Gillard v The Queen
[2020] NZHC 1140
•27 May 2020
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI 2020-454-000007
[2020] NZHC 1140
BETWEEN SAM GILLARD
Appellant
AND
THE QUEEN
Respondent
Hearing: 19 May 2020 Appearances:
P J Drummond for the Appellant J Mara for the Respondent
Judgment:
27 May 2020
JUDGMENT OF GWYN J
This judgment was delivered by me on 27 May 2020 at 2.30pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
P J Drummond, Barrister, Palmerston North Crown Law, Wellington
BVA (Ben Valderkolk & Associates), Palmerston North
GILLARD v R [2020] NZHC 1140 [27 May 2020]
Introduction
[1] Mr Gillard pleaded guilty to a single charge of arson.1 He was sentenced to 18 months and two weeks’ imprisonment, which he now appeals.2
[2] The Crown opposes the appeal, except on the issue of two weeks’ imprisonment which was imposed in substitution for the appellant’s fines. Mr Gillard does not take issue with that substitution. The Crown submits there was no jurisdiction for it and the two weeks’ imprisonment imposed must be quashed.
The offending
[3] Mr Gillard set fire to a Mercedes Benz vehicle (the vehicle), causing it to be destroyed. The vehicle’s owner was Mr Gillard’s grandmother’s partner. There is some family history of animosity between Mr Gillard, his mother and his grandmother. Mr Gillard described the circumstances surrounding the offending as “complex”.
[4] In the early hours of 4 April 2018, Mr Gillard and associates arrived on the street where the vehicle was parked and poured the contents of a petrol can he had brought with him over it. Using a blow torch he ignited the petrol. He left the scene soon after and the vehicle was destroyed.
Conviction history
[5] Mr Gillard has one conviction for cultivating cannabis in 2016, one conviction for exceeding the blood alcohol limit for a driver under 20 in 2009 and one conviction for a common assault in 2008.
Reports
PAC report
[6] Mr Gillard is a 29 year old Maori man of Ngāti Raukawa descent on his father’s side.
1 Crimes Act 1961, s 267(3). The maximum penalty is five years’ imprisonment.
2 R v Gillard [2020] NZDC 58585.
[7] The PAC report was prepared on 27 March 2020. It described Mr Gillard spending most of the interview for the report (given via audio visual link) avoiding and deflecting from discussion around the offence and surrounding factors. Mr Gillard described being tired of repeatedly discussing the events and feeling exhausted – with the events having gone on for the last few years. The report writer characterised him as evasive during discussions about his family and associates, saying he just wanted to focus on moving forward, getting a job, being there for his children and getting a car. When asked what support he would need, he described wanting to remain positive and focussed on moving forward rather than focussing on the past or treatment. The report writer describes him as not expressing remorse or regret, but instead taking a “victim” stance. Further, when discussing his future Mr Gillard said he was not prepared to engage in rehabilitative treatments or counselling regarding his mental health or violence.
[8] The report writer assessed factors relating to the offending as attitudes, unstructured lifestyle, associates, violence, impulsivity and poor problem solving. The writer noted mental health issues may be a factor in Mr Gillard’s offending. His risks of reoffending and harm were assessed as low, based on his history and the nature of the offending.
Psychological reports
[9] Two court-ordered psychological reports were prepared on 21 and 22 November 2019 to assess Mr Gillard’s fitness to stand trial.3 In view of some of the matters raised in those reports I raised with Mr Drummond whether it might assist the Court to require a report pursuant to s 27(5) of the Sentencing Act 2002. He agreed such a report might assist the Court and, ultimately, Mr Gillard, but noted that such reports must now be obtained privately, there are no providers in the Manawatu area and there is a wait time for Auckland providers which would mean a report would likely not be available till the end of July at the earliest. There is also a cost for production of the report (and a further cost if the report writer were required to appear) of approximately $2,500. Mr Gillard would need to apply to Legal Services for an amendment to his grant to cover that cost. Mr Gillard’s release date is October 2020.
3 Ordered pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 20003.
In light of the possibility that any s 27 report might not be available early enough, I reached the view that it was not appropriate to require such a report under s 27(5).
[10] Broadly, the report writers characterised Mr Gillard as pleasant and co- operative with the assessment process and forthcoming with information, though the first report notes some reticence regarding questions about issues with his family and showing some concern about implicating himself or others in antisocial conduct. The first report did note Mr Gillard having a tendency to want to present himself in a positive light.
[11] The reports each summarise Mr Gillard’s history. Though there are inconsistencies between the two, and the second report notes some “questionable internal consistency” in Mr Gillard’s accounts of events and pathways in his life, there are common themes. Mr Gillard’s history clearly included a difficult upbringing, involving access to alcohol and cannabis from a young age. The reports also mention tension between Mr Gillard’s mother and her extended family, as well as bullying at school. Of most concern are the details of serious abuse Mr Gillard suffered during a year at Te Aute boarding school while he was twelve.
