Skye v The King

[2024] NZHC 1925

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-48

[2024] NZHC 1925

SOPHIE LEE SKYE

v

THE KING

Hearing:	9 July 2024
Appearances:	W T Nabney for Applicant A Alcock for Crown
Judgment:	12 July 2024

JUDGMENT OF MUIR J

This judgment was delivered by me on 12 July 2024 at 3.30pm,

………………………………… Registrar/Deputy Registrar

Solicitors:

Hamilton Legal
W T Nabney, Tauranga Chambers

SKYE v R [2024] NZHC 1925

Introduction

[1]    Ms Sophie Skye pleaded guilty in the District Court at Hamilton to charges of kidnapping,1 assault with a weapon,2 and demanding with menaces.3 She was sentenced by Judge P P Crayton to two years and two months’ imprisonment on 3 May 2024.4

[2]    She now appeals her sentence on the grounds that the starting point adopted was excessive given her role in respect of the lead offending (the kidnapping), that insufficient credit was given for her guilty pleas, and that the end sentence is manifestly excessive as a result.

The facts

[3]    Ms Skye managed a business in Hamilton where a burglary occurred in September 2019. Tools and other items were stolen, some of them belonging to one of Ms Skye’s co-defendants, Mr Cousins. Ms Skye did not engage with the police investigation and instead conducted her own inquiries, ultimately concluding that the victim, Mr Terrey, was responsible. It is a matter of available inference that she informed various associates, including Mr Cousins, of this conclusion.

[4]    On 30 November 2019 Mr Terrey, who resided in Whakatāne with his parents, drove to Hamilton to visit his 4-year-old son. While in Hamilton, he made arrangements with another of Ms Skye’s co-defendants, Ms Kaihana-King, to buy methamphetamine from her. He rendezvoused at her home, where Mr Cousins also resided, in the early hours of 1 December 2019. Once he was on his way Ms Kaihana- King sent a message to Mr Cousins saying Mr Terrey’s arrival was  imminent and  Mr Cousins advised Ms Skye that this was the case. He sent a further text to her confirming Mr Terrey’s arrival, to which Ms Skye replied “on my way … make sure car empty”.

1      Crimes Act 1961, s 209. Maximum penalty 14 years’ imprisonment.

2      Crimes Act, s 202C. Maximum penalty five years’ imprisonment.

3      Crimes Act, s 239. Maximum penalty seven years’ imprisonment.

4      R v Skye [2024] NZDC 9863.

[5]    Mr Terrey arrived at the address at 12.39 am and was directed to the garage where Mr Cousins slept. Ms Skye arrived at 12.45 am with a baseball bat. She confronted Mr Terrey in the garage in respect of the burglary she believed he had committed. She assaulted him multiple times with the baseball bat, causing heavy bruising to his arms, legs, back and torso. She made Mr Terrey empty his pockets, and the keys to his parent’s vehicle and his cellphone were taken from him. After finding his wallet empty, she told him he had better “fucking sort it out … you can pay us off some money each week to fucking pay back for the tools”.

[6]    During the assault Mr Terrey was prevented from leaving the garage. However, at approximately 1.08 am he managed to flee the address.

[7]    He attempted to seek assistance from the occupants of a nearby address who were known to him but was told to leave. Mr Terrey’s movements are not known until he was found deceased approximately 12 hours later.5

District Court decision

[8]    All three defendants sought sentence indications, at which proposed starting points of two years and seven months, two years and eight months and three years and two months were identified for Ms Kaihana-King, Mr Cousins and Ms Skye respectively. Ms Kaihana-King and Mr Cousins consequently entered guilty pleas to all charges (kidnapping as principal, assault with a weapon and demanding with menace as a party). Ms Skye pleaded guilty to the two lesser charges (both as principal) but maintained a not guilty plea to the kidnapping charge until the day before trial.

[9]    At Ms Skye’s sentencing, the Judge noted that the guilty plea on the kidnapping charge had come “late in the piece” something which he described as a “slightly vexed aspect”.6

5      It is not suggested that his death was the result of any physical injury sustained in the assault.

6      R v Skye, above n 4, at [3]–[4].

[10]   The Judge considered it “difficult to make sense of the sentencing by approaching the individual components because they are utterly intertwined”.7 He therefore set out to establish a starting point for all three offences, effectively taken as one. That was a legitimate approach.

