Betteridge v R
[2019] NZCA 513
•27 September 2019 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA338/2019 [2019] NZCA 513 |
| BETWEEN | KYRA BETTERIDGE |
| AND | THE QUEEN |
| Hearing: | 25 September 2019 |
Court: | Clifford, Lang and Ellis JJ |
Counsel: | A J Maxwell-Scott for Appellant |
Judgment: | 27 September 2019 at 11.30 am |
Reasons: | 24 October 2019 |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is granted.
BThe appeal is allowed.
CThe sentence of 21 months’ imprisonment is quashed and a sentence of eight months’ home detention is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
On 27 September 2019 we issued a results judgment on Ms Betteridge’s appeal against sentence.[1] We allowed her appeal, quashed her sentence of 21 months’ imprisonment and substituted a sentence of eight months’ home detention, with reasons to follow. These are those reasons.
Background
[1]Betteridge v R [2019] NZCA 463.
On 7 May 2019, Ms Betteridge pleaded guilty in the Hamilton High Court to one charge of conspiring to defeat the course of justice,[2] and one charge of misconduct in respect of human remains.[3] Her plea immediately followed a sentence indication in which Davison J indicated an end sentence of 20 and a half months’ imprisonment.[4] In doing so, he said:
[56] The discounts would bring the final sentence into the range where a sentence of home detention may be considered. Whether or not a sentence of home detention is imposed would depend on the contents of a pre-sentence report, and any other relevant information placed before the Court at sentencing.
[2]Crimes Act 1961, s 116 (maximum sentence of seven years’ imprisonment).
[3]Section 150(b) (maximum sentence of two years’ imprisonment).
[4]R v Betteridge [2019] NZHC 999 [Sentence indication].
On 26 June 2019 Ms Betteridge was sentenced to 21 months’ imprisonment by Jagose J, who declined to convert it to home detention.[5] Central to his decision was the Judge’s view that the pre-sentence or Provision of Advice to Courts (PAC) report painted a dim picture of Ms Betteridge’s attitude and rehabilitative prospects.
[5]R v Betteridge [2019] NZHC 1480 [Sentencing notes].
Ms Betteridge appealed the refusal to impose home detention, on the grounds that the contents of the PAC report were wrong, misleading and unfair.
Ms Betteridge’s offending
The charges faced by Ms Betteridge arose out of the killing of Mitchell Paterson in July 2018. Mr Paterson had died while he was being driven in a car by associates of Ms Betteridge’s with the object of taking him to “talk” to Mr Leon Wilson, who was the president of the Waikato chapter of the Nomads gang. Mr Wilson was angry with Mr Paterson over some perceived slight.
In essence, Ms Betteridge was present at Mr Wilson’s home when her associates arrived with Mr Paterson’s dead body in the car. Although attempts were made to revive him these were unsuccessful. Talk turned to the need to dispose of his body.
It was decided that Ms Betteridge and two others should take Mr Paterson’s body in Mr Wilson’s car and set fire to both the car and body to destroy the evidence. It was also agreed that others would clean the car in which Mr Paterson had previously been transported to remove any evidence.
Three of the men rolled up Mr Paterson’s body in a tarpaulin, using ropes to keep it secure. He was then placed into Mr Wilson’s car and hidden by putting rubbish on top. One man (Mr Walker) left Mr Wilson’s house in his car with the body in the back. Ms Betteridge and another man (Mr Wickens) left shortly afterwards in a different car, carrying with them two petrol containers given to them by Mr Wilson.
Mr Wickens and Mr Betteridge stopped at a Hamilton service station and filled the containers with diesel and petrol, intending to use it to burn Mr Wilson’s car and Mr Paterson’s body. Mr Wickens and Ms Betteridge met up with Mr Walker and spent the rest of the day driving around the greater Waikato area with Mr Paterson’s body concealed in the car.
At some point, the trio conceived of a different way to get rid of his body. Mr Wickens then had a change of heart and left the others, retuning to Hamilton. The task of disposing of Mr Paterson’s body was thus left to Mr Walker and Ms Betteridge.
