R v Blackett
[2017] NZHC 1120
•26 May 2017
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-044-1785 [2017] NZHC 1120
THE QUEEN
v
WAYNE EDWARD BLACKETT NICOLA JONES
JULIE-ANN TORRANCE
Hearing: 26 May 2017 Counsel:
B Dickey and H Steele for Crown
M Edgar for defendant Blackett
M Pecotic for defendant Jones
N Wintour for defendant TorranceJudgment:
26 May 2017
[REDACTED] SENTENCING NOTES OF WHATA J
Solicitors: Meredith Connell, Auckland
R v BLACKETT AND ORS [2017] NZHC 1120 [26 May 2017]
Introduction
[1] I commence by reminding everyone that the name of the victim is suppressed. And so, for this purpose, I will simply refer to her as N.
[2] Before I go further I also wish to acknowledge again the victim and the family. This, as I said previously, must have been a harrowing experience for the victim, and traumatic for her family.
[3] Mr Blackett, you pleaded guilty to kidnapping and an attempted murder of the victim, N, in May 2016.
[4] Ms Jones, you pleaded guilty to kidnapping N in April and in May 2016, aggravated robbery and three acts of assault with a weapon (with scissors in April
2016, and with a cricket wicket and scissors in May 2016). You were also convicted of assault with a weapon (a taser during the April offending), injuring with intent to injure, one charge of threatening to kill, and attempted murder.
[5] Ms Torrance, you have pleaded guilty to the kidnapping in April and May, the aggravated robbery, injuring with intent to injure and three acts of assault with a weapon (scissors and a taser in April, and a cricket wicket in May). You were also convicted on 20 March 2017 of a further charge of assault with a weapon (the scissors in May), sexual violation by unlawful sexual connection and attempted murder.
[6] You all face a maximum sentence of imprisonment on the charge of attempted murder of 14 years’ imprisonment. I also note, Ms Torrance, that in respect of your sexual violation charge, you face a maximum term of imprisonment of 20 years.
[7] You may be seated until I ask you to stand.
The general facts
[8] The general facts of the offending were set out in my sentencing of Mr Hakeke and Ms Blom. It is, regrettably, necessary to repeat them for your sentencing.
[9] The victim, N, was 19 years old at the time of the offending. N was known to you, Ms Jones, as her mother had taken you in when you were a teenager. She was also known to you, Ms Torrance, through your connection to Ms Jones. Mr Blackett, your connection to N was largely limited to your role in the attempted murder.
The threat to kill
[10] Ms Jones, your threat to kill is recorded in various texts to N’s mother. To
illustrate, on 10 January 2016 you sent a text saying:
“I’m going to kill her [Suppressed]”; “If I see her I’m going to kill her”; and “So your daughter is history”.
[11] The background to this text is that, Ms Jones, you thought N had slept with your ex-partner and reported you to Child Youth and Family Services. I only mention this to provide context to your text and the subsequent offending. Plainly it is not a mitigating factor.
The April kidnapping
[12] The first kidnapping took place on 22 April 2016. Late on that evening, Mr Hakeke lured N to his address in Green Bay under the pretence of wanting to buy methamphetamine. Ms Jones and Ms Torrance, you were waiting at the address and, upon N arriving, you attacked her. You both tasered her and cut her hair. You then forced N to sign over her car and then took her out to the Bombay Hills and left her there, telling her not to return to Auckland. You also kept her iPad and other personal items that were in the car.
[13] As a result of this offending, N was left with bruises all over her head and body. Her hair was roughly hacked off and she had cuts to her scalp in several places.
The May offending
[14] The second kidnapping took place in May 2016, as I have noted.
[15] On the evening of 7 May, N was working as a prostitute on a side street off Karangahape Road. Ms Jones and Ms Torrance, you, together with Ms Keates and Ms Blom, were nearby in Auckland Central.
[16] At about 11 pm, you chanced upon N. Ms Jones, you forced her into the car. She was seated between you and Ms Blom. Ms Torrance, you were driving. You all then returned to Ms Blom’s residence in Kelston. At some stage N was forced into the boot of the car and sometime later, Ms Jones and/or Ms Torrance, you took N into the basement.
