Vince v R

[2017] NZHC 2358

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-000045 [2017] NZHC 2358

BETWEEN

PETER JOHN VINCE

Appellant

AND

THE CROWN Respondent

Hearing:	11 September 2017
Appearances:	A Dawson and B Stevenson for the Appellant C E R Power for the Crown
Judgment:	27 September 2017

JUDGMENT OF NATION J

[1]      Mr Vince had trouble accepting that a woman he had been in a relationship with for some seven months wished to end that relationship.

[2]      This woman (the victim) told him that she wanted him to remove his stereo and some personal items from her home.  On 28 January 2017 Mr Vince went to her home in the morning.   He said he was going to take his stereo away but said he would only do so if she went out with him in Dunedin that night.  She eventually relented and agreed to this.

[3]      The victim is deaf, struggles to communicate when not facing people, has previously suffered a stroke and has movement problems relating to that.  She went to her bedroom and was facing the mirror.  Mr Vince came up behind her, grabbed her around the waist and tried to hug her.  She resisted.  He threw her on the bed and

tried to get on top of her, holding her arms above her head for a time and leaving her

VINCE v R [2017] NZHC 2358 [27 September 2017]

with minor bruising to her lower forearms.  She struggled and kept telling him to get off her.   After a short time, she stopped struggling and Mr Vince did as she had asked.  He still wanted her to go out with him that night.  She agreed if he took the stereo.  When he had left, she contacted her sister and went to stay with the sister for a few days.

[4]      Seven days later, Mr Vince accessed the victim’s Facebook account from his computer without her consent, using her password.   From that account, he sent messages to his own Facebook account.  The messages were worded as if they had been written by the victim, saying that she had attacked Mr Vince with a knife and caused her own bruises.    Mr Vince tried to  make it  look  as  if the victim  was implicating herself, had made up the assault and had lied to Police.

[5]      Mr Vince pleaded guilty to charges of male assaults female and attempting to pervert the course of justice.   On the attempting to pervert the course of justice charge, he was sentenced to 22 months’ imprisonment.   On the charge of male assaults female, he was sentenced to a concurrent two month sentence of imprisonment.  The Judge also made a final protection order for the benefit of the victim.1

[6]      On  this  appeal,  Mr Vince  says  he  should  have  been  sentenced  to  home detention.

Principles on appeal

[7]      Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.  Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different

sentence should be imposed.2

[8]      If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and

substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion.

[9]      A  decision  to  grant  home  detention  instead  of  a  short  sentence  of imprisonment is a discretionary one.  Therefore, on appeal the Court’s primary focus is on the identification of any error.3

District Court decision

[10]     The Judge took as the most serious charge the charge of attempting to pervert the course of justice.   Referring to the factual circumstances of the offending and authority, he resolved on a notional starting point of two years’ imprisonment.  He uplifted that by three months to reflect the male assaults female charge.  A further one month was added for a previous violence-related conviction.  Finally, Mr Vince was given the full 25 per cent credit for early guilty pleas, resulting in a notional end sentence of 22 months’ imprisonment.  The Judge directed himself to the question of home detention, but ultimately found that the circumstances of the case were not such as to persuade him to impose home detention instead of a short sentence of imprisonment.

Submissions

[11]     For Mr Vince, Mr Dawson submitted that the Judge over-emphasised the importance of remarks in R v Churchward, that a sentence of imprisonment should ordinarily be the outcome in relation to a charge of attempting to pervert the course of  justice.4      Effectively,  he  argued  that  the  Judge  erroneously  approached  the question of home detention not in terms of a fettered discretion but in terms of an effective presumption that the principles of denunciation and deterrence mandated a

sentence of imprisonment.

[12]     Because of this,  he submitted there had  been  an  error in  the sentencing process, inadequate weight had been given to other factors relevant to the question of home detention and the appeal should be allowed for that reason.

[13]     Mr Dawson acknowledged that the submissions he was making on appeal, as to the way the judgment in Churchward should be considered, were more extensive and detailed than the sentencing Judge had the benefit of.

[14]    Mr Dawson said it was significant that Churchward was decided before amendments to the Sentencing Act 2002 which created home detention as a discrete sentencing option.

