R v Paton

[2009] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 771/2008
[2009] NZCA 155

THE QUEEN

v

GILLIAN THELMA PATON

Hearing:2 April 2009

Court:Robertson, Gendall and Keane JJ

Counsel:W C Pyke for Appellant

N P Chisnall for Crown

Judgment:29 April 2009 at 3 pm

JUDGMENT OF THE COURT

A         The appeal is allowed.

BSentence of four years six months’ imprisonment imposed for injuring with intent to cause grievous bodily harm quashed and sentence of three years nine months’ imprisonment substituted.

CSentence of four months’ imprisonment for theft and misuse of credit card imposed cumulatively made concurrent.

DSentence in all other respects will stand.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

[1]        On 14 November 2008 Gillian Paton was sentenced in the District Court, Hamilton, to four and a half years’ imprisonment for injuring her former partner, Scott Evans, on 9 October 2006, with intent to cause him grievous bodily harm.

[2]        Ms Paton was sentenced concurrently to three months’ imprisonment for a related theft that evening, and to four months’ imprisonment, cumulatively, for earlier offending: theft of Mr Evans’ credit card on 8 September 2006 and use of it seven times, and attempted use of it eleven times, between 8 - 11 September 2006.

[3]        On this appeal Ms Paton contends that the sentence imposed on her for her principal offence was manifestly excessive.  The sentencing Judge, Judge Wolff, she contends, took too high a starting point, six years.  He gave her an inadequate one sixth discount for her plea, one year.  He gave her an insufficient six month discount for her condition, as she contends it was, at the time of the offence: that known as battered woman syndrome.

[4]        In addition, Ms Paton contends, the four month sentence relating to the stolen credit card should have been concurrent, not cumulative.

[5]        Ms Paton did not originally put in issue so directly disparity between the sentence imposed on her for her principal offence and that imposed on her co‑offender Daniel Thompson, also four and a half years imprisonment, though he had elected to go to trial and had nothing that was mitigating.  That did become a live issue on the appeal.

[6]        The Crown’s position is that the sentence imposed involved no error of principle and was not manifestly excessive.  Ms Paton’s principal offence was serious and called for a commensurate response.  The Judge aligned Mr Thompson’s sentence to that he imposed on Ms Paton.  No disparity resulted.

Context

[7]        Ms Paton and Mr Evans met, and began living together immediately, in August – September 2003.  Their relationship proved highly volatile.  They were as much apart as together.  But for this offending they might not have parted finally even then.

[8]        Throughout their relationship both took the full array of illicit drugs and Mr Evans was violent.  In the 12 months preceding this offending he assaulted Ms Paton at least four times and at the date of the offending stood charged with two offences against her on 28 July 2006: a male assaulting a female and contravening a temporary protection order made in her favour on 29 June 2006.

[9]        Also, on 13 July 2006, Ms Paton lost the right to care for their two year old son.  When she and Mr Evans were apart, as they then were, and sometimes when they were together, she supported herself as a prostitute.  On 13 July she left their son, and her nine year old son by an earlier relationship, to visit a client.  The child’s care was entrusted by Court order to Mr Evans’ parents.

[10]     Yet in early September 2006 Mr Evans still spent some four days with Ms Paton at her Te Awamutu address and that is when she first offended.  On 8 September 2006 Ms Paton took Mr Evans’ bank card, while he was asleep,  and used it over the next three days to withdraw cash and purchase alcohol and groceries in Hamilton and Te Awamutu, making drawings totalling $2,269.

[11]     Then on 9 October 2006, a month later, when they were apart, Ms Paton made contact with Mr Evans by text message using a friend’s cellphone.  She pretended to be a woman whom he had met at a party, perhaps a prostitute.  She invited him to meet her at 10 – 10.30 pm that evening on a country road some kilometres out of Hamilton at the entrance to the Mormon Temple, Temple View.

[12]     When Mr Evans arrived between 10 – 10.30 pm Ms Paton was already there.  She was not alone.  Hiding behind a hedge, close to her parked car, was Daniel Thompson. He had been with her in Te Awamutu when she had made contact with Mr Evans and had agreed to accompany her.  With him was another man, not since identified, whom he had recruited.  They had picked up this man shortly before in Hamilton East.

[13]     Immediately Mr Evans saw Ms Paton’s car he realised she had sent the text messages.  He sent her a message saying that he was not stopping.  He turned for home.  He only agreed to stay when she asked him to discuss the custody of their son, and then only briefly.  She persuaded him to stay longer by asking him to look at papers she said related to their son’s custody.

