R v Avery

[2022] NZHC 2223

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-019-273

[2022] NZHC 2223

THE QUEEN

v

SHANNON JENIFER AVERY

Date of hearing:	1 September 2022
Appearances:	B T Vaili for the Crown G A Walsh for Ms Avery
Date of sentence:	1 September 2022

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:

G A Walsh, Barrister, Hamilton Hamilton Legal, Hamilton

R v AVERY [2022] NZHC 2223 [1 September 2022]

[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 history of offending against others, but of some drug and alcohol offending. Physical injury from violence in your childhood and more recent past, coupled with drug use, removed you from gainful employment and into antisocial environments, including that of the present offending.

[8]                 You have taken the initiative of substance abuse rehabilitation, and would seek also to address anger management and other disorders in the same structured way. You are ashamed of your contribution to the victims’ distress.

—s27 report

[9]                 You have asked I hear Raecheal Riddell (Kingi) on your background and its contribution to both your offending and your rehabilitation. Ms Riddell reinforces your sister’s support for you after growing up in a dysfunctional family and with abusive or otherwise damaging personal experiences and relationships.

—other correspondence

[10]              I also have read your letter to me, expressing your remorse and commitment to rehabilitation, as evidenced by your Te Piki Oranga attendances. And I also have read the confirmatory references from other people in your life, who support you in your development.

Approach to sentencing

[11]              I now turn to explain how I will sentence you. I take a two-stage approach: first, to identify a starting point for offending of this type. That involves identifying the offending’s aggravating and any mitigating features.5 Second, I take into account all aggravating and mitigating factors personal to you, together with a discount for your guilty pleas, all calculated as a percentage of the starting point.6

[12]              I must have regard for the statutory purposes and principles of sentencing.     I must hold you accountable for your offending and for the harm you have caused. Your sentence should be sufficient to denounce your conduct, to deter you and others from committing such offences, and to protect the community. I must consider the gravity (or seriousness) of your offending in comparison with other types of offences, and take into account its effect on the victims. Consistency in sentencing is desirable, but I must take into account anything in your circumstances as would make an otherwise appropriate sentence “disproportionately severe”. I must impose the least restrictive outcome appropriate in the circumstances, consistent with appropriate sentencing levels.7 These purposes and principles of sentencing have no  ranking.8 My ultimate consideration is if “the sentence is a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.9

Analysis

—starting point

[13]              My first step is to set a starting point for your sentence. I take the robbery conviction as your lead offending.

[14]              There are complications in addressing robbery here: your acceptance of the Crown’s summary of facts prepared for substantially more serious aggravated robbery offending means your robbery offending must be near to the most serious of robbery

5      R v Taueki [2005] 3 NZLR 372 (CA).

6      Moses v R [2020] NZCA 296 at [46]–[47].

7      Sentencing Act, ss 7 and 8.

8      Moses v R, above n 6, at [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].

9 At [49].

cases. Only your personal circumstances then would avoid a penalty near to the 10-year maximum.10 On the other hand, that does not mean I should just calculate a comparable deduction from an aggravated robbery sentence.11 Rather, I should sentence you for your admitted robbery, from the perspective of its particular aggravating and mitigating features.12 The distinction between the two can be seen on resentencing for robbery after quashing an aggravated robbery conviction, reducing seven years’ imprisonment to four years and six months.13

[15]              Your offending is aggravated by being premeditated and planned; together with others, although still outnumbered by the victims; occurring at night on private property, to which the victims were invitees and you and your co-defendants were intruders (although none of you was there for any ultimately legitimate purpose, and therefore I reject any aggravation as home invasion); at which the victims’ car was blocked and they were detained from leaving until daylight; accompanied by actual violence; and giving rise to material and lasting impact on the victims. Your offending has no mitigating feature.

[16]              Such is to uplift robbery’s 18-month to three-year baseline to four years’ imprisonment,14 which I took as my starting point for your co-defendant, Mr Mudford, for his lead in the group offending. Given your standalone role in accompanying one of the victims to extract money from her mother, although that is not part of the robbery charge, I see no reason to adopt any different starting point for you.15 I increase that by six months to account in totality for your assault offending and offending while subject to sentence.

[17]              So my overall starting point for you is four years and six months’ imprisonment. That appropriately engages sentencing’s denunciation, deterrence and community protection purposes.

10     Sentencing Act, s 8(d).

11     King v R [2019] NZCA 413 at [19].

12     Heteraka v R [2013] NZCA 339 at [23]–[24].

13 Piwari v R [2010] NZCA 19 at [31].

14 R v Lunjevich [2012] NZCA 454 at [23], citing R v Mako [2000] 2 NZLR 170 (CA) at [59]; Heteraka v R, above n 12, at [28]; and Piwari v R, above n 13, at [31]. Otufangavalu v R [2010] NZCA 585 at [6], Kelly v Police [2016] NZHC 2233 at [37] and Bell v Police [2016] NZHC 1715 at [23] are generous outliers, explicable by dismissal of their appeals.

15 Piper v R [2012] NZCA 104 at [28].

—adjustment for personal factors and guilty plea

[18]              I turn to consider uplifts or discounts from that starting point for your personal factors, including your guilty pleas.

[19]              I acknowledge Ms Riddell’s explanation of your background’s contribution to your offending,16 your remorse and  your self-starting efforts  toward rehabilitation.  I will allow a 20 per cent discount under this head. I also recognise you have spent an extended period on bail — including under curfew, later relaxed — without issue and (more importantly) constructively towards your rehabilitation. I will allow an additional five per cent discount here.

[20]              I will also allow a 15 per cent discount for your guilty pleas. That recognises the concession inherent in the Crown’s acceptance of the lesser offending.17

[21]              That brings me to an end sentence of two years and eight months’ imprisonment, rounded down. That additionally engages sentencing’s purposes for your accountability and responsibility.

Sentence

[22]              Ms Avery, please stand. On your robbery conviction, I sentence you to imprisonment for a term of two years and eight months. On your assault with a weapon conviction, I sentence you to twelve months’ imprisonment, to be served concurrently with that for your robbery conviction. That means your total sentence is for two years and eight months. You may stand down Ms Avery.

—Jagose J

16     Waikato-Tuhega v R [2021] NZCA 503 at [51].

17     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63].