IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE	
CRI 2019-083-1448
[2021] NZHC 1352	

THE QUEEN	

v	

STEVEN WALLACE LEEANN WALLACE	

Hearing:	9 June 2021 (via AVL)	
Counsel:	C B Wilkinson-Smith and R N Benic for Crown R B Crowley for Steven Wallace
S J Burlace for Leeann Wallace	
Sentencing:	9 June 2021	

SENTENCING NOTES OF MALLON J

Introduction

[1]	Steven Wallace, you have pleaded guilty to a charge of attempting to pervert the course of justice.1 Leeann Kristiansen (née Wallace), you were convicted of the same charge following a jury trial. You are both now to be sentenced. Your daughter, Stevie-Lee, has already been sentenced on the same charge to which she pleaded guilty at an earlier time.2

[2]	Your offending relates to the death of Jasmine Wilson. Your son, Zane Wallace, is charged with her murder and his trial is now to take place next year. Your offending

1	Crimes Act 1961, s 117(e).
2	R v Wallace [2020] NZHC 3176.

R v WALLACE [2021] NZHC 1352 [9 June 2021]

arises out of your actions on the morning of 31 July 2019 when Ms Wilson was taken to hospital with serious injuries from which she later died.

The offending

Summary of facts

[3]	Steven, you found the severely injured Ms Wilson at Zane’s Whanganui East address around 9 am that morning. You placed her into your car and drove towards Whanganui Hospital. At 9.10 am, you called Leeann. At 9.13 am there was a further call from Leeann to you.

[4]	At the time of these calls, you, Leeann, were with your daughter Stevie-Lee at a Castlecliff address. Shortly after these calls, you and Stevie-Lee left the Castlecliff address and drove in separate cars towards the hospital. Leeann, you were always intending to drive to the hospital at this time because you had a pre-arranged 9.30 am hospital appointment to attend for tumours on your legs.

[5]	Steven, you arrived at the hospital carpark at 9.19 am. You drove around the carpark, with Ms Wilson in the back of your car, waiting for Leeann and Stevie-Lee to arrive. Leeann, you arrived at the hospital carpark at 9.24 am. Stevie-Lee arrived at 9.25 am.

[6]	Steven, you and Stevie-Lee swapped cars, and then Stevie-Lee drove your car to the emergency department and alerted hospital staff that Ms Wilson was in the car and was seriously unwell. While at the hospital, Stevie-Lee gave false accounts to the hospital staff of how she had come to find Ms Wilson with those injuries.

[7]	Ms Wilson was treated by the hospital staff. She was subsequently transferred to Wellington Hospital where she later died as a result of her injuries.

Other information

[8]	The Crown says that as a result of the swapping of the cars and the story that Stevie-Lee told the hospital staff, the Police conducted a scene examination at Steven’s address and this involved multiple personnel and several days’ work. That said, it is

accepted that the investigation was not misdirected for long because, at an early stage (a few days of Ms Wilson being taken to hospital), the Police had retrieved the CCTV footage of the hospital car park. Soon after this, you, Steven, told the Police that you had found Ms Wilson at Zane’s address. You said that you had swapped the cars with Stevie-Lee because you did not want to be identified as the person dropping her off because a male dropping off an injured female “would not look good”.

[9]	You have conveyed this again to the pre-sentence report writer and said you were shocked to find Ms Wilson in the condition she was in, panicked and thought it would be better if Stevie-Lee took Ms Wilson into the hospital. Through your counsel this morning, you accept that you intended to protect Zane at that stage.

Leeann

[10]	Leeann, the Crown’s case against you was that during the two calls at 9.10 and
9.13 am you were involved in a plan in which Steven and Stevie-Lee would switch cars at the hospital car park and Stevie-Lee would alert the hospital staff to Ms Wilson. The Crown contended at trial that the purpose of this plan was to obscure where    Ms Wilson had come from to protect Zane. The Crown also contended that you checked on the progress of the plan when you spoke to Steven outside the Whanganui Hospital after the cars had been swapped and before attending your hospital appointment, and again when you called Steven after the appointment had ended.

