Avery v The King

[2023] NZCA 415

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA469/2022
 [2023] NZCA 415

BETWEEN	SHANNON JENIFER AVERY Appellant
AND	THE KING Respondent

Hearing:	19 June 2023
Court:	Brown, Peters and Mander JJ
Counsel:	M J James for Appellant R L Mann for Respondent
Judgment:	4 September 2023 at 10.30 am

JUDGMENT OF THE COURT

A        The appeal against sentence is allowed in part.

BThe sentence of two years and eight months’ imprisonment is quashed and a sentence of two years and four months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

1. The appellant, Ms Avery, appeals against her sentence of two years and eight months’ imprisonment imposed by Jagose J on one charge of robbery and one of assault with a weapon.[1] 

   [1]R v Avery [2022] NZHC 2223.

2. The appellant contends the sentence is manifestly excessive.  In particular, Ms James, counsel for the appellant, submits that the Judge’s starting point of four years and six months’ imprisonment was too high, and that the Judge’s 20 per cent discount for mitigating factors personal to the appellant was insufficient.

Background

1. We take the following from the agreed summary of facts. 

2. The offending occurred in January 2021.  The appellant and her two co‑offenders, Mr Mudford and Ms McWaters, confronted the four complainants (two men and two women) at an isolated rural property in the early hours of the morning.  They stole various items from the complainants, including jewellery, handbags and phonecards.  On the face of the summary, Mr Mudford in particular made concerted efforts to obtain cash from the complainants, including by punching the two men and hitting them on the head with a hammer. 

3. Eventually, the mother of one complainant was prevailed upon to provide some cash.  The appellant then accompanied one of the women to collect the money, holding a knife to that complainant’s waist to ensure her compliance with instructions.  It was this latter conduct that gave rise to the assault with a weapon charge.

4. The appellant and her co-offenders were charged with various offences, and were to go to trial on 4 July 2022.  As it happened, that morning Mr Mudford and the appellant each pleaded guilty to charges of robbery and assault with a weapon, and Ms McWaters to robbery.  The Crown did not pursue the other charges and they were dismissed. 

Sentencing

1. Jagose J sentenced the three offenders, separately, on 1 September 2022.  The Judge took the robbery conviction as the lead offending for Mr Mudford and the appellant.[2]  As we have said, robbery was Ms McWaters’ only offending. 

   [2]R v Avery, above n 1, at [13]; and R v Mudford [2022] NZHC 2222 at [12].

2. It is clear on the summary of facts that Mr Mudford took the principal role in the robbery offending.  It is relevant to what follows that the appellant’s and Ms McWaters’ roles were lesser and, as between them, equivalent up until the events giving rise to the charge of assault with a weapon. 

3. The Judge acknowledged Mr Mudford’s principal role when sentencing him, and adopted a starting point of four years’ imprisonment on his robbery offending.  The Judge increased this by six months to take account of Mr Mudford’s assault with a weapon offending and for offending whilst subject to another sentence.[3]  This brought Mr Mudford’s overall starting point to four years and six months’ imprisonment.[4]   

   [3]R v Mudford, above n 2, at [15]. The appellant was also subject to a sentence (one of supervision) at the time of the offending.

   [4]At [16].

4. As for Ms McWaters, the Judge took a starting point of three years and six months’ imprisonment.[5]  That being Ms McWaters’ only charge, there was no increase.

Discussion

Starting point

[5]R v McWaters [2022] NZHC 2224 at [16].

1. The relevant part of the Judge’s sentencing note as to the starting point for the appellant is as follows:[6]

   [16]      ... I took [four years’ imprisonment] as my starting point for your co‑defendant, Mr Mudford, for his lead in the group offending.  Given your standalone role in accompanying one of the victims to extract money from her mother, although that is not part of the robbery charge, I see no reason to adopt any different starting point for you.  I increase that by six months to account in totality for your assault offending and offending while subject to sentence.

   [6]R v Avery, above n 1 (footnotes omitted).

2. Ms James’ principal submission on the starting point is that the appellant’s level of culpability on the robbery was the same as Ms McWaters’, and thus the appellant’s starting point on that offending ought to have been the same.  Ms James takes no issue with the six-month uplift. 

3. If we are not persuaded as to that submission, Ms James submits that the Judge “double counted” the appellant’s violence in setting the starting point.  

4. Crown counsel, Ms Mann, submits that however the Judge arrived at the appellant’s starting point of four years and six months, it was within the available range and it should not be varied.

5. It may be that a higher starting point was within the available range for the appellant’s offending.  However, we accept Ms James’ submission that, on the summary of facts, up until the events giving rise to the assault with a weapon charge, the appellant’s and Ms McWaters’ conduct in the course of the robbery was on par.  We also accept that the Judge appears to have taken the appellant’s violence into account twice in arriving at the final starting point. 

6. Given that, we accept that the appellant’s starting point on the robbery offending ought to have been three years and six months’ imprisonment, with a six‑month uplift for the assault.

Discounts

1. Having fixed the starting point, the Judge then allowed the appellant discounts of 40 per cent, being 20 per cent to take account of her background, remorse and efforts to rehabilitate; five per cent for time spent on bail and her record of compliance with the conditions of the same; and 15 per cent for her guilty pleas.[7] 

   [7]R v Avery, above n 1, at [19]–[20].

2. This brought the appellant’s end sentence to two years and eight months’ imprisonment.[8]

   [8]At [21].

3. Ms James does not take any issue with the discounts allowed for time spent on bail and guilty pleas.  However, she submits the reduction for the appellant’s personal factors and efforts to rehabilitate should have been 30, rather than 20, per cent.     

4. Crown counsel opposes any increase in the discount, submitting that the 20 per cent allowed is within range. 

5. There is no doubt that the appellant’s circumstances have been extremely difficult, and no doubt also as to the considerable and commendable efforts she has made, with success on the face of it, to rid herself of the addiction to methamphetamine which appears to have been the cause of her offending.  That the appellant has done so is a significant credit to her. 

6. Despite that, however, we accept Crown counsel’s submission that the discount of 20 per cent the Judge gave was within the available range.  In those circumstances, it is not open to us to increase it.  We also note that 20 per cent is getting to the upper level of discount that is generally afforded for such matters in offending of this kind.   

7. Maintaining the 40 per cent overall discount, but adopting a four-year starting point, reduces the appellant’s end sentence to two years and four months’ imprisonment. 

Result

1. The appeal against sentence is allowed in part.

2. We quash the sentence of two years and eight months’ imprisonment and substitute a sentence of two years and four months’ imprisonment. 

Solicitors:
Crown Solicitor, Hamilton for Respondent