In the early hours of the next day Mr Walker called a Mr Green and asked for his help. Mr Green drove to meet Mr Walker and Ms Betteridge. After further discussion, the three decided to throw Mr Paterson’s body into the McLaren Falls. The group arrived at the falls at around 4.00 am and the plan was executed when Messrs Walker and Green threw Mr Paterson (still wrapped in tarpaulin) over the bridge into the water. The body was found very soon afterwards.
When spoken to by police, Ms Betteridge admitted her involvement in these events. She was 28 years old at the time.
Sentencing in the High Court
As noted earlier, Ms Betteridge pleaded guilty following a sentence indication in which Davison J told her that the possibility of home detention would ultimately rest on the contents of the PAC report.[6]
[6]Sentence indication, above n 4, at [56].
When Ms Betteridge came up for sentencing before Jagose J on 26 June 2019 he largely agreed with Davison J’s analysis. In relation to the attempting to defeat the course of justice charge, the Judge identified that the focus “must be on the intention behind the attempt and on its potential effect”.[7] The intention was to assist Mr Paterson’s killers by removing evidence and the potential effect was considerable distress and great anguish.[8] The Judge described Ms Betteridge as playing “an active and willing role in the callous disposal of the body of someone [she] described as a ‘mate’”.[9]
[7]Sentencing notes, above n 5, at [15] citing Miller v R [2014] NZCA 382 at [11].
[8]At [17].
[9]At [17].
Like Davison J, the Judge took a starting point of two years and six months’ imprisonment. He then applied a two month discount for the seven or eight months Ms Betteridge had spent on electronically monitored bail (EM bail) and a full 25 per cent discount for guilty plea, resulting in a sentence of 21 months’ imprisonment.[10]
[10]At [18], [22] and [24]. The difference between the 20 and a half months arrived at by Davison J and the 21 months arrived at by Jagose J was a matter of arithmetic: see n 15.
As for the possibility of home detention, the Judge had earlier referred to the contents of the PAC report, noting:
[8] The pre-sentence report-writer found it difficult to assess your risk of further offending, given your “limited conviction history”. Given the nature of your offending, though, your potential to cause harm is assessed as medium. This could be reduced if your substance abuse and “impervious attitude” was addressed.
[9] You describe your early life as chaotic. You were in state care by the age of twelve. You have been homeless, and have ongoing drug addiction and gang connection problems. You have four children with a former partner, now being cared for by your mother, and to whom you are not allowed access. You do not have contact with a fifth child, your 13-year-old daughter. You have resisted involvement in rehabilitative programmes, present as indifferent and unmotivated, and show little insight into your offending.
[10] Ultimately, the report-writer recommends your imprisonment. Concerns are had about your reliability for home detention, pointing to your lack of full disclosure as to the occasional child occupant of your current address.
As to its effect in terms of the possibility of home detention, Jagose J said:
[25] Technically that is a short term of imprisonment and would make you a candidate for home detention. I am required to make a “considered and principled choice” between the two forms of sentence, to identify which better qualifies, in your circumstances, as the “least restrictive” sentence.
[26] Home detention may sufficiently meet the principles and purposes of sentencing, including deterrence and denunciation. It is a “significant sentence in its own right”. It has been granted in cases involving similar offending. The doubts expressed about your suitability for home detention relate to your general rejection of rehabilitative measures. That tends to render home detention unsuitable. You are not prepared to avail yourself of its advantages. I acknowledge you have not previously been subject to home detention, or indeed been imprisoned. However, in the circumstances, I see no alternative but a sentence of imprisonment being the least restrictive sentence in your case.
(Footnotes omitted.)
So Ms Betteridge was sentenced to 21 months’ imprisonment on the charge of conspiring to defeat the course of justice and six months’ imprisonment (to be served concurrently) for the charge of misconduct in respect of human remains.
Ms Betteridge’s appeal and the fresh evidence application
As noted earlier, Ms Betteridge appeals her sentence on the grounds that there were numerous inaccuracies in the PAC report which she did not have the opportunity to correct and which (plainly) affected the Judge’s decision not to sentence her to home detention which, Ms Maxwell-Scott submits, was the least restrictive sentencing option here.
