R v Ross
[2021] NZHC 37
•29 January 2021
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-092-2113
[2021] NZHC 37
THE QUEEN v
LESLIE PETER ROSS
Hearing: 29 January 2021 Appearances:
J J Rhodes and H Watts for the Crown
R Mansfield and H Smith for the Defendant
Judgment:
29 January 2021
SENTENCE OF GAULT J
Solicitors / Counsel:
Mr J J Rhodes and Ms H Watts, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City Mr R Mansfield and Mr H Smith, Barristers, Auckland
R v ROSS [2021] NZHC 37 [29 January 2021]
[1]Mr Ross, you appear for sentence today following guilty pleas on:
(a)one charge of kidnapping;1
(b)one charge of assault with intent to injure;2 and
(c)two charges of threatening to do grievous bodily harm.3
Facts
[2] The facts of your offending are that in late January 2019 you, Ms Bennett and H, who viewed Ms Bennett like an aunty, moved to an address in Auckland. You were on EM bail at the time.
[3] On the night of 2 February 2019 you, Ms Bennett and H were sitting in Ms Bennett’s car on the front lawn of the property. During conversation with Ms Bennett, you had a disagreement. You became angry with Ms Bennett and punched her in the face. You got out of the car, ran around to Ms Bennett’s side and pulled her out forcefully causing her to fall into the nearby fence. You then kicked her to the abdomen as she lay on the ground. Ms Bennett received a deep cut above her right eye and bruising to her body.
[4] When you saw that Ms Bennett was bleeding from a cut to her head, you attempted to wipe her head before she ran away. You cut off your electronic monitoring bracelet and left the address in Ms Bennett’s car, ripping off the bumper in the process. You dumped your EM bracelet and went to stay with relatives. The following day, you returned to pick up Ms Bennett and H to take them to that address.
1 Crimes Act 1961, s 209(b). Maximum penalty is 14 years’ imprisonment.
2 Section 193. Maximum penalty is 3 years’ imprisonment.
3 Section 306(1)(a). Maximum penalty is 7 years’ imprisonment.
[5] Initially the two bedrooms at the address were occupied and you moved into the lounge, staying there for about a week. You requested that the occupants of the second bedroom leave the house and once this happened you and the two complainants moved into that bedroom. After this, you became significantly more controlling, particularly towards Ms Bennett. You frequently lost your temper. You did not allow Ms Bennett to leave the house without you, telling both complainants: “Wherever you go, I’ll go”. Sometimes Ms Bennett was confined to the bedroom alone on your orders. On other occasions, the complainants accompanied you when you left the house to run errands or get food, but you remained together.
[6] If the complainants attempted to leave the bedroom, you would say: “Where the fuck do you think you’re going?”. You would also get angry if visitors attempted to talk to them.
[7] Ms Bennett was not allowed to go to the shower or toilet by herself. You would either accompany her into the bathroom or require H to stand guard at the door.
[8] You kept a hammer and a large nail, and threatened to use them on Ms Bennett if she did not do as she was told. You also told both complainants that you had a gun, and that if Ms Bennett’s son attempted to come to the house to pick her up, you would shoot him. On another occasion, you threatened to stab both Ms Bennett and H. You also told Ms Bennett what to wear, and if you did not like what she was wearing, you told her: “If you fuck up again I’ll have to do something about it”.
[9] Ms Bennett wanted to leave and return home but was unable to do so because of her fear of your reaction. H also wished to leave but did not as she was afraid of the potential consequences for Ms Bennett and sought to protect her.
[10] On 20 February 2019 you and the complainants left the house to purchase food. You started verbally abusing the complainants on the street. A passing police officer saw Ms Bennett in distress and stopped to speak to her. You ran away.
Victim impact statements
[11]Ms Bennett has provided a statement of the impact of your offending on her.
[12] Ms Bennett said how the assault caused a cut to her forehead and a bad knock to her head. She said she had a lot of pain and since has had ongoing issues with concussion, which has made life very difficult. She struggles to remember things and still has treatment. She has not been able to work since.
