McGregor v Police HC New Plymouth CRI-2011-443-031
[2011] NZHC 1000
•26 August 2011
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2011-443-031
JODI ELLEN MCGREGOR
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 15 August 2011
Appearances: T Bolstad for Appellant
A Britton for Respondent
Judgment: 26 August 2011 at 11:30 AM
JUDGMENT OF WHITE J
This judgment was delivered by me on 26 August 2011 at 11.30 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………….
Counsel: T Bolstad, New Plymouth: [email protected]
Solicitors: A Britton, Crown Solicitors, New Plymouth: [email protected]
MCGREGOR V NZ POLICE HC NWP CRI-2011-443-031 26 August 2011
[1] Ms McGregor appeals against her sentence of two years’ imprisonment imposed in the District Court at New Plymouth on 20 June 2011 on one charge of wounding with intent to injure under s 188(2) of the Crimes Act 1961 for which the maximum penalty is seven years’ imprisonment.
The offending
[2] On 12 February 2011 the victim, Ms Robertson, made contact with Ms McGregor, seeking to socialise. She was invited to Ms McGregor’s house and a group went downstairs to drink and socialise. The plan was to go together to a party nearby. Shortly afterwards Ms McGregor sat down on a coffee table in front of the couch on which Ms Robertson was sitting and informed Ms Robertson that she needed to talk to her. Another person, standing behind the couch, grabbed Ms Robertson’s hair and used it to pin her in the position where she sat. Ms McGregor then berated Ms Robertson for having sex with her boyfriend. Ms McGregor then proceeded to repeatedly punch Ms Robertson about the head while she remained restrained, shouting at her as she did this that she had, in her words, “fucked [her] boyfriend and [her] life”.
[3] After some time, Ms Robertson was allowed to leave. She made contact with her mother, who took her home and then to hospital. Ms Robertson suffered bruising to her arms from attempting to block Ms McGregor’s punches and a strain to her right finger. A wound above her left eye required ten internal stitches and eight external stitches and the Judge noted that the scarring would “without a doubt” be permanent.
[4] Ms McGregor was arrested on 15 February 2011. When spoken to by the Police she contended that she had been overcome by anger and that the attack on Ms Robertson was spontaneous. Text messages recovered by the Police indicated, however, that there had been an element of premeditation to the offending. One message sent by Ms McGregor to an associate at 4.38 pm on the afternoon of the attack read “Maybe I should just smash her tonight and get it over with”.
[5] Ms McGregor is 24 years old. Prior to being sentenced she was living in rented accommodation with two others. She described having strained relationships with other family members, although also reporting having a close and supportive relationship with her father. She had steady employment and was described by her then employer as a valued staff member who had capabilities within the hospitality field.
[6] Ms McGregor reported experiencing emotional turmoil as a consequence of a pregnancy termination and discovery that her then partner had been unfaithful. She denied planning the offending and claimed to hold no grudge against the victim.
[7] The writer of the pre-sentence report considered that Ms McGregor's relationship issues and a propensity towards violence were the main factors contributing to her offending. Ms McGregor had attended counselling at a relationship services agency. The eight sessions she attended had focused on grief and loss, relationships with herself and others, conflict resolution, anger issues and safety. She had no issues with alcohol, drug use or gambling and reported being in good physical health.
[8] Ms McGregor had eight previous convictions for breaches of community work. Her last sentence, however, was completed without incident. She was assessed as being at a low risk of re-offending.
[9] The writer of Ms McGregor’s pre-sentence report recommended a sentence of home detention. An appendix was attached to the Report confirming the suitability of an address at 73 Hine Street, New Plymouth, for an electronically monitored sentence.
The District Court decision
[10] In sentencing Ms McGregor on 20 June 2011 District Court Judge Roberts first considered the victim impact statement provided and the background and
personal circumstances of Ms McGregor. In particular he noted her six previous convictions for breaches of community work, although he acknowledged that her last sentence was completed without incident.
[11] A large number of references in support of Ms McGregor were put before the Court. The Judge accepted several of those submitted by people Ms McGregor worked with. He considered those from her family and friends to be of mostly negligible value as they sought to justify and excuse her behaviour. The Judge made it clear that he was not prepared to accept provocation as a mitigating factor. He noted Ms McGregor’s early guilty plea, as well as her expressions of remorse. He acknowledged her willingness to address her behaviour through counselling, and her willingness to pay reparation to Ms Robertson.
[12] The Judge considered the bands set out in the Court of Appeal decision in R v Taueki1 which, he considered, could be adapted to the lesser offending in this case. He considered the offending to be within band two and decided that, on an adjusted range, the starting point would fall between two and a half and five years' imprisonment.
