Cook v R

[2010] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND

CA698/2009
[2010] NZCA 87

BETWEENRENEE JUANITA COOK

Appellant

ANDTHE QUEEN

Respondent

Hearing:11 March 2010

Court:Ellen France, Miller and Allan JJ

Counsel:M N Pecotic for Appellant

K J Raftery for Respondent

Judgment:23 March 2010 at 2.30 pm 

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

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 not have the money but offered his car instead. 

[9]        The appellant returned to the address, handed over the ATM card plus $200.  She kept $100 for herself and went home. 

[10]       The complainant was taken away in his car and was then released.  Mr Steedman and another person told him that he should not tell the police what had happened.

[11]       The only other offender identified was Mr Steedman.  He pleaded guilty to one count of wounding with intent to cause grievous bodily harm, one count of aggravated robbery and one count of using a document.  He also pleaded guilty to some unrelated offending and was sentenced to a term of imprisonment of nine years three months imprisonment with a minimum period of imprisonment of five years for all of his offending. 

The sentencing remarks

[12]       Judge Wiltens sentenced the appellant and Mr Steedman at the same time.  The Judge identified aggravating features of their offending as follows:

(a)Actual and threatened violence involving the use of weapons and attacks to the head;

(b)Considerable degree of force resulting in a broken shin; and

(c)A degree of premeditation.

[13]       The Judge adopted a starting point of seven years six months imprisonment for Mr Steedman and six years six months for the appellant.  His Honour described the appellant’s role as “decidedly less in that she was involved but absent for significant periods”.[3]

[3] At [16].

[14]       From the starting point of six and a half years imprisonment, there was an uplift of three months for the appellant’s prior convictions.  Those convictions included dishonesty offending.

[15]       The Judge gave the appellant a discount of 10 per cent for her guilty plea and personal factors.  On the latter, Judge Wiltens noted the appellant had “considerable family support” and a change in circumstances following the birth of her child.[4]  The Judge also said, “I am told that your outlook on life is considerably changed from what it was.  You are also said to be remorseful ...”.[5]

[4] At [20].

[5] At [20].

[16]       The effective sentence imposed on the appellant was six years imprisonment.

The appeal

[17]       We deal with the submissions on the appeal under three broad headings, namely, the factual basis for sentencing, the culpability of the appellant, and the discount for mitigating factors.

The factual basis for sentencing

[18]       It does appear that the appellant was sentenced on the basis of an earlier summary of facts that, by the time of sentencing, had been overtaken.

[19]       The respondent accepts that the Judge was incorrect in his description of the facts in the two respects identified by the appellant.  First, the Judge incorrectly stated that the complainant bought cannabis from the appellant, and secondly, that the appellant pushed the victim through the front door.  Both these errors reflect the earlier version of the summary of facts.

[20]       Ms Pecotic emphasises that the appellant and the complainant agreed to meet.  She further submits that the reference to the involvement of cannabis may have influenced the overall approach to sentencing. 

[21]       We are satisfied that these mistakes were not such as to affect the sentencing outcome.  The important point from the Judge’s perspective was that the appellant “lured” the complainant to the address.  That is an accurate description of the appellant’s role.  Indeed, Ms Pecotic accepts that the appellant initiated the offending (a matter we come back to) and that she was instrumental in arranging for the complainant to travel to the address.  Against that background, these matters were not such as to have led to a manifestly excessive sentence.

Culpability

[22]       Two key points are made on behalf of the appellant in this respect.  The first is that the starting point is too high, given the appellant’s role.  Ms Pecotic points out that while the appellant was aware that the complainant was likely to be assaulted she was not the principal assailant.  She was aware that force would be used to get the correct number for the bank card but not the extent of the force.  Further, there was some aspects in which she was not involved, for example, she had no involvement in the later acquisition of the complainant’s car. 