[17] N was stripped naked and bound with plastic cable ties around her wrist and ankles. She was forced to the floor in a bent over position. Ms Keates then stomped on N’s hand while you, Ms Jones and Ms Torrance, encouraged her to do so. Two of N’s fingers were broken as a consequence.
[18] Ms Jones, you struck N with a cricket bat or wicket, it doesn’t really matter, and, Ms Torrance, you struck her with a cricket wicket causing bruising. During this time the two of you also roughly cut her hair.
[19] The abuse did not stop there. At some time during N’s detention, Ms Keates shoved a cricket wicket into N’s anus. Ms Torrance, you encouraged her to do so. There is also strong evidence that either you, Ms Torrance, or Ms Keates forced N to eat the faeces off the end of the wicket. Either way, you were clearly party to this abuse.
[20] In total, this detention spanned approximately 22 hours.
[21] At some point, Mr Blackett, you were asked to help deal with N and on Sunday 8 May, you all dressed N in overalls and the three of you bundled her into the tray of Mr Blackett’s Toyota Hilux.
[22] The three of you then drove N to a remote area in the Dome Valley, stopping on the way to buy some refreshments.
[23] Once at Dome Valley, you dragged N out of the back of the ute and onto the gravel road. Ms Jones and Ms Torrance, you were heard by N laughing and snickering and, Ms Jones, you held a torch while you, Mr Blackett, tried to break N’s neck, tried to strangle her, and then struck her with a 20 ounce builder’s hammer a number of times.
[24] N was knocked unconscious and left for dead on the roadside. She was located unconscious still the next morning at about 7.00 am with cable ties around her wrist and ankles and with severe head injuries.
[25] These included life threatening skull fractures with open wounds, and her body temperature was so low that medical staff initially struggled to get a reading. She also had compression damage to the artery in her neck, indentations around her wrists and ankles from the cable ties, and has brain damage and some right side paralysis as a result of the abuse committed against her.
Specific findings
[26] I now turn to my specific findings of fact in relation to each of you.
Ms Jones
[27] I am satisfied that you were actively involved in all key aspects of offending except the sexual violation. You were, initially at least, the most motivated to abuse the complainant. More specifically, in addition to the threat to kill, I find you were actively involved in and/or supported both kidnappings, the taser, the cricket wicket or bat assaults, the cutting of N’s hair on two occasions, the robbery, and the stomping on N’s hand and the attempted murder. There is evidence that you
attributed the attempted murder to Ms Torrance and I accept that there may have been some cajoling from Ms Torrance to murder N, but it is clear that you assisted by holding the torch while Mr Blackett struck N and did nothing meaningful to protect her before, during or after this brutal attack on her.
Ms Torrance
[28] Of all of the offenders, Ms Torrance, I consider you are the most culpable. You were actively involved in all forms of serious abuse in both episodes of the offending and on all of the evidence you were the most engaged in causing N harm. It appears that you were angry at N because you thought she had stolen some jewellery of your recently deceased daughter. I refer to this because it supports the Crown case that you were motivated to harm N. While your anger at the alleged theft is perhaps understandable, the scale of the abuse is difficult to comprehend, particularly given its callousness and depravity.
Mr Blackett
[29] Mr Blackett, you carried out the attempted murder in three ways; trying to break N’s neck, strangling her and then bludgeoning her to the head with a hammer. The kidnapping was all part of that attempted murder. You were not otherwise involved in the previous abuse.
Victim impact statements
[30] I have considered the victim impact statements of N, her mother and father. I addressed these in the earlier sentencings but it is important to acknowledge them again today.
[31] N has, understandably, been deeply affected physically and emotionally by the offending. N has described the ongoing recovery from her head injuries, which have included surgery, a lengthy period of therapy, counselling, and sleep medication. She also refers to emotional harm, especially at having her hair cut, which she describes as her pride and joy.
[32] N’s parents also, understandably, refer to the significant emotional harm that they have suffered as a consequence of the offending. It has come at a financial cost with N’s father having to forgo work to support N through the trial process and N’s mother having to take time off to provide full time care for N.
PAC and Psychological Reports
[33] I now turn to your personal backgrounds. I have the benefit of your PAC and psychological reports for this purpose.
Mr Blackett
[34] Mr Blackett, you are 39, of Pakeha descent. You are currently single, have seven children, three of whom are your own and the others from a previous marriage. You were working as a property manager prior to your remand, and have an extensive history working as a builder.
