Hendra v The Queen

[2017] NZHC 1652

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000029 [2017] NZHC 1652

BETWEEN

MELISSA JOY HENDRA

Appellant

AND

THE QUEEN Defendant

Hearing:	17 July 2017
Appearances:	B P Kilkelly for Appellant M J Grills for Respondent
Judgment:	18 July 2017

JUDGMENT OF GENDALL J

Introduction

[1]      On  17  May 2017,  the  appellant  was  sentenced  by Judge  Phillips  in  the District Court at Dunedin to two years and four months imprisonment on charges of injuring with intent to injure, assaulting a police officer, theft and possession of Class B drugs.1  The appellant now appeals her sentence.

Facts

[2]      On 13 August 2016, the appellant went to her mother’s home, with whom she had been living.   Her mother, the victim, had decided that she did not want the appellant to live with her any longer.  She put the appellant’s belongings in the front yard for her to collect. The appellant and Ms Webb, her co-defendant, along with the appellant’s six year old son, arrived at the house.  Ms Webb began moving the gear. However, the appellant went to the front door and pushed past the victim when she

opened it, knocking her to the ground. As the victim was lying on the floor, the

1      R v Hendra [2017] NZDC 10448.

HENDRA v THE QUEEN [2017] NZHC 1652 [18 July 2017]

appellant began to punch her about the head.  The victim then moved to the lounge and tried to call the police but the appellant and Ms Webb prevented her.

[3]      The  appellant  and  Ms  Webb  pinned  the  victim  to  the  sofa  in  a  seating position.  They then began to punch her in the head, pushing her down when she tried to stand up.   The victim managed to get up and at this point Ms Webb discontinued the attack.  The appellant then followed her mother, the victim, to the kitchen where she again knocked her to the ground.  She then pushed the victim to the ground multiple times as she tried to get up.  The appellant then picked up the victim’s puppy and said she was going to break its neck.

[4]      As a result of the attack, the victim sustained grazes to the head and forehead and cuts. She suffers now from dizzy spells, and has also struggled emotionally and is unable to live at the house alone.

[5]      As to the second incident concerned here, on 18 January 2017, the appellant was being held in police custody.  She needed medical attention so was transported to hospital.   A police officer, Constable Kitto, accompanied her.   The appellant attempted to leave her bed so Constable Kitto had to restrain her.   The appellant, while yelling abuse at her, stretched out and deliberately kicked upwards into the constable’s  head.   The  blow was with some  force and the constable suffered a swollen right ear and pain to her head and neck.

District Court decision

[6]      In  his  sentencing  decision,  when  considering  the  attack  on  the  police constable, Judge Phillips noted that the appellant had said the constable deserved the kick and she also made other aggravating remarks. He considered this showed a lack of understanding for matters involving violence.

[7]      The Judge recognised that at the time of the offending, however, the appellant was in the throes of drug addiction and that on remand she had now taken steps to “clean up her act”.  He also noted her limited history of violent offending.

[8]      The aggravating factors present in the offending against her mother were the

attack to the head, the moderately severe violence, the victim’s vulnerability as a

52 year old woman and perhaps her relationship as mother to the defendant, and the presence of two attackers.   Judge Phillips also considered it an aggravating and concerning factor that the appellant’s six year old son was present throughout the offending.

[9]      The Judge considered that the appellant was the primary person responsible for the attack, as supported by comments in the victim impact statement.   In considering the appellant’s offending, he found that it was at the top of band 2 or bottom of band 3 in terms of R v Nuku.2   Therefore he took a starting point of two years and six months. The Judge then added six months for the assault on the police officer.  He had considered that 12 months was appropriate but reduced it for totality.

A further one month was added for the possession of Class B drugs charges.

[10]     Given the different times the guilty pleas were given, it seems there was some difficulty in assessing the appropriate discount.  Judge Phillips settled on 20 percent, slightly higher than what might have been expected given the very late plea for the attack on the appellant’s mother.  The Judge also gave a two month discount for the appellant’s recent steps to address her drug issues.  The resulting sentence was one of two years and four months imprisonment.

Principles on appeal

[11]     Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence

should be imposed.3   It is only appropriate for this court to intervene and substitute

its own views if the sentence being appealed is “manifestly excessive” and not

justified by the relevant sentencing principles.4

2      R v Nuku [2012] NZCA 584.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant’s submissions

[12]     The appellant submits that:

(a)      The starting point adopted for the lead charge of injuring with intent to injure was too high;

(b)The starting point adopted for the charge of assaulting a police officer was too high; and

(c)      The overall sentence was much higher than that imposed on the appellant’s co-defendant, transgressing the principles of consistency in sentencing levels for co-offenders and this led to a manifestly excessive sentence.

[13]     The appellant contends that, despite the appellant and her co-defendant being charged with different offences, Judge Phillips ought not to have distinguished between them to the extent he did.   The appellant says there was nothing to distinguish their roles in the attack and both were equally culpable.

[14]     The appellant points to R v Lawson where the Court of Appeal held that the disparity between co-offenders must not be such as to lead a reasonably minded independent observer to the belief that something has gone wrong with the administration of justice.5   She suggests that an observer would consider something to have gone wrong here, given their respective roles and culpability.  Counsel for the appellant before me mentioned that the Nuku factors were common to both attackers.  Counsel submitted that the starting point should have been in the range of eighteen to twenty-four months.

[15]     The appellant says also that the Judge failed to give credit for her early guilty plea relating to the attack on the police constable.  And, counsel submits too that the

starting point for that offence was too high given that the appellant had only one previous conviction for assault, this occurring in 2008.

