R v Gledhill

[2009] NZCA 415

IN THE COURT OF APPEAL OF NEW ZEALAND

CA443/2009
[2009] NZCA 415

THE QUEEN

v

JADE GLEDHILL

Hearing:3 September 2009

Court:Glazebrook, Gendall and Asher JJ

Counsel:C P Brosnahan for Appellant

H A Wrigley for Crown

Judgment:18 September 2009 at 9.30 am

JUDGMENT OF THE COURT

A        The appeal is allowed. 

BThe sentence of two years and one month’s imprisonment is quashed and substituted by a sentence of 11 months’ home detention.

COn 21 September 2009 at 10.00 am, Ms Gledhill is to go immediately to her home at 25 Plunket Street, Wanganui, and await the arrival of the probation officer and a representative from the monitoring company.  She is to reside at 25 Plunket Street, Wanganui, for the duration of the home detention.  She is to undertake and complete any counselling, programme and/or course to reduce her risk of re-offending as may be directed by her probation officer.  She is not to consume or have in her possession alcohol or illicit drugs for the duration of the home detention.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1]        On 8 July 2009, the appellant, Jade Gledhill (“Ms Gledhill”), pleaded guilty to one count of wounding with reckless disregard for the safety of others (s 188(2) of the Crimes Act 1961).  The maximum penalty for that offence is seven years’ imprisonment.  Two days later, on the morning of the trial, she pleaded guilty to the remaining count in the indictment, participating in an organised criminal group (s 98A of the Crimes Act).  On 27 July 2009, she was sentenced by Judge Radford (“the sentencing Judge”) in the District Court in Wanganui on both charges to two years one month’s imprisonment. 

[2]        The appellant now appeals this sentence.  It is submitted on her behalf that the starting point was fixed was too high, and that insufficient credit was given for mitigating factors relating to her.  It was also submitted that her sentence was not properly on a parity with that of a co-offender, William Robertson, who received a sentence of two years and three months’ imprisonment.  It was submitted that the sentence was not in accordance with the sentence indication that had been given by the sentencing Judge on 27 February 2009. 

Background

[3]        On the morning of Wednesday 4 June 2008, Ms Gledhill and a group of associates, who were all members or associates of the Tribesmen gang, were driving through Victoria Avenue, Wanganui.  The group occupied two vehicles that were travelling together.  As they travelled along the street they came across three patched Mongrel Mob gang members who were standing outside a vehicle.  Those members started gesturing gang slogans towards the appellant’s group, which in turn replied with their own abuse. 

[4]        The vehicle containing Ms Gledhill stopped.  The occupants got out and made their way towards the Mongrel Mob members.  Ms Gledhill, as she got out, picked up a cricket bat.  The yelling and verbal abuse between the two groups turned into a fight involving wrestling and punching.  A number of the Tribesmen gang members had brought weapons to the scene, and they outnumbered the Mongrel Mob members.  The incident was captured on closed-circuit television. 

[5]        Ms Gledhill hit one of the Mongrel Mob members’ motor vehicle with the cricket bat.  She participated in the yelling and verbal abuse.  Her partner, who was a Tribesmen member, Mr Puohotaua, came up to Ms Gledhill and she gave him the cricket bat.  Mr Puohotaua then pursued one of the Mongrel Mob members and struck him with it.  The man suffered a compressed skull fracture, bruising to the brain, and a laceration to the scalp. 

The procedural history

[6]        Ms Gledhill was initially charged with three counts.  She was charged in the alternative under ss 188(1) and (2) of the Crimes Act, with wounding with intent to cause grievous bodily harm (the first count) and wounding with reckless disregard for the safety of others (the second count).  Count 3 charged her with participation in an organised criminal group in breach of s 98A of the Crimes Act 1961.

[7]        In October 2008, the Judge gave a sentencing indication in relation to two of Ms Gledhill’s co-accused, William Robertson and William Koroheke.  He did not indicate a starting point, but did indicate that the “range available to the Court would be two to three years, with Mr Koroheke being in the middle range and Mr Robertson at the low range”.  They pleaded guilty at that point. 