[35] You have been before the Court on several occasions but this is your first appearance for violent offending.
[36] You accept the majority of your role in the offending, but you minimised the extent of damage inflicted on N at the Dome Valley, saying that you only hit her five times and not that hard. You also deny strangling N and attempting to break her neck. As a result of the brutality of your attack, your risk of harm is assessed by the PAC report writer as high, with a medium risk of reoffending. The report notes that you say N has been on your mind since your offending, and that you would like to express your remorse to N through a restorative justice meeting. I have also read your letter today in which you express quite clearly sadness and remorse at what has occurred.
[37] The psychologist’s report notes that you have had a very difficult upbringing, marked by physical [ Suppressed ] abuse. The passing of your first wife, and separation from your children preceded, it appears, an addiction to methamphetamine. But you have denied any significant mental health difficulties,
though you reported one instance in which you contemplated suicide. Following the
death of your mother, you reported being a “functioning alcoholic”.
[38] The psychologist considers your upbringing, including financial hardship and being bullied for being poor, has likely impacted on your confidence and ability to engage in meaningful relationships, as well as leading to you using substances to block negative emotions. The psychologist considers it is highly likely your offending was largely driven by a state of intoxication and lack of sleep.
[39] The psychologist considers that you have a moderate risk of recidivism and while you took responsibility for your offending, you still show limited insight into it. It is noted that the staff at Corrections describe your behaviour as “outstanding”, and that your cousins have supported you since remand.
[40] Overall the psychologist concludes that you have a moderate risk of reoffending, with a high risk of violent offending only if you return to substance abuse and association with antisocial peers. On account of this, entry into rehabilitative programmes is recommended.
Ms Jones
[41] Ms Jones, you are 29 years old, of Ngati Whatua. Your upbringing was traumatic, marked by instability, exposure to drug abuse - your mother was a heroin addict - domestic violence and [ Suppressed ] abuse at a young age. You ran away from home at the age of 12 to escape the violence and this, in fact, is when you first came into contact with N’s mother. She took you in as a live-in nanny.
[42] You abused drugs from a young age, escalating to methamphetamine use at about 16. Indeed, you became immersed in the world of methamphetamine, forming a relationship with a methamphetamine dealer at 17; and at 18 you began working in the sex industry, in your words, “in order to survive”.
[43] To your credit, you only have one prior conviction, for driving with an expired licence in 2007. You are also a mother to two children and you have
endeavoured to better yourself by undertaking educational courses among other things, including in nursing.
[44] Your PAC report notes that you have only partially accepted responsibility for your offending, and that you were unable to identify yourself as a ringleader. It says you have acknowledged some role, but minimise your involvement and shift responsibility to your co-offenders. It also says you also deny intending to murder N, and instead say you thought that you were taking her to a friend’s place to help her recover. You are, however, recorded as describing the attack as harrowing.
[45] Overall, the PAC writer considers you lack insight, empathy or concern for N, and you are assessed as having a medium likelihood of reoffending, taking into account the gravity of your offending, your drug use and lifestyle. You are also assessed as posing a very high risk of harm to others.
[46] A different view is offered by the psychologist. She considered that your expressions of remorse are now genuine, even though you deny wanting to harm N further or encouraging Mr Blackett to hit N.
[47] The psychologist refers to a number of recent events, including the illness of your partner, the death of your mother, a miscarriage and the suicide of a friend, which are said to have caused you to relapse into a life based around methamphetamine.
[48] You also said to the psychologist that you had been using methamphetamine immediately prior to the kidnapping and assaults and you had not slept for three days. You reported that the first kidnapping and assault was motivated by a desire to punish the victim for having sex with your partner. You noted that the purpose of the hair cutting was to make N less attractive to men.
[49] Since being remanded, you are described as suffering from a depressed mood and trauma, which were considered of moderate severity, although not sufficient to justify a diagnosis of depression, anxiety disorder or post traumatic stress disorder. You have recently completed an anger management course and are looking to
participate in other counselling programmes, which the psychologist considers will be beneficial.
[50] In terms of your formal psychological assessment, your profile suggests you tend to perceive the world as a dangerous place, that you are impulsive, can be volatile, unpredictable and manipulative.
