Franklin v The Queen

[2005] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

CA145/05
CA147/05

THE QUEEN

v

ASHLEA MEGAN NADINE FRANKLIN
KIRI HIRINI

Hearing:26 May 2005

Court:Robertson, Williams and Salmon JJ

Counsel:K Tustin for Ashlea Franklin

N Deobhakta for Kiri Hirini
J M Jelas for Crown

Judgment:26 May 2005 

JUDGMENT OF THE COURT

The appeals against sentence are dismissed.
___________________________________________________________________

REASONS

(Given by Robertson J)

Introduction

[1]       This is an appeal by two women who were sentenced in the District Court at Hamilton on 27 April 2005 following jury verdicts of guilty on a count of injuring with intent to injure.

[2]       The appeal is advanced on the basis that the sentence of four months’ imprisonment with leave to apply for home detention but without deferment of the sentence pending consideration of an application for home detention was manifestly excessive.

[3]       The charge against each of the women arose out of an incident in a bar at the Outback Inn in Hamilton in which the complainant was left with severe bleeding and had to be taken to hospital.  She contended that not only had she been punched but also kicked about eight to ten times and that the aggressive behaviour towards her came from these two appellants. 

[4]       In evidence before the jury, the appellants had denied any kicking and had raised the issue of self-defence.

The District Court sentence

[5]       It is clear that the submissions at sentencing were directed to the issue of kicking and, in the course of his comments on sentence, the Judge said:

I have to say I am sure.  I am sure there was kicking and my reason primarily for that is that, as is often the case, I find the bystander evidence compelling.  Ms Sentch impressed as a witness, substantially uninvolved, substantially anxious to tell only what she could be sure of and willing to concede doubt if she was uncertain.  In her evidence she quite clearly states that she is sure that both were kicking and I find that probative.

[6]       The Judge, having noted that there may have been some reason for a greater degree of culpability by the appellant Ms Hirini, noted that he would treat the level of culpability of both appellants as being the same.

[7]       He found that the substantial aggravating feature was the level of violence. 

[8]       As far as mitigating matters were concerned, he noted that there was an acceptance of involvement, acceptance of responsibility for the causation of the injuries but consistently a denial of the kicking upon which he had found against them. 

[9]       The Judge was prepared to find some evidence of remorse on reflection but remarked that, although the incident might have been out of character for Ms Franklin, the issue had gone to trial and there could be no allowance for a plea of guilty or intimation of guilt to a lesser charge.  He noted their respective ages and lack of previous convictions and commented that it was “sad that two young women are now looking at a prison term with previously unblemished records and lives that they want to lead, people they are responsible for.”

[10]     The Judge considered the position of the victim and the particular need for deterrence in this sort of mindless violence in hotels noting that “people should be able to go to social establishments and enjoy themselves without this sort of thing happening”. 

[11]     As against that background, he said “I need to weigh up ... the concept of the least restrictive intervention necessary for first offenders and that can be met I think by keeping the prison terms to a relatively short period of time.  What is sometimes known as a short sharp shock to make the point that this is entirely unacceptable behaviour.”

Appellants’ submissions

[12]     Ms Tustin, on behalf of Ms Franklin, argued:

(a)       that the Judge erred in determining the facts upon which to sentence,

(b)that the sentence imposed was manifestly excessive, and

(c)the grant of leave to apply for home detention followed by a refusal to defer the start of imprisonment, renders the grant nugatory.

[13]     In respect of the first point, Ms Tustin placed particular emphasis on the fact that she had tried for a substantial period prior to trial to get prosecution acceptance that there had been no kicking.  It is clear that that was the pivotal point in the trial.

[14]     Counsel submitted that the jury’s verdict should be interpreted differently from that enunciated by the Judge in sentencing.

[15]     Ms Tustin noted:

The jury at 1630, 23 March 2005, after hearing from the victim Miss Harrison, Crown witness Miss Sentch, and each of the accused, and following four hours of deliberation, posed the question “If it is self-defence but the force used was not justified does that mean the intention must have been to injure?”

A verdict of guilty was returned within 10 minutes of an answer being given to this question.

