^th of April 2003, at Auckland, being a witness in a judicial proceeding, namely a trial before a Judge and a jury, made an assertion of fact as part of his evidence on oath which he knew to be false, namely that it was he, and not Henry Loheni, that possessed cocaine, amphetamine, methamphetamine and ecstasy, found by the police on the 19^th of July 2002 in a blue Mitsubishi ABL748 and on the person of Henry Loheni, by which ERIN STEPHEN SIMON WILKINSON intended to mislead the tribunal holding the hearing.

[7]       As a consequence of this he was discharged, also on 8 June, pursuant to s 347 of the Act on the drugs charges.

The sentencing judgment

[8]       Keane J sentenced the appellant on 9 July 2004, noting that the gravity of his offending demanded both denunciation and personal and general deterrence.  He noted also that there was a need to impose the least restrictive and most rehabilitative sentence.  Observing there is no fixed tariff for perjury and that the context is wide ranging, Keane J referred to the underlying policy in sentencing for this crime, citing the following statement of Hammond J in R v Mackie (1998) 16 CRNZ 248:

… the very integrity of the criminal justice process is threatened when witnesses lie on oath.  For that reason, our Courts have seen deterrence, and the need to punish, as being the central feature of sentencing for perjury.  In a serious case, the law demands a condign sentence, and instant imprisonment.

[9]       Keane J found Mackie the most significant point of reference for the sentencing exercise before him.  Listing the aggravating features, which he found included the appellant’s motivation (at least in part) to perjure himself for money, and the mitigating factors of guilty plea, the appellant’s personal attributes and the letter of apology that he had written, Keane J determined that a starting point of three years imprisonment was justified.  He found however that something less than a “full one-third credit” for the guilty plea could be justified, given the circumstances in which that plea had been entered.  Even when allowance was made for the appellant’s personal circumstances, Keane J felt compelled to conclude that the offence was one that was inherently serious and that the appellant’s personal circumstances had therefore to assume less significance.  Adopting that approach he allowed a discount of nine months or 25% to reach an end sentence of two years and three months imprisonment.

Discussion

[10]     As Keane J noted, there is a wide range of contexts in which perjury can occur.  As the appellant’s offending came within the most serious category, there is force in the Crown’s submission that both the start and end point of the sentence could have been higher.  As Ms Laracy submitted, this was a very serious and effective case of perjury, resulting in a significant derailment of the criminal justice process.  In the circumstances a deterrent sentence was required. 

[11]     Mr Kaye submitted that, on a comparison with the fact situation in Mackie, a starting point of two years imprisonment would have been merited, although he did not argue that the starting of three years was out of range.  The essential thrust of his submission was that the discount of nine months, or 25%, was too little, given the guilty plea and the appellant’s personal attributes.  Mr Kaye pointed also to the reason why the appellant had agreed to commit the perjury and said this justified some leniency.  The appellant had acted in response to a feeling of guilt over having identified Mr Loheni to the police, rather than acting for monetary reward.  Although he had been promised $10,000 by Mr Loheni, if he perjured himself, he received only $1,500 and in that respect there had been little benefit to him.  However, that outcome can have little effect, as motivation and any ultimate benefit to be derived from the crime of perjury are but two aspects of the sentencing exercise.  The overriding principle remains the need to denounce the crime and to deter others who might be tempted similarly to derail the justice system.

[12]     The context in which the perjury in Mackie was committed was that of organised crime, and the charge involved was murder.  The singular and distinguishing feature in Mackie, however, (and also in R v Broughton HC AK S29/02 30 August 2002) was that the perjury in question would never have been detected if the offender had not come forward voluntarily and confessed to his crime.  The sentencing Judges in both cases referred to the striking and unusual nature of this fact.  In sentencing Mr Mackie, Hammond J noted that a starting point of four years imprisonment could well have been justified, but was satisfied that a very substantial deduction had to be made for the fact that the offending would never have come to light “but for his own confession, remorse and co-operation”.  Mr Mackie had tried to confess earlier but the police at that stage had not accepted his confession.  As soon as the matter was taken seriously Mr Mackie had pleaded guilty and fully co-operated with the police.  Importantly, the Crown recognised this and had urged the maximum deduction.  On that basis, Hammond J felt that the justice of the case could be served by an effective sentence of 15 months imprisonment.

[13]     In Broughton, Chambers J determined an effective sentence of three years imprisonment from a starting point of five and a half years imprisonment, by reference to the sentence that Mr Broughton would have served on the substantive charge of aggravated robbery.

[14]     In the appellant’s case the significant factors are that he deliberately perjured himself on oath before a jury and in doing so secured the acquittal of a guilty man.  The second factor is that he waited for more than a year, and right up until the day of his trial, before he admitted his perjury to the police.  As Ms Laracy pointed out, the Crown witnesses had all been summonsed, the jury panel assembled, and the trial process effectively begun.  Although the Crown suspected that he had committed perjury at Mr Loheni’s trial, the Crown had not been able to act on this suspicion unless and until the appellant formally advanced a contrary position, either at his own trial or by way of a signed statement.  The statement and guilty plea that he did make at the eleventh hour were clearly designed to avoid a conviction for possession of class A and B drugs and thus avoid a sentence in the range of three to five years imprisonment if convicted.  In opting to make this last minute choice of perjury as a softer option, he was in effect playing with the justice system.

[15]     In the circumstances we are satisfied that the appellant was dealt with as leniently as possible and that the least restrictive sentence was imposed.  The starting point could well have been higher, if calculated by reference to the sentence the appellant might have expected to receive if convicted of the class A and B drug offending.  His personal attributes can count for little in the circumstances and the discount of nine months imprisonment for those attributes, and for the extremely late guilty plea, can be regarded as generous.

[16]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington