Duncan v The King
[2023] NZHC 3458
•30 November 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-198
[2023] NZHC 3458
BETWEEN ANTOINETTE KATHERINE DUNCAN
Appellant
AND
THE KING
Respondent
Hearing: 30 November 2023 Counsel:
P N Allan for Appellant
W J S Mohammed for Respondent
Judgment:
30 November 2023
JUDGMENT OF BREWER J
Solicitors/Counsel:
Phillip N Allan (Christchurch) for Appellant
Raymond Donnelly & Co (Christchurch) for Respondent
DUNCAN v R [2023] NZHC 3458 [30 November 2023]
Introduction
[1] Ms Duncan appeals against a sentence of two years and two months’ imprisonment imposed on her by Judge S J O’Driscoll on 22 September 2023.1
[2] Ms Duncan, at 36 years of age, pleaded guilty to one charge of arson at her case review hearing. The maximum sentence for arson is 14 years’ imprisonment.
[3] Ms Duncan was an inpatient at the Secure North Ward of Hillmorton Hospital. Following a disagreement with a nurse, Ms Duncan set light to a mattress in her bedroom. Once the mattress was ablaze, Ms Duncan left the room and locked the door. She did not tell staff what she had done.
[4] One of the major aggravating factors where arson is charged is the danger caused to others. In this case, there were seven residents sleeping nearby and when the fire was discovered a total of 13 had to be evacuated. This occurred without the fire breaching the confines of the room and total damage from fire and smoke inside the room amounted to about $8,600. No reparation was available.
[5] Ms Duncan has a history of mental health problems. Judge O’Driscoll had a number of reports from mental health experts. Ms Duncan was not insane, but she has been diagnosed previously with schizophrenia, complex PTSD and mixed personality disorders.
[6] This was a difficult sentencing and the main point for the Judge was the discount to be given for Ms Duncan’s mental health problems. There is no doubt that they contributed causatively to her offending.
The Judge’s sentence
[7] The Judge adopted a starting point of four years’ imprisonment. He reduced that by one year to take into account Ms Duncan’s personal circumstances, including her mental health background and the contents of a s 27 report.
1 R v Duncan [2023] NZDC 21654.
[8]The Judge then said:
[15] That then means that the sentence is reduced to one of three years. I could increase the sentence to take into account and reflect that you were on intensive supervision at the time, but I will not do that. I then intend to reduce the three-year sentence (that is, 36 months’ imprisonment) by a further 10 months to take into account your plea of guilty.
[9] On appeal, Ms Duncan does not quarrel with the starting point or the discount for personal circumstances. Instead, it is submitted that the Judge erred by applying a three-step methodology rather than the two-step methodology set out by the Court of Appeal in Moses v R.2 The submission is:
7. It is submitted that the proper approach would have been to add the discount for personal factors (25%) to the discount for Guilty plea (25%) to obtain a total credit of 50% which, when applied to the starting point (4 years), would have resulted in an end sentence of 2 years Imprisonment.
[10] I note that the 10 months allowed for the plea of guilty amounts to 21 per cent of the four years starting point. Mr Allan submits that the discount should have been 25 per cent given that all counsel at the sentencing were agreed that the guilty plea was entered at the first reasonable opportunity. That is because as soon as the mental health issue was resolved in favour of Ms Duncan standing trial, she immediately indicated through her counsel that she would enter a plea of guilty and did so at the next call of her case which was the case review hearing. Had the Judge given the full discount of 25 per cent (and he does not explain why he did not), then the end sentence would have been two years’ imprisonment.
Discussion
[11] The appeal is by way of rehearing. Although there is an onus on Ms Duncan to point to error on the part of the Judge, I must make my own assessment.
[12] I must allow the appeal if I am satisfied that the Judge made an error such that a different sentence should be imposed.
2 Moses v R [2020] NZCA 296.
[13] As has often been said, the focus of an appeal against sentence is not on the methodology adopted by the sentencing judge but on the final sentence. If the final sentence is manifestly excessive, then that is an error which must be corrected.
[14] If a Judge has made a mathematical error such that the final sentence does not reflect their intention, then the appellate court will correct the mathematical error, even if it is minor and would otherwise be seen as tinkering.
[15] In this case, there is no mathematical error. The Judge reached his end sentence of two years and two months deliberately. The issue then becomes whether his methodology resulted in a sentence which is manifestly excessive. In my view, it did not.
[16] I agree with counsel that the starting point of four years’ imprisonment was within the range available to the Judge. So, too, was the 25 per cent discount for the defendant’s personal circumstances. The 10 months discount for the plea of guilty amounts to 21 per cent of the starting point. It might be that the Judge should have given a greater discount amounting to 25 per cent of the starting point. But the Judge did not increase the starting point for the fact that the offence was committed while Ms Duncan was already serving a sentence of intensive supervision.
[17] In my view, the end sentence of two years and two months’ imprisonment cannot be said to be outside the range available to the Judge. It is not manifestly excessive.
[18] Mr Allan argues for a further reduction of two months (four per cent of the starting point) largely because his client prefers the short sentence parole regime whereby there is automatic release once 50 per cent of the sentence has been served. Mr Allan told me that after the formal sentencing the Judge indicated his preference for the Parole Board to have a role in determining how Ms Duncan’s sentence proceeds. He was also cognisant that the opportunity to apply for parole would be earlier under the longer sentence. That is because eligibility to apply for parole is triggered once a third of the sentence has been served.
[19] I accept that those factors are relevant considerations for Ms Duncan. But my job is to decide whether the Judge erred in reaching an end sentence of two years and two months’ imprisonment. I have found that he did not err.
[20]The appeal is dismissed.
Brewer J
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