Withey v Police

[2016] NZHC 3061

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-38 [2016] NZHC 3061

BETWEEN

AARON WITHEY

Appellant

AND

NEW ZEALAND POLICE Respondent

HearingviaAVL:	13 December 2016
Counsel:	N M Graham for Appellant F G Biggs for Rdspondent
Judgment:	14 December 2016

JUDGMENT OF WILLIAMS J

Introduction

[1]      Mr Withey was sentenced on 20 October 2016 to 12 months’ imprisonment for attempting to pervert the course of justice and assault.1     He appeals against sentence on the basis that home detention should have been substituted.

Facts

[2]      The assault occurred on 29 March 2016 when the complainant – Mr Withey’s former partner – arrived at Mr Withey’s home with two men to recover her property. A fight  ensued,  during  which  Mr Withey punched  one  of  the  men  in  the  eye, resulting in lacerations and swelling to his cheekbone below his eye and on the side of his head.

[3]      Before trial, Mr Withey emailed the complainant and threatened her that if

she turned up to Court and “lied” about what happened, he would provide CYFS

with information that would result in her son being taken away from her.

1      R v Withey [2016] NZDC 22759.

AARON WITHEY v NEW ZEALAND POLICE [2016] NZHC 3061 [14 December 2016]

District Court decision

[4]      Judge Adeane adopted a starting point of 18 months’ imprisonment on the attempting to pervert the course of justice charge.  He uplifted by six months for the other offending.   He then gave a 25 per cent reduction for the guilty plea, and a further 25 per cent for the “emotional overlay to all of this”.   This resulted in a sentence of 12 months on the attempting to pervert the course of justice charge, and concurrently four months for the assault.   He took the view that an underlying principle in this type of offending was that a full-time custodial sentence should be imposed in all but the most exceptional cases, and this, he said, was not an exceptional case.

Appellant’s submissions

[5]      The appeal is advanced on the sole basis that the Judge made an error in not considering home detention.  Counsel submits that having arrived at an end sentence of 12 months, the Judge was required to consider whether home detention should be imposed, which he did not.   Prison is not an inevitable sentence for attempting to pervert the course of justice.  Mr Withey had no history for this type of offending, and his actions were impulsive rather than premeditated and vindictive.   The PAC report was positive and recommended community work and supervision, because electronic  monitoring  would  be  difficult  given  his  occupation.    An  electronic sentence was listed as an alternative.   Mr Withey had never served a sentence of imprisonment and was in full time employment.  He has a stable address where he can serve an electronic sentence.

Respondent’s submissions

[6]      Counsel submits that the offending was moderately serious of its kind, when looked at in context.   The email was sent following an act of violence that the complainant witnessed, and in contravention of bail conditions and a protection order.  It would have caused psychological harm and anxiety.

[7]      Counsel  submits  that  the  Judge  appropriately  balanced  the  competing principles and purposes at play, and the end sentence was in accordance with the

principles and authority.  He gave consideration to personal circumstances, referred to authorities that attempts to pervert the course of justice are usually met with terms of imprisonment, and he turned his mind to the possibility of a community based sentence, but rejected it as inappropriate.  Counsel submits that the Judge implicitly did consider other sentences and did have regard to s 16.

[8]      Counsel refers to the cases relied on by the appellant, and says that sentences other than imprisonment are only imposed in exceptional circumstances.   It is far more common that when a sentence is brought within the home detention range, a short term of imprisonment is nonetheless imposed.

Discussion

[9]      It  was  in  my  view  implicit  in  the  Judge’s  sentencing  remarks  that  he considered and then quickly rejected home detention as an alternative.  The cases he said:2

… speak very clearly of the principle that attempts to pervert the course of

justice are to be met with moderately serious sentences of imprisonment.

[10]     The Judge considered that personal circumstances such as were outlined in the Probation Report could not displace the principle that deterrent and denunciative custodial sentences were to be the norm for perverting or preventing the course of justice.

[11]     Home detention is, of course, itself a serious sentence capable of fulfilling the purposes of denunciation and deterrence.   But in my view the Judge accurately traversed the thrust of the authorities when he said that home detention will be exceptional in offending of this kind.3    And although many of these cases involve offending of a more direct kind, such as threats of physical violence, not all of them do.

[12]     As the Court of Appeal made clear in M (CA469/2013) v R “any attempt to

disturb the process of administration of justice is to be deplored and in all but the

2 At [5].

3      H (CA6/216) v R [2016] NZCA 101, Miller v R [2014] NZCA 382.

most exceptional of circumstances, to be met with a moderately lengthy term of imprisonment.”4     In that case, the father kept his daughter, the complainant, in a sexual violation case, away from the police during the course of a trial so she could not be taken to court to give evidence.  There was no violence or threats of violence but a relatively stern sentence of two and a half years’ imprisonment was upheld.

[13]     There are notable exceptions to this rule of thumb.  In R v Beazely,5  a false confession given by a young Mongrel Mob prospect who had since put his life in order received a sentence of 10 months’ home detention.

[14]     Duffy  J  pointed  out  that  the  defendant  was  young,  had  no  previous convictions, and had ended his association with the gang.  Unstated, though perhaps significant, was the point that the offending related to a false confession – that is, the defendant putting himself in harm’s way in order to protect senior members of the gang.   He was himself a victim in a sense.   Imprisonment was considered inappropriate.

[15]     The appellant also referred to R v Kirk6  in which Collins J sentenced the offender to home detention for tampering with the scene of a crime with the intention of reducing or even excluding criminal culpability for a homicide committed by her daughter.  The Judge noted that cases in which attempts have been made to conceal or destroy evidence have tended to attract a lower starting point than cases involving witness intimidation.7   The Judge acknowledged that the circumstances of this case reflected “the misguided and desperate actions of a mother attempting to protect her daughter.”8    This tended, he considered, to reduce, or at least explain, the mother’s actions.  Her objective was not selfish.

[16]     I should finally mention R v Churchward9  in which a light sentence was quashed and upgraded, but only to nine months’ imprisonment, with leave to apply

for home detention.  The Court of Appeal noted significant mitigating features.  The

4      M (CA469/2013) v R [2013] NZCA 385 at [9] relying on R v Churchward CA439/05, 2 March

2006.

5      R v Beazely [2016] NZHC 1219.

6      R v Kirk [2015] NZHC 875.

7      At [14] citing Hamiora v Police [2013] NZHC 98.

8 At [18].

9      R v Churchward, above n 4.

appellant had completed nearly 40 per cent of her sentence, she was pregnant with twins, and due to give birth within a few months.  These circumstances tended to justify a home detention outcome.

[17]     In this case, the appellant threatened the complainant for his own ends.  He threatened to retaliate if the complainant “[lied] about what happened”.  He promised to make a complaint to “ciffs” in order to trigger the complainant’s loss of care of her son.  It was, in reality, a serious enough threat with significant consequences to the victim.  This was a paradigm attempt to pervert the course of justice through the use of non-violent threats of moderate seriousness.   The Judge was right to consider there was nothing particularly exceptional about the circumstances of this offender or the offending that would warrant a non-custodial response.

[18]     The appeal must be dismissed.

Williams J

Solicitors:

N M Graham, Barrister & Solicitor, Napier for Appellant

Crown Law, Wellington for Respondent