Blondell v Police

[2012] NZHC 533

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-3 [2012] NZHC 533

JOANNE ELIZABETH BLONDELL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 March 2012

Appearances: T Cadogan for the appellant

R D Smith for the respondent

Judgment:      23 March 2012

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Ms Blondell, pleaded guilty in the District Court at Alexandra to charges of assault with a weapon, theft, disorderly conduct and use of a document for  a  pecuniary  advantage.     She  was  sentenced  on  14  December  2011  by Judge O’Driscoll to 11 months’ imprisonment.  Ms Blondell now appeals against her sentence on the basis that it was manifestly excessive.

The offending

[2]      Ms Blondell’s assault offending relates to an incident which occurred in the early hours of 31 July 2011.  At 12:27am, Ms Blondell and a female associate went

BLONDELL v POLICE HC DUN CRI-2012-412-3 [23 March 2012]

to the victim’s house.  The victim did not know Ms Blondell.  Some days earlier, the victim’s partner had been arrested in an Alexandra medical centre for assaulting an elderly man and woman, and Ms Blondell sought to confront him about that incident. On the day he sentenced Ms Blondell, the Judge had earlier dealt with that offender.

[3]      The victim’s partner let Ms Blondell into the house, where she began to remonstrate with them about the assault on the elderly couple.  The victim’s partner moved Ms Blondell outside where a fight broke out between Ms Blondell’s associate and the victim.   Ms Blondell picked up a tyre iron which she had found on the victim’s property and struck the victim across the back of the head.   The victim suffered a cut to the back of the head, which bled profusely and medical treatment was required.

[4]      In addition to this offending Ms Blondell pleaded guilty to using two cheques with insufficient funds, theft of petrol, and behaving in a disorderly manner in an incident where a can of drink was thrown over a driver.

The offender

[5]      Ms Blondell is 30 years old.  She has three children and lives with them and two friends in Alexandra.   She has some 35 previous convictions, including for violence and dishonesty.

The sentencing

[6]      In a careful sentencing exercise, the Judge identified the lead offence as the assault with a weapon conviction, the other offences being treated as aggravating. He considered the primary aggravating factor of the offending was premeditation. As he put it:1

... you would not have to be a rocket scientist to work out that going to that address in the early hours of the morning to confront the victim was highly likely to result in violence.

1      Police v Blondell DC Alexandra CRI-2011-002-000432, 14 December 2011 at [7].

[7]      Having said that, the Judge acknowledged that Ms Blondell had not taken the tyre iron with her.

[8]      The blow to the head was a further aggravating factor, which had serious physical and emotional effects on the victim. Noting that the appellant faced five charges which related to four separate and discrete incidents, Judge O’Driscoll adopted a starting point of 15 months imprisonment.

[9]      The Judge also considered features personal to Ms Blondell.  Despite noting as aggravating factors her 35 previous convictions, and the fact that the assault with a weapon and disorderly behaviour offences occurred whilst the appellant was on bail,  the Judge applied  no  uplift.   Taking into account  as  mitigating factors  the appellant’s guilty plea and her personal circumstances as a mother of three the Judge allowed a reduction of four months.  This resulted in an end sentence of 11 months’ imprisonment.

[10]     Turning his mind to community based sentences, the Judge considered that, given the seriousness of the assault, the four discrete sets of offending, and the need to deter Ms Blondell from continued violence and offending, an alternative sentence of home detention or community detention was not appropriate.

Appeal submissions

[11]    For Ms Blondell, Mr Cadogan submitted that a sentence of 11 months’ imprisonment is manifestly excessive given the totality of the offending.  He relied on the Court of Appeal’s decision in R v Harris,2  the tariff case for injuring with intent to injure, and a comparable case of McEwan v Police,3   to argue that the starting point of 15 months was too high. In terms of the seriousness of the injury, he submitted that the one blow inflicted only a minor cut to the head and contended that the Judge placed too much weight on premeditation and what he considered was “vigilante action”.  In going to the victim’s property, Ms Blondell did not necessarily premeditate violence.  Certainly, she did not premeditate the use of a weapon as that was found on the property immediately prior to the assault.  As for the aggravating

factor of the previous violent offending, Mr Cadogan noted that three charges were involved:  common  assault  in  2010,  where  Ms  Blondell  had  pushed  her  former partner out of a door and up a stairway causing him to trip, common assault in 2002 and threatening language in 1999.  That history of low level violence offending was not a significantly aggravating factor.

