Rigby v The Queen
[2019] NZHC 3378
•17 December 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-000038
[2019] NZHC 3378
BETWEEN JAMMIE VERA RIGBY
Appellant
AND
THE QUEEN
Respondent
Hearing: 17 December 2019 Appearances:
N Wright for the Appellant
M Mitchell for the Respondent
Judgment:
17 December 2019
JUDGMENT OF DOOGUE J
[1] The appellant, Jammie Rigby, appeals a sentence imposed by Judge Rea in the District Court at Napier on 11 October 2019.1 Ms Rigby was sentenced to two years and seven months’ imprisonment for one charge each of aggravated robbery,2 unlawfully taking a motor vehicle,3 and obtaining by deception.4 This appeal does not however concern the latter charge.
[2]Ms Rigby appeals her sentence on the grounds the Judge:
(a)gave insufficient credit for matters raised in a cultural report;
(b)failed to apply credit for hardship; and
1 R v Rigby [2019] NZDC 20341.
2 Crimes Act 1961, s 235(b); maximum penalty 14 years’ imprisonment.
3 Section 226(1); maximum penalty 7 years’ imprisonment.
4 Sections 240(1) and 241(1); maximum penalty 7 years’ imprisonment.
RIGBY v R [2019] NZHC 3378 [17 December 2019]
(c)gave insufficient credit for Ms Rigby’s remorse and rehabilitative prospects.
Background
Lead offending
[3] At around 7 p.m. on 27 October 2018, the victim in this matter was at a bar in Hastings. He had been there for several hours and was close to leaving. As he walked to his car, Ms Rigby and a male associate parked behind his car. Ms Rigby engaged the victim in conversation and falsely told him that she was from Gisborne, her car had broken down and she had nowhere to stay that night. Feeling sorry for her, the victim told Ms Rigby that she could stay at his house that evening.
[4] During this conversation, Ms Rigby’s male associate had entered the bar where the victim had previously been to meet a female associate. Ms Rigby ran inside to inform her two associates of her arrangements with the victim. The female associate accompanied Ms Rigby to the victim’s car while the other remained at the bar. Ms Rigby told the victim they were sisters.
[5] The victim drove the women to get food and then drove them to his house. They watched television for some time and the two women had showers. During this time, Ms Rigby sent a text to her male associate telling him to “patch up” and bring his friend to the victim’s home. The male associate and his friend arrived at the house wearing Mongrel Mob patches and bandanas covering their faces. They waited in a car outside the victim’s home.
[6] Later in the evening, the victim told the women he was going to bed. He was accompanied by Ms Rigby’s female associate. Once the pair had gone to bed, Ms Rigby let in her male associates. The men entered the victim’s bedroom brandishing a hammer and demanded the victim’s mobile phone and wallet. One of the men then threatened the victim saying, “I’m going to kill you if you don’t give me your card number”. The victim complied, giving his PIN number.
[7] The other man searched the victim’s drawers until he found a car key. The victim was then warned that if he called the police, the man would come back to his property, but that they would come back in any case the following day for $2000. All four offenders then left the address, taking the victim’s car. Ms Rigby made several unsuccessful attempts to withdraw money from the victim’s bank account.
Dishonesty offending
[8] Separately to her other offending, Ms Rigby became aware in 2017 that a particular elderly man who had dementia was residing in care facility in Gisborne. The man had no known family living in the area. In August 2017, Ms Rigby went to the care facility and represented to be the man’s long-lost granddaughter. This deception continued for some time and the care facility staff accepted that Ms Rigby was the man’s granddaughter, even allowing her to take the man on excursions. Ms Rigby ultimately managed to obtain the man’s bank account details and deceived him into transferring her $6,300.
District Court decision
[9] After outlining the facts as above, Judge Rea adopted a starting point of three years and six months’ imprisonment for the aggravated robbery and unlawfully taking a motor vehicle charges.5 The Judge then uplifted this starting point by six months to reflect the obtaining by deception charge.6 The Judge noted that Ms Rigby’s criminal history would normally also warrant an uplift but declined to do so given her rehabilitative prospects.7 The overall starting point was therefore four years’ imprisonment.
