Bendall v The Queen
[2011] NZCA 594
•29 November 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA485/2011 [2011] NZCA 594 |
| BETWEEN HELENA LEIGH BENDALL |
| AND THE QUEEN |
| Hearing: 7 November 2011 |
| Court: Wild, Chisholm and Potter JJ |
| Counsel: W T Nabney for Appellant |
| Judgment: 29 November 2011 at 11.30 am |
JUDGMENT OF THE COURT
A Extension of time to appeal is granted.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
Helena Bendall appeals against sentences totalling 25 months imprisonment imposed by Judge Ingram.[1] She seeks extension of time to appeal which is not opposed by the Crown and is granted.
[1] R v Bendall DC Tauranga CRI-2009-463-0050, 22 June 2011.
At a trial before Judge Ingram and a jury the appellant was found guilty and a jury of injuring with intent to injure, arson and attempting to pervert the course of justice. She had previously pleaded guilty to a charge of common assault.
The sentences of 25 months imprisonment comprised the following:
(a)Injuring with intent - 16 months imprisonment.
(b)Common assault - one month imprisonment, concurrent.
(c)Arson - one year imprisonment, concurrent.
(d)Attempting to pervert the course of justice - nine months imprisonment cumulative on the sentence of 16 months imprisonment.
The focus of the appeal is the sentence of 16 months imprisonment on the charge of injuring with intent to injure. The appellant submits this sentence is manifestly excessive given her secondary role in the offending. No issue is taken with the length of the other sentences imposed, nor with the sentence for attempting to pervert the course of justice being made cumulative on the sentence for injuring with intent.
Factual background
The appellant had previously been in a relationship with the victim. On 26 September 2008 she went to the victim’s house with her new partner, Mr O’Brien, to see if he would look after her son. He refused and asked her to leave. She slapped him. Mr O’Brien then entered the house. In the presence of the appellant he damaged property, threatened the victim with a knife, made the victim kneel on the floor and bark like a dog, and forced him to sign away his car. The car was later taken and burnt after the appellant had made unsuccessful attempts to sell it. Some weeks later, the appellant approached the victim in the street and asked him to go to the police station and have the charges against her dropped. He declined and was abused by the appellant.
Mr O’Brien pleaded guilty at an early stage to his part in the offending. He was charged with the more serious crime of aggravated robbery and was sentenced to three years and three months imprisonment.[2] Concurrent sentences of 18 months imprisonment on a charge of injuring with intent to injure and one year for arson were also imposed.
The appellant
[2] New Zealand Police v O’Brien DC Tauranga CRI-2008-070-7068, 4 November 2008.
The appellant is 32 years of age and has no previous convictions. She is assessed in the pre-sentence report as being at low risk of re-offending but with a need to address offending factors, including anger management. The probation officer reports that she expressed remorse for her offending, but admitted she did not stop Mr O’Brien during the violent offending. The Judge referred in his sentencing notes to the positive aspects of the pre-sentence report and to the many favourable references he received for the appellant. However, referring to certain aspects of the evidence at trial, he said he was not prepared to accept counsel’s submission that the appellant was of good character but had fallen from grace in respect of this single isolated incident or transaction.[3]
Sentencing
[3] At [7].
The Judge took the charge of injuring with intent as the lead charge. He said in relation to both that charge and the charge of arson, that while the appellant’s involvement was as a party, the circumstances were such that her role as a party was “significant indeed”.[4] He said:[5]
The jury hearing the case did not believe your version of events and I am not surprised given what you said in the course of your evidence and what we heard overall. Much of what you said was simply fanciful and designed to minimise your involvement in this matter. The reality is that none of this would have occurred if you had not organised it, but you did. You set out to organise for your former partner to be beaten up. It may well be the case that Mr O’Brien went a little further than perhaps you thought he was going to go, but the truth is that you were there and you did nothing to stop him, nothing at all. All you had to do was say something and at least your position would have been clear, but you did nothing.
…
It is also the position, beyond any argument, that you organised it – that must have been the jury’s view on the evidence that they heard. It is certainly the view that I take of how it came about.[6]
[4] At [2].
[5] At [5].
[6] At [15].
The Judge referred to R v Harris[7] as the leading sentencing authority in relation to the charge of injuring with intent to injure. He noted the necessity for some parity with the sentence imposed on Mr O’Brien of 18 months imprisonment on the basis of a very prompt guilty plea. He said that here the level of violence was high involving a weapon, entry into the victim’s home, the extent of harm caused to the victim and the loss of and damage to property. He also referred to “at least an element of abuse of trust” and that the victim was vulnerable because “this was premeditated and you [the appellant] were the ringleader”.[8]
[7] R v Harris [2008] NZCA 528.
[8] At [25].
The Judge took a starting point for sentencing of 18 months imprisonment.[9] He allowed a discount of two months for the appellant’s good character to reach a sentence of 16 months imprisonment on the injuring with intent to injure charge.
[9]The judgment in R v Harris identifies at [10] as band 2: where the injuries are moderate, sentences [starting points] of up to two years imprisonment can be justified.
The Judge described the arson offending as “a relatively serious case of arson”[10] and referred to the “pretty substantial effort” [11] on the part of the appellant to deal with the vehicle by having it burnt out after she had made efforts (unsuccessful) to get rid of it by sale.
[10] At [32].
[11] At [31].
He described the offending that gave rise to the charge of attempting to pervert the course of justice as a relatively serious case of its kind, although he accepted there was not persistent offending as in some cases. He considered that a cumulative sentence was required and imposed nine months imprisonment cumulative on the sentence of 16 months on the lead charge.
