Gould v R
[2012] NZCA 284
•29 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA112/2012 [2012] NZCA 284 |
| BETWEEN CHARLOTTE ROSE GOULD |
| AND THE QUEEN |
| Hearing: 21 June 2012 |
| Court: Glazebrook, Fogarty and Allan JJ |
| Counsel: P J Butler for Appellant |
| Judgment: 29 June 2012 at 10.00 am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe sentence of four years three months’ imprisonment is quashed. We substitute a sentence of three years four months’ imprisonment.
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
The appellant, Ms Gould, pleaded guilty to two counts, one of aggravated burglary and the other of wounding with intent to cause grievous bodily harm. She was charged as a party. She appeals her sentence of four years three months’ imprisonment.[1]
[1] R v Gould DC Timaru CRI-2011-076-1406, 9 February 2012.
The victim of the assaults was a 72 year old male living in Mt Somers. He had a long-running dispute with his neighbour over excessive noise, and loud music. His neighbour was the father of the other two co-defendants, Shilo King and Andrew Roberts. Ms King drove Mr Roberts and Ms Gould to the victim’s address. While Ms King waited in her vehicle and acted as a get-away driver, Ms Gould and Mr Roberts entered the address. Ms Gould was armed with a car jack and disguised with a stocking over her head. She waited in the backyard of the victim’s home. Mr Roberts, similarly disguised, and armed with a baseball bat, went inside and attacked the victim, throwing him to the ground and hitting him about the body, including his shoulders, thighs and legs. The victim sustained a broken right leg, a broken nose and bruising to his body.
The three sentences
All three offenders were sentenced by Judge Maze. Mr Roberts received an end sentence of three years seven months: eight months less than Ms Gould. Ms King was sentenced to eight months’ home detention.
The principal offender was clearly Mr Roberts. The Judge took a starting point of eight years, being at the upper end of band two of R v Taueki.[2] It was premeditated violence, sufficient to support an inference of intent to cause grievous bodily harm. The offending also involved unlawful entry into the victim’s home, a vulnerable victim (because of the age disparity) and retributive action.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
Mr Roberts then benefited from a one-third discount (two years eight months) for his previous good character and personal circumstances, a further discount of ten per cent (six months) for his remorse, and a full 25 per cent discount (15 months) for his guilty plea.
The Judge took a four year starting point for Ms King. She also benefited from a one-third discount (16 months) for her previous good character and personal circumstances. Judge Maze credited her with a further discount of eight months for her remorse, reparation ($5,000) and time spent on electronic bail. For her guilty plea a discount of 20 per cent (five months) was applied. The resulting sentence of one year seven months’ imprisonment was replaced with a term of eight months’ home detention.
In the case of Ms Gould, the Judge adopted a starting point of five and a half years. She uplifted this by six months to reflect Ms Gould’s previous conviction in 2007 for assault with intent to injure. There the facts were similar. Ms Gould had gone to the victim’s address with others and she and another had attacked the victim, punching, biting and kicking her. She accepted she had punched the victim in the head at least four times, and bit her finger. She did not accept that she had kicked the victim. The Judge considered that because of the similarity of the previous offending some uplift was warranted.
At a sentence indication hearing, Judge Maze had indicated a likely discount of six months for a reparation payment in the sum of $3,000. At the time of sentencing, Ms Gould was only able to offer $800 as reparation. The Judge therefore adjusted the discount[3] to reflect the fact that Ms Gould was not in a position to make good the offer of amends. The Judge allowed a 25 per cent discount (18 months) to take account of Ms Gould’s guilty plea. Ms Gould was sentenced to concurrent terms of four years and three months’ imprisonment.
The disparity issue
[3] See the calculations at [29] below.
Ms Gould contends the sentence is manifestly excessive and wrong in principle because of its disparity with both Mr Roberts’ and Ms King’s sentences.
The Crown submits that the apparent disparity with the sentences imposed on her co-offenders was not unfair to Ms Gould. There were clear grounds to distinguish between Ms Gould and Mr Roberts and Ms King on the basis that the latter two had no previous convictions. The disparity does not, in the Crown’s submission, establish that Ms Gould’s sentence was manifestly excessive. The Judge did not err in adopting a starting point of five and a half years and the end sentence imposed for Ms Gould’s admitted offending was within range.
The leading authority is the Court of Appeal decision in R v Lawson.[4]
[4] R v Lawson [1982] 2 NZLR 219 (CA).
At page 223, McMullin J for the Court said:
The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate. But the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice.
In this case the disparity arises because of the extraordinary discounts from the starting point of eight years for the offending of Mr Roberts. The starting point was reduced by more than 50 per cent. But for the extraordinary discount of one-third for Mr Roberts’ good character (apparently leaving aside participation in this serious assault) and the ten per cent discount for remorse, his sentence would have been six years nine months (assuming the discount for the guilty plea remained at 15 months).
While Judge Maze was entitled to include a six month uplift on the starting point taken for Ms Gould’s previous offending, the uplift could have been a lesser amount.
Keeping these factors in mind, we think that the natural concern as to disparity between a principal offender, who broke the victim’s leg and badly bruised other parts of his body, serving less time than a secondary offender, who was standing guard outside, raises a justifiable sense of injustice so that “right-thinking members of the public are likely to say ‘there is something wrong here’”.[5]
[5] R v Lawson at 223, citing R v Potter [1977] Crim LR 112 (CA).
R v Lawson continues to be cited and followed by this Court. In McNeilly v R[6] the appellant had pleaded guilty to two counts of threatening to kill, two counts of using a firearm in the commission of an offence and one count of intentional damage. He also pleaded guilty to several summarily laid matters. He was sentenced to four years’ imprisonment.