[8]        On 27 February 2009, the Judge gave a sentencing indication in relation to Ms Gledhill.  He stated:

I will go as far as saying your personal circumstances would entitle you to a discount which may well take you under two years, but there is no indication given apart from that.

This indication was given at a point when the full discount for an early guilty plea would not have been available, as it was not at the first possible opportunity.  In any event, Ms Gledhill did not enter a guilty plea at this point.  She did indicate through her counsel that she would plead guilty to count 2, but wished an assurance that count 3 would not proceed.  The Crown was not prepared to give this assurance, although it was prepared to accept a plea on count 2 and not proceed on count 1. 

[9]        Four of Ms Gledhill’s co-accused were sentenced by the sentencing Judge on 25 March 2009.  Apart from Mr Puohotaua, the other three were Mr Hikawera, Mr Koroheke and Mr Robertson.  The sentencing Judge stated that he fixed a starting point of three-and-half years’ imprisonment for the three co-accused, not including Mr Puohotaua.  He did not explicitly differentiate between them on personal factors, but ended up giving them three different sentences.  Mr Robertson was sentenced to two years and three months’ imprisonment, Mr Koroheke to two years and six months’ imprisonment, and Mr Hikawera to two years and ten months’ imprisonment.  All three of them appear to have had prior convictions, and were described by the sentencing Judge as people “prepared to flout the law” and “intentionally disregard Court orders and consider [themselves] above the rules of the community”.  Mr Puohotaua, who had used the weapon, was sentenced on the basis of a starting point of just under eight years’ imprisonment.  His end sentence, after a discount for his guilty plea, was five years’ imprisonment. 

[10]      Ms Gledhill’s trial was due to commence on 10 July 2009.  On 8 July 2009, she pleaded guilty to the wounding with reckless disregard for the safety of others charge (count 2), and two days later, on the morning of the trial, she pleaded guilty to the organised criminal group charge.  It appears that the decision to plead guilty was prompted by an indication from the sentencing Judge that she would not be given an additional sentence for the participation in an organised criminal group charge.

The decision

[11]      The sentencing Judge summarised both the background facts and Ms Gledhill’s background.  He noted that she had no previous convictions, and that her involvement in the gang had been put down to the influence of her partner.  He took the view that her behaviour was wilful and designed to assist her companions in their endeavour.  He emphasised the gang nature of the activity, and the fact that it was a “stain on the character of Wanganui”.  He stated that in all the circumstances it was proper to fix a sentence of three-and-a-half years’ imprisonment.  As to mitigating factors, he noted her previous record, and the fact that she had been dragged into activity she did not understand.  He noted that the plea of guilty was very late and that he did not give full credit for it.  He then stated:

However, I take the 36 month starting point and give you a credit of 11 months starting point that takes me to 25 months’ imprisonment.  That, as it happens, is outside the two years within which home detention can be considered.  I want, however, to do another exercise just to confirm that the question of home detention is off the table.

[12]      He then again emphasised the gang activity, which was a “scourge in Wanganui”.  He noted that she had taken steps to disassociate herself from the gang and drug culture, but that the gangs were “very much a local issue”.  He considered that the Court would not be fulfilling the purposes of the Sentencing Act 2002 by sentencing her to home detention.  He concluded this paragraph by saying:

There is nothing in that activity that would induce me to take the view that the sentence should be reduced to two years or less and thereby make you eligible for a sentence of home detention.

It is difficult to follow the sentencing process.  The starting point was stated to be three-and-a-half years, but then in the next paragraph a starting point of 36 months was referred to.  The credit of 11 months is not broken down or explained.  No attempt is made to reconcile this sentence with the sentences of the other co-accused.  There was no jurisdiction for the Court to consider home detention, once a sentence of over two years’ imprisonment was determined.