Self-evidently, then, Ms Betteridge’s appeal is not predicated on any actual error by the sentencing Judge. Rather she says he was confronted with information that (unbeknownst to him) was both unfair and wrong and which she had no opportunity to correct. It follows that the sentence (but not the Judge) was wrong.[11]
[11]Pursuant to s 250(2) of the Criminal Procedure Act 2011, the appeal must be allowed if there has been an error in the sentence and a different sentence should have been imposed.
Ms Betteridge necessarily seeks to correct the errors she has identified by way of fresh evidence on appeal, in the form of one affidavit from her and one from her current partner, Mr Barham.
Mr Tantrum advised that, in principle, the Crown opposed the evidence being adduced on the basis that it was effectively updating evidence. He nonetheless acknowledged that such evidence can be received by this Court.[12] While raising a question mark about the credibility of the proposed fresh evidence, Mr Tantrum did not seek to labour the point because (he said) there would be no prejudice to the Crown if the evidence were to be adduced.
[12]Referring to the Criminal Procedure Act, s 335; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
We formed the view that leave to adduce the evidence should be granted. We accept Ms Maxwell-Scott’s advice that the date of the PAC report (just two days before the sentencing) suggests that it was unlikely to have been made available to Ms Betteridge’s then counsel (Mr Tait) until shortly before the sentencing began, at the earliest. We therefore also accept that Ms Betteridge did not have an opportunity to digest or rebut it. The new evidence is therefore fresh in the relevant sense.
As to its credibility and cogency, we make two points. Although (as just noted) Mr Tantrum raised a question mark over the credibility of the new evidence, he did not seek either to have Ms Betteridge or Mr Barham give evidence orally, or to cross‑examine them. Secondly, on our review of the fresh evidence (and having heard briefly from Ms Betteridge personally) we consider that in certain key respects, at least, it is both cogent and credible.
We turn now to consider the merits of the appeal, in light of that fresh evidence.
The criticisms of the PAC report
By way of preliminary observation we note that although Ms Betteridge does have a criminal history, as the PAC report writer noted, her past offending had been significantly less serious than the offending which is presently relevant. For that reason, she had never before participated in an interview for the purposes of preparing a PAC report. We accept, therefore, that her understanding of what such an interview entailed and of the potential relevance and importance of the interview in terms of sentencing outcome may well have been limited.
In terms of the substance of the PAC report, Ms Maxwell-Scott focussed on a number of key areas where she said it was in material error. We attempt to address what we regard as the most significant in a logical order (which is not necessarily the same as the order in which they occur in the report).
Attitude
Under the heading “Attitudes”, the report writer began by noting:
It was problematic for the writer to engage Ms Betteridge at the earliest opportunity for the purpose of [an] interview for the pre sentence report. She advised the writer that she had an appointment with her doctor earlier in the day and could not meet at the originally proposed time. Upon further enquiry, it was confirmed that Ms Betteridge had not attended a doctor’s appointment nor had she contacted the Electronically Monitored Bail Team for an absence in order for this to occur.
Ms Maxwell-Scott submitted that this evinces a misunderstanding on the report writer’s part. Ms Betteridge explained that she had, indeed, made a doctor’s appointment for that morning as she was not well. But when the probation service advised her that they would not change her report time, she cancelled the appointment. There was, accordingly, no need for her to contact the EM bail team as she no longer needed an approved absence.
We accept Ms Betteridge’s explanation. It follows that the passage quoted above reflects a misunderstanding on the report writer’s part. We think the misunderstanding is material for three reasons. First, it indicates that the interview unfairly got off to a bad start, in terms of the writer’s perception of Ms Betteridge’s general attitude. Secondly, Ms Betteridge said (and again we accept) that she was feeling unwell on the day of the interview. And thirdly, the suggestion that Ms Betteridge had breached her EM bail conditions was also wrong and unfair. And because it is relevant again later, we also record that, in fact, Ms Betteridge had no formally recorded breaches during her lengthy stint on EM bail.
Drug use and rehabilitation
The PAC report records that during the writer’s interview with Ms Betteridge she “admitted to using methamphetamine intravenously at the time of the offending” and that she would “need to address her substance abuse and impervious attitude to support a reduction in risk”.
