R v Albert

[2013] NZHC 3354

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-055-002640 [2013] NZHC 3354

THE QUEEN

v

JANE MURFITT ALBERT

Charges:

Plea:

Causing grievous bodily harm with intent to cause grievous

bodily harm x 1
Burglary x2

Guilty

Appearances:

E McCaughan for Crown
M A Edgar for Prisoner

Sentenced:

13 December 2013

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to :           M A Edgar, Auckland

R v ALBERT [2013] NZHC 3354 [13 December 2013]

[1]      Jane Albert, at the age of 46 you are for sentence having pleaded guilty to one charge of causing grievous bodily harm with intent to cause grievous bodily harm and two charges of burglary.   The maximum penalty you face is 14 years’ imprisonment.  The charge of causing grievous bodily harm is a three strike offence. You have already been given a warning when you entered your guilty plea.

[2]      Until shortly before the offending you lived at an address in Papakura with the victim.   You and she are related.   As a result of a domestic incident at that address,  about  three days  before this  particular  incident,  you  moved  out  of the address.  Three days later, shortly after midnight on Saturday, 28 October 2012, in other words in the early hours of Sunday morning, you went to the address of the victim’s parents, together with your daughter Hinemoa Epere.   You banged and kicked at the door and forced your way into their home when the door was answered. You did not have permission to enter.  You demanded to know where the victim and her children were.   You were told they were not at that address and were told to leave.  You only left when you were told the police were on their way.  As you were leaving  the occupants  heard  a number  of smashing windows.   Windows  to  the property and windows to several cars were smashed.

[3]      The victim’s parents were so concerned about the matter they alerted the victim to what you done and your intentions. About 20 minutes later you went to the address where the victim was living with her partner, her 10 year old daughter and a boarder.  As I noted, the victim had been warned that you were looking for her.  She and her partner attempted to barricade the door of the house.  Just before half past 12 you, your daughter, the co-accused Hinemoa Epere, together with a male co-accused arrived at the address.  The three of you began to kick at the front door.  You were shouting “Tania.  Where the f are you?  Get the f out” and “Tania get out here, I’m gonna smash you”.  It became apparent you were going to break through the glass front door.  The victim and the others sought refuge in the boarder’s bedroom.  They leaned against the door to prevent it being opened.  The three of you smashed your way  through  the  front  door  and  made  your  way  through  the  house,  and  then attempted to force your way into the boarder’s bedroom.   By this stage you had obtained a baseball bat which was used to smash a hole through the door.

[4]      At that stage the victim’s partner ran to get help leaving her and others in the room.  You broke your way into the bedroom.  Your male co-accused then began to hit the victim with the baseball bat while she was cowering on the floor. At the same time you stomped on her legs and body.  Your male co-accused then handed the bat to you.  You proceeded to hit the victim’s head and body with the bat.  The police arrived at the scene while you and your two co-accused were present.  You said to the police that “Hope she enjoys getting bruised up” and “Lucky I wanted to half murder her”.  As a result of being assaulted the victim was hospitalised.  Her right elbow was dislocated and fractured, her right knee was fractured and she had a laceration which required stapling on the back of her head.  She had multiple bruises and scratches.

[5]      The victim’s impact report confirms that as a result of the injuries sustained she is still unable to perform ordinary tasks such as lifting, running or crossing her legs.  She is still fearful and struggles to sleep at night.  She is particularly upset that she was  attacked  in  her own  home and  the  assault  you  meted  out  on  her was witnessed by her young child.   The other victims of your first burglary are also affected by your actions.

[6]      The pre-sentence report discloses you have had a hard life.  You were made a ward of the State when eight years old.  You had your first of 10 children when 17. You suffer from medical conditions which you say were as a result of the actions of the victim and other members of her family.  You have grown up in an environment of violence, which unfortunately you are perpetuating by involving your own daughter and family in the current offending.  You were fuelled by alcohol at the time.

[7]      In sentencing you this Court is required to take into account the purposes and principles  of  the  Sentencing Act.    In  the  present  case  the  particularly  relevant features are the need to hold you accountable for offending of this nature;  to attempt to promote in you a sense of responsibility for and acknowledgement of the harm that your actions and offending have caused the victim and the victim’s family;  also to denounce your actions and to deter you and others from similar violent offending, which regrettably is all too prevalent in society.