[10] Turning to Ms Rigby’s personal mitigating factors, the Judge noted that Ms Rigby had endured multiple tragedies over a period of four years, losing her father, sister, grandmother and brother.8 This had resulted in Ms Rigby becoming isolated and struggling to cope. The Judge also considered a cultural report provided under s 27 of the Sentencing Act 2002 (the Act), which highlighted Ms Rigby’s difficult
5 R v Rigby, above n 5, at [14].
6 At [14].
7 At [14].
8 At [13].
upbringing and the influence her family’s involvement in criminal activity had on her.9 Finally, the Judge accepted that Ms Rigby was genuinely remorseful.10 In combination, the Judge applied a discount to the starting point of 15 per cent, bringing the sentence down to three years and three months’ imprisonment.11
[11] The Judge then gave Ms Rigby a 20 per cent discount for her guilty plea, bringing her final sentence to two years and seven months’ imprisonment.
Approach on appeal
[12] This is an appeal under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.12
[13] A sentence appeal is an appeal against a discretion and only if the sentence is manifestly excessive or contains an error in principle should the appellate court re- exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.13 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.14
Discounts inadequate?
[14] Judge Rea proceeded by applying a global discount of 15 per cent for all personal mitigating factors. Ms Wright, for Ms Rigby, submits that the Judge gave insufficient credit for each individual factor such that Ms Rigby’s sentence is manifestly excessive. The Crown rejects this, submitting that the overall discount for mitigating factors was adequate.
9 At [16].
10 At [15].
11 At [16].
12 Criminal Procedure Act 2011, s 250(2).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]-[35].
14 Ripia v R [2011] NZCA 101 at [15].
[15] Because of the Judge’s approach, I will discuss each factor in turn and will deal with the question of whether the overall discount of 15 per cent was adequate at the end.
Cultural factors
[16] Relying on Solicitor-General v Heta15 and Carroll v R,16 Ms Wright submits that the Judge ought to have recognised the personal mitigating factors raised in Ms Rigby’s cultural report by applying a discount in the vicinity of 30 per cent. In contrast, Ms Mitchell, for the Crown, has referred me to several cases in support of her submission that the discount given for the factors in Ms Rigby’s cultural report was adequate.17
[17] A sentencing judge is required, by virtue of s 8(i) of the Act, to take into account not only an offender’s personal background, but also matters in relation to his or her family, whānau, community and cultural background. The courts have held that this background can also extend to systemic disadvantage, namely longstanding deprivation that affects some groups, at least when an offender’s background may relate in some way to the commission of the offence.18
[18] Cultural information about an offender may be relevant to sentencing in a number of ways: it may form part of the overall assessment of the offender’s culpability;19 it may assist in explaining the offender’s behaviour;20 or it may relate to an offender’s rehabilitative prospects or to the type of sentence that may be most appropriate, including circumstances that would make a particular sentence disproportionately severe.21 What is necessary is that the cultural information engages one or more principles or purposes of sentencing.22
15 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
16 Carroll v R [2019] NZCA 172.
17 R v Edwards [2019] NZHC 2148; R v Takamore [2019] NZHC 2315; R v Carr [2019] NZHC 2335.
18 Parangi v R [2019] NZHC 996 at [59]; R v Patangata [2019] NZHC 744 at [42]; and Solicitor- General v Heta, above n 15, at [41].
19 See Keil v R [2017] NZCA 563; R v Rakuraku [2014] NZHC 3270.
20 See R v Taulapapa [2018] NZCA 414.
21 See R v Jolley [2018] NZHC 93; Solicitor-General v SC [2017] NZHC 2252; R v Eruera [2016] NZHC 532; R v Rakuraku, above n 19.
22 Solicitor-General v Heta, above n 15, at [39], [41] and [49].
[19] In Solicitor-General v Heta, Whata J upheld a discount of 30 per cent for mitigating factors provided in a cultural report. The appellant had pleaded guilty to two charges, one of causing grievous bodily harm with intent to cause grievous bodily harm and one of common assault. The cultural report indicated that: alcohol abuse was a key contributing factor to the offending; alcohol abuse was a learned behaviour from the appellant’s family; the appellant was isolated from positive whānau and other pro-social influences in her life; alcohol abuse and whānau disassociation had significantly impaired the appellant’s wellbeing; the appellant had made strides towards rehabilitation.23
[20] The Solicitor-General’s submission in Heta was that a discount of 30 per cent was precluded by the Court of Appeal’s comments in Keil v R that the sentencing regime cannot be seen to condone a particular group’s use of violent force to exact physical retribution or that cultural norms cannot excuse that conduct for some groups but not for others.24 Whata J rejected this submission, saying:
[59] ...I do not accept that Keil directs that all discounts for personal background matters contained in a s 27 report are to be capped at 20 per cent. Rather, it is an important reminder that in sentencing violent offenders, countervailing aggravating factors may constrain the scope of any discount for personal mitigating factors. But, it remains incumbent on a sentencing judge to weigh the facts of the particular case.
