Gourley v The Queen - [2014] NZCA 529

IN THE COURT OF APPEAL OF NEW ZEALAND

CA310/2014
[2014] NZCA 529

BETWEEN	SUSAN MICHEL GOURLEY Appellant
AND	THE QUEEN Respondent

Hearing:	13 October 2014
Court:	Harrison, Asher and Lang JJ
Counsel:	P K Hamlin for Appellant J E Mildenhall for Respondent
Judgment:	31 October 2014 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Background

The appellant Ms Gourley pleaded guilty and was convicted and sentenced in the Dunedin District Court to 11 months’ home detention for injuring with intent to injure.[1] She appeals against that sentence.
[1]R v Gourley DC Dunedin CRI-2012-012-3584, 11 April 2014.
Ms Gourley and the victim, her former partner, were at home together drinking wine and watching television. An argument developed during which the victim struck Ms Gourley in the face knocking off her glasses. Ms Gourley went to the kitchen and took hold of a stainless steel kitchen knife of approximately 20 centimetres in length. She then attacked the victim, chasing her around the house. She caught her, grabbed her by the hair and began to stab her. She moved the knife in a downwards motion at the victim who raised her arms to block the blows. The victim received lacerations and puncture marks to her arm.
The victim managed to get into the toilet and lock the door. She then tried to climb out the window to escape. Ms Gourley went outside and tried to stab the victim, forcing her back in through the window. During the assault Ms Gourley stated frequently that she was going to kill the victim. When the victim was in the toilet Ms Gourley said she would not get out of the toilet alive. Ms Gourley stabbed at the toilet door leaving scratches and puncture marks in the wood.
The police were notified after neighbours heard the victim screaming. As a result of the attack the victim received a four centimetre cut to her forearm which required butterfly clips, and four small puncture marks to the upper arm and forearm which were also bruised. She had bruising and soreness to the scalp from her hair being pulled.
Judge Crosbie provided a sentence indication on 28 January 2014.[2] He indicated that the Crown conceded an “end point” of no more than two years’ imprisonment (including a discount of 15 per cent).[3] The Judge stated that he would be prepared to consider a sentence of home detention providing the probation report indicated full acceptance by Ms Gourley of what occurred, some commitment to ongoing treatment and counseling, and providing there was acceptance by Ms Gourley that she should not have contact with the victim unless it was arranged through the Community Probation Service.
[2]R v Gourley DC Dunedin CRI-2012-012-3584, 28 January 2014 [Sentencing Indication].
[3]At [15].
Judge Crosbie sentenced Ms Gourley on 11 April 2014. Although the probation report had not been favourable to Ms Gourley, there had been a subsequent psychological report and other statements…

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 Gourley v The Queen

Details

AGLC: Gourley v The Queen [2014] NZCA 529
Case: [2014] NZCA 529
Decision Date: 31 October 2014 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Susan Michel Gourley appealed against her sentence for injuring with intent to injure, which was imposed by the Dunedin District Court. The appellant, Ms Gourley, was sentenced to 11 months’ home detention. She argued that the sentence was manifestly excessive, that the judge failed to account for the time she spent in custody, and that she should have been given credit for the period she was on bail. The central legal issues were whether the sentence was manifestly excessive, whether the time spent in custody should have been taken into account, and whether bail time should have been considered in the sentencing. The court found that the sentence was appropriate given the appellant's commendable efforts towards rehabilitation and the time she spent in custody. The court also noted that there is no requirement for judges to take time spent on bail into account when sentencing for home detention, and that any discount allowed should be part of an overall evaluative process. The appeal was dismissed.

Orders