R v Wickliffe-Brown

[2013] NZHC 940

NOTE: ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE VICTIM AND NAMES OF THE CHILDREN AT PARAGRAPH [27].

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-041-0220 [2013] NZHC 940

THE QUEEN

V

CANDICE WICKLIFFE-BROWN

Hearing:         26 April 2013

Counsel:         K A Laurenson for Crown

R Fairbrother for Accused

Judgment:      26 April 2013

SENTENCING NOTES OF WILLIAMS J

[1]      Ms  Wickliffe-Brown  you  appear  today  for  sentencing  on  one  count  of wounding with intent to cause grievous bodily harm, you having pleaded guilty to that charge on 4 March 2013.

[2]      The events surrounding your offence occurred on 25 January 2012. You were then in a rocky on again/off again relationship with your partner [A].  It appears you won some money on the pokies, and on the strength of that you had been drinking

for three days.  As far as I can tell from the material that I have you had also been

R V CANDICE WICKLIFFE-BROWN HC NAP CRI 2012-041-0220 [26 April 2013]

smoking methamphetamine at some point during that time, and you had little sleep over several days.

[3]      At home that night after a session at the pub you began to argue with one another over whether one or other of you had been unfaithful.  A fight broke out and somehow you both ended up in the back yard in a tussle.

[4]      The Crown says you hit [A] on the side of her head with a beer bottle, breaking the bottle.  You deny this.   Your lawyer says the medical evidence from Dr Jason identifies no evidence consistent with a blow from a bottle.

[5]      On the view of matters that I take, it is probably unnecessary for me to resolve that dispute but in any event you then pinned [A] down, bit her on the arm (drawing blood), and punched her two or three times in the head and face – still drunk or fried or both.  Angry and out of control, you then go into the kitchen and grab a boning knife with a 6 inch blade.  You go back outside and you attack [A] with the knife. You stab her three times.

[6]      Three wounds result: the first is a puncture on the left side of [A]’s body, a relatively minor puncture; the second is a stab wound around the middle of her torso, again relatively superficial; but the third is far more serious.  That wound, that stab, pierces [A]’s left breast breaking her sternum and two ribs and cutting deep enough to puncture her left lung.  At that point, others who were present stepped in, stopped you, called for an ambulance and the police.   So by any standard Ms Wickliffe- Brown, this was a serious and dangerous episode of offending.

[7]      So those are the facts.  I am going to start at the starting point then address factors relating to you personally.

Starting point

[8]      The Crown says because you had a knife and used it, because the attack was premeditated and because it involved an attack to the head, my starting point in your sentence should be between five and six years in prison.

[9]      Your lawyer says that your attack was impulsive: that it was spontaneous rather than premeditated.   And he says [A] was not a vulnerable person in this relationship – she was much older than you. And he says perhaps the power point in the relationship – perhaps that is a fair way of paraphrasing what he said.   In any event on earlier occasions you say she had been known to give as good as she got.

[10]     Mr Fairbrother says these factors combined to justify a much lower starting point.

[11]     He  points   also   to   your  history  of  behavioural   disorders  sourced   to psychological injuries you have suffered throughout your life time.  He says these reduce your culpability – that is they mean you are not as much to blame as someone who had not suffered those psychological injuries.  I will come back to that point.  It is an important aspect of the case.  Mr Fairbrother says anyway that when all these factors are combined the starting point should be three years or less.

[12]     In my view, although you did punch [A] in the head, this is not a truly aggravating  factor  in  your  attack.   And  as  I  say the  view  I take  of  it  is  it  is unnecessary for me to resolve the issue of the allegation about the bottle and your denial of the allegation.  That is because the relevant and important injuries in this case were to the body and not to the head.

[13]     The second point is, although I do not think it can be said that by walking into the kitchen to grab a blade and then walking back out to continue your attack on [A], you can be said to have acted out of pure impulse – there was some organising required there, you were not merely spontaneously lashing out – but I still think the level of premeditation was at the very low end of the spectrum.[1]

[1] See R v Taueki [2005] 3 NZLR 352 at [29]. Premeditation can range from full scale planning to “a few minutes or so after a perceived slight during which an offender decides to take revenge.” Here, the level of premeditation in the knife attack as opposed to the earlier fist attack, is very much at the bottom end of that scale.

[14]     Obviously the element of this attack that makes it especially serious is the knife.  When that element is placed in the domestic situation, and where there are

injuries from the use of that weapon, but not lasting injuries, a starting point of five years is required.[2]

[2] Whether the facts are treated as Band 1 or Band 2, the Court of Appeal in Taueki explicitly refers to this situation. In the context of a domestic assault the court said: “Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.” (at [37]).

