Johnstone v The Queen
[2004] NZCA 38
•29 March 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA368/03
THE QUEEN
v
TRACEY LEE JOHNSTONE
Hearing:18 March 2004
Coram:Anderson P
Laurenson J
Paterson JAppearances: S K Green for the Appellant
G C de Graaff for the Crown
Judgment:29 March 2004
JUDGMENT OF THE COURT DELIVERED BY LAURENSON J
INTRODUCTION
[1] The appellant has appealed against a sentence of 2½ years imprisonment imposed in the District Court at Hamilton in respect of one charge of wounding with intent to injure laid pursuant to s188(2) of the Crimes Act 1961. The maximum penalty for this offence is 7 years imprisonment.
[2] The appellant pleaded guilty to this charge at the beginning of her trial by jury. Two co-accused were found guilty after trial.
Background
[3] The sentencing Judge conducted the trial of the two co-offenders and hence was in a position to assess their culpability. So far as the appellant was concerned, her defence counsel had agreed that sentencing should proceed on the basis of the depositions. The Crown had sought to obtain an agreed statement of facts but despite a direction of this Court in that respect, no agreed statement was forthcoming. The Crown accordingly applied for an adjournment but we decided the appeal could, and should, nevertheless proceed.
[4] The sentencing Judge did not set out separately a statement of the facts relied upon for sentence. Following submissions, and by reference to the depositions, the factual background appeared to be as follows:
a)The appellant was the partner of the complainant.
b)She had a young daughter.
c)Relations between the appellant and complainant had been bad for some time. There were suggestions by the appellant that the complainant had interfered with her daughter.
d)The appellant apparently oppressed and depressed by these circumstances spoke to the two co-offenders who were two male friends.
e)They, either prompted by the appellant, or at least motivated by what she said, decided to assault the complainant with a view to getting him to leave the home.
f)The appellant preceded them to the home at about 10.30 at night and removed the child from the house. The complainant was at that time in bed.
g)The two co-accused arrived and then proceeded to deliver a serious beating to the complainant. The beating included the use of a baseball bat which the appellant knew was in their possession at least shortly before they entered the house.
h)The appellant fabricated an alibi about having been abducted by skinheads. This resulted in a complete waste of Police resources as well as hindering the investigation of the crime which had occurred
[5] The sentencing Judge referred to the aggravating factors covering all three prisoners as follows:
[2] The aggravating factors in respect of this offending seem to me to be these:
(1)The premeditation. You went, armed with a length of wood, and you had already discussed between you and were making arrangements for the removal of a child. Those two actions indicate planning and premeditation.
(2) The use of violence and the use of a weapon to effect violence.
(3)The fact of the violence occurring in the victim’s home. I take the view he was particularly vulnerable, as this offence was committed early in the morning when it was anticipated he would be in his bed. That was a factor I conclude was known to you and relied upon by you.
(4)The next matter which I consider to be aggravating in nature is the fact that it was a prolonged attack; it could be said an attack in cold blood, particularly given the demands that he expose his face and that he spread his legs while you inflicted blows. That attack continued even though the victim was curled into a defensive position, and indeed at one stage on a child’s bed.
(5)The impact on the victim, and the extent of harm to the victim, is an aggravating factor. He had fractures to his nose and fingers, bruising to his head, face and leg, both shoulders, his arm, wrists, his back, abrasions to his back, a large cut to his head and numerous smaller cuts.
(6)In respect of the prisoner Johnstone, I consider that the complete fabrication of an explanation is a feature which aggravates the situation in her case. This was done to deliberately attempt to hide her involvement. It had the effect of prolonging the Police enquiry. I also regard as entirely relevant to her the fact that this whole situation began at her instigation. That, in my view, requires some acknowledgement.
[6] The following mitigating factors were noted in respect of the appellant:
a)The plea of guilty on arraignment. The Court accepted defence counsel’s indication that this was done relatively promptly once an indication was given that the Crown would accept the plea on the lesser charge.
b)There was an indication of an expression of remorse to the victim.
c)The appellant was someone who appeared before the Court for the first time.
[7] There were also submissions that the appellant was the victim of domestic violence from the victim of the offending but the Judge treated these with a degree of scepticism.
