Gavin aka Capper v The Queen - [2018] NZHC 2193

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-69

CRI-2018-463-70 [2018] NZHC 2193

BETWEEN RAEWYN ANNE GAVIN (AKA CAPPER)
Appellant

AND

THE QUEEN

Respondent

Hearing: 23 August 2018

Appearances:

F Wood for Appellant

M Jenkins for Respondent

Judgment:

24 August 2018

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 24 August 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

GAVIN v R [2018] NZHC 2193 [24 August 2018]

[1] Ms Gavin, (also known as Capper) and her daughter pleaded guilty in the District Court to charges of maiming with intent to injure. Ms Gavin also pleaded guilty to a charge of intimidation. On 20 July 2018, Judge Bidois sentenced Ms Gavin to two years imprisonment on both charges.1 He sentenced Ms Gavin’s daughter to 10 months home detention and 140 hours community work.

[2] Ms Gavin appeals against the sentence on the ground that the Judge erred in principle in several respects, and this produced an end sentence that is manifestly excessive.

The facts

[3] The factual basis on which the Judge sentenced Ms Gavin was contained in a summary of facts that Ms Gavin did not accept in all respects. In a minute issued prior to sentencing, however, another Judge ruled that the disputed portions of the summary were not sufficiently material to affect the likely sentence. For that reason there was no need for the Court to conduct a disputed facts hearing.

[4] Ms Gavin and her daughter were originally charged with maiming with intent to cause grievous bodily harm. That charge was reduced to a charge of maiming with intent to injure prior to a sentence indication hearing. Ms Gavin and her daughter rejected the sentence indication but promptly entered guilty pleas in any event. Judge Bidois, who did not give the sentence indication, ultimately sentenced both Ms Gavin and her daughter.

[5] The maiming charges were laid as a result of an incident that occurred on the morning of 25 June 2017. On that date Ms Gavin and her daughter went to the workplace of Ms Gavin’s husband. When they arrived, they found the complainant present. The complainant had been in an “on again off again” relationship with Ms Gavin’s husband for some considerable time, and this had been the source of significant friction between Ms Gavin and her husband.

1 R v Capper [2018] NZDC 14961.

[6] Ms Gavin’s daughter then attacked the complainant from behind, punching her about the head and causing her to fall to the ground. The summary records that both defendants then punched and kicked the complainant numerous times to the face and head whilst she lay on the ground. Throughout this incident, the complainant was crying and telling the defendants to leave her alone. The defendants were abusing the complainant, calling her a “bitch” and threatening her in the event that she ever saw…

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.

Continue reading Gavin aka Capper v The Queen

Details

AGLC: Gavin aka Capper v The Queen [2018] NZHC 2193
Case: [2018] NZHC 2193
Decision Date: 24 August 2018

CaseChat Overview and Summary

Raewyn Anne Gavin (also known as Capper) appeals against her sentence following her conviction for maiming with intent to injure, and intimidation. The District Court Judge sentenced Ms Gavin to two years imprisonment on both charges. Ms Gavin submits that the Judge erred in principle in several respects, resulting in an end sentence that is manifestly excessive. The Crown opposes the appeal, arguing that the sentence is not manifestly excessive and that the appeal should not succeed because of the mathematical error in the Judge’s calculation. The Judge erred in principle by refusing to impose a sentence of home detention on Ms Gavin. However, the Crown’s arguments against the appeal have some force. The overall discount for mitigating factors was extremely generous, and it is questionable whether the discount for perceived provocation was justified. Furthermore, although the starting point adopted on the maiming charge was sufficient to include culpability in relation to the intimidation charge, the Judge did not add any uplift to reflect the latter. The appeal against sentence is allowed to the extent that the sentence of 24 months imprisonment is reduced to one of 22 months imprisonment.

Orders