The report also refers to Ms Betteridge’s “reluctance to address both her offence pathway, her drug addiction and that she presents as unwilling to undertake the changes required for an offence free and prosocial future” and how it would likely render rehabilitation “futile” at this stage. The writer noted that Ms Betteridge confirmed she was still abusing methamphetamine with her partner (although she had cut her use back).
In her affidavit, Ms Betteridge accepts that she had a drug problem at the time of the offending and was, essentially, homeless. This led to her associating with the “wrong” crowd and, relatedly, to increased drug use. But by the time of the PAC report interview, she says she had made significant changes to her life. Since February 2019 she had been with a supportive and responsible partner. She says she had completely stopped using methamphetamine and has not relapsed since she was released on EM bail in September 2018. She says she told the report writer this.
Mr Barham has deposed in his affidavit he does not smoke methamphetamine, and that he is subject to random drug testing at work. He also says he has not seen Ms Betteridge use methamphetamine since they began their relationship. He was present at the interview with the report writer and confirms that Ms Betteridge has stopped using methamphetamine.
Again, it seems to us that Ms Betteridge’s apparent seven to eight-month compliance with her EM bail conditions (which would inevitably include a prohibition on drug use) lends some independent support to her evidence (and the evidence of Mr Barham) in this respect.
Both Mr Barham and Ms Betteridge also dispute the report writer’s view that Ms Betteridge refused to accept help for her addictions and was disinterested in rehabilitative programmes. Ms Betteridge said:
While I was on EM bail, I had asked the probation officer who was in charge of my EM bail if I could undertake any counselling. I felt I did need support and wanted help. I was told that there was nothing they could organize. I was upset by this as I felt I now had to deal with everything on my own.
In regards to when the report writers asked about whether I would undertake counselling or programmes, they did not bring that up at the interview, but rather phoned me the next day.[[13]]
The lady I spoke to on the phone said I would have to do a group course — called an SRP[[14]] course — I had no idea what that was. I said to her that I was apprehensive due to the media coverage and the judgment I had already experienced. I said I would like to do one-on-one counselling at that point. She then asked if I was unwilling to participate. I said that was not the case but just that I wanted to do courses more relevant to me and my children or one-to-one counselling.
I also said that I would like to do a parenting course or any other counselling around my relationship with my children. She said ok, but then that is not mentioned in the report.
I had no idea that by asking for one on one counselling and refusing group counselling that I was showing a lack of willingness to comply with Corrections or with rehabilitation. I never meant to give the impression that I would not undertake or engage with counselling. That was not my intention at all.
To illustrate that, I am currently undertaking the SRP-W course in prison and by the time of my appeal I will have completed it. I certainly was not unwilling to undertake any rehabilitation, but just wanted, at that time, to do more one-on-one given the circumstances. I wish the Court to know though that I have put my all into the SRP-W course and have found it extremely helpful and rewarding. I would be willing to undertake any further counselling that I can access, whether that be in custody or on home detention.
The course was never explained to me so the only thing I knew about it was that it involved a group. They never mentioned any separate drug counselling. I did not realise that the SRP-W included that as part of the counselling. I would have been willing to undertake substance abuse counselling. In fact, I am up to that module now in the programme and again, I am getting so much out of it.
[13]This was confirmed by Mr Barham.
[14]SRP stands for Short Rehabilitative Programme and SRP-W stands for Short Rehabilitative Programme — Women.
And similarly, Mr Barham deposed that:
Nothing further was explored in regards to one on one counselling. The Probation Officer did not provide any options for one on one counselling.
Kyra was always open to the idea of rehabilitation and counselling and was willing to participate in such programmes where one on one counselling would be offered.
We accept the substance of Ms Betteridge’s account. We acknowledge that she would likely have experienced difficulties in obtaining counselling while she was on EM bail, which we are sure she would have found challenging — particularly in the time before her relationship with Mr Barham. Her reasons for her reservations around group counselling are not implausible and she is right to say that the existence of those reservations cannot fairly be taken as indicative of a reluctance or refusal to engage in rehabilitative steps at all. Moreover, we are prepared to give her subsequent participation in the SRP-W programme some weight as (admittedly after the fact) evidence of her willingness to engage.
