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Thomas v R

Thomas v R

Case [2020] NZCA 257 29 June 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA98/2020
[2020] NZCA 257

BETWEEN	CHRISTOPHER GREGORY THOMAS Appellant
AND	THE QUEEN Respondent

Hearing:	21 May 2020
Court:	Cooper, Duffy and Edwards JJ
Counsel:	P J Kaye for Appellant Z A Fuhr for Respondent
Judgment:	29 June 2020 at 10 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
B The appeal is allowed.
CThe sentence of 14 months’ imprisonment is quashed and substituted with a sentence of 10 months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

Mr Thomas was sentenced to 14 months’ imprisonment for attempting to pervert the course of justice.[1] He was found guilty of that charge following a jury trial in the District Court at Waitakere. The jury could not reach a unanimous verdict on an additional charge of injuring with intent to injure,[2] which was subsequently withdrawn by the Crown.
[1]R v Thomas [2019] NZDC 22805; and Crimes Act 1961, s 117(e).
[2]Section 189(2).
The charges arose out of alleged offending that occurred on the evening of 23 November 2018. The Crown case at trial was that Mr Thomas grabbed the complainant and punched her seven or eight times in response to her questioning him about pornographic material on his phone. Four days later, and knowing that the police were involved, Mr Thomas sent the following text message to the complainant:
You need to tell the police you were very angry and were trying to smash a 4th windscreen with a big rock when I came in to prevent you from doing so you tried to get past me and we both tripped awkwardly and you hit your head against the side of the house
That was followed by a second message stating “[t]hat’s what happened”. The complainant refused to alter her testimony and gave evidence at trial consistent with her original police statement.
Judge Glubb fixed the sentence by taking a starting point of 18 months’ imprisonment, uplifting it by four months for previous convictions and the fact that the offending occurred while Mr Thomas was on parole, and then discounting it by eight months for the 12-month period Mr Thomas spent in custody having been recalled.[3]
[3]R v Thomas, above n 1, at [11]–[13].
Mr Thomas appeals his sentence on the basis that:
(a)the starting point of 18 months was too high and was effectively set by reference to the withdrawn charge of injuring with intent; and
(b)the uplift of four months’ imprisonment for previous convictions and the fact that the offending occurred while on parole was also too high.
The appeal was filed 39 working days out of time. There is no prejudice to the Crown in granting an extension of time, and we do so accordingly.

Was the starting point too high?

There is no guideline case for attempting to pervert the course of justice. This Court has said that the real focus in each case must…

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 Thomas v R

Details

AGLC: Thomas v R [2020] NZCA 257
Case: [2020] NZCA 257
Decision Date: 29 June 2020 at 10 am

CaseChat Overview and Summary

Christopher Gregory Thomas appealed his sentence for attempting to pervert the course of justice. Thomas was found guilty of attempting to pervert the course of justice by sending a text message to the complainant, who had questioned him about pornographic material on his phone, instructing her to tell the police a fabricated story. The jury could not reach a unanimous verdict on an additional charge of injuring with intent to injure, which was subsequently withdrawn by the Crown. Thomas was sentenced to 14 months’ imprisonment, with an 18-month starting point uplifted by four months for previous convictions and the fact that the offending occurred while Thomas was on parole, and then discounted by eight months for the 12-month period Thomas spent in custody having been recalled.

The appeal was filed 39 working days out of time. There was no prejudice to the Crown in granting an extension of time, and the Court did so accordingly. The appeal was on the basis that the starting point of 18 months was too high and was effectively set by reference to the withdrawn charge of injuring with intent, and that the uplift of four months’ imprisonment for previous convictions and the fact that the offending occurred while on parole was also too high.

The Court found that the starting point of 18 months was outside the acceptable range for the offending in this case. The Court found that the absence of an explicit threat or bribe in the text message, and the lack of history of violence between the parties, made the offending less serious than in many of the cases reviewed by the Court. The Court found that an uplift of four months was too high. The Court found that the uplift for previous convictions could not be justified, and that an uplift of at most one or two months could have been justified to reflect the fact that it was offending while on parole. The Court found that the excessive starting point and uplift applied by the Judge tipped the sentence into the manifestly excessive realm, and that a sentence of 10 months’ imprisonment was the least restrictive sentence available in the circumstances.

The appeal was allowed. The sentence of 14 months’ imprisonment was quashed and substituted with a sentence of 10 months’ imprisonment. An extension of time to appeal was granted.

Orders