R v Jenkins

[2013] NZHC 95

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-1787 [2013] NZHC 95

THE QUEEN

v

HELENA SHAQUALIN VALLERIE JENKINS

Hearing:         7 February 2013

Counsel:         R G Douch for Crown

R Laybourn for Prisoner

Judgment:      7 February 2013

SENTENCE OF KATZ J

Solicitors:           Crown Solicitor, Hamilton – [email protected]

Copy to:            R Laybourn, Hamilton –  [email protected]

R V JENKINS HC HAM CRI-2012-019-1787 [7 February 2013]

Introduction

[1]      Helena Jenkins, you appear for sentence today having pleaded guilty to one count of causing grievous bodily harm with intent to cause grievous bodily harm.[1]

Facts

[1] Crimes Act 1961, s 188(1).

[2]      On the evening of 17 March, you and a female associate were drinking with the victim at his unit.  The three of you then went into town where you consumed more alcohol.

[3]      Later, the three of you returned to the victim’s unit.   You and the victim argued and he was verbally abusive and insulting towards you.  He then went to bed. You were deeply angered by the insults and verbal abuse by the victim.  You went into the kitchen, took a 25cm knife from the drawer and used it to repeatedly stab the victim.

[4]      You and your associate then went outside where you instructed her not to contact  the  authorities.    You  then  returned  to  the  unit  and  locked  the  door. Fortunately your associate alerted others, and the Police and an ambulance were called.   When they arrived at the unit they had to break down the door, as you refused to open it.   The victim was then taken to Waikato hospital in a critical condition, where he underwent surgery.  He eventually recovered.

[5]      The medical evidence is that the victim had 18 individual injuries.   These included a complete severance of the left ear, a stab in the neck below the left ear and a wound that passed straight through the full thickness of the victim’s bicep and entered his chest.

[6]      In explanation, you stated that you had snapped as a direct consequence of the verbal abuse directed at you by the victim.

Purposes and principles of sentencing

[7]      In sentencing you today, I must take into account the purposes and principles provided for under the Sentencing Act 2002.[2]    I must hold you accountable for the harm done to the victim and endeavour to instil a sense of responsibility in you for that harm.   I need to denounce and deter your conduct as well as consider the victim’s interests.  The sentence I hand down to you today must reflect the overall gravity of your offending.   I must also ensure that the sentence is consistent with those handed down for similar types of offending.

Sentencing process

[2] Sentencing Act 2002, ss 7 and 8.

[8]      When deciding on an appropriate sentence I must consider your offending in isolation, removed from any features personal to you.   That will lead to a starting point for your sentence.   Secondly,  I must make any necessary adjustments for features that are personal to you.  Finally, I need to turn my mind to what, if any, is the appropriate discount to afford for your guilty plea.

Starting point

[9]      The starting point for your offending is largely guided by a decision of the Court of Appeal which has set a series of bands for what starting points should be imposed for different types of s 188(1) offending.[3]   The Court of Appeal has set out three sentencing bands (ranges of starting points) as follows:

[3] R v Taueki [2005] 3 NZLR 372, at [34].

(a)       Band one: 3-6 years’ imprisonment;

(b)      Band two: 5-10 years’ imprisonment; and

(c)       Band three: 9-14 years’ imprisonment.

[10]     Determining what band your offending falls into requires me to consider any aggravating or mitigating factors, as identified by the Court of Appeal, that are applicable to your particular offending.[4]

[4] The list of aggravating and mitigating factors can be found at [31] and [32] of Taueki.

[11]     Band 1 is for offending involving violence at the lower end of the spectrum. Band 2 is usually appropriate for offending where two or three of the aggravating features identified by the Court of Appeal are present.[5]     Finally, Band 3 is usually appropriate where three or more of the aggravating features are present, where the combination of the features is particularly grave.[6]     The bands, however, are to be applied flexibly.  I must assess the gravity of each of the factors that are relevant in your case and take an overall view of your offending.

Setting a starting point

[5] At [38].

[6] At [40]

[12]     Overall, the Crown says that your offending falls in the mid-range of Band 3 of Taueki, and that I should take a starting point of 12 years’ imprisonment.   The Crown submits that should then be discounted by two years on account of your personal circumstances.

[13]     Your lawyer submits that a starting point of 12 years is too high and that the case sits at the higher end of Taueki Band 2.   He has suggested an appropriate starting point should be in the range of 6-9 years’ imprisonment and that should be significantly further reduced because of the provocation.  It was submitted that the conduct  of  the  victim  triggered  the  attack  in  circumstances  where  you  have absolutely no prior history of previous violence.

[14]     In setting a starting point, I find that the following aggravating features, as outlined at [31] of Taueki, are applicable:

(a)       Extreme violence:  Your offending involved stabbing and the cutting

off of the victim’s ear. A total of 18 injuries were identified.

(b)      Serious  injury:    The  number  of  injuries  suffered  by  the  victim indicates that he was lucky to survive the attack.   He was taken to hospital in a critical condition.

