Nelson aka Electra v The King

[2024] NZHC 1095

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000065/66

[2024] NZHC 1095

BETWEEN

MATTHEW RICHARD NELSON (also

known as PANDORA SADAKO MIA ELECTRA)
Appellant

AND

THE KING

Respondent

Hearing:	6 March 2024
Appearances:	S Taylor for the Appellant R L Mann for the Crown
Judgment:	7 May 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 7 May 2024 at 3.00 pm.

………………………………

Registrar/Deputy Registrar

Solicitors: Hamilton Legal

NELSON (aka ELECTRA) v R [2024] NZHC 1095 [7 May 2024]

[1]    Pandora Electra appeals against concurrent sentences imposed in the District Court following her acceptance of a sentence indication given by Judge N D Cocurullo in the Hamilton District Court on 15 September 2022. Ms Electra is a transgender woman who was sentenced under her previous name. I refer to her by her present name in this judgment. Ms Electra was sentenced simultaneously in respect of further charges prosecuted by Police. That serious offending is not in focus on appeal.

[2]The grounds for appeal focus on three aspects:

(a)the starting point identified for charge five (wounding of Ms Electra’s former partner) is said to be too high;

(b)that the Judge erred by not applying credits to reflect cultural factors, remorse, and hardship of incarceration for Ms Electra as a transgender woman; and

(c)the minimum period of imprisonment imposed was either inappropriate or too high.

[3]    On the second two issues, Ms Electra asks me to admit on appeal a s 27 cultural report,1 she obtained after sentencing and a letter of remorse she has written. The Crown opposes the admission of these documents.

[4]    The effect of the adjustment sought on appeal is that the starting point would be reduced from 12 years 10 months to 11 years 10 months. After further discounts as sought are made, an end sentence of six years and one months’ imprisonment would be reached in contrast to the ultimate sentence of nine years three months imprisonment.

Factual background

[5]    On 15 November 2022, following a sentence indication, Ms Electra was sentenced to nine years and three months’ imprisonment with a minimum period of

1      Sentencing Act 2002, s 27.

imprisonment of 60 per cent for three charges of wounding with intent to cause grievous bodily harm.2 These were charges four to six of the seven charges prosecuted by the Crown. The other charges from the Crown concerned:

(a)threatening to kill for which she received nine months’ imprisonment (charge one);

(b)assault with a weapon for which she received 18 months’ imprisonment (charge two);

(c)assault on a person in a family relationship for which she received nine months’ imprisonment (charge three); and

(d)intentional damage for which she received 18 months’ imprisonment (charge seven).

[6]    Ms Electra was simultaneously sentenced in respect of six other charges prosecuted by Police.3

[7]    Each of the prison sentences are concurrent. The focus of the appeal is therefore on the sentence Ms Electra received for the lead charge of wounding with intent to cause grievous bodily harm (charge five of the Crown charges). The other charges from both the Police and the Crown form the context to the lead charge as they relate to various occasions on which Ms Electra assaulted or threatened to kill her former partner who is the victim to whom charge five relates (the victim UM).4

[8]    Ms Electra and the victim  UM  were in  a  relationship  for approximately  14 months. They moved in together on 1 September 2021. The relationship was marked by violence. At approximately 8.35 pm on 4 May 2022 Ms Electra entered

2      R v Nelson [2022] NZDC 22649 at [19].

3      The Police charges concerned assault on a person in a family relationship for which she received nine months’ imprisonment; assault of a Police officer for which she received nine months’ imprisonment; common assault for which she received four months’ imprisonment; two charges of resisting Police constables for which she was convicted and discharged; and failing to appear after being released on bail for which she was convicted and discharged.

4      See detailed account of facts for all charges in the sentencing indication, R v Nelson DC Hamilton CRI-2022-019-001816, 15 September 2022 at [3]–[27].

the Sahara Indian restaurant, the workplace of UM, through the open back door into the kitchen area. She had a knife in one hand and a can of alcohol and a cigarette in the other. UM and her co-worker C were standing in the kitchen with their backs to the door. They turned as she approached them from behind.

[9]    The victim C put his arm up to try and protect himself, but Ms Electra stabbed him in the shoulder and he fell to the ground. Ms Electra then stabbed UM in the face and again in her back as she tried to turn away. C got back to his feet, he and UM ran out of the kitchen into the restaurant area. Ms Electra followed. They ran out of the restaurant to get help. The victim S, one of the customers of the restaurant, attempted to run past Ms Electra. She reached out and stabbed S in the right side of his abdomen. S continued running out of the restaurant and down the street.

