Rudolph v R
[2019] NZCA 451
•24 September 2019 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA239/2019 [2019] NZCA 451 |
| BETWEEN | TERRANCE CLINTON RUDOLPH |
| AND | THE QUEEN |
| Hearing: | 8 August 2019 |
Court: | Kós P, Woolford and Dunningham JJ |
Counsel: | S Brickell for Appellant |
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 hit again, then bound and gagged.
The appellant and Ms Robertson left the motel in the complainant’s car. The appellant withdrew $2,800 from various ATMs in the area. Mr Hegotule and Ms Goodson left the motel soon after. The complainant was abandoned at the motel, still bound and gagged. Eventually, he managed to free himself and summon help. He was subsequently treated for a fractured eye socket and concussion. The money which was stolen from him was never recovered or repaid.
Sentencing of co-offenders
Ms Robertson was sentenced by Woodhouse J on 27 June 2018 having pleaded guilty to charges of:[4]
(a)aggravated robbery;
(b)kidnapping;
(c)unlawfully taking the complainant’s car; and
(d)dishonestly using a document, namely the complainant’s card.
[4]R v Robertson [2018] NZHC 1557.
Ms Robertson at 18 years old, was the youngest by eight years of all four offenders.[5] The starting point on all charges was four and a half years’ imprisonment.[6] After a deduction of 20 per cent for personal circumstances and 15 per cent on account of her youth, along with the guilty plea discount of 20 per cent, the end sentence was two years and four months’ imprisonment.[7]
[5]At [8].
[6]At [3].
[7]At [4]–[18].
Mr Hegotule and Ms Goodson proceeded to trial. Mr Hegotule was found guilty of:
(a)demanding with intent to steal;
(b)injuring with intent to injure;
(c)aggravated robbery;
(d)kidnapping; and
(e)dishonest use of a document.
The starting point adopted by Whata J for Mr Hegotule was five years’ imprisonment.[8] His sentence was reduced by 20 per cent on account of personal mitigating factors, resulting in an end sentence of four years’ imprisonment.[9] Mr Hegotule was a second strike offender, and thus will have to serve his sentence without parole.[10]
[8]R v Hegotule [2018] NZHC 2790 at [8].
[9]At [15] and [18].
[10]At [17].
Ms Goodson was found guilty at trial of:
(a)demanding with intent to steal;
(b)kidnapping; and
(c)dishonest use of a document.
She was acquitted on the charge of aggravated robbery.
A starting point of two years and nine months’ imprisonment was taken by Whata J with kidnapping as the lead charge.[11] After an adjustment of 15 per cent for personal mitigating factors, and of four months (12 per cent) for time spent on EM bail, an end sentence of two years’ imprisonment was imposed.[12]
[11]R v Goodson [2018] NZHC 3155 at [13].
[12]At [14]–[16].
The appellant was not sentenced until much later. This is because, having been granted EM bail on 15 September 2017, she removed her EM bracelet on 6 December 2017 and absconded. A warrant for her arrest was issued. She was only re‑arrested on 3 November 2018 after the trial for Mr Hegotule and Ms Goodson had concluded. She eventually pleaded guilty to aggravated robbery and dishonestly using a document on 1 March 2019.[13]
The sentencing decision
[13]The Crown offered no evidence on the other charges which were duly dismissed.
On 14 May 2019 Moore J sentenced the appellant. He set a starting point of three years and nine months for the aggravated robbery.[14] In doing so, he undertook a comparison between the respective levels of culpability between her and her co‑offenders. The Judge noted that the appellant’s role in the offending was more significant than Ms Goodson’s, whereas Ms Robertson’s role was more serious than the appellant’s in that she was involved in an element of planning of the offending.[15]
[14]R v Rudolph, above n 1, at [32].
[15]At [29]–[31].
In terms of the aggravating features of her offending, the Judge identified that the appellant was “a willing and active participant” who armed herself with a kitchen knife.[16] Furthermore, she “actually carried out the purpose of the robbery by visiting the ATMs and withdrawing funds”.[17] He added that she helped prevent the complainant’s desperate attempt to escape.[18] However, he accepted that she was not involved in the planning of the offending, rather she was only involved once it was “actually unfolding”.[19]
[16]At [30].
[17]At [30].
[18]At [30].
[19]At [31].
From the starting point of three years, nine months the Judge applied a discount of 10 per cent for the appellant’s “deprived social background, limited expressions of remorse and efforts at rehabilitation”.[20] The Judge considered the claim for a discrete discount for remorse was difficult to reconcile with her decision to abscond for a lengthy period of time.[21] He also noted that larger discounts for deprivation “tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender”.[22] However, in this case, he considered the nexus between her deprived background and the offending was unclear.
[20]At [45].
[21]At [40].
[22]At [43], citing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
Finally, the Judge applied a discount of 15 per cent for her guilty pleas, noting that it was a “very generous discount”, perhaps even “overly generous”.[23]
The appeal
[23]At [47].
Mr Brickell presented the appeal on the sole ground that the disparity with the sentences of the appellant’s co-offenders was such that the appeal should be allowed on the basis that the disparity would lead a “reasonably minded independent observer” to believe that “something had gone wrong with the administration of justice”.[24]
[24]R v Lawson [1982] 2 NZLR 219 (CA) at 223.
In response to our questions, Mr Brickell accepted that the sentence, viewed independently of the other sentences, was not so out of range that it would warrant setting aside on appeal.