[13] She said she lost property during what happened that the police were unable to recover, including irreplaceable items of significant sentimental value. She feels like she lost everything.
[14] In relation to the emotional harm, she said what you did was the worst thing she has ever been through. You broke her spirit. She has not been herself since and hardly goes out of the house. She even struggles to spend time with her family, losing her temper quickly and finding it hard to communicate with her kids, which breaks her heart. Her youngest son has had to live with her other daughter.
[15] She said she has lived in fear because of your threats. She finds it very hard to trust people. She has been getting help and has made some good progress but still struggles. Certain things, such as being in a small room, can make her have a panic attack. She has a hard time doing basic things. She still feels miserable and has really bad days. She said giving evidence was the hardest thing she has ever done, but she is proud she did it.
[16]I thank Ms Bennett for her statement.
[17] H was 15 when this happened. She said that she did not sustain any physical injuries. She did lose some items of property. Emotionally, she said she was exposed to things that were not appropriate for a person of her age and has had some issues since. She has felt upset and angry more than usual and even got into a fight at school. This meant she has not been able to go to her old school anymore. She has not really been herself since. She has not wanted to hang out with her friends or go out as much. She is angry about what you did to her and to Ms Bennett. She was so worried about her aunty, it made her feel scared for them both.
[18] She has felt more worried in general since this happened and thinks she trusts people a bit less. She is only now starting to feel a bit more like herself but still gets more emotional than she used to, finding it hard to express how she feels and the impact this all had on her. She feels most people do not really understand what she went through.
[19]I also thank H for her statement.
Approach to sentencing
[20] In terms of my approach, I will first set a starting point which reflects the nature and circumstances of your offending. I will then consider your personal circumstances, to assess whether an adjustment to the starting point is required – up or down. These circumstances include your willingness to plead guilty.4
[21] Throughout this process, I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.5 In serious violent offending, such as this, the relevant purposes of sentencing include to hold the offender accountable for harm done to the complainant; to promote a sense of responsibility for that harm; denounce the conduct in which the offender was involved; deter the offender or others from committing the same or a similar offence; to protect the community from the offender; and to assist in the offender's rehabilitation and reintegration.
Starting point
[22] Mr Rhodes, for the Crown, submits that the charges of kidnapping and threatening Ms Bennett should be considered together as the lead charges. There should then be an uplift to account for the initial assault on Ms Bennett and later threat to H, with a reduction for totality. Your counsel, Mr Mansfield, agrees with this approach. I consider it is correct.
4 Moses v R [2020] NZCA 296.
5 Sentencing Act 2002, ss 7-8.
The lead charges
[23] Accordingly, I first consider the starting point which appropriately reflects your kidnapping and threat in respect of Ms Bennett.
[24] There is no guideline judgment in relation to sentencing for kidnapping. Such a range of circumstances may be involved. The Crown points to one case in which Powell J observed that cases involving aggravated violence tend to attract at least 10 years’ imprisonment, whereas:6
Cases involving moderate or lower level violence tend, generally, to have starting points ranging from around three years to just over seven years ... as the Courts have said many times, the cases are fact specific.
[25] The Crown submits that a starting point of five years’ imprisonment is appropriate. Your counsel submits that a starting point of three years better reflects the approach taken in previous cases.
[26] The Crown identifies no mitigating factors, and the following aggravating factors of your offending:
(a)The length of detention; being seven to 10 days. This also shows significant premeditation.
(b)The nature of the kidnapping, including:
(i)The use of specific, serious threats. Though no actual violence was used, the Crown sees this as the lack of an aggravating factor, rather than a mitigating factor. The Crown also notes that the earlier assault made the threats much more effective.
6 R v McIntyre [2019] NZHC 1162 at [33]. See also R v Liev [2017] NZHC 2253.
(ii)The motive; both psychological manipulation and control, and to avoid capture. The latter is a common aggravating factor in violent crimes.7
(iii)The restriction of Ms Bennett’s liberty, extending to which clothes she could wear, and her inability to go to the bathroom alone (and the related invasion of privacy).
(c)The vulnerability of the victim, given the strength disparity and having been taken away from her home, isolating her from her children and other family.