Respondent’s submissions

[16]     In  response,  the  respondent  contends  that  the  starting  point  for  the  lead charge was consistent with the guideline authority of R v Nuku.   There were a number of aggravating factors present and this combination justified the placing of the offending at the top of band two or bottom of band three.

[17]     The respondent says too that there was a clear distinction in the involvement of each of the offenders.  In addition there were some aggravating factors that only applied to the appellant, such as a previous conviction for violence and a clear degree of premeditation here.

[18]     The respondent submits that a six month uplift for the offending against the police officer was well within range given that it was without provocation, involved a kick to the head, caused injury and happened while the appellant was on bail.  The respondent says the Judge clearly recognised the early guilty plea on that charge by giving an overall discount of 20 per cent, despite the late plea in relation to the lead offence.

[19]     Therefore, Ms Grills, counsel for the respondent, maintains that the final sentence was appropriate.  She says Judge Phillips did not err here.

Analysis

Injuring with intent to injure

[20]      In R v Nuku, the Court of Appeal in setting out sentencing guidelines for the offence  of  injuring  with  intent  to  injure,  outlined  three  bands  of  offending.6

Judge Phillips here considered the offending was on the border between bands two and three.   Band two is when three or fewer of the aggravating factors listed in

Taueki are present and justifies a starting point of up to three years' imprisonment.7

Band three is when three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious.   For these offences a starting point from two years up to the statutory maximum will apply.

[21]     The Judge correctly identified the aggravating factors of the offending as premeditation, serious violence, attack to the head, vulnerability and age of the victim and the fact that she was the appellant’s mother, number of attackers and the presence of a child.

[22]     In a recent decision of the Court of Appeal, Kauvai v R, the Court upheld a final sentence of two years one month’s imprisonment on charges of injuring with intent to injure.8   In that case, the appellant attacked a victim by punching him in the head, continuing the attack while the victim was lying on the ground.   The Court considered this to be a moderately high level of serious violence, although there was a low level of premeditation.   Serious injury was inflicted. The attack was also considered to be a surprise attack.  These factors justified a starting point adopted in Kauvai of two years and ten months.

[23]     The aggravating factors present in Kauvai are generally similar to those here. Although the appellant there was being sentenced on two charges of injuring with intent to injure, the present case has the further aggravating factors of a vulnerable victim and two attackers for part of the attack.  It was found too that the appellant here, as the leader responsible for the attack on her mother, played the active role.  In my view, Judge Phillips’ decision was appropriate and clearly in line with current authorities to adopt the starting point he did of two years and six months imprisonment.

Assault on a police officer

[24]     Judge Phillips considered overall that  a twelve month starting point  was appropriate for this offence.  However he reduced this to a six month uplift to ensure

the overall sentence was in keeping with the totality of the offending.

7      The aggravating factors are set out in R v Taueki [2005] 3 NZLR 372 (CA) at [31].

8      Kauvai v R [2017] NZCA 241.

[25]     In Scoles-Young v Police, the appellant had head-butted the constable who arrested him.9   He then leant over and sank his teeth into the constable’s thigh, biting with sufficient force to break the flesh. This caused a severe open laceration and the officer had to be hospitalised. A two year starting point was adopted.

[26]     The offending here was less serious than in Scoles-Young given the laceration and hospitalisation in that case.  However, the attack was still serious as it involved an attack to the head and resulted in some distress for the victim.  Therefore a twelve month  starting  point  would  not  have  been  excessive.    A six-month  uplift  was therefore completely appropriate given the totality of the appellant’s offending.

Disparity in sentences

[27]     A further argument raised for the appellant here relates to what was said to be an unreasonable disparity in the sentences of the appellant and Ms Webb.   In my view however, this was justifiable in this case, when their respective roles in the offending are considered.  Judge Phillips found here, with support from the victim impact statement, that the appellant was the primary offender.  The appellant began punching the victim in the hallway and pushed her down to the ground in the kitchen following the joint attack in the lounge.  Furthermore, the appellant had a clear level of premeditation here and it was she who instigated the attack.  Ms Webb only joined in after it had begun. This justified a higher starting point.

[28]    Furthermore Ms Webb was only charged with assault.   The Judge was constrained to sentence in accordance with that.  Ms Webb might have been charged with a more serious offence and could therefore have received a sterner sentence. However the fact that arguably she may have “got off lightly” does not justify reducing the appellant’s sentence.

[29]     Given  these  differences,  and  despite  Mr  Kilkelly’s  submissions  to  the

contrary advanced before me, in my judgment there is no risk that a reasonably minded independent observer, aware of all the circumstances of the offence and of

9      Scoles-Young v Police [2016] NZHC 1120.

the offenders here, would think that something has gone wrong with the administration of justice.

[30]     The  appellant  submits  too  that  the  Judge  failed  to  give  credit  for  the appellant’s  early  guilty  plea  to  the  attack  on  the  police  constable.    However Judge Phillips clearly took this into account in setting the global guilty plea discount at 20 per cent, despite a very late guilty plea to the charge of injuring with intent to injure. There was no error here.

Conclusion

[31]     The appellant has not demonstrated that the sentence imposed was wrong or unjust.   The Judge took starting points in line with authority and there was a significant disparity in the culpability of the offenders that warranted different sentences being imposed.  The sentence imposed here, as I see the position, could not be considered to be manifestly excessive.

[32]     No error has occurred in this case. This appeal is dismissed.

...................................................

Gendall J

Solicitors:

Brian Kilkelly, Dunedin

RPB Law, Dunedin