Rigby v R
[2018] NZHC 478
•20 March 2018
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2017-416-22
[2018] NZHC 478
JAMMIE VERA RIGBY v
THE QUEEN
Hearing: 6 March 2018 Appearances:
N Wright for Appellant
J E Mildenhall for Respondent
Judgment:
20 March 2018
JUDGMENT OF CLARK J
Introduction
[1] Jaime Vera Rigby pleaded guilty to two charges of burglary,1 three charges of dishonest use of a document,2 two charges of theft3 and one charge of failure to answer bail. On 5 October 2017 in the District Court in Gisborne Judge Cathcart sentenced Ms Rigby to two years and three months’ imprisonment.4 Ms Rigby appeals that sentence.
1 Crimes Act 1961, s 231(1); maximum penalty 10 years’ imprisonment.
2 Section 228(1)(b); maximum penalty seven years’ imprisonment.
3 Sections 219 and 223; maximum penalty seven years’ imprisonment.
4 R v Rigby [2017] NZDC 24297.
RIGBY v R [2018] NZHC 478 [20 March 2018]
Facts of the offending
[2] The first burglary occurred sometime between 8:15am on 24 August 2016 and 11:00pm on 25 August 2016. Ms Rigby entered a private dwelling in Napier through the bedroom window, leaving her fingerprints on the window sill. She took jewellery estimated to have a value of $15,000 and other items including clothing, a pair of shoes, and a watch, collectively valued at approximately $1000. Ms Rigby originally claimed she was a lookout but retracted that and pleaded guilty on the basis she was a party.
[3] Between 29 August 2016 and 3 September 2016 Ms Rigby used two stolen credit cards to make a number of purchases totalling $1792.40. On 3 September 2016 Ms Rigby was in a casino at a Napier hotel. She removed a wallet from a man’s back pocket. When he realised what had happened and demanded the return of his wallet,
$100 cash was missing.
[4] The second burglary occurred on the afternoon of 24 October 2016. Ms Rigby and two co-defendants entered a private address in Gisborne. They parked their car in front of the garage. One co-defendant stayed as a lookout. Ms Rigby and a co- defendant entered the property and returned with a number of pairs of shoes. They then re-entered the home. The occupiers of the property arrived home and confronted them. Ms Rigby and her co-defendant fled. At this time Ms Rigby was on bail for her earlier offending.
District Court decision
[5] Judge Cathcart dismissed a starting point of between 15 to 18 months proposed by Ms Rigby as “woefully inadequate”.5 After considering the aggravating features and relevant principles Judge Cathcart determined the appropriate starting point for the two dwelling house burglaries was two years and seven months’ imprisonment. “The facts [spoke] for themselves”: The offending involved two dwelling house burglaries “in the early hours”; the aggravating risk of confrontation with the occupiers during the October burglary; and involvement of more than one offender in the
5 At [9].
October burglary.6 The Judge took Ms Rigby’s plea as a party to the August burglary as a concession that more than one person was involved in that offending.
[6] In reaching the starting point Judge Cathcart took into account also the value of the items taken and the effect on the victims. Property valued at $16,000 was stolen in the first burglary. The second burglary involved shoes the value of which was “not that great”. The victim impact statements demonstrated significant emotional and financial harm.7
[7] To the starting point of two years and seven months Judge Cathcart applied an uplift of four months’ imprisonment for the credit card use, the theft and breach of bail. A further uplift of three months’ imprisonment was applied for committing the burglary while on bail. The Judge declined to give an uplift for previous criminal convictions, noting that Ms Rigby has not appeared before the Court on burglary matters for over 10 years. However, the Judge noted that Ms Rigby’s “background of dishonesty affects the level of mitigation”.8
[8] Turning to mitigation the Judge gave a discount of a “modest degree” of one month for genuine remorse. Regarding time spent on electronically monitored bail, Judge Cathcart rejected as “border[ing] on the ridiculous” the submission that the discount should be “a-day-for-a-day or close to it”.9 Applying R v R10 His Honour deducted one month.11
[9] Concerning matters personal to Ms Rigby Judge Cathcart was concerned that the three primary caregivers were unavailable to assist with childcare. A cousin had the care of Ms Rigby’s children. The situation was not ideal. Further, Ms Rigby had only recently re-established a relationship with her children in particular her youngest child who was just a baby when Ms Rigby was taken into custody. The Judge gave a
