Budd v The Queen
[2014] NZCA 333
•16 July 2014 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA231/2014 [2014] NZCA 333 |
| BETWEEN | LINDA MAY BUDD |
| AND | THE QUEEN |
| Hearing: | 10 July 2014 |
Court: | Wild, Ronald Young and Cooper JJ |
Counsel: | T Sutcliffe for Appellant |
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 was away. He described how you went to the shed a number of times, that you were involved in making demands for money from the victim and that at one point you were playing with a knife in the shed.
[8] Your co-accused, Ms Phan, gave evidence of your involvement also. I found much of her evidence to be self-serving, but to the extent that she corroborates what Mr Martin described then I accept her account. This includes you going to and from the shed and making demands for the victim to pay and threatening her with consequences if she did not.
By the time that the Judge sentenced Mr McGee and the appellant, Mr Martin had already been sentenced, as had Mr Kaka. The starting point adopted by Gilbert J for Mr Martin was five and a half years.[2] Brewer J adopted the same starting point for Mr McGee.
[2]R v Martin [2013] NZHC 2675.
He then noted that the appellant’s part in the kidnapping had been less serious. There was no evidence that she had been involved in the planning process, but she had been present on the property for about half the period of the kidnapping. He recorded his view that she had joined in the offending, and played an active part, at times a dominant part, in what followed. He noted a submission by defence counsel that a starting point in the range of two to two and a half years’ imprisonment would be appropriate, in the context that Venning J had adopted a starting point for Mr Kaka of two and a half years’ imprisonment.[3] However, the Judge accepted the Crown’s submission that Ms Budd’s role in the offending was more blameworthy than Mr Kaka’s. He determined that an appropriate starting point would be three years’ imprisonment. There were no relevant mitigating factors relating to the offending.
[3]R v Kaka [2013] NZHC 2151.
However, the Judge acknowledged that during the period when the appellant was remanded in custody following trial her young baby, who had been placed in the care of others, tragically died. The Judge allowed a discount of six months, to recognise that that loss would make serving a term of imprisonment more difficult. In the result, Mr McGee’s sentence was fixed at five years’ imprisonment, and the appellant’s at two years six months.
The appeal
Mr Sutcliffe acknowledged that the appellant’s culpability was greater than that of the co-accused Kaka, but contended that the sentence imposed on Mr Kaka was based on a starting point which was itself too high. That submission was based on a comparison with the sentences upheld by this Court in Piper v R.[4]It followed, in his submission, that the starting point adopted for the appellant was too high.
[4]Piper v R [2012] NZCA 104.
In Piper Martin Piper and his son Richard Piper had, together with two co‑accused, detained an 18 year old female victim over a two hour period. They demanded money and when she told them she had none they forced her to telephone other people and ask for money. There was a threat by Martin Piper to cut off the victim’s hair. Following that, Richard Piper took the victim’s EFTPOS card and went to an ATM machine to attempt to withdraw money from her account. Because she had given him a false pin number, his attempts were unsuccessful. He called his father, and there were unsuccessful attempts to obtain the correct pin number.
After that, Richard Piper and another co-offender returned to the place where the victim was being held, forced her to call her bank to obtain her account balance and then drove with her to the bank where the sum of $470, the balance in the account, was withdrawn. The events covered approximately a period of two hours.
The sentencing Judge adopted a starting point of three years for Martin Piper, and two and a half years for Richard Piper and one of the other co-offenders. This Court concluded that the starting points were within range noting:
[29] Given that there is no tariff for offending of this kind, the starting point will invariably reflect the particular factual situation before the sentencing Judge. This offending involved the premeditated invasion of a dwelling and the intimidation of a young woman by a group of men over an extended period. While there was no actual violence, the threat to cut off this woman’s hair must have been particularly distressing to her. Moreover, the offenders made off with her only savings.
In the present case, Brewer J considered that Piper involved “a similar level of blameworthiness”, but for the fact that the appellant had not been involved in the planning of the kidnapping.[5] We consider that assessment was, if anything, favourable to the appellant. As the Judge found, once she became involved, for about half the period of the kidnapping she played an active role in the ongoing detention of the appellant. Her involvement was over a period of about four and a half hours, longer than the two hours for which the victim was detained in Piper. During that time the appellant made a number of demands for money and threatened the victim with consequences if the money was not provided. Her actions with the knife would have added to the victim’s anxiety. Unlike the position in Piper, the victim was tied up with rope during her confinement. In all the circumstances, we do not consider that the starting point of three years’ imprisonment was excessive.
[5]Sentencing notes, above n 1, at [23].
It was six months higher than the starting point adopted by Venning J for Mr Kaka who, like the appellant, did not participate in the victim’s original abduction. We do not accept Mr Sutcliffe’s submission that the starting point adopted for Mr Kaka was too high: this was a serious crime. However, Mr Kaka’s conduct was less blameworthy than that of the appellant and he was only 19 years old at the relevant time. Clearly a higher starting point was justified for the appellant, aged 37 at the time of the offending, whose conduct was more serious.
Overall, we are satisfied that the starting point adopted for the appellant was not too high.
The discount given on compassionate grounds to acknowledge the sad circumstance of the loss of the appellant’s young child was also appropriate. Mr Sutcliffe acknowledged that the deduction of six months from the sentence that would otherwise have been imposed was not inappropriate considered on its own: his submission was that in combination with the starting point, the final sentence was disproportionately severe. However, we have not been persuaded that the starting point was wrong, nor that a greater discount for compassionate reasons would be appropriate.
There were no other relevant circumstances able to be taken into account in mitigation.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent