Zurich v Police HC Wanganui CRI 2009-483-18

[2010] NZHC 1002

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-483-18

BETWEEN  REBEKAH MANUWAI ZURICH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 March 2010

Counsel:         J Younger for Appellant

J M Woodcock for Respondent

Judgment:      30 March 2010

ORAL JUDGMENT OF MILLER J

[1]      Ms  Zurich  appeals  against  a  sentence  of  18  months  imprisonment  for attempting to pervert the course of justice, contrary to s 117(e) of the Crimes Act

1961.  The offence attracts a maximum penalty of seven years imprisonment.  She contends that the sentence was manifestly excessive, and that she ought to have been allowed home detention.

[2]      The facts are that Ms Zurich and her partner,  Mr Kumeroa, got into an argument about a stereo when they were at home on the night of 29 August 2008. She called the police, and told them that Mr Kumeroa had been violent towards her. He  was  arrested  and  charged  with  injuring  with  intent,  assault  with  a  blunt instrument, and threatening behaviour.  (Evidently she bore some marks or injuries from another incident or accident having nothing to do with Mr Kumeroa.)  He was denied bail, and held in custody from 30 August 2008 until a defended hearing on 2

October 2008.

ZURICH V NEW ZEALAND POLICE HC WANG CRI 2010-483-18  30 March 2010

[3]      When  he  was  called  on  2  October,  his  counsel  produced  a  letter  from Ms Zurich to the effect that she had lied to the police by making up the violent incident, apparently because she believed Mr Kumeroa had been unfaithful.   The letter also indicated that she knew he would not get bail having regard to his criminal history.  This letter having been produced, she admitted that she had lied.  She was charged on 13 October, and pleaded guilty on 8 December, the day of committal.

[4]      The Judge adopted a starting point of 30 months imprisonment having regard to  the  seriousness  of  the  offending,  which  resulted  in  the  loss  of  liberty  for Mr Kumeroa, an element of premeditation, and the impact of this offending on the integrity of the criminal justice system.  Recognising that Ms Zurich is 19 years old, the Judge gave her a six month discount for mitigating factors, including her youth and previous good record.   She was given a further six months discount for her guilty  plea.    The  Judge  considered  whether  a  community-based  sentence  was possible, but observed that Ms Zurich clearly knew that what she was doing was wrong, and boasted about it.   Deterrence and denunciation were paramount considerations, and home detention was declined.

[5]      On  appeal,  Ms  Zurich  seeks  to  minimise  the  aggravating  feature  of Mr Kumeroa’s  being  denied  bail  by  noting  his  previous  convictions.    She  also contends that a guilty plea was entered at an early opportunity;  she pleaded on her first appearance following Ms Younger’s appointment as counsel.  She made a full admission to the police and co-operated with them.   She has only one previous conviction, for driving with excess blood alcohol.  She is young, and she has a three year old daughter, whose father has died and who needs her.   She is again in a relationship with Mr Kumeroa, and is pregnant with his child.   She has been depressed while in prison.

[6]      There  is  no  tariff  case  for  this  offence,  but  imprisonment  is  the  normal response,  because  the  offence  strikes  at  the  administration  of  justice.[1]     For moderately  serious  offending  a  starting  point  of  18  months  to  two  years  is appropriate,  and  in  more  serious  cases  starting  points  of  much  longer  may  be

[1] R v Churchward CA439/05 2 March 2006.

required.[2]   There are certainly cases in which home detention has been imposed:  see for example Dutt[3] and there are cases in which shorter terms have been imposed:  see for example Mangnus and Turney.[4]  But in Hillman[5] the Court of Appeal examined sentences  under  s  117  and  referred  to  a  benchmark  of  three  years  for  serious offences, while in Clutterbuck[6]the Court referred to 18 months to two years in a somewhat less serious case than this.  Those cases were of course referring to end

[2] R v Mangnus and Turney HC Auckland CRI 2006-004-7577, 1 November 2007 at [10].

[3] R v Dutt HC Auckland T.025524, 2 April 2004. 

[4] R v Mangnus and Turney HC Auckland CRI 2006-004-7577, 1 November 2007.

[5] R v Hillman CA14/92, 14 May 1992.

[6] R v Clutterbuck CA372/99, 17 November 1999.

sentences rather than starting points.

[7]      I have hesitated over this because the starting point seems stern having regard to Ms Zurich’s circumstances, but the element of premeditation and the fact that Mr Kumeroa was held in custody were significant aggravating factors.  I am driven to the conclusion that the starting point of two and a half years was available to the Judge.

[8]      It  appears  that  the  Judge  was  unaware  of  Ms  Zurich’s  pregnancy,  but personal circumstances are a secondary consideration in offending of this sort.[7]    If she is eligible for a self-care unit her baby may remain with her until it reaches the age of nine months.  She is now five and a half months pregnant.

[7] R v Churchward CA439/05 2 March 2006.

[9]      It was open to the Judge to allow Ms Zurich only six months for the guilty plea, which was not entered at the earliest opportunity.   The date at which the maximum discount is available may be extended where the offender does not have legal  representation,  but  in  this  case  she  did  so.     There  was  a  change  of representation because it appeared that she was assigned to a counsel who was not eligible to deal with indictable matters.  However, the fact remains that she did not plead at the earliest opportunity.  Whether counsel was properly assigned or not, he ought to have advised her about the discount for the early guilty plea and there is no evidence that he did not.

[10]     The  decision  to  decline  home  detention  was  an  exercise  of  discretion.[8]

[8] R v Stoves CA264/06, 7 November 2006 at [18]; R v Taiepa [2009] NZCA 120, 6 April 2009.

Where denunciation and deterrence are of particular significance, an appellate Court is  unlikely  to  interfere  in  the  sentencing  Judge’s  assessment.     In  this  case, Ms Zurich’s childcare responsibilities and pregnancy are considerations favouring home detention, and Ms Younger understandably stressed them, but they cannot be decisive.  The Judge was entitled to refuse home detention.

[11]     The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Wanganui for Respondent