Smith v Police HC New Plymouth CRI 2010-443-12

[2010] NZHC 1147

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-443-000012
CRI-2010-443-000013
CRI-2010-443-000014

CRI-2010-443-000015

LYN SMITH

STACEY DEBRA ANDERSON NICOLE TRACEY ANDERSON KELLY MARIE ANDERSON Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 July 2010

Appearances: K M Marriner for Appellants

J Webber for Respondent

Judgment:      9 July 2010

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      The four appellants appeal sentences imposed in response to a group attack on a 30 year old woman in her home.  Each defendant pleaded guilty to a charge of injuring  with  intent  to  cause  grievous  bodily  harm  (s 189(1)  Crimes  Act 1961,

maximum penalty 10 years).  Three of the offenders received a sentence of two years

six months imprisonment, and the fourth, Stacey Anderson, received a sentence of two years eight months.

Facts

[2]      The  five  participants  were  drinking  at  a  bar  in  Hawera.    There  was  an altercation between the victim, and Kelly Anderson.  Punches were exchanged, and hair was pulled.   Stacey and Nicole Anderson both went to Kelly’s aid.   Both attacked the victim, seemingly with the purpose of making her let go of Kelly’s hair. Other  members  of  the  public  then  intervened  to  break  up  the  fight.     As  a consequence the Police shut down the bar and everyone dispersed.

[3]      Later that evening the victim was at home.  At 3am there was a knock on the door.  She thought it was a person who was staying with her so she answered it.  The four appellants were there.   The victim, who was naked, tried to shut the door to keep them out but was unsuccessful.   The appellants entered and the victim was assaulted.  The assaults involved punching and kicking the victim around her head and body.  During the altercation, the victim again grabbed Kelly Anderson’s hair, which led to both Kelly and Stacey Anderson kicking and punching the victim in the face.

[4]      It seems that Kelly and Stacey were the initial assaulters.  When the victim fell backwards onto the doorstep of the porch, the other two defendants, namely Nicole Anderson and Lyn Smith, also began to kick and punch the victim on her arms and legs.  The victim regained her feet and ran back into the house where she was pursued.  She was again knocked to the floor and whilst on the ground kicked and punched and stomped by the four defendants.  The victim’s head was grabbed by her hair and slammed repeatedly into the ground.  Eventually, apparently, believing the Police were on their way, the four appellants decamped.  Eventually when they left the victim rang 111, and was hospitalised overnight for observation.

[5]      The victim suffered extensive bruising to her face, body, arms and legs.  Both her eyes were severely blackened, and the surrounds are damaged.  The photographs indicate a person who has had a severe beating.  There are cuts to her legs which are

as a consequence of the footwear being worn by the assailants.   By their plea the appellants have each acknowledged an intention to cause the victim serious injury.

[6]      All  were  known  to  the  victim  although  they  did  not  have  personal relationships.   Kelly Anderson is a parent at the school where the victim teaches. Stacey Anderson was the victim’s hairdresser, and is currently in a relationship with a man who was formerly the victim’s fiancée.  Ms Smith is related to the victim’s former fiancée.  There is no connection between the victim and Nicole Anderson.

Various reports

(a)      Victim

[7]      The  victim  impact  statement  reveals  that  the  victim’s  body  has  largely healed.   There is some scarring on her thigh, and it seems as if she has required repeated testing of her kidney over the last two months before it has been cleared free of any injury.  The victim had also been suffering headaches which are reducing in frequency.

[8]      The victim continues to suffer low self esteem due to bald spots on her scalp where hair was ripped out.   She says as well as the appearance issue, it remains painful,  and  advises  that  there  is  uncertainty  as  to  whether  it  will  re-grow. Concerning emotional impact, the victim’s daughter who lives with her, is now scared to sleep at night and for the first time requires a light on.  Both the victim and her daughter obviously are experiencing a heightened sense of concern about the safety of where they live.