[13]      We received submissions from both counsel for the appellant and counsel for the Crown, on what the exact sentencing process might have been.  In the end, we are unable to follow either the arithmetic or the chain of reasoning.  Therefore, it is necessary for us to approach the task of fixing the appropriate sentence afresh, and having done so to then refer back to the sentencing Judge’s decision.

[14]      There was some suggestion for the appellant that there had been a departure from the sentencing indication by the sentencing Judge.  However, that sentencing indication was given on 27 February 2009 and referred specifically to Ms Gledhill’s personal circumstances.  Clearly it was given in the expectation of a prompt guilty plea, which in fact followed the sentencing indications in relation to the other offenders.  However, Ms Gledhill did not promptly enter a guilty plea, and months passed and the Crown had to prepare for trial.  Therefore, the indication that her personal circumstances could entitle her to a discount that might well take her sentence to under two years must be taken to have ceased to have effect, and we put the sentencing indication to one side.

The correct starting point

[15]      The maximum penalty on count 2 was 7 years’ imprisonment.  R v Taueki [2005] 3 NZLR 372 (CA) sets out guidelines for sentencing for grievous bodily harm offences. The charge in question there was laid under s 188(1) of the Crimes Act, where the maximum sentence is 14 years’ imprisonment, whereas here the charge, on which the Crown was content ultimately to proceed, was s 188(2) of the Crimes Act, which is less serious. The Court in R v Taueki set out a list of matters contributing to the seriousness of grievous bodily harm offending: at [31]. The actual categories set out were in relation to offences under ss 188(1) and 199(1) of the Crimes Act. The starting point for offending under s 188(2) will inevitably be lower, because of the much lower maximum penalty prescribed in that subsection.

[16]      In this offending there existed five of the matters referred to in R v Taueki as contributing to the seriousness of the offending.  These are:  serious injury;  use of weapons;  attacking the head;  multiple attackers;  and gang warfare. 

[17]      It is clear that where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed: R v Taueki at [42]. Ms Gledhill was not involved directly in any violence to any person. Her role was more of a supportive nature.

[18]      These considerations appear to be reflected in the sentences that the sentencing Judge had already given to Ms Gledhill’s co-offenders when she was sentenced.  The lead offender, Mr Puohotaua, who was charged under s 188(1), was sentenced on the basis of a starting point of “just under eight years’, and, after a full discount for a guilty plea, was sentenced to five years’ imprisonment.  The co‑offenders, who were presumably charged under s 188(2), were sentenced, according to paragraph [13] of the sentencing decision, on an overall starting point of three-and-a-half years, reduced (we assume) on the basis of their guilty pleas and their level of involvement in the attack, to two years and ten months’ imprisonment for Mr Hikawera, two years and six months’ imprisonment for Mr Koroheke, and two years and three months’ imprisonment for Mr Robertson.  There was no breakdown between the starting point and end sentence, and it is necessary to endeavour to ascertain what the exact starting point and deduction was for each.

[19]      Given the fact that Mr Hikawera was treated as the most serious of the three offenders, and assuming therefore that his starting point was the full three-and-a-half years and his end sentence two years and ten months’ imprisonment, he must have been given an eight month deduction for personal mitigating factors based on his guilty plea.  It must be assumed that the differential between Mr Koroheke and Mr Hikawera turned on their different roles in the actual offending and not personal factors, as all three appeared to be unrepentant gang members.  Mr Robertson had expressed some remorse but, as the Judge noted, was “determined to become patched up again” once he was released.  There was a seven month differential between the two end sentences for Mr Hikawera and Mr Robertson.  By logical deduction from Mr Hikawera’s sentence, therefore, Mr Robertson’s starting point appears to have been fixed by the sentencing Judge at approximately two years and eleven months. 

[20]      The sentences of the co-offenders all appear to be in the appropriate range, and they were, of course, all relevant to the appropriate sentence for Ms Gledhill, given the need for consistency of sentencing referred to in s 8(e) of the Sentencing Act. 

