R v Warwick HC Auckland CRI 2010-057-508

[2010] NZHC 1135

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-057-000508

THE QUEEN

v

BRONWYN RACHAEL WARWICK

Hearing:         15 June 2010

Appearances: E R Harrison for the Crown

D S Niven for the Prisoner

Judgment:      15 June 2010

SENTENCE OF DUFFY J

Counsel:     D S Niven P O Box 109227 Newmarket Auckland 1149 for the Prisoner

Solicitors:   Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the Crown

R V WARWICK HC AK CRI-2010-057-000508  15 June 2010

[1]      Bronwyn Leslie Warwick, you appear for sentence today having pleaded guilty to and been convicted on two criminal charges.  They are aggravated robbery and kidnapping.

[2]      The facts of the offending are that on Thursday, 28 January 2010 in the afternoon,  you were hitchhiking from the Bell  Crossing at Huntly.   The victim picked  you  up  in  his  Mitsubishi  car.    You  told  him  you  were  headed  to  the North Shore, and you asked to be dropped off at the Bombay Hills or in Manukau.

[3]      The victim drove north, which was the direction he was going.  He stopped at a Mobil Station at Mercer for refreshments.   Not long after leaving the service station, you pulled a knife on the victim, pushing the point against his left side, near his kidney.  You told him not to move and to keep driving or you would kill him. You switched the knife between his throat and his kidney.  You directed him to drive into Pokeno, and then on to an isolated country road in the Franklin District where the car was stopped.

[4]      You  took  the  victim’s  EFTPOS  card  and  PIN  number,  $5  in  change,  a cellphone, a Toshiba laptop, clothes, books, and the victim’s travel bag.   He was ordered out of the car and you took his car.

[5]      The victim walked to a local farm and notified the police.  The police chased you, having detected you in the car, and during that chase you drove dangerously and at speed, eventually losing control in Franklin.   The vehicle was significantly damaged.

[6]      In terms of the impact of your offending on the victim, Mr Phillips is 25 years old and is a fifth year law student.  He has hitchhiked many times before, and he stopped and picked you up because he thought he was helping you out.  He was not physically injured, and he says in the victim impact report that he has handled the emotional trauma well.  But he is angry and saddened that you abused the trust that he had extended to you.  It has caused him financial loss; there was the damage to his vehicle.  It also has had an impact on him in terms of his study and his career.  The

stress he suffered caused him to miss important exams.  The loss of trust means that he will not in the future be picking up hitchhikers.

[7]      In terms of your personal circumstances, you have now reached your early sixties.   You have no fixed abode and you are unemployed.   You report being depressed, having suicidal thoughts.  You are presently at the Mt Eden Men’s Prison Special Needs Unit, where you are under 15 minute observations and in receipt of antidepressant medication.

[8]      Your early personal circumstances are certainly rather tragic.   You had a difficult relationship with and felt a lack of interest and support from your parents. From an early age you identified gender dystonic feelings.  You began dressing as a female at around age 12, which led to bullying at school.

[9]      When  you  left  school  at  16,  you  began  to  associate  with  transvestite prostitutes and commenced work in the sex industry.   You became involved with class A drugs and amassed a substantial history of offending in relation to, and as a means of financing, your drug addiction.  In 1992, you were convicted of murder, following the asphyxiation of an elderly woman who was bound during a house burglary.

[10]     You have suffered prolonged and severe physical and sexual violence from when you have served times in prison, and you suffer from post-traumatic stress disorder as a result.  You have significant physical and mental health problems.  You have a significant history of substance abuse from an early age.  Although you have participated in a number of rehabilitation programmes, you continue to be involved with alcohol and drugs.

[11]     After being released from prison in 2002, you continued to offend, breach parole conditions, and you have been recalled to prison on three occasions.  In 2009, you were again released but, in breach of parole conditions, you absconded and lived a transient lifestyle.

[12]     You have explained the offending on the basis that you were depressed and considering attempting to commit suicide.    Given the confirmation from Psychological Services of the difficulties you suffer, I accept that those thoughts may well have been in your mind that day.  But, nonetheless, this was serious offending against a background of considerable serious offending from the time you have been a young person to the present.

[13]     Your prior convictions are extensive; you have 132 prior convictions, some of which involve very serious violent offending.

[14]     In terms of motivation and readiness to change, the identified factors for re- offending in your case include substance abuse, association with criminally minded peers,  active  cognitive  distortions,  mental  health  issues,  pervasive  antisocial attitudes, and poor compliance with supervision in the community.  All this suggests that if  you are at liberty,  you are likely to continue in the same pattern of re- offending.

[15]     When you were released in 2002, there were the three breaches of parole, which led to you being recalled to prison on three occasions.  Clearly prison is no deterrent to your conduct.

[16]     You  have been  through  a number  of  rehabilitative programmes,  but  you appear to lack the motivation to apply what you have learnt to improving your life.

[17]     When it comes to sentencing you today, there is no doubt that a term of imprisonment is required, and that has been responsibly accepted by you.