[15]     Mr Dawson argued that Churchward had to be applied in a way that took into account the availability of home detention as a discrete sentence.  He submitted this was required, given the comments of William Young P in his dissenting judgment in R v Vhavha, the endorsement of those comments by the Court of Appeal in Osman v R and the recognition of that in a careful and detailed judgment of Heath J in Stevens v Police.5

[16]     Mr Dawson said, if the sentencing Judge had approached matters in that way, given  the  particular  circumstances  of  Mr  Vince’s  offending  and  his  personal situation, the Judge ought to have imposed home detention as the least restrictive sentence.

[17]     Mr Dawson nevertheless accepted that Churchward is still a relevant and appropriate authority for the proposition that principles of denunciation and deterrence will be paramount for attempting to pervert the course of justice.

[18]     For the Crown, Mr Power also emphasised this.  He said the Court of Appeal had reaffirmed this in 2013 in M v R.6  There, the Court of Appeal said:

[9]      As this Court observed in R v Churchward, any attempt to disturb the process of administration of justice is to be deplored and in

5      R v Vhavha [2009] NZCA 588; Osman v R [2010] NZCA 199 at [20]; Stevens v Police [2012] NZHC 871.

6      M v R [2013] NZCA 385.

all  but  the  most  exceptional  of  circumstances,  to  be  met  with  a moderately lengthy term of imprisonment.

[19]     Mr Power pointed out these statements of principle were recently recognised in the High Court in Withey v Police.7

[20]     Mr Power argued the sentencing Judge referred to a full range of matters that were relevant in arriving at the appropriate sentence.   He submitted the Judge’s sentence was ultimately driven by the emphasis that had to be placed on deterrence and denunciation where there had been an attempt to pervert the course of justice. He said the Judge had not applied Churchward as if imprisonment had to be imposed for that offending as a rule of thumb.

[21]     Mr Power argued the case had many similarities with Withey v Police where Williams J took the view that, with offending of this type, a full-time custodial sentence should be imposed in all but the most exceptional cases.   Mr Power highlighted indications in the pre-sentence report which, as referred to by the Judge, questioned the extent of the appellant’s remorse.   In that regard, he referred to comments made by Kós J in the High Court in Kumar v R to the effect that home detention would usually be more appropriate in situations where an offender had

demonstrated true remorse for his offending.8   Mr Power also referred to Mr Vince’s

previous convictions involving domestic violence.

Discussion

[22]     I  consider  that,  consistent  with  Churchward,  it  remains  the  case  that offending by way of perverting or attempting to pervert the course of justice will usually require a sentence where the emphasis is on denunciation and deterrence so

that often imprisonment will be required.

7      Withey v Police [2016] NZHC 3061 at [11].

8      Kumar v R [2014] NZHC 146 at [19].

[23]     Nevertheless, in H v R the Court of Appeal recently discussed Churchward in the following terms:9

[There is] a different approach to sentencing in cases of attempts to pervert the course of justice, since the methodology adopted pursuant to the Sentencing Act. There is a requirement to place the relative seriousness of a particular conviction on a continuum between the least serious (warranting no prison sentence at all), and the most serious (attracting a sentence at or near the maximum of seven years' imprisonment). Unlike more recent decisions of this Court, the Court in Churchward did not proceed in that way. The relevant authority at that point was R v Hillman, the authority of which has been doubted more recently in this Court. The outcome in Churchward was influenced by a combination of what were described as “significant” mitigating factors and the fact that it was a Solicitor-General's appeal.

[24]     Consistent with that, there have been a number of instances where sentences of home detention have been imposed by the High Court for offences of attempting to pervert the course of justice.10

[25]     In Stevens v Police, Heath J referred to the way the Court of Appeal had considered the circumstances in which a sentence might be reduced from imprisonment to home detention.11   He cited a passage from the judgment of Stevens J for the Court of Appeal in Doolan v R as follows:12

[37]      This issue was the subject of observations by William Young P in his dissenting judgment in R v Vhavha as follows:

[29]    Eligibility for  home detention depends upon the  sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less):  s 15A of the Sentencing Act

2002.  In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment.  There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence.   So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.

[38]      These comments were endorsed by this Court in Osman v R.  In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act.   Those provisions of the Sentencing Act do not accord

9      H v R [2016] NZCA 101 at [19].

10     Eg: R v Beazley [2016] NZHC 1219; R v Kirk [2015] NZHC 875.

11     Stevens v Police, above n 5.

12     Doolan v R, above n 3, citing R v Vhavha, above n 5.

greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender.   The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

[39]      In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision.