[8] Mr Naysmith, a co-accused, had a number of previous convictions but none for violence. He was sentenced on a basis which took account of the following matters:
a)Apart from the incident in question, he was regarded as a good responsible parent and held in high regard at the school where his children attended.
b)He was not violent in his domestic relationships.
c)He had expressed genuine remorse and had apologised. He himself had been a victim of offending and that this may have well caused him to react as he did to the situation as presented to him.
d)He had gone forearmed with a weapon because he had expected to be met with violence.
e)He was seen as a very hardworking man and committed to his family with the support of his wife and children.
[9] The other prisoner, Mr Barrie, had one irrelevant previous conviction. The following matters were taken into account.
a)He was extremely well regarded according to the material available to the Judge. He was seen as a good worker and highly thought of.
b)The suggestion had been made that he was very much in the wrong place at the wrong time.
c)He was deeply remorseful.
d)He was regarded as an honest man who had significant family support.
e)He had thought that he was going to uplift a child and had only limited knowledge of what was to take place.
f)He had no previous record.
[10] The following sentences were then imposed:
a)The appellant
The Judge determined that an appropriate starting point was 3 years. In order to reflect a plea of guilty but also to reflect the additional aggravating features referred to by the Judge, an appropriate sentence was 2 years and 6 months.
b)Mr Naysmith
Despite the fact there was no plea of guilty the Judge took the view that his personal circumstances balanced against the extent of his involvement meant that his position was much the same as the appellant. He was accordingly convicted and sentenced to 2 years and 6 months imprisonment.
c)The third prisoner, Mr Barrie
Because of his previous good record and because of the other factors already referred to, the Judge took the view that an additional recognition could be given to him. He was accordingly convicted and sentenced to 2 years and 3 months imprisonment.
First ground of appeal
[11] The first ground of appeal was that the Judge did not confine her consideration to the factors relevant to the appellant’s culpability which were admissible in respect of her, namely those appearing from the depositions, but, rather, relied on evidence relating to the appellant which emerged from the trial of the co-accused. It was fundamentally wrong that she should be sentenced on the basis of alleged facts which were detrimental to her, to the exposition of which she was not privy and which she had had no fair opportunity to meet.
[12] The key issue was the extent to which the appellant was or was not instrumental in causing the offence to take place from the outset. So far as the depositions are concerned, it was submitted that there is no direct evidence and little if any circumstantial evidence which provides an adequate basis for the Judge to have considered:
a)“This whole situation began at her instigation.” (para [2](6) sentencing notes).
b)“It seems to me you were highly manipulative of the other offenders …” (para [4] sentencing notes).
[13] The Crown in response to this issue submitted that it was unfortunate that an agreed statement of facts was not made available at sentence but given the appellant’s plea of guilty the Court was, pursuant to s24(b) of the Sentencing Act 2002, required
To accept as proved all facts express or implied that are essential to a plea of guilty on a finding of guilt.
[14] Thus, by reason of her plea, the Court was entitled to infer that the appellant was aware of the essential matters constituting the offence. These involved knowledge that the co-offenders intended to wound the complainant with intent to injure him.
Discussion of first ground of appeal
[15] In the pre-sentence report there is reference to comments made to the Probation Officer which indicate that the appellant did not intend that the complainant be dealt with as he was, but rather that she sought help only to remove her child and that she was not aware that a baseball bat would be involved in the subsequent assault. These matters were also referred to in a letter provided by the appellant to the Judge.
[16] The Judge referred to these matters at para [5] as follows:
The entire first page of the pre-sentence report is a detailed list of wrongs, as you perceive them, done to you by the victim. The pre-sentence report indicates, and indeed your counsel’s submissions indicate, a tendency to look for others to be responsible. In the pre-sentence report you have tended to blame your co-offenders for letting the situation go beyond what you had intended. You say it got out of hand. I do not accept that that is a fair assessment of your culpability. You contemplated violence with a weapon. You were present when the weapon was obtained. You deliberately removed your child. So it has to be said you expected violence to occur. And the fact that you told such deliberate lies immediately after the event indicates to me a very marked limitation on any remorse you have felt. It has been suggested to me today that there was some indication you expressed remorse to a third party.
[17] Having reviewed the available evidence which was legitimately available to the Judge to assess the appellant’s level of culpability, we have to agree with defence counsels submission that there was no evidence which could provide a basis for the Judge to conclude that the appellant either instigated the attack as it finally developed or that she was manipulative of the co-accused.
