Rudolph v R - [2019] NZCA 451

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA239/2019
[2019] NZCA 451

BETWEEN	TERRANCE CLINTON RUDOLPH Appellant
AND	THE QUEEN Respondent

Hearing:	8 August 2019
Court:	Kós P, Woolford and Dunningham JJ
Counsel:	S Brickell for Appellant J E Mildenhall for Respondent
Judgment:	24 September 2019 at 9 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

Terrance Rudolph, the appellant, was sentenced on 14 May 2019 to two years and 10 months’ imprisonment on:[1]
(a)one charge of aggravated robbery; and
(b)one representative charge of dishonestly using a document.
[1]R v Rudolph [2019] NZHC 1050.
The appellant now appeals her sentence,[2] on the grounds that there is a marked and unjustifiable disparity between the sentences imposed on her and on her co‑offenders in this case.[3]
[2]Criminal Procedure Act 2011, s 244.
[3]Although the appellant was born male, we refer to her using feminine pronouns as she identifies as transgender.
She says this has arisen because:
(a)the starting point adopted was too high when compared with the starting point taken for her co-offenders, and in light of her relative culpability; and
(b)there is no justification for her co-offenders receiving greater discounts on account of personal mitigating factors.

The facts

In the early hours of 15 January 2017, one of the appellant’s co-offenders, Asia Robertson, was at a bar on Karangahape Road where she met the complainant. At around 3.00 am they agreed to leave the bar together. On the way to the complainant’s house, they picked up another co-offender, Carly Goodson. The three of them then drove in the complainant’s car to a motel in Epsom. The appellant was already at the motel unit.
After the group arrived, Ms Goodson and the complainant went into a bedroom together. The complainant had agreed to pay Ms Goodson for sex. At that point another co‑offender, Nykell-T Hegotule, burst into the bedroom. He was armed with a large kitchen knife and was wearing a T-shirt emblazoned with a gang logo. Mr Hegotule told the complainant he was a gang member and he demanded the complainant’s money and threatened to stab him. Ms Robertson entered the room bringing the complainant’s phone with her. The appellant then entered the room, also holding a knife.
Ms Robertson and Mr Hegotule demanded the complainant’s PIN number. They directed him to transfer $5,000 to a bank account of their choosing but then told him to cancel the transfer. They took his mobile phone and wallet. The appellant and Ms Robertson told the others that they were going to an ATM to withdraw money using the complainant’s bankcard. As they were leaving the complainant made an attempt to flee through a ranch slider. Ms Robertson was standing in the doorway while the appellant was standing just outside. They blocked the complainant from leaving. Mr Hegotule punched the complainant in the back of the head and he collapsed, dazed. He was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rudolph v R

Details

AGLC: Rudolph v R [2019] NZCA 451
Case: [2019] NZCA 451
Decision Date: 24 September 2019 at 9 am

CaseChat Overview and Summary

Rudolph was sentenced to two years and 10 months’ imprisonment on charges of aggravated robbery and dishonestly using a document. Rudolph appeals her sentence, arguing that there is a marked and unjustifiable disparity between the sentences imposed on her and her co-offenders in this case. The legal issues in this case revolve around whether the starting point adopted for Rudolph's sentence was too high when compared with the starting point taken for her co-offenders in light of her relative culpability, and whether there is any justification for her co-offenders receiving greater discounts on account of personal mitigating factors.

The Court found that the appellant's culpability was correctly assessed and that the starting point adopted for her sentence was appropriate. The Court did, however, accept that there was more strength to the submission that the discount afforded for personal mitigating factors was too little, particularly when compared to her co-offenders. However, the Court concluded that the focus on appeal should not be on the process by which the end sentence was reached, but rather on the end sentence itself and whether it reflects the overall criminality of the offending and the offender. In this case, the Court found that the sentence imposed on Rudolph correctly reflected her culpability as compared to her co-defendants and there was no disparity such as would meet the threshold in R v Lawson. Therefore, the appeal against sentence is dismissed.

Final orders: The appeal against sentence is dismissed.

Orders