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 of Mrs Thomas’s decision to lie to police. The Judge summarised that explanation:

[10]               You depose that something obviously got under [your husband’s] collar. He left the residence, and went to the shearers’ quarters. In para (20) onwards, you provide a recital as to how your son was injured. You contend your son told you to say that you were the driver. You say you did so, overwhelmed at what had unfolded before you. You did not want a friend, [named], to be compromised by the truth because of your son’s behaviour. Undoubtedly, I accept tensions and emotions were high at the time you made your false statement. Later, as I say, the following morning you looked to put things right.

[10]              The Summary of Facts, on which the Judge dealt with Mrs Thomas’s sentencing, went on to record:

The defendant was processed in the usual manner and recorded 250 mgms after completing an evidential breath test at Omarama Station. At no time did she admit not being the driver.

When spoken to by Police the defendant admitted the facts as outlined and in explanation she stated: “I don’t know why I did it. It was chaos. I was stressed.”

District Court decision

[11]              Judge Roberts identified that the Court’s consideration of an application for a discharge without conviction is required to involve a three-step process.2

Gravity of offending

[12]Judge Roberts found the gravity of the offence to be high.3

[13]              His Honour identified that the charge was serious, with Courts having observed that the behaviour involved strikes at the very heart of the judicial process.4

[14]              His Honour recognised that, in terms of the range of behaviour which may constitute the offence, Mrs Thomas’s conduct might be categorised as less grave given

2      Thomas, above 1, at [13]; applying R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] – [17] and Z v R [2012] NZCA 599, [2013] NZAR 142 at [8].

3      Thomas, above 1, at [16].

4      Thomas, above 1, at [14] and [16].

that there was no direct benefit [for her].5 But his Honour balanced against that the fact that Mrs Thomas’s obstruction had prevented the actual driver being tested so as to indicate his breath/blood alcohol level at the time of the accident.6

[15] His Honour also recorded that Mrs Thomas had stated in her affidavit that her son, in the immediate aftermath of the accident, was telling her to say that she was the driver. The Judge observed that such a request was not disclosed to police either by the son in his statement or by Mrs Thomas either when she was informally spoken to or when she formally gave her statement.7 His Honour’s subsequent finding (at [19] below) that the deceit seemed to have originated with Mrs Thomas herself involved a rejection of Mrs Thomas’s evidence that she was put up to this offending by her son.

Consequences of a conviction

[16]              Judge Roberts recorded five matters which Mrs Stevens, for Mrs Thomas, had advanced as consequences of a conviction, namely damage to reputation; damage to insurance prospects; impact on the securing of finance; impact on travel opportunities; and potential exclusion from school activities such as camps.

[17]              His Honour’s discussion of those submissions contains a conclusion in relation to each, either that it was not made out or that it was purely speculative:

[18]               There is no explanation as to how this prosecution that the defendant claims has not been “hidden from anyone” would impact further on her reputation, were a conviction to be entered. While there is the letter from the accountant referring to a client who, sentenced to a charge unidentified that drew a sentence of 80 hours’ community work, was subsequently advised that covers would cease and he should seek insurance elsewhere. There is no evidence to indicate, at the moment, that that would befall you.

[19]               The travel concerns cannot be elevated, given the obligation to disclose “arrest”. That is the operative word, not “conviction”. This would need to be disclosed, even if a conviction was avoided. It is hard to see that a consequence would flow from conviction.

[20]               The exclusion from school camps is also speculative. The entities there also hold you in high regard. Within an area where you are well regarded

5      Thomas, above n 1, at [14].

6      Thomas, above n 1, at [14].

7      Thomas, above n 1, at [15].

for your service and commitment, I would have thought your background and pedigree would continue to see you held in good stead.

Consequences out of all proportion

[18]   Before turning to his assessment of the relationship between consequences of conviction and the gravity of offending, his Honour had noted the personal circumstances of Mrs Thomas including:

(a)her acknowledgement of offending (she having sought to put right what was wrong by coming forward and the pre-sentence report writer having noted that Mrs Thomas’s remorse was extreme);

(b)her personal circumstances (Mrs Thomas having three adult sons, being actively involved in her community and being valued for her contribution);

(c)character references (others in the community having spoken highly of Mrs Thomas in written references); and

(d)the tension at the time of the incident (the Judge noting from Mrs Thomas’s affidavit that tensions and emotions had been high at the time Mrs Thomas offended).

[19]   Judge Roberts concluded that the seriousness of the offending (which is of a nature which “invariably carries with it a prison sentence”) was not outweighed by any of the consequences relied upon by Mrs Thomas. The Judge explained to Mrs Thomas as the matters which most weighed with him:8

(a)This deceit seems to have its origins with you.