[14]     At that point Mr Thompson and the man with him approached Mr Evans and asked for a ride into town.  He refused.  They attacked him immediately from in front and behind, punching him to the face and the back of the head and knocking him to the ground.  They kicked him to the face and head, as then briefly did Ms Paton. 

[15]     During this attack Mr Evans managed once to get to his feet, only to be pushed by one of the men into a nearby drain.  They removed his wallet, cellphone, work and car keys before decamping in Ms Paton’s car.

[16]     Mr Evans, after trying to flag down passing cars, hotwired his car.  He drove to the Hamilton police station and was taken by ambulance to hospital.  He was found to have suffered a fractured cheek bone and lacerations, grazes and bruising to his face, head and body.  He was observed for six hours.  Later, it seems, he was admitted briefly to the Henry Bennett Centre, suffering from emotional distress.

[17]     On 27 October 2006 Ms Paton was video interviewed twice at Te Awamutu.  In the first interview she admitted to the assault but denied Mr Evans’ account that he had been assaulted by two men directed or encouraged by her.  She was, she said, solely responsible.  In her second interview not long after, which the Judge accepted as accurate on sentence, she accepted Mr Evans’ account.

[18]     Mr Thompson was not spoken to until 5 December 2006.  He denied any part in the assault.  He said that he recalled little of it.  At the time of the incident, he said, he was heavily medicated and hallucinating. 

Sentence starting point

[19]     On sentence the Crown contended for a starting point for this offence of six years.  Though it attracted a ten year maximum term, the Crown contended by analogy, it lay within the second of the three bands set R v Taueki [2005] 3 NZLR 372 for actually causing grievous bodily harm, which attracts a 14 year maximum term. The Crown set its starting point towards the bottom of that five – ten year band.

[20]     Ms Paton’s then counsel, and counsel for Mr Thompson, who was then also for sentence having been found guilty at trial, contended that this offence lay rather within band one, which for actually causing grievous bodily harm attracts a starting point in the range three – six years’ imprisonment.  They contended for a starting point set significantly lower. 

[21]     The Judge accepted the Crown’s logic and took a starting point of six years.  The offence, he held, as the Crown had emphasised, was premeditated and involved three people and kicks to the head.  The context and the related theft were also pertinent.  That Mr Evans had not suffered any lasting injury, the factor on which defence counsel relied principally, was incidental. 

[22]     On this appeal, Mr Pyke contends, six years stands a year too high. The offence, he contends, lay at the cusp between bands one and two and then had to be reduced because it attracted a lower maximum term. 

[23]     Any planning, Mr Pyke contended, could only have happened after Ms Paton borrowed the cellphone. Mr Thompson happened to be present and agreed to accompany her. The other person was merely picked up on the way. Why Ms Paton wanted them with her is not to be assumed.  She may have been as concerned about protecting herself as retribution.

[24]     We are unable to agree.  In luring Mr Evans to an isolated place at night, in recruiting Mr Thompson if not his friend, in twice persuading Mr Evans to stay, in encouraging and taking part in his assault, and in seeing to the taking of his keys and telephone afterwards, Ms Paton had to have been deliberate.  That Mr Evans did not suffer more serious harm was fortuitous and was reflected in the offence charged.

[25]     The six year starting point taken by the Judge was severe, but as Mr Chisnall says for the Crown, it lay within his discretion.  Ms Paton’s offence was serious.  The true issue on this appeal is whether, in the sentence he imposed, the Judge allowed sufficiently for Ms Paton’s plea and for her condition, whatever that may have been, at the time of her offence.

Discount for plea

[26]     In allowing Ms Paton a one sixth discount for her plea, one year, the Judge said this at [26]:

That plea of guilty was relatively late, after depositions, one year after the initial indictment had been laid which included as an alternative the charge to which she ultimately pleaded guilty but I recognise that indeed she did ultimately plead guilty and it was not on her account that the complainant had to give evidence again in relation to the matter.  Normally there is a deduction of one third for an early plea of guilty. In the present case I reduce that to one sixth because of the lateness of the plea which obviously would reduce that six year sentence from which I commence (to) a term of five years.