[51] The psychologist considers your unstable and traumatic upbringing likely reinforced in you a perception that the world was a dangerous place. Your offending, in her view, was likely triggered by an overwhelming sense of anger, betrayal and rejection at the discovery that N slept with your ex-partner.
[52] The psychologist considers that you have a low to moderate risk of further violent offending, given a number of positive protective factors, but she concludes that the risk would, however, increase significantly if you returned to methamphetamine use and association with antisocial peers.
Ms Torrance
[53] Ms Torrance, you are 43, from West Auckland. You are mother to five children, four of whom are currently living with family members, aged eight through
16.
[54] You have suffered through considerable personal grief, including through the loss of your sister in adolescence through suicide, and more recently the death of your oldest daughter in 2015.
[55] Your upbringing was very unstable and you report that you were subject to abuse [ Suppressed ]. You left school and took to alcohol at 15, cannabis at 18 and progressed to methamphetamine, becoming an addict when you were 28. You then became immersed in a lifestyle associated with serious drug abuse.
[56] Your prior offending comprises seven offences, including careless drunk driving, breach of community work and two methamphetamine offences. The latter two offences occurred at about the time your daughter died.
[57] You continue to deny your involvement in the attempted murder, sexual violation and second kidnapping of N, directing your blame towards co-offenders. You say that your involvement was motivated by the loss of your 17 year old daughter, which led to increased drug use, and to you blaming N for the alleged theft of your daughter’s jewellery from her grave.
[58] Both the PAC report and the psychological report note that you presented with remorse about the attacks on N, and that looking back you can see how your actions led to your current situation.
[59] The PAC report, however, concludes that you continue to minimise your actions and shift the blame to your co-offenders, display an unwillingness to follow rules and you are assessed as having a high risk of re-offending and harm to others.
[60] The PAC writer considered you should be given the opportunity to engage in rehabilitation programmes so that you may be given a chance to address your offending.
[61] The psychological report observes that, against the background of methamphetamine addiction, trauma and grief from the loss of your daughter, your offending was probably motivated by revenge and distortions that you were, in fact, the victim. The report also notes that at the time of the offending you had been consuming two to six grams of methamphetamine per day and that you were grieving at the loss of your daughter.
[62] You are also assessed as antisocial, with attitudes condoning violence, an unstructured lifestyle and traits of dependence, self-defeatism, and the presence of anxiety, depression, alcohol and drug dependency and post-traumatic stress disorder.
[63] The psychologist concluded that you have a moderate risk of violent and sexual reoffending, with this risk likely to escalate dramatically if you were to resume associating with antisocial peers and return to substance abuse.
[64] As I have noted, rehabilitative programmes are recommended but the PAC report also notes that you were withdrawn from one programme after you allegedly threatened to kill a co-offender.
[65] I now turn to my assessment for sentence, [ Suppressed ]
Process
[66] In order to sentence you all, I must identify a starting point for your lead offending, in this case, the attempted murder. This will take into account any aggravating or mitigating features of the offending. I must then uplift this starting point in light of your offending overall. I must also assess whether there are any mitigating factors that would warrant a discount, for personal reasons, on your sentence. Finally, given the nature of the offending, I must decide whether to impose a minimum period of imprisonment.
[67] I preface my assessment by noting that I have taken into account the purposes and principles outlined in the Sentencing Act 2002.
Starting points
Guidance
[68] In terms of the starting point and guidance, I agree with Mr Dickey that the highest band in Taueki1 dealing with grievous bodily harm offending, together with a number of other authorities, including R v Miller,2 R v Tipuia,3 R v Simiona4 and Taylor v R,5 provides helpful guidance for the purpose of assessing an appropriate start point.
Submissions
[69] In terms of individual starting points, Mr Dickey contends that:
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 R v Miller HC Tauranga CRI-2008-087-483, 24 April 2008.
3 R v Tipuia HC Auckland CRI-2005-092-2219, 22 March 2005.
4 R v Simiona HC Wanganui CRI-2010-083-378, 7 April 2011.
5 Taylor v R [2017] NZCA 53.
(a) A global starting point of 14 years is appropriate for you, Mr Blackett, with your role in the May kidnapping dealt with as an aggravating factor;
(b)A starting point of 12 years, as suggested by Mr Dicky, is appropriate for you, Ms Jones, uplifted by three years to account for your associated offending; and
(c) A starting point of 12 years is submitted for you, Ms Torrance, uplifted by five years for the same associated offending as Ms Jones in addition to your sexual violation charge.