(d)And finally, the impact on the victim, who continues to suffer debilitating physical and emotional issues as a result of your offending.
[27] Your counsel mostly agrees with the Crown as to the presence of these aggravating features, albeit not their extent. Your counsel sets the duration of the kidnapping at approximately eight days. I accept that duration. Your counsel submits that the nature of the kidnapping was less serious than the Crown alleges, that you were less controlling, as Ms Bennett had opportunities to escape but remained. Your counsel submits that her continued use of your reputation to threaten her debtors is difficult to reconcile with her being a victim. I do not accept this submission. You have pleaded guilty to kidnapping and threatening to do grievous bodily harm.
[28] Your counsel also submits that your sole motive was to evade arrest, and not to exercise possessive control over Ms Bennett. I accept that evading arrest was a significant motive, but the suggestion it was the sole motive is inconsistent with at least some aspects of your controlling behaviour, such as your desire to control the clothes Ms Bennett wore during the kidnapping.
7 R v Taueki [2005] 3 NZLR 372 at [31(g)] and [39(b)].
[29] I have considered several cases relied on by the Crown and to which the defence has responded.8 The Crown submits that the common thread of these cases is the offender’s proprietary and controlling view of a partner or ex-partner. The Crown submits the present case is more serious, given the additional motive of evading capture and the much longer duration, and accordingly a starting point of five years’ is appropriate, as indicated, although Mr Rhodes acknowledged that this is a relatively high starting point, he says warranted by the aggravating factors.
[30] Your counsel agrees that the present case involved a much longer detention, but submits that the cases cited are otherwise more serious. They deal with confinement to a property or vehicle, involve more serious threats with a wrench or knife, and in several cases, actual violence. In Wilson, Hayes and Joe, the victims tried to flee but were caught and assaulted. I consider, however, the present offending involved lengthy confinement at a property. You made threats that are comparable to some of those cases,9 and you had, or referred to, weapons. I accept that you did not use actual violence during the kidnapping. But your earlier assault on Ms Bennett showed your willingness and ability to do so, and made your threats much more believable.
[31] Of these other cases, I consider Anguna more comparable to your offending. Like you, he detained his complainant in his relative’s home. He invaded her privacy and threatened to stab her. But your kidnapping of Ms Bennett was many times longer, and was motivated by a desire to evade arrest; both significant aggravating factors.
8 In particular:
(a)Anguna v R [2020] NZCA 127: in which the offender drove the victim (his ex-partner) to a relative’s house, threatened her with a knife, spat on her, and forced her to undress. She was detained from approximately 8:00 pm until midday the following day, when she escaped. In respect of this offending, the Court of Appeal upheld a starting point of two years and nine months’ imprisonment.
(b)Wilson v R [2015] NZHC 2653: in which the victim attempted to escape abuse, and was spat on and physically restrained by the neck. She was held in the offender’s bedroom overnight. Starting point of two years and four months’ imprisonment upheld.
(c)R v Hayes CA171/06, 20 July 2006: in which the offender strangled, threw, kicked and head butted his partner, dragged her by the hair into his car, and threatened to shoot her. She escaped shortly afterward. Starting point of three years’ imprisonment for kidnapping and male assaults female.
(d)Joe v R [2019] NZCA 394: the offender pulled his partner by the hair into his car. He drove to a cemetery, threatened her with a wrench, and kicked her in the head. The kidnapping lasted less than two hours. The Court of Appeal upheld a starting point of three years’ imprisonment (including for related convictions).
9 Anguna and Joe.
[32] I adopt a starting point of four years’ imprisonment for the charges of kidnapping and threatening Ms Bennett.
Uplift for remaining charges
[33] For the initial assault on Ms Bennett, the Crown notes the following aggravating factors, which your counsel accepts:10
(a)an attack to the head (although Ms Bennett’s head injury was likely caused by her hitting the fence); and
(b)vulnerability of the victim.
