R v Heald-Harris

[2024] NZHC 252

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-009-417

[2024] NZHC 252

THE KING

v

JOANNE STACEY HEALD-HARRIS

Hearing:	21 February 2024
Appearances:	L Fiennes and M G McClenaghan for Crown A M McCormick for Defendant
Judgment:	21 February 2024
Reissued:	20 March 2024

SENTENCING NOTES OF DUNNINGHAM J

[1]                 Ms Heald-Harris you are here today for sentence on a charge of aggravated robbery and a charge of perverting the course of justice. On 7 February 2023, I gave you a sentencing indication of four years’ imprisonment on the charge of aggravated robbery.1 While you did not accept that sentencing indication, you later pleaded guilty to that charge on 23 June 2023. On the charge of perverting the course of justice, Judge Farish gave you a sentence indication on 16 February 2023, with a starting point of 12 months’ imprisonment, which you accepted.2

1      R v Heald-Harris [2022] NZHC 111.

2      R v Heald-Harris CRI-2021-076-001048, 16 February 2023.

R v HEALD-HARRIS [2024] NZHC 252 [21 February 2024]

[2]                 Since then, as we know, there has been a big delay. However, that is because a lot of work has been undertaken by your lawyer to provide the Court with information about your personal circumstances and intellectual functioning so that the Court has the most complete information on which to make an appropriate sentencing decision.

[3]                 What I have to decide today is whether a sentence less than imprisonment can be imposed and, if so, what that sentence should be in light of the reports I have received.

[4]                 Before I go on to consider that, I will start by outlining the facts of the offending itself.

Facts of the offending

[5]                 At around 1.10 pm on 17 January 2022 you, and your four co-defendants, Michael Jager, Fairlane Wiringi, Heber Watson and Jessie Ngarongo, arrived at an address in Riccarton, Christchurch. Your four co-defendants went on to the property and approached two of the victims who were sitting in the driveway repairing a trailer. Your co-defendants repeatedly kicked, punched and struck those two victims with blunt objects while the victims remained on the ground.

[6]                 Your co-defendants then took those two victims to a sleepout and held them there. They forced one victim’s head between the cushions of the couch and told him not to move. He was repeatedly punched and kicked and then stabbed with a sharp implement in his leg causing five small puncture wounds.

[7]                 A curtain was wrapped around the other victim in the sleepout, including covering his head. While wrapped in the curtain, he was repeatedly kicked and punched. He was then also stabbed with a sharp implement in his right hip causing two small puncture wounds.

[8]                 The third victim was in the sleepout when the other two victims were forced into it. She was told not to call the police and then thrown onto a bed and asked for her address. She was told that if she did not say where she lived, then she would be shot. They also told her that they would be coming to visit her later that day.

[9]                 The victims were then left in the sleepout while your co-defendants ransacked the rest of the property. As CCTV camera footage shows, you reversed a vehicle into the driveway of the property so it could be filled with stolen property and you assisted in placing property into the vehicle. The victims had a number of injuries, including broken bones, lacerations to their heads, puncture wounds, bruising and swelling.

[10]              The other charge of attempting to pervert the course of justice arose after three men, one of whom you were associated with, committed aggravated robbery by taking a car from the complainant while wielding a firearm, chain and a baseball bat. Three days after the aggravated robbery, you sent a Facebook audio message to the complainant telling him to ring the police and to report that the car had not been stolen and he had just made the biggest mistake of his life. Although you subsequently unsent the message, it had already been sent by the victim to a third party.

[11]              On 16 February 2023, Judge Farish indicated a starting point of 12 months. With a small uplift for prior convictions and a guilty plea discount, the end point indicated was around 10 month’s imprisonment. However, the Judge noted that “what you would be sentenced to in the end would be impacted by the charges in the    High Court”.

Sentencing Act purposes and principles

[12]              In sentencing you today, I have to have regard to the principles and purposes of the Sentencing Act. These include holding you accountable for the harm done, denouncing the conduct in which you were involved, and deterring you and others from committing the same or similar offence. However, they also include assisting in your rehabilitation and reintegration and I think that is particularly relevant in this case.

Starting point

[13]              I am not going to repeat my reasons for taking a starting point of five years’ imprisonment which I gave in my sentencing indication.3 That was set having particular regard to the gravity of the offending in the particular case and also to the desirability of giving consistent sentences with your co-offenders.

[14]              While Judge Farish indicated a 12 month starting point for the perverting the course of justice charge, I consider, having regard to totality, the overall starting point should be five years, six months.

