Mori v Police
[2013] NZHC 225
•15 February 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2012-409-000112 [2013] NZHC 225
PAMELA JEANETTE MORI
Appellant
v
POLICE
Respondent
Hearing: 14 February 2013
Counsel: P N Allan and L Drummond for Appellant
C E Butchard for Respondent
Judgment: 15 February 2013
JUDGMENT OF WHATA J
[1] Ms Mori was convicted on 15 November 2012 on one charge of assault with intent to injure under s 193 of the Crimes Act 1961. On the evening of 6 July 2012
Ms Mori and a friend had been out drinking and on their way home made an unprovoked attack on the victim. The victim was a middle aged woman, a stranger to the offenders, and it was late at night. The attack was started by the co-offender but Ms Mori joined in initially hitting the victim in the head and later punching and kicking her until she fell to the ground. The victim was particularly vulnerable having recently had surgery. She suffered extensive bruising and abrasions and was
traumatised by the attack.
MORI V POLICE HC CHCH CRI 2012-409-000112 [15 February 2013]
[2] Judge A A Couch sentenced Ms Mori to six months home detention and 120 hours community work. This is to be compared to the sentence of the co-offender who was sentenced to 75 hours community work.
[3] Ms Mori now appeals against that sentence on the basis that it was manifestly excessive and out of line with the sentence received by the co-offender.
Notes of sentencing
[4] Judge A A Couch sets out in a careful and detailed way the reasons for his sentence in this matter. He describes the background to the offending and the involvement of Ms Mori in that offending. He observes the vulnerability of the victim and the extensive bruising and abrasions that were suffered by her. He acknowledges the positive aspects to Ms Mori’s background and that she has no previous history of violent offending. He also records that this is a serious offence attracting a maximum penalty of three years. He records that he regards Ms Mori’s culpability to be as great as that of the co-offender and the gravity of the offending is well up the scale. He refers to repeated blows and kicks to the head and face in an unprovoked and serious attack on a vulnerable victim.
[5] The Judge adopted a starting point of 18 months having factored into that the vulnerability of the victim. He took into account a prompt guilty plea and gave Ms Mori full credit for that. He also acknowledged Ms Mori’s remorse. He therefore reduced the starting point by six months which led to a sentence of imprisonment for 12 months. He then examined whether home detention was an appropriate alternative. He cited relevant sentencing principles including holding Ms Mori accountable for the harm done and to promote a sense of acknowledgment and accountability for the harm. He noted it as simply an unacceptable part of our society that people get drunk, lose control and violently attack strangers. He said that he decided, by a small margin, to substitute home detention for a sentence of imprisonment. He sentenced Ms Mori to six months home detention on that basis and also imposed a sentence of 120 hours community work.
[6] I must be persuaded by the appellant that the sentence was manifestly excessive.
[7] Counsel for the respondent helpfully notes that there is no tariff for this type of offending but also refers to R v Hackell[1] where the Court of Appeal stated that the Court has previously indicated that it would generally uphold sentences of 9-12 months imprisonment (end sentence) for the offence of assault with intent to injure.
[1] R v Hackell CA131/02, 10 October 2002.
[8] The Crown refers to the aggravating features of this case, the extensive credit given for various mitigating features and the fact that the ultimate sentence was not one of imprisonment. It is thus submitted that on no account can the sentence be considered to be manifestly excessive.
[9] The Crown then addresses the allegation of disparity between sentences imposed between the appellant and the co-offender. It is noted that Ms Morgan (the co-offender) pleaded guilty to a lesser charge and it is therefore unsurprising that her sentence was not the same. The Crown refers to the Court of Appeal decision in Mau’u v R[2] wherein the Court endorsed the basic principle that the sentencing Judge must not only consider the relevant involvement of the individuals in the offence but the features affecting each. However, a marked difference in the sentences imposed on co-offenders for which no justification can be shown may be of importance to the
administration of justice. The further principle that public confidence in the administration of justice is best preserved if justice appears to be administered even- handedly was emphasised. Regard must also be had to whether reducing a proper sentence imposed on one offender in order to bring it into line with a sentence imposed on a co-offender would itself cause public concern at the administration of
justice.
[2] Mau’u v R [2011] NZCA 385.
[10] The appellant submits that the sentence is manifestly excessive essentially for the following reasons:
(a) Ms Mori pleaded guilty to the lesser charge of assault with intent to injure, but the Judge had in his mind the more serious charge of injuring with intent to injure, with the effect that he gave too much emphasis to the injuries;
(b)The nature of the injuries are not an element of the offending, yet this appeared to affect the starting point (rather than featuring as an aggravating feature);
(c) The Judge inappropriately attributed the injuries to the appellant rather than the co offender;
(d)I should adopt, by analogy, Band 1 of R v Harris,[3] which involves more serious offending of injuring with intent to injure, but little injury. For Band 1offending a sentence of less than imprisonment can be appropriate;
[3] R v Harris [2008] NZCA 528.