[12] Mr Gillard has been diagnosed with post traumatic stress disorder (PTSD) and borderline personality traits. The first report suggests this diagnosis followed him attempting to hurt himself due to the current proceedings taking so long, his having to leave work and his being unable to live normally – though it appears that Mr Gillard has received some mental health support since at least July 2017 and possibly earlier. He also appears to have had a negative experience with and view of counselling as re- traumatising, has used alcohol to suppress his emotions and reported binge drinking roughly once a week. The reports set out other instances of Mr Gillard dealing with mental health issues, including self-harming behaviour, suicidal thoughts and attempting suicide.
[13] The report notes that prior to the offending Mr Gillard was living in his car, not working and being “in a really dark place”, lacking a home and being separated from the mother of his youngest son (he has an older son as well as a daughter) and step- son. Though he had worked in forestry in the past (and hopes to again) as well as
spending a year working in a meat works, he accessed a benefit for the first time prior to the offending.
[14] The reports do not address the extent to which Mr Gillard’s issues and experiences around mental health might have contributed to the offending in this case. That was not their focus. In the first report he appears to have briefly claimed to have an alibi regarding the offending, though he admitted to Police that he committed the offence because the victim had threatened his family and “played games with them for years”. The second report does not include any reference to this.
[15] At the hearing Mr Drummond referred also to a 19 November 2018 email from Donny Riki, an indigenous psychotherapist, who as at that date had been seeing Mr Gillard as a patient for nine months. Mr Riki’s underlying assessment of Mr Gillard’s mental health condition is broadly consistent with the two Court-ordered psychologists’ reports, but he also describes Mr Gillard being in an “acutely psychotic and dysphoric state” on the day of the report. Mr Mara for the Crown has had an opportunity to view the email and says nothing it mentions should change the assessments made in the District Court.
Restorative Justice report
[16] A report was prepared by the Manawatu Restorative Justice Trust on 27 January 2020 following Mr Gillard’s conference with his grandmother and her partner (the victims). It records that Mr Gillard apologised for destroying the vehicle, explained the surrounding circumstances were “complex” and that he would like to spend whatever time it took to talk through the circumstances with the victims (following release). He said his top priority upon release (after resuming employment in forestry) would be paying back $10,000, being the cost of the destroyed and uninsured car.
[17] The victims were also happy to have a long conversation with Mr Gillard once released and were adamant they did not want him to remain in jail a day longer than necessary. The car’s owner said the car was “beautiful” and he had spent a lot of time on it – but said that he had chosen to forego retribution, provided Mr Gillard repaid the money. Mr Gillard said he missed his children, regretted what they had been
dragged through, said he wanted to put that right upon release and described himself as “lost”.
District Court decision
[18] Sentencing occurred on 1 April 2020. Mr Drummond, for Mr Gillard, notes that the hearing was somewhat unusual, being conducted entirely via audio visual link, in the context of a busy arrests, remands and bail list. He says this was likely due to the timing, being at the commencement of the COVID-19 Level 4 lockdown – but resulted in an unusually time-constrained sentencing hearing.
[19] Judge Krebs explicitly acknowledged being unclear as to the background between Mr Gillard and the victims, beyond that the vehicle was “very valuable for emotional as much as financial reasons” to its owners.4 He characterised Mr Gillard’s offending as a result of him seeking “some sort of retribution” following a “to do”.5
[20] The Judge recorded that Mr Gillard accepted the facts and had apologised to the victims at the restorative justice conference, which they accepted.6 He noted both sides hoped to continue talking through events to prevent future escalations of this sort.7 He said he would give Mr Gillard credit for attending the restorative justice, having “manned up” and giving the apology.8 Nonetheless he did reaffirm the victims were “deeply troubled” and lost their car, which was uninsured.9
[21] The Judge cited Mr Gillard’s very limited conviction history, which did not warrant an uplift.10 He noted the PAC report describing Mr Gillard as having an unstructured or “rudderless” life, lacking focus.11
4 At [2].
5 At [2].
6 At [3].
7 At [3].
8 At [3].
9 At [5].
10 At [4].
11 At [6].
[22] The Judge set out that there is no tariff case for arson.12 He agreed with counsel that R v Mohi was somewhat similar though more serious.13 R v Mohi involved an appellant who resigned his job complaining about a dispute over whether he should be able to access a truck, drank vodka and then took a taxi to the premises and set two vehicles alight, one of which was his employer’s. The latter car was totally destroyed. The District Court Judge had considered Mr Mohi’s plan was for a number of vehicles to be set alight, which would have placed people at risk. He also considered the collecting, spreading and lighting of fuel would have taken concentrated effort, which was evidence of premeditation. The Court of Appeal considered, in light of authorities, that a starting point of 34 months’ imprisonment was unduly stern, with 30 months being more appropriate, followed by a reduction of six months (or five per cent) for reparation.14
[23] Judge Krebs set a starting point of 28 months’ imprisonment.15 For matters in the psychological report, remorse, participation in restorative justice and Mr Gillard’s promise to pay reparations as soon as he could, the Judge granted a discount of four months (around 14 per cent), subtracting a further six months (25 per cent) for his pleading guilty at the earliest opportunity to reach an end sentence of 18 months.16
[24] Judge Krebs then remitted fines totalling $6967.46 for various infringement offences, substituting a further two weeks’ imprisonment.17 This was on the basis that any money Mr Gillard could pay would then be able to go to the victims as reparation. He imposed reparation in the sum of $8,000 to be paid to the victims18 and standard release conditions as set out in the probation report – being to attend assessments and complete any counselling or treatment as directed to the satisfaction of the probation officer.19
12 At [7].
13 At [8]; citing R v Mohi [2007] NZCA 139.
14 R v Mohi at [17].
15 R v Gillard, above n 2, at [8].
16 At [9].
17 At [10].
18 At [11].
19 At [12].
Sentence appeal
[25] Mr Gillard appeals on the basis that the end sentence imposed was manifestly excessive.