[10]   Ms Electra then turned and walked back through the kitchen picking up a set of keys that had fallen out of her bag when she stabbed C. After Ms Electra exited the kitchen, C went back in and locked the doors. Ms Electra walked around the front of the building and tried to kick the door open several times. Ms Electra then used her forearm to smash a hole in the door window. She also picked up a chair and began hitting the windows of the restaurant. A member of the public approached and told Ms Electra to put the knife down. As the Police sirens got closer she surrendered and placed the knife on a table outside the restaurant.

[11]   All three victims were transported to Waikato Hospital by ambulance in a critical condition. C suffered serious injury including a hole in his lung. He also suffered emotionally and financially from the effects of the offending on his business. UM sustained a laceration from her forehead to the side of her face. The stab wound to her back punctured her lung causing a collapsed lung and blood in her chest cavity. The effects of this injury are significant and ongoing. S suffered from a laceration to his liver. He lost approximately one litre of blood and underwent surgery on his liver. S is also dealing with significant ongoing consequences from this injury that affect him both physically and financially.

District Court Decision

[12]   Judge N D Cocurullo first noted that Ms Electra had previous convictions but they were not for this sort of offending, so he did not apply an uplift for them.5 The Judge then turned to the appropriate starting point for the lead charge of wounding with intent to cause grievous bodily harm. In considering whether the offending is in band two or band three of Taueki,6 the Judge identified that there was a high degree of premeditation and a significant or moderate degree of serious injury, use of a lethal weapon, and attack to the head.7

[13]   The Judge also found that the aggravating feature of extreme violence was present. While the attack was not repetitive or prolonged, extreme violence includes unprovoked gratuitous violence.8 The Judge therefore concluded that the offending was within band three and that an appropriate starting point is 10 years imprisonment.9

[14]   With regard to the totality principle, the Judge applied a further two year uplift for the other charges of wounding with intent to cause grievous bodily harm.10 The Judge also applied a further uplift of six months for the remaining Crown charges and four months for the Police charges, arriving at the adjusted starting point of 12 years 10 months’ imprisonment.11

[15]   For aggravating and mitigating factors personal to the offender the Judge applied an uplift of four months for offending while on bail and a discount of         25 per cent for guilty plea.12 The Judge did not see that there was genuine remorse to any significant level so elected not to apply a discount for remorse.13 When delivering the final sentence, the Judge also applied a further discount of five per  cent for     Ms Electra’s willingness to rehabilitate.14 This led to a final sentence of nine years three months.

5      Above n 4, at [31].

6      R v Taueki (2005) 21 CRNZ 769 (CA).

7      Above n 4, at [35]–[39].

8 At [40].

9 At [41].

10 At [42].

11 At [43].

12 At [45].

13     Above n 2, at [13].

14     Above n 2, at [14].

[16]   The s 38 report that details the findings of a psychological assessment was available to the Judge at sentencing.15 He considered it in light of setting a minimum period of imprisonment and found that Ms Electra met all the criteria. The Judge acknowledged the part of the report that speaks to her willingness to rehabilitate but agreed with the Crown that a minimum period of imprisonment of 60 per cent should be applied.

Approach on appeal

[17]   The Court must allow the appeal if it is satisfied there is an error in the sentence imposed, and that a different sentence should be substituted.16 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.17

[18]   The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The focus is on the end result rather than the process by which the sentence was reached.18 In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).19

Issues

[19]The following issues arise on appeal:

(a)Should I admit the cultural report and remorse letter on appeal?

(b)Did the Judge err in setting the starting point for charge five?

(c)Should greater discounts for mitigating factors have been given?

(d)Should a minimum period of imprisonment have been imposed and/or was it too high?

15     Above n 2, at [18].

16     Criminal Procedure Act 2011, s 250(2).

17     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

18     Above n 17, at [36].

19     Above n 17, at [36].

Admission of s 27 report and letter of remorse

[20]   No s 27 report was obtained by Ms Electra prior to sentencing. The admission on appeal of a s 27 cultural report is subject to the same test for admissibility of further evidence. The overriding issue is whether it is in the interests of justice to admit it.20 The same applies to the letter of remorse.