[70] All defence counsel agree that the offending is comparable to Band Three Taueki grievous bodily harm offending which triggers a start point of somewhere between nine and 14 years. Mr Edgar submits further that a start point in the range of
12 to 13 years is available for you, Mr Blackett. Ms Pecotic submits that a start point of between nine and 10 years is appropriate for you, Ms Jones, while Mr Wintour submits that a start point for you, Ms Torrance, of 12 to 14 years is appropriate – but he assumes no further uplift for other offending in reaching that starting point.
Assessment
[71] Dealing then, first with the start points, the aggravating features of the present offending are, firstly,the purpose of the attempt on N’s life was to avoid detection for the series of violent and at times depraved acts of harm done to N – indeed, N heard you, Mr Blackett, say, “Don’t worry we’ll do it properly so yous won’t get caught, they won’t event find the body”.
[72] Secondly, while this was not a case of careful planning, it was not an impulsive act. Forethought was given to how you would achieve your goal, including enlisting the help of Mr Blackett and then selecting a remote location to dispose of the body.
[73] Third, there was extreme and gratuitous violence, including use of a weapon
and multiple and varied attempts on N’s life.
[74] Fourth, N was highly vulnerable - She had been detained for many hours. She had also been bound, blindfolded and taken to a remote location at night by three offenders, all significantly older than her.
[75] Fifth, the injuries sustained by N were life-threatening including, as I have noted, depressed fractures to the skull to a depth of two centimetres, and these injuries will have a long-lasting effect.
[76] Finally, the offending was particularly cruel and would have been terrifying to N who knew, from the time of overhearing the conversation in the basement, of your intention to kill and dispose of her.
[77] As to relative culpability, Mr Blackett, you are the lead offender. You carried out the physical acts of what really is an execution style killing. A starting point of
13 years for you is warranted.
[78] I am also satisfied that both of you, Ms Torrance and Ms Jones, were actively involved in the attempt. Significantly, the following facts are indicative of your active involvement:
[79] Both of you were to gain from disposing of N – you wanted to cover up your repeated and escalating violent offending toward N. Both of you were actively involved in planning the attempted murder – as noted, you had a conversation about disposing of N within N’s earshot. Both of you were involved in transporting N to Dome Valley – you helped put N in the ute and there is CCTV footage of you both at a petrol station, just south of the location where you left N, buying pies and a chicken cordon bleu;
[80] There is also plausible and reliable evidence that, Ms Jones, you held a torch while N was struck, and that you, Ms Torrance, were disappointed that you did not succeed in your objective, namely to kill N.
[81] Ms Pecotic submitted on your behalf, Ms Jones, that I should assess your culpability as lower given, firstly, you provided water and clothes to N during the kidnapping. Secondly, the injuries sustained by N were relatively minor prior to the attempted murder and, thirdly, you did not anticipate the use of a weapon.
[82] Mr Wintour submitted for you, Ms Torrance, that you played a minor role in the trip to Dome Valley.
[83] I do not accept these matters provide a basis for materially reducing your culpability.
[84] While, Ms Jones, you did not participate in the sexual offending and may have given water to N, your actions as a whole reveal a callous disregard for N throughout her ordeal. Your claimed lack of anticipation that a weapon might be used against N is simply not credible. It may well be that were shocked by the level of violence actually needed to kill N, but you did nothing to stop it or to help N before or after the attempt.
[85] A start point of 11 years for you, Ms Jones, is warranted.
[86] As to you, Ms Torrance, I do not accept you played a minor role. On the contrary, the cogent and reliable evidence of your son’s then girlfriend places you in a leadership role at the key time and that you were plainly disappointed that you did not achieve the goal of killing N. In my view of the evidence overall, you had the most to lose if the offending by you came to light and you were the main advocate for killing N. This places you above Ms Jones in terms of culpability, though less than Mr Blackett.
[87] A start point for you, Ms Torrance, of 12 years is warranted.