[11]   Turning to culpability, the Judge first considered the presence of premeditation. He noted that although Mr Terrey was not at the address by Ms Skye’s design, she chose to be there and confront him, and had even sent messages to ensure the car was empty, by which the Judge inferred she meant that there was no one else in it. Further, Ms Skye brought a baseball bat to the address, which the Judge noted was immediately used to inflict violence.

[12]   The Judge then referred to the violent nature of injuries inflicted on Mr Terrey by Ms Skye, and the fact that he was isolated and vulnerable—more so after his keys and cellphone were removed from him, with the result being that he was unable to leave or call for help. The Judge noted that Mr Terrey’s total period of detention was approximately 30 minutes of which Ms Skye was present for 23. He acknowledged that she was not directly responsible for his initial detention, but recognised her lead role thereafter both in ensuring continued detention and in respect of the assault and demands which followed.

[13]   The Judge emphasised that he did not take into account Mr Terrey’s subsequent death in setting the starting point, although acknowledging the link which family and friends of Mr Terrey would likely draw. He identified three years’ imprisonment as an appropriate starting point, this being two months less than in his initial sentence indication.

[14]   The Judge adopted a 10 per cent reduction for Ms Skye’s guilty plea and a five per cent reduction for Ms Skye’s remorse. Four per cent was allowed for factors in Ms Skye’s background, five per cent for previous good character and four per cent for her engagement in rehabilitation and offer to participate in restorative justice. These reductions totalled 28 per cent, resulting in an end sentence of two years and two months’ imprisonment.

7 At [15].

Law on appeal

[15]   This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.8 Otherwise, the Court must dismiss the appeal.9

[16]   The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.11

Grounds of appeal

Appellant submissions

[17]   For Ms Skye, Mr Nabney submits that the starting point was too high given the starting points set for Ms Skye’s co-offenders.12 He accepts that Ms Skye was the person who inflicted the physical injuries on Mr Terrey but submits that these resulted only in bruising and would not ordinarily have been considered life threatening or of any long-term consequence. He submits that the fact Mr Terrey was lured to the address and held until Ms Skye arrived was relevant to the co-offender’s culpability but not Ms Skye’s.

[18]   In particular, Mr Nabney submits that the starting point was excessive when compared to cases such as Harema-Watts v R.13 He also submits that the starting points identified for Ms Skye’s co-offenders were lower and that Ms Skye should have been the same because they bore equivalent overall culpability.

8      Criminal Procedure Act 2011, s 250(2).

9      Section 250(3).

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

11     Ripia v R [2011] NZCA 101 at [15].

12     Starting points for Ms Skye’s co-offenders were set at two years and seven months’ imprisonment and two years and eight months’ imprisonment for their roles.

13     Harema-Watts v R [2017] NZCA 306.

[19]   In relation to the guilty plea discount, Mr Nabney says that it should again be equivalent to that given to Ms Skye’s co-offenders—17 per cent. He says that the only reason a not guilty plea was maintained until the eve of the trial was that, hitherto, the Crown had maintained that Ms Skye was a party to the “luring” aspect of the offending—that is the means by which Mr Terry came to be in the garage. He says however that the Crown ultimately acknowledged it was unable to prove this, and on receipt of that advice, certain adjustments were made to the agreed statement of facts and a guilty plea was entered.

[20]   Mr Nabney submits that if either an appropriate starting point had been adopted or an appropriate guilty plea discount allowed, Ms Skye’s end sentence would have been one where home detention could have been considered as a sentencing option.

Respondent submissions

[21]   On behalf of the Crown, Ms Alcock submits that the starting point of three years’ imprisonment was well within the range available to the Judge.

[22]   She refers to three cases—Harema-Watts v R, R v Royal, and R v Boyle.14 She submits that Royal and Boyle (starting points of two years and 10 months’ imprisonment and two years and six months’ imprisonment respectively for offenders who were appropriately considered parties to kidnapping), when compared with Harema-Watts (a starting point of three years and six months’ imprisonment for the principal offender in a kidnapping) demonstrate that a starting point of three years’ imprisonment was, in this case, comfortably within the range.

[23]   She submits that Ms Skye was clearly the principal offender on any overall analysis.