[27]     The Judge went on to say, when sentencing Mr Thompson, who was not entitled to any such discount, that Ms Paton’s plea was all but inevitable and could not have come later (at [29]):

Apparently Ms Paton pleaded guilty after another Judge had indicated at the end of a pre-trial hearing that the opportunity for any credit at all was about to evaporate in the face of an extraordinarily strong Crown case.

[28]     In this the Judge found a further reason not to distinguish between Ms Paton and Mr Thompson in the sentence he imposed on the latter.  (His other reasons were that he saw Mr Thompson as Ms Paton’s instrument, to be held no more accountable, and that he had been badly advised to proceed to trial.) The Judge did not on this account give Ms Paton a discount for plea that was less than she was due.

[29]     Ms Paton was charged on 27 October 2006, the date of her interview. On 19 July 2007, at depositions, she was committed to trial. On 17 March 2008 Judge Spear dismissed her challenge to the admissibility of her video admissions on the ground of oppression. Her trial date was then known to be 2 September 2008, the date on which Mr Thompson went to trial. Ms Paton entered her plea before Judge Tompkins, merely days before, on 28 August 2008.

Discount for condition

[30]     In allowing Ms Paton a further discount of six months for her condition at the date of her offence, the Judge began by saying that she accounted for that offence in two ways.  She blamed Mr Evans for assisting, or allowing, his parents to obtain custody of their child and wanted him to feel the pain she had suffered.  She also considered he had been unfaithful to her.  When first spoken to, the Judge said, she did not make any claim to have suffered battered woman syndrome. 

[31]     Nor, the Judge said, was Ms Trenberth, the clinical psychologist who assessed Ms Paton for sentence, able to state definitively that her offence was conditioned by that syndrome.  Ms Trenberth was clear that Ms Paton had reasons to suffer the syndrome, and had shown symptoms of it both before the offence and after.  Also that she suffered undiagnosed depression.  But on the day and night she was also under the influence of alcohol and drugs. 

[32]     Despite those reservations the Judge accepted that Ms Paton did suffer the syndrome and undiagnosed depression as a result of her involvement with at least two violent men.  What he did not accept was that the syndrome had either caused or contributed to her offence.  Relying on Ms Paton’s own account in her second video interview he said this at [13]:

On the facts of the present case, the couple having been separated, there being no reason for them to come together and the expressed reason being for the purpose of attacking him so that he could feel pain and to punish him for the way that he had behaved, I do not and it would not be appropriate to overemphasise the battered women’s aspect of the matter beyond the fact that it is a feature of Ms Paton’s background that deserves, along with everything else, appropriate consideration.  I reject the proposition that this incident was in any way contributed to or caused by that source.

[33]     In short, the Judge held that Ms Paton had not acted under any compulsion or any immediate fear in any way attributable to the syndrome.  She had set out to exact retaliation.  In fixing the discount that he then gave the Judge set it on this more general basis at [21]:

Taking into account the background factors of Ms Paton’s involvement and health issues, possible undiagnosed depression, her involvement and consequent diminution of responsibility by her involvement in drugs and the matters raised in relation to Battered Woman’s Syndrome would justify a further reduction of six months.

Challenge on appeal

[34]     In this conclusion, Mr Pyke contends, the Judge set his focus too narrowly.  He did not take into account the extent to which the violence of every kind that Mr Evans had inflicted on Ms Paton throughout their relationship had conditioned her offence. 

[35]     Throughout the relationship Ms Paton had suffered Mr Evans’ rapid and arbitrary shifts of mood, at one moment highly affectionate, at the next abusive, threatening or violent.  He had assaulted her on at least four documented occasions in the twelve months before the offence and in the last instance, not long before her offence, at their child’s second birthday party.  

[36]     Ms Paton had also suffered Mr Evans’ cynical manipulation.  He had stayed with her as and when he wanted to but lived elsewhere and seen other women, including prostitutes; an abiding source of distress to her.  He had as well, in her eyes, recently been instrumental in inflicting on her an even greater harm from which he benefited, her loss of their son to his parents.

[37]     While then Ms Paton may have been retaliatory, Mr Pyke contends, all these factors led her to confront Mr Evans that evening.  She was a battered woman who had snapped.

Battered woman syndrome

[38]     The part that battered woman syndrome can play on sentence was most recently considered by this Court in R v Whiu [2007] NZCA 591, a motor manslaughter case, and in two respects: first as to whether it goes to culpability in fixing the starting point for sentence or is a personal factor mitigating sentence and, secondly, as to the mode and standard of proof.