[26] The appeal is brought under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence and a different sentence should be imposed.20 In any other case, the Court must dismiss the appeal.21
[27] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) of the Sentencing Act was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957, but reflects a synthesised approach.22 That is that the appeal court does not start afresh or substitute its own opinion for that of the original sentencing body. It must identify an error in the original approach, such as the starting point being too high on the facts or incorrect discounts given for particular factors, and then form its own view of the appropriate sentence. The concept of a manifestly excessive or inadequate sentence remains relevant as a way of examining the significance of the error to decide whether a different sentence should be imposed. Generally, the appeal court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.23
Submissions
[28]Mr Drummond for Mr Gillard submits that Judge Krebs erred in three respects:
(a)setting the starting point at 28 months, which was too high;
(b)failing to take into account all mitigating factors, in particular Mr Gillard cooperating with Police and accepting responsibility; and
20 Criminal Procedure Act, s 250(2).
21 Section 250(3).
22 Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [26]–[35].
23 At [36].
(c)grouping the remaining mitigating factors together and failing to allocate a sufficient discount for them.
Starting point
[29] Regarding the starting point, Mr Drummond notes that the decision in R v Mohi does not clarify which subsection of s 267 of the Crimes Act Mr Mohi was charged under – the relevance being that they carry different maximum penalties.24 Mr Gillard was charged under s 267(3), which carries the least serious maximum penalty of the three offences – only five years’ imprisonment. Mr Mohi was also convicted of an arson and attempted arson, which carries a maximum penalty of ten years’ imprisonment.25 Therefore counsel submits that the present offending was less serious than Mohi in terms of both number and severity of charges. In light of the clear divergence in severity between that case and this one, the starting point should have been lower than 28 months (a two month or approximately seven per cent reduction of the 30 month starting point in Mohi).
[30] Mr Drummond also pre-emptively addressed two other authorities which he says can be distinguished on the basis that the offending involved was more serious:
(a)R v Wonnacott involved an appellant who set fire to a van parked outside of her former partner’s house (using petrol she had brought with her), which then spread to the exterior of the house itself.26 While the damage to the house was contained, the van – which the appellant targeted because it was the victim’s prized possession – was destroyed. The District Court imposed a starting point of two years and four months’ imprisonment.27 This was not challenged before the Court of Appeal, which dealt solely with the reparation orders made by the Judge in terms of the statutory jurisdiction.
24 R v Mohi, above n 13.
25 Crimes Act 1961, s 268.
26 R v Wonnacott [2009] NZCA 414.
27 Discussed at [7].
(b)Cox v R involved an appellant who pleaded guilty to two charges of arson.28 Both occurred after Mr Cox had been drinking at a bar and speaking with his ex-partner. The first involved him unsuccessfully attempting to revive the relationship with her and then, as he was walking home from the bar, stuffing paper under the wheel arch of a vehicle parked within two metres of a dwelling house and setting it alight. The fire brigade were alerted and stopped the fire after it caused damage requiring $2,117.60 be spent on repairs. The second charge involved Mr Cox drinking at the same bar roughly two months later. He had spoken briefly with his ex-partner until she left the bar under the pretext of using the toilet. Mr Cox later left the bar, went to her address, pushed a baby’s pram against the doorway and set it alight. The fire then spread to the dwelling. The fire brigade was called and the fire was extinguished, having caused $12,323.60 worth of damage. The Court of Appeal characterised the first offending as opportunistic but viewed the second as involving some measure of premeditation and targeting as well as risk to others.29 The Court considered the offending similar to R v Protos30 and said a starting point of three years’ imprisonment was “well within the available range”.31
[31] Against this, Mr Mara for the Crown reiterates Judge Krebs’ comment that there is no tariff case for arson because arson cases are highly fact-specific and best considered on their own merits. Counsel submits that the Judge’s analysis of this case as compared to Mohi clearly factored in the difference in severity, resulting in a starting point within the available range.
28 Cox v R [2013] NZCA 194.
29 At [13]–[13].
30 R v Protos CA259/04, 19 October 2004. In that case an appellant wilfully set fire to a motor vehicle, which then spread to the occupied house it was parked next to, causing damage totalling
$13,200. The Court of Appeal’s effective starting point (which was not stated outright) was three years’ imprisonment.