Again, we think the disjunct between the PAC report and what Ms Betteridge now says is significant in terms of the present appeal. The report writer’s view that she had no motivation to address her drug addiction and presented as unwilling to participate in rehabilitation formed an important platform for her final recommendation of imprisonment and (as a consequence) for the Judge’s refusal of home detention.
Remorse
As we understand it, the question of remorse was not pursued by Ms Maxwell‑Scott on appeal as justifying a separate discount and so reduction in the end sentence arrived at; she took no issue with the 21 months’ imprisonment per se. Rather, the concern was that what the Judge perceived (based on the PAC report) as an absence of remorse may have further influenced him in his rejection of the possibility of home detention. We consider the issue on that basis.
All the PAC report writer said on the subject of remorse was this:
At interview, Ms [Betteridge] presented as a very softly spoken young woman however her attitude toward her offending and the gathering of information for the purpose of the pre sentence report was confusing and she presented as somewhat detached to the reality of the situation and how she portrayed herself. Although she did speak about her role in the offending with some regret in regard to her victim, it was difficult to determine whether her remorse was genuine or based on her vocalising her fear of going back to prison. When asked about the violence, dishonesty and impulsivity involved in her offending and her part in that, she became quite agitated and said “I couldn’t go through with setting fire to his body. He was my mate. I told them at the last minute I couldn’t do it and then changed the plan”.
And later, the sentencing Judge said:[15]
I see no cogent evidence of remorse.[[16]] The report-writer portrays you as neither understanding nor accepting responsibility for the consequences of your actions. Your unwillingness to engage in rehabilitation endorses that perspective.
[15]Sentencing notes, above n 5, at [20].
[16]The reference to “cogent evidence” appears to have been a reference back to Davison J’s sentence indication, above n 4, where he had said at [51]:
I would need to see some cogent evidence of remorse before being prepared to give any discount for offending such as the present, which was callous and calculated and undertaken to avoid your associates being identified and prosecuted, for their roles in Mr Paterson’s death and which involved doing a heartless indignity to his body over an extended period.
It necessarily follows from our earlier conclusions about Ms Betteridge’s willingness to engage in rehabilitation that an important part of the foundation for the Judge’s rejection of her remorse falls away. And even putting to one side the question of rehabilitation, our own assessment is that Ms Betteridge is genuinely remorseful; she persuasively expressed as much to us. And as she has said, Mr Paterson was her “mate”. While in no way wishing to understate the callousness of what did in fact occur, it was due to Ms Betteridge’s feeling for him that the decision was made not to execute the original plan to burn his body.
In our view, therefore, the question of remorse does not count against home detention but (on the contrary) supports it as the appropriate sentencing outcome here.
Conclusion
For the reasons we have given we formed the view that the PAC report was unfairly prejudicial to Ms Betteridge at sentencing. So while we accept Mr Tantrum’s submission for the Crown that there was no error in Jagose J’s approach, the foundation for it was flawed. We consider that if Ms Betteridge’s position had been properly understood, home detention would properly have been regarded as the least restrictive sentencing option. Her apparently unblemished record on lengthy EM bail further speaks in favour of such a sentence.
The application to adduce further evidence is granted.
The appeal is allowed. Ms Betteridge’s sentence of imprisonment is quashed and a sentence of eight months’ home detention is substituted.[17]
[17]The eight-month sentence of home detention was arrived at by maintaining the end sentence imposed by Jagose J of 21 months’ imprisonment, deducting four months for time Ms Betteridge has already spent serving her sentence of imprisonment and cutting that in half to reach the end result of eight months’ home detention.
That sentence is to be served at the address specified in the PAC memorandum dated 24 June 2019, and subject to standard conditions as well as special conditions that Ms Betteridge is:
(a)To attend an assessment for alcohol and drug counselling as directed by a Probation Officer and to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)To attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.
(c)Not to communicate in any way or associate with Simon Walker, Christopher Smith, Leon Wilson, Dylan Boyle, Grant Wickens or James Green without the prior written approval of a Probation Officer.
Solicitors:
Crown Solicitor, Auckland for Respondent
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