(c)      Use of weapons:   The use of the 25cm kitchen knife is particularly aggravating. A knife is a particularly lethal weapon.

(d)Attacking the head:  The summary of facts details some wounds to the neck and the cutting off of the victim’s left ear, although I note your lawyer’s submission that most of the injuries occurred to the back and the chest.

[15]     I do not accept that the victim was particularly vulnerable, as that term is normally understood.

[16]     Your offending was impulsive, resulting from a heated domestic argument, so premeditation is not a relevant factor here.  There was obviously also a very serious impact on the victim, which you yourself have acknowledged.

[17]     I am prepared to take into account, to a modest extent, that there was a degree of verbal provocation on the night of the offending and that this was the catalyst for the attack.  I accept the Crown submission, however, that this needs to be balanced against  the  fact  that  your  emotional  state  was  affected  by  your  voluntary consumption of alcohol and drugs.  Further, the provocation was verbal abuse and nothing more.   Your violent attack on the victim was out of all proportion to the degree of provocation.

[18]     Taking all of these factors into account, it is my view that the appropriate starting point is ten years which is towards the lower end of Band 3 in Taueki.  In setting that starting point I have considered not only the guidelines in Taueki but also the various cases referred to by your counsel.  I am prepared to allow a modest one year reduction for provocation which is probably on the generous side given the disproportionate nature of your response.

Adjusting the starting point

[19]     You have some previous convictions, Ms Jenkins, but I do not consider any of them to have any particular relevance in this case.  They do not involve violence. No increase to the starting point is warranted.

[20]     I have read your pre-sentence report.  It speaks of your troubled upbringing where sexual, physical and verbal abuse were common themes.  You have also had an ongoing dependency on drugs and alcohol, which have no doubt contributed to your offending.

[21]     In relation to remorse, the pre-sentence report details that you have expressed insight into the effects of your offending and the impact that it has inevitably had on the victim.  You accept full responsibility.  That is also reflected in a letter you have written to the Court.  That is a mature response, which is a credit to you.  You are seeking assistance for your drug and alcohol problems which you intend to continue during your term of imprisonment.  I believe that you are genuinely remorseful.

[22]     I have also read Dr Deane’s psychiatric report.   It indicates that you have suffered an extremely traumatic childhood and have been the victim of emotional, physical and sexual abuse.  You have suffered throughout your life from blackouts and amnesia.  This may be attributable to a number of factors, including the effect of multiple  head  injuries.    You  have  previously  attempted  suicide  and  have  been detained under the Mental Health Act 1992 for compulsory treatment.   You have turned to drugs and alcohol to deal with issues, traumas and violent relationships.  Dr Deane has diagnosed you as having a borderline personality disorder, an alcohol induced depressive disorder and partially resolved post-traumatic stress syndrome.

[23]     Your lawyer has asked me to take your troubled background and psychiatric issues into account in sentencing you as well as your remorse.  Taking into account all those matters, I am prepared to allow a further discount of 18 months.

[24]     That takes your sentence to 7 years and six months imprisonment.  Both the

Crown  and  your  lawyer  are  agreed  that  I  should  take  account  of  your  early

indications of willingness to plead guilty to the charge of causing grievous bodily harm.  I will therefore afford you the full guilty plea discount of 25 per cent.  That reduces your sentence to five years and seven months’ imprisonment.

Minimum term of imprisonment

[25]     The final consideration I have is whether to impose a minimum term of imprisonment on you.

[26]     The  Crown  has  submitted  that  a  minimum  term  of  imprisonment  is appropriate. Your lawyer opposes this. The issue is finely balanced.

[27]     I have decided, however, not to impose a minimum term of imprisonment in this case.  I am influenced by the fact that you have no history of violence and that the present offending appears to be out of character.  I also note that you appear to be genuinely committed to rehabilitation.  You have attended or are proposing to attend a number of the courses available to you in prison.  I urge you to remain committed to that process.  Given your efforts towards rehabilitation I am prepared to leave the issue of the timing of your release to the Parole Board.  They will be best placed to determine whether you have continued your rehabilitation efforts following sentencing and the extent to which you may or may not be an ongoing threat to the community.

Name suppression

[28]     Finally, there is also the issue of name suppression.   There is an existing suppression order in place.   Following your guilty plea and sentencing, however, your counsel has acknowledged that it is appropriate for that final order to lapse and I order accordingly.

Sentence

[29]     Please stand Ms Jenkins.  On the count of causing grievous bodily harm with intent to cause grievous bodily harm, I sentence you to five years and seven months’ imprisonment.

Three strikes warning

[30]     Finally, I am also required by Parliament to give you a warning in relation to this particular offence.  Given your conviction for causing grievous bodily harm with intent to cause grievous bodily harm you are now subject to what is known as the three strikes law.

[31]     I am now going to give you a warning of the consequences of another serious violence conviction.   You will also be given a written notice outlining these consequences, which lists the “serious violent offences”.

(a)      If you are convicted of any serious violent offences other than murder after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.

[32]     Please stand down Ms Jenkins.

Katz J