[11]	Leeann, you denied any knowledge of or involvement in such a plan. On your behalf it was contended at trial that the conversation with Steven was about the need to get Ms Wilson to hospital and that any plan involving the switching of the cars was between Stevie-Lee and Steven. You still maintain that you were not involved and that is why you pleaded not guilty and you were shocked to be convicted. However, I must sentence you in accordance with the jury’s verdict.

Victim impact statements

[12]	We have heard this morning from Ms Wilson’s mother and father. They also spoke when Stevie-Lee was sentenced. As you have heard, they have suffered

unbearable loss and their pain, sadness, emotional scars and grief will be with them forever. They want justice for their beautiful daughter.

Starting point

Steven

[13]	Steven,  I  will  now  determine  the  starting  point  for your offending.	The aggravating features are as follows:

(a)	You intended to obfuscate the investigation into Ms Wilson’s injuries by switching the cars with Stevie-Lee to hide that it was you who had found Ms Wilson in her injured state at Zane’s address.

(b)	Your actions in arranging the swap of the cars were positive steps rather than omissions.

(c)	Those actions delayed getting Ms Wilson medical attention by at least some minutes because you did not call the Police or call an ambulance and you waited for Stevie-Lee to arrive at the carpark.

(d)	The effect of your actions was to misdirect the Police early in the investigation.

[14]	The factors that reduce the culpability of your offending are that:

(a)	the offending was not sophisticated;

(b)	the misdirection of the investigation was of short duration;

(c)	soon after carrying out the switch of cars there was some remedying of your attempt to obstruct the enquiry through your statement to the Police that you had found Ms Wilson at Zane’s address; and

(d)	most significantly, and although you had no legal duty to do so, upon finding the seriously injured Ms Wilson at Zane’s address, you

immediately took action to get her to the hospital so that she could receive medical assistance.

[15]	When I sentenced Stevie-Lee, I adopted a starting point of six years’ imprisonment based on a comparison with other cases of this nature.3

[16]	I agree with the Crown that you had the most significant role in the offending because you made the decision  not  to  involve  the  authorities  when  you  found Ms Wilson at Zane’s address. On the other hand, you did not tell lies to the hospital staff as Stevie-Lee did and you did admit where you had found Ms Wilson soon after she had been taken to hospital. Looked at overall, I see no reason to adopt a different starting point to that for Stevie-Lee.

Leeann

[17]	Leeann, turning to you, I agree with the Crown that your culpability was lower than Steven and Stevie-Lee. You role was to contribute to the planning of who would take Ms Wilson into the hospital emergency department but you took no positive steps in its execution. The Crown has proposed a starting point of five months’ imprisonment but I consider four months better reflects your involvement and culpability relative to Steven and Stevie-Lee.

Personal factors

Steven

[18]	I turn now to consider personal factors.

3	Those cases include convictions for being an accessory after the fact with starting points of      15 months’ imprisonment or more (R v Granich [2013] NZHC 2657; R v Tavita HC Auckland CRI-2009-092-5263, 15 September 2009; R v Comer [2017] NZHC 3243; and R v Crook [2016] NZHC 215). They also include convictions for perverting the course of justice where starting points have ranged between four months’ imprisonment and three and a half years’ or more imprisonment (R v Lyndon HC Hamilton CRI-2006-419-167, 30 March 2007; Miller v R [2014] NZCA 382; M (CA469/2013) v R [2013] NZCA 385; and R v Hauraki HC Hamilton CRI-2006- 419-167, 6 November 2007, in which Harrison J referred to: R v MacPherson HC Hamilton CRI- 2006-019-1950, 11 May 2006; R v Smith HC Hamilton CRI-2006-019-4626; 16 November 2006; R v O’Connor HC Hamilton CRI-2006-419-167, 5 April 2007; and R v Johnston HC Hamilton CRI-2006-419-167, 21 May 2007.

[19]	Steven, the pre-sentence report writer considers you to be a low risk of reoffending. Although you have previous convictions, they are different in nature and they are dated. The Crown acknowledges this and does not seek an uplift.