[39]     The Court concluded at [33] that it is not a factor that goes to culpability.  It is rather a personal circumstance that can be mitigating.  As to the second issue, that of proof, the Court said at [32]:

… it is not necessary for there to be a formal diagnosis of battered women’s syndrome before prolonged abuse suffered by a woman at the hands of a partner or family member can be taken into account on sentencing.  The critical point is that, whatever label is used, there must be evidence which supports the view that prolonged abuse suffered by an offender materially contributed to her offending.

[40]     More then is called for, the Court said at [38], than the likelihood that the offender suffered the syndrome at the time of her offence.  Rather, the Court said at [37]:

If an offender wishes to argue that she has suffered prolonged abuse at the hands of a partner or family member and that this has contributed materially to her offending and so is relevant to sentence, she will have to point to an evidential basis for the submission.  The evidence will need to address the underlying facts of the abuse, its impact on the offender and the way in which it is said to have made a material contribution to the offending. 

[41]     In that case, relying on an unchallenged psychological assessment, again from Ms Trenberth, this Court accepted that the appellant had only driven because she was conditioned by her abuser to obey and that, while he was with her, her erratic driving was explained by his continuing assault.  Less easy to understand was why she had continued to drive so dangerously, and offended, after she dropped him off.

[42]     The Court nevertheless, and despite the fact that Ms Whiu had three previous convictions for driving with excess breath alcohol and two other driving convictions, considered that her condition at the time of her offending justified a discount in the range 20 – 25 per cent.

[43]     No less pertinent is the earlier case, which raises the very issue that arose in this case, R v Suluape (2002) 19 CRNZ 492. There this Court reduced to five years a seven and a half year sentence for manslaughter to take into account the degree to which the appellant had suffered physical and emotional abuse at the hands of her husband, whom she killed with an axe.

[44]     On sentence the Judge excluded battered woman syndrome as a possible influence, just as the Judge did here, because Mrs Suluape had not been assaulted by her husband that day or threatened.  She had not acted out of fear but out of anger. This Court on appeal did not see that as an impediment.

[45]     Like the Court in Whiu, the Court did not accept that battered woman syndrome of itself, and in some general sense, can be mitigating. That, it said at 497, [12] – [15], deflects attention from what is truly pertinent, “the provocative nature of chronic domestic abuse and humiliation” and its cumulative impact. At [15], moreover, this Court said:

The Law Commission’s discussion makes the point, which we accept, that the absence of brutality on the part of the batterer during the period immediately prior to the victim’s attack does not of itself neutralise the effects of long‑term abuse or necessarily deprive the victim of an argument for substantial mitigation. Both the history of abuse and the cultural factors are highly germane to the assessment of the appellant’s criminality.

[46]     In the assessment that it made the Court took into account the advantage the sentencing Judge had in conducting the trial, but concluded that his focus on the events of the day had been too narrow.  He ought to have considered the history of the relationship and its effect on the appellant.

[47]     That conclusion is one we reach also on this appeal.  That Ms Paton was retaliatory does not mean that she cannot have been acting in some way conditioned by battered woman syndrome and, in contrast to the Judge, we consider that, when one looks to her relationship with Mr Evans, set against her life before they met, in all likelihood it had a significant part to play.

Ms Trenberth’s opinion

[48]     Battered woman syndrome, Ms Trenberth said, is an exceptional kind of post traumatic stress disorder.  Though it results from sustained physical, sexual and psychological abuse, it is exceptional because the abuse is not literally sustained, it is cyclical.  The abuser can be violent and affectionate, affectionate and violent; and that can leave the woman who suffers the abuse completely disorientated.

[49]     Women can suffer loss of self worth, Ms Trenberth said, they can become helpless and dependent on their abuser and unable to leave the relationship.  They can lose the ability to think clearly or make rational decisions.  They can also react more extremely:

For some individuals there comes a point at which the brain can no longer react rationally under this mounting tension. People often describe this in terms like ‘something snapped’ or ‘I just cracked’ or ‘I blacked out’. This is the point at which battered women may themselves take physical action.

[50]     Ms Trenberth found in Ms Paton’s history, as well as in the symptoms she displayed both before her offence and after, every reason to suppose that she did suffer battered woman syndrome.  Throughout her adult life she had sustained violence at the hands of two men at least, the more recent of them Mr Evans.

