Gould v R - [2012] NZCA 284

IN THE COURT OF APPEAL OF NEW ZEALAND

CA112/2012
[2012] NZCA 284

BETWEEN CHARLOTTE ROSE GOULD
Appellant

AND THE QUEEN
Respondent

Hearing: 21 June 2012

Court: Glazebrook, Fogarty and Allan JJ

Counsel: P J Butler for Appellant
K A L Bicknell for Respondent

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…

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 Gould v R

Details

AGLC: Gould v R [2012] NZCA 284
Case: [2012] NZCA 284
Decision Date: 29 June 2012

CaseChat Overview and Summary

Gould v R is an appeal against sentence in the Court of Appeal of New Zealand. The appellant, Ms Gould, pleaded guilty to two charges, one of aggravated burglary and the other of wounding with intent to cause grievous bodily harm. Ms Gould was charged as a party to the crime, which involved attacking a 72-year-old male living in Mt Somers. The attack was in retaliation for a long-standing dispute over excessive noise and loud music. Ms Gould and her accomplices were armed and disguised during the attack, with Ms Gould waiting outside while her co-defendants entered the victim's home and assaulted him, resulting in serious injuries.

The legal issues in this case revolve around the disparity between the sentences imposed on the co-offenders. Ms Gould argued that her sentence of four years and three months' imprisonment was manifestly excessive and wrong in principle due to its disparity with the sentences of her co-defendants. The Crown argued that the disparity was not unfair, as there were clear grounds to distinguish between Ms Gould and her co-offenders, who had no previous convictions. The Court needed to determine whether the disparity between the sentences was such that it brought the administration of justice into disrepute, and whether the sentence imposed on Ms Gould was manifestly excessive.

The Court of Appeal, in its judgment, found that there was indeed a significant disparity between the sentences of Ms Gould and her co-offenders. The Court considered that the starting point for Ms Gould's sentence was appropriate, but noted that the uplift for her previous conviction could have been lesser. The Court also found that the discounting factor for Ms Gould's remorse was inadequately considered, as it was inextricably linked with her offer to make amends. The Court held that genuine offers to make amends, even if not fulfilled due to financial constraints, do not negate the presence of remorse. The Court of Appeal adjusted Ms Gould's sentence to three years and four months' imprisonment, reducing the disparity between her sentence and that of her co-offenders.

In conclusion, the Court of Appeal allowed the appeal against sentence and reduced Ms Gould's sentence to three years and four months' imprisonment on each charge. The Court found that the original sentence imposed on Ms Gould was manifestly excessive due to its disparity with the sentences of her co-offenders, and that the sentence should be reduced to better align with the principles of sentencing and the administration of justice.

Orders