31 At [18]–[19].
Starting point – mental health
[32] Mr Drummond’s second submission regarding the starting point is that the District Court Judge failed to account for Mr Gillard’s mental health as moderating his culpability. Counsel says this contradicts the Court of Appeal’s approach in E (CA689 2010) v R and Shailer v R, which establish various ways in which mental illness might impact on sentencing, including by reducing the offender’s culpability for the offending itself.32
[33] Mr Drummond argues that the psychological reports demonstrate that Mr Gillard’s psychological impairment makes him vulnerable to poor decision- making and therefore at least partially limits his culpability. He says this factor should have informed the setting of the starting point. Counsel also notes that in the decision regarding the application under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (in which Mr Gillard was found fit to stand trial) Judge Lynch explicitly drew a link between Mr Gillard’s mental health considerations and the present offending:33
Ms Lomas observed that the fact that Mr Gillard uses threats of self-harm and illicit substances to manage his emotions leaves him vulnerable to making poor decisions that have significant repercussions both for him and his community, and of course what occurred here on 4 April 2018 is an illustration of that.
[34] While counsel for the Crown accepts that, as a matter of principle, mental health issues can be relevant to both the severity of the offending itself and the personal features of the offender, there must be evidence that a mental disorder had a causative impact on offending if it is to justify a reduction in the starting point on the basis of reduced culpability.34 Mr Mara submits that the psychological reports and the indigenous psychotherapist’s email before the Court simply outline that Mr Gillard suffers from PTSD and has periodically used drugs and alcohol to manage his emotions, without establishing a causative link. He says these factors were appropriately taken into account at the second stage as part of a holistic approach.
32 E (CA689 2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70]; and Shailer v R [2017] NZCA
38, [2017] 2 NZLR 629 at [47]–[48].
33 R v Gillard DC Palmerston North CRI-2018-054-002611, 27 November 2019 at [6].
34 R v Clarke CA 225/98, 3 September 1998 at 8; cited in Shailer v R, above n 32, at [50].
Other mitigating factors
[35] Mr Drummond’s final submission criticises Judge Krebs’ grouping together of the “matters referred to in the psychological report”, remorse, participation in the restorative justice conference and the offer to pay reparations when allocating a net discount of four months (or 14 per cent).35 The submission encompasses two points:
(a)First, that Judge Krebs failed to give credit to Mr Gillard for attending the police station of his own volition and confessing his actions – in a position where the offending would likely have gone unsolved otherwise.36 Mr Drummond characterises cooperation as generally a significant factor warranting a reduction in sentence.37 He says Mr Gillard effectively turning himself in for an unsolved crime is at the higher end and warranted specific credit.38
(b)Second, that the Judge failed to give sufficient discount for the balance of the four other mitigating factors when grouping them together. He submits the following would have been appropriate:
(i)A 15 per cent reduction for mental health issues as personally mitigating.39
(ii)A distinct reduction for reparation. In Mohi reparations resulted in a discount of 20 per cent (six months).40 The reparations at this stage have only been promised and ordered by the District Court, and payments will have to be arranged to occur over time following Mr Gillard’s release from prison. Counsel submits that a reduction of less than 20 per cent is appropriate – whereas
35 R v Gillard, above n 2, at [9].
36 Counsel points to the fact that Mr Gillard’s interview was on 17 September 2018, more than four months after the offending on 4 April 2018 – suggesting the Police case was stalled.
37 Pointing to comments in Senior v Police (2000) 18 CRNZ 340 (HC) in the context of burglaries; and R v Stark CA104/06, 31 July 2006 at 10; citing R v Accused (1993) 10 CRNZ 397 (CA).
38 At the hearing counsel directed me to Bennett v New Zealand Police [2012] NZHC 2726.
39 In E (CA689 2010) v R, above n 32, at [71] the Court assessed previous discounts at the second stage (pertaining to the offender rather than the offending) for mental illness as ranging between 12 and 30 per cent.
40 R v Mohi, above n 13, at [17].
Judge Krebs did not clearly factor the reparations order into the discount he awarded.
(iii)Counsel acknowledges that there is some overlap between remorse and attending restorative justice and submits that an allowance at the upper end of the range – between five and eight per cent – is appropriate.
[36] Regarding Mr Gillard’s cooperation with police, the Crown submits that while commendable, his confession was effectively accounted for by Judge Krebs giving the full 25 per cent discount for an early guilty plea.
[37] Regarding the grouping of discounts Mr Mara says Mr Drummond’s proposed 15 per cent discount for mental health and physical issues is simply too large for a case without a demonstrated causal link between those issues and the offending or that imprisonment will be disproportionately severe as a result of the mental health issues suffered. He accepts that the discount for remorse in this case was appropriate as were the discounts for restorative justice and reparations – but says that those were expressly accounted for in the judgment and the final net discount.
Jurisdiction to substitute fines for imprisonment
[38] Mr Mara for the Crown submits that there was no jurisdiction for imprisonment to be imposed in substitution for fines – which is only possible using the procedure set out in the Summary Proceedings Act.41 He notes that the Court of Appeal has repeatedly quashed such terms of imprisonment on the grounds that without complying with the statutory procedure the Court has no jurisdiction to impose a term of imprisonment.42 Mr Mara submits that the two weeks imposed on this basis must therefore be quashed, having been imposed without jurisdiction. Given the Court’s reasoning for the cancellation of the fines was to enable Mr Gillard to pay reparations to the victims, the Crown does not seek to have the fines reinstated.