[24]   Further, Ms Alcock submits that the discount of 10 per cent for guilty pleas was appropriate, particularly in light of the timing of the plea on the kidnapping charge and strength of the Crown case. She says that adjustments to the summary of facts did not reduce the appellant’s overall culpability. Ms Skye was, she says, “front and centre

14     Harema-Watts v R, above n 13; R v Royal [2020] NZHC 1321; and R v Boyle [2019] NZHC 1584.

of the offending … was involved in detaining the victim and was involved in inflicting violence upon him, being armed with a baseball bat that she brought to the scene”.

Discussion

Starting point

[25]   I am not persuaded that the starting point was excessive, having regard to either parity considerations or the case law.

[26]   As to parity, I  accept  that  Ms  Kaihana-King  leveraged  her  position  as  Mr Terrey’s methamphetamine supplier to effectively lure him to the premises and that the Crown ultimately considered itself unable to establish that Ms Skye had an equivalent role in that respect. I accept also that Ms Kaihana-King and Mr Cousins were solely responsible for Mr Terrey’s detention for around seven minutes of the total 30 minutes.

[27]   But these points pale in the context of Ms Skye’s wider involvement. It was, after all, her vigilantism which was the catalyst for Ms Kaihana-King and Mr Cousins’ actions. The initial detention and telephone communications between Ms Kaihana- King and Mr Cousins, and Mr Cousins and Ms Skye would not have occurred were Ms Kaihana-King  and  Mr Cousins not of the mind that such detention furthered   Ms Skye’s objectives.

[28]   More significantly however, it was Ms Skye who was in control of the situation from the time she arrived armed with a baseball bat, and it was she who administered the severe  beating  to  Mr  Terrey  and  who  made  the  demand  with  menaces.  Ms Kaihana-King and Mr Cousins’ subsidiary role, from the time of Ms Skye’s arrival, was reflected in their prosecution as parties only on the assault and demanding with menaces charges. As the District Court Judge observed, the assault with a weapon fell “at the higher end of such offending, although the harm caused in the scheme of injuring would be moderate”.15 Likewise, the position with the demands with menaces. In respect of both charges Ms Skye was the primary offender—her role was

15     R v Skye, above n 4, at [23].

front and centre, as the Crown submits. The higher starting point by four to five months was amply justified in that context. The appellant’s submission to the contrary fails to give proper emphasis to the various components of offending, which, as the Judge said were “utterly intertwined” and in respect of which Ms Skye had the overall primary role.

[29]   In terms of the authorities, R v Boyle and R v Royal indicate that for party offenders in broadly similar circumstances, starting points of between two years and six months and two years and 10 months are typical.16 By contrast, in  Harema-  Watts v R, the Court of Appeal dismissed an appeal from a starting point of three years and six months where the defendant was charged with kidnapping and injuring with intent to cause grievous bodily harm.17 She had lured the victim to an address under false pretences with the intention he be assaulted and threatened by others on his arrival. The defendant’s role was therefore as a primary offender at least in respect of the kidnapping.18 A significant aggravating factor was, however, the extent of the injuries sustained, including multiple rib fractures and a collapsed lung. In this case, the injuries were not as severe, justifying the lower starting point adopted by the Judge.

The guilty plea discount

[30]   The Judge allowed a discount of 10 per cent noting that “I cannot achieve a high-water mark of 17 per cent, which was attributed for your co-defendants”.19 He acknowledges that since his earlier indications there had been the “removal of a sentence” from the statement of agreed facts but said that this could not be said to fully explain the delay in arriving at a guilty plea because “on any account you detained the complainant for a significant period”.20

[31]   Mr Nabney says that this significantly understates the change in the Crown case between the sentence indication and the entry of the guilty plea to the kidnapping

16 R v Boyle and R v Royal, above n 14.

17    Harema-Watts v R, above n 13.  Ms Harema-Watts had also been charged with, and plead guilty to, a charge of assault with intent to injure arising out of separate circumstances, for which details were not before the appellate court.

18 Noting that at [16] there the Court also rejected the submission that Ms Harema-Watts was only a party to the physical violence inflicted by others.

19 R v Skye, above n 4, at [25].

20 At [25].

charge (noting that Ms Skye pleaded guilty to the balance of the charges at a significantly earlier time).