[51]     Two years before Ms Paton met Mr Evans she had quit a six year relationship also characterised by heavy drug use, by violence, and by the birth and loss of custody of a child with whom she had resumed contact only shortly before she committed the present offences.  The violence in that relationship was even more extreme than any she endured at the hands of Mr Evans.

[52]     Ms Paton’s relationship with Mr Evans, Ms Trenberth said secondly, was to the same recurring pattern.  There were four documented instances in which he had been violent to Ms Paton in the 12 months preceding her offence against him, the last not long before her offence, at the second birthday party of their child.  There were also two compounding factors.

[53]     One was that throughout their relationship Mr Evans had been unfaithful to Ms Paton and, it appears openly, and in all likelihood deliberately openly.  The other was that Ms Paton had so very recently lost the custody of their child and, while she blamed Mr Evans for this, certainly in part, she saw him as her only means of recovering custody.  However destructive their relationship was, in her eyes she remained tied to him.

Five instances of violence

[54]     There is no issue taken by the Crown on this appeal that before Ms Paton offended, Mr Evans had been violent to her in the ways that she describes.  These instances were documented by the police and on the single occasion on which she pressed her complaint and he was charged, he admitted that he had been violent.

[55]     On 27 July 2005, according to police records, in an incident not referred to by Ms Trenberth, when Ms Paton had visited a friend in Hamilton and was placing their son in the car, Mr Evans ran up the drive and punched her nose, her upper arm and her right rib area.  She did not press the complaint she then made.

[56]     On 11 November 2005, the first incident Ms Trenberth records, relying on what Ms Paton told her, occurred at Te Awamutu at Ms Paton’s home after she discovered that Mr Evans had seen a prostitute.  They argued and, she told Ms Trenberth, he kicked her from head to toe with steel capped boots and punched her so hard to the mouth and that she lost her front teeth.  In her account to police she was less forthcoming.  She complained that she had been punched once and had stumbled backwards, breaking two front teeth.  Once again she did not press her complaint.

[57]     On 13 June 2006, Ms Paton told Ms Trenberth, Mr Evans again reacted extremely when they argued.  He tipped a couch on top of her and their son, whom she was holding.  He threatened to kill her.  Again in her documented complaint to the police she appears not to have been so forthcoming.  She appears not to have described him as having assaulted her, only of tipping over furniture.  She obtained a temporary protection order on 29 June 2006.  She did not press any charge.

[58]     On 28 July 2006, Ms Trenberth recounts, Mr Evans came to Ms Paton’s home.  By then Mr Evans’ parents had assumed custody of their son.  He was able to see the child readily.  She was not.  They argued.  He punched her hard in the face splitting her lower lip.  This required stitching at a medical centre.  He was charged as a male with assaulting her, a female, and with breach of the protection order.  It appears that the Crown intended to prefer an indictment alleging that he injured with intent to injure her.  He admitted the lesser offence.

[59]     On 8 February 2008 Mr Evans was sentenced for that lesser offence and the breach to 100 hours community service and nine months supervision.  Judge Maze did not have the benefit of a victim impact statement and, in deciding to impose a sentence in the community, accepted that Ms Paton herself might also have been violent to a significant degree:

The summary of facts for the principal offending records that you had been in a relationship with the victim until about June 2006. She obtained a protection order; it was served upon you. About a month later there was an exchange of text messages and you went to her home at around 11 at night. An argument took place. You then punched her in the mouth with a closed fist causing a one centimetre laceration to her lower lip, for which she required treatment and stitches.

You say that the violence between you went both ways and to a degree that is conceded as a matter of background information, in that the Crown acknowledges that this woman faces a significant number of charges, many of which are violence related. But of course in the end, all that does is run a risk with you engaging in such a relationship, and indeed continuing to have contact with that woman, and exposing a child to yet again, outbursts of violence.

[60]     Judge Maze had two other reasons for imposing a sentence in the community that she offset against Mr Evans’ earlier aggravating conviction for violence to a woman in 2003.  He had attended a domestic violence program and sought counselling for alcohol abuse.  But in attributing blame to Ms Paton, reflected as she understood in many charges still to be resolved, she sentenced Mr Evans on a misapprehension.  Ms Paton was charged with a single offence expressed in the alternative.

[61]     In the meantime, moreover, in August 2006, not long before Ms Paton offended against Mr Evans, he assaulted her one final time, on this occasion at McDonalds restaurant when she arrived late at their son’s second birthday celebration.  She went outside with the child to smoke a cigarette.  Mr Evans came out and punched her to the head.  She complained to the police but they said that she had chosen to go there.  Mr Evans appears not to have been charged with any offence.

