R v Ruddelle

[2020] NZHC 272

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-1067

[2020] NZHC 272

THE QUEEN

v

KAREN ANNE RUDDELLE

Hearing:	10-21 February 2020
Appearances:	Y V Yelavich and C P Howard for the Crown S D Cassidy and P I Pati for K A Ruddelle
Date:	26 February 2020

JUDGMENT OF PALMER J

(Bail – redacted for publication)

The judgment was delivered by me on Wednesday 26 February 2020 at 11.30am.

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

S D Cassidy and P I Pati, Barristers, Auckland Kayes Fletcher Walker, Crown Solicitor, Manukau

R v RUDDELLE [2020] NZHC 272 [26 February 2020]

Summary

[1]    On Friday 21 February 2020, a jury found Ms Karen Ruddelle not guilty of the murder of Mr Joseph Ngapera but, by a majority, guilty of his manslaughter. I was satisfied, on the balance of probabilities, that it would be in the interests of justice to grant Ms Ruddelle bail to her home, pending sentence, on conditions including a 24- hour curfew. This was because:

(a)The jury appears to have considered Ms Ruddelle acted to defend her son or herself but did so with more force than was reasonable.

(b)I cannot rule out a sentence of home detention which remains a distinct possibility though I go no further than that.

(c)Sentencing may be delayed for a restorative justice process, in which both Ms Ruddelle and Mr Ngapera’s whānau have expressed interest.

(d)There is a possibility of some discount in sentence for the factors said at trial to have resulted in Ms Ruddelle’s social entrapment in an ongoing pattern of harm from Mr Ngapera’s violence, reinforced by aspects of Mr Ngapera’s coercive control over her.

(e)I accept that Ms Ruddelle’s remorse for the offending is genuine.

(f)Ms Ruddelle does not pose a risk to the safety of others and she is caring for her 15-year-old son. There were no breaches of the bail she was on leading up to the trial or during the trial.

(g)If a report by the Department of Corrections indicates electronically monitored bail is feasible, that could help to demonstrate suitability for home detention.

What happened?

[2]    Ms Ruddelle was charged with murdering her partner, Mr Ngapera, on 14 November 2018. Her defence was that she acted in defence of her 14-year old son and

herself and that she did not  intend  to  kill,  and  was  not  reckless  about  killing, Mr Ngapera.  She  gave  evidence  of  sustained  family  violence  against  her  by  Mr Ngapera for three years beforehand. This included undisputed evidence of:

(a)Mr Ngapera’s history of family violence:

(i)Mr Ngapera’s convictions for violence against a previous partner while drinking at home in 2012 and for threatening to kill another partner, in 2014;

(ii)16 Police callouts by Ms Ruddelle from 2015 to 2018, including three in 2015 and 2016 when she said he threatened to kill her, two in 2016 and 2017 when she said he threatened to seriously injure her, an occasion in 2016 when she said he told her he had been convicted of murder and an occasion after which she obtained a protection order;

(iii)Ms Ruddelle’s evidence of an occasion when she said he strangled her and an occasion when she said he punched her twice in the head; and

(iv)Ms Ruddelle’s evidence about seeking help from Greenstone Family Clinic and Women’s Refuge and getting a secret emergency box which she said did not work when she tried to use it.

[3]    Ms Ruddelle offered expert evidence from Ms Rachel Smith about cumulative social entrapment, of women experiencing intimate partner violence, in an ongoing pattern of harm with inadequate safety options. Ms Smith gave evidence of how overall patterns of coercive control, not just physical violence, can play out in a variety of ways across women’s lives. Ms Ruddelle also offered expert evidence from psychologist Dr Alison Towns who gave her opinion that Ms Ruddelle would have experienced coercive control from Mr Ngapera and that social entrapment can lead

women to stay in a violent relationship because they believe, if they support the man, he will become different. The Crown disputed that conclusion.