[8]     The Crown argues for a starting point in the region of 9 to 10 years’ imprisonment.   Mr Edgar argues for a starting point of five years and submits a discount of between 15 and 20% is appropriate for your guilty plea.  He also submits that some allowance should be made for remorse and that account should be taken of time served in custody. As to that, the Parole Act 2002 provides for that situation.

[9]      I take as the lead offence for sentence the offence of causing grievous bodily harm.  In R v Taueki the Court of Appeal set out a guideline for sentencing for such offending.1     Band two in Taueki sets a range of between five and 10 years as a

starting point.  It gives as an example a premeditated domestic assault as:2

A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would  require evaluation of  the  seriousness  of  those  factors. Where  the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

[10]     Band three sets the starting point range of nine to 14 years’ imprisonment. The Court gave this example in band three:3

Serious domestic assault: In a domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the band 3 range may well be required.

[11]     I consider your offending falls into the top of band two range or towards the bottom of band three offending.   You deliberately sought out the victim with the intention of inflicting violence on her.  You were shouting words to that effect before you broke into her home.  You made it clear to the victims of the first burglary that you were after the victim.  You confirmed that when you spoke to the police when they attended the scene after your assault.   Your actions confirmed your intention was to inflict serious harm on the victim.  I reject the suggestion by Mr Edgar that you had gone to the property with the intention of recovering property.   That is

completely contrary to the summary of facts which you have pleaded guilty to.

1      R v Taueki [2005] 3 NZLR 372.

2      At [39](c).

3      At [41](b).

While I accept counsel’s point that you did not take the baseball bat to the property, nevertheless you and your co-accused used the baseball bat.  You forced your way into the victim’s home in the middle of the night and used the baseball bat to force your way into the bedroom where she was sheltering and hiding.  You also used the baseball bat during the course of the assault on her.

[12]     Mr Edgar has submitted that you were provoked because of the previous incident that had taken place on the Wednesday when you had been evicted from the Papakura address and that you yourself had been assaulted.  However, that incident took place several days before this particular incident.   As the Court of Appeal

observed in Taueki4  it is not enough simply to claim to have been provoked by the

actions of the victim.   The Court must be satisfied there was serious provocation which was an operative cause of the violence, and which remained an operative cause.  The earlier incident three days earlier cannot be said to be an immediate and continuing operative cause of your offending.  You cannot excuse what you did this night by referring back to that earlier incident.   This was not provocation.   It was intentional revenge on your part.

[13]     While not a particularly sophisticated attack it was nevertheless planned as evidenced by the number of you that attended and forced your way into the victim’s home.  The attack is aggravated by the fact that the victim was defenceless at the time.  You stomped on her and beat her while she was defenceless on the floor.  You used a weapon against her.  There were multiple attackers.  She has sustained serious injuries as a result of the attack and still suffers as a consequence.   Finally, it is relevant that you did break into her home and then broke into the room that she was seeking to shelter in.

[14]     I also take into account in fixing a starting point the need for totality to also take into account the previous incident of burglary and the charge of burglary in this case, although I accept the second burglary in this case is largely subsumed in the grievous bodily harm charge.   Having regard to all those factors I take a starting

point of nine years, three months’ imprisonment.

4      At [32](a).

[15]     While you have a number of previous convictions I do not intend to uplift the starting point for those.  You only have one assault conviction in the past and that was in 1995.

[16]     Mr Edgar submits you are remorseful and entitled to a reduction for that.  The Crown does not accept that submission.  The pre-sentence report suggests that you are remorseful, and that you regret assaulting a relative.  On balance I consider that some modest allowance may be provided for that in that I hope your acknowledgement of what you did was completely unacceptable, is genuine.   For that I allow a reduction of three months.

[17]     In terms of mitigation Mr Edgar argues for a discount for your guilty plea of

15 to 20%.  The Crown accepts a discount of 15% is appropriate given you pleaded guilty  on  Friday before  the  trial.    While  the  aggravated  burglary charges  were reduced to burglary, however, the focus of the case against you was always on the grievous bodily harm charge.  You should have accepted responsibility for your role in that at a much earlier stage.  I consider the 15% suggested to be generous.  The police case was obviously a strong one.   You were still at the property when the police arrived and made clear admissions of your involvement.  However, I allow a reduction approaching 15%.

[18]     Please stand.  Ms Albert, on the charge of causing grievous bodily harm you are sentenced to imprisonment for seven years, eight months.   On the charges of burglary in each case you are sentenced concurrently to imprisonment for two years, two  months.    That  is  concurrent.    The  effective  sentence  is  seven  years,  eight

months.  Stand down.

Venning J