[21]   The s 27 cultural report gives a detailed account of Ms Electra’s background. This is based on interviews with Ms Electra and a lengthy interview with her mother. As a child Ms Electra was a young boy who “never felt right” and always knew she was different. Ms Electra’s parents held conservative views so she did not have a means of expressing or discussing these feelings. This took a toll on Ms Electra’s mental health resulting in acute depression and anxiety. Ms Electra began self-harming from a young age. She and her parents sought professional advice but she found it impossible to reveal the truth of her struggles. She began drinking heavily as a teenager for emotional and mental relief. She smoked cannabis for some time and has been prescribed multiple anti-depressants since she was 19. Ms Electra faced immense rejection from her family when she “came out”, only her mother and one of her three siblings remain in contact.

[22]   Ms Electra began hormone therapy while she was in a relationship with the victim to whom charge five relates. She describes this relationship as toxic and abusive. She believes that she was suffering from a hormone imbalance at the time of the offending which made her behaviour erratic. In the weeks leading up to the offending her mental health deteriorated. She went to Waikato Hospital seeking help for homicidal and suicidal ideation but she was not admitted so she returned to her dysfunctional relationship.

[23]   The report also explains how Ms Electra’s time in prison has been extremely challenging for her. She has experienced abuse and been moved from a male prison to a female prison, and then back to a protective unit in a male prison. When segregated she has not been able to participate in group therapy. She has been allowed

20     Poi v R [2020] NZCA 312 at [30]; Simcic v R [2022] NZCA 592 at [43]; Carroll v R [2019] NZCA 172 at [8] and Clarke v R [2021] NZCA 96 at [14].

dresses and make up in the privacy of her cell but her physical transition will not progress while she is incarcerated. She feels as though this is a “double sentence” as she is left to suffer in a male body. She has harmed herself while incarcerated in response to receiving the distressing news that she would not be receiving certain surgeries.

[24]   The Crown say that the s 27 report does not add meaningfully to the s 38 report given that this also addressed Ms Electra’s background. Ms Mann submits that it is largely self-reporting, and the report does not provide a proper link between the appellant’s background and the offending.  The  report  relates  to  experiences  of Ms Electra following sentencing, when she has been moved to a male prison.

[25]   Mr Taylor acknowledges that a s 27 report could have been obtained at the time of sentencing.  Nonetheless I admit the s 27 report in the interests of justice.   As   Mr Taylor submits, the report does provide additional insight beyond those in the s 38 report into Ms Electra’s background and in my view does suggest some causal link between her experiences with gender dysphoria, her mental health, alcohol abuse, repression and her later offending.21 It thereby provides greater insight into discounts that should be considered.

[26]   There are statements in the report about medical matters such as the effects of hormone replacement that, as Mr Taylor acknowledged, the report writer has no relevant expertise to comment on. I do not take those aspects of the report into account.

[27]   Some of the experiences recounted to the report writer by Ms Electra of her time in prison are incidents after sentencing. They are relevant because they demonstrate the type of issues that Ms Electra was likely to experience and will likely continue to experience in prison.

[28]   While I admit the s 27 report, I do not consider the letter of remorse qualifies for admission. In it, Ms Electra explains the difficulties she was going through at the time of the offending, and she has since experienced in prison. She stresses she is not

21     Compare Poi v R, above n 20.

trying to justify her actions but rather to keep herself accountable and show what she is doing to “learn and put safeguards in place.” Ms Electra states that what she did was “messed up”, she doesn’t think that she will ever forgive herself and understands that the victims will probably never forgive her.

[29]   This is a belated expression of remorse. The time for expressing remorse was at sentencing. I consider it would be a rare case when such a letter would be admitted on appeal. I decline to do so. The letter strays into Ms Electra’s account of her experiences in prison. It is focussed more on the consequences for the offender than for the victims.

[30]I turn to the specific grounds of appeal.

Did the Judge err in setting the starting point for charge five?

[31]   Counsel for the appellant submits the Judge incorrectly set the starting point within band three of Taueki. Counsel contends that the main reason the offending was placed into band three was the presence of extreme violence which they submit cannot be seen to be an aggravating factor to charge five alone. While the offending as a whole can be viewed as extreme violence, the starting point is isolated to charge five which was not in and of itself extreme violence. Counsel accepts the other aggravating factors identified by the Judge but submits that that the totality of the whole incident is reflected in the two year uplift that accounts for the two other victims so the starting point for charge five alone should be in band two of Taueki.

