Castle v The King
[2024] NZHC 1474
•5 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-155
[2024] NZHC 1474
BETWEEN KRISTIE LEE CASTLE
Appellant
AND
THE KING
Respondent
Hearing: 21 May 2024 Appearances:
S J Mitchell for Appellant
L S Seybold for Respondent
Judgment:
5 June 2024
JUDGMENT OF BOLDT J
[Sentence appeal]
This judgment was delivered by me on 5 June 2024 at 3.30 pm.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland for Respondent
CASTLE v R [2024] NZHC 1474 [5 June 2024]
[1] On 9 November 2023, Judge A M Manuel sentenced the appellant, Ms Kristie Castle, to 12 months’ home detention on a string of charges including three of burglary, two of possession of firearms and ammunition, and single charges of receiving, using a document for pecuniary advantage and careless driving.1 The appellant’s offending also included breaches of community work, community detention and bail. Judge Manuel ordered the appellant to serve her home detention at the Grace Foundation.
[2] The appellant absconded from the Grace Foundation shortly after her arrival, leading the Department of Corrections to apply for the sentence of home detention to be cancelled, and for a new sentence to be substituted. On 26 March 2024, Judge J Bergseng imposed a sentence of 23 months’ imprisonment, giving a small measure of credit for the nine days’ home detention the appellant completed before she left.2 The Judge added an extra month’s imprisonment on the charge of breaching home detention, meaning the appellant faced a total prison sentence of two years.3
[3]The appellant appeals against her sentence, arguing it is manifestly excessive.
Background
[4] There is no need to go into the detail of the offending that led to the appellant’s sentence of home detention. It is sufficient to note that she was a party to a spree of serious offending. Among other things, the appellant acted as the driver in two burglaries in late 2022; the careless driving charge arose as she attempted to avoid apprehension after the latter.
[5] There is no dispute that Judge Manuel approached the initial sentencing appropriately, and that the starting point, discounts and final sentence were all available to her. From a starting point of 40 months, Judge Manuel applied a series of discounts which brought the sentence down to 24 months, allowing home detention to be considered.
1 R v Castle [2023] NZDC 25020.
2 Department of Corrections v Castle [2024] NZDC 7656.
3 At [9].
[6] The Grace Foundation is a charitable trust, which provides rehabilitation and accommodation services for people released from prison, or who otherwise need to be diverted away from criminal offending. In sentencing the appellant, Judge Manuel said:4
[17] Ms Castle, people were hurt by your offending. They had their homes burgled by you. People are entitled to feel safe in their own homes. Some of the items that were stolen had sentimental value, so they touched the hearts of the people who lost those items. Don’t repeat your mistakes.
[18] Ms Castle, I was going to sentence Mr Peters today too, your partner, but he has gone AWOL. Do not do the same thing. Hang in at the Grace Foundation and see what you can accomplish. I wish you all the very best with completing your sentence.
[7] It was good advice, but, as already noted, the appellant left the Grace Foundation within nine days. Judge Bergseng effectively adopted Judge Manuel’s approach to the appellant’s offending, and imposed the sentence the appellant would have received had home detention not been an option.
The appellant
[8] The appellant is 39 years old. Her s 27 report discloses a deeply troubled life characterised by sexual and physical abuse, abandonment and heavy use of alcohol and drugs from a very young age.
[9] More recently, and more pressingly, the appellant was diagnosed as suffering from severe cardiomyopathy. As a result, she suffered a late miscarriage in October 2022.
[10] Although far from a first offender, the appellant’s earlier convictions involved relatively minor offending. She had not been imprisoned before. A substantial proportion of her earlier offending involved breaches of community-based sentences and orders. That said, the offending for which she was sentenced by Judge Manuel, and re-sentenced by Judge Bergseng, included several serious episodes. The charges spanned an extended period — the earliest burglary was committed on 2 August 2020, the last on 17 December 2022.