[12]     Ms Blondell had originally appealed the Judge’s decision to decline home detention.  Before me Mr Cadogan accepted, realistically, that the Judge was right to conclude that a sentence of imprisonment was called for: Mr Cadogan noted that Ms Blondell  had  now  heard  “the  clang  of  the  prison  door”  that  the  Judge  had referred to, and had learnt her lesson. A lesser sentence of imprisonment would meet the requirements of the Sentencing Act 2002.

[13]     Mr Smith, for the Crown, contended that the concurrent sentence for the four discrete sets of offending justified the final sentence of 11 months.   He submitted that the offending could have sustained a more serious charge of wounding with intent to injure, and that the appellant’s decision to confront the victim in the early hours of the morning at her home meant a violent confrontation was highly likely, justifying  the  starting  point.    The  Judge,  in  his  view,  could  have  imposed  a cumulative sentence for the dishonesty offences and disorderly behaviour offence, and if he had done so the starting point could have been between 18 months and two years.    He  would  also  have  been  entitled  to  uplift  the  starting  point  due  to aggravating factors personal to Ms Blondell including her perpetual offending and disregard for bail conditions.

Discussion

[14]     Both counsel rely on the Court of Appeal’s decision of R v Harris.4  There the Court discussed the application of its decision in Taueki to the charge of injuring with intent to injure.5    The Court then concluded that for injuring with intent offending it envisaged:

(a)       Bands and starting point sentences (ie before allowance for person aggravating and mitigating factors) as follows:

(i)Band  one:  where there  is  little injury and  few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate;6

(ii)      Band two: where the injuries are moderate, sentences of up to

two years’ imprisonment can be justified;

(iii)Band three: for serious injury, sentences from 19 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act).

The Court went on to note that beyond the extent of the injury, the appropriate starting sentence would depend upon the effect any additional aggravating and mitigating features as identified in Taueki and ss 8 and 9 of the Sentencing Act, would have had on the seriousness of the conduct and the criminality involved.

[15]     By my assessment, the injuries here are more to the “moderate” than to the “little” end of things, and the blow to the head, the late visit to confront and – whilst noting Mr Cadogan’s submissions – Ms Blondell’s previous record, are all aggravating  factors  as  regards  the  lead  charge.    By  analogy  to  Harris,  I  see Ms Blondell’s assault with a weapon offending coming somewhere in the middle of the Band two range.  When that assessment is then combined with an uplift for the dishonesty and disorderly conduct offending, a combined starting point sentence of

15 months cannot in my view be seen as being manifestly excessive.

[16]     I do not think the case cited by Mr Cadogan, McEwan, is of particular help. There the accused was sentenced to 21 months’ imprisonment for much more serious violence involving a prolonged series of assaults on a female, threatening to kill and

dishonest  use  of  a  document.  The  fact  that  the  accused  in  that  case  was  only

6      Taueki at [27].

sentenced to 10 months more than Ms Blondell suggests, in her submission, that

11 months  is  manifestly  unjust.    As  Mr  Smith  pointed  out,  this  case  is  not comparable, as it involved a much higher starting point of 30 months and greater discounts for mitigating factors.

[17]     Having set the starting point, the Judge then allowed a discount for four months for the guilty plea and for the additional mitigating factor that Ms Blondell has three children.  That discount was appropriate, and not ungenerous.  It follows that the final sentence of 11 months was within the range available to the Judge.

[18]     Although Mr Cadogan did not press the home detention issues before me, I note finally that I consider it was open to the Judge, when considering home detention, to conclude that the circumstances and seriousness of the offending were the predominant consideration in setting the type of sentence, notwithstanding the personal factors that Ms Blondell could call upon in support of home detention. Ms Blondell’s personal mitigating factors were given full weight by the Judge when fixing the lead sentence.   Whilst acknowledging that Ms Blondell did not take a weapon with her, I accept the assessment the Judge reached.  I do not see how it is possible to categorise hitting someone on the back of the head with a tyre iron as being insignificant.   The inherent  nature of the violent  offending,  coupled with Ms Blondell’s previous convictions and the fact the offending was committed whilst she was on bail, justified a denunciatory approach.   It was open to the Judge to conclude that a sentence of home detention would not adequately achieve that.

[19]     It follows I find no reason to interfere with the sentence and the appeal is therefore dismissed.

“Clifford J”

Solicitors:

Bodkins, Alexandra for the appellant ([email protected])

Crown Solicitor, Dunedin for the respondent ([email protected])