[20]	Your guilty plea was entered one week before the trial and so was late in the piece. From the comments in the pre-sentence report that may be because you struggled to accept that your actions actually amounted to an attempt to pervert the course of justice. Your counsel also says there were discussions over the summary of facts and your counsel submits that it has really taken some time for you to realise what you did and its impact. The Crown and your counsel agree that a discount of up to 15 per cent is appropriate for your guilty plea and your remorse. As to that, you told the pre-sentence report writer that you wanted to and were focussed on getting Ms Wilson to hospital, but you accept that you should have phoned the Police immediately and regret that you did not do that. You say you panicked and you are remorseful and in shock over what happened to Ms Wilson and you are sorry for the pain suffered by Ms Wilson’s family. Your counsel on your behalf has again conveyed how very sorry you are this morning.

[21]	I agree with counsel about the appropriate discount. That would mean a sentence of around five months’ imprisonment. However, because it is appropriate in your circumstances, including your acceptance of responsibility and your low risk of reoffending, to commute this to a community-based sentence. I consider this should be reduced to four month’s imprisonment to account for the three weeks you spent in prison on remand.

[22]	The Crown submits that this should be commuted to home detention. Your counsel submits the more appropriate sentence is community work with supervision. I agree. For the offending that occurred here, I consider it is preferable that the sentence involve some giving back to the community rather than imposing limited restrictions on your liberty. For that reason, I would have sentenced Stevie-Lee to community work instead of community detention if she had been in a position to carry out that work and if she had been assessed as suitable to do so.

[23]	In your case, I consider the appropriate sentence is 200 hours community work and a period of six months’ supervision subject to the standard conditions.

Leeann

[24]	Leeann, turning to you. The pre-sentence report tells me that you are aged 49, the sole carer of your high-needs son, you have no rehabilitative needs, and have lived a crime-free life. You have also told the pre-sentence report writer about the impact of violence in your own life and the steps you took to remove yourself from this and your determination to break the cycle for your grandchildren. Your pre-sentence report writer assesses you at an extremely low risk of reoffending.

[25]	There are no relevant personal aggravating factors. You do not have the benefit of a discount for your guilty plea or for remorse. But you are a first offender. Your counsel submits you should have a discount for good character to reflect that this is your first conviction and you have operated a business and been a positive contributor to the community. The Crown rejects that submission and says that you lied to Police after the events and did not assist them or admit your role. However, it is clear from your pre-sentence report that you have had real difficulties in your own life and that you are working on doing what you can to remove the negative influences in your family from the next generation.

[26]	Leeann, the Crown agrees that commutation of your sentence to a community- based sentence is appropriate. The pre-sentence report recommends home detention without electronic monitoring, but the Crown says that you already live at an isolated rural property and that home detention, or indeed community detention, would serve no punitive function. The Crown submits that in addition to the recommended sentence, community work should be imposed, and submits the end sentence should be two and a half months’ home detention with 200 hours community work. That submission, however, loses parity with the sentence imposed on Stevie-Lee and the Crown acknowledges that this morning. The Crown submits that given the absence of any real punitive effect from community detention served at your rural address where you seldom go into town (approximately once a week), that the better sentence would be community work.

[27]	Your counsel in written submissions submitted that community work was not possible because you need to care for your special needs son, for whom you are listed as the official carer and for whom you hold an enduring power of attorney and that therefore three months’ community detention would be appropriate. However, having discussed the matter further with you this morning, it has been conveyed that you will be able to do community work because your son, who is no longer at school, will be able to be cared for in a respite facility if you are ordered to do community work.

[28]	I therefore agree, for the same reasons as in relation to Steven, that it is better all round that you give back to the community and that you do community work rather than community detention. There is no need for a sentence of supervision in your case to accompany it, given the assessment of your extremely low risk of reoffending and the steps you have taken to remove yourself from the negative influences in your life. I therefore consider the appropriate sentence for you is 200 hours community work.

Sentence

[29]	Accordingly, Steven, you are sentenced to 200 hours community work and a period of six months’ supervision subject to the standard conditions. Leeann, you are sentenced to 200 hours community work.

[30]	Stand down please.

Mallon J