[88] For completeness, I have considered the sentences handed down in four cases cited to me by Ms Pecotic: R v Ae,6 R v Jackson,7 R v O’Kane8 and Taylor v R.9
6 R v Ae [2016] NZHC 965.
7 R v Jackson HC Wanganui CRI-2006-083-1891, 7 February 2007.
8 R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009.
Those cases share one common feature with the present case, a violent attempted murder, but little else. Ae and O’Kane involved acts of domestic violence by obsessive men who stabbed their wives multiple times with knives; Jackson involved a dispute between adult men that escalated to near lethal violence with a gun; and Taylor involved inter-gang violence and the lead offending was grievous bodily harm.
[89] Accordingly I fix the initial starting points at 13 years for you, Mr Blackett;
12 years for you, Ms Torrance; and 11 years for you, Ms Jones.
Uplifts for other offending
[90] I turn now to consider uplifts for your other associated offending.
Mr Blackett
[91] First, Mr Blackett, I consider the kidnapping was essentially part of the attempted murder and so a relatively modest uplift is needed to reflect this aspect of your offending. I consider that one year is sufficient, though I note for final sentencing purposes, this type of kidnapping would ordinarily attract a sentence in the range of three to four years.
Ms Jones
[92] Ms Jones, I propose to approach uplift to your start point in three steps. First, I will identify an appropriate start point for the two sets of offending in April and May, incorporating the threat to kill into the April set. Second, I will then identify a cumulative start point for both sets of offending. In this regard, I will include a discount for guilty pleas specifically relating to those sets of offending. Third, I will assess the level of the uplift that should be applied to the attempted murder start point in light of the outcome of this evaluation.
Step one
[93] In terms of step one, the first set of offending involved:
(a) Ms Jones, your attempt to kill N – which would ordinarily attract a start point of between four and six months; and
(b)The April offending, including the kidnapping, the taser assault, the hair cutting and the aggravated robbery – which would ordinarily attract a start point sentence in the order of five to six years, having regard to my sentence for Mr Hakeke,10 my decision in R v Paea11 and your additional culpability.
[94] In combination, I consider a start point of six years for this first set of offending would not be out of range.
[95] The second set of the offending involved the May kidnapping, an assault with a cricket bat or wicket, the cutting N’s hair again, and injuring with intent. In combination, they would attract a start point in the order of six years, having regard to, among other things, the start points adopted for Ms Blom (three and half years for the kidnapping only) and Ms Keates (six years for a similar combination of violent
offending).12
Step two
[96] In terms of step two, as both sets of offending essentially represent a connected series of offences, they would ordinarily attract concurrent sentences. But, plainly, concurrent sentences on these start points do not take into account the cumulative nature and effect of these separate sets of violent offending against one victim.
[97] In reality, therefore, were I to sentence you for both sets of offending on a concurrent basis, considering the totality of your offending (but without reference to
the attempted murder), the start point would be in the order of eight years for the
10 R v Blom [2017] NZHC 827.
11 R v Paea [2015] NZHC 1705.
12 R v Keates [2016] NZHC 3031.
May kidnapping (as the lead charge in the May offending), with a concurrent start point of five years for the April kidnapping (as the lead charge in the April offending).
[98] Given that you pleaded guilty to both lead kidnapping charges, a discount of
10 percent would result in a sentence of seven years and two months’ imprisonment (without regard to personal mitigating factors which I will come back to when fixing an end sentence).
Step three
[99] Turning then to the final step, and setting an appropriate uplift on the attempted murder, which forms part of the May offending, I am satisfied that an uplift of three years and six months is appropriate to reflect the totality of the abuse levelled by you at N. In my view, the attempted murder was the final step in a series of violent and degrading acts you meted out on N which demands a very significant sentence in response.
[100] On that basis, an appropriate start point for sentencing you on a totality basis is 14 years and six months’ imprisonment.
Ms Torrance
[101] Ms Torrance, you are in largely the same position as Ms Jones, save in one important respect. You were party to the sexual violation. Indeed, this sets you apart from Ms Keates who was not charged on this offending. This means that your start point for the May offending must be materially higher, particularly given that the maximum sentence for the sexual violation is 20 years.