[23]       Secondly, Ms Pecotic submits that the Judge did not have reference to the difference in charge between the appellant and Mr Steedman, the latter being convicted of the more serious charge under s 188(1) (wounding with intent to cause grievous bodily harm) not the s 188(2) (wounding with intent to injure) charge faced by the appellant.

[24]       In our view, the starting point adopted was within the available range.  In setting the point where he did, the Judge has taken into account the substance of the conduct in which the appellant was involved.  The key features are that, on her own account, she initiated the assault and she orchestrated the complainant’s arrival at house.   As the appellant put it in her discussion with the pre-sentence report writer:

... she rang the [gang] and was told to bring [the complainant] to the address [where the incident occurred.  The appellant] said she thought he was going to get just a bit of a hiding ... .

[25]       By contrast, in R v Snowdon,[6] the case relied on by the appellant, Ms Snowdon was sentenced on the basis that she was “not the instigator” and while “aware of the plan [was] not involved in creating” it.[7]

[6]      R v Snowdon HC Auckland CRI-2008-004-23774 28 April 2009.

[7] At [43].

[26]       Further, the appellant knew that violence would take place at the address, if not necessarily the extent.  That latter aspect was compounded by her reporting back to the other offenders after the attempt to gain access to the bank account was unsuccessful. 

[27]       All of this took place in the context of what was a serious attack in which the complainant was assaulted by at least two others.

[28]       While the appellant faced the lesser of the wounding charges, her culpability was reflected also in the kidnapping charge.  The latter offence, like that under s 188(1) faced by Mr Steedman, has a maximum sentence of 14 years imprisonment.  So, when the totality of the offending in which each was involved is considered, there is no error in principle in the Judge’s approach.

[29]       Accordingly, looking at the totality of the appellant’s offending and that of Mr Steedman, we are satisfied that the approach taken by the Judge was within the available range.

Discount for mitigating factors

[30]       There are two aspects to the submissions under this heading.  First, the extent of the discount given for the guilty plea and, secondly, that for personal circumstances.

[31]       The sentencing Judge has given a 10 per cent discount for the guilty plea and then one month’s discount for the other mitigating factors. 

[32]       No issue can be taken with the one month discount as the matters identified by the appellant are not so compelling as to warrant any further discount.  Those other factors are an expression of remorse, support in the community, the fact that the appellant had a nine month old child for whom she was the sole caregiver and rehabilitative prospects (the appellant said she had ceased consuming drugs and ceased prostitution and had cut her ties with the gang).

[33]       There is merit though in the submission that on the basis of this Court’s decision in R v Hessell,[8] the appellant should have received a greater discount for her guilty plea.  The argument on this issue had changed somewhat by the end of the hearing because by then it had emerged that the appellant’s counsel had written to the Crown stating that the appellant would plead guilty to kidnapping, aggravated robbery charges and to a charge of either injuring with intent to injure under s 189(2) or wounding with intent to injure under s 188(2) of the Crimes Act.  After the hearing, we were provided with a copy of a letter of 12 August 2009 from counsel for the appellant to the Crown which formally recorded her willingness to plead guilty to these charges.  It is not clear to us whether or not the sentencing Judge had this information.

[8]      R v Hessell [2009] NZCA 450.

[34]       In terms of Hessell, this is a case where the offender should have been treated as having been convicted of an offence to which she had earlier communicated a willingness to plead guilty.   We agree with Ms Pecotic’s submission that 15 per cent was the appropriate discount for the appellant.

[35]       Accordingly, the appeal is allowed on the basis that the discount for the guilty plea should be 15 per cent not 10 per cent.  We maintain the one month discount for the other personal circumstances.  Accordingly, the sentence of six years imprisonment on the kidnapping, wounding with intent to injure, and aggravated robbery charges is quashed.  A sentence of five years and eight months imprisonment is substituted on each count.  All sentences are to be served concurrently.

Solicitors:

Crown Solicitor, Auckland for respondent