[21]      The Crown submitted that the seriousness of Ms Gledhill’s offending could be equated to that of Mr Robertson’s offending.  Although there are differences in relation to what each did, they both had no direct role in the violence, and we accept that their behaviour involved a similar level of culpability.  We consider that the starting point we have deduced for Mr Robertson of two years and eleven months would also be fair and appropriate for Ms Gledhill.

Matters relating to Ms Gledhill personally

[22]      When a guilty plea before trial is given very late, a discount as low as ten percent may be appropriate: R v Walker [2009] NZCA 56 at [19]. Here the guilty plea was very late, but we are satisfied that there had been a clear indication given by counsel that a plea of guilty would be entered in relation to count 2, if count 3 was not continued with. Ultimately count 3 did proceed, but only after an indication had been given by the sentencing Judge shortly before the trial that there would be no increase in the sentence as a result of that particular conviction. Giving some leeway to Ms Gledhill for these factors, the maximum discount available would be approximately 15 percent.

[23]      It is necessary to turn to the mitigating factors of Ms Gledhill’s remorse and her previous good character. 

[24]      Ms Gledhill is, for all intents and purposes, a first offender.  It is clear from the pre-sentence report that she became involved in the Tribesmen because her then partner, Mr Puohotaua, with whom she had been in a relationship for almost six years, became involved with the Tribesmen three years ago.  Her parents, who spoke to the probation officer, see her involvement as being a consequence of her involvement with Mr Puohotaua. 

[25]      In Ms Gledhill’s explanation for her offending to the probation officer she appeared to accept most of the basic facts, although she asserted that the cricket bat was taken from her, and that although she was yelling and screaming it was not in the form of any encouragement.  However, she described her behaviour that day as “disgusting” and was sorry for her participation.

[26]      Since the offending, the relationship with Mr Puohotaua has ended.  The Department of Corrections’ risk assessment tool places Ms Gledhill at a low risk of re-offending.  She has ceased her involvement in methamphetamine offending.  She no longer has any association with the gang or drugs. 

[27]      She has taken steps to seek assistance with her drug and alcohol and anger management issues.  There is a report from the Te Oranganui Iwi Health Authority, which sets out various interventions that have been carried out.  It is reported that she is able to think more clearly, and is confident in her ability to move to a more structured lifestyle away from her old habits.  She attended a Maramatanga programme in October and November 2008.  She is now living entirely out of the gang environment.

[28]      There is no doubt that, on the basis of these considerations, Ms Gledhill is entitled to credit for her past good character, combined with her remorse and the way in which she appears to have turned her life around.  Her position can be contrasted to that of her co-offenders, all of whom have bad past records, and all of whom intended to return to their gang following their release from prison.

[29]      We have no doubt that a further discount of at least 15 percent was warranted on account of this remorse and good character.  When these factors and the not guilty plea are considered together, a total discount in the order of one-third was appropriate.  Given the starting point of approximately two years and 11 months, this would lead to an end sentence of just under two years’ imprisonment.

[30]      It is helpful to compare such an end sentence to that of Ms Gledhill’s co-offender Mr Robertson.  Despite the fact that Ms Gledhill pleaded guilty at a later date than her co-offenders did, she deserved a greater credit for mitigating factors relating to her personally, than her co-offenders.  Mr Robertson’s end sentence was two years and three months’ imprisonment.  He had not pleaded guilty at the first possible opportunity, but earlier than Ms Gledhill.  However, he had committed the offence while serving a sentence of community work, which was an aggravating factor.  He could not call in aid either good character or remorse.  We take the view that a differential between Mr Robertson and Ms Gledhill, taking into account all the above-mentioned factors, of at least three months in her favour was required.  Given that Mr Robertson’s sentence was two years and three months’ imprisonment, this is consistent with the view we have formed that an end sentence of just under two years’ imprisonment was required.

The end sentence

[31]      Thus, in deciding the appropriate sentence afresh, we determine that the correct sentence is approximately two-thirds of the starting point of two years and 11 months’ imprisonment, namely one year and eleven months’ imprisonment.  The sentencing Judge sentenced Ms Gledhill to imprisonment for two years and one month.

