Sudol v R - [2011] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND

CA118/2011
[2011] NZCA 189

BETWEEN JESSICA ANNE SUDOL
Appellant

AND THE QUEEN
Respondent

Hearing: 9 May 2011

Court: Chambers, Venning and Courtney JJ

Counsel: A Stevens for Appellant
K A L Bicknell for Respondent

Judgment: 16 May 2011 at 11 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of seven months’ imprisonment on the charge of assault with a weapon is quashed and a sentence of four months’ imprisonment on that charge is substituted. All other sentences are confirmed. The total sentence becomes 10 months’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)

Introduction

On 1 February 2011, having pleaded guilty to assault with a weapon, two breaches of intensive supervision, attempting to escape from custody and intentional damage, the appellant was sentenced by Judge O’Driscoll in the District Court at Dunedin. The Judge imposed a total term of imprisonment of 13 months.[1] The appellant’s current release date is 22 June 2011.

Background

[1] R v Sudol DC Dunedin CRI-2010-012-752, 1 February 2011.

Although the appellant is only 24 years old she already has a substantial list of convictions. She has in excess of 60 convictions, including two previous convictions for common assault, and convictions for assault with intent to rob and aggravated robbery. She has been sentenced to imprisonment before.
On 12 February 2010 the appellant had been at home drinking. She and an associate went to a massage parlour where she had formerly worked. She was asked to leave the premises. The appellant remonstrated with the receptionist, who accompanied her and the associate outside the building. In the course of the confrontation the appellant punched the receptionist on the left hand side of the face just below her left eyebrow. The blow caused a small wound that started to bleed. At the same time the appellant removed a pocket knife from her clothing, extended the blade and waved it in the direction of the victim.
The appellant was originally charged with wounding with intent to cause grievous bodily harm. Mrs Stevens, who has acted for the appellant throughout, sought to have that charge reduced. Ultimately an amended indictment was presented charging wounding with intent to injure and, in the alternative, assault using a knife as a weapon. When the amended indictment was presented to the Court on 30 September 2010 the appellant pleaded guilty to the lesser charge.
At the time she committed this offence in February 2010 the appellant was subject to a sentence of intensive supervision. She had earlier breached that sentence on two occasions, the first when she failed to report to her probation officer on 17 November 2009, and the second when she failed to attend a psychologist’s appointment on 19 January 2010.
When the appellant appeared in Court on 15 February on the wounding and breach of supervision charges she was remanded in custody. Despite that she stepped out of the dock, into the courtroom, and attempted to leave…

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 Sudol v R

Details

AGLC: Sudol v R [2011] NZCA 189
Case: [2011] NZCA 189
Decision Date: 16 May 2011

CaseChat Overview and Summary

In the case of Sudol v R, the appellant, Jessica Anne Sudol, challenged the sentence imposed by the District Court at Dunedin. Sudol had pleaded guilty to assault with a weapon, two breaches of intensive supervision, attempting to escape from custody, and intentional damage. The District Court sentenced her to a total term of imprisonment of 13 months. Sudol appealed against the sentence, arguing that the court had erred in imposing a sentence of imprisonment instead of community detention. The Court of Appeal considered the appellant's extensive criminal history, previous violent offending, and breaches of intensive supervision and court orders, but also took into account the time spent on electronically monitored bail. The Court of Appeal found that the overall sentence was manifestly excessive, particularly given the lengthy period the appellant had spent on e-bail. The sentence of seven months’ imprisonment on the charge of assault with a weapon was reduced to four months’ imprisonment, resulting in a total sentence of 10 months’ imprisonment. The Court of Appeal allowed the appeal, quashed the original sentence, and substituted a sentence of four months’ imprisonment on the charge of assault with a weapon, while confirming all other sentences.

Orders