Aggravating and mitigating factors relating to the offender

[15]              The next stage of sentencing is to consider aggravating and mitigating features which are personal to you. There is no suggestion there are aggravating factors, that is, things that make your position worse. There are mitigating factors and those are factors that help explain why you offended and which mean I should decrease the sentence. The reports I have received will help me greatly with that.

[16]              First, there is the pre-sentence report. It was prepared in August 2023 but much of what it says is still valid and it is expanded on in the other reports.

[17]              The report writer assessed you as someone whose risk of offending is greatly affected by the people you associate with, who influence your decision making. At the time of the aggravated robbery offending, you were in a relationship with one of your co-offenders Mr Jager, and you said you were too scared to leave and you did what you were told because you feared you would be assaulted. You accepted that you had been gullible in associating with gang members who were often violent.

[18]              Since the offending you have given birth to a son. Your mother said to the report writer that she had seen a genuine shift in your focus to being a good mother for him. You also engaged with weekly drug and alcohol counselling to address your methamphetamine use. The report said that, at that point, you self-reported being

3      R v Heald-Harris [2023] NZHC 111.

clean for 15 months and you were happy for an abstinence condition to be linked to any sentence you might receive.

[19]              The report recommended home detention, saying this whole experience had been a huge wake-up call for you and it believed you could achieve good things with a structured sentence and oversight. The same recommendation was made even when the report writer was made aware of the second charge of perverting the course of justice.

[20]              I have also received a cultural report prepared under s 27 of the Sentencing Act. It records that your mother had addiction issues and lived a chaotic lifestyle which resulted in you being raised primarily by your father. You were shaken as a baby which may have resulted in a traumatic brain injury. Through your mother you witnessed drug use and gang activities and you sometimes sustained unexplained injuries. You struggled at school, and you left without qualifications. Your first pregnancy was unplanned at 18 years of age. You now have four children, but only the last one is in your care. You have had a number of intimate relationships, most of which have featured physical and emotional abuse. You have also struggled with methamphetamine addiction. The report also claimed you had been diagnosed with bipolar disorder but gave no supporting details.

[21]              It said you have a social worker through Family Start, a family support service based in Timaru. You receive weekly visits from the social worker and this provides good support in terms of you parenting your son alone. Your father also confirms that you have been working hard to be a good mother to your son, something he hopes will continue.

[22]              On 30 August 2023, I also received a report from Mr Ghazi Metoui, a clinical psychologist. He clarifies that you have not been diagnosed with bipolar disorder. Your father simply suggested that was possible on the basis of your changeable temperament and behaviour. Mr Metoui identified that perhaps the real concern is that you have a mild intellectual disability or some other type of cognitive impairment and he recommended that this be assessed by the Court before any sentencing decision.

[23]            I then received a further report from Mr Metoui which advised that your full scale IQ score, when expressed as a unitary construct, was 71, which is categorised as being in the mild impairment/borderline range (3rd percentile, 95 per cent confidence interval). Your lawyer submitted this meant you met the definition of having an intellectual disability as defined in s 7 of the IDCCR. While initially I did not accept that met the definition of “significantly subaverage general intelligence” as defined in s 7(3) IDCCR, I revised that opinion after being referred to a particular decision, R  v

T.4 Accordingly, I directed an enquiry under s 35 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) to have you assessed in order to determine whether a compulsory care order should be imposed, instead of an ordinary sentence.

[24]              That led to a further very thorough and helpful  report  being  prepared  by  Mr Steve Berry, a clinical psychologist. I received that on 13 February 2024. He confirmed that you meet the criteria to be subject to a compulsory care order. He also noted that you had a medium to high risk of engaging in further violent offending in the next one or two years if you were free to offend. However, he said you had made considerable progress in the two years since the offending. You had incurred no new convictions, you had completed an addiction programme with some success, managing lapses and preventing relapses. You were living in suitable safe accommodation. Your baby was almost one year old and there were no concerns about your parenting of him and you were having limited contact with anti-social peers and some ongoing contact with friends who were pro-social.

[25]              For these reasons, Mr Berry said a compulsory care order was not the recommended course for you and, in his view, a two year period of intensive supervision would be appropriate.