[13] The Judge identified pre-meditation as a significant aggravating factor. In that regard he said:
[21] The text messaging, particularly that with its origins at your hand at
4.38, well and truly displays your intentions. I quote: “Maybe I should just
smash her tonight and get it over with.” This is unequivocal, and given what flowed there can be no doubt at all just who your focus was on. Roles were assumed or taken. Another held your victim down by the hair allowing you the ability to punch, repeatedly, at a restrained target. Your victim, after all, was lured to that address for the express purpose of assault on her person.
[14] Further aggravating features identified by the Judge were the serious injury suffered by Ms Robertson, the attack to the head, the presence of multiple attackers and the vigilante nature of the action. The District Court Judge continued:
[25] Having regard to the offending and the adjusted bands I intend to adopt a start point on sentence of three years’ imprisonment. You, or course, are a principal offender. You, of course, were instrumental in setting all this
1 R v Taueki [2005] 3 NZLR 372 (subsequently confirmed in R v Clifford [2011] NZCA 360 at [51]- [57]).
up, and you, of course, are the actual assailant. As to mitigating factors – there are none relating to the offending. Your plea, nonetheless, should be reflected in the end sentence, and I see no reason than to allow you the full
25 percent concession available to reflect the early plea. I am thus left with an end sentence of two years and three months.
[26] The Crown, of course, challenge remorse and I agree that that must be placed for the moment in an equivocal basket. There is this additional aspect, though, of reparation. You have presented here today intending to make a $2000 payment by way of emotional harm. I consider that that is deserving of a further concession and I reduce the end sentence to one of two years’ imprisonment. That, theoretically, is within that banding accommodated by sentences of home detention. I am not going to allow you home detention, the sentence will be served.
[27] Your offending was at an elevated level, and you were the principal player. On an earlier occasion you have shown yourself unable to apply yourself to the sentence of community work. In the circumstances, given the nature of the offending, its serious nature, too, I am not minded to grant you home detention and the end sentence will be one of two years’ imprisonment.
The appeal
[15] The appeal by Ms McGregor is brought in respect of the District Court Judge’s decision to decline her application for home detention. There is no challenge to the length of the sentence.
[16] For Ms McGregor, Ms Bolstad submitted that:
(a) The District Court Judge failed to take into full consideration the steps taken by Ms McGregor to make amends, as required by s 10(1)(a), (d)(i) and (ii) and (e) of the Sentencing Act 2002. In particular, insufficient weight was given to the following factors:
(i) The immediate payment of $2,000 emotional harm reparation.
Whilst the offer of $2,000 might be perceived as minimal and insignificant, in light of Ms McGregor’s income and personal circumstances such a figure was substantial.
(ii) Ms McGregor’s genuine remorse, as evidenced by her request
for a Restorative Justice Conference (although it was accepted
that it was a victim’s right to refuse a Restorative Justice
Conference) and letter of apology.
(iii)The measures taken by Ms McGregor to address her offending behaviour, including seeking assistance from Relationship Services and attending eight sessions focused on “grief and loss, relationship with self and others, conflict resolution, anger, fears, strengths and safety”.
(b)The District Court Judge laid excessive emphasis on Ms McGregor’s previous convictions for breach of community work and failed to properly acknowledge her lack of previous convictions for violent offending. In terms of s 15A(1)(b) of the Sentencing Act 2002, a sentence of home detention rather than imprisonment was appropriate. There was a home detention report confirming an appropriate address for electronic monitoring purposes. Having served some two months of her prison sentence, Ms McGregor’s substituted sentence should be a period of six to nine months’ home detention.
Submissions for the Crown
[17] For the Crown, Mr Britton submitted that:
(a) On an appeal against sentence the onus is on the appellant to show that the sentence imposed is clearly excessive, inadequate or inappropriate: McPike v Police.2 Taking into account the relevant case law, the aggravating factors identified by the District Court Judge, the seriousness of the offending and Ms McGregor’s elevated culpability, the starting point for a sentence adopted was available and appropriate.
(b)Taking into account the mitigating factors and personal circumstances identified by the District Court Judge, all available concessions under
2 McPike v Police HC Auckland CRI-2010-404-000151, 28 June 2010.
the case law and legislation were afforded and the extent to which they were afforded was appropriate. The 25% concession for the guilty plea and the three months’ imprisonment concession for reparation were appropriate. In terms of Hessell v R3 remorse did not warrant a further concession.
(c) The principles of deterrence, denunciation and accountability required added weight in light of the seriousness of the offending and Ms McGregor’s elevated culpability and rendered a community-based sentence inappropriate.
(d)The sentence imposed was the least restrictive one available in all the circumstances of the case.
