NISBET v R [2017] NZCA 476

NISBET v R [2017] NZCA 476 [19 October 2017]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURTS ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS.IN THE COURT OF APPEAL OF NEW ZEALANDCA560/2017[2017] NZCA 476BETWEEN CRAIG GRANT SCOTT NISBETAppellantAND THE QUEENRespondentHearing: 9 October 2017Court: Kós P, Woolford and Collins JJCounsel: P N Ross for AppellantJ A Eng for RespondentJudgment: 19 October 2017 at 4.30 pmJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of 18 months' imprisonment for perjury is quashed.C A sentence of 12 months' imprisonment is substituted.D The sentence of two months' imprisonment in lieu of fines and infringement fees is to be served concurrently with the sentence of imprisonment for perjury.E Leave is granted to the appellant to apply to the District Court for home detention.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Nisbet appeals a sentence of 18 months' imprisonment imposed byJudge Adeane in the District Court at Napier on 20 September 2017 and the Judge'sdecision declining Mr Nisbet leave to apply for home detention.1 That sentence was imposed after Mr Nisbet pleaded guilty to a charge of perjury.Background[2] Mr Nisbet was the respondent in Family Court proceedings commenced by his former partner. The agreed summary of facts records Mr Nisbet opposed a protection order sought by his former partner, following their separation in July 2013 and the birth of their daughter, A, in February 2014.[3] An issue in the Family Court proceeding was whether or not Mr Nisbet had driven a car with A standing or sitting on his lap without her being restrained. On 22 September 2015, Mr Nisbet swore an affidavit saying he had "never driven away with [A] standing at the steering wheel on the road On a few occasions I havedriven with [A] standing in front of me behind the wheel on the grass verge beside the house. I have never driven with [A] at any time unrestrained by a child car seaton the road".[4] In the hearing in the Family Court in October 2015, Mr Nisbet was cross-examined about the truthfulness of his assertion that he had never driven A without her being restrained. The Family Court decision records that the Judge warned Mr Nisbet about the importance of him being honest.2 After initiallyconceding that he had driven A "illegally" Mr Nisbet recanted his denials and1 R v Nisbet [2017] NZDC 21329 at [24]–[25] [Sentencing decision].2 Aiken v Jackson [2015] NZFC 10514 at [39].confessed that he had driven A unrestrained on the road, with her either sitting or standing on his lap.[5] Mr Nisbet was charged with perjury. He pleaded not guilty. His trial commenced before Judge Adeane and a jury in the District Court at Napier on 9 August 2017. He gave evidence that he had instructed his lawyer in the Family Court to admit from the outset that he had driven A while she was not restrained. On the second day of the trial, Mr Nisbet sought leave to change his plea after it became apparent that the lawyer would be called as a Crown rebuttal witness and was likely to refute that claim.[6] Judge Adeane then remanded Mr Nisbet in custody pending sentence. TheJudge declined Mr Nisbet's application for bail pending sentence.3[7] On 31 August 2017, a probation officer attempted to interview Mr Nisbet. He declined to engage with the probation service saying that "talking to them was a waste of time". The brief note prepared by the probation service referred toMr Nisbet appearing to have an "entitled attitude" and that arguably "his ability tocomply with a community based sentence [was] low". The probation officer suggested that "a sentence of [i]mprisonment may be considered appropriate by the Court".[8] Mr Nisbet successfully appealed to the High Court against Judge Adeane'sdecision to decline bail pending sentence.4 The High Court pointed out the Judge had misapplied the law governing applications for bail pending sentence and that a sentence of home detention was in all likelihood the sentence that would be imposed in this case.5[9] Regrettably, the probation service did not re-interview Mr Nisbet after the High Court granted him bail pending sentence, even though the High Court had strongly indicated that a sentence of home detention would need to be considered inMr Nisbet's case.3 R v Nisbet [2017] NZDC 17704.4 Nisbet v R [2017] NZHC 2117.5 At [18]–[19].Mr Nisbet[10] Mr Nisbet is 54 years old and is described as a self-employed tradesperson. He has four previous convictions, one of which was for theft by a person in a specialrelationship for which he received a sentence of three years' imprisonment. Theother convictions are for relatively minor offences. At the time of his sentencing, Mr Nisbet had unpaid traffic fines and infringement fees amounting to $9,073.43.Sentencing decision[11] In deciding to impose the sentence of 18 months' imprisonment, the Judgetook into account the following factors: Mr Nisbet's "short but unattractive criminalhistory for dishonesty and non-compliance";6 what the Judge perceived to be theseriousness of Mr Nisbet's offending in the context of a Family Court dispute;7 theneed to denounce Mr Nisbet's conduct and to deter him and others from offending in a similar way in the future;8 and "the probation officer's recommendation and the reasons for it".9[12] Leave to seek home detention was declined. No substantive reasons were given for that course. The Judge remitted Mr Nisbet's unpaid fines and substituted those fines with a sentence of two months' imprisonment, which was imposed cumulatively to the sentence of 18 months' imprisonment.Analysis[13] The proper administration of justice depends on parties and witnesses telling the truth in court. Perjury is therefore a serious criminal offence that carries amaximum sentence of seven years' imprisonment.[14] Perjury may occur in a wide range of contexts. Factors that may impact on an assessment of the appropriate starting point when sentencing a defendant for perjury include the seriousness of the perjury when viewed in the context of the case in which it occurs, the level of premeditation involved in the perjury, the extent to6 Sentencing decision, above n 1, at [22].7 At [18].8 At [23].9 At [24].which the perjury is sustained, the motivation for the perjury, and the harm caused by the perjury.