[21] In Carroll v R, the Court of Appeal granted leave for an appellant to adduce a cultural report on appeal which painted a picture of her “that detract[ed] somewhat from her culpability and point[ed] to prospects of rehabilitation.”25 The appellant, who had been convicted of one charge of wounding with intent to cause grievous bodily harm and another of aggravated burglary, was sentenced to 12 years’ imprisonment on each charge. She had, however, experienced a low standard of living, severe physical discipline, and sexual abuse at the hands of a partner of her grandmother. Further, she became involved in the Mongrel Mob and had at some stage turned to drugs. This, the Court accepted, sufficiently established a causal connection between the appellant’s cultural circumstances and her offending.26 Accordingly, the
23 At [64].
24 At [2], citing Keil v R, above n 19, at [58].
25 Carroll v R, above n 16, at [18].
26 At [11].
Court allowed an 18-month discount for these mitigating factors and for the appellant’s time spent on EM bail (10 months).27 This amounted to a discount of 12.5 per cent.
[22] Ms Rigby’s cultural report indicates that she was born in Wairoa and was predominantly raised by her grandmother until the age of seven. She then returned to her mother’s care but due to neglect and abuse, she left home at a young age. At the age of 12, Ms Rigby found herself in the State’s care. The report goes on to note that because of the trauma she suffered as a child and teenager, she turned to drugs, in particular methamphetamine. She also struggles to maintain self-control. She wishes to seek help and would like to attend rehabilitative programmes aimed at drug addictions and her emotional control. Ms Rigby has also suffered the loss of four significant members of her immediate family within a period of four years, something which has had a profound impact on her wellbeing. Ms Rigby found the death of her grandmother particularly difficult, given the impact she had on Ms Rigby’s life.
[23] Given Ms Rigby’s background, it was entirely proper for Judge Rea to give some discount for the factors raised in the cultural report. However, I do not agree with Ms Wright’s submission that Heta and Carroll support the proposition that a discount of 30 per cent should be applied for cultural background or deprivation. On the contrary, the 30 per cent discount in Heta is not universally applicable; the appropriate discount will ultimately turn on the facts.
[24] As a general observation, I do not consider Ms Rigby’s set of circumstances to warrant as large a discount as was applied in Heta. Ms Wright emphasised in particular the trauma caused by the death of Ms Rigby’s grandmother and its link, along with the other deaths in Rigby’s family, to her offending. While I have no doubt the passing of Ms Rigby’s grandmother was traumatic and difficult to accept, this occurred while Ms Rigby was on bail for the offending which is the subject of this appeal. Therefore, there is no causal nexus between the death of Ms Rigby’s grandmother and her offending.
27 At [19].
[25] However, I will come back to the adequacy of the global discount applied by Judge Rea shortly.
Hardship
[26] Ms Wright submits that the Judge ought to have given a discrete discount for hardship on the following grounds:
(a)Ms Rigby’s offending appears to be linked to her father’s death, given the five-year gap in her offending being broken by that event;
(b)Ms Rigby suffers from health problems that prison staff have had difficulty managing; and
(c)Ms Rigby is separated from her children.
[27] Ms Wright has referred me to Brown v Police in support of her submission.28 In that case, Thomas J allowed an appeal on the basis the appellant had been transferred to Auckland Region Women’s Correctional Facility because of the lack of women’s correctional facilities close to Gisborne. This, Thomas J said, meant that her children and family would need to travel seven and a half hours to see her which was prohibitively far and financially onerous on the family.29 Accordingly, Thomas J applied a 15 per cent discount for the disproportionate severity of a sentence of 19 months’ imprisonment, reducing the sentence to one of 14 months’ imprisonment.
[28] I do not consider Brown to apply to Ms Rigby’s situation. Rather, it must be confined to its facts.30 The appellant in Brown came from an isolated community in the Gisborne region where home detention was not available due to lack of cell phone coverage and distance from a police station. Further, the appellant had a limited criminal history confined to fines, disqualification from driving, 80 hours of community work and 6 months’ supervision. The appellant was also very young and a solo mother. And finally, while the District Court Judge had sentenced the appellant
28 Brown v Police [2017] NZHC 1846.
29 At [39].
30 Thomas J expressly stated at [39] that it was the appellant’s “particular circumstances which lead me to conclude the sentence will be disproportionately severe on her.”
to 19 months’ imprisonment, he had granted her leave to apply for home detention if a suitable address was found. This was indicative of the fact that, had it not been for the unsuitability of the proposed address, it is likely the appellant would have been sentenced to home detention.