[18]     I am required to take into account the purposes and principles of sentencing.

[19]     In   terms   of   the   purposes   of   sentencing,   I   must   take   into   account accountability for harm done to the victim and the community, and responsibility for and acknowledgement of that harm.  I must provide for the victim’s interests.  I must consider reparation for harm done, denunciation and deterrence, the need to protect the community, and I must consider rehabilitation and reintegration.

[20]     In terms of the relevant principles of sentencing, I must consider the gravity of the offending, including the degree of culpability, the seriousness of the type of offence, consistency with appropriate sentencing levels, and the effect of offending on the victim.

[21]     I   must   also   consider   aggravating   and   mitigating   factors,   including aggravating factors of the offending.  Here, I consider those to be the kidnapping and directing the victim to a remote area, the verbal threats, plus the use of a knife, and damage to property.

[22]     In terms of mitigating factors of the offending, there are none.

[23]     In terms of aggravating factors relating to  you, there are  your 132 prior offences,  including  the  number  of  serious  offences;  and  in  terms  of  mitigating factors,  there is  the guilty plea entered  prior  to  the committal hearing,  and  the physical and mental health problems you suffer, including gender identity issues.

[24]     There seems to be relative agreement between the Crown and your counsel regarding the appropriate starting point.

[25]     The  Crown  treats  the  aggravated  robbery  as  the  lead  offence,  and  the kidnapping as an aggravating feature.  The Crown suggests a starting point of four years imprisonment, which is in line with similar cases such as R v Mako [2000] 2

NZLR 170 (CA).  The Crown then refers to the aggravating factors in your case, and suggests a discount of 20 per cent for the entry of the guilty plea.  And, of course, you will have heard today that the Crown also seeks a minimum non-parole period of

50 per cent.  This is seen as appropriate to protect the community, and to denounce your actions, particularly in light of your prior offending and disregard of parole conditions.

[26]     Mr Niven, on your behalf, has said that at the time of the incident you were depressed and suicidal, that your actions were driven by those factors, and that you had no interest in taking any property from the victim, other than his car, in order to assist you in your suicide attempt.

[27]     Your  counsel  agrees  that  a  starting  of  between  four  and  five  years  is appropriate.   However, he seeks a discount of one-third for the guilty plea, and taking into account psychological issues and the difficulties you will face in serving a prison sentence with gender identity issues.  Your counsel argues that a minimum period of imprisonment is not appropriate because there is your life sentence due to your murder conviction.   He says this provides the Parole Board with adequate control over any subsequent release back into the community.  Further, there is the involvement of Psychological Services within the prison service, and they will be well placed to assess your risk of re-offending.

[28]     I  am  grateful  for  the  substantial  agreement  between  the  Crown  and  the defence in relation to a starting point.  I consider that the aggravated robbery should be the lead offence, and that a starting point of four years’ imprisonment is appropriate.

[29]     There are two serious and relevant aggravating factors which must be taken into account in uplifting the starting point.   First, the lead offence of aggravated robbery must be uplifted, in light of the kidnapping charge.  Factors relevant to the kidnapping are that you used verbal threats of violence, intimidated the victim with a knife, and ordered him to drive to a secluded area.  I propose, therefore, to make an uplift of 18 months to take that aggravating feature into account.

[30]     The second aggravating factor is relevant to your circumstances.   There is your extensive and serious list of prior offences, and I propose, in order to reflect those appropriately, to make another uplift of 18 months’ imprisonment.  This brings me to a sentence of seven years’ imprisonment.  Now that does not take into account any discounting factors which I am now going to deal with.

[31]     The defence submits that I should grant a discount to take into account your unique circumstances, being your psychological issues, and the added difficulty of serving of prison sentence with gender identity issues.

[32]     In R v Wright [2001] 3 NZLR 22 (CA), the Court recognised that a mental disorder is a factor which will inform a just sentence, having regard to the character

of  the  disorder  and  the  weight  it  ought  to  carry  when  balancing  sentencing objectives.  The Court said at [22]:

Its character may indicate a lesser degree of moral culpability or a greater subjective impact of penalty.   It may suggest a more or a less risk of a repetition  of  offending,  so  as  to  direct  particular  attention  to  issues  of personal deterrence or public protection.  And these considerations must be synthesised with the sentencing elements of denouncing the fact of violence in our society and acknowledging grievous effects on victims.

[33]     In R v Lucas-Edmonds [2009] 3 NZLR 493 (CA), the Court of Appeal upheld the sentencing judge’s one-third discount to reflect in total the offender’s early guilty plea and mental health problems. Today, Ms Harrison, on behalf of the Crown, has very helpfully and responsibly referred me to another such decision: R v Verschaffelt [2002] 3 NZLR 772.

[34]     In this case, I consider that a 10 to 15 per cent discount is justified in order to reflect the problems you will face serving a prison sentence with psychological and gender identity issues, coupled with your physical and mental health issues.

