R v Anderson

[2012] NZHC 231

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-090-1776 [2012] NZHC 231

THE QUEEN

v

STACEY JAYNE ANDERSON

Hearing:         22 February 2012

Counsel:         J Jelas for Crown

J Gerard for Prisoner

Judgment:      22 February 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:

J Jelas, Meredith Connell, Auckland:  [email protected]

J Gerard, Barrister, Auckland:  [email protected]

R V ANDERSON HC AK CRI-2011-090-1776 [22 February 2012]

[1]      Stacey Jayne Anderson: you appear for sentence having been found guilty by a jury of the attempted murder of your former domestic partner.  The charges arose from a violent attack on your partner, who was then asleep, or nearly asleep, beside you, in which you struck him four times in the head and neck with a screwdriver. Although one blow penetrated your victim’s cheek into his mouth, the injuries fortunately were not as serious as they might have been and the complainant has not suffered any lasting injury.

[2]      You had been in a defacto relationship with him for some nine years since you left home at the age of around 17.  You have two daughters, now aged nine and five, from what you describe as a violent relationship but one which appears to have been punctuated by periods of relative domestic harmony from time to time.  You described those periods to the jury as occurring most often when your partner was able to obtain access to drugs.  There were at least two periods of separation, and in

2004 you obtained a protection order which was in force at the time of this offence. Nevertheless, it appears that you allowed the complainant to return to your home from time to time as you did on this occasion.

[3]      In December 2010, you had agreed with your partner that the relationship would finally be brought to an end.   He was due to travel north to see family members on Saturday the 18th  December, and he was going to take at least one of your children with him.  He was then going to return to Auckland to live with his grandmother.  You had agreed to spend the day together on Friday the 17th and with your consent he stayed overnight.  Your brother was also living with you at the time and the three of you spent some time drinking in the evening, although I accept that you consumed only a small amount of alcohol and that that was not a factor in your offending.

[4]      The complainant and you shared a bed and spent a good deal of time talking about your relationship and the complainant’s plans for the future which included, at least in his mind, the prospect of establishing a relationship with another woman. Sexual intercourse took place in the early hours of the morning on two occasions.

[5]      You  told  the  Police  you  had  been  raped  on  those  occasions,  but  on investigation the Police were of the view that there was insufficient evidence to justify prosecution.   I accept, however, that you had been subjected to unwelcome sex on many occasions in the past and that, having regard to your attitude towards the complainant and his previous violence towards you, you did not welcome his sexual advances on this night.

[6]      In looking at all relevant factors in order to determine the sentence to be imposed upon you, I am required to consider, first, the seriousness of your offending and establish an appropriate starting point.  I will do that by comparing this case with other similar cases and then by looking at the guidelines set by the Court of Appeal for sentences for serious violent offending.

[7]      In one other case[1] I have referred to there had been an argument between the offender and her husband during which dishes and a bottle of cooking oil were thrown  in  the  kitchen.    As  the  argument  continued,  the  offender  picked  up  a butcher’s knife and stabbed her husband.  Initially she said he could lie there and die but later she asked her brothers to drive him to the hospital.  Sentencing the offender after she pleaded guilty to a charge of attempted murder, the Judge took into account the  fact  that  the  victim  was  not  particularly  vulnerable  and  that  this  was  a spontaneous outburst.  A starting point of three-and-a-half years’ imprisonment was adopted on account of the seriousness of that offending.

[1] R v Amohanga HC Hamilton CRI-2006-019-2933, 6 March 2007.

[8]      In another case,[2]  the offender was found guilty after a trial of the attempted

[2] R v Rawiri HC Christchurch CRI-2005-009-13229, 7 December 2006.

murder of her daughter’s partner, the father of the offender’s three grandchildren.

[9]      After  a large  drinking  session,  there  had  been  an  argument  between  the offender and  the victim during which the offender was knocked to the ground. Shortly afterwards the offender approached the victim from behind and stabbed him in the head with a kitchen knife.   When the victim turned around he was stabbed

twice  more  in  the  shoulder  and  the  hand.     A  starting  point  of  five  years’

imprisonment was adopted in that case.  In my view, the circumstances of this case fall somewhere between those two.

[10]     I now turn to looking at guidelines set by the Court of Appeal for sentencing in a case such as this.

[11]     A number of features of the facts as I have described them are relevant to this exercise.  First, you used a weapon in carrying out your attack; second, your victim was asleep or almost asleep at the time of your attack and he posed no immediate threat to you; third, the blows you struck at your victim were aimed at or near his head and neck area which is recognised as being a particularly vulnerable part of the body and one susceptible to serious injury; fourth, there was an element of premeditation in your actions.

[12]     Found in the bed where the attack took place was a large kitchen knife.  You also had a hammer beside your bed.  You said that you kept these weapons by your bed for some years as protection, given your partner’s involvement in drugs and at least one prior instance of an invasion of your home.  Nevertheless, you described to the Police in some detail how, after the second intercourse, you brooded outside for a while before picking up a screwdriver on your return to the bedroom and to the bed in which  your partner was half  asleep.   You  said  you had chosen that weapon because you thought it would be better for your purpose.

