Thomas v The Queen - [2019] NZHC 396

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2018-412-000027

[2019] NZHC 396

BETWEEN
KERRYN ELIZABETH THOMAS

Appellant

AND

THE QUEEN

Respondent

Hearing: 21 February 2019

Appearances:

M A Stevens QC for Appellant A R McRae for Respondent

Judgment:

11 March 2019

JUDGMENT OF OSBORNE J

Introduction

[1] Kerryn Thomas was charged with wilfully attempting to pervert the course of justice by making a false statement to police, a crime under s 117(e) Crimes Act 1961 which carries a maximum period of imprisonment of seven years.

[2]Mrs Thomas entered an early plea of guilty.

[3] At the sentencing hearing, Mrs Stevens (now QC) applied for a discharge without conviction under s 106 Sentencing Act 2002. Mrs Stevens also submitted that, if a sentence were to be imposed, it should be a community-based sentence of community work and not one involving community detention.

THOMAS v R [2019] NZHC 396 [11 March 2019]

[4] Judge A C Roberts refused the application for a discharge without conviction. His Honour entered a conviction and sentenced Mrs Thomas to community detention for a period of three months.1

The appeal

[5] Mrs Thomas appeals the decision not to grant her a discharge without conviction. Alternatively, she seeks an order quashing the sentence of community detention.

[6] As Corrections removed Mrs Thomas’s electronic monitoring device while this appeal was pending, there remains a period of community detention to be served in the event this Court refuses the appeal against sentence.

The facts

[7] While the Judge’s sentencing notes are brief, they clearly identify the material aspects of Mrs Thomas’s offending which informed the Judge’s refusal of a discharge without conviction.

[8]Judge Roberts said in sentencing Mrs Thomas:

[2] You were confronted with a situation following a family dinner. A son was leaving home. There were members of your family here present, and an issue developed as between your son and your husband. Another, in an effort to defuse the situation, sought to distance the two combatants by driving your son away. That did not occur without incident. Unfortunately, your son was run over, his pelvis was fractured in four places. You witnessed that. The incident occurred outside a shed on the farm. Your son was transported to hospital. You endeavoured to provide for him, making him as comfortable as you could, awaiting the ambulance.

[3] The summary reads before the police arrived you told him, “It’s going to be okay. I was driving.” That is indeed what you told the police. You said you ran over him accidentally while trying to quieten down a situation that had escalated. You went through an evidential breath testing process.

[4] Subsequently, you made an acknowledgement. You contacted police to indicate that it was chaos, and you were stressed. You sought to put right what was wrong.

1 R v Thomas [2018] NZDC 21405.

[9] Mrs Thomas provided an affidavit at the time of her sentencing. In part it gave further explanation…

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 The Queen

Details

AGLC: Thomas v The Queen [2019] NZHC 396
Case: [2019] NZHC 396
Decision Date: 11 March 2019

CaseChat Overview and Summary

The appeal concerns the refusal of a discharge without conviction under s 106 Sentencing Act 2002 for Mrs Thomas who was convicted of attempting to pervert the course of justice. Mrs Thomas was charged with making a false statement to police after running over her son with her car. She appealed against the refusal of a discharge without conviction and the sentence of community detention imposed. The key issues were whether the gravity of the offence was high, whether the consequences of a conviction were out of all proportion to the gravity of the offending, and whether the sentence of community detention was manifestly excessive. The Court held that the gravity of the offence was high as Mrs Thomas's conduct had successfully interfered with the course of justice. While the consequences of a conviction may impact on Mrs Thomas's reputation, they did not outweigh the gravity of the offending. The Court also found that the sentence of community detention was not manifestly excessive as it did not render the sentence inappropriate in all the circumstances. The appeals against conviction and sentence were dismissed.

Orders