[18] That is not to say, however, that there was insufficient evidence for the Judge to conclude that the appellant was fully implicated as a party be it under s66(1) or s66(2) to the attack which occurred.
a)She was aware that the complainant was to be assaulted.
b)She assisted the co-offenders by directing them to the plaintiff.
c)She preceded them into the house in order to remove her child.
d)She was aware at least shortly before that they were in possession of a baseball bat.
e)At no stage did she intervene in a way which would have prevented the assault when plainly there were many stages where she could have.
[19] We find, therefore, that the first ground of appeal is not made out in relation to the submission that there was insufficient evidence to justify the findings as to the aggravating elements of instigation and manipulation. We will return to the consequences of this finding shortly.
The second and third grounds of appeal
[20] These were stated to be:
That errors of fact were made regarding the role played by the appellant. The appellant’s degree of culpability was mistakenly assessed, and consequently the fixing of the starting point was too high.
a)There was a failure to give credit for past good character, when such credit was given to co-offenders (possibly arising from the view formed of the appellant based on the errors of fact);
b)Sentences were handed down that created disparity between offenders, particularly given the failure to give credit for past good character.
[21] Viewing these two matters together it was submitted that the Judge failed to allow credit for the appellant’s past good character, she having had no previous convictions.
[22] This had to be contrasted with the two co-offenders.
a)Naysmith, who received a deduction for 6 months after taking into account the extent of his involvement and personal circumstances which appear to have included:
(i)Absence of convictions for violence.
(ii)Being a good parent.
(iii)Having been a victim of offending himself.
b)Barrie, who received a conviction of 9 months for:
(i)Previous good record.
(ii)Offending out of character.
(iii)Not being as enthusiastic as Naysmith in the assault.
[23] It was submitted the result was that the appellant received a sentence the same as the major assailant (Naysmith) and greater than the other, Barrie, who had no more to call on by way of mitigation than did the appellant.
Discussion of second and third grounds of appeal
[24] For a start it appears the Judge did in fact sentence the appellant on the basis that she was a first offender (para [7]).
[25] The Judge selected a starting point of 3 years for all three prisoners. It is unfortunate that the Judge did not then evaluate the aggravating and mitigating factors separately from that point in respect of each of the three prisoners. However, on an assessment of the sentencing it seems that two aggravating factors perceived in relation to the appellant when sentencing, differentiating her from the co-accused.
a)Instigation.
b)The false account afterwards.
Conversely, the appellant alone had pleaded guilty albeit at a very late stage.
[26] But although it may be overstating the complicity of the appellant to say she instigated the attack it is nevertheless the case that having complained to her friends and become aware of their willingness, out of friendship to her, to carry out a punitive raid on the victim she facilitated that when she could have entirely prevented it. Further, she sought to cover her tracks with a spurious tale of being a victim of kidnapping.
[27] These matters were plainly aggravating factors. Conversely, the late plea of guilty was by itself deserving of only a minor deduction because it was entered at the thresh-hold of trial.
Conclusion
[28] Taking into account our findings in relation to the grounds of appeal, the first issue to be considered is whether the appellant has demonstrated that the sentence imposed viewed only in relation to the appellant can be said to be manifestly excessive or wrong in principle. In relation to this issue we have concluded:
a)This was a serious assault.
b)The appellant was involved from the outset and thereafter facilitated what happened and, from the moment she realised a baseball bat was involved, she did nothing to prevent its use.
c)On this basis, the sentence imposed whilst possibly stern, cannot be regarded as manifestly excessive nor wrong in principle.
[29] The second issue is whether, notwithstanding our first finding, the sentence was unjustly disparate compared to those imposed on the co-offenders. In terms of the test explained in R v Lawson [1992] 2 NZLR 219, 223, the inquiry must be whether there is a marked difference in sentences imposed on co-offenders, for which no justification can be shown and is so marked and unjustified as to tend to bring the administration of justice into disrespect.
[30] Having considered the issue in this light, and as a result of the analysis we have referred to in para [28] above, we have considered that there is no such unjust disparity in relation to the appellant’s sentence.
[31] The essential elements of aggravation referred to by the Judge apply to all three prisoners. If the Judge did overstate the degree to which the appellant was a catalyst for what happened, the fact remains she was party to it at the outset and facilitated it. She compounded her crime by a false complaint in order to establish a spurious alibi. That alone was an aggravating feature. The plea of guilty was deserving of limited recognition and the appellant was, like the co-offenders, treated as a first offender. In short, there was no disparity justifying consideration.
Result
[32] The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland
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