[32]   Counsel submits a starting point of nine years should have been adopted in light of the offending being more serious than that in Heta,22 and less serious than the offending in Shen.23 Counsel accepts the offending in Heta is slightly less serious than the present offending. However, in light of the similarity in context counsel submits a similar starting point should be adopted in the upper end of band two.

[33]   In my view the Judge was correct to regard the aggravating factor of extreme violence was present and classify the offending as falling into band three of Taueki.

22     R v Heta HC Hamilton CRI-2010-019-5289, 12 May 2011.

23     Shen v R [2017] NZCA 103.

Extreme violence does not need to be repetitive and prolonged. The violence can be extreme if it is unprovoked or gratuitous violence.24 Even if the aggravating factor of extreme violence was not present, both parties agree with the Judge that there were four other aggravating factors present to at least a moderate degree. It therefore remains offending in the lower end of band three even if extreme violence was not considered to be an aggravating factor.

[34]   Overall, the key question on appeal is whether the global starting point is within the available range. The global starting point of 12 years and 10 months’ imprisonment was well within range for serious offending involving three charges of wounding with intent to injure.

Should greater discounts for mitigating factors have been given?

[35]   Counsel for the appellant agrees with the discounts given by the Judge but submits further discounts for cultural factors, remorse and impact of imprisonment should also be applied.

[36]   Counsel relies upon the s  27  report  to  contend  that  a  further significant 10 per cent  discount  should  be  granted  in  recognition  of  the  nexus  between  Ms Electra’s background and her offending. As outlined earlier, Ms Electra has experienced serious mental health difficulties due to complex issues she faces as a transgender woman. She has struggled with self-harm and alcohol abuse since she was young. While it does not excuse the offending, counsel submits that it does provide the context of what Ms Electra was struggling with at the time of the offending.

[37]   Counsel further submits an additional five to ten per cent discount is appropriate for the difficulties Ms Electra has and will face in prison. Ms Electra has been assaulted and bullied in prison. The distress of losing opportunities to undergo surgeries needed for transition has caused her to harm herself. She also has difficulty accessing hormone therapy and other support needed to ensure her transition. These

24     R v Taueki, above n 6. at [31].

difficulties make prison significantly harder on Ms Electra than others and this ought to be reflected by way of discount.

[38]   The Crown submits there is nothing in the s 27 report that warrants the discount sought by the appellant. The Crown considers it difficult to draw a causal nexus between her background as a transgender woman and her offending against her former partner. Counsel also states that the appellant’s mental health difficulties asserted in the s 27 report should be considered in the context of a denial of depression and anxiety symptoms during a psychological assessment in the s 38 report. Counsel contends the inconsistencies and lack of evidence mean that a causal connection between the appellant’s background and offending cannot be established.

[39]   In regards to hardship in prison the Crown acknowledges that an offender’s medical condition or ill health may justify a reduction in the length of prison sentence. Counsel submits no credit for likely hardship in prison is available in the circumstances of the appellant. The Crown emphasises how the courts have adopted a cautious approach so that this factor does not become a licence to offend and avoid culpability.

[40]   I acknowledge the need to be cautious. However, I have concluded that a modest discount is appropriate. A discount would acknowledge the impact for this particular defendant of the background trauma and gender dysphoria she experienced that are entangled with her mental health and alcohol struggles, plus as a transgender woman the fact that she will experience greater hardship in prison. I accept a degree of linkage to the offending. Accordingly, I approach the case by coming to a combined discount for these factors. R v Beaumont is a previous instance of a similar approach.25 In that case a discount was given for the defendant’s mental health background as well as the way the extra difficulty in prison may inhibit the defendant’s rehabilitation.26 R v Beaumont is one of a number of cases that recognise how personal

25     R v Beaumont [2019] NZHC 1235.

26     At [18]–[21].

mitigating factors can include the greater hardship likely to be faced in prison by a particular transgender person.27

[41]   I conclude that a total discount of an additional approximate 10 per cent is appropriate to reflect these combined factors. This would bring the end sentence to eight years.28

[42]   As discussed earlier, I declined to admit the remorse letter. I record that even had I admitted it, I would have given it limited weight. I am not persuaded that the remorse expressed is of a character that would justify a belated discount for remorse. The other aspects of the letter in substance outline Ms Electra’s experiences of prison. These feature in the s 27 report.