Compounding factors

[62]     On Ms Trenberth’s assessment this violence was compounded by two other factors, the first of which Ms Paton found even more intolerable, the loss of their child to Mr Evans’ parents, a loss from which he continued to benefit despite his violence towards her and his earlier lack of care for their child:

Following the loss of her younger son, Ms Paton described having increased her use of alcohol and cannabis even further to cope with the emotional pain. She recalled that she would ‘drink to sleep without nightmares, crying in my sleep, waking up and forgetting that baby wasn’t there … I couldn’t handle it, I was hurting so much, it was horrible.’ She described having felt very lonely and miserable constantly.

…

… She perceived that Mr Evans’ violence and substance abuse had been the catalyst for the loss of custody. While she was aware that she herself had needed to stop using substances, emotionally she had been desperate to create a ‘normal’ family unit with Mr Evans. She had loved him, and had exposed herself to his abuses in the hopes of finally achieving this family unit. Because Mr Evans’ violence had alternated with periods of loving attention, Ms Paton had continued the relationship long after she should have. She had tried to end the relationship several times, but had repeatedly been drawn back by Mr Evans’ ‘sweet talk’.

… She described feeling that she had ‘lost everything – there was nothing left.’ This was the psychological background against which she had met with Mr Evans on the night of the alleged offending. The theme of this meeting had again, centred on the custody of this child. She had been unable to accept Mr Evans’ betrayal in agreeing to place the child in the care of his parents, and then having had ready contact with the child at their home.

This dynamic appeared to have been critical in her ongoing contact with Mr Evans following the loss of custody. … It appeared that Ms Paton had never given up hope of resuming the care of this child, and had believed herself to be cunningly maintaining the relationship with Mr Evans in order to eventually align with him against his parents.

In reality she had harboured a deep resentment against him, from the combination of violence and perceived unfairness of his contact with the child, unfortunately she was unable to gain any ground in respect of her own contact.

Ms Paton has been characteristically unaware of the emotional risks to herself in pursuing this plan. She had had little sense of respect for Mr Evans, given his violence, but she had continued to expose herself to his presence. It was also significant that Ms Paton had again turned to substance abuse in order to cope with her emotional pain, essentially a form of self medication. This was an expensive strategy. It seemed inevitable that there had eventually been an outlet for her resentment and distress. Her use of his credit cards was not surprising under the circumstances. It had been, in fact, a surprisingly mild form of retaliation for all the violence and losses.

Even currently Mr Paton had not been able to come to terms with the reality of Mr Evans cost to her life. She held on to the hope of regaining custody of her younger child. This was her only point of hope and her sole source of motivation to continue.

[63]     The second compounding factor Ms Trenberth identified appears paradoxical. Seemingly Ms Paton did not just regard herself as still tied to Mr Evans.  Despite his violence, she appears still to have been bonded to him emotionally.  That he was willing to meet her that night believing her to be a woman he had met at a party, perhaps a prostitute, proved the final straw:

… Ms Paton was somewhat unclear about her main purpose on that night. She recalled having ‘wanted him to feel the hurt I was feeling’. For her, this meant ‘taking his son away from him’. She believed that she had previously achieved this when she had fled to the Women’s Refuge, at which point he had been highly agitated …

Ms Paton did acknowledge that her use of substances had been critical in her decision to proceed with the meeting. She was clear that she would not have gone ahead without the mind-altering properties of the drugs.

It was not clear, even to Ms Paton, whether she had rationally thought about what she had hoped to achieve by that meeting. It seemed unlikely, given the level of substance abuse. There was an impression that a reactive sense of retaliation had played a part in Ms Paton’s actions on that occasion. The emotional ‘trigger’ had apparently been Mr Evans having fallen into a deception that Ms Paton had devised to test him: she had texted him in the guise of a prostitute and he had responded. This had confirmed her suspicions that he might have been habitually engaging prostitutes. Over a long period of time she had been suppressing the impact of the relationship degradation, violence and losses. It appeared that this ‘test’ had marked the point at which she had finally wanted to ‘hit back’ in some significant way. …

Conclusion

[64]     It was against that background that Ms Trenberth reached her measured assessment as to the part the syndrome may have played in Ms Paton’s offence:

With regard to the question of post-trauma disorder at the time of the alleged assault, it was difficult to reach a clear diagnosis because her symptoms had been complicated by substance use. She had been using substances heavily for at least several weeks. Nevertheless her overall pattern of behaviours and thoughts throughout this relationship and post-separation had been consistent with the responses characteristic of battered women.