[35]     The Crown submits that in terms of a discount for your guilty plea, 20 per cent is warranted, whereas your counsel submits that one-third is appropriate.

[36]     In Hessell v R [2010] 2 NZLR 298 (CA), the Court of Appeal held that the amount of the reduction is determined on a sliding scale, with a one-third reduction at the first reasonable opportunity, a 20 per cent reduction at status hearing or first callover, and a 10 per cent reduction three weeks before trial or hearing. The Court of Appeal in Hessell noted that the first reasonable opportunity for the offender to plead guilty would generally be at the second appearance, assuming initial disclosure has occurred, legal representation is present, and the defendant has been declared fit to  stand  trial.    No  delay  of  the  first  reasonable  opportunity  applies  when  the defendant challenges the prosecution statement of facts or admissibility of evidence, is in plea bargaining, awaits the outcome of a co-offender’s situation, or awaits a sentencing indication.  This is made clear at [31] of the judgment.

[37]     Now in your case it has been indicated to me that there were other charges which were withdrawn.  You had, at an early stage, indicated to the officer in charge

that there would be guilty pleas.   The reason they were not entered at the earliest opportunity was because the officer in charge was on holiday, and had failed to convey the withdrawal of some of the charges to the prosecution.   In this circumstance, the prosecution would not withdraw those charges, and so you did not enter guilty pleas at that time to the charges on which you are now to be sentenced. Ultimately, some charges were withdrawn, and the guilty pleas to the other charges were entered on the same day.

[38]     It may be that this type of situation is a unique circumstance that would avoid the general application of Hessell, or it may be that it comes within the concept of plea bargaining, for which no delay of the first reasonable opportunity applies.  The latter view could be seen as somewhat unjust because here,  you certainly were prepared to plead guilty early.  It was not your fault that the officer in charge had not recorded the circumstances and the agreement that was reached.

[39]     In  any  event,  because  of  the  added  discount  I  am  giving  for  your psychological and gender identity issues, you will enjoy the benefit of a one-third discount.  Even without Hessell, in your circumstances I would have considered that one-third was the most that could be granted.  So this not a situation where had I been persuaded you came within the first category of Hessell; the discount I am giving for the psychological and gender identity issues would have been in addition to the one-third discount that Hessell permits for pleas entered at the first reasonable opportunity.

[40]     The effect of the one-third discount, with some arithmetical rounding up, brings me to a final sentence of four and a half years’ imprisonment.   For the kidnapping   offence,   I   will   impose   a   concurrent   sentence   of   three   years’ imprisonment.

[41]     I  now  turn  to  the  issue  of  the  imposition  of  a  minimum  period  of imprisonment.    This  will  be  appropriate where  the  default  non-parole  period  is insufficient  to  meet  the  aims  of  accountability,  denunciation,  deterrence,  or protection of the community.

[42]     In R v Lucas-Edmonds, the accused faced charges of burglary and arson. An alcohol and drug assessment noted a psychiatric history, chronic solvent abuse, possible cognitive impairment, exposure to alcohol, and a 10 year history of poly- substance dependence and solvent abuse. A psychiatric report made reference to Lucas-Edmonds’ bizarre and unusual ideas and experiences, including delusion and hallucinations, though no active psychotic illness was present. In relation to the District Court Judge’s imposition of a minimum period of imprisonment, the Court of Appeal said at [43]:

Given that, on the basis of the reports before him, there was a clear expectation that the appellant would require treatment and that there was to be a concerted effort to bring treatment to him before his release into the community, we do not consider there is much prospect of the appellant being released when he had served one-third of his sentence and achieved parole eligibility. The imposition of a minimum term and the unusual circumstances of this case add little to the s 86(2) criteria of accountability, denunciation, deterrence and community protection.

[43]     In your case the Parole Board has on three occasions granted you parole, following your conviction for murder.  On those occasions you have abused the trust associated with the grant of parole.   I am sure that when it comes to future considerations of parole, the Parole Board will have your history very much in mind. Given that, and given the Psychological Services’ involvement, I would be most surprised if you were considered for release after serving one-third of your sentence. That would be inconsistent with the way you have conducted yourself in the past. But   it   also   seems   to   me   that,   given   you   are   going   to   be   assisted   by Psychological Services, if something is able to be done for you which does achieve some significant turnaround in your attitude, I consider that the Parole Board should have the freedom to take that into account and to act upon it.  For that reason, I do not intend to impose a minimum period of imprisonment which would tie the hands of the Parole Board.  I consider the Parole Board will have adequate control over any subsequent release of you back into the community as things currently stand.

[44]     The result is that on the aggravated robbery, the final sentence will be one of four and a half years’ imprisonment, and there will be a current sentence of three years for the kidnapping offence, with no minimum period of imprisonment ordered.

[45]    On the aggravated robbery, you are sentenced to four and a half years’ imprisonment; and on the kidnapping charge,  you are sentenced to three  years’ imprisonment to be served concurrently with the other sentence.

[46]     Please stand down.

Duffy J