(e) The sentence is obviously disparate in comparison to that of the co- offender – who only received 75 hours community work for a lesser charge of assault;
(f) Notably the appellant offered at an early stage to give evidence for the police, and was available on the day of the co-offender’s trial to give evidence until the co-offender pleaded guilty. This was not brought to
the attention of the sentencing Judge.
[11] Objectively assessed, based on relevant sentencing guidelines and sentencing principles, the sentence imposed on Ms Mori cannot be said to be excessive. The appellant’s complaint about the Judge’s over-emphasis on the injuries does not resonate on appeal. It was well within the discretion of the Judge to put the weight he did on the injuries and their significance to sentencing. The injuries were a foreseeable consequence of the actions of the appellant and the co-offender, and I am not prepared to find by implication that the Judge misdirected himself in this regard.
[12] The reference to R v Harris also does not assist the appellant because in that
Band 1 is described in the following terms:[4]
Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, ...
[4] R v Harris [2008] NZCA 528 at [10].
[13] It can hardly be said that there is little injury and few aggravating features. The summary of facts to which (it appears)[5] the appellant pleaded guilty records that the victim suffered a “broken nose, extensive swelling to her left eye, mouth area and back of the head”. The victim was also recovering from medical treatment at the time, and in her condition those injuries cannot be described as minor.
[5] Only a copy of the co-offender’s summary of facts was available to me.
[14] I note for completeness that Harris has been overtaken by Nuku v R,[6] but that does not materially change the assessment, namely that assault causing injury of the type mentioned carries with it the prospect of imprisonment. At least two aggravating features were present – an attack to the head and multiple attackers with the result that a sentence of imprisonment was open to the Judge.[7]
[6] Nuku v R [2012] NZCA 584 at [38].
[7] Ibid, refer Appendix.
[15] I have examined whether the apparent disparity between Ms Mori’s sentence and the sentence of the co-accused is so great that I ought to overturn the previous sentence. At first gloss it appears that something has gone wrong. But the context of
the difference needs to be properly understood. Ms Mori pleaded guilty to assault
with intent to injure. Ms Morgan pleaded guilty to assault. They are materially different charges with logically different sentencing outcomes.
[16] I was puzzled as to why Ms Morgan was able to plead to a lesser charge. But it transpired that the complainant had had enough by the time of the trial of Ms Morgan and did not appear. The Police had to make an election as to whether to proceed at all and secured a guilty plea to the lesser charge. This might be said to give rise to apparent unfairness in the result. But it is understandable that the Police wanted to secure some outcome, and even with the evidence of Ms Mori, there was a proper basis to take the plea. While ostensibly unfair in the outcome, no issue of improper administration of justice arises.
[17] I also consider that the sentence in this case must appropriately reflect the level of culpability of Ms Mori and the nature of the offending. Overall the sentence handed down is not excessive. And I think that there is significant public interest in this case in seeing that the sentence is commensurate with the offending.
[18] One factor that should have been taken into account, but was not put to the Judge for sentencing is that Ms Mori not only entered an early guilty plea, but also offered to give evidence against the co-offender. That is undoubtedly a proper basis for a substantial discount that was not afforded to the appellant. [8]
[8] Refer R v S CA 236/00, 30 October 2000.
[19] The Crown, while not accepting that there should be a further discount, noted that one might expect in the circumstances of the present case a discount of 10-15%. Mr Allan submitted that a discount in the order of 25% was appropriate. Neither counsel took me to authorities on point. It is of course a matter of discretion having regard to:[9]
[9] See R v Cashel CA 62/96, 27 March 1996.
(a) The gravity of the offender’s own offending;
(b) The nature of the offence or offences that the offender has helped to clear up;
(c) The nature, extent and quality of the assistance given. Where the assistance is significant a significant reduction in sentence may properly be allowed;
(d) Any personal danger faced or likely to be faced by the offender.
When co-operation is given at the cost of personal danger it deserves generous recognition.
[20] The appellant’s offending was undoubtedly serious, as was the offending she was helping to clean up. She offered and made herself available to testify against the accused, and that must fall into the category of significant assistance. However, it is not clear to me that the appellant was in danger.
[21] In these circumstances, and in light of discounts afforded in a cross section of cases,[10] I consider that a 15% discount is proportionate to the assistance afforded by the appellant.
[10] R v Hadfield CA 337/06, 14 December 2006 (60% overall discount); R v Sanchez-Silverio CA
[22] In the result, this would have meant an end point for a sentence of imprisonment in the order of nine months. In light of this the accused’s sentence should be reduced to four months.
Outcome
[23] The appeal is successful on the limited basis that the appellant’s assistance to the police should have been put to the Judge and taken into account in sentencing. It was not. The end sentence of home detention is accordingly reduced to four months.
[24] On that basis the appeal is allowed and the sentence reduced.
[25] For completeness the appellant is directed to go home immediately, to await a probation officer and the monitoring company, for the purposes of being reinstated on home detention.
Solicitors:
P N Allan, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent
196/05, 4 November 2005 (8% additional discount for post sentence assistance); R v Zhou CA
314/05, 1 November 2006 (30% additional discount for pre and post sentence assistance);
R v Stark CA 104/06 (60% overall discount and 10% for offer to give evidence).