(b)You succeeded in putting the Police off pursuit of the individual who was the driver, and who I gather it is suggested had been drinking.

8      Thomas, above n 1, at [21].

[20]   What the Judge did not expressly state but is implicitly recognised in his Honour’s reference to the driver’s drinking, is the substantial distinction between the gravity of careless driving causing injury (carrying a maximum penalty of six months imprisonment or a fine of $4,500) and causing injury while being in charge of a motor vehicle in contravention of blood/breath alcohol limits (carrying a maximum penalty of five years imprisonment or a fine of $20,000).9

[21]   It is convenient to consider both sets of submissions sequentially, by reference to each step of the three-step process.

Gravity of offending

Appellant’s submissions

[22]   Mrs Stevens’ ultimate submission was that Judge Roberts incorrectly concluded that the consequences of a conviction for Mrs Thomas were out of all proportion to the gravity of the offence. She submitted that that error arose from the Judge’s initial error in characterising the gravity of the offence as high and the offending as serious.

[23]   That said, Mrs Stevens accepted that the offence itself is, by its very nature, a serious offence and that the Judge correctly characterised the offence as going to the very heart of the judicial process. But she submitted that the Judge then failed to focus on the particular circumstances of the offence. She identified a number of matters personal to Mrs Thomas as being particular circumstances of the offence including:

(a)no relevant history of offending;

(b)established good conduct as a parent/grandparent, member of the community and (jointly with her husband) a farmer/exporter;

(c)the taking of counselling to address her issues and concerns about the offence; and

9      Land Transport Act 1998, ss 38 and 61.

(d)references from members of the community attesting to Mrs Thomas’s good character.

[24]   Additionally, Mrs Stevens identified a number of matters relating to the offending itself and to its aftermath:

(a)there was no benefit to Mrs Thomas personally through the false statement;

(b)the falsehood lasted for only a “very brief period” before it was corrected;

(c)the false statement was made in a situation of extreme stress and anxiety, as Mrs Thomas tended to her gravely injured son in dark, raining conditions, a situation of high tension and emotion with Mrs Thomas’s own emotions affected by guilt over her son’s behaviour and the harm the situation might bring to his friend who was almost a part of Mrs Thomas’s family;

(d)Mrs Thomas’s offending was not motivated by a fear that the friend might have been over the legal alcohol limit, the friend having arrived after the family meal and with alcohol “not having played a large part in the evening” (the friend having subsequently pleaded to careless driving causing injury and receiving a discharge without conviction on 22 November 2018); and

(e)Mrs Thomas made a donation of $3,000 to the Westpac Rescue Helicopter Service to make amends.

[25]   Mrs Stevens submitted that the Judge had effectively put all these circumstances to one side when he returned later in his sentencing remarks to a conclusion (referred to above at [19]) that the offending was serious and “invariably carries with it a prison sentence”.

[26]But, as Mrs Stevens noted, his Honour then continued that:

Imprisonment is a potential option, the report writer says, but I am not intending to go anywhere near that.

[27]   From this observation, Mrs Stevens concluded that Judge Roberts had accepted that Mrs Thomas’s offending was not “in the normal range”.

Respondent’s submissions

[28]   For the Police, Mr McRae noted that the offence under s 117(e) Crimes Act carries a maximum penalty of 7 years. Mr McRae submitted that a number of principles inform the gravity of such an offence:

(a)The core issues are first whether the actions of the defendant affected the course of justice, and secondly the intention behind the defendant’s attempt.10 The “perversion” of the course of justice embraces conduct intended to secure a wrong or unjust result but also conduct intended to bring about what the defendant believed to be the correct or just result by the use of improper means.11

(b)The offence does not require a dishonest, corrupt or threatening aspect (as required for other parts of s 117).12 Where the conduct involves seeking to interfere with the arrest of a suspect, the defendant’s belief that the person is innocent may in some circumstances lessen culpability.13

(c)In serious cases, it is “absolutely essential that the police be given the full facts immediately so that they can make immediate enquiries”.14

10     R v MPP [2017] NZCA 314, (2017) 28 CRNZ 204 at [28].

11     R v Taffs [1991] 1 NZLR 69 (CA).

12     R v Thomas [1979] QB 326 (CA).

13     McMahon v R [2009] NZCA 472 at [81] – [84].

14     R v Cobb HC Hamilton CRI-2007-419-03, 30 March 2007 at [12].

(d)There is no requirement for the “primary offender” (the person in respect of whom the course of justice was sought to be deflected) to have been convicted of any offence.15

(e)The personal circumstances of offenders who attempt to pervert the course of justice should be given only modest weight in reducing a sentence because the protection of the course of justice by the Courts, and punishment who wilfully attempt to pervert it, is important.16

(f)Any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional circumstances is to be met by a moderately lengthy term of imprisonment.17

(g)Attempts to conceal or destroy evidence have tended to attract a lower starting point of sentence than cases involving witness intimidation.18

[29]   Mr McRae noted that no guideline case exists in relation to the sentence for attempting to pervert the course of justice precisely because the offending varies greatly.