[34] The Crown points to two similar cases of family violence.11 Both cases warranted a starting point of 18 months’ imprisonment. The Crown submits the present case might attract a starting point of 12 months. Noting the considerably more serious violence in those cases, your counsel suggests a starting point of nine months’ imprisonment. Considering the more extreme violence used in those cases, I agree with your counsel’s assessment.
[35] The charge of threatening to do grievous bodily harm to H concerns the threat that you would stab her. I leave aside your claim that you had a gun given H was not the target of that threat.
[36] The Crown infers that the threat to H continued for the duration of the offending. The Crown identifies the following aggravating factors:12
(a)premeditation, due to the duration of the offending;
10 R v Nuku [2020] NZHC 506, adapting the guideline judgment of R v Taueki [2005] 3 NZLR 372.
11 In particular:
(a)In Nelson-Wright v Police [2015] NZHC 2302, the offender threw his partner into a wall, slammed her head into the ground, sat on her and punched her repeatedly. When she sheltered in a bathroom, he kicked the door down and resumed punching her.
(b)In Kanuta v R [2016] NZHC 436, the victim struck her partner, who responded by punching her. When she fell to the ground unconscious, he straddled and choked her, kicked her in the head, then choked her again.
12 Referring to the key factors set out in Faaleaga v R [2011] NZCA 495 at [11].
(b)the seriousness and frequency of the threats;
(c)your ability to carry them out, especially after H witnessed your assault on Ms Bennett; and
(d)H was vulnerable; she was 15 at the time and felt compelled to stay out of fear for the safety of her aunty.
[37] The Crown refers to two similar cases,13 but considers the present case more serious due to the duration and detail of the threats. H knew of your ability to carry them out, having witnessed your earlier attack on her aunty. The Crown suggests, if sentencing for this offending on a standalone basis, a starting point of three years and six months’ imprisonment.
[38] Your counsel submits that on a standalone basis, no more than 12 months’ imprisonment would be an appropriate starting point. Mr Mansfield submits your threats to H were less serious than a threat to kill, directed at both complainants rather than individually, and only made as a result of H staying at the property. I accept the specific threat to stab was not to kill, but I do not consider these other details to be significant. H was a vulnerable teenager. If sentencing on this charge alone, I would have adopted a starting point of approximately 18 months’ imprisonment.
[39] In any event, counsel agree that the combined uplift needs to be reduced in accordance with the principle of totality. The Crown submits a combined uplift of two years’ imprisonment, whereas the defence submits one of 12 months’ imprisonment. I consider a combined uplift of 15 months’ imprisonment is appropriate taking into account totality.
13 In particular:
(a)In Taylor v Police [2014] NZHC 1139, the offender forced his way into the home of an ex- partner, pushed her against the wall, and threatened to kill her unless she left the area. He received a starting point of 18 months.
(b)In R v Forrest CA90/06, 12 October 2006, a prisoner sent a letter threatening to kill four victims. He included details of his previous crimes, personal details of the victims, when he would escape and where he would attack. The Court of Appeal upheld a starting point of three years.
[40] This leads to an adjusted starting point of five years and three months’ imprisonment.
Personal aggravating / mitigating factors and guilty plea
[41] I now consider whether there are aggravating or mitigating factors personal to you that justify an adjustment to the starting point.
[42] The Crown submits there should be an uplift for your previous convictions. In 2008 you were convicted of kidnapping, rape, and male assaults female. That offending also involved a long period of detention enforced by threats and isolation.
[43] You have three more convictions for male assaults female, eight other convictions for violent offences, and 242 convictions overall. Your long history of offending is emphasised in the pre-sentence report prepared by Corrections. The report writer assessed you as having a high risk of reoffending, based on your criminal history, gang associations and the recidivist nature of your offending.
[44] The Crown submits that an uplift of 12 months’ imprisonment is appropriate for deterrence particularly given the similarity with the 2008 offending. Your counsel submits an uplift of six months’ imprisonment is appropriate, as your history of violent offending is the product of a long struggle with behavioural and mental health difficulties.
[45] I acknowledge that your history of violent offending, particularly against women, including in similar circumstances to the present case, requires deterrence. Its causes, and your potential for rehabilitation are relevant, but will be dealt with later and should not be double counted. I consider an uplift of 9 months’ imprisonment is appropriate for your previous convictions.