6 At [13].
7 At [14].
8 At [18].
9 At [20].
10 R v R [2017] NZCA 210 at [14].
11 Rigby v R, above n 4, at [24].
discount of four months’ imprisonment to “alleviate the burden [the] sentence would otherwise have”.12
[10] Judge Cathcart then gave an overall discount of 15 per cent for guilty pleas, resulting in an end sentence of two years and three months’ imprisonment on both burglary charges. Concurrent sentences of one year (dishonest use charges) and three months (theft charges) were given. Ms Rigby was convicted and discharged on the failure to answer bail charge.13
Grounds of appeal
[11]Ms Rigby appeals on the grounds the Judge erred in:
(a)selecting a starting point that was too high;
(b)giving insufficient credit for the time spent on electronically monitored bail; and
(c)giving insufficient credit for hardship, prospects of rehabilitation and personal circumstances.
Approach on appeal
[12] This is a first appeal against sentence and, as such, is an appeal against the exercise of discretion. I must allow the appeal if I am satisfied there is an error in the sentence imposed and that a different sentence should be imposed.14
[13] An error includes a finding that a sentence was manifestly excessive.15 The approach to be followed is set out in R v Shipton:16
12 At [25].
13 At [27].
14 Criminal Procedure Act 2011, s 250(2).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].
16 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140] confirmed in Tutakangahau v R, above n 15, at [30].
(a)There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error of principle”.
(b)To establish an error in sentencing it must be shown that the sentencing Judge made an error whether intrinsically or as a result of additional material submitted to the appeal court.
(c)Only if an error of that character is involved should the appeal court re- exercise the sentencing discretion.
[14] The appellate court’s focus is on the end sentence and whether it is in range rather than the process adopted to reach the end sentence.17
Submissions
[15] Ms Wright, for Ms Rigby, submitted that a starting point of two years or less was appropriate and insufficient credit was given to the time spent on strict EM bail conditions. The thrust of Ms Wright’s submissions is that the Judge failed to place sufficient weight on Ms Rigby’s personal circumstances. Ms Wright emphasised Ms Rigby’s parental responsibilities and the loss of her father, grandmother and sister around the time of the offending. Moreover, Ms Rigby has been diagnosed with excessive menstrual bleeding and, while in custody, has received blood transfusions but no long-term medical care. Ms Wright points to the letters from the father of her children and Ms Rigby’s mother demonstrating the negative impact of incarceration on the children. Together these factors mean, Ms Wright submitted, the custodial sentence imposed is manifestly excessive.
[16] Finally, Ms Wright noted that due to the loss of Ms Rigby’s home there is no present viable home detention address but the Court could allow Ms Rigby to apply for home detention pursuant to s 80I of the Sentencing Act 2002.
[17] The Crown’s position is that the Judge made no error in sentencing and that the sentence cannot be considered manifestly excessive. Ms Mildenhall submitted the
17 At [36].
starting point was appropriate, that all relevant personal circumstances were taken into account by the Judge and the discounts given were sufficient.
Assessment
The starting point
[18] The Court of Appeal has deliberately not set a tariff for burglary sentences because the range of circumstances in which the offence can be committed is so varied.18 Nevertheless, there are guiding principles.
[19] Dwellinghouse burglaries at the relatively minor end of the scale tend to attract a starting point of between 18 months and two years and six months’ imprisonment.19 In Arahanga v R20 the Court of Appeal upheld a starting point of four years’ imprisonment because the offending was at the more serious end of the scale: burglaries of two dwellinghouses occurred in the early hours of the morning while one of the victims was asleep; there were two burglars and the burglaries involved the taking of high value items as well as a motor vehicle.21
[20] In Stepanicic v R the Court of Appeal adopted a starting point of two years’ imprisonment for two dwelling house burglaries committed by a lone offender.22 Both burglaries were around 6:00am and the female victims were in bed.
[21] In R v Povey the Court of Appeal held that a starting point of two years’ imprisonment was justified for serious offending where the aggravating features were: entry by night into a woman’s apartment; presence of two offenders; the element of premeditation evidenced by gloves and a scarf for concealment and a spear gun.23 The Court of Appeal regarded the presence of this compact weapon as injecting a very real risk of injury to the occupant. The end sentence was three years’ imprisonment due to the defendant’s previous convictions which attracted a further one year’s imprisonment.