Appellant’s submissions
The focus of the appellant’s submissions was the same on appeal as in the District Court, namely that her culpability was lower than that of Mr O’Brien because she did not participate in or anticipate the level of violence that was to flow from Mr O’Brien.
Mr Nabney submitted the evidence did not support the inference that the appellant assisted or encouraged the assault by Mr O’Brien. While the appellant accepted that she did nothing to intervene in the assault, Mr Nabney submitted her role was “elevated” by the Judge, in fixing the starting point of 18 months, towards the upper level of band two in R v Harris.
Mr Nabney seemed to accept that if The appellant planned the assault then she could not claim to be less culpable than Mr O’Brien, but he submitted there was no evidence that she participated in the offending beyond slapping the victim and remaining as a “bystander” during the assault by Mr O’Brien. He submitted there was insufficient distinction between the sentences of Mr O’Brien and the appellant to recognise her lesser role in the assault and that a starting point of 12 months would have been more appropriate. He further submitted that a sentence of home detention was appropriate given the personal circumstances of the appellant, referring to the fact she was a first offender, she had produced a number of positive references and had complied with her bail conditions.
Crown’s submissions
The Crown submitted the starting point of 18 months imprisonment for the injuring with intent to injure charge was within range and that the sentence of 16 months imprisonment is not manifestly excessive. Further, the Crown contended that home detention is inappropriate in the circumstances of this case.
The Crown noted that Mr Nabney’s submission at sentencing, that the appellant had a lower degree of culpability than Mr O’Brien, was rejected by Judge Ingram who found she was behind the attack and was equally culpable. The Crown submitted that the Judge, who presided over the trial and had the benefit of the evidence including evidence from the victim and from the appellant, was well placed to make findings as to the role she played, in accordance with s 24(1) of the Sentencing Act 2002. The Crown noted that but for the involvement of the appellant, Mr O’Brien would have had no more reason to offend against the victim than against any other person in the community.
The Crown referred to R v Mako, the tariff decision on aggravated robbery: [12]
As this Court made clear in Smart there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.
[12] R v Mako [2000] 2 NZLR 170 (CA) at [64].
The Crown also referred to R v Jamieson,[13] a case concerning the culpability of multiple offenders for a street attack causing death where this Court cited with approval[14] from the High Court of Australia in Gas v R,[15] that:
... there is no “universal principle that the culpability of an aider and abetter is less than that of a principal offender ... A manipulative or dominant aider and abetter may be more culpable than a principal”.
[13] R v Jamieson [2009] NZCA 555.
[14] At [28].
[15] Gas v R [2004] 217 CLR 198 at 209.
In relation to the offence of attempting to pervert the course of justice, the Crown referred to R v Churchward[16] where this Court commented that:
... any attempt to disturb the process of administration of justice is to be deplored and, following conviction, is, in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.
[16] R v Churchward CA439/05, 2 March 2006 at [14].
The Crown submitted that in light of the presumption of imprisonment in respect of the charge of attempting to pervert the course of justice as well as the appellant’s conduct in relation to the violent offending requiring strong denunciation and deterrence, home detention would not be an appropriate sentence.
Evaluation
Judge Ingram made clear findings as to the appellant’s role in the violent offending. He found she was the planner and the organiser. The Judge heard both the victim and the appellant give evidence at trial and was well placed to make credibility findings and draw inferences from the evidence. He said of the appellant’s evidence that it was “simply fanciful and designed to minimise your involvement in this matter”, and that clearly the jury did not believe her version of events at which he was “not surprised”.[17]
[17] At [5].
In giving evidence in chief the victim said:
A. She just went straight into it the moment I answered the door.
Q.And what did she say about you not being able to help her requirements?
A.Apparently I’d stuffed up her plans. She said due to this there was a couple of carloads of boys waiting at the end of the driveway to give the bash.
Q.And how did you – what did you think of that comment?
A.I was pretty nervous.
…
Q.And then what happened?
A.Um, she pushed her way in, um, basically she also slapped me as well. After that Sam O’Brien appears as well.
…
A.And immediately prior to him arriving what was she saying?
A.She was basically saying that, um, just ranting and raving, saying everything’s my fault. Um, she was referring to things that would happen to a child previously.
Q.And what about what would flow from that?
A.What would flow from that?
Q.Yes, what would the consequences be?
A.Um, basically that I was gonna get a bash.
Clearly the jury and the Judge preferred the evidence of the victim to the evidence of the appellant. There was evidence to support the Judge’s findings set out in his sentencing notes, that the appellant had organised for her former partner to be beaten up. Further, that she was in a position to do something about the violence inflicted by Mr O’Brien on the victim and chose to do nothing.
The Judge recognised a significant distinction between the culpability of Mr O’Brien (who faced the more serious charge of aggravated robbery) and that of The appellant in the violent offending. The concurrent sentence imposed on Mr O’Brien on the injuring with intent to injure charge following a prompt guilty plea, was 18 months. The sentencing Judge said he reduced the starting point by approximately one-third to reflect the early guilty pleas and remorse. Therefore, the starting point for the injuring with intent to injure charge would have been about 27 months imprisonment, whereas the starting point taken by Judge Ingram for the appellant’s offending was 18 months imprisonment. Thus the respective culpability of each in relation to the violent offending was distinctly and appropriately recognised.
We consider the starting point of 18 months imprisonment for the injuring with intent charge was well available, given the appellant’s role in the violent offending as found by the Judge. The sentence of 16 months imprisonment imposed on this charge cannot be criticised.
We agree with the Crown’s submission that home detention would not have been an appropriate sentence given the seriousness of the appellant’s offending, even had the end sentence been two years or less.
Result
The sentence of 25 months imprisonment imposed on the appellant was not manifestly excessive. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0