4 R v Castle, above n 1.
[11] Judge Manuel noted that her 40-month starting point was higher than either the prosecution or defence had proposed. From that, she applied a 15 per cent discount for the appellant’s guilty plea on the lead charge, a further 15 per cent for the harrowing matters in the appellant’s cultural report and a final 10 per cent for the appellant’s remorse, family circumstances and health. In light of her diagnosis, the Judge observed the appellant “may have a limited lifespan”.5
[12] Including time spent on remand, the appellant has been in prison on these charges for some time. Counsel advise that she has a release date in early August 2024.
The appeal
[13] The appellant submits I should quash her sentence and remit the matter back to the District Court. Mr Mitchell emphasises the appellant’s serious medical condition, and suggests it would be appropriate for any difference between her two-year sentence, and the time she has served, to be met by a community-based sentence such as intensive supervision, supervision or community work. Mr Mitchell also submits that leave should be reserved to the appellant to apply for a further sentence of home detention if a suitable address becomes available.
Discussion
[14] The approach to an appeal against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless satisfied, for any reason, that there was an error in the relevant sentence, and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed only if the sentence was manifestly excessive, represented a material error of principle, or in the presence of exceptional circumstances.6
[15] It is difficult to fault Judge Bergseng’s approach. The appellant absconded almost immediately from her placement on home detention, which on its face was a merciful sentence. It is evident he did not consider it his role to re-examine
5 At [14].
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].
Judge Manuel’s underlying analysis. After all, neither party challenged that sentence, and a sentence of home detention could not have been imposed unless Judge Manuel had first settled on a prison sentence of two years or less.
[16] Moreover, Ms Castle’s history discloses a particularly poor record of compliance with community-based sentences and orders, including electronically monitored sentences. All else aside, Judge Bergseng could have had little confidence in the appellant’s willingness to comply with any community-based sanction.7
[17] I agree with Ms Seybold that it was open to Judge Bergseng to adopt Judge Manuel’s careful approach, and to substitute the sentence Judge Manuel would have imposed if home detention had not been available.
[18] Similarly, I cannot criticise any aspect of Judge Manuel’s approach. While her 40-month starting point was higher than either party had suggested, it is evident the appellant had engaged in an escalating course of serious offending. Mr Mitchell did not criticise that starting point, nor could any valid criticism be levelled. Similarly, the discounts for the appellant’s pleas of guilty and the factors contained in her cultural report were appropriate, if not generous.
[19] The nearest the appellant came to persuading me that the appeal should be allowed arose from comments in the cultural report which indicated the appellant’s cardiomyopathy meant she faced a severely reduced life expectancy — perhaps in the order of five to seven years. That assertion was, at least at the time the appeal was heard, unverified by medical evidence. Ms Seybold responsibly accepted that if the appellant’s cardiologist confirmed that prognosis, greater recognition of the appellant’s health may have been appropriate. As a result, I gave Mr Mitchell leave to file a further medical report addressing that question.
[20] Happily for Ms Castle, her prognosis has improved considerably. Her cardiologist, Dr Mayanna Lund, confirms Ms Castle has responded very well to treatment, and that her heart function is now back in the normal range. Dr Lund went
7 See Sentencing Act 2002, s 17.
as far as to describe Ms Castle as recovered. On the question of life expectancy, she said:
The published observational data suggests that if [Ms Castle] continues on her current medical therapy and avoids contributing factors to her cardiomyopathy, she may have a normal life expectancy.
[21] In light of Dr Lund’s most recent report, there is no case for a greater reduction based on the appellant’s health. It was properly taken into account by Judge Manuel; indeed, Ms Castle’s prognosis is now considerably better than it was when she was sentenced to home detention.
[22] It follows that there is no basis to disturb Judge Manuel’s sentencing analysis, or Judge Bergseng’s decision to substitute a sentence of 23 months’ imprisonment for the sentence of home detention the appellant so quickly breached.
Result
[23]The appeal against sentence is dismissed.
Boldt J
0