That said, his submissions advanced the appeal on the basis of two alleged errors in sentence which warranted a different sentence being imposed. First, he submitted that the Judge erred in assessing the appellant’s culpability, saying she should have been regarded as the least culpable offender. Her involvement in the aggravated robbery was to enter the bedroom sometime after Ms Robertson holding a knife that she had been using earlier in the evening for cutting methamphetamine. She did not use the knife or threaten the complainant with the knife and was not involved in the planning of the robbery.
Mr Brickell took issue with the Judge saying that the appellant “followed” Ms Robertson into the bedroom with a knife, rather than that she came sometime later. He also took issue with the Judge’s characterisation of the statement in the summary of facts that the appellant blocked the complainant from leaving the bedroom as assisting in the complainant’s detention. He said this inference was not reasonably available from the agreed summary of facts. It was her “mere presence” which blocked the complainant from leaving rather than that she had an intention to stop him from doing so.
Accordingly, looked at in the round, Mr Brickell submitted that the appellant’s starting point of three years and nine months’ imprisonment was too high when her culpability is measured against that of her more culpable co-offenders who also faced a greater number of charges. In particular, he considered that the difference of a year in starting point between Ms Goodson and the appellant was too great.
The second challenge to the sentence related to the level of discount the appellant received for personal mitigating factors.
The psychological report presented by Dr John Nuth which was available at sentencing pointed out that the appellant identifies as transgender and was living on the margins of society. She lived in a household where her father was physically and mentally abusive, particularly towards her mother. She suffered significant trauma in her life, including witnessing her sister being raped when she was seven. She was placed into CYFS’s care and she reported moving between 23 different foster homes. She was introduced to drugs at age 10 and then sold into prostitution at the age of 12, which is when she developed a methamphetamine addiction.
Despite that, Dr Nuth noted that the appellant was not beset with mental health difficulties or prominent personality problems, nor did she have an entrenched pro‑criminal attitude. She therefore had good prospects of rehabilitation and she was willing to engage in restorative justice.
Mr Brickell pointed out that Mr Hegotule, who came from a more stable background but turned towards gangs in his late teens, was afforded a 20 per cent discount for personal mitigating factors. Similarly, Ms Goodson, although not convicted on the aggravated robbery charge, was afforded a discount of 15 per cent for compassion shown towards the complainant, her difficult upbringing and her prospects of rehabilitation.
In short, in light of her compelling personal circumstances and her remorse and prospects of rehabilitation, Mr Bicknell submitted that the appellant should also have received a discount of 20 per cent.
Discussion
We do not consider the appeal can succeed on the grounds of disparity of sentence with the appellant’s co-offenders.
First, we do not depart from the Judge’s ranking of culpability. He was acutely conscious of the fact that the co-offenders had been sentenced by two different Judges and on different combinations of charges and he took some care to establish their relative culpability. We consider he was correct to see the appellant’s offending as more culpable than Ms Goodson’s, but less culpable than Ms Robertson’s.
We do not consider the fine distinctions Mr Brickell seeks to draw from the summary of facts as warranting a different starting point. The appellant went into the bedroom with a knife. Whether she followed Ms Robertson immediately or after a short interval of time, it makes no practical difference to the fact she participated in the aggravated robbery. Similarly, we accept that the complainant was blocked from leaving by the appellant and Ms Robertson and this was properly treated as an aggravating feature of the offending. We are therefore satisfied that the Judge considered all the circumstances of the offending in determining the starting point, and properly recognised the appellant’s culpability.
We agree, though, that there is more strength to the submission that the discount afforded for personal mitigating factors was too little, particularly when compared to her co‑offenders. For example, Mr Hegotule received a 20 per cent discount for his difficult upbringing, efforts towards and capacity for rehabilitation, acknowledgement of and remorse for the offending and preparedness to engage in restorative justice.[25] Similarly, Ms Robertson received a 20 per cent discount for “the wide range of significant difficulties you have experienced from a very young age” as well as for psychological problems.[26]
[25]R v Hegotule, above n 8, at [15].
[26]R v Robertson, above n 4, at [6] and [9].
While we accept that it is a matter of judicial discretion as to how much weight should be given to the personal circumstances of an offender as a mitigating factor, and the Judge certainly traversed the information thoroughly and thoughtfully, we consider there were factors here which warranted a greater discount being applied. We accept Mr Brickell’s submission that there is an obvious inference that the appellant’s extremely unstable background, leading to prostitution and drug use, coupled with the obvious difficulties of identifying as transgender, has led her to live on the margins of society and become involved in the type of offending which has occurred here.
However, as is well accepted, 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.[27] In this case, we also have to take into account the adjustment for a guilty plea. The Judge described it as very generous and we agree. It was entered more than two years after the offending occurred and at a point where the complainant had already had to give evidence at the trial for two of the defendants. Furthermore, the appellant benefited from the Crown’s decision not to offer evidence on the remaining charges. In these circumstances, only a modest discount was warranted. To the extent that we have reservations about the level of discount for personal mitigating factors, remorse and rehabilitative prospects, these are compensated for by the application of a generous discount for a guilty plea.
Conclusion
[27]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
We do not consider that the sentence imposed on the appellant wrongly reflects her culpability as compared to her co-defendants and there is no disparity such as would meet the threshold in R v Lawson.[28]
[28]R v Lawson, above n 24.
We also do not consider that there were errors in sentencing which would warrant a different sentence being imposed.
Result
Accordingly, the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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