[15]     The law says I must not take into account the fact that this was a domestic attack involving high levels of intoxication as somehow reducing your responsibility. An attack on a domestic partner is to be treated as the same as an attack on a stranger in terms of your responsibility – not a mitigating factor. And equally, being drunk or fried on methamphetamine when you did these things is no excuse.  But the law does say I can take into account any psychiatric or psychological disorders that you may suffer from if it caused the offending or contributed to it in some way that it makes it unfair to treat you as carrying all the blame for your behaviour.  The law also says if imprisonment  would  in  your  circumstances  be  a  greater  punishment  than  for someone else, then it is appropriate to take that into account if the cause of that is

your personal psychological difficulties.[3]

[3] See E v R [2011] NZCA 13 as applied in R v Sabuncuoglu [2008] NZCA 448 and R v Goodlet

[2011] 3 NZLR 783.

[16]     You were interviewed by Dr Justin Barry-Walsh, a forensic psychiatrist.  He described your upbringing as “disturbed and chaotic”: a very violent father from whom your family fled many times when you were very young, serious sexual abuse at the young age of 13, subjected to rape and sexual violence as an adult, descent into drug and alcohol abuse from a young age as a self-medication technique, and so forth.

[17]     Dr Barry-Walsh accepted that in light of this history you meet the criteria for post-traumatic stress disorder and that this disorder had, he said, “merged with your personality”.

[18]     Dr Barry-Walsh described your relationship with [A] as “highly conflicted”

with frequent episodes of violence on both sides.  He said:

It is unsurprising Ms Wickliffe-Brown struggled in this relationship given her damaged personality including problems with anger which have their origins in her early experiences of violence and subsequent victimisation.

[19]     Dr Barry-Walsh said the fact that you have poor control of your impulses and emotions, and that you are unreasonably quick to anger mean the current difficulties “would inevitably arise” – his words “word inevitably arise” given your insecurities and past relationship experiences.   Add to that, alcohol and drug abuse as your standard coping technique and my sense of Dr Barry-Walsh’s diagnosis is that the episode that brings you here today was almost inevitable.

[20]     I am satisfied on the basis of Dr Barry-Walsh’s psychiatric analysis that you suffer from a psychological or behavioural disorder keyed to your past and that this is an important causative element in your offending.  By that I mean aggressive, over top and violent reaction to stresses around you particularly in intimate relationships is partly a result of past repeated trauma in your life.

[21]     Dr Barry-Walsh did say that this problem (for want of a better word) has reduced and improved but on reading the material I took that to be reflective of the new environment that you have now put yourself in, rather than a conclusion that the improvement was such that your disorder did not contribute to your behaviour.   I took  Ms Laurenson,  for  the  Crown,  to  accept  that  PTSD  is  an  element  in  this offending. That seems to confirm my view of what Dr Barry-Walsh was saying.

[22]     That said, I do not think you had no choice here.   I do not think you are blameless at all.  I agree with the Crown that the impulsive aspect of your behaviour reduces when after the first attack you go into the kitchen and grab the weapon and go back out again.  I am not saying impulse is entirely removed but it is reduced on the second attack.

[23]     Approaching it globally, I think this.   You had choices here and you carry blame,  but  your  choices  were  much  reduced  by  unrepaired  damage  to  your personality and that must not be ignored.   It is an important mitigating factor.   I would reduce the starting point by six months to take account of that.  That means my starting point is four and a half years.

Personal

[24]     I turn now to factors personal to you.

[25]     I have already gone through and taken account of your past history from a culpability stand point but there two further factors.   You pleaded guilty and the Crown accepts that you should receive a full 20 percent discount for that even though the plea was late.  That is because the plea coincided with your change of counsel and a change in the approach that the Crown took.  Mr Fairbrother urges on me  an  even  greater  discount.    I  am  not  going  to  take  that  bait  but  I  will  be considering some issues that he presses upon me at the next stage.  At this stage I would reduce your sentence, as supported by the Crown, by one year for your guilty plea.

[26]     I note, as the Crown does, that you were convicted twice in the past of common assault against [A].   The most recent episode relatively recently.   The Crown, rightly in my view, does not think that justifies an uplift.  I agree that this is the appropriate approach.

[27]     Ms Wickliffe-Brown  you are 23  years old – still young.   You have two children, one is five and in CYFS’ care – that is a daughter: [B].  The other is a three month old son in your full time care and still at your breast: [C].

[28]     For the last four months you have been living in Putaruru at a half-way house/hotel operated by a devout and kind couple from the local Baptist church, who are (it is a credit to them and to you) present today.  The story they have related – a story reflected in comments from your pre-sentence report and from Dr Barry-Walsh and also reflected in comments from Pastor Schonberger from the Putaruru Baptist Church – that story is of a road to Damascus change in you.  And now that you have accepted God into your life you probably know what a road to Damascus change is. You have found God.   You have stopped drinking and taking drugs, and you are entirely focused on the needs of your baby and your daughter.