The question asked by the Jury infers, that they considered self-defence applied, that they had worked through the first two elements of self-defence deciding in favour of the appellant, but required assistance in the third element of excessive force.

The verdict of the jury makes it clear that they determined the force used was excessive and therefore the appellant must have intended to injure the victim.

It was made clear to the jury prior to retiring that self-defence would not apply if they determined there were kicks on the ground as described.

The jury would have had no need to consider self-defence, therefore pose this question, had they preferred the evidence of the victim, and determined that she was kicked on the ground by the appellant.

[16]     Ms Tustin therefore submitted that it was not open to the Judge to reach the conclusions which he did and that, because of the state of intoxication of the victim, her recollection was of limited value and that the independent witness could not be as definitive as the Judge suggested.

[17]     Secondly, it was contended that, if there were no kicks, then a term of imprisonment was inappropriate for three punches to the face particularly when it was Ms Hirini who was the principal offender.

[18]     Thirdly, it was submitted that, when a person is serving a short term of imprisonment, as it took between six and eight weeks to have an application heard it meant that, without deferment, in reality no advantage was gained.  It was noted particularly that the application for home detention had been advanced on humanitarian grounds as Ms Franklin was a solo mother of a young child.

[19]     Without opposition, we read an affidavit from the mother of Ms Franklin describing the difficulties which have arisen because of pressures with regard to the care of this four year old.

[20]     Mr Deobhakta basically adopted the submissions of Ms Tustin save in respect of the fact that there might be any differentiation between the two appellants.

[21]     He adopted the submission that the Judge could not have been satisfied that there were kicks and not just punches and that a custodial sentence was inappropriate in those circumstances.

[22]     He underlined the fact that his client had no previous convictions, that she was 18 and a young woman caring for her son. He submitted that a community based sentence or a fine would have been an appropriate way of dealing with the matter.

Crown’s submissions

[23]     It was argued by Ms Jelas that the Judge who heard the evidence was entitled to reach findings supported by the evidence which were not inconsistent with the verdict, R v Heti (1998) 8 CRNZ 554.  Although the process was not actually adopted in this case, his finding is consistent with s 24 of the Sentencing Act 2002.

[24]     This Court made clear that, although the jury determines guilt, the Judge is entitled to make additional findings necessary for purposes of sentencing.

[25]     The Crown submitted that the finding of fact that the victim was kicked by both assailants was clearly open to the Judge and that he had carefully allowed for the fact that, in making the assessment he did, there had been a great deal of drinking.

[26]     As far as the speculation by Ms Tustin about the meaning of the jury question, counsel referred to the decision of this Court in R v W (CA15/01) 29 May 2001.  She pointed out that it is only speculation when a Court tries to discern from the jury question the conclusion they had reached on factual issues as it may be that only one juror was considering the issue of self-defence.

[27]     It was further contended that there is no right of appeal against a refusal to defer the start date of the sentence of imprisonment, R v Morgan [2004] 3 NZLR 738.

Discussion

[28]     The Court is not satisfied that there is any proper basis for challenging the Judge’s assessment of the factual basis in this case.  There was a clear evidential basis for it which he clearly articulated.

[29]     The various competing factors were weighed and assessed and no-one was in a better position than he was to make that assessment.

[30]     Counsel for the appellants did not seek to argue that, if multiple kicking was the nature of the assault underlying the verdict, then a term of imprisonment was not inappropriate.  Mindless violence in hotels by people who have had far too much to drink is a serious social problem and the Court is entitled to take the view that a short, sharp shock, even for relatively young mothers, is the appropriate response.

[31]     Further, we confirm that no challenge is available in respect of the start date in regard to the deferral as previously determined by this Court which was accepted by the appellants’ counsel at the hearing. In this case we are advised that arrangements have been made for a hearing on home detention on 7 June 2005.

[32]     This may be seen as a stern response by some, but the underlying problems deserve condemnation and there is nothing which suggests to us that the wrong principle was adopted by the Judge or that his result was manifestly excessive.

Conclusion

[33]     The appeals against sentence are accordingly dismissed.

Solicitors:

Crown Law Office, Wellington