Mallett v R - [2014] NZCA 39

IN THE COURT OF APPEAL OF NEW ZEALAND

CA576/2013
[2014] NZCA 39

BETWEEN	DIANA ELIZABETH MALLETT Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	C P Brosnahan for Appellant J E Mildenhall and A R van Echten for Respondent
Judgment:	28 February 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of three years and nine months’ imprisonment on the aggravated robbery conviction is quashed. In its place we impose a sentence of three years and two months’ imprisonment.
CThe cumulative sentence of one month imprisonment on the offering to supply methamphetamine remains in place.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

Ms Mallett pleaded guilty to a charge of aggravated robbery and a charge of offering to supply methamphetamine.[1] She was sentenced by Judge Cameron to a total of three years and 10 months’ imprisonment.[2] She appeals on the ground that the sentence was manifestly excessive because insufficient discount was given for the restrictive bail conditions during her remand and for her demonstrated rehabilitation during that period.

Background

[1]Crimes Act 1961, s 235(a) and (b); Misuse of Drugs Act 1975, s 6(1)(c) and (2)(b).

[2]R v Mallett DC Wanganui CRI-2011-083-708, 1 August 2013.

The aggravated robbery was of Ms Mallett’s former partner. She arranged with him by text to be present at an agreed location under the pretext of supplying cannabis to him. When he arrived at that location with $1,600 to purchase cannabis he was subjected to a severe beating by three men and the $1,600 and other items were taken from him. [3] Ms Mallett then drove the three men from the scene. This offending took place on 3 November 2009.
[3]Injuries were inflicted with baseball bats and a compressed air powered BB gun. The victim suffered extensive bruising on his legs, arms and back and three metal ball bearings were lodged in his scalp which needed to be surgically removed.
The drug offending took place on 25 October 2009. Ms Mallett loaned her cellphone to another person and that person offered to supply a third person with a point bag (0.1 grams) of methamphetamine. Ms Mallett was complicit in that she knew her cellphone was going to be used for this purpose.
There was a significant delay between Ms Mallett’s arrest in 2009 and her sentencing in the District Court on 1 September 2013.[4] Much of this delay arose from matters beyond Ms Mallett’s control. During this period:
(a)Ms Mallett was initially in custody and then remanded on bail subject to a 24 hour curfew for a period of about four months. For this period she lived with her four children in her sister’s house in another city. On 1 January 2010, while subject to the 24 hour curfew, she assaulted her eldest child (who was then about 10 years old). She pleaded guilty to the assault charge and was sentenced to nine months’ supervision and 100…

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 Mallett v R

Details

AGLC: Mallett v R [2014] NZCA 39
Case: [2014] NZCA 39
Decision Date: 28 February 2014 at 10.00 am

CaseChat Overview and Summary

In the case of Mallett v R, the Court of Appeal of New Zealand reviewed the sentence imposed on Diana Elizabeth Mallett for aggravated robbery and offering to supply methamphetamine. Mallett appealed against the severity of her sentence, arguing that insufficient consideration was given to the restrictive bail conditions during her remand and her demonstrated rehabilitation efforts. The Court of Appeal allowed the appeal, finding that the original sentence was manifestly excessive due to inadequate recognition of Mallett's rehabilitation efforts.

The legal issues before the Court of Appeal were whether the original sentence imposed by the District Court was manifestly excessive and, if so, what sentence should replace it. The appeal hinged on whether the District Court properly assessed and discounted the time Mallett spent on restrictive bail and her rehabilitation efforts. The Court of Appeal found that the original sentence did not adequately account for these mitigating factors, leading to a manifestly excessive sentence.

The Court of Appeal considered that the five-year starting point for the aggravated robbery was appropriate, given Mallett's key role in the crime. However, the Court found that the discount for time spent on restrictive bail and rehabilitation was too small. Mallett had made significant positive changes in her life, including her care for her children, which warranted a greater discount. The Court applied a 20% discount for the time spent on bail and rehabilitation, and a further 20% for Mallett's guilty plea. This resulted in a revised sentence of three years and two months' imprisonment for the aggravated robbery, with the one-month sentence for the methamphetamine charge remaining unchanged.

Orders