[65]     As Ms Trenberth’s careful assessment illustrates, clearly the violence Ms Paton suffered at the hands of Mr Evans cannot be said to have caused her to arrange for him to be assaulted.  However clouded by alcohol and drugs, she also had reasons other than his violence for acting as she did, her distress at the loss of their child and his infidelity.  She made a choice and pursued a strategy.

[66]     We think it inescapable, nevertheless, that what brought Ms Paton to this extreme pass was Mr Evans’ sustained violence to her over the course of their relationship, which was emotional as well as physical, and in which the compounding factors had their aggravating part to play.  Ms Paton, we consider, could on the day of the offence have reached such a pitch that, in a figurative sense, she snapped.

[67]     That cannot excuse her offence.  It does satisfy us that her level of criminality is not to be measured only against what she did. It is to be assessed against the complex of reasons that underlay why she acted.  She acted out of great pain as well as out of anger.  She is entitled to a greater allowance than the six month discount allowed her by the Judge.  We would allow her a 25 per cent discount, one year, three months.

Theft and misuse of credit card

[68]     This conclusion has also caused us to revisit the sentence of four months imprisonment that the Judge imposed cumulatively on Ms Paton for the theft and misuse of Mr Evans’ credit card a month earlier.

[69]     There is no question that the term of imprisonment imposed was proportionate.  But there does have to be a question whether it was imposed in respect of truly distinct offending for which a cumulative sentence was proper, or whether it was rather the beginning of a sequence of offences attributable to the complex of factors just identified.

[70]     The safer conclusion is, we consider, that the factors at work when Ms Paton offended violently were already at work, if less extremely, the month before.  In that sense it was not distinct offending and it is proper to make the term of imprisonment imposed concurrent not cumulative.

Parity

[71]     We are conscious that in the sentence that results, three years, nine months, Mr Thompson will remain subject to a sentence fixed explicitly by the Judge to be no greater than that imposed on Ms Paton.  However, we do not consider that any disparity results.

[72]     Ultimately the Judge sentenced Mr Thompson to the same sentence as Ms Paton for this reason (at [31]):

All of the aggravating features that relate to Ms Paton relate to Mr Thompson other than the fact that he had no motive, no reason, other than he was persuaded into this act of violence by her. To that extent he was a victim used by her and it would, in my view, be wrong to sentence him to a longer term of imprisonment than she was sentenced on the same charge, partly because I think that his decision to defend the charge may have been as a result of some poor advice but also because it would be inappropriate to deal the instrument of the assault in a way that exceeded the sentence that was imposed against the underlying organiser and the person who set it up and who was actively encouraging it to happen.

[73]     We are unable to agree. Mr Thompson may only have accompanied Ms Paton because she recruited him.  But he chose to go with her.  He chose to recruit the second man to accompany him.  Ms Paton may have encouraged Mr Thompson to assault Mr Evans.  She was in no position to direct him to do so.  He and the second man made their own quite independent choice and are accountable for the assault to which they subjected Mr Evans, quite independently of any encouragement they might have had from Ms Paton.

[74]     The Judge was right, we consider, to take the same starting point for Mr Thompson as he did for Ms Paton, six years.  Mr Thompson had no claim to a discount for plea whether or not he had been ill advised by his counsel, an issue as to which one can only speculate.  He had nothing mitigating and indeed previous convictions for violent offending.  He can count himself extremely lucky that the Judge gave him the generalised discount that he received.  His sentence could have stood higher.

Result

[75]     Ms Paton’s appeal against sentence is allowed.  Her sentence of four years, six months’ imprisonment for injuring Mr Evans with intent to cause him grievous bodily harm is quashed.  In its place she will be sentenced to three years nine months’ imprisonment.

[76]     The term of four months’ imprisonment imposed cumulatively on Ms Paton for the theft and misuse of Mr Evans’ credit card a month earlier will be made concurrent. Her sentence in all other respects will stand.

[77]     The result is that Ms Paton’s effective sentence will become, instead of four years ten months’ imprisonment, three years nine months’ imprisonment.

Solicitors:
Crown Law Office, Wellington