BThe sentence of six years imprisonment on the kidnapping, wounding with intent to injure, and aggravated robbery counts is quashed. A sentence of five years and eight months imprisonment is substituted on each count. All sentences are to be served concurrently.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1] Following pleas of guilty, the appellant was sentenced on 30 October 2009 to a term of imprisonment of six years on charges of kidnapping, wounding with intent to injure, and aggravated robbery.[1] All of the charges relate to the one incident.
[1] R v Cook& Steedman DC Manukau CRI-2008-092-005809, CRI-2008-092-004498.
[2] The appellant appeals against sentence on the basis the sentence imposed was manifestly excessive.
Factual background
[3] The incidents giving rise to the offending took place on 17 March 2008. The male complainant and the appellant agreed to meet at an address in south Auckland. The appellant remained outside the address while the complainant walked inside. Once he was inside, a bag was placed over his head by a co-offender, Kerry Steedman, and an unknown person.
[4] The complainant was then hit on the head. He either fell or was pushed to the ground. He was placed on his stomach, face down with the bag over his head. His hands were tied behind his back. The complainant was then repeatedly assaulted by a number of people. As the sentencing Judge observed, this resulted in:[2]
... lacerations to the mouth and the facial area, a broken shin and ankle, bruising around his body and stab wounds to his back, buttocks and hand.
[2] At [6].
[5] The assailants then removed the complainant’s wallet taking $260 in cash and other items including ATM cards. He was asked for the PIN number for one of the ATM cards and was further assaulted to compel him to supply this information. He provided an incorrect PIN number.
[6] Ms Cook then came into the house. Mr Steedman gave her the ATM card and PIN number. She went off and tried to use the card. That did not work because the number was incorrect.
[7] The appellant contacted those at the address and told them what had happened. That led to the complainant being further assaulted and threatened by what he thought was a chainsaw which he says was “cutting through” his head. He gave the correct PIN number, which was then conveyed to the appellant who used it successfully to withdraw $300 from the account.
[8] While the complainant was lying on the ground, he felt someone cutting his hands from behind. One of the offenders asked him for $5,000 in exchange for his life. He did…
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.
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Details
AGLC
Cook v R [2010] NZCA 87
Case
[2010] NZCA 87
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appellant, Renee Juanita Cook, challenged her sentence of six years imprisonment imposed for charges of kidnapping, wounding with intent to injure, and aggravated robbery. The Court found the sentence to be manifestly excessive and allowed the appeal against the sentence. The court quashed the sentence of six years imprisonment and substituted a sentence of five years and eight months imprisonment to be served concurrently on each count.
The appeal hinged on three main issues: the factual basis for sentencing, the culpability of the appellant, and the discount for mitigating factors. The court found that although the sentencing judge had made some errors in his description of the facts, these did not affect the sentencing outcome. Regarding the appellant's culpability, the court found that the starting point adopted was within the available range and that the appellant's role in initiating the assault and orchestrating the complainant’s arrival at the house warranted a higher culpability. However, the court found merit in the submission that the appellant should have received a greater discount for her guilty plea and substituted a discount of 15 per cent instead of 10 per cent. The court also maintained the one month discount for other personal circumstances.
The court found that the appeal was allowed on the basis that the discount for the guilty plea should be 15 per cent instead of 10 per cent, and substituted a sentence of five years and eight months imprisonment on each count, to be served concurrently.