[30]   Mr McRae referred to two cases involving the impeding of murder investigations as having some relevance. In R v Cobb, a vital witness in a murder investigation omitted to bring matters within her knowledge to the attention of the police with the result that the person of interest benefited from trying to escape and conceal himself from the authorities.19 Although the Court recognised that the defendant had feared for her safety, Lang J considered that the need to deter was one of the most important factors to be taken into account.20

[31]   Secondly, in R v Kirk the defendant made a misguided and desperate attempt to bolster her daughter’s defence of self-defence to an anticipated murder charge by

15     McMahon, above n 13, [78] – [79].

16     R v Churchward CA 439/05, 2 March 2006 at [15].

17     R v Churchward, above n 16, at [14]; M v R [2013] NZCA 385 at [9].

18     Hamiora v Police [2013] NZHC 98 at [27].

19     R v Cobb, above n 14.

20     R v Cobb, above n 14, at [7] and [19].

relocating a significant exhibit.21 Justice Collins reduced a starting point of two years and nine months’ imprisonment (after reduction on other grounds) by a further three months for the defendant’s having some days after the event told the police what she had done.

[32]   Mr McRae accepted that the subject matter in Cobb and Kirk – obstructing a murder investigation – puts the offending in those cases at a different level. But he submits that the fact that Mrs Thomas’s conduct involved not merely an attempt but a successful perversion of the course of justice, puts it in a different category to:

·     Kirk, (where the correct information relating to the exhibit came to light).

·     Cobb (where the person of interest was ultimately located).

[33]   In this case Mrs Thomas’s lying to the police meant that while the police identified the actual driver, they did so too late to obtain from him a relevant evidential breath test.

Discussion

[34]   The gravity of the offence may be considered from two perspectives. First, the gravity of this type of offence generally. Secondly, the gravity of this particular offence having regard to the defendant’s particular offending.

[35]   Judge Roberts was correct to conclude that a charge under s 117(e) Crimes Act is serious given that the behaviour strikes at the very heart of the judicial process, carries a maximum imprisonment period of five years, and almost invariably results in a sentence of imprisonment.

[36]I then turn to the particular circumstances in Mrs Thomas’s offending:

(a)Mrs Thomas’s offending was not merely an attempt at perverting the course of justice – she succeeded in having suspicion fall upon herself

21     R v Kirk [2015] NZHC 875 at [18] – [19].

with the consequence that the actual driver was not breath tested at the time. That saw the police subsequently reduce the charge against the offender from the serious charge of causing injury while in contravention of blood alcohol limits to the significantly less serious charge of careless driving causing injury.

(b)The circumstances and nature of the accident and injuries to Mrs Thomas’s son would undoubtedly have caused extreme stress and anxiety to those attending, including Mrs Thomas. To that extent, her decision to lie to the police may be explained by a degree of spontaneity. But it was a thought-out decision to shield the true offender from the police. Mrs Thomas then sustained the position throughout her transfer to the police station and her breath-testing in the hours that followed.

(c)The lack of personal benefit to Mrs Thomas does not significantly alter the gravity of the offence. The nature of the offence was that it was to secure benefit to another person through the commission of the offence.

(d)While it is appropriate to view a concealment of evidence case as less grave than a witness intimidation case, that usual distinction carries less weight here where the offending was effective in interfering with the course of the actual driver’s prosecution.

[37]   In the circumstances, the Judge correctly concluded that Mrs Thomas’s offending was serious. The Judge put the gravity of the offending as high. Given that there will be a range of situations where the gravity of the offence is more grave than this, in my judgment an appropriate classification of this offending may have been to put it in the medium-to-high range.

[38]   The fact that the Judge later in his sentencing remarks observed that he was “not going anywhere near imprisonment” cannot be read as detracting from his Honour’s conclusions as to the gravity of the offending. It is clear that at that point,

he was focused on the end point of the sentencing, at which point he would have taken into account all personal circumstances and mitigation.