41 That procedure is set out in ss 88 and 88AE and imprisonment may only be imposed in accordance with s 106E, which was not the case here.
42 See R v King CA23/01, 21 June 2001 and R v Gebbie CA452/04, 2 March 2005.
Discussion
[39] My focus is on whether there was an error in the District Court Judge’s approach and, if so, whether a different sentence is appropriate.
[40] At the outset of that analysis I bear in mind the purposes and principles of sentencing as set out in ss 7 and 8 of the Sentencing Act. In terms of key purposes, I consider the need to hold Mr Gillard accountable for the harm done to the victim, to denounce his conduct and deter others from committing similar offences and to assist in his rehabilitation and reintegration into the community are the primary concerns. In terms of principles, I bear in mind the need to take into account the gravity of the offending and the seriousness of the type of offence, the desirability of consistency with other cases and the need to impose the least restrictive outcome that is appropriate in the circumstances. I also have regard to Mr Gillard’s particular circumstances and background.
Starting point
[41] As Judge Krebs noted, there is no tariff judgment for arson.43 The Judge considered the offending less serious than R v Mohi (which had a starting point of 30 months) such that a starting point of 28 months’ imprisonment was appropriate.44 In my view the offending in this case was a meaningful degree less serious than that in Mohi. They share common elements of premeditation and retribution but differ in scale – in that Mr Gillard intended for one rather than a number of vehicles to be damaged. There appears to have been far greater potential for a dangerous spread of the fire in Mohi, although I note that all arsons are inherently risky. While Mr Gillard arrived at the scene with associates it is not clear if or how they were involved, such that I do not consider their involvement notably aggravating.
[42] Similarly, I consider the offending in Wonnacott (where the starting point was 28 months) clearly more serious, in that the fire spread to the house itself, thereby significantly increasing the risk to life. I have also considered the procuring of arson in Waswo v R, in which two individuals (who were also complainants in sexual
43 See Howarth v R [2010] NZCA 253 at [48]; citing R v Gilchrist CA429/90, 15 April 1991.
44 R v Gillard, above n 2, at [8].
offending charges against Mr Waswo) set fire to a person’s car at the instigation of Mr Waswo, believing the car belonged to someone with whom Mr Waswo was in a dispute.45 The Judge considered the aggravating factors were Mr Waswo’s hostile animus against the complainant, that he was sufficiently dominant over the two victims to prevail on them to commit arson on his behalf, the extent of loss to the car’s actual (innocent) owner and the potential for harm to people in residence nearby or called to deal with the fire.46 He said the arson offending on its own might attract a sentence of two to two and a half years’ imprisonment.47 While not the focus of dispute on appeal, this was not challenged.48
[43] In my view, compared to these cases, the offending here viewed in isolation appropriately warranted a starting point closer to 26 months. That would constitute roughly a 13 per cent reduction of the starting point in Mohi, recognising that difference while also giving credit to the inherent seriousness of the offending. On that analysis, while the starting point set in the District Court was within the range, in my view it was slightly higher than necessary.
Mental health
[44] As distinct from Judge Krebs’ approach, Mr Drummond submits that I should consider Mr Gillard’s mental health as going towards his culpability in terms of the severity of the offending itself.
[45] It is well established that mental health disorders short of a defence of insanity may affect the starting point set for offending where they render the offending less culpable, as well as potentially being a mitigating circumstance relevant to the offender themselves.49 The Court in Shailer stressed that a disorder diminishing willed choice may appropriately diminish the extent of the sentencing response, but that there must be evidence of its causative impact on the level of culpability.50
45 R v Waswo DC New Plymmouth CRI-2010-043-3715, 13 December 2011.
46 At [27].
47 At [26]–[27], making reference to R v Mohi, above n 13.
48 Waswo v R [2012] NZCA 461 at [37]–[38].
49 Shailer v R, above n 32, at [45].
50 At [50]; citing Nelson v R [2014] NZCA 121 at [22].
[46] In practice this assessment is highly complex. Mental health concerns often exist in a patchwork of other factors. I am guided by Whata J’s discussion of factors warranting discounts in Solicitor-General v Heta.51 His Honour considered there was not a clear “range” of discounts for ‘deprivation (including childhood trauma)’ per se,52 elaborating:53
Rather, personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues.54 “Deprivation” is in many cases difficult to separate from these other factors because it is associated with and explanatory of them. What is tolerably clear, is that larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender.55 Mercy is another apparent reason.56 The countervailing sentencing factors, where applicable, then curb the extent of any discount.
[47] There is not in this case direct evidence that Mr Gillard’s mental health issues contributed to the offending now at issue. That is partly due to the nature of the provided psychological reports, which are directed towards Mr Gillard’s ability to stand trial rather than exploring the genesis of his offending. Nonetheless, reading those reports I do consider there is at least an implicit, partial causal link between mental health factors and the present offending. Judge Lynch, in his judgment of 27 November 2019, made a similar link unequivocally.57 He described the current offending as an “illustration” of Mr Gillard’s use of threats of self-harm and illicit substances to manage his emotions, rendering him vulnerable to poor decision-
51 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
52 At [62].
53 At [63].
54 See for example Waipouri v R [2015] NZHC 2029 where a combined discount of 12 per cent was given to account for childhood trauma and related post-traumatic stress disorder; R v Jenkins [2013] NZHC 95, where a 17 per cent discount was given to recognise Ms Jenkins’ troubled background, psychiatric issues (even though they were not causative of the offending), and remorse.