[18] In response to questions from me, Mr Britton submitted that home detention was not available because the offending was pre-meditated, the culpability was high and the injuries inflicted were serious. He acknowledged, however, that a further reduction in the sentence might be considered if Ms McGregor’s remorse were accepted and the statement in the Probation Report that she was unlikely to re-offend was taken into account, but he remained of the view that imprisonment rather than home detention was still appropriate.
Appellate approach
[19] I refer to my decision in Sweeney v Police4 also delivered today and adopt the same appellate approach in this case.
Issues on appeal
[20] There was no challenge to the District Court Judge’s starting point of three years’ imprisonment which was appropriately adopted to reflect the aggravating
factors involved in Ms McGregor’s premeditated attack on her victim.
3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
4 Sweeney v Police HC New Plymouth CRI-2011-443-28, 26 August 2011 at [29]-[35].
(a) Whether sufficient recognition was given to Ms McGregor’s mitigating features, in particular her offer of amends and attempts at addressing the harm caused to the victim and the view of the Probation Report writer that she was unlikely to re-offend; and
(b)Whether, taking into account any change in the length of the term of imprisonment that might result from those mitigating features, a sentence of home detention should have been imposed in these circumstances.
Discount
[22] The District Court Judge gave a discount of 25% for Ms McGregor’s guilty plea which reduced the sentence to two years and three months’ imprisonment and a further reduction of three months for her emotional harm offer giving an end sentence of two years’ imprisonment.
[23] I accept that Ms McGregor’s emotional harm offer was a genuine one and was realistic given her circumstances. I also accept that her attempts to address the harm caused, through restorative justice and her apology to the victim, though rebutted, were genuine. Those efforts, when considered alongside her attempts to address the causes of her offending, should be recognised under s 10 of the Sentencing Act 2002 and as an expression of remorse for her offending.
[24] I agree with Mr Britton, however, that a further reduction should be considered for Ms McGregor’s remorse, the steps she has taken to address her problems and the view of the report writer that she is unlikely to re-offend. A total discount of 40% for mitigating factors is therefore appropriate, bringing the end sentence down to one year and nine months’ imprisonment.
[25] Again I refer to my decision in Sweeney v Police at [35] and [45] and adopt the same approach to the issue of home detention in this case.
[26] As already noted, the District Court Judge imposed a prison sentence rather than a sentence of home detention essentially because of the “elevated” nature of Ms McGregor’s offending.
[27] In my view, however, the following factors are also relevant in this case: (a) This was Ms McGregor’s first offence for violence.
(b)The offences relating to breaches of community based orders, while needing to be considered, did not prevent the imposition of a sentence of home detention in this case.
(c) Ms McGregor expressed remorse of a character that should be recognised separately from her guilty plea.5
(d) The Probation Officer found that she was unlikely to re-offend.
(e) As the Court of Appeal has made clear in R v Iosefa,6 a sentence of home detention is a true deterrent and denunciation of the conduct.
(f) Her two months in prison will have served as a short sharp shock which I am entitled to take into account: R v Hertnon.7
(g) The first of the three strikes’ warnings that she was given in the
District Court will stand.
[28] Taking those factors into consideration, I conclude that the sentence of two
years’ imprisonment was “clearly excessive” and “inappropriate”. The sentence of
5 Hessell v R at [24]-[28].
6 R v Iosefa [2008] NZCA 453 at [41].
7 R v Hertnon HC Palmerston North CRI-2007-031-536, 18 December 2009 at [21].
imprisonment should therefore be quashed and a sentence of home detention substituted.
[29] In considering the term of the sentence of home detention, I take into account the decision of the Court of Appeal in R v Bisschop8 in the same way as I did in my decision in Sweeney v Police at [48].
[30] Following this approach in Ms McGregor’s case, I consider that the appropriate term of home detention would have been 12 months if the sentence had been imposed when she was convicted in the District Court. But taking into account the fact that Ms McGregor has already served two months of her District Court prison sentence, which equates to a four month sentence, the term of her home detention sentence should be 10 months.
Result
[31] The appeal is allowed and under s 121(3)(b) of the Summary Proceedings Act 1957 the sentence of imprisonment is quashed and a sentence of 10 months’ home detention is substituted, subject to the following special conditions:
(a) Upon being released from prison, Ms McGregor is to travel directly to
73 Hine Street, New Plymouth, and await the arrival of her Probation
Officer and a representative of the monitoring company.
(b) She is to reside at 73 Hine Street for the duration of the sentence.
(c) She is to undergo such work training as directed by her Probation
Officer.
D J White J
8 R v Bisschop [2008] NZCA 229.
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