Annas v R
[2011] NZCA 49
•8 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA675/2010 [2011] NZCA NO 49 |
| BETWEEN WENDY JOANNE ANNAS |
| AND THE QUEEN |
| Hearing: 21 February 2011 |
| Court: O'Regan P, Chisholm and Priestley JJ |
| Counsel: S Jefferson for Appellant |
| Judgment: 8 March 2011 at 12.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
_______________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeal
In September 2010 Judge Adeane, sitting in the Napier District Court, imposed four cumulative terms of imprisonment on the appellant.
The first term was one of nine months imprisonment for threatening to kill (s 306(1)(a) of the Crimes Act 1961). The second term of eight months imprisonment was for unlawful assembly. A three month term in lieu of a community based sentence was imposed for assault. The final term, one month, was imposed in respect of unpaid fines totalling $12,750.
The total term of imprisonment the appellant is required to serve is thus 21 months. The appellant challenges the total sentence as being manifestly excessive.
No issue is taken with the two smaller terms imposed, nor was there any challenge to the appropriateness of cumulative sentences. The focus of the appeal is on the terms imposed for the threatening to kill and unlawful assembly convictions, and on overall totality.
Background
The unlawful assembly conviction arose out of a gang-related affray on a week day afternoon in a shopping centre car park. The appellant considered she had been insulted by two Mongrel Mob members. She drove home and collected her boarder, her son, a friend, and a selection of weapons which included a hammer, an axe, knives, bars, golf clubs, and pruners. The appellant, and apparently her associates, were affiliated with the Black Power gang. The appellant drove the posse to the shopping centre. She remained in her car whilst the others attacked Mongrel Mob members in the car park. The entire episode, including the appellant’s involvement, was captured on security camera footage.
The appellant, who denied any involvement when interviewed by the police, proceeded to trial in the District Court where she was jointly charged with two others. On the morning of the trial guilty pleas were entered. This disrupted considerably the District Court’s trial schedule. The Judge, when sentencing all three offenders, referred to their clear lack of remorse which he buttressed with the observation that all three had “gamed the system for your own amusement”. All three were sentenced to eight months imprisonment.
Whilst she was on bail for the unlawful assembly offence, the appellant re-offended. She telephoned and threatened to kill the service centre manager of the Taradale WINZ branch. Significantly, the appellant had already been trespassed from the branch premises.
The appellant’s threats were twofold. First she threatened to burn the building down with everyone in it. Secondly she threatened the manager saying she would kill her personally and that she had better be careful and watchful because, if the appellant ever saw her on the road, she would run her down. As is apparent from the victim impact statement available to the Judge, the victim, being aware of the appellant’s associations, took this threat seriously. She travelled to and from work by alternative routes; suffered disturbed sleep for a while; and needed the reassurance of a security guard at her home for approximately three weeks.
Again the appellant denied this offending. She went to a defended hearing and was convicted.
We have no information on what lies behind the $12,750 unpaid fines. In respect of the three month sentence imposed for the assault conviction, this is unchallenged but was in lieu of a 200 hour community work sentence imposed in January 2009 when, as a result of a car park confrontation, the appellant punched another woman through the open window of a car. The Judge had an application for review of the community work sentence before him because of the appellant’s inability to complete it.
Appellant’s personal circumstances
The appellant’s personal circumstances assume some relevance. When sentenced she was aged 33 and was a beneficiary with the care of five children whose ages ranged from nine to 16 years. She has a number of convictions between 1993 and 2008 for dishonesty. In 2008 she was convicted of assault with intent to injure. In addition to the 2009 assault to which we have referred she was convicted of assault in 1994.
The presentence report points to the appellant having no remorse. Contributing factors to her offending were identified as being a confrontational attitude towards authority, a propensity to use violence or threats, and a sense of entitlement to behave illegally.
These characteristics were recognised by the Judge who noted that when Corrections Department officers were trying to interview her for the purposes of preparing a home detention appendix the appellant accused them of unlawful invasion of her privacy and abused them.
Discussion
This appeal thus focuses on whether the eight month sentence imposed for unlawful assembly and the nine month sentence imposed for threatening to kill were excessive, with the linked issue of whether any excess results in the 21 month cumulative figure offending against totality principles.
It is hard to fault the imposition of an eight month sentence by the Judge for unlawful assembly, given that the appellant’s co-offenders received the same sentence. Although the appellant did not personally participate in the retributive assault, it was she who both instigated it and drove all offenders back to the shopping centre car park with their assorted weapons.
The maximum sentence prescribed for unlawful assembly is imprisonment for one year. There are no guideline cases.
We note that in Simeon v R[1] this Court did not interfere with a six month term of imprisonment for unlawful assembly imposed concurrently with other sentences. Counsel suggested that, against that benchmark, an eight month sentence was high. However, given the circumstances of the offending before the Judge we did not consider the eight month sentence imposed on the appellant and her two co-offenders was untoward. Aspects of the offending, which might justify a weighting of the deterrence purpose, include premeditation, the use of dangerous weapons, the fact that the confrontation took place in a public place, and resulting injuries to the victims. It is significant that the appellant was the instigator of the affray.
[1] Simeon v R [2010] NZCA 559.
Threatening to kill under s 306(1)(a) of the Crimes Act carries a maximum sentence of seven years imprisonment. Again there is no guideline judgment. As this Court said in Burchell v R, the circumstances are decisive so far as an appropriate sentence is concerned.[2]
[2] Burchell v R [2010] NZCA 314 at [25].
In Burchell the threat was made in the presence of a probation officer interviewing the prisoner about a conviction for scratching a police vehicle. He said that he had had enough, he knew where a police officer lived, and that if he ever saw him again he would kill him. This Court reduced an eight month sentence imposed in the District Court to one of four months imprisonment.
We see the appellant’s circumstances as more serious. Unlike the situation in Burchell, the threat to kill here was made directly to the victim. The words were not used solely in the heat of the moment. They were part of a sustained threat which included components of advice to be careful; a threat to burn down a building with its occupants in it; and a threat to run the victim over. This threat followed hard on the heels of the appellant being trespassed. Furthermore the appellant and the victim were known to each other. Unlike the police officer in Burchell who was not present and would doubtless have been unfazed by the threat, here the result of the direct threats was to unsettle considerably the victim.
Threats to kill public officials must be taken seriously by courts and would normally justify sentences designed to denounce and deter.
Mr Jefferson pointed to the fact that the appellant had earlier pleaded guilty to a lesser charge of misuse of the telephone. In counsel’s submission, threats over the telephone might not be as serious as face to face threats. We disagree. Again the circumstances are critical. Threats over a telephone may in certain circumstances be just as alarming as face to face threats. Such was the case here. We reject counsel’s submission that the appellant’s use of the telephone can be described as “potentially desensitising” thus contributing to the appellant’s loss of self-control.
Mr Jefferson’s overall submission was that both cumulative sentences should have been four months imprisonment thus reducing the total term from 21 to 12 months.
We agree with Ms Bicknell’s submission that although the overall 21 month term of imprisonment can be described as stern, it is not manifestly excessive or outside the available range.
The Judge was dealing with discrete offending both of which justified a stern approach. With the unlawful assembly offending the appellant was the instigator of a gang-related brawl with weapons during daylight hours in a shopping centre car park frequented by the public. The threat to kill, made whilst the appellant was on bail, was to a public official who was doing no more than her duty.
We consider that the eight month and nine month sentences cumulatively imposed are stern or near the top of the range but not manifestly excessive. Nor do we consider that the 21 month term is excessive having regard to the totality of the appellant’s offending.
Result
For these reasons the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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