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)

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.
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

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

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].
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Avery v The King

Details

AGLC: Avery v The King [2023] NZCA 415
Case: [2023] NZCA 415
Decision Date: 4 September 2023 at 10.30 am

CaseChat Overview and Summary

The appeal in Avery v The King was brought by the appellant, Shannon Jenifer Avery, against her sentence of two years and eight months’ imprisonment imposed by Jagose J for charges of robbery and assault with a weapon. Ms Avery argued that the sentence was manifestly excessive, particularly the starting point of four years and six months’ imprisonment, and that the discount for mitigating factors was insufficient. The court of appeal was tasked with determining whether the starting point and the discount applied were appropriate and whether the sentence imposed was justified.

In addressing the appeal, the court considered the starting point for the appellant's sentence. Counsel for the appellant argued that the starting point was too high, given that the appellant's level of culpability was equivalent to that of Ms McWaters, who had a starting point of three years and six months. The court accepted this submission, noting that the appellant's role in the offence was similar to Ms McWaters until the events leading to the assault with a weapon charge. The court also found that the judge had seemingly taken the appellant's violence into account twice in arriving at the final starting point. Consequently, the court determined that the appropriate starting point for the appellant should have been three years and six months with an additional six months for the assault, making a total of four years.

Regarding the discount applied to the sentence, counsel for the appellant contended that the 20 per cent reduction for personal factors and efforts to rehabilitate should have been 30 per cent. However, the court held that the 20 per cent discount was within the acceptable range, considering the appellant's difficult circumstances and commendable efforts to rehabilitate. The court also noted that the 20 per cent discount was near the upper limit generally afforded for such factors in cases of this kind.

The court of appeal allowed the appeal in part, quashing the original sentence and substituting a sentence of two years and four months’ imprisonment, based on the corrected starting point and the appropriate discount. The court emphasised that while the appellant's personal circumstances and efforts to rehabilitate were significant, the overall discount was within the acceptable range. The sentence of two years and eight months was thus replaced with a sentence of two years and four months’ imprisonment.

Orders