(b)      Lyn Smith

[9]      Ms Smith is 18 years old.  She still lives at home.  Ms Smith left school at 16 and has been employed in the same job since.   Ms Smith has two minor driving convictions.  An assessment done at the time of the pre-sentence report suggests that she has alcohol issues.  The report writer sees Ms Smith’s remorse as genuine.  It is

her impression that Ms Smith was influenced by the older participants.   Ms Smith was assessed as suitable for home detention, but there was concern over her willingness to comply with a non alcohol condition and it was noted that she had breached bail in that regards.  On file is a letter from Ms Smith which is written to the victim apologising for what happened on the night, acknowledging that it was stupid conduct.  Ms Smith indicates her shame for her conduct, and wishes she could take it back.

(c)      Stacey Anderson

[10]     Ms Anderson is 28 years old.  She is single with no dependants.  Her mother considers that her involvement in the offending was due to her being over protective of Kelly.  Ms Anderson is a qualified hairdresser who has owned her own salon for a year.  As a result of this offending, she has moved from Hawera and was at the time of her sentencing working in New Plymouth.   A manager was running her salon. Ms Anderson had no previous convictions.

[11]     Ms Anderson attributed the conflict between her and the victim to the fact that she was now dating the victim’s former fiancée.   In the pre-sentence report Ms Anderson expressed shock at the photographs and observed that she did not realise  that  it  was  that  bad.    She  felt  disgusted  with  what  she  had  done  and recognised that she should have known better.  Ms Anderson offered to pay $5,000 by way of reparation for emotional harm, something which was a joint offer on behalf of all accused.

[12]     The report writer sees alcohol as a major contributor, although Ms Anderson does not appear to accept this.   She has found early engagement with an anger management programme to be helpful, but was less enthusiastic about an alcohol programme.

(d)      Nicole Anderson

[13]     Ms Anderson is 20 years of age.  She left school in the sixth form and began work as an apprentice hairdresser.  She did this for two and a half years until she became pregnant.  Following that, and a period of looking after her young child, she returned to work part time.  She hopes to continue in this line of work on a full time basis  once  her  child  is  old  enough.    Ms Anderson  is  presently a  single  parent, although she shares responsibility for the child with the child’s father.

[14]     At  the time of  the pre-sentence report  a number  of  references  had  been received which had a common theme of describing Ms Anderson as hard working, honest  and  caring.    At  the  time  of  pre-sentence  report,  Ms Anderson  was  not accepting of the Summary of Facts.  She accepted that the assault had taken place, but allocated to herself a lesser role of following the others.  She provided the report writer with a letter of apology to the victim and expressed shock that she had acted as she had.  She was also very concerned about the impact it had had on her whole family.

[15]     The letter Ms Anderson wrote to the victim indicates, to me anyway, an insight into the offending and a commendable reluctance simply to blame alcohol. There is no attempt in the letter to draw back from what happened.  It is apparent from the references that the offending is out of character.  As with other members of the family, the assessments done suggest that alcohol use is a problem.   As with Stacey Anderson, Ms Anderson was not accepting of this proposition.   As for the others she was assessed as having a low risk of re-offending although the report writer has concerns over what will happen if alcohol use is not addressed.

(e)      Kelly Anderson

[16]     Ms Anderson is 26 years of age.  She has three children aged eight, two and one.  She is a solo parent and has no contact with either of the children’s fathers.

[17]     It is apparent from the pre-sentence report that Ms Anderson’s offending, and the consequences of it, has affected her own mental health.  She is depressed, and

has struggled to cope with the situation, but is now receiving counselling following some concern about her safety.

[18]     Ms Anderson  left  school  at  the  age  of  17  and  has  had  various  jobs  in administration.  They have been affected by the need to raise her children and her last employment was terminated as a result of this offending.   As with the other offenders, Ms Anderson displays genuine remorse for her conduct and the level of bewilderment that she could act as she did.  At the time of the pre-sentence report Ms Anderson was obviously also concerned by the situation that would result for her children should she be incarcerated.   Like other members of the family, the department testing suggests issues with alcohol, but not with other drugs.  Like the other appellants, there is an assessment of low risk of re-offending.  The report writer accepts  Ms Anderson’s  motivation  to  address  her  needs  and  it  appears  that Ms Anderson is more receptive than the others about the need for programmes to address both anger management and alcohol.   I have read Ms Anderson’s letter written to the victim.  To me it displays a genuine insight into the offending and to the damage done.   It displays true remorse and an awareness an apology will not remove the victim’s bad memories or resultant loss of security.