[32]      This is two months more than the sentence we would have imposed.  Appellate Courts are generally reluctant to impose small changes to sentences, and if there were no other factors we would have hesitated to intervene.  However, a sentence of two years or less is a short-term sentence of imprisonment under s 15A(1)(b) of the Sentencing Act.  This means that a sentence of home detention is available.  The Court must impose the least restrictive outcome that is appropriate in the circumstances: s 8(g) of the Sentencing Act.  In deciding whether to intervene, we must consider whether a sentence of home detention is appropriate.

Home detention

[33]      The sentencing Judge, despite the fact that he had reached a final sentence that made Ms Gledhill ineligible for home detention, discussed whether it would be an appropriate sentence.  He commented on gang violence and stated that he could not see that the Court would be “fulfilling the purposes of the Act”, by sentencing Ms Gledhill to home detention. 

[34]      Ms Gledhill’s personal position is entirely different from her co-offenders.  We have already set out our reasons for concluding that Ms Gledhill has expressed genuine remorse, and is doing her best to turn her life around.  Her co-offenders appear to be continuing their gang affiliation.  The probation officer reported to the Court that there is a suitable address for home detention at Ms Gledhill’s mother’s home in Wanganui.  The community is likely to gain much greater benefit from Ms Gledhill being at home in a situation where she is removed from previous associates, and in a positive environment where she can continue her rehabilitation.  She has disavowed involvement with the gangs and started a new lifestyle.  On the assessments that have been made, the community does not require protection from her.

[35]      It is a principle of sentencing that the least restrictive outcome that is possible be applied (s 8(g)), and it is a purpose of sentence to assist in the offender’s rehabilitation and reintegration (s 7(1)(h)).  Needless to say, the successful rehabilitation and reintegration of an offender, if that can be achieved, is very much to the benefit of the community.  The rehabilitation efforts already made by Ms Gledhill are established by the reports received and require appropriate recognition.  As was stated in R v Hill [2008] 2 NZLR 381, at [37] and [39] (CA):

…  Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

…

… This will be particularly so if the assessment that there are good prospects for rehabilitation is based not simply on conjecture or expressions of intent or hope but on evidence which demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.

[36]     Ms Gledhill has shown such a commitment.  The fact that home detention is an appropriate sentence means that appellate intervention is warranted to reduce the end sentence to one year and eleven months.  This is not tailoring the period of imprisonment to enable the option to be available, as Ms Wrigley for the Crown submitted.  Given our conclusion on the correct term of imprisonment, it is a sentence that, in the circumstances, must be considered as one of the range of sentences available under s 10A of the Sentencing Act.  It recognises that the sentencing process of the sentencing Judge was flawed, both in the assessment of the term of imprisonment and the suitability of home detention.  An application of the provisions of the Sentencing Act results in a conclusion that home detention is the sentence that should be imposed.

[37]      We conclude, therefore, that home detention is the correct sentence for Ms Gledhill.  Given the duration of the otherwise applicable term of imprisonment of just under two years and the period of almost two weeks Ms Gledhill has spent in custody, we fix the period at 11 months.

Outcome of the appeal

[38]      We consider that the appeal should be allowed.  For reasons already set out, we have been obliged to carry out our own assessment of the appropriate sentence.  The conclusion we have reached is considerably different from that of the sentencing Judge, and warrants intervention.

Result

[39]      The appeal is allowed.  The sentence of two years and one month’s imprisonment is quashed and substituted by a sentence of 11 months’ home detention. 

[40]      On 21 September 2009 at 10:00 am, Ms Gledhill is to go immediately to her home at 25 Plunket Street, Wanganui, and await the arrival of the probation officer and a representative from the monitoring company.  She is to reside at 25 Plunket Street, Wanganui, for the duration of the home detention.  She is to undertake and complete any counselling, programme and/or course to reduce her risk of re-offending as may be directed by her probation officer.  She is not to consume or have in her possession alcohol or illicit drugs for the duration of the home detention.

Solicitors:
Crown Law Office, Wellington