Consequences of a conviction

Appellant’s submissions

[39]   Mrs Stevens submitted that the Judge had erred in his assessment of the consequences which had been advanced for Mrs Thomas at sentencing:

(a)Damage to reputation – Mrs Stevens noted that the Judge rejected the possibility of further damage to reputation on the basis that Mrs Thomas had asserted that she had hidden the prosecution from no-one. Mrs Stevens submitted that loss of reputation still occurred through the loss of reputation in the broader community and loss of self-esteem.

(b)Insurance and travel – Mrs Stevens submitted that the impact of a conviction on insurance and overseas travel would be a serious consequence, with the requirement for applicants to be of good character presenting a “real obstacle”.

(c)School activities – Mrs Stevens submitted that the Judge erred in not finding that Mrs Thomas’s children would be adversely affected through Mrs Thomas having to disclose her conviction in relation to intended school activities. Mrs Thomas had submitted fresh evidence that included the New Zealand Police vetting service and request and consent form which the children’s school requires to be signed by applicants.

Respondent’s submissions

[40]   Mr McRae grouped his submissions in relation to the consequences of a conviction and the proportionality of consequences together:

(a)Reputation – Mr McRae submitted that impact on reputation is an expected consequence of conviction.

(b)Insurance – Mr McRae supported the Judge’s conclusion that issues over insurance were speculative. The single item of evidence relied on by Mrs Thomas in the District Court was of an insurance company withdrawing cover for a client who had received a conviction.

(c)Travel – Mr McRae supported the Judge’s conclusion that travel concerns were also speculative, given that the produced visa application form required the applicant to disclose not only convictions for offences but also matters on which they had been arrested. Mr McRae submitted that, on the basis of that information, it cannot be concluded that the outcome of any visa application to the United States (or elsewhere) would be affected.

(d)School activities – Mr McRae again supported the Judge’s conclusion that exclusion from school camps and other activities was speculative. Mr McRae noted that the character references produced by Mrs Thomas indicate that she is held in high regard in her community. The purpose of vetting is to establish that those attending are of the right character to attend – there is nothing to indicate that Mrs Thomas will not be so regarded by the school.

Discussion

[41] Impact on reputation is realistically a consequence in this case but it is more appropriately discussed under the heading of the proportionality of consequences, which I do at [42] below. In turning to the other consequences asserted by Mrs Thomas, I observe that the principle underlying Judge Robert’s reference to “speculative” consequences is that, if an offender is to raise consequences as matters to be weighed against the gravity of the offence, there must be detailed, cogent evidence. To the extent that evidence was put forward in relation to insurance and school activity issues, it fell well short of establishing that there would be a consequence for Mrs Thomas. On travel issues, Mrs Stevens submitted that, rather than problems with visas being a speculative consequence, they were a true potential consequence, and that Mrs Thomas, upon conviction, would face an uncertainty in

applying for any visa. On the evidence adduced, there is no basis upon which this Court on appeal could differ from the Judge’s conclusion that problems over travel are “speculative”. That is precisely what they are.

Consequences “out of all proportion”

Appellant’s submissions

[42]   Mrs Stevens, in her submissions as to disproportionate consequences, dealt with both impact on reputation and the impact on travel and other matters. As I found, as did the Judge, the concerns over travel and other matters are speculative, I do not return to those matters in assessing the proportionality of consequences.

[43]   Mrs Stevens’ written submissions contained the following submission on the impact on reputation:

It is submitted that the direct and indirect consequences of a conviction for the offence of attempting to wilfully attempting to pervert the course of justice by making a false statement are so varied and pervasive as to be extremely serious. It suggests, as does the penalty and the usual consequence of imprisonment, that you are in individual who will resort to anything to create an advantage to yourself. It cannot suggest anything else. For His Honour to say well the people you know already know about this offence so your reputation won’t be damaged,²² fails to recognise that reputation loss is not confined to friends but relates to one’s own self-esteem and the wider communities assessment. Contacts with people professionally, socially, and in the community are instantly and permanently married by a conviction for such an anti-social offence. A discharge would immediately signal to all concerned that it was an exceptional situation not justifying the entering of a conviction.

Respondent’s submissions

[44]   Mr McRae noted that the submissions for Mrs Thomas revolved around the fact that her reputation may through a conviction be tarnished. Mr McRae submitted that that is an expected consequence of a conviction and it does not have such significance as could outweigh the gravity of this offending. Mr McRae further submitted that the possibility of the tarnishing of the reputation is merely speculative.

