Budd v The Queen - [2014] NZCA 333

IN THE COURT OF APPEAL OF NEW ZEALAND

CA231/2014
[2014] NZCA 333

BETWEEN	LINDA MAY BUDD Appellant
AND	THE QUEEN Respondent

Hearing:	10 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	T Sutcliffe for Appellant C A Harold for Respondent
Judgment:	16 July 2014 at 3 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

Following her trial before Brewer J and a jury in the High Court at Hamilton, the appellant was convicted of kidnapping. She was subsequently sentenced to a term of imprisonment of two years six months.[1]
[1]R v McGee and Budd [2014] NZHC 849 [Sentencing notes].
She appeals against her sentence complaining that the starting point adopted by the Judge was too high, and that he gave insufficient discount for her personal circumstances. She says the resulting sentence was manifestly excessive.

The facts

The appellant was one of a number of co-accused involved in the kidnapping. At about 6.30 am on 10 April 2012, the appellant’s partner, Lance McGee and an associate, John Martin, kidnapped the female victim in Auckland and drove her to a house occupied by the appellant and Mr McGee in Hamilton. She was taken to a shed at the rear of the property, where she was tied up: her arms, legs and neck were secured by a rope. A demand was made for a ransom of $30,000 for release of the victim. This sum comprised $20,000 alleged to be a debt owed for drugs, and $10,000 as a “fee” for the kidnapping. The victim was detained for a period of over nine hours before she managed to escape, scale a fence and call the police from a nearby property. She suffered bruising and abrasions to her neck, wrists and ankles as a result of being tied up.
The Judge’s sentencing notes record that the victim was left in the shed for some two hours during which Mr McGee periodically checked on her. Mr McGee and Mr Martin then left to drive back to Auckland having directed another co‑accused, Mr Kaka to watch over the victim and make sure she did not escape.
The appellant had no involvement in the offending until after Mr McGee and Mr Martin left to return to Auckland. The Judge noted at sentencing that the jury must have rejected the appellant’s claim that she did not know the victim had been kidnapped and detained in the shed. He said:
[7] I approach your sentence on the basis that when you arrived at the address you found Mr Kaka there and found out what was going on. You then joined in with the kidnapping and took charge. Mr Kaka, a 19 year old, was not the dominant party once you returned home. Mr Martin gave evidence that when he returned from Auckland you were at the address. The victim, who had been untied at one point, had been retied while Mr Martin…

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 Budd v The Queen

Details

AGLC: Budd v The Queen [2014] NZCA 333
Case: [2014] NZCA 333
Decision Date: 16 July 2014 at 3 pm

CaseChat Overview and Summary

In the appeal of Budd v The Queen, the appellant, Linda May Budd, contested the sentence imposed on her after being convicted of kidnapping. The case was heard by Wild, Ronald Young, and Cooper JJ in the Court of Appeal of New Zealand. Budd was sentenced to two years and six months in prison following her involvement in a kidnapping incident where a female victim was held captive for over nine hours and subjected to physical restraints and threats. The appeal focused on the appropriateness of the starting point for the sentence and the discount given for Budd's personal circumstances.

The primary legal issue in this appeal was whether the starting point for Budd's sentence, which was set at three years, was too high, and if the discount of six months for compassionate reasons was adequate. The Court had to determine whether the sentence was disproportionately severe considering the appellant's role in the crime and her personal hardships.

The Court of Appeal found that the starting point for Budd's sentence was not excessively high, as her involvement in the crime was more blameworthy than that of her co-accused, Mr. Kaka. The Court acknowledged that Budd played an active role in the kidnapping, demanding money from the victim and threatening her, which contributed to the victim's distress. Furthermore, the Court concluded that the six-month discount granted for the tragic death of Budd's infant child was appropriate and did not render the overall sentence disproportionately severe. The appeal was dismissed, and the original sentence was upheld.

Orders