[29] Other than the fact Ms Rigby is a solo mother, none of these factors apply in her circumstances. On the contrary, she has a fairly extensive criminal history including being sentenced to imprisonment. While Ms Rigby’s offending did follow the death of her father, I cannot see how this makes her sentences disproportionately severe. Further, the medical information before me does not support Ms Wright’s submission that Ms Rigby suffers from health problems that prison staff have had difficulty managing.
[30] As Thomas J said in Brown, “personal hardship is an inevitable consequence of imprisonment”.31 There is nothing in Ms Rigby’s circumstances which satisfies me that her term of imprisonment would be disproportionately severe. Accordingly, the Judge did not err in declining to give a discrete discount for hardship.
Remorse and rehabilitative prospects
[31] Ms Wright submits that the Judge failed to consider Ms Rigby’s rehabilitative prospects in sentencing her and gave insufficient credit for remorse. She says that Ms Rigby has taken every step possible to secure a place in a residential programme and that after a 13-month wait, a bed is now available for Ms Rigby at Odyssey House in Auckland. Ms Wright has provided the Court with email confirmation of this potential arrangement as well as information about the residential rehabilitative programme, and has sought leave to adduce this evidence if required.
[32] It is not necessary for further evidence to be adduced for the purposes of this appeal. The fact of the matter is that Judge Rea did apply an appropriate credit for Ms Rigby’s rehabilitative prospects by offsetting any uplift to the starting point for relevant previous convictions. The Judge said:32
31 At [34].
32 R v Rigby, above n 5, at [14].
Normally, somebody with your record would get an uplift as well for your past offending, for things that you have done in the past. However you are showing some rehabilitative prospects, so what I intend to do is offset the two of them. You will not get a particular credit for the rehabilitation prospects that you have got, but you will not get an uplift either for your past offending which, in most cases, would normally follow as a matter of course.
[33] Ms Rigby has around 30 previous convictions for dishonesty offending. These convictions were relevant at sentencing and I agree with Ms Mitchell that they could have attracted an uplift of some six months. Therefore, by declining to impose such an uplift, Judge Rea effectively applied a discount of 12.5 per cent for Ms Rigby’s rehabilitative prospects. I see no error in the Judge’s approach and do not consider any greater discount is warranted.
Manifestly excessive?
[34] Having considered each individual personal mitigating factor, the question is whether a global discount of 15 per cent was adequate to reflect Ms Rigby’s personal circumstances. If not, the sentence will have been manifestly excessive.
[35] In my view, the overall discount applied by the Judge was adequate and Ms Rigby’s sentence is not manifestly excessive. The Judge effectively applied an overall discount of 27.5 per cent rather than 15 per cent, recognising the factors raised in Ms Rigby’s cultural report and her rehabilitative prospects. Accordingly, I see no error in the Judge’s decision and the appeal must be dismissed.
Other matters
[36] On 11 October 2019, Ms Rigby became eligible for parole. On 3 December 2019, Ms Rigby appeared before the New Zealand Parole Board (the Parole Board) and parole was declined. In her written submissions, Ms Wright stated that the Parole Board adopted the view that Ms Rigby ought to undertake a certain rehabilitative programme before being considered for release into the community. Ms Wright submitted that the programme suggested by the Parole Board is shorter and less structured than the programme at Odyssey House. Ms Wright submitted further that by declining to grant Ms Rigby parole, the Parole Board had taken away Ms Rigby’s opportunity to obtain a place at Odyssey House. Accordingly, Ms Wright submitted
that the Parole Board’s decision was flawed and that even if this Court was unwilling to disturb Ms Rigby’s sentence, it ought to commute Ms Rigby’s sentence to one of home detention after taking into account her 14 months in custody.
[37] This matter can be dealt with briefly. The parole process is for the Parole Board. The avenue for reviewing decisions of the Parole Board is s 67 of the Parole Act 2004. Reviews are not conducted by this Court. It would therefore be inappropriate for this Court to undermine the review process imposed by Parliament.
[38] In any case, having found that there was no error in the District Court Judge’s decision, Ms Rigby’s sentence remains one of two years and seven months’ imprisonment. While Ms Rigby will be credited for her time in custody, her sentence is not nominally adjusted to reflect that period. Therefore, as Ms Rigby’s sentence is greater than two years’ imprisonment, this Court has no jurisdiction to commute it to a term of home detention.
Result
[39]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Napier
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