Blower v The Queen

[2016] NZHC 2449

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-463-23 [2016] NZHC 2449

BETWEEN

JANET MARIE BLOWER

Appellant

AND

THE QUEEN Respondent

Hearing:	14 October 2016
Appearances:	R Vigor-Brown for Appellant A Hill for Respondent
Judgment:	14 October 2016

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

BLOWER v R [2016] NZHC 2449 [14 October 2016]

[1]      Ms Blower pleaded  guilty in the District Court to charges of stupefying another  person  and  cultivating  cannabis.    On  27  May  2016,  Judge  McGuire sentenced Ms Blower to two years imprisonment.1   In doing so he expressly declined to convert that sentence to a sentence of home detention.  Ms Blower appeals against sentence on the basis that the Judge erred in principle in failing to impose a sentence of home detention.

The facts

[2]      The charges were laid as a result of a series of events that can only be described as bizarre.   At the time of the offending, Ms Blower was a volunteer worker with the Society for the Prevention of Cruelty to Animals (SPCA).  In that role she came into contact with the manager of the South Waikato Branch of the SPCA who was responsible for overseeing the day to day operations of that Branch. Ms Blower became infatuated with the manager, and developed an unhealthy obsession with her.   This resulted in her contacting and communicating with the manager on numerous occasions regarding work-related issues, even when these were not worthy of the manager’s attention.  This developed to a situation where Ms Blower began harassing the manager by sending her constant communications notwithstanding pleas by the manager and the manager’s partner that she should desist.  Matters eventually reached the stage where Ms Blower was directed that she should  not  be  present  at  the  South Waikato  Branch  on  any  occasion  when  the manager was working on the premises.

[3]      This  rebuff  obviously  angered  Ms  Blower.     She  posted  a  number  of derogatory comments on Facebook about the SPCA organisation, and said that she was ceasing to have any involvement on it.  Upon being requested to do so, however, she ultimately removed those postings.

[4]      The incident giving rise to the charges occurred on 21 August 2015.  On that date, Ms Blower acquired a number of lorazepam tablets.  She put four of these in a separate container, and put them in her pocket.  She then caught a bus into town and

bought a pair of rubber gloves.

1      R v Blower [2016] NZDC 9707.

[5]      In the late afternoon, she went to the South Waikato Branch of the SPCA in Tokoroa.  There, she entered the premises surreptitiously through an open back door and  hid  in  the  lounge.    She  then  eavesdropped  on  a  conversation  between  the manager and another SPCA volunteer.  She heard the volunteer offer the manager a cup of coffee.   She then observed that person make two cups of coffee and leave them on the kitchen bench to cool.  Whilst the two cups of coffee were unattended, Ms Blower went into the kitchen and put the four lorazepam tablets into the cup of coffee that had been prepared for the manager.  She then went back into the lounge area and continued to wait.

[6]      A short time later Ms Blower went into the manager’s office on the pretext of asking to use a toilet.  The manager was surprised to see her and told her to leave. She then left the premises using the back door through which she had entered.  She did not take any further steps that evening to try to interact with the manager.

[7]      Later  in  the  evening,  the  manager  and  the  other  volunteer  secured  the premises and drove away in an SPCA vehicle.   The manager was driving.   The manager then began driving to her home, which was about 45 minutes away from Tokoroa.   The volunteer accompanied the manager on the journey, because it was intended that the volunteer would take the vehicle back to Tokoroa.

[8]      During the course of the journey, the manager began to feel the effects of the lorazepam.   In a later statement she said that she had double-vision and began to disassociate.  She also encountered difficulty maintaining control of the vehicle.  At one stage the vehicle left the roadway and ended up in a shallow ditch on the side of the road.  The volunteer offered to take over driving, but the manager said that they were just a short distance from her home and that she would continue driving.  When she got to her home address, she immediately went to bed and slept through to the following morning.  At that point she still felt the effect of the drugs and went to Taupo Hospital.

[9]      On 16 September 2015, the police executed a search warrant at Ms Blower’s address.   There they found 11 cannabis plants growing under lights, and approximately 50 cannabis seeds in the process of germination.   Seven grams of

cannabis plant material were also located along with six pre-rolled cannabis cigarettes.

