R v Pickering HC Napier CRI-2010-020-004067
[2011] NZHC 1086
•1 September 2011
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2010-020-004067
THE QUEEN
v
SHANNON TANYA GERTRUDE PICKERING
Hearing: 1 September 2011
Counsel: N Graham for the Crown
EJ Forster for the Prisoner
Judgment: 1 September 2011
SENTENCING REMARKS OF ASHER J
Solicitors/Counsel:
Crown Solicitor, DX MP70017, Napier 4140. Email: [email protected]
EJ Forster, PO Box 838, Hastings 4156. Email: [email protected]
R V PICKERING HC NAP CRI-2010-020-004067 1 September 2011
[1] Ms Pickering, you have pleaded guilty to one charge of attempted murder and two charges of intentional damage. The charges relate to what can be seen as a continuing incident. The maximum sentence for attempted murder is 14 years’ imprisonment.
[2] It is necessary to go into the background in a little detail.
Background facts
[3] Ms Pickering, you are 49 years old. You suffered severe abuse as a child. You have a longstanding documented history of depression and a history of previous relationship difficulties. You have been on medication for most of your adult life and have received intermittent treatment. You have had periods in your life when you have been trouble-free, but other periods when you have been in a very bad way, indulging in substance abuse and getting into trouble with the law. You have had some jobs, but none recently. You were, you say, raised as a boy and all your relationships have been with women. In the last seven years you seem to have had more contact with mental health services, possibly because of the deterioration in your mental health condition. Your self-abuse includes petrol sniffing from the age of seven, which seems to have continued throughout your adult life.
[4] In the period leading up to this offending you had been in a relationship with Ms K. While that relationship continued Ms K had also formed a relationship with another woman, Ms T, who was younger, being 33 years of age. You had previously seriously assaulted Ms T and had been imprisoned for that. You had been released for approximately a month.
[5] At approximately 4.15am on 15 October 2010 you went to Ms T’s address where she lives in a caravan at the rear of the property. Ms T was at that time asleep in the caravan with Ms K and Ms K’s daughter. You used a hockey stick to smash three of the windows in the caravan causing glass to fall on the occupants. You smashed three windows on a motor vehicle parked next to the caravan owned by Ms K. The intentional damage charges relate to this incident.
[6] You were located by the Police not far from the scene and arrested. That morning at 9.56am you were bailed to return home to your address. Unbeknown to you and the Police, Ms K together with Ms T, not wishing to stay in the damaged caravan, had gone to that same address, where Ms K was still in part residing. Thus, when you arrived at that address and went into the bedroom you found both Ms K and Ms T lying on the bed. They were, it seems, having a family chat or moment as there were children present. You became angry. You say that your belongings, which you had packed, had been scattered around the bedroom. You asked Ms T to leave. The reaction was Ms K and Ms T wanted you to leave. You were very aggrieved at this request, considering this was your home to which you had been bailed.
[7] Ms T, who is apparently bigger than you, got to her feet and something of a fight broke out. It is difficult to be certain of the details, but there was undoubtedly a physical struggle which started in the bedroom and then carried on into the kitchen. While the struggle continued in the kitchen you grabbed a filleting knife from a knife block next to the stove. You then stabbed Ms T in the back. Both you and Ms T fell to the ground where you continued to stab Ms T. Ms T was stabbed a total of seven times. You said “I’m going to make you pay” as you stabbed her. Ms K tried to intervene and Ms T managed to get up from the floor and leave out the front door.
[8] Ms T sustained a number of stab wounds: three to the left back, one to the lung, one to the liver and one to the top of the shoulder blades. She has recovered. She appears to have made a full recovery. Her victim impact statement is moderate in tone, but there is no doubt that this was a severe attack. It was fortunate that the stab wounds did not involve damage to a vital organ. Ms T lost eight weeks’ work as a consequence of her injuries.
Approach to sentencing
[9] The principles set out in the Sentencing Act 2002 must be applied. There is no guideline judgment relevant to attempted murder. In considering a sentence for attempted murder the courts sometimes refer to the guideline decision in relation to
causing grievous bodily harm of R v Taueki[1] and the factors there set out to assist Judges. Counsel for the Crown has referred to Taueki and submitted that if it applies this offending lies at the top of band two.
[1] R v Taueki [2005] 3 NZLR 372 (CA).
[10] There must be some caution in applying the Taueki bands. The particular characteristic of attempted murder is the intention to kill; a distinguishing and unique feature of culpability. That is not a feature of causing grievous bodily harm where the focus is more on the circumstances of the infliction of the harm and the nature of the harm suffered. However, the particular factors set out in Taueki as contributing to the seriousness of that sort of offending are also relevant to assessing culpability in an attempted murder sentencing. The particular Taueki factors which exist in relation to Ms Pickering’s offending are extreme violence, serious injury and use of weapons.
Starting point
[11] There is not a huge difference between counsel in their helpful and balanced submissions. Ms Graham accepts that a starting point in the vicinity of seven years’ imprisonment was appropriate, while Mr Forster suggested that the starting point should be six years’ imprisonment.
[12] I have been referred to a number of other attempted murder sentences which have been compared to the present situation.[2] I do not propose going through all those authorities save to observe that sentences by and large tend to range between seven and 11 years for knife attacks by jealous partners. In R v Nelson and R v O’Kane where there had been a home invasion by the offending partner, a deliberate attack with a knife and in a severe and prolonged way with serious injury,
[2] R v Tuuta CA296/00, 21 September 2000; R v Khan CA83/02, 4 December 2002; R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009; R v Prasad HC Auckland CRI-2009-004-23295, 5 April 2011; R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008; R v RKS HC Tauranga CRI-2007-070-2622, 10 December 2007; R v Craw HC Auckland CRI-2005-057-18, 7 June 2006; R v Nelson HC Rotorua CRI-2004-077-15577, 16 August 2005.
starting points of approximately 11 years were fixed. However, in contrast in R v
Prasad where the offender had carried a knife with him and then, afflicted by a
mental illness, suddenly attacked an innocent companion with a knife inflicting very severe injuries, a starting point of seven years was fixed.