[4]    Ms Ruddelle was found not guilty of murder, unanimously. She was found guilty of manslaughter, by a majority of 11 to one. The jury’s verdict, combined with the nature of the questions they asked in the course of their deliberation, indicates they were not sure Ms Ruddelle was not acting in defence of herself or her son, but were sure she used more force than was reasonable in the circumstances as she believed them to be. The verdict also indicates the jury was not sure Ms Ruddelle intended to kill or reckless about  killing  Mr  Ngapera.  But  it  indicates  the  jury  was  sure  Ms Ruddelle intended to stab Mr Ngapera and the stabbing was likely to cause him more than trivial harm.

[5]    After the verdict was given, I entered the conviction for manslaughter and set a sentencing date of 7 April 2020. I directed restorative justice should be considered and gave leave for either party to apply to defer the sentence date, under s 25 of the Sentencing Act 2002 (the Act), to  make  room  for  that  process,  if  it  eventuates. In addition to the standard pre-sentence reports, I directed the Department of Corrections to report on any information relevant to a possible sentence of home detention, under s 26A, though I said that was only a possibility. I also indicated it might assist me to hear a person called by Ms Ruddelle under s 27 of the Act.

[6]    Ms Ruddelle has some previous criminal convictions. Most are old and unrelated to this offending. The most recent four convictions, in 2007, relate to drunk driving, careless operation of a vehicle and driving while disqualified. She has no previous convictions for violent offending.

The law of bail

[7]Section 13 of the Bail Act 2000 provides, relevantly:

13       Exercise of discretion when considering bail pending sentencing

(1)If a defendant is found guilty or if a defendant pleads guilty, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(2)The onus is on the defendant to show cause why bail should be granted.

(3)When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(a)whether the defendant is likely to receive a sentence of imprisonment:

(b)the likely length of time that will pass before the defendant is sentenced:

(c)the personal circumstances of the defendant and the defendant’s immediate family:

(d)any other consideration that the court considers relevant.

(4)If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody

[8]    The presumption against bail when found guilty is understandable but is subject to consideration of the interests of justice in the particular case. In R v Leone, the Court of Appeal found the policy considerations in s 8 are relevant post-conviction, and that judges in such situations should address the likelihood of imprisonment.1 The more likely imprisonment is, the more likely it is that bail will be refused.

[9]    In some cases, even of manslaughter, the interests of justice have sustained the grant of bail. For example, in R v Wharerau, Ms Wharerau was found guilty of manslaughter by stabbing with a knife after a domestic incident.2 Faire J considered he did not have sufficient information to make a judgment about likelihood of imprisonment. But he took into account the two months to sentencing, the offender’s age and proposed confinement to her home.3 He granted bail until sentencing to the offender’s aunt’s home with a 24-hour curfew.

[10]   In R v Robinson, Stevens J granted bail to an offender found guilty of manslaughter of a foster child in her care.4 He considered he did not have sufficient information to say she was unlikely to receive a sentence of imprisonment and took into account that sentencing would occur in two and a half months’ time. He took into

1      R v Leone [2009] NZCA 325, (2009) 24 CRNZ 231 at [6]-[7].

2      R v Wharerau [2014] NZHC 1842.

3      At [11]-[14].

4      R v Robinson HC Rotorua, CRI-2007-063-2028, 12 August 2009.

account the availability of family support and the “somewhat special” circumstances of the case.5

Submissions

[11]   Mr Cassidy, for Ms Ruddelle, accepted (without researching the point) that a likely starting point for sentencing might be in the range of five to seven years’ imprisonment. He acknowledged it would be a significant leap from there to a sentence of less than two years which might give rise to home detention. [redacted until end of the appeal period]. Mr Cassidy submitted the Sentencing Act enables me to take into account excessive use of force in self-defence as a mitigating feature. He acknowledged Ms Ruddelle’s convictions might make a submission about good character difficult. He submitted discounts on the basis of a cultural report might be in the region of 25 to 30 per cent. And he submitted he would rely on the evidence regarding social entrapment. He submitted there is an outside chance the sentence could come down to home detention. And he submitted restorative justice would be more difficult in prison. He applied either for bail or electronically monitored (EM) bail.