[102] I consider that your offending falls within band two as set by the tariff case R v AM13 attracting a start point in the range of seven to 13 years. N was vulnerable, the violation involved at least two persons and the use of an object (a cricket wicket),
and was accompanied by an act of depravity, namely that N was forced to eat the faeces off the wicket. Multiple aggravating factors are therefore engaged.14
[103] In the result, a start point for this offending would be eight years and for the entirety of your role in the May offending (if subject to a separate sentence), would be ten years (including discount for guilty pleas).
[104] I note that Mr Wintour placed the sexual violation offending in Band Three or R v AM. I accept that that would be available to me were I to take a holistic approach to the offending, including the kidnapping and other violence. But the purpose of the present exercise is to, first, isolate this offending in order to then arrive at an appropriate additional uplift for the offending overall, as compared to Ms Jones and Ms Keates.
[105] As a result of the foregoing, I agree with the Crown that an uplift of five years would be appropriate to reflect the totality of your offending.
[106] This leads to a starting point of 17 years’ imprisonment.
Mitigating factors
Mr Blackett
[107] I turn now to your mitigating factors. Mr Blackett, you are entitled to a discount for your guilty plea. It was not given at the first available opportunity, but it enabled the trial on this aspect to proceed much more efficiently than otherwise would have been the case. The Crown submits a five percent discount is sufficient. Mr Edgar seeks a 15 percent discount. I am satisfied a five percent discount properly reflects the guilty plea (given at the start of trial and when the evidence of guilt was strong). I would also add, however, a discount of five percent discount for your remorse, noting in particular your willingness to participate in restorative justice and the expressions of remorse that you have made to me.
[108] I acknowledge that you had a very tough upbringing and that drug dependency has greatly affected you. But I do not consider that these personal circumstances justify a further discount.
[109] On a starting point of 14 years’ imprisonment, your discount, after rounding, equates to 17 months, or one year and five months.
Mr Jones
[110] Ms Jones, you are entitled to credit for your previous good character.
[111] In this regard, I also take into account your very difficult upbringing, including [ Suppressed ] and exposure to drug abuse from a young age; that you have largely stayed out of trouble until the present offending; and tried to make a better life for you and your family is, as I have already noted, a credit to you.
[112] This background is also relevant to my assessment of your capacity to rehabilitate and to reintegrate into society. As your psychological report noted, you have several protective factors such as your motivation to engage in treatment and willingness to improve. This is supported by the evidence of programmes that you have completed while in prison.
[113] I am satisfied therefore that a combined discount of ten percent for these factors is appropriate.
[114] In terms of guilty plea discounts, I have already taking them into account when assessing an appropriate uplift.
[115] I have considered whether you should be afforded a further discount for remorse. But your continued denial of your role in the attempted murder, the most serious offending, disallows me, in my view, from affording you a discount for this.
[116] So, on a start point of 14 years and six months, a discount of 10 percent equates, after rounding, to 17 months, or one year and five months.
Ms Torrance
[117] Ms Torrance, I acknowledge that you had a very difficult upbringing. Drug abuse has blighted your life and your profile exhibits the presence of anxiety, depression, alcohol, drug dependency and post traumatic stress disorder. It is also tolerably clear that these factors, in particular excessive drug abuse, contributed to your offending. I also acknowledge the psychological assessment that your propensity to offend in the future is linked to your inability to cope with stressful situations, an unstructured lifestyle and substance abuse.
[118] The potential relevance of this is that your offending is connected to your emotional and mental health frailties. This may be relevant in two respects. First, mental health impairment is relevant to your level of culpability. Second, management of this factor may well mean that you can reintegrate into society and that rehabilitation is a realistic goal. But there must be a clear connection between this factor and your actions.
[119] Having carefully reviewed the psychological report, I am not satisfied that you suffer from a mental health condition that mitigates your culpability. The psychological report provides only a tenuous basis for a linkage of this kind. Rather, lifestyle choices and, in particular, drug use have largely driven your actions. Further, unlike Ms Jones, you have not taken genuine steps before or after your offending to turn your life around or to demonstrate a commitment to change.
[120] I am, however, prepared to accept that your very traumatic upbringing and your personal adversity and experiences are factors to be considered, particularly in terms of your rehabilitation. I am therefore prepared to afford a discrete discount of five months for this factor.
[121] You have expressed remorse but, like Ms Jones, that has been accompanied by a lack of willingness to accept full responsibility for your offending. There can be no discount for this.