55 E(CA689/10) v R, [above n 32], surveyed previous cases and noted discounts in the range of 12 to 30 per cent were warranted where an offender had a mental illness which contributed to the offending; Churchward v R [2011] NZCA 531 at [77] similarly found neurological differences between young people and adults could warrant a discount because they can lead to a reduction in culpability of young people as compared to adults; in R v Whiu [2007] NZCA 591 at [32], the Court of Appeal considered it “is not necessary for there to be a formal diagnosis of battered women’s syndrome before prolonged abuse suffered by a woman at the hands of a partner or family member can be taken into account on sentencing. The critical point is that, whatever label is used, there must be evidence which supports the view that prolonged abuse suffered by an offender materially contributed to her offending” (emphasis added).
56 Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson Reuters) at [SA8.10]. Jarden v R [[2008] NZSC 69, [2008] 3 NZLR 612] at [14].
57 R v Gillard, above n 33, at [6].
making. The PAC report also suggests mental health was a factor. Mr Gillard’s mental health therefore appears to have played a role in informing how he makes decisions under pressure, presumably including the decision to commit this offence. However, I consider Whata J’s comments about “a multiplicity of overlapping factors” apply here, such that it would be artificial to isolate Mr Gillard’s mental health from other factors at the starting point stage rather than assessing it in the context of factors personal to him.
Personal factors
[48] Judge Krebs granted a discount of four months (roughly 14 per cent) collectively for “matters referred to in the psychological report”, alongside remorse, participation in the restorative justice conference and Mr Gillard’s willingness to pay reparation.58 Mr Drummond submits that this global approach resulted in inadequate discounts being awarded.
[49] First, I consider the discount that might attach to “matters referred to in the psychological report”. I agree with Mr Drummond that these factors might well have warranted a more substantial discount than appears to have been reflected in Judge Krebs’ analysis.
[50] Justice Whata in Heta surveyed available discounts (in that case, involving a woman who stabbed her partner in the chest, causing hospitalisation, due to her belief he was having an affair), assessing the discount awarded in that case, in light of a s 27 report:59
[65] While generous, the combined discount of 40 per cent for personal mitigating factors does not require correction given these facts. First, a discount for personal trauma of 5–10 per cent was available on existing authority.60 Second, a combined discount for the positive engagement in a restorative justice process, and for her remorse, of up to 20 per cent would not
58 R v Gillard, above n 2, at [9].
59 Solicitor-General v Heta, above n 51.
60 Paul v New Zealand Police [2015] NZHC 2583]. See also R v Tiatoa HC Auckland CRI-2009- 055-1007, 11 October 2010. In this case Venning J adopted a start point of 3 years on a charge of failing to provide the necessities of life and applied a 6-month discount (17 per cent) for one of the defendants, Ms Leathers, for age (21) and her very unfortunate background. R v Knoll HC Hamilton CRI-2008-019-3966, 26 February 2009. In Knoll Andrews J adopted a starting point of 5 years on a charge of attempted murder and applied a discount of 24 months to account for age (19), parental role and traumatic background.
have been out of range.61 Third, a discount to acknowledge Ms Heta’s capacity to rehabilitate of 5-10 per cent would not have been inappropriate.62 Fourth, while the s 27 report does not overtly draw linkages between systemic Māori deprivation, the offender and the offending, its presence in Ms Heta’s life can be reasonably inferred. In any event, Judge Moala was aware of other reports produced by Ms Quince which refer to the effects of colonisation on Māori communities, and the Solicitor-General accepts that it was appropriate for the Judge to take this factor into account. It provides further justification for a cumulative discount at the higher end of the available range to better reflect Ms Heta’s diminished relative culpability.63
[66] I accept that the scale of the discount in case involving very serious violent offending of the present kind would usually be reduced by the countervailing factors mentioned in Keil.64 But critically in this case recognition of deprivation and personal trauma does not involve condoning the offending. Rather it helps to explain it. Further, the positive outcome of restorative justice process, the views of the victim and the now low-risk of reoffending presented by Ms Heta, address remaining concerns about accountability, deterrence, denunciation and protection of the public.
[51] On my reading of the reports before the Court, at the time of the offending Mr Gillard was, at least, suffering from PTSD. This PTSD appears to have arisen in the context of a difficult childhood, featuring hallmarks of what Whata J termed “deprivation” as well as specific, traumatic instances of abuse. References in those reports to suicidal thoughts and behaviour and depression, as well as Mr Riki’s assessment of Mr Gillard as having presented in a “acutely psychotic and dysphoric state”, all suggest that Mr Gillard’s mental health issues are comparatively wide- reaching. As set out above, I believe these issues and Mr Gillard’s difficult background likely played some role in the genesis of his offending. There is no discussion in the reports on whether those conditions make the carceral environment more punitive than it would otherwise be.
