• Francis Joseph Smith’s prison sentence for threatening a witness was reduced to six months’ home detention.
• Smith, 61, pleaded guilty to attempting to obstruct justice after his son’s arrest for indecent assault.
• High Court Justice David Johnstone cited Smith’s lack of prior convictions and deemed home detention appropriate.

An Auckland father has been granted a reprieve after he was imprisoned for threatening a witness in his adult son’s criminal case – even after the son received a discharge without conviction.

“Connor is my son – I will protect him. Blood is thicker than water,” 61-year-old Helensville resident Francis Joseph Smith told a witness in April last year, the same day his son was arrested. “They don’t want to f*** with me.

“I don’t care whose lives I ruin.”

Smith pleaded guilty in October to wilfully attempting to obstruct, pervert or defeat the course of justice, punishable by up to seven years’ imprisonment.

He was sentenced to 15 months’ imprisonment in North Shore District Court in February after asking, unsuccessfully, for a non-custodial sentence.

But he successfully appealed the sentence to the High Court at Auckland this month after noting that District Court Judge Grant Fraser only reluctantly imposed the sentence, repeatedly citing a prior precedent-setting Court of Appeal decision.

“Any attempt to disturb the process of the administration of justice is to be deplored and in all but the most exceptional circumstances, to be met with a moderately lengthy period of imprisonment,” read the Court of Appeal judgment cited by the judge.

Judge Fraser said: “Whilst I would prefer to see a sentence of home detention imposed which would recognise an opportunity for you to engage in employment which is much more in the community interest than languishing in prison, the sad reality here is that I have higher authority telling me that it is only in exceptional circumstances that a sentence of home detention can be imposed in relation to this sort of offending.

“I am compelled to agree on the evaluation provided by the Crown that there are no exceptional circumstances.”

‘Drop it’

Smith’s son, 24, was arrested after an incident in Ōrewa last year in which he indecently assaulted a woman while drinking with friends. When she resisted, he shoved her head, leading to a follow-up incident in which the woman’s friends assaulted him, court documents state.

Before his father’s sentencing, the son pleaded guilty but was allowed to walk away from court without a conviction or formal sentence. Reserved for cases in which a judge is convinced the consequences of having the conviction on a defendant’s record would outweigh the gravity of the offending, it is the least restrictive outcome available under New Zealand law.

Francis Smith tried to call the witness several times over a 40-minute period on the morning of his son’s arrest, but she didn’t answer. She later called back after receiving a text from an unknown number that read: “I need to speak to you, I have some information you will be interested in.”

In the four-minute call that followed, Smith identified himself and was alleged to have said the following:

“Connor got arrested this morning, apparently because he had touched a chick that night when that guy ... beat him up. What is going on with you people? When are you all going to grow up? This s*** has got to stop. I want you to tell that chick, and whoever that ... guy is, to drop it.”

He then added the part about not caring whose lives he ruined before asking to meet the witness in person, “because I don’t want to incriminate myself over the phone”.

The victim did not attend court to address Smith directly during his sentencing, but in a written victim impact statement referred to by Judge Fraser, she described debilitating anxiety and mental health issues after the threat.

“I couldn’t even get out of bed most days,” she said.

Judge Grant Fraser (inset) at North Shore District Court in Auckland. Photo / NZME

Smith didn’t ask for a discharge without conviction like his son, but he did seek electronically monitored home detention.

Defence lawyer Anton Heyns pointed out that his client had no prior convictions at 61, which he said equated to “exceptional circumstances” allowing for a sentence other than imprisonment.

“The threat consisted of one call,” Heyns said. “He had asked to see the victim earlier in the day ... but he abandoned the idea.

“The threat was veiled in a sense. It wasn’t specific.”

He noted that his client had owned and operated an earthmoving business for eight years but had to shutter the company when he lost a major contract soon after his arrest. But Smith now had an employment offer with a furniture moving company if allowed to serve a non-custodial sentence, he said.

‘Entirely wrong-headed’

In a judgment issued earlier this month, High Court at Auckland Justice David Johnstone said the district court judge had allowed Smith too great a discount for remorse.

He described the defendant’s apology letters to the court and the victim, as well as his pre-sentencing interview with a probation officer, as lacking insight into the wrongfulness of his conduct and contradicting his own prior admissions in the agreed summary of facts.

“During the interview, he denied threatening anyone, asserting that ‘making threats is not in my nature’,” Justice Johnstone said. “And he sought to explain that his son had allegedly touched a young woman inappropriately, and been beaten and hospitalised.

“In fact, at that point it had been demonstrated by way of his son’s guilty plea that not only was the inappropriate touching alleged, but it had occurred and, further, the young woman had been assaulted. Mr Smith said, ‘I believe I have a strong moral compass and know the difference between right and wrong. However, family is also important to me and I have to protect my son’.”

Justice Johnstone said: “I am not satisfied Mr Smith understands he acted against society’s interests in the justice process being permitted to take their course, without manipulation, by those who consider themselves entitled to seek to do so. Or that he accepts the damaging personal impact of his conduct.”

Justice Johnstone also noted the district court judge was given misleading information about an anger management course Smith took, believing it to have been a 20-week programme when the defendant actually participated in a single day online course and a single face-to-face meeting with an anger counsellor.

Justice David Johnstone presides over a hearing in the High Court at Auckland. Photo / Michael Craig

But the end result – a 10% discount for remorse and lack of previous convictions – was appropriate, the High Court judge agreed.

The main issue on appeal, however, was whether the district court judge should have allowed the 15-month sentence to be converted to home detention. Judges can consider non-custodial alternatives for all sentences under two years.

Smith’s lawyer said it was an error not to give home detention more consideration, while Crown prosecutor Michael Kilkelly said a sentence of imprisonment was appropriate for the circumstances – even if the Court of Appeal directive didn’t need to be applied as strictly as Judge Fraser suggested.

Justice Johnstone noted the Court of Appeal passage calling for imprisonment in all but “exceptional circumstances” came about before home detention became an option allowed by Parliament. Since then, he noted, the Court of Appeal has allowed home detention for perverting justice cases.

“In the present case, notwithstanding Mr Smith’s apparent lack of insight, I do not consider that the clear need to deter and denounce offending of the type in which he engaged demands his imprisonment,” Justice Johnstone said.

“His offending was spontaneous. He did not otherwise offend. At the age of 61, he has no previous convictions.”

The judge described Smith as having made an “entirely wrong-headed and damaging phone call” but said the more appropriate outcome was eight and a half months’ home detention.

Justice Johnstone then further reduced the sentence to six months’ home detention to account for the 74 days Smith spent in custody awaiting appeal.

Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.