Submissions for the Crown

[26]              The lawyers for the Crown, acknowledge the further reports that have been received. However, given the report from Dr Berry did not recommend a compulsory care order, they submit that sentencing should proceed in the normal way. Taking the

4            R v T [2013] NZHC 2299.

starting points indicated in the sentencing indications, but adjusting for totality, they submit a starting point of five years and seven months’ imprisonment would be appropriate. However, the Crown lawyers acknowledge that significant discounts would be available to reflect the information in the report and if those discounts reach an end sentence of two years or less, the Crown submits a sentence of home detention would be appropriate.

Submissions for Ms Heald-Harris

[27]              Your lawyer, Mr McCormick, acknowledges the content of the reports but acknowledges that the Court may be reluctant to impose a sentence of intensive supervision. He says, should the Court be able to get to an end sentence of two years, then a sentence of home detention would be appropriate. Mr McCormick acknowledges that because you did not accept the sentencing indication and deferred pleading guilty for some time, you would not be entitled to the 20 per cent discount that I indicated. However, he still says you should get a generous discount for your guilty plea.

[28]              Mr McCormick then submits you should get credit for the other matters. These are:

(a)you have not further offended in the two years since the aggravated robbery;

(b)you have completed an addiction programme with relative success;

(c)you are living independently in suitable accommodation;

(d)you are caring for your nearly 12 month old child, and this is a significant step forward for you, when your other three children are being cared for by others, and he says this is likely because you are now living without a drug dependency;

(e)he also refers to the detailed narrative of your life in the s 27 report; and

(f)your diagnosis of an intellectual disability.

[29]              In terms of the address for home detention, Mr McCormick acknowledges a suitable address is required. You had been residing at a holiday park near Waimate, but your mother’s address at Timaru, has been offered so you have a suitable address for electronic monitoring. I only received that report yesterday, but it confirms the address as suitable.

Sentencing

[30]              In light of all that information, I would apply the following discounts to the starting point of five years and six months’ imprisonment.

[31]              I accept your guilty pleas did not come at the first available opportunity and you did not accept a sentencing indication when I offered a guilty plea discount of  20 per cent. But, I now have further insight into the reasons for that, given your intellectual disability. I am still prepared to give a guilty plea discount of 17 per cent.

[32]              Given the time which has passed since the offending and sentencing, you have been able to demonstrate your rehabilitative prospects. I know you are always going to struggle with your intellectual disability, but I am really impressed with the fact you have not offended for two years, you have taken positive steps to address your drug problem and, you are focussed on rearing your  son.  I  am  prepared  to  give  a seven per cent discount for your rehabilitative potential.

[33]              However, the biggest discounts must be afforded for the matters which were identified in the cultural report and for your intellectual disability which is clearly linked to your offending. I am prepared to give a 10 per cent discount for the issues disclosed in the cultural report which include your exposure to violence, drugs and abusive relationships, and a 30 per cent discount for your intellectual disability. That brings your overall sentence to just under two years which enables me to consider home detention.

[34]              I am satisfied by some margin that this is the most appropriate sentence in the circumstances. It will enable you to continue to care for your son and it will also

provide you with oversight and support while you continue to learn how to deal with the challenges you are facing.

[35]              The home detention address proposed is where your mother, stepfather and aunty live. It is also where your four year old son lives. You are currently living in a rented cabin and, if granted home detention to that address, the cabin would be relocated to the property today, as I understand from the report. You would occupy that room but share facilities inside the house. I also note that the report explains that you have been driven to Christchurch by your father today. He has got a medical appointment from 1 to 2.30 pm, so I am going to permit you to accompany him to this appointment before travel back to Timaru with him.

[36]              The grant of home detention will be on the conditions set out in the report that assess the suitability of that home detention address, but I have also looked at the conditions which were recommended in Mr Berry’s report. I am adding a further condition not to associate with any gang members or affiliates. The other matters which were discussed in that report deal with things which you should discuss with your doctor. Instead of imposing those as conditions, I expect your probation officer to encourage you to discuss those issues with your doctor.

[37]Ms Heald-Harris would you please stand.

[38]              On the charge of aggravated robbery you are sentenced to one year’s home detention to be served at the specified address in the EM bail report at Timaru on the conditions that were set out in the home detention report and on the further condition not to associate with any gang members or gang affiliates.

[39]              On the charge of perverting the course of justice,  you  are  sentenced  to three months’ home detention to be served concurrently, that means at the same time, and on the same conditions.

[40]You may stand down.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy to:

A McCormick, Barrister, Christchurch

Addendum

It has been brought to my attention that I did not specify whether the special conditions I imposed would also apply post-detention and for how long. I confirm that the identified special conditions are to continue post-detention for a period of 12 months.