The Queen v Helen Diana Potter

• Jurisdiction: New Zealand
• Judge: Wild,MacKenzie,Lang JJ
• Judgment Date: 25 February 2015
• Neutral Citation: [2015] NZCA 25
• Docket Number: CA510/2014
• Court: Court of Appeal
• Date: 25 February 2015

BETWEEN

The Queen

Appellant

and

Helen Diana Potter

Respondent

[2015] NZCA 25

Court:

Wild, MacKenzie and Lang JJ

CA510/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Application by the Solicitor-General to appeal against sentence — respondent was found guilty after a jury trial on one count of attempting to pervert the course of justice under s117(e) Crimes Act 1961 — had been sentenced by the District Court (DC) to 10 months home detention — Crown's case was that respondent had pressured a young female relative who was living with her, to withdraw allegations of sexual misconduct against the respondent's partner — DC judge had relied on the starting point in R v W when setting the starting point in this case — Crown said that R v W had been overruled by M(CA469/2013) v R which said that offending of the most serious type had to attract the maximum prescribed penalty, and offending near to the most serious a penalty near to the maximum — without raising it with counsel, DC judge also allowed a discount on the sentence for the difficulty the respondent would find in prison as she was a former Department of Corrections employee — whether the DC judge erred in relying on R v W — whether the starting point of two years three months' imprisonment was too low — whether a discount should have been given for the difficulty the respondent would face in prison as a result of her former employment.

Counsel:

S K Barr and F G Biggs for Appellant

N Levy for Respondent

The Solicitor-General's application for leave to appeal against sentence is declined.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Wild J)

Introduction

1 In the Christchurch District Court on 28 August 2014 Judge Kellar sentenced the respondent, Ms Helen Potter, to 10 months home detention 1 Ms Potter had been convicted of one count of attempting to pervert the course of justice (Crimes Act 1961, s 117(e)), after a jury found her guilty at trial.

[2] The Solicitor-General applies for leave to appeal Ms Potter's sentence. He submits it is manifestly inadequate and wrong in principle, in particular because the Judge failed to recognise the serious and insidious nature of this type of offending and the need to denounce it and deter others

Background

3 In August 2012 Ms Potter was living with her partner, Mr Tamaiparea. A 14 year-old relative was also living with Ms Potter and had been for some years. She made allegations of sexual misconduct against Mr Tamaiparea. Consequently, Child Youth and Family Services (CYFS) removed her from the home but she returned after Mr Tamaiparea had moved away.

4 In September 2012 the complainant told the police she had lied about her allegations against Mr Tamaiparea. She then made a formal written statement withdrawing them.

5 In October 2012 the complainant told her aunt that her allegations were truthful, explaining Ms Potter had encouraged her to lie to have them withdrawn. After she had confirmed this to both CYFS and the police the investigation into Mr Tamaiparea's conduct was resumed.

6 Mr Tamaiparea was tried in the High Court in March 2014. He faced five counts of indecently assaulting the complainant and one of sexually violating her by unlawful sexual connection. In her evidence for the Crown the complainant said Ms Potter had twice put pressure on her to withdraw her allegations against Mr Tamaiparea. The first occasion was at home shortly before she had gone with Ms Potter to the police station on 22 September 2012 to complete Ms Potter's formal statement. Ms Potter had again pressured her while they were on their way to the police station. On both occasions the pressure had taken the form of Ms Potter telling her about the financial consequences of Mr Tamaiparea going to prison, in particular because he was helping to pay the rent and to pay for things the complainant needed both at home and at school.

7 The complainant was cross-examined on the basis her evidence would be contradicted by Ms Potter. Ms Potter then gave evidence for the defence. After 10 hours of deliberation the jury indicated to the trial Judge they were unable to reach a verdict and were discharged.

8 Meanwhile, in November 2012, Ms Potter had been charged with attempting to pervert the course of justice. Her defence at trial in July 2014 was a denial of the charge. The jury found Ms Potter guilty.

9 Subsequently, in October 2014, Mr Tamaiparea pleaded guilty to a representative count of indecent assault on the complainant.

Judge Kellar's Sentencing

10 In sentencing Ms Potter, the Judge identified four aggravating factors: the complainant's vulnerability; the breach of trust involved; the impact on the complainant; and lastly the nature of the allegations. The Judge observed “[t]hey involve what is allegedly serious offending although the outcome of which I am unable to determine at this point” 2

11 Judge Kellar then referred to the sentencing decision of Rodney Hansen J in R v W, a case he considered bears remarkable similarities to Ms Potter's. 3 He noted “[t]he Judge adopted a starting point of two years and three months imprisonment and ultimately considered that a sentence of home detention achieved sentencing objectives” 4

12 Judge Kellar noted that Rodney Hansen J, in R v W, had relied on R v Hillman 5 treating it as “… effectively a guideline decision” 6 Rodney Hansen J had said:

[16] … The Court of Appeal said in that case that any attempt to dissuade a witness from giving evidence strikes at the administration of justice and

must be met by the Courts with a stern response. After referring to three previous decisions the Court said that in serious cases a sentence of three years' imprisonment must be taken as the benchmark.

13 Judge Kellar then referred to M(CA469/2013) v R 7 He summarised the “somewhat different” 8 facts of that case but noted:

[16] The Court repeated what seems to be said in all such cases that any attempt to disturb the process of the administration of justice is to be deplored and in all but the most exceptional cases is to be met with a moderately lengthy term of imprisonment.

[17] The Court also said at para 10 that interfering with a witness so as to prevent him or her from giving evidence is a matter of grave concern and is to be met with a strong response commensurate with the threat that such conduct poses to the administration of justice and as a result the appeal against sentence was dismissed.

14 Next the Judge recorded the sentencing objectives, which most significantly included “to denounce [the offending] and to act as a deterrent in a general sense” 9

15 He identified two significant mitigating personal factors, the first being Ms Potter's previous good character. The other, which he noted had not been mentioned by counsel, was “that [her] former occupation working for Corrections is a characteristic that would make serving a prison sentence particularly difficult” 10

16 After considering these factors, Judge Kellar determined a starting point of two years and three months' imprisonment. He gave a discount of three months for good character and then a further discount of three months “to reflect the fact that a prison sentence would be more difficult for [Ms Potter] given [her] prior occupation than for the usual offender” 11

17 The Judge then explained why he was prepared to commute the resulting end sentence of one year and nine months' imprisonment to 10 months' home detention:

[26] As Rodney Harrison J did in R v W I too consider that this is a case where societal interests can adequately be served by a sentence of home detention. You are at low risk of further reoffending and such a sentence

would promote your reintegration and continued rehabilitation. This is not a case where the safety of the community is a concern.

Appropriate starting point

18 Mr Barr submitted Judge Kellar's reliance on R v...