[1] Ms Avery, on your guilty pleas to one representative charge of each robbery1 and assault with a weapon,2 van Bohemen J entered convictions against you in this Court on 4 July 2022.3 The Crown offers no evidence on the balance of its charges against you, and I dismiss them.

[2] I now am to sentence you on your convictions. In sentencing you, I must accept as proven all facts essential to your guilty pleas.4 The Crown suggests a starting point of seven-and-a-half years’ imprisonment, uplifted to eight years to include assault with a weapon. Your lawyer, Gerard Walsh, as you have just heard, recommends three years’ imprisonment, uplifted by three months but mitigated to home detention. I am not bound by their views. I am to come to my own decision. I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it.

Background

[3]I briefly address the background to your offending.

[4] After an encounter late the previous day, you and your two co-defendants co-ordinated to confront the two men and two women victims of your offending in their car at an isolated rural property at Hamilton’s Rotokauri in the early hours of Sunday, 16 January 2021. You stood over the victims in their car, to steal the victims’ jewellery, handbags and phonecards, demanding they reset their cellphones. Later, having kept the victims until dawn in a house on the property, you held a knife to one of the women’s waist to reinforce her compliance in accompanying you to extract money from one of the victims’ mother.

[5] I have victim impact statements from three of the victims, who say your offending against them caused them severe anxiety and stress, including of the associated publicity, leading to two losing wages, job, home and custody of their child

1      Crime Act 1961, s 234(1): maximum penalty, 10 years’ imprisonment.
2      Crimes Act 1961, s 202C(1)(a): maximum penalty, five years’ imprisonment.
3      R v Mudford HC Hamilton CRI-2021-019-0273, 4 July 2022 at [4].
4      Sentencing Act 2002, s 24(1)(b).

and relocating to the central North Island to be closer to family, and the third becoming seriously introverted and overly vigilant by reason of the risk you presented to her life.

[6] Aged 37 at the time of your offending, you have four drug-related convictions from the previous year, resulting in supervisory sentences to which you were then subject.

Personal circumstances

—PAC report

[7] The Department of Corrections’ pre-sentence report notes you have no real…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Avery

Details

AGLC: R v Avery [2022] NZHC 2223
Case: [2022] NZHC 2223
Decision Date: 1 September 2022

CaseChat Overview and Summary

In the case of R v Avery, the defendant, Shannon Jennifer Avery, was convicted of robbery and assault with a weapon. The sentencing hearing took place on 1 September 2022 before Jagose J in the High Court of New Zealand, Hamilton Registry. The main legal issues before the court were the appropriate starting point for the defendant's sentence, and the adjustments to that starting point based on personal factors and the defendant's guilty pleas. The Crown had suggested a starting point of seven-and-a-half years' imprisonment, uplifted to eight years to include assault with a weapon, while the defence recommended three years' imprisonment, uplifted by three months but mitigated to home detention.

The court began by setting a starting point for the defendant's sentence, taking into account the aggravating and mitigating features of the robbery conviction. The court noted that the defendant's offending was premeditated and planned, occurred at night on private property, and involved actual violence, causing material and lasting impact on the victims. The court determined that the starting point for the defendant's sentence should be four years and six months' imprisonment. The court then considered the personal factors and the defendant's guilty pleas, allowing discounts of 20% for personal factors, 5% for spending an extended period on bail, and 15% for the guilty pleas. This resulted in a final sentence of two years and eight months' imprisonment for the robbery conviction, and twelve months' imprisonment for the assault with a weapon conviction, to be served concurrently.

In conclusion, the court sentenced the defendant to a total of two years and eight months' imprisonment for her convictions of robbery and assault with a weapon. This sentence reflects the gravity of the defendant's offending, while also taking into account personal factors and the defendant's guilty pleas. The court has satisfied the purposes of sentencing, including holding the defendant accountable for her actions, denouncing her conduct, and providing deterrence and community protection.

Orders