[52] In addition to mental health issues, I accept (as did Judge Krebs) that there was some measure of genuine remorse in this case, and positive engagement with a
61 R v A [2018] NZHC 2024 at [46]; R v Martin [2017] NZHC 1517. See also R v Maposua CA 131/04, 3 September 2004 at [11]–[12] where the Court of Appeal upheld a 50 per cent discount for restorative justice in the form of the traditional Samoan practice of ifoga.
62 Solicitor-General v SC [[2017] NZHC 2252] at [53]; Mallett v R [2014] NZCA 39 at [6], [11]. Hansch v Police [2014] NZHC 2438, where Mr Hansch’s willingness to engage in rehabilitation favoured a community based sentence over imprisonment.
63 “Robust evidence of intergenerational systemic deprivation that is causally connected to the offending might provide a basis for a distinct discount or differential sentencing response. As the s 27 report did not explicitly identify this factor I say no more about this. Moreover, the scale of discount this factor might attract is properly a matter for Senior Appellate Court assessment.”
64 Referring to Keil v R [2017] NZCA 563 at [58], in which the Court of Appeal considered that the seriousness of offending could limit the impact of mitigating factors in certain cases.
rehabilitative process. While the PAC report is mixed on the issue of Mr Gillard’s remorse, the rehabilitative justice report speaks more highly of him, and the Crown has accepted that remorse was properly factored into Judge Krebs’ decision.
[53] Mr Drummond also submitted, by reference to the 20 per cent reduction in Mohi, that greater credit should be given for the offer of reparations. Although Judge Krebs was aware of this factor, and I accept that the discount in this case may be smaller than in Mohi, given no actual payment can be made until after Mr Gillard resumes earning money, this warranted a further increase to the discount.
[54] I consider that Mr Gillard’s mental health, his remorse, his participation in the restorative justice process and the promised reparations, considered together warrant a significant discount. Judge Krebs’ assessment was that a 15 per cent discount was appropriate. I would be inclined to award as much as 20 per cent.
[55] Then there is the issue of Mr Gillard proactively going to the Police. This was not mentioned in Judge Krebs’ discussion of aggravating and mitigating features. It is not clear his attention was drawn to it as a relevant factor.
[56] At the hearing counsel for Mr Gillard directed me to the decision of Katz J in Bennett v New Zealand Police.65 That case dealt with an offender who robbed a dairy using an imitation pistol and later robbed a tavern using a large carving knife. When interviewed by Police regarding the tavern robbery Mr Bennett also made an unsolicited confession regarding the dairy robbery, without which it would likely not have been solved or prosecuted. After surveying authorities,66 her Honour considered
65 Bennett v New Zealand Police, above n 38.
66 The first was R v Luatua HC Auckland, CRI-2008-044-09035, 4 February 2011. In that case Winkelmann J (as she then was) gave a discount of “approximately 20 per cent” to reflect assistance given to Police by a “follower” rather than the “ringleader” of violent offending for financial gain. That included testifying against multiple co-offenders. That discount was applied in addition to a 10 per cent discount to reflect previous good character and genuine remorse as well as a further 20 per cent for relatively early guilty plea.
The second was Singh v Police HC Gisborne CRI-2010-416-9, 4 February 2011. The appellant in that case pleaded guilty to two charges of aggravated robbery, relating to staged robberies he conducted with an associate of a restaurant owned by the appellant’s family. He made significant reparation which was accepted, participated in restorative justice and was genuinely and exceptionally remorseful. However he was not given a discount for subsequent assistance to Police – which was simply providing a statement that was not positively helpful in investigating the involvement of a party who had pleaded not guilty.
a discount would have been warranted, though limited by the fact that it affected only one of two charges before the Court and assisted the police regarding only one offender (as distinct from a member of a drug ring cooperating in the prosecution of others).67 Justice Katz considered “a small discount” of two to three months, or roughly 10–17 per cent of the 18 additional months’ imprisonment he was facing as a result of the confession, would have been appropriate (though given that offending could separately have resulted in a four year starting point on its own the relative percentage value is of somewhat limited guidance).68
[57] Mr Mara for the Crown submits that Bennett is distinguishable on the basis that Mr Bennett was charged with one crime and assisted in resolving another, whereas this case did not involve resolving a second crime. I do not accept this distinction as meaningful. What is significant in Bennett is the underlying policy, which is that it is desirable for offenders to report their own offending.
[58] Also of assistance is the recent decision of Mander J in R v Gay.69 That case dealt with an offender with a long history of serious sexual offending. However, the charges being sentenced would not have arisen but for his proactively going to Police in order to disclose past offending which had not previously come to their attention (and which the Crown conceded would have otherwise remained undetected), following which he pleaded guilty to those charges.70 Notably, Mr Gay was deemed not to show remorse, guilt or particular insight into his offending.71 Instead his self- reporting was on the basis that he wanted to “get it off [his] chest and start with a clean slate”.72 This required “a substantial discount”, of 25 per cent in addition to a full 25 per cent discount for the guilty plea.73
[59] That case also pointed to two earlier decisions, both of which predate the courts’ current approach to guilty pleas as set out in Hessell v R but nonetheless offer
67 At [34]–[35].
68 At [36]. However, the Judge ultimately did not grant such a discount on the basis that the end sentence was within the appropriate range, and not manifestly excessive.