18 At [78].
19 At [78].
20 R v Arahanga [2012] NZCA 480, [2013] 1 NZLR 189.
21 At [79].
22 Stepanicic v R [2015] NZCA 211.
23 R v Povey [2009] NZCA 362 at [15].
[22] While I do not regard Stepanicic v R as governing the situation it is undoubtedly relevant including for its affirmation of the continued applicability of Arahanga. Stepanicic involved two burglaries of residential properties at night when people were in their homes. Personal items were taken although it does not appear from the decision the value of the stolen property approached the value of the property stolen by Ms Rigby.
[23] When considering the reasonably similar context of the burglaries in Stepanicic and the more serious and aggravating features involving a weapon in R v Povey, both of which involved starting points of two years’ imprisonment, a starting point of two years seven months’ in Ms Rigby’s case is not aligned with those authorities. The starting point of two years and seven months may be seen as at the high end when compared with R v Povey although I acknowledge it is not at the high end when compared with Arahanga v R.
[24] Ultimately, I view a starting point of two years and four months’ imprisonment as being consistent with the starting points adopted in analogous cases.
Adjustments to starting point
[25] In my view Judge Cathcart’s assessment of the aggravating features was entirely consistent with the approach of the Court of Appeal in Arahanga v R in particular. The offending involved two dwellinghouse burglaries. Ms Rigby was not a lone offender in the October burglary. I do not accept Ms Wright’s submission that Ms Rigby’s guilty plea is a concession to being a party and therefore the Court cannot regard the presence of a second offender as an aggravating factor. Where there is more than one burglar there is a heightened risk of confrontation and that risk materialised during that burglary. The confrontation occurred when Ms Rigby actually attempted to re-enter the home.
[26] It is said Judge Cathcart erred in stating the offending occurred in “the early hours”. The summary of facts has the October burglary occurring around 1:30pm and the August burglary between 8:15am and 11:00pm when the occupants were away. Strictly speaking neither burglary occurred in the “early hours” but, to my mind, the
aggravating feature of the risk of actual danger or confrontation remains. Indeed, there was a confrontation with the occupiers during the October burglary.
[27] I address now the deduction given to Ms Rigby for the three months and one week spent on EM bail. Applying R v R, which the Judge considered was indistinguishable, a period of one month was deducted. The Court of Appeal in R v R considered a discount of four to six months was available for a defendant who had spent one year on EM bail. That deduction was in line with recent Court of Appeal decisions and reflected the restrictive conditions of EM bail and the defendant’s compliance.24
[28] Judge Cathcart took into account that Ms Rigby at times had not complied with EM bail conditions. The pre-sentence report states Ms Rigby displayed “continued noncompliance” by deviating from approved absences on 10 or more occasions. His Honour allowed a deduction of approximately one-third of the time spent on EM bail.
[29] Bearing in mind that “the level of discount is within the Judge’s discretion and there is no arithmetical formula that should be applied”, I am satisfied that the discount was within the Judge’s discretion and I see no need to interfere with it on appeal.25
[30] I consider Judge Cathcart’s careful adjustments to the starting point for the other offending, and for mitigating factors to be entirely correct.
[31] The result is that taking a starting point of two years and four months’ imprisonment, and making the following adjustments which Judge Cathcart made, the end sentence is one of 24 months’ imprisonment:
·an additional four months for the credit card offending and thefts;
·an additional three months for offending while on bail;
·a discount of one month for remorse;
·a discount of one month recognising time spent on electronic bail;
24 R v R, above n 10, at [14].
25 Rangi v R [2014] NZCA 524 at [10].
·a discount of four months in recognition of the difficulties arising for Ms Rigby’s young children and her other personal circumstances; and
·15 per cent discount for guilty pleas.
Section 38 report
[32] There is a further matter: one that was not before the District Court Judge when he sentenced Ms Rigby on 5 October 2017. On 27 November 2017, on Ms Wright’s application, the High Court ordered a psychiatric report pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. A report has been prepared by Dr John Jacques, a consultant forensic psychiatrist with the Waitemata District Health Board. Dr Jacques was asked specifically to comment upon “any connections and linkage between Ms Rigby’s grief and depression and spree offending”.
[33] In supplementary submissions following receipt of this report Ms Wright submitted the report, together with full medical records and letters from Ms Rigby’s mother and the father of her children, point to the hardship of a custodial sentence as being greater for Ms Rigby than for most defendants. Before turning to that submission I address the salient parts of Dr Jacques’ report.