Minimum period of imprisonment
[122] Before I fix an end sentence for you all, I must consider whether I should impose a minimum sentence of imprisonment.
[123] Given the scale and nature of the offending, the level of callousness, depravity, and violence associated with it, a minimum sentence is required to hold you all accountable for the harm that you have done to the victim, to denounce your conduct and to deter others from doing it.
[124] For completeness, I have taken into account, Ms Jones, your strong positive factors in terms of rehabilitation and I accept your relatively low prospect of repeat offending. But when those matters are set against the nature of the offending over two separate episodes against a single victim, culminating in an attempted murder, the requirement for denunciation, accountable and deterrence is overwhelming. I therefore impose a minimum sentence of 50 per cent.
End Sentence
[125] I now turn to the end sentence. Please stand.
[126] Mr Blackett, I sentence you to 12 years and seven months’ imprisonment, of which you must serve a minimum period of six years and three and a half months, comprising the following:
(a) On the lead charge of attempted murder you are sentenced to 12 years
and seven months’ imprisonment;
(b) On the charge of kidnapping, you are sentenced to three years’
imprisonment, to be served concurrently with the lead sentence.
[127] Ms Jones, you are sentenced to 13 years and one month’s imprisonment, of which you must serve a minimum period of six years and six and a half months, comprising:
(a) On the lead charge of attempted murder, you are sentenced to 13 years
and one month’s imprisonment;
(b) On the charge of threatening to kill, you are sentenced to four months’
imprisonment, to be served concurrently with the lead sentence;
(c) On the charge of assault with a weapon (the taser), you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence;
(d)On the charge of assault with a weapon (the scissors) in April 2016, you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence;
(e) On the charge of kidnapping in April 2016, you are sentenced to three years and six months’ imprisonment, to be served concurrently with the lead sentence;
(f) On the charge of aggravated robbery, you are sentenced to three years’
imprisonment, to be served concurrently with the lead sentence;
(g) On the charge of kidnapping in May 2016, you are sentenced to six
years’ imprisonment, to be served concurrently with the lead sentence;
(h)On the charge of assault with a weapon (the cricket wicket or bat), you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence;
(i)On the charge of assault with a weapon (the scissors) in May, you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence; and
(j)On the charge of injuring with intent to injure, you are sentenced to two years’ imprisonment, to be served concurrently with the lead sentence.
[128] Ms Torrance, I conclude that an appropriate end sentence which reflects the overall your criminality of your offending, is 16 years’ seven months imprisonment. Having regard to the fact that an appropriate overall sentence should not exceed the maximum penalty for the lead charge, I prefer to fix the appropriate period of imprisonment across two charges to be served cumulatively.15 I consider that a sentence of 11 years seven months’ imprisonment for the attempted murder charge, to be served cumulatively with a sentence of five years’ imprisonment for your sexual violation charge, is appropriate.
[129] Accordingly, Ms Torrance, you are sentenced to 16 years seven months’ imprisonment, of which you must serve a minimum period of eight years and three and a half months, comprising the following:
(a) On the lead charge of attempted murder, you are sentenced to 11 years
seven months’ imprisonment;
(b)On the charge of sexual violation by unlawful sexual connection, you are sentenced to five years’ imprisonment, to be served cumulatively with the lead sentence;
(c) On the charge of assault with a weapon (the taser), you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence;
(d)On the charge of assault with a weapon (the scissors) in April 2016, you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence;
(e) On the charge of kidnapping in April 2016 you are sentenced to three
years and six months’ imprisonment, to be served concurrently with
the lead sentence;
15 R v Xie [2007] 2 NZLR 240 (CA) at [35].
(f) On the charge of aggravated robbery, you are sentenced to three years’
imprisonment, to be served concurrently with the lead sentence;
(g) On the charge of kidnapping in May 2016, you are sentenced to six
years’ imprisonment, to be served concurrently with the lead sentence;
(h)On the charge of assault with a weapon (a cricket wicket), you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence;
(i)On the charge of assault with a weapon (the scissors) in May, you are sentenced to one year’s imprisonment, to be served concurrently with the lead sentence; and, finally,
(j)On the charge of injuring with intent to injure, you are sentenced to two years’ imprisonment, to be served concurrently with the lead sentence.
[130] Please stand down.
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