Sentencing remarks

[19]     The Judge briefly described the offending, referring to the more detailed account contained in the Summary of Facts.  The Judge noted that the accused had all indicated that the victim had attacked them first, but noted that they had pleaded guilty and were now accepting that their response went much too far.  His Honour noted that all the offenders were shocked when they saw the photographs of what they had done.  The Judge indicated that the Crown was pitching the starting point at between four and a half and five years.   The aggravating features noted were that there were four attackers on to one victim and there was violence directed at the head.   The Judge had some doubts over the Crown’s description of “extreme violence”, noting that while that might be so as regards the conduct, it was not reflected in actual injuries.  He noted the home invasion aspect, and that there was premeditation.

[20]     The Judge considered cases referred to him by counsel.  He concluded that it was a “rather merciless beating” that occurred over a reasonably prolonged period of time and concluded that a starting point of four and a half years imprisonment was appropriate.  Adjustments for either age or mental health were then made in relation to three of the appellants, and a general adjustment for the offer to make amends. Once those adjustments were made, a one third reduction to reflect the guilty plea was applied to each sentence.

[21]     The final sentences represent a total discount from the starting point of nearly

45% for three of the offenders, and 40% for Ms Stacey Anderson.

Appellants’ submissions

[22]     The sentences are challenged on the basis that the starting point of four years six months is too high, and that there was insufficient discount for mitigating factors. Included in that last submission is that there was insufficient recognition of previous good character and the willingness to undertake rehabilitation.   On behalf of the appellants Mrs Marriner submits that sentences of home detention should have been imposed, these being the recommended sentence in their pre-sentence reports.

[23]     Addressing first the issue of the starting points, it is submitted that the Judge wrongly concluded that there was extreme violence.  Mrs Marriner submits that the violence  was  kicking,  punching  and  pulling  hair  which,  although  not  to  be minimised, does not fall in the highest bracket of violence.  She makes a submission that there is a risk of double counting violence with the number of attackers.  Not surprisingly, given the complaint about extreme violence, Mrs Marriner takes issue with the label of “merciless beating over a prolonged period”.   She said that it overstates the case, and there was no evidence as to how long the assault occurred.  It is noted that the charges are laid under s 189(1) rather than s 188(1), and that no weapons were used.  Reference is made to the observation of Cooper J in Moana-

Wharenui,[1]where  it  is noted  that  for  charges  under  other  sections,  an  adjusted

starting point must have been intended.

[1] R v Moana-Wharenui HC Hamilton CRI-2008-419-66, 3 September 2008.

[24]     It is also submitted that there are dangers in double counting if one identifies injuries and multiple offenders as separate aggravating factors.   The submission (which I reject and do not discuss further) is that more injuries are inherent in multiple attackers so it is really the same thing.   Hence the double counting submission.

[25]     Concerning the mitigating factors, it is submitted the Judge failed to give express  credit  for  the  appellants’  previous  good  character  and  rehabilitation prospects.  Further, individual factors mean that more credit should have been given. In relation to Ms Stacey Anderson, the impact on her business is noted.  In relation to   Ms Nicole Anderson,   Mrs Marriner   emphasises   her   age,   her   child   care responsibilities and her good prospects.   In relation to Ms Smith, again her age is emphasised with the submission that a reduction of three months was insufficient. Finally as regards Ms Kelly Anderson, the impact on her family is noted as well as the mental health issues she was experiencing.

Crown submissions

[26]     Mr Webber’s typically focussed submissions are reflected in the decision.

Decision

(a)      Starting point

[27]     Various  authorities  were  placed  before  the  Court.    There  was  common ground between counsel that no case was particularly similar.   Likewise it was agreed that whilst Taueki[2]provided guidance, there needed to be adjustment to reflect the lesser charge involved here.  It is to be noted, however, that of the quartet of charges involved in ss 188(1), 188(2), 189(1) and 189(2), the present charge under s 189(1) is the closest to the Taueki charge in terms of maximum penalty.