[32]   In that context, I have been provided with the original and revised versions of the summary of facts. Relevantly they provided:

Original

Mr Terry was directed to the garage of the address. Mr Cousins sleeps in the garage and he was kept inside the garage until Ms Skye arrived at approximately 12.46 am.

When Ms Skye arrived she was armed with a baseball bat and made her way into the garage. Once in the garage she confronted Mr Terrey over the burglary she believed he had committed at her business address.

Revised

Mr Terrey was directed to the garage at the address.

Ms Skye arrived at the address at approximately 12.45 am armed with a baseball bat. She made her way into the garage and confronted Mr Terrey over the burglary she believed he had committed at her business address.

[33]   I accept however that these revisions do not fully capture the extent to which the Crown case evolved over the period indicated. That is confirmed by the Judge’s notes on the sentencing indication where he identified that premeditation was an aggravating feature in respect of all defendants, observing:21

It was clearly premeditated. There was a luring to the address on a pretext and it would appear that the sole purpose was to confront the complainant violently as regards the burglary which it was perceived he was involved in. There is no issue taken that premeditation is present here. On its face it is present to a high degree.

[34]Later he observed:22

The assault with a weapon however here when allied to the kidnapping and demanding with menaces is something which does significantly increase culpability overall. This was, as has been identified, pre-planned …

[35]   This is consistent with Mr Nabney’s advice that, until very proximate to trial, the Crown maintained that Ms Skye was actively involved in the “luring” aspect of

21     R v Kaihana-King DC Hamilton CRI-2022-019-001384, 6 July 2023 at [8(a)].

22 At [13].

the kidnapping but that it ultimately accepted it was unable to prove this. At that point (and with modest adjustments to the statement of agreed facts) a guilty plea was entered.

[36]   Although I accept, as the Judge says, that Ms Skye nevertheless “detained the complainant for a significant period”, the sentencing indication notes that he considered the “luring” aspect relevant to his assessment of culpability and thus reflected in the starting point.23 Possibly, the fact that this allegation was not ultimately pursued against Ms Skye accounts for the fact that the starting point adopted at sentencing was two months less than that indicated at the sentencing indication.

[37]   I accept that negotiation of this issue was appropriate given its likely impact on the culpability assessment and that the delay in entry of Ms Skye’s guilty plea is explainable in light of the time taken by the Crown to make its final assessment of what it could and could not prove.

[38]   In that context and taking into account also the earlier guilty pleas to the balance of the charges, I consider the 10 per cent discount given by the Judge inadequate. I consider a more appropriate discount was in the order of 15 per cent. In coming to that conclusion, I am conscious of the fact that the Crown case was otherwise strong. With slight rounding this would reduce the final sentence by two months.

Is appellate intervention justified?

[39]   Ordinarily an adjustment of two months to a final sentence would be considered tinkering and not justify appellate intervention. However, in this case the final sentence—two years and two months’ imprisonment was very close to the threshold at which home detention could be considered as a sentencing option, making it particularly sensitive to small discount adjustments.

23     R v Skye, above n 4, at [25].

[40]   The case is therefore comparable to R v Gledhill where the Court of Appeal observed:24

[32] This [the sentence of two years and one month imprisonment] is two months more than the sentence we would have imposed. Appellate Courts are generally reluctant to impose small changes to sentences, and if there were no other factors we would have hesitated to intervene. However, a sentence of two years or less is a short-term sentence of imprisonment under s 15A(1)(b) of the Sentencing Act. This means that a sentence of home detention is available. The Court must impose the least restrictive outcome that is appropriate in the circumstances: s 8(g) of the Sentencing Act. In deciding whether to intervene, we must consider whether a sentence of home detention is appropriate.

[41]   In this case Mr Nabney does not ask me to decide whether home detention would be an appropriate sentence were Ms Skye’s custodial term reduced to two years. He seeks leave to apply to the District Court. There are some indications in the sentencing notes that the Judge may require some persuading in this regard but, in my view, Ms Skye should at least be given the opportunity to do so.

Result

[42]   I allow the appeal and substitute for the existing sentence of two years and two months’ imprisonment a sentence of two years’ imprisonment.

[43]   I grant leave to the appellant to apply to the District Court to commute the sentence to one of home detention.

Muir J

24     R v Gledhill [2009] NZCA 415 at [32]. For a similar approach see Sweeney v R [2023] NZCA 417 at [32].