[34] Responding to the specific question posed26 Dr Jacques considered that in the time leading up to the offending Ms Rigby was dependent on methamphetamine. Ms Rigby had a close and spiritual connection with her father who died in November 2015. Dr Jacques noted the death of Ms Rigby’s father had an “understandably difficult and stressful impact on her” but it was his view Ms Rigby “experienced grief and bereavement within the normal range of human experience”. Dr Jacques concluded:
It is my view that grief in itself was not closely linked to her offending, although made it more likely for her to use drugs, and this drug use and other factors led to the most recent offending.
26 At [32] above.
[35] Dr Jacques’ report does not provide a basis for concluding that Ms Rigby suffered a mental illness which “materially contributed” to her offending.27 Without any such causative link I am unable to reduce the sentence on the basis Ms Rigby’s moral culpability was diminished.
[36] But a further factor relevant to my assessment emerges from Dr Jacques’ report. The pre-sentence report described Ms Rigby as having some motivation to engage with parental programmes, drug and alcohol counselling, and departmental programmes. This theme continues in the s 38 report. Dr Jacques notes Ms Rigby has not used illicit drugs in custody and “had some pride in this”. Further, Ms Rigby believes she needs general psychological support and has asked for further counselling in prison. Dr Jacques observed this to be a positive indication. He concluded his report with the following observation:
I was also struck by how much her children mean to her, the value she places in being a mother, the apparent break in offending whilst she had young children, and the support she describes from her partner who is looking after her children. These are important protective factors for her, and should be taken into consideration when deliberating her case.
[37] It is sometimes appropriate to make an allowance for an offender’s potential for reformation by reducing an otherwise appropriate sentence.28 Dr Jacques’ report contains observations and recommendations relevant to Ms Rigby’s prospects for rehabilitation. This material was not before Judge Cathcart.
[38] I am satisfied that in the circumstances of this case the desirability of giving effect to the potential for Ms Rigby’s rehabilitation is not outweighed by other important factors such as the seriousness of the offending. It is appropriate that Ms Rigby’s steps towards rehabilitation and her potential in that regard is recognised by a reduction of two months’ imprisonment. This deduction is not a response to the letters which plea for Ms Rigby’s return and the effects of her absence on her children. Sadly, Judges see many such letters. The devastating effects of criminal offending on the offenders’ families and children is well-understood. But in the sentencing process the law also requires account to be taken of the effects on victims of crime. And, as I
27 R v M [2008] NZCA 148 at [33].
28 See, for example, R v Stephens (1991) 7 CRNZ 347 (CA); Mallett v R [2014] NZCA 39.
have observed a further purpose for which a court may sentence an offender is to assist in her or his rehabilitation. The deduction of two months is in recognition of the very real prospects of Ms Rigby’s rehabilitation.
[39] I am satisfied that an end sentence of 22 months’ imprisonment sufficiently serves the purpose of protecting the community and denouncing Ms Rigby’s conduct while recognising the desirable goal of reintegration and rehabilitation.
Home detention assessment
[40] The pre-sentence report assessed Ms Rigby as unsuitable for an electronically monitored sentence “on this occasion”. The report was prepared on 21 April 2017, almost one year ago. Ms Rigby has breached past community based sentences but the last of these was in 2011. The pre-sentence report also assesses Ms Rigby as presenting a medium likelihood of reoffending. Ms Rigby is said to present a high level of risk to others based on her previous conviction for aggravated assault but I note this occurred in 2009. Her offending since then has been low-level dishonesty offending.
[41] At this time there is no suitable address for home detention. In the absence of a suitable address in which to serve a sentence of home detention I am unable to substitute the sentence of imprisonment with one of home detention. In these circumstances I consider it is appropriate to make an order pursuant to s 80I of the Sentencing Act granting Ms Rigby leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence becomes available.
Result
[42]The appeal is allowed.
[43] The sentence of two years and three months’ imprisonment is substituted with a sentence of one year and 10 months’ imprisonment.
[44] I make an order pursuant to s 80I of the Sentencing Act granting Ms Rigby leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence becomes available.
Karen Clark J
Solicitors:
Nicola Wright, Gisborne for Appellant Crown Law, Wellington for Respondent
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