[2] R v Taueki [2005] 3 NZLR 372 (CA).

[28]     As  is  well  known,  Taueki  identified  aggravating  factors  which  provide guidance as to where on the spectrum a case might fall.  Mr Webber suggested at least four were present here – multiple attrackers, attack to head, home invasion and pre-meditation.  He did not abandon a fifth, extreme violence, but accepted (as did the  sentencing  Judge)  that  the  comparatively  lower  level  of  injury  reduced  the impact.

[29]     The appellants’ main point on this issue is that viewed as a whole the incident is not that bad that a starting point of four and a half was merited (which on appeal must mean that it was not available).   In relation to this point Mr Webber had properly referred me to a relevant observation of Asher J: [3]

[3] R v Vagaia HC AK CRI 2006-092-16228, 24 April 2008 at [26].

Whilst the present offending involved three aggravating features, it is not appropriate to use some formulaic approach in deciding on the appropriate band.

In that case whilst the presence of three aggravating factors suggested band two, the correct assessment was band one.

[30]     I very much agree with the observation, but do not consider it is applicable to these facts.  The aggravating factors point to a category two assessment, and that is very much the correct outcome.  The victim answered the door to her home at 3am. She was naked.   She tried to block the appellants out, and then she was attacked. Over the course of the assault four people attacked her.   There were punches and kicks to all parts of her body, and hair was ripped from her head.   Her head was banged into the floor.

[31]     Mrs Marriner took issue with some of the Judge’s labels such as prolonged, extreme and merciless.   One can always debate those things, but in my view it is clear this was a serious group attack on a woman in her home at 3am.  It will have consequences for her for a long time, and it is rightly seen as falling in Taueki two.

[32]     As for the adjustment to starting points to reflect the lesser s 189(1) charge, the Taueki band for s 188(1) is 5 to 10 years.  Given that, I do not see that a starting point of four and a half years for this offending can be said to be unavailable when there are several aggravating features, and the charge carries a 10 year maximum. The appellants have admitted through their plea that they intended to cause the victim serious harm, and I do not consider four and a half years was at the top of the range, let alone excessive.

[33]     As noted, none of the cases is particularly on point but the higher starting point, for the same offence, in Paton[4]  and the slightly lower point for the attack in Hocking[5], which was also s 189(1) but not a home invasion, seem consistent.

Mitigating factors

[4] R v Paton [2009] NZCA 155.

[5] R v Hocking CA 241/06, 18 September 2006.

[34]     There is no doubt each appellant presented a strong “package” with several factors in their favour.  I accept that they are remorseful for what they have done.  A commitment to address the underlying causes is less apparent, and indeed absent in the pre-sentence reports (other than Ms Kelly Anderson).  Mrs Marriner submits that, subsequent to those reports and following alcohol related bail breaches in June, the appellants all gained greater insight into the nexus between alcohol and their problems.  That will be of great benefit to them, but the commitment has yet to be demonstrated.

[35]     What Asher J said about the Taueki aggravating factors in my view applies equally to mitigating factors.  Mrs Marriner focussed on the absence of any express credit for past good character and rehabilitative efforts, but these factors need not all be accorded some express value.  Here three of the appellants have received a 45% deduction,  with  40%  for  Ms Stacey Anderson.    The  issue  is  whether  that  is  so insufficient that it should be disturbed on appeal.   I admit to difficulties with the proposition that 45% could ever be manifestly inadequate as a deduction, save perhaps for an extreme case.   I am, however, sure it is not manifestly inadequate here.

[36]     Mr Webber accepted, and I agree, another Judge may have reached 50%, but this Judge certainly was not obligated to.  Because I accept that the starting point was readily  available,  I  also  note  that  even  50%  would  not  have  opened  up  the non-custodial options the appellants seek.

Conclusion

[37]     Mrs Marriner has worked assiduously for her clients, and has brought the appeal on quickly.  All that could be said, she has said.  However, I do not consider

it has been shown the Judge erred and so the appeal must be dismissed.

Simon France J

Solicitors:

K M Marriner, KM Legal, PO Box 110, Hawera, email: Kelly[email protected]
J Webber, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]