[26]     Mr Power suggested the observations by the Court of Appeal in Osman v R were made with regard to an appeal against the sentence of imprisonment for producing and supplying fraudulent immigration documents.13   Mr Power suggested the Court of Appeal’s statements should be seen as being relevant to offending in that particular context.   It is apparent, from the passage of Stevens J’s judgment in Doolan just referred to, that the Court of Appeal did not consider their comments in

Osman v R should be of such limited application.

[27]     The sentencing Judge carefully considered what the starting point for this offending should be but concluded by saying that it could not be any lower than two years, given “the over-arching comments about the benchmark that the Court of Appeal  made  in  Miller  and  what  the  Court  of Appeal  has  also  had  to  say  in

Churchward”.14     After other relevant and appropriate uplifts, and a discount for

guilty pleas, the Judge arrived at the end sentence of one year and ten months’ imprisonment, at which point he acknowledged he had to consider whether or not to impose an electronically monitored sentence.  His consideration as to that was brief, essentially comprising two paragraphs.  At para [36], he said he had considered facts which he needed to take into account such as those set out by Kós J in R v Kumar, letters of support written about Mr Vince, his personal circumstances and others referred to by Mr Vince’s counsel in his submissions.  He then concluded:

[37]     But, as was said by the Court in R v Churchwood (sic), only in the most exceptional circumstances should a sentence other than imprisonment be imposed. In fact, the Court said a moderately lengthy term of imprisonment. In my view, a sentence other than imprisonment today would not meet the important principles of deterrence and denunciation that I have set out today.

[28]     Perhaps because more recent Court of Appeal authority was not brought to his  attention,  on reading his  sentencing notes,  I do  not  consider the Judge had sufficient regard to the way the Court of Appeal have reviewed how Churchward is to be applied given the availability of home detention as a discrete sentence.  Given that error, I must now undertake that evaluative exercise.

Application of these principles to the present case

[29]     An attempt to pervert the course of justice becomes more serious where, if it had been successful, it could have meant someone might have avoided criminal liability for a more serious charge.15

[30]     The offending to which the attempting to pervert the course of justice charge applied was, as the sentencing Judge put it, “at the lower end of the scale of criminal offending”.   The maximum penalty on the male assaults female charge was two years’ imprisonment.  The uplift which the Judge adopted as a starting point for this offence, given his adoption of a starting point of imprisonment for the perversion of justice charge, was three months’ imprisonment.

[31]     It seems from the summary of facts that the underlying offence occurred because Mr Vince did not know how to deal with his emotions or to accept what he had been told by someone who he wanted to be in a relationship with, rather than through any desire to physically hurt the victim.  As the sentencing Judge said, the background offence was not the sort that would, of itself, have attracted a prison sentence.

[32]     The steps Mr Vince took, in attempting to divert the Police from the truth as to what had happened, were not sophisticated.  He did not threaten any harm to the victim, in contrast to what occurred in Withey.16   This was a clumsy attempt to create false evidence and likely to be discovered.  In contrast to the situation in Withey, this was not an attempt to suborn a witness or to interfere with the criminal prosecution process once that had already started.

[33]     As the sentencing Judge noted, the attempt to derail the investigation and avoid potential prosecution was made at an early stage in the investigation process and, because it was admitted, did not affect the future course of the investigation or the outcome of the prosecution.

[34]     It was also submitted for Mr Vince that he should be given credit for readily admitting to the Police what he had done.  With regard to that submission, I asked both counsel as to what they could tell me of the circumstances in which he came to acknowledge what he had done.   Mr Dawson assisted me by reading a statement which had been provided by a Police officer investigating the matter.   In that statement, the Police officer recorded how, when he had interviewed the appellant, Mr Vince had denied the male assaults female charge.  He had initially also denied using the victim’s password to send from her phone the message which purported to make her responsible for the injuries she had suffered.  The Police officer then asked if he could have Mr Vince’s cell phone.  It was in response to that request that Mr Vince acknowledged what he had done regarding the false Facebook message.  The Police officer also recorded him as saying that he had seen from a Police scanner that the Police had visited her address.   It was with that knowledge that Mr Vince had some seven days after the actual event created the false Facebook message.

[35]     The offending was thus premeditated to a modest degree but did not involve the more serious or sustained dishonesty of the sort that occurred in Stevens.17

[36]     The sentencing Judge emphasised the importance of having to hold Mr Vince to account and for a deterrent sentence.  In that context, he referred to Mr Vince’s lack of remorse for his offending, as indicated by the report writer.   I read the probation officer’s “advice to courts” and his comments in this regard as relating to the  assault  although  there  was  nothing  in  the  report  to  indicate  that  Mr Vince appreciated the seriousness of what he had done in creating the false Facebook message.