[46] The Crown also notes that the present offending occurred while you were on bail and, given its serious and prolonged nature, submits that a further uplift of six months’ imprisonment would be appropriate. Your counsel submits that no further uplift is necessary – that you have spent 11 months on remand, during which “the consequences of breaching bail have been hammered home” to you.
[47] I consider that your time spent on remand is not relevant to the present issue. Offending while on bail is an aggravating factor,14 and the seriousness and duration of your present offending requires an uplift. But in order to avoid double counting, as I have already considered evading capture to be an aggravating feature of the offending, the uplift is limited to three months.
[48] I now consider your background and upbringing. I have received a cultural report, prepared by Mr Harry Tam.15 It is helpful and detailed.
[49] The report indicates you are 50 years old and of Te Āti Awa and Ngāti Ruanui descent. Apart from knowing your iwi and hapū, you do not know your whakapapa. The early part of your life was not easy. You faced significant difficulties. You are one of 16 children. Your mother and father were heavy drinkers and your mother was a problem gambler. They were unable to meet your basic needs. You witnessed family violence on a regular basis, including seeing your mother hospitalised on multiple occasions. Your father was also violent towards you. Sometimes you could not go to school for over two weeks because of your injuries. You say that the violence you experienced growing up has become intergenerational, as your brothers and sisters have also been violent with their partners.
[50] You began offending at an early age, influenced by your older siblings. At age seven, you were placed into state care. You lived in a series of foster homes and boys’ homes, where you were often severely beaten and sexually abused. These experiences were deeply traumatising for you. You became bitter towards society and distrustful of authorities. You entered the adult criminal justice system when you were 15 years old. Since then you have spent much of your life in prison.
[51] You told the report writer that your disconnectedness from your whakapapa is a source of deep shame for you. You became involved in gang life to fill this void. You were introduced to gangs by your older siblings, and have had a long involvement with Black Power, including as president of the Movement chapter in Whanganui. You relinquished your membership in 2017.
14 Sentencing Act 2002 s 9(1)(c).
15 Sentencing Act 2002, s 27.
[52] In 2016, you reached a settlement with the Ministry of Social Development’s Historic Abuse Claim Unit in relation to your abuse in state care. I also have a letter of support from your former lawyer, Ms Cooper, who acted for you on your abuse claim. Ms Cooper wrote about your early life and abuse in state care. She wrote that because of the abuse you have developed fewer skills for coping in society and struggle to sustain stable relationships.
[53] The cultural report states that you have a long history of abusing alcohol and drugs, including prescription drugs and methamphetamine at the time of the offending. You said that you used drugs to self-medicate your childhood trauma. You have come off meth since being remanded in prison and completing treatment. You are motivated to continue to abstain from drugs.
[54] You have five children and five grandchildren. You did not have much involvement with your children when they were growing up.
[55] I accept that your offending is related to your background. There is a causal connection between the trauma-inducing family violence and abuse you suffered early in life and in state care, your drug addiction and your offending – including the offending against Ms Bennett and H. You did not develop a clear sense of identity and culture, and you learned to use violence as a protection mechanism when you felt threatened. That does not excuse your offending, but it goes some way to explaining it. Taking into account your background and the nature of your offending, I consider a discount of 15 per cent is appropriate. The fact that this is offset against the uplift for previous convictions balances the need for denunciation and supervision.
[56] Mr Mansfield submits you are entitled to a further discount for remorse. You have written a letter to the Court, apparently for the first time, in which you accept responsibility for your offending and recognise that your upbringing does not excuse your poor decisions and actions. You have also written letters to Ms Bennett and H, acknowledging the hurt you have caused them and apologising for your actions. You have completed several programmes, including a prison chaplaincy programme, to aid this process. As noted by Mr Ward, on behalf of the Prison Chaplaincy Service of Aotearoa, you encouraged other men in your Unit to engage in the chaplaincy
programme and were helpful in group discussion. Unfortunately, you are now in segregation for your own safety. You have also provided the Court with a detailed plan for your rehabilitation. I acknowledge these actions you have taken, your wish to become a better father and koro to your grandchildren and a better partner, and your desire to attend a residential rehabilitation programme with the Grace Foundation. Accepting a sentence of imprisonment is to be imposed, you have applied for, and been offered, a place there when granted parole. I agree with Mr Mansfield’s acknowledgement on your behalf that you need ongoing support.