69 R v Gay [2017] NZHC 3149.
70 At [24].
71 At [25].
72 At [26].
73 At [24] and [26]–[27].
some insight.74 In R v Sanday the Court of Appeal emphasised the importance of granting a discount where offending is self-referred:75
[15] The nub of the appeal is what allowance should be given in respect of an offence which is totally self referred and in which every allowance for remorse, cooperation and factors associated with a plea of guilty must be available. In the unique circumstances we are satisfied this would justify a very substantial deduction which must be at least a third to recognise the powerful factors supporting a discount.
[60] In D v Police this Court considered the policy of giving substantial reductions to encourage and give credit for offenders providing assistance to the authorities in detecting, prosecuting and convicting other offenders equally applied to rape offenders who report their own offending and thus assist in achieving the goals of dealing with past offending, helping the victims of that offending and preventing future offending.76 The Court said:
[23] In this case where in addition to the factor of self referral of offending which would otherwise not have been detected, there were the factors of a very positive outcome from a restorative justice group conference and the help that gave to the victims in healing the hurt which the offending had caused them, particularly by helping the family difficulties to be healed for the benefit of all.
[24] I consider that the Judge should have given a very substantial discount of at least half after the guilty plea discount to recognise those additional important factors…
[61] I accept that the policy factors emphasised in D bite more keenly in the context of acknowledging and addressing historic sexual offending than destruction of property, even personally treasured property. Nonetheless, they are underpinned by the same considerations. Here, the property destroyed was personally valuable. The confession led to a productive restorative justice conference and a promise of reparations.77
74 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607. Particularly, the Court’s statement that a guilty plea should not exceed 25 per cent, with remorse and other factors dealt with separately at [75]. The Court of Appeal decision in the same case suggested that substantial assistance (likely including testifying against others) and an early guilty plea could together warrant a discount of up to 60 per cent: R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [23].
75 R v Sanday CA146/99, 29 July 1999. I note the specific discount in that case is somewhat difficult to track – as the Court was not fully clear as to what starting point would have been appropriate and how the appellant’s guilty plea was factored into the analysis.
76 D v Police (2000) 17 CRNZ 454 (HC) at [19]–[20].
77 I am mindful not to double count these factors, which attract separate discounts.
[62] The appellant’s submission is that the offending would likely have gone un- prosecuted but for Mr Gillard’s proactive confession, which the Crown has not challenged. While that confession came after only four months, nothing suggests Mr Gillard self referred simply to get ahead of inevitably being caught. I also consider offenders proactively confessing recent offending should be incentivised in the same was as confessions of historic offending. Finally, I note that confessions of this sort have additional policy benefits beyond early guilty pleas, in that they bring offences to justice which would not otherwise be prosecuted (as well as bypassing the costs of trial). Accordingly, I do not consider it appropriate to treat the full guilty plea discount as sufficient to recognise Mr Gillard’s going to the Police of his own volition. He would be entitled to that discount even if he had not turned himself in.
[63] I have already given Mr Gillard credit for his remorse, participation in the restorative justice conference and the promised reparations. I consider that, on top of this, the specific factor of his self referral in this case assisted in the administration of justice and restoring the damage done. It warrants a further discount from the starting point, in the region of 20 per cent. Together with the 20 per cent for mental health, remorse, participating in restorative justice and the agreed upon reparations, that would bring his sentence down to 15 months and three weeks’ imprisonment.
[64] Finally, Mr Gillard was correctly given a full 25 per cent discount for pleading guilty at the first opportunity. That would reduce his sentence to 11 months and three weeks’ imprisonment. That is a difference of more than six months from the sentence imposed in the District Court. In the context of a short sentence, I consider that sufficient to render the sentence imposed manifestly excessive, such that the appeal must succeed and a different sentence should be imposed.
[65] I turn to the two weeks’ imprisonment substituted for Mr Gillard’s remitted outstanding fines. I agree that there was no jurisdiction for the imposition of that period of imprisonment. It must be quashed. The Crown has asked me not to reimpose the fines in place of the additional imprisonment, to facilitate the making of the reparation payments. I accept that this is appropriate in these particular circumstances.
Result
[66] The appeal succeeds. Mr Gillard’s sentence is quashed, and in its place I sentence him to eleven months and one week of imprisonment.
[67] You will be subject to the standard release conditions and special release conditions as imposed by Judge Krebs on 1 April 2020.
Home detention
[68] I do not consider Mr Gillard’s offending or personal characteristics of sufficient concern to make a custodial sentence essential. Indeed I think a non- custodial sentence would be the best outcome for Mr Gillard and for society. He is within the range for home or community detention. It is possible there is not an address to make home detention possible, but in the event that there is one, I consider he would likely be a good candidate. I grant him leave under s 80I of the Sentencing Act to apply for his sentence to be substituted for one of home detention.
Gwyn J
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