[37]     Mr Vince clearly did not appreciate that the way he dealt with the situation he was in with the victim was disrespectful to her, inappropriate and hurtful although,

17     Stevens v Police, above n 5.

through his counsel, on sentencing he accepted all the detail of what had occurred, as set out in the summary of facts.  The probation officer understandably said his lack of insight was of concern, given his conviction on a male assaults female charge against a different victim in 2009 and that he had then denied responsibility for that assault.   Nevertheless, even with that lack of remorse as to the assault offence, a prison sentence would not have been required for that offending on its own.

[38]     Just as Mr Vince seemed not to appreciate just how wrong it was for him to have acted as he did with the victim, it seems he had little insight of how serious it was for him to create false evidence to mislead the Police as to what happened.  He said to the report writer that his explanation for what he had done was that he wanted to show he had been acting in self-defence as, despite his later acceptance of the summary of facts, he then believed this was the case.  But, even at that stage, Mr Vince accepted that his contrived reference to her attacking him with a knife was an outright lie.  Not only was Mr Vince attempting to provide knowingly false evidence to avoid his being charged with an offence but, in creating false evidence, he was attacking the honesty of the victim  with  regard  to  the complaint he must  have thought she was likely to make or have made to the Police.

[39]     It is because Mr Vince did not have any insight into the seriousness of what he had done, particularly regarding the false Facebook message, that there was a particular need for a deterrent sentence and one that would hold him to account for what he had done.

[40]     On the other hand, the pre-sentence report noted his limited criminal history and the assessment of his likelihood of reoffending as low.  He had obtained seasonal work with Silver Fern Farms over a number of years and has the respect and support of fellow workers who provided references for him.  The report said he was regarded as a reliable and punctual worker who took pride in his work.  Mr Vince is aged 46 and has not previously received a sentence of imprisonment.

[41]     Mr Vince was, and remains, fortunate to have the support of his family, including parents who were willing to have him at their home if he was, and is, able to serve a sentence of home detention.  It also seems likely from the information that

was  before  the  Court  that,  with  the  ending  of  his  relationship  and  all  the circumstance he was in, Mr Vince was not mentally as well as he needed to be to make rational decisions.  The report referred to him taking anti-depressants from a time soon after the offending occurred, although Mr Vince said this was because of stress associated with the criminal proceedings.

[42]     The circumstances of the offending and Mr Vince’s personal circumstances mean that it is important that I be mindful of the obligation to impose the least restrictive outcome that is appropriate in the circumstances.18

[43]     Doing that, I am satisfied that, with regard to the way in which sentencing for attempting to pervert the course of justice is to be approached in light of the Court of Appeal authorities referred to in detail above, there was an error in the sentencing process and a different sentence should have been imposed.  Mr Vince should have been sentenced to home detention.  In fixing the period for that sentence, I take into account the time he has now spent in prison.

Conclusion

[44]     Mr Vince’s appeal against the sentence of imprisonment is allowed.   The

protection order for the benefit of his victim is confirmed.

[45]     Mr Vince is sentenced to nine months’ home detention beginning from when

he is released from prison.  That sentence of home detention is to be served at 70

Cranley Street, St Kilda, Dunedin with the following conditions:

(a)      Mr Vince is to attend and complete a violence prevention programme/ counselling/intervention if directed by a probation officer.   He is to complete the required programme/counselling/intervention to the satisfaction of the probation officer and counsellor;

(b)      Mr  Vince  is  to  undertake  and  complete  any  other  counselling/

treatment/intervention to the satisfaction of the probation officer and

18     Sentencing Act 2002, s 8(g).

counsellor.   The details of the treatment/counselling/intervention are to be determined by the probation officer; and

(c)       standard  post-detention  conditions  to  apply  for  six  months  after detention.

[46]     The sentence of home detention is to begin from such time as the Department of Corrections have made appropriate arrangements for electronic monitoring.  Mr Vince is not to be released from custody until the arrangements for home detention have been set up and he is to travel directly from prison to 70 Cranley Street, Dunedin where he is to serve the sentence of home detention.

Solicitors:

Public Defence Service, Dunedin

R P Bates, Crown Solicitor, Dunedin.