[12]   Ms Yelavich, for the Crown, submitted a starting point of five to seven years is probably within the right ballpark. She submitted that would require a discount of more than 50 per cent to get to home detention as a possibility. She submitted imprisonment is likely. [redacted until end of the appeal period]. She submitted imprisonment would not get in the way of a restorative justice conference. She noted there was no report about the suitability of Ms Ruddelle’s home address for EM bail.

Why I granted Ms Ruddelle bail

[13]   I am not convinced a starting point of five to seven years’ imprisonment, identified by counsel, is necessarily that that will apply here. It may be. But two other cases of manslaughter in family violence contexts adopted starting points of three years and nine months.6 They both canvass a range of other cases of manslaughter in the context of family violence involving starting points of less than five years. They

5 At [16].

6      R v Tagatauli [2016] NZHC 757; R v Rose [2017] NZHC 1488.

both involved elements of premeditation, actual assault by the deceased and a guilty plea, and neither involved a fatal blow to the chest,  so they may be distinguishable.  I took into account that the jury here appears to have considered Ms Ruddelle acted to defend her son or herself but did so with more force than was reasonable. No doubt I will hear argument by counsel in more depth about these and other cases. But, for the moment, I cannot rule out a sentence of home detention. It is a distinct possibility though I go no further than that.

[14]   The sentencing will occur on 7 April 2020, almost seven weeks after conviction. But there is a prospect that a restorative justice process could delay that. During the trial, Mr Ngapera’s whānau inquired about the possibility of a restorative justice process and Ms Ruddelle indicated she would be open to it. I have granted leave for either party to apply to defer the sentence date, if such a process occurs.

[15]   In ordering reports from the Department of Corrections, I have requested detailed information regarding the whānau background and social circumstances of Ms Ruddelle including the extent, if any, of her social entrapment which was the subject of expert evidence in the case. There is the possibility of some discount in sentence for the factors said at trial to have resulted in Ms Ruddelle’s social entrapment in an ongoing pattern of harm from Mr Ngapera’s violence, reinforced by aspects of Mr Ngapera’s coercive control over her. I expect I will hear more about this at sentencing too.

[16]   I accept, based on the evidence at trial, that Ms Ruddelle’s remorse for the offending was genuine. Indeed, as Mr Ngapera’s partner, she also suffered loss as a result of her own offending.

[17]   Counsel advised me they are not aware of any breaches of bail by Ms Ruddelle. I do not consider Ms Ruddelle poses a risk to the safety of others. I take into account the fact that she is caring for her 15-year-old son at home. Ms Ruddelle was on bail leading up to the trial, and during the trial. I do not consider imprisonment pending sentence would be good for Ms Ruddelle and it may even impede her rehabilitation. I consider this case is similar in nature to Wharerau.

[18]   Given all these considerations I was and remain satisfied, on the balance of probabilities, that it is in the interests of justice to grant Ms Ruddelle bail pending sentence. I further considered EM bail would provide a measure of official oversight of Ms Ruddelle in the period leading up to her sentence. EM bail may be appropriate where imprisonment is not inevitable and compliance with it could help to demonstrate suitability for home detention.

[19]   I granted Ms Ruddelle bail until her sentence date on the conditions set out below. Those conditions are in place pending a report by Corrections about the suitability of her address for electronically monitored bail which I request be arranged and sent to me as soon as possible.

Result

[20]   On 21 February 2020, I granted bail to Ms Ruddelle on the following conditions, that she:

(a)live at [her home address];

(b)leave court and go directly to that address and remain there on a 24- hour curfew;

(c)present to the door of that address if called upon by a police officer or other official;

(d)not consume alcohol or non-prescription drugs;

(e)report to probation on Monday 24 February 2020;

(f)not associate directly or indirectly with the whānau of Mr Ngapera except as part of a restorative justice process;

(g)appear in court at 9 am on Tuesday 7 April 2020 for sentence, unless that date is adjourned by my further order.

[21]   I grant leave to the Crown or Ms Ruddelle to apply to vary these conditions by memorandum to me.

Palmer J