22     Para [18] Sentencing Notes.

Discussion

[45]   I consider it appropriate, even in the absence of any evidence, to accept that any publication of a conviction for an offence of this gravity is likely to reduce a person’s reputation. But that is, as Mr McRae submitted, the expected consequence of a conviction.

[46]   The fact that Mrs Thomas’s excellent reputation may be adversely affected by a conviction falls well short of meeting the high threshold under s 106 Sentencing Act. Those consequences are not out of all proportion to the gravity of the offending.

Outcome on appeal against conviction

[47]The appeal against conviction will be dismissed.

Appeal against sentence

The District Court’s decision

[48]   Judge Roberts put to one side the possibility of a community work sentence upon the basis that Mrs Thomas had already benefitted the community through her donation.

[49]   Instead, Judge Roberts sentenced Mrs Thomas to community detention for a period of three months, taking into account her early plea and her previously unblemished record. The sentence of community detention followed the Judge’s earlier indication that he would not consider a sentence of imprisonment.

Appellant’s submissions

[50]   Mrs Thomas has adduced fresh evidence relating to the consequences of community detention. She listed:

(a)The electronic bracelet on her ankle bruised and chaffed her leg;

(b)It made it unsafe to put on a work-safe farm boot as it did not fit within the boot and was not loose enough to go above it;

(c)She was unable to do tractor work as she had to wear work-safe footwear – it would be dangerous entering and exiting the machinery as it was made of stiff, unbreakable plastic;

(d)She was unable to ride a horse for stock or mustering work because of the risk of being dragged if the bracelet caught;

(e)She was unable to check or retrieve stock during curfew hours; and

(f)She was unable to reach staff in the event they suffered an accident or illness in curfew hours.

[51]   Mrs Thomas added that, in relation to her broader social life, there were additional consequences:

(a)She could not travel to go to a child at their boarding school when they had an accident (as happened on 31 January 2019);

(b)She could not go to her elderly parents or aunt in Christchurch if they needed her;

(c)She could not attend school activities in curfew hours (affecting particularly a son in Christchurch);

(d)She could not go to that son’s sporting events which are all on Friday evenings or Saturday mornings; and

(e)She could not go to that son’s music recitals which are all in the evening.

[52]   In her oral submissions, Mrs Stevens submitted that the sentence of community detention would not achieve any purpose in terms of deterrence. In her submission, the single reason for imposing a period of detention upon Mrs Thomas would be as a deterrent.

Appellant’s submissions

[53]   For the Police, Mr McRae noted that it is well established that it is the end sentence imposed which is reviewed on appeal and not the process by which the Judge reached the end sentence.

[54]   Mr McRae noted that a community detention sentence sits down the hierarchy of sentences.23 He submitted that, when it is recognised that the starting point for offending of this nature is a period of imprisonment, the community detention sentence fell well within the acceptable range. In his submission, it was the least restrictive (appropriate) outcome in the circumstances of the case and having regard to Mrs Thomas’s personal circumstances. He submitted that the sentence could not be considered manifestly excessive.

[55]   Finally, Mr McRae noted that the sentence for the present offending has a dual purpose of deterrence and denunciation. In his submission, the Judge’s sentence was apt for both purposes.

Discussion

[56]   The social consequences of the community detention sentence, as identified by Mrs Thomas in her fresh affidavit, are simply a part of her punishment. The fact that her social engagements are, for that period limited, is an intended and appropriate outcome of the sentencing process.

[57]   I turn then to the work consequences. The Thomases run a farming operation. A central aspect of the community detention sentence is that it enables the Thomases to have the benefit of Mrs Thomas’s services on the farm. Mrs Thomas’s affidavit establishes that there are aspects of farm-work which may be precluded or made difficult, particularly by the electronic bracelet. But no evidence has been adduced as to any reasonable endeavours made by the farming operation to accommodate the tasks involved through work reallocation or additional support. It is not an assumption of a community detention sentence that, for the period involved, the defendant will be

23     Sentencing Act 2002, s 10A(2)(d).

able to perform the entirety of their usual work tasks. Mrs Thomas’s evidence does not establish that reasonable, economic alternatives were unavailable for the particular work identified by Mrs Thomas. To the extent that Mrs Thomas indicates her bracelet is causing discomfort, it is a matter to be taken up with those supervising her sentence.

[58]   To the extent that there is evidence of an impact on Mrs Thomas’s work-life, it does not render the community detention sentence manifestly excessive.

[59]The appeal against sentence will be dismissed.

Orders

[60]I dismiss the appeals against conviction and sentence.

Osborne J

Solicitors:

Marks & Worth, Dunedin Gresson Dorman, Timaru