[6] McNeilly v R [2011] NZCA 481.
All the charges arose following the break up of the appellant’s relationship with the female victim. Her new partner (the male victim) made derogatory statements about the appellant, suggesting he was a sex offender. That triggered a series of criminal acts, starting with the appellant sending the female victim four text messages threatening to blow her new partner’s head off. Shortly after that, the appellant, with an associate, Mr Cunningham, drove to the male victim’s work premises, where the female victim also was. The appellant waved a firearm around while yelling abuse at the female victim, as Mr Cunningham yelled out encouragement. Both the appellant and Mr Cunningham participated in a subsequent incident on the same day. Mr Cunningham made threats at a social gathering where the male victim was. He fired a shotgun outside the premises.
Mr Cunningham was separately charged and sentenced by Judge Maze. For his part in the incident Mr Cunningham received a sentencing indication with a starting point of two and a half years for the overall offending.
The appellant’s argument in McNeilly v R was that a starting point for him of four years created an unjustified disparity with his co-offender, Mr Cunningham.
This Court agreed that a difference of 18 months between the starting points of the two offenders was excessive. It considered that a difference of 12 months between the two starting points was more appropriate. Accordingly, this Court reduced the starting point for the appellant to three years six months.
In another case, Smith v R,[7] the appellant and her co-accused, Mr Jones, entered guilty pleas to charges of manufacturing methamphetamine, conspiracy to manufacture, possession of equipment capable of being used to manufacture, and possession of precursor substances. The appellant was sentenced to three years nine months’ imprisonment and Mr Jones to five months’ community detention and 300 hours’ community work plus six months’ supervision. The appellant appealed on the grounds of an unjustified disparity.
[7] Smith v R [2012] NZCA 224.
The sentencing Judge adopted the same starting point for both the appellant and Mr Jones, of four years. For Mr Jones he deducted 33 per cent for what he considered to be his guilty plea at the earliest opportunity. Further deductions were made to take into account the fact that Mr Jones had been on stringent terms of bail restricting his conduct and travel for two years without breach, together with what the Judge considered to be special efforts made by Mr Jones towards rehabilitation. This ultimately reduced his sentence to one year 11 months, enabling the Judge to consider that a community-based sentence was appropriate. Rather than impose home detention, which he said would interfere with Mr Jones’ employment, he imposed five months’ community detention together with 300 hours’ community work, noting that this was a very lenient sentence.
The Judge, however, took a rather different view of the appellant. He increased the starting point of four years by six months for neglect of her child (another offence to which she had pleaded guilty).
This Court applied R v Lawson and was satisfied that a reasonably minded independent observer would think something had gone wrong with the administration of justice. This was a case, as here, where the Court thought that the Judge had exaggerated the differences between the offenders.
In Smith v R this Court was of the view that the appellant had made efforts towards her rehabilitation. She had tried to remain drug free. She had attended counselling and other interventions. She had received praise from the relevant organisations for her efforts. She also had a spinal deformity which would cause some difficulty in prison.
Further, the Court thought that her co-offender’s sentence was unjustifiably light. For these reasons the Court intervened, reducing the appellant’s sentence by ten months.
Following these authorities, we think that this is a case where Mr Roberts’ sentence was unjustifiably light. This is for the reasons we have already indicated.
In the case of Ms Gould it is significant that she made real efforts to try to accumulate funds in order to make reparation. At the time of sentencing, she made an offer to make amends in the sum of $800. The Judge said that she could:[8]
… accept it is a matter for disappointment on your part that you are only able to offer $800 and I note that you have prioritised other creditors but it is plain that the six month period that I allowed for (for making amends and extraordinary remorse) now needs to be adjusted to reflect the fact that you are not in a position to make good the offer of amends. I can accept that you have expressed very deep remorse. I can also accept that you are distressed at the prospect of what now lies ahead, but I accept that you are distressed at your own actions and the harm that you have caused to the victim.
[8]At [3].
In the sentencing indication the logic had been: a five and a half year starting point, plus a six month uplift for the previous conviction – six years; reduced by six months in the event of payment of $3,000 by the time of sentencing – five and half years; less a 25 per cent discount; to a rounded sentence of four years. At sentencing, because Ms Gould was not able to assemble $3,000, the Judge increased the indication by three months to arrive at an end sentence of four years three months. Judge Maze did not cross-check this for parity.
We think there is a disparity in the way in which the Judge allowed very little recognition for remorse on the part of Ms Gould in contrast to her recognition of that for Mr Roberts. This was because the Judge had inextricably linked the discounting factor of Ms Gould’s remorse with her offer to make amends. The offer to make amends is an indication of the true presence of remorse, but it is also a separate discounting factor.
It is not uncommon for persons to make genuine offers to make amends which they are not able to carry out due to their financial circumstances. It does not follow that they no longer have “very deep remorse”. One needs to keep in mind that Mr Roberts received a discount of six months for his remorse. Mr Roberts made no offer of amends.
We are of the view that the sentence for Ms Gould needs to be adjusted. We take the starting point at five years, increase it to five years three months for the previous conviction in 2007, and reduce that by six months for remorse and a further three months for accumulating the $800 by way of reparation. This reaches four years six months. We then allow the 25 per cent discount for the plea of guilty, rounded to 14 months, leaving an end sentence of three years four months.
This compares with the end sentence of Mr Roberts of three years seven months.
There is not a great deal of difference between those two sentences, but this Court is unable to increase the sentence of Mr Roberts. We are of the view, however, that we have reduced the disparity to the point where it is consistent with the other principle regularly recognised in this Court and mentioned in R v Lawson:[9]
Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each.
Result
[9] R v Lawson at 223.
The appeal against sentence is allowed and the end sentence on each charge is reduced to three years four months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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