[13]     You made it very clear at the time of your initial assault with the screwdriver, that you wanted to kill your victim.  After he escaped to the bathroom, when you smashed at the door with the hammer, and then again in the kitchen and outside as he fled, you repeated that you wanted to kill him.  You told the Police in the lengthy interview that you gave that you wanted your partner dead and that you would not have cared or might even have smiled if you had been told that your victim had died.

[14]     Looking at all of these factors alone, a starting point in the vicinity of five years would be appropriate, in my view.  But there is a background to this offending which goes some way to explain why a woman with no prior criminal history of violence could behave in such an extreme manner.

[15]     I am satisfied that you were the victim of a lengthy abusive relationship with your partner and that your actions can be explained by the release of pent-up anger. Without the benefit of an expert psychological assessment, I am not prepared to speculate why you waited until a few hours before your relationship was due to finally come to an end to attack your partner in this way.   But the events of the evening appear to have summarised for you the entire relationship.   There were moments of harmony that evening as your partner and you discussed the history of your relationship and your separate futures at some length, but a culmination of what you regarded as excessive and unwanted sexual demands, and the sneering inquiry by your partner as to whether you had enjoyed it, appear to have caused a release of your pent-up anger.

[16]     Having had the benefit of seeing the recording of the very frank interview which you gave to the Police over some hours, I am satisfied that, notwithstanding the elements of premeditation in selecting and using the weapon, and using it at a time when you were not under any immediate threat of physical harm, there are special circumstances in this case which justify taking a lenient starting point of three-and-a-half years’ imprisonment.

[17]     I  then  turn  to  consider  what  personal  circumstances  either  aggravate  or mitigate your offending.   You are now aged 27 years.   You suffered significant trauma at a vulnerable time in your life, around the age of 12 or 13, when your mother died and when you lost part of one leg through amputation after you were hit by a train.  You left school at the age of 16 and began a hairdressing apprenticeship which ended when you became pregnant and ran away with the complainant.  You say, and I accept, that the nine or ten year relationship with the complainant has been violent throughout.  That, and the traumas you experienced as a child, may go some way to explaining why you are said to have an anger management problem. Nevertheless, apart from the one blemish of an excess breath alcohol charge, which I disregard, you have no criminal history and there is no evidence of any abuse of alcohol or drugs.

[18]     I have given careful consideration to the background to your offending and the fact that it was focused very much on release of anger at a man who had abused

you over many years.  However, taking into account all of the circumstances of your attack, I have concluded that a community-based sentence would not be an appropriate recognition of the seriousness of your offending.   And I acknowledge that Mr Gerard has told me that you also accept that a period of imprisonment is inevitable.   Imprisonment is necessary to denounce your behaviour and hold you accountable for your actions in carrying out a serious assault.  It is also necessary to act as a deterrent to others who might be minded to take the law into their own hands in the same way.

[19]     In determining that imprisonment is necessary I have taken into account the views of Mr Wynn who says that he is reluctant to see you go to Prison because he is concerned you will not cope with it, and that he still loves you.  He acknowledges that you cannot live together but he wants to stay on civil terms so that you can care for your children without any problems.   He says that his daughters are the most important thing to him.

[20]     I accept that there are aspects of your personal circumstances which will make a term of imprisonment more difficult for you to deal with than might be the case for some others.   First, your disability may place you at something of a disadvantage, although I have no doubt that the Prison authorities will recognise that. Second, I note particularly that a period of separation from your daughters will be hard for you and for them.

[21]     In taking into account the interests of your children, I am encouraged by the fact that your father and step-mother remain close to them and that they have applied for orders giving them formal care of the girls.  I encourage you to embrace that as an appropriate family response to your circumstance and to do what you can to reconcile with your father and your step-mother, particularly so far as the future is concerned.  I am satisfied because of their interest and involvement that the period of imprisonment which is inevitable in this case will not have any undue adverse affects on your girls, and I am aware that proper facilities can be made available during your imprisonment for regular and worthwhile contact with your daughters.   You are entitled to credit for your good record.

[22]     Having regard to all of these personal factors and being mindful of the need to impose a period of imprisonment which is as short as is possible in the circumstances, I make a further reduction of one year from the three-and-a-half year starting point.

[23]     Despite your fulsome admission to the Police of what you did and of your intention to kill your victim at the time of your assault, you did not plead guilty. And there is no evidence that since your conviction you have expressed remorse on your part for the harm you did to the father of your children.  I do accept what Ms Jelas says, however, that you appeared to indicate some remorse while you were giving evidence before the jury.  However, no further discount on account of a guilty plea or remorse is appropriate.

[24]     Because Mr Wynn has a relationship with his daughters and wants that to continue, and because in due course you will be returned to the community to have continued responsibilities for your children – perhaps with the support of your father and step-mother – you need professional assistance to come to terms with the underlying causes for your attack.  You need to recognise that in the longer term it will be necessary for you to have a continuing relationship with Mr Wynn who will remain the father to his children and, it seems, close to them.

[25]     I record for the attention of the authorities, therefore, my view that  you should undergo assessment for an anger management programme and such other counselling which should be provided to you to assist you in the future.  I agree with Mr Gerard that you appear to be a woman of considerable potential and I hope that you will realise it in the future.

[26]     Please stand Ms Anderson.   Taking into account all of the factors I have discussed, including the need to mark your offending with an appropriate period of imprisonment, you are sentenced to imprisonment for two-and-a-half years.  Please stand down.

..............................................

Toogood J