[10]     When the police spoke to Ms Blower about the incident involving the SPCA manager, she told them she had gone to the SPCA premises with the intention of hurting the manager.  She said she had been prescribed the lorazepam tablets, and had  bought  rubber  gloves  so  that  she  would  not  leave  her  fingerprints  at  the premises.  She then admitted putting the tablets into the manager’s drink.  She said that the cannabis found at her address was for her personal use because she needed it to alleviate the effects of migraines.

The Judge’s decision

[11]     The Judge considered the offending was serious.  He noted that it “had all the hallmarks of something that was going to turn out disastrously for the victim and probably  for  other  people  too.”2      He  noted  that  the  narrative  showed  that  the offending was premeditated and that it had also had significant effects on the victim.

[12]     The Judge then said:

[11]      I have carefully read the pre-sentence report in relation to you.  In it, the probation officer notes these things as contributing to your offending; sense of self-entitlement, immaturity, relationships, lack of solving skills, substance  abuse,  unsubstantiated  mental  health  difficulties.     You  also claimed unresolved childhood issues as a contributing factor.  You said, “I wasn’t thinking at the time.  I didn’t know what I was doing.”  You claim to be remorseful and you dispute the sexual and crude connotation in the then police summary of facts.  However, the officer then says that your comments and presentation throughout the interview process were contradictory to your actions and statement to the police and she found that concerning.  She says this needs to be addressed by a psychologist and she notes you saying this, “I did not intend to physically harm her.  I just wanted her to get a good rest on her way home”.  Well that, Ms Blower, is yet another variation on what you have said about why you did what you did.  You admitted that you had once been attracted to the victim, but said to the Probation Officer that your feelings had diminished by the time you committed the current offence.  Ms Blower, I do not accept that.   It says you are motivated to address your alcohol issues through  counselling.   The  report  also  notes  you  to  be  at moderate risk of drug use or perhaps more accurately, drug abuse.

2      R v Blower, above n 1 at [9].

[13]     These  factors  led  the  Judge  to  select  a  starting  point  of  three  years imprisonment on the stupefaction charge.   He did not add any uplift to reflect the charge of cultivating cannabis.  He then reduced the starting point by 20 per cent to reflect the discount for guilty plea.  He also reduced the sentence by five per cent to reflect  the fact  that  Ms  Blower had  no  previous  convictions.   This  produced  a sentence of two years three months imprisonment.

[14]   The Judge noted that Ms Blower had spent almost seven months on electronically monitored bail.   He applied a further reduction of three months to reflect that factor. This produced the end sentence of two years imprisonment.

[15]     Dealing with the issue of home detention the Judge observed:

[17]      Taking account of ss 7 and 8 Sentencing Act 2002 and the balancing I am required to do, I am not prepared to consider home detention in your case, Ms Blower. This type of sentencing brings to the forefront the needs of deterrence and denunciation. What you did was just so dangerous.

(Emphasis added)

[16]     The Judge then imposed the end sentence of two years imprisonment on the stupefaction charge, together with a concurrent sentence of one month imprisonment on the charge of cultivating cannabis.

The arguments

[17]     Mr Vigor-Brown does not take issue on Ms Blower’s behalf with the starting point that the Judge selected or the various discounts that he applied.  He submits, however, that the Judge ought to have given consideration to two factors in reaching his determination regarding the issue of home detention.  The first of these is that the Judge ought to have placed more weight on the need to adopt an outcome that provided for Ms Blower’s rehabilitation.  The second is that the Judge ought to have factored in issues relating to Ms Blower’s mental health.

[18]     The Judge would obviously have had some difficulty in the latter respect, because he had no information before him regarding Ms Blower’s mental health

issues.   Indeed, the highlighted portion of the passage set out above3  suggests the Judge adopted the opinion expressed by the writer of the pre-sentence report stated that these were “unsubstantiated”.  I took Ms Vigor-Brown to really be saying that, based on the material he has now provided in support of the appeal, this Court should intervene to impose a different sentence because that is what the Judge would have done if he had had that material before him.