Should a minimum period of imprisonment have been imposed and/or was it too high?

[43]   The appellant submits that no minimum period of imprisonment should have been imposed but if it is appropriate, the minimum period of imprisonment should not exceed 50 per cent.

[44]   In a comprehensive report, the s 38 report writer concluded that Ms Electra presented a significant risk to others. She identified that Ms Electra had several historic risk factors. Among others, these include an antisocial personality disorder with borderline and narcissistic traits, violent attitudes and ideation, and antisocial behaviour. Several current clinical risk factors were also identified. The report writer concluded that Ms Electra had limited ability for self-reflection, judgement or insight and was deficient in empathy. The report writer also recorded that she externalised her behaviour and blamed others. Instability of mood and continuing violent ideation were also identified.

27 See also R v Warwick HC Auckland CRI-2010-057-000508, 15 June 2010 at [31]–[34]; Tua v  Police HC Auckland CRI-2011-404-340; 18 November 2011 at [26]; and R v Rudolph [2019] NZHC 1050 at [41].

28 This is the 154 total starting point (12 years 10 months) less 37.5%. This comprises 25% guilty  plea, 5% for rehabilitation prospects, plus 10% provided for in this appeal less 2.5% uplift for offending whilst on bail.  That leads to a sentence of 8 years and 0.4 months, which I round to   8 years for the purposes of this appeal. Refer for comparison R v Nelson, n 2 at [16].

[45]   Counsel for Ms Electra notes that the s 38 report predicted a high risk of violent incidents in prison and ambivalence to counselling. Instead, Ms Electra has apparently undertaken programmes in prison and counsel is unaware of any instances where she has been violent or caused issues while in prison. Counsel submits that a lack of previous relevant conviction history and the further analysis in the s 27 report, coupled with the effect of imprisonment and the significant struggles Ms Electra faces, support the submission that a minimum period of imprisonment is not appropriate, or that a lessor period was warranted.

[46]   I have given close consideration to the imposition of a minimum period of imprisonment in this case and concluded that this ground of appeal fails. Ms Electra reported to the s 38 report writer that she had deliberately committed the offences to get the help that she needed in prison and to solve her problems. This was part of the basis for the report writer’s conclusion that Ms Electra lacked empathy and that she uses others to achieve her goals. Ms Electra’s experience in prison as she recounts in the s 27 report indicates that she now appreciates that this was misguided to say the least. However, that does not detract from, or undermine the concerns in the s 38 report as to the behavioural and personality factors which lie behind Ms Electra’s comments as reported.

[47]   The offending here was serious. It came in the context of the Police charges which, when considered together, indicate an escalation. The offending was not confined to her intimate partner. The report writer’s concern that Ms Electra will present a danger to other prisoners has apparently not yet been manifest. But I do not accept Mr Taylor’s submission that this undermines the conclusions in the report.

[48]   As a separate issue, I also reject Mr Taylor’s submission that additional hardship to Ms Electra in prison should be taken into account on this aspect of the appeal. The issues in focus in imposing a minimum period of imprisonment are accountability, denunciation, deterrence and protection of the community.29 Potential hardship to Ms Electra in prison does not provide a coherent basis on which to remove

29     Sentencing Act 2002, s 86(2).

or reduce the minimum period of imprisonment because it is not sufficiently connected to those considerations.

[49]   I also have a level of unease at self-reporting in a s 27 report that is admitted on appeal being used to undermine clinical conclusions in a s 38 report based on the defendant’s history and how the defendant presented at the time of sentencing.

[50]   In my view the District Court Judge gave appropriate regard to the relevant considerations outlined in the s 38 report when he set the minimum period of imprisonment at 60 per cent. The factors identified in the report amply justify that conclusion. The s 27 report does not undermine the opinions that the s 38 report writer was qualified to give. There is no proper basis for interfering with the District Court Judge’s assessment on this issue.

[51]This ground of appeal fails.

Result

[52]   I have accepted that there should be an additional discount for personal mitigating circumstances of 10 per cent. The other grounds of appeal fail. Accordingly, the result is that the appeal against sentence is allowed. The final sentence is eight years.

Anderson J