[13] In fixing a starting point here I note the lack of any home invasion. I am influenced by two factors that lessen culpability. The first is the circumstances in which the offending occurred. Rather than there being home invasion, you had returned to your own home to find it was now occupied by the objects of your emotion, Ms K and Ms T. It is most bizarre that you had been bailed to return to the place most designed for there to be another flare-up, but it has to be said that this was probably not the fault of the Police who had not been aware that Ms K and Ms T would have gone to your home. In any event, that background and what followed can be seen as constituting an element of provocation. Ms T clearly reacted with anger to your anger and a mutual fight broke out. Ms T was the larger party.
[14] In Taueki it is observed that provocation may justify a lower starting point.[3]
The Judge needs to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender and that it remained an operative cause throughout the commission of the offence. I consider that this was the case here. You were in your own home and on an objective analysis somewhat provoked. However, you then proceeded to try to carry out the most serious of all crimes. You tried to kill Ms T and you did so with a large knife inflicting very severe wounds which could indeed have killed. So the act of attempted murder itself was of a much more culpable type than, for instance, a less effective or more poorly carried out attack.
[3] At [32](a).
[15] Given the extreme violence and near success of the attempt, I find myself unable to accept a starting point of anything less than seven years. That will be the starting point.
Matters relating to Ms Pickering personally
[16] There is an aggravating factor. You have a record involving six previous assaults with instruments. One of these was to the object of the attempted murder,
Ms T. Indeed as I have observed, you had only recently been released from six months’ imprisonment (presumably three months served) for a previous assault. I am conscious that, for reasons that I will elaborate on shortly, this has to all be seen in the context of your mental condition. Nevertheless, some uplift is demanded by such a bad previous record and I increase the starting point by six months to seven and a half years.
[17] It is accepted that you are entitled to a maximum credit of 25 per cent for your guilty plea. For reasons already set out you are not entitled to any credit for good character and I am not satisfied you entertain sufficient feelings of remorse to warrant a discount. The issue that must be grappled with is the appropriate discount, if any, that reflects your mental condition both generally and at the time of the attack.
[18] In approaching the issue of any discount for her mental condition, I am assisted by the recent Court of Appeal decision in E v R.[4] In that case the Court of Appeal reviewed the principles that should be applied when there is a mental disorder, falling short of exculpating insanity. It was stated:[5]
[4] E v R [2010] NZCA 13.
[5] At [68].
A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.
(Footnotes omitted.)
[19] Ms Graham responsibly raised the question of whether it could be said that your mental disorder was causative of the offending. I have the benefit of a detailed psychiatric report prepared by Dr Jacqueline Short. This was prepared in the context of a possible insanity plea so it is not expressly directed at the sentencing process. I am assisted in this regard by this report. I have no doubt that you suffer from a depressive illness. A feature of this is a complex reaction to traumatic stress. I consider that you were suffering from this mental illness at the time of the incident
and that your symptoms were exacerbated by a long period of severe substance
abuse. While you may not have been specifically under the influence of any particular substance at the time, you had been sniffing petrol, had not taken your medication and had not had anything to eat or drink following your release from the police station. In such a circumstance it is not possible to enunciate any strict line of causative reasoning, but I am satisfied that your mental illness and general mental condition led to your extreme reaction in the course of the fight, to attempt to kill Ms T.
[20] Having read a great deal of material about you it is my perception that you are not a violent person in a sinister way, being a person who seeks others out to do damage to them. Rather, you can lose control and lash out when feeling hopeless and angry. Further, although you appear to be in quite a good mental position at the moment I consider that your mental condition will add to the hardship of your incarceration.
[21] I have given thought to the proposition that the discount should be mitigated by the fact that on release you may continue to be a very dangerous person. However, you have had long periods in your life where you have been trouble-free. It seems likely that if you are on good medication and supervised that you will not reoffend.
[22] The key to a successful outcome of your imprisonment will be treatment while you are in prison and then ideally some sort of supervision, possibly an extended supervision order if it was available, as a way of ensuring follow-up. It would seem that with help you are able to lead a law abiding life, but without that help things may well get out of control.
[23] Taking all these factors into account I assess the appropriate discount for your mental disorder at 25 per cent. So with the 25 per cent discount applied to the starting point of seven and a half years, and then a further 25 per cent discount applied to that figure for the guilty plea, the end sentence is a little over four years. I consider that in all the circumstances the appropriate sentence is four years’ imprisonment. I round the figure off in your favour in that way because of the
unusual circumstances of the offending and the particular mitigating factor of your mental condition already referred to.
[24] Finally, I record that the Crown has not sought a minimum term of imprisonment and I consider that to be the correct position. It would not be right to impose a minimum term given the particular factors relating to this offending and your mental health.
[25] Ms Pickering, on the attempted murder charge you are sentenced to imprisonment for a period of four years. On the two intentional damage charges you are sentenced to one month’s imprisonment on each, those sentences to be concurrent.
[26] I hope you have understood what I have said today Ms Pickering. The key to your future will be managing your condition, working on it while you are in prison and when you get out making sure you are on medication, that you observe the medication and that you are getting help. If you do that you have every chance of having a good life, as you have had in the past at times. But you must never allow yourself to get in this situation again because the consequences could be terrible indeed.
[27] You may stand down.
……………………………..
Asher J
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