[19]     Mr Vigor-Brown has provided a large amount of material relating to Ms Blower’s contact with medical practitioners from 1975 when she was just three years of age.  This demonstrates that when Ms Blower was three years of age, she suffered from cerebellar encephalitis.  The medical notes that follow show that over the years this has had a marked effect on her development and maturity.  In particular, it has significantly affected the manner in which she relates to others socially.

[20]     In a report prepared on 14 September 2016, Dr Erin Eggleston describes the effect that this is likely to have had on the present offending:

34       Presenting pattern of offending:

The pattern of offending is for Ms Blower to develop an attraction and to be intimacy seeking, with the motivation of establishing an emotional connection, and making excuses for regular contact.  There are distortions in her social perception and inter-personal behaviour in respect of intimacy seeking.   Then when she is rejected, discovered or denied contact a resentment phase commences precipitating anger and potentially a desire to harm the victim.  In the index offending the denial of contact resulted in the manufacture of a reason to be angry and resentful towards the victim at which time there was a presenting risk of harm.

[21]     Dr Eggleston has concluded, however, that there is no evidence to confirm Ms Blower suffers from intellectual disability, and that there is no evidence of a clinically significant mental health syndrome such as anxiety disorder, trauma condition, mood disorder or psychotic disorder.   He considers, however, that a diagnosis of personality disorder could be made based on the particular pattern that has  emerged  in  relation  to  Ms  Blower’s  interpersonal  functioning  and  lack  of

impulse control.

3 At [15].

[22]   Dr Eggleston says that Ms Blower requires intensive, that is, weekly, psychological services that could be delivered either in prison or in the community, most likely by a Department of Corrections psychologist.

Decision

[23]     It is now well recognised that mental or psychological issues may affect the sentence to be imposed on an offender in two ways.  The first is that it may go some way towards providing an explanation for the offending and may thereby reduce the overall culpability of the offender.  Secondly, it may show that the offender will find it more difficult to serve a sentence of imprisonment than would otherwise be the case.

[24]     In the present case I am satisfied that the material Mr Vigor-Brown has placed before me affects the culpability of Ms  Blower’s offending.   The Judge sentenced Ms Blower on the basis that she had no substantiated mental health or psychological issues.  Furthermore, the Judge clearly concluded that she was giving deliberately mixed messages to the person who prepared the pre-sentence report.  I consider that to be unlikely given the information that is now available.   I also consider that Ms Blower’s underlying personality disorder is likely to have been a significant cause of her offending.  Although this does not provide an excuse for the offending,  I  am  satisfied  it  does  go  some  way  towards  reducing  her  overall culpability.

[25]     Had the Judge been aware of this material, I consider that it is likely he would have reduced the sentence significantly to reduce this factor.  I consider that a reduction of around six months would be appropriate.

[26]     There is no suggestion, however, that Ms Blower’s underlying issues are likely to make her stay in prison more difficult.   Furthermore, it is clear from Dr Eggleston’s remarks that intensive psychological counselling can be administered in prison as well as it could be undertaken within the community.  For that reason I do not consider it likely that the Judge would have been persuaded to change his view that home detention was inappropriate.  I take the same view.

[27]   This offending was extremely serious.   It was deliberate and involved considerable risk both to the victim and also to others travelling on the roads on the night of 21 August 2015.   A deterrent sentence is required to bring home to Ms Blower the fact that such behaviour is completely unacceptable, and that serious consequences will follow in the event that it occurs.

[28]     I direct, however, that the material that Mr Vigor-Brown has placed before this Court is to be made available to the prison authorities so that they can ensure Ms Blower receives appropriate psychological assessment and counselling prior to her release.

[29]     I note also that the Judge directed that Ms Blower be subject to a special release condition requiring her to attend a psychological assessment and complete any treatment and/or counselling as recommended by the assessment to the satisfaction  of  the  probation  officer.    It  is  essential  that  effect  is  given  to  this condition.  The only way in which to properly protect the community from future similar offending by Ms Blower is to ensure that she receives psychological assessment and counselling at this point and upon her release from prison.

Result

[30]     The appeal against sentence on the stupefaction charge is allowed.   The sentence of two years imprisonment is quashed.  In its place I impose a sentence of

18 months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Rotorua