[15] While the Judge touched upon some of these considerations he did not address them in any depth.Seriousness of perjury when viewed in context[16] The perjury in this case occurred in the context of a contested application for a protection order. It was alleged by his former partner that Mr Nisbet had engaged in stupid and potentially dangerous conduct by failing to restrain their young child when he drove her in his vehicle. This was one of a number of issues that arose inthe Family Court proceedings in the course of which Mr Nisbet's former partneralleged he engaged in serious abuse and threatening behaviour. These allegations were the primary focus of the Family Court proceedings. The Family Court Judge found Mr Nisbet had in fact engaged in significant abuse and harassment of hisformer partner. The Judge also found Mr Nisbet's evidence before him seriallyunreliable. When viewed in context, Mr Nisbet's particular perjury was not asignificant factor in the Family Court proceedings and can be accurately categorised as falling at the bottom end of the spectrum of offending of this kind.Premeditation and extent to which the perjury was sustained[17] Mr Nisbet's offending was premeditated and although he acknowledged at the outset of his evidence that parts of his affidavit were incorrect, he continued to not tell the full truth until part-way through the Family Court hearing during cross-examination when he acknowledged the untruthfulness of his evidence. Nevertheless, Mr Nisbet did correct his false evidence during the Family Court hearing.Motivation[18] Mr Nisbet's perjury occurred in the context of him resisting an applicationthat would have greatly curtailed his access to his young daughter. It was notintended to achieve any economic advantage, or to avoid imposition of a criminal sanction.Harm done[19] Mr Nisbet's former partner was unnecessarily put to the task of refuting his false statement. Thankfully, however, the lies in Mr Nisbet's testimony were acknowledged and the Family Court made no decision in reliance upon his falseevidence. On the contrary, Mr Nisbet's lies diminished his credibility andcontributed to the adverse findings against him in relation to the allegations that he had abused and harassed his former partner. No significant harm was done to innocent parties.Comparable cases[20] It is a basic tenet of sentencing that courts should strive, as far as is possible, to ensure consistency in sentencing so that defendants who commit similar offences are seen to be treated on an equal basis.10 While the facts of perjury cases vary significantly, we have examined other cases in which defendants lied in court proceedings in circumstances where little or no harm was caused by their perjury. In the cases we have examined community-based sentences have been applied for offending that was similar to the present case.11Home detention[21] When Mr Nisbet's appeal against the Judge's refusal to grant bail pendingsentence was allowed, the High Court made it clear that this was a case that wouldrequire careful consideration of a sentence of home detention. The High Court's observations were based in part on the Crown's submission that it would be arguingfor a starting point of 18 months' imprisonment. However the sentencing Judge paid scant regard to the possibility of imposing a sentence of home detention. He gave nosubstantive reasons for rejecting Mr Nisbet's application for leave to apply for home10 Sentencing Act 2002, s 8(e).11 R v Oliver HC Wellington S27/90, 1 June 1990; R v Woodward DC Tauranga CRI-2011-070- 3626, 3 July 2013; R v Richards CA25/84, 30 October 1984; and Rehu-Murchie v PoliceHC Rotorua CRI-2005-463-22, 22 April 2005.detention. He erroneously "note[d] the probation officer's recommendation and the reasons for it" when stating that home detention was not appropriate.12Correct sentence[22] In our assessment the sentence of 18 months' imprisonment was grossly disproportionate to the level of Mr Nisbet's offending. Even when we factor in his previous criminal convictions and his apparent lack of remorse we are left with the conclusion that the sentence imposed by the Judge was manifestly excessive. Inaddition, Mr Nisbet's offending and personal circumstances required proper consideration of a sentence of home detention. If imposed, a sentence of home detention should reflect approximately half the length of the sentence of imprisonment together with allowances for time already spent in custody.13[23] A sentence of 12 months' imprisonment, converted if suitable conditionsapply to a sentence of home detention, would have more than adequately served the principles and objectives of the Sentencing Act 2002. Such a sentence would hold Mr Nisbet accountable for the harm done to the victim and the community by his offending, promote in him a sense of responsibility for the harm that he has done, denounce his conduct, deter him and others from committing the same or a similar offence, and it would be the least restrictive outcome that was appropriate in the circumstances of this case.14Cumulative sentence[24] We agree with the decision of the Judge to remit Mr Nisbet's fines andinfringement orders and substitute those fines and infringement orders with the sentence of two months' imprisonment. Normally that sentence would be cumulative. Through oversight there was no appeal against the Judge's decision toimpose the two months additional sentence as a cumulative sentence. However, in view of our conclusion that a sentence of home detention should be imposed uponMr Nisbet if possible, we will order that the sentence of two months' imprisonment12 Sentencing decision, above n 1, at [24].13 R v Fidow [2013] NZCA 209 at [46].14 Sentencing Act, ss 7(1) and 8.be served concurrently rather than cumulatively on the sentence of imprisonment for perjury.Result[25] The appeal against sentence is allowed.[26] The sentence of 18 months' imprisonment for perjury is quashed.[27] A sentence of 12 months' imprisonment is substituted.[28] The sentence of two months' imprisonment in lieu of fines and infringementfees is to be served concurrently with the sentence of imprisonment for perjury.[29] Mr Nisbet is granted leave to apply to the District Court for home detention.15That application should be pursued as a matter of urgency. The authorities are to ensure that a home detention report is prepared and made available to the District Court as soon as is possible. If a suitable address is available and appropriate conditions can be imposed, home detention will be the appropriate sentence here.Solicitors:Cathedral Lane Law, Napier for AppellantCrown Law Office, Wellington for Respondent15 Sentencing Act, s 80I.