[29]     Ms Wickliffe-Brown we Judges are usually sceptical of these stories.  Every offender promises to be good when they are about to be sentenced.  In the same way there are no atheists in the trenches during battle.  And I have to confess it was a sceptical attitude I brought to your claims when I read the file.

[30]     But you have won me over in the end.  It seems to me that three factors have been important in your decision to try and turn your life around:

(a)       this sentencing;

(b)      your new baby; and

(c)      counselling sessions that have brought you into contact with good people and kept you away from bad people who would drag you back into destructive behaviour for you and for your whanau.

These have all come together to make you try, for the first time in your life I suspect, to change your ways.   Your Probation Officer in Tokoroa agrees that you are maintaining positive changes in your life. Your counsellor and your Pastor agree and all are very supportive.  And in the packed gallery behind you, you can feel them no doubt, is the Putaruru Baptist community and Ngä Raukura o Maraenui offering you courage and support in this potentially your darkest hour.

[31]     Given what you have been through in the last 23 years, I feel that it is consistent with the principles of the Sentencing Act to offer a substantial discount for both remorse and rehabilitation.  In my view, this best promotes in you a sense of responsibility for, and acknowledgement of, the harm you have done to [A].  And it will best assist your rehabilitation and reintegration into the community.

[32]     Mr Fairbrother says I should not say rehabilitation I should habilitation and maybe he is right.  Because this is the first time you have chosen to do what you are doing now.

[33]     I accept these changes you are trying to make in your life reflect genuine remorse.   Not just remorse for this offending but actually a more significant and

more holistic remorse for long term behaviour that has been injurious both to you, to your children, to your whanau, all of those around you, particularly in the case of this offending, [A].  Life changing remorse is what I am witnessing today.

[34]     When I combine those factors – remorse and rehabilitation together, I would reduce your sentence by 18 months.  This is a large reduction but it is well justified in my view.

[35]     Because  your  sentence  is  nominally  now  two  years,  you  are  entitled

Ms Wickliffe-Brown, to consideration for home detention.

[36]     In  my  view,  this  is  one  of  those  exceptionally  rare  cases  where  unique personal circumstances require this court to respond with mercy, not just for your sake Ms Wickliffe-Brown, not just for your sake, but perhaps more importantly for the sake of your community. This is what Dr Barry-Walsh indicated.  He said:

Ms Wickliffe-Brown appears to have made a substantial improvement in the last few months with the provision of stability and abstinence from alcohol and cannabis.  She has commenced drug and alcohol and anger management programmes and appears to be deriving benefit from these and from the stable, supportive and less chaotic environment she is currently immersed in. Ms Wickliffe-Brown’s best chance to continue to make gains and to address the underlying issues which have contributed to the offending is for the continuation of the initiatives with the provision long term of a stable environment which promotes her sense of self and belonging and in which she can parent her son, and to avoid associates who have been associated with  past  drug  and  alcohol  use  and  offending.     Incarceration  risks interrupting and reversing these initiatives.

[37]     You see I think that the security of the community is best served by giving you a fair chance of addressing your personal issues and making a real change.  And it is also in the best interests of your baby.  It speaks volumes in my view that CYFS have indicated no issues with regard to you keeping custody of your baby given your background. And it gives you a chance to regain the care of your daughter.

[38]     So today I support you in trying, at last, to give your family a normal life with a loving mother.  Alcohol, drug and violence free.  I do this on behalf of your community because I choose to support you in breaking the cycle of inter- generational violence, abuse and crime.   I choose not to send you to jail today

because that will just take you, your children and this community back to ground zero. That is a destination where everybody loses.

[39]     I  therefore  sentence  you  to  12  months’ home  detention  to  be  served  at

23A Reservoir Street, Putaruru, otherwise conditions will be as proposed in the pre- sentence report appendix.

[40]     Ms Wickliffe-Brown you will understand that any non-compliance with this sentence is very likely to result in you going to prison.  Do you understand that?

[41]     Now the law requires me to issue you with a warning because this is a three strikes offence.  I am going to give that to you now.

[42]     Before you go back into custody I am obliged to give you what is commonly known as a three strikes warning.  Your conviction and sentence today constitute a Stage 1 offence for the purposes of s 86B of the Sentencing Act 2002.   From this point if you commit another serious violent offence except murder, you will receive the final warning.  Furthermore, if you receive a sentence of imprisonment for that offence other than a life imprisonment for manslaughter or preventive detention generally, you will serve that sentence without parole.   If you are convicted of murder you will be sentenced to life imprisonment, which you will have to serve without parole unless that will be manifestly unjust.  If serving that sentence would be manifestly unjust the Judge must specify what minimum period of imprisonment you would serve.

[43]     Now you will receive that warning in written form later today.

[44]     The  starting  date  of  the  sentence  is  Monday  29 April  2013  so  you  are remanded on bail until Monday.  Stand down.

Williams J