[57] The writer of the pre-sentence report on the other hand considered that you mainly blame your offending on your negative upbringing. In discussions with the report writer, you also appeared to blame Ms Bennett and your relationship for your actions and deny aspects of the admitted offending. You accused her of having “lying tendencies” and getting you “in trouble”. The report writer considered that you showed limited insight into the impact your offending on Ms Bennett.
[58] Taking these different perspectives into account, I consider that you have taken genuine steps to address the causes of your offending and its harmful consequences, even though the extent of your remorse is somewhat reduced given your attempts to deflect responsibility. On balance, I consider a five percent discount for remorse is appropriate.
[59] I do not consider a further separate discount is appropriate in respect rehabilitation as sought. This is subsumed within the discounts totalling 20 per cent already given. As Mr Mansfield acknowledged, deprivation and rehabilitation may be seen as working together.
[60] I turn to your guilty plea. You were charged on 15 February 2019. You pleaded guilty as part of an agreed resolution on 22 October 2020, after a week of your trial. Ms Bennett was not spared the ordeal of giving evidence, although the Crown acknowledges that you pleaded guilty before H was to be cross-examined, and before HW (the propensity victim) gave evidence.16 The Crown suggests a discount of 10 per cent to account for this. Your counsel notes that you pleaded guilty to a
16 HW has name suppression: R v Ross CRI-2019-092-2113, Trial Minute (No. 1), 10 August 2020.
substantially different set of charges. 15 charges were dismissed, including the most serious charges against you. Your counsel submits that this warrants a discount of at least 20 per cent.
[61] The Crown points to the case of R v McIntyre,17 where Powell J noted that a guilty plea on the morning of trial will normally merit only a 10 per cent discount. In that case, the defendant’s guilty plea came after a favourable ruling, and rescued a trial in danger of being aborted. This warranted a discount of 15 per cent.18
[62] In Mikaera v Police,19 the defendant pleaded guilty on the morning of trial, after several aggravating factors were removed from the summary of facts. Ellis J noted that a discount of 10 per cent was nonetheless most common for such a situation, though she upheld the District Court’s “generous” discount of 12.5 per cent.20 In Oliver v R,21 the Court of Appeal upheld a discount of 10 per cent for a guilty plea entered after one of three similar charges was dropped. The Court noted that the defendant should have pleaded guilty to the remaining charges earlier.22
[63] Although during trial, I accept you pleaded guilty after a substantial change to the charges against you, greater than the changes in Mikaera and Oliver. But it was not, in effect, at the earliest opportunity. In the circumstances, I consider your guilty plea warrants a 15 per cent discount.
[64] These discounts combine to 35 per cent, that is, 22 months. Together with the uplifts I have referred to totalling 12 months, the end sentence is therefore four years and five months’ imprisonment.
Minimum period of imprisonment
[65] The Crown noted that a minimum period of imprisonment is available but did not seek it. I am not satisfied a minimum period of imprisonment is appropriate.
17 R v McIntyre [2019] NZHC 1162.
18 At [49]-[51].
19 Mikaera v Police [2019] NZHC 2724,
20 At [20].
21 Oliver v R [2014] NZCA 285
22 At [12].
Result
[66]Mr Ross, please stand.
[67] On the charges of kidnapping and threatening to do grievous bodily harm to Ms Bennett, I sentence you to four years and five months’ imprisonment.
[68] On the charge of assault with intent to injure, I sentence you to eight months’ imprisonment.
[69] On the charge of threatening to do grievous bodily harm to H, I sentence you to one year and nine months’ imprisonment.
[70] These sentences are to be served concurrently, resulting in the end sentence of four years and five months’ imprisonment.
[71]Please stand down.
Gault J
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