The Queen v Hall

[2006] NZCA 11

IN THE COURT OF APPEAL OF NEW ZEALAND

CA296/05
CA308/05

THE QUEEN

v

CHAZZ HAYDEN HALL
SHARON ANN TONKIN

Hearing:14 February 2006

Court:O'Regan, Goddard and Chisholm JJ

Counsel:S Jefferson for Hall

AJS Snell for Tonkin
KBF Hastie for Crown

Judgment:28 February 2006 

JUDGMENT OF THE COURT

ATHE APPEAL BY CHAZZ HAYDEN HALL IS ALLOWED.  THE SENTENCE OF SIX AND A HALF YEARS IMPRISONMENT WITH A MINIMUM PERIOD OF IMPRISONMENT OF THREE YEARS IS QUASHED AND REPLACED WITH A SENTENCE OF FIVE AND A HALF YEARS IMPRISONMENT WITH A MINIMUM PERIOD OF IMPRISONMENT OF TWO AND A HALF YEARS.

B        The appeal by Sharon Ann Tonkin is dismissed. 

____________________________________________________________________

REASONS    

(Given by Chisholm J)

[1]       Having pleaded guilty to charges of kidnapping (s 209(1)(a) of the Crimes Act 1961), aggravated wounding (s 191(1)(a)) and aggravated robbery (s 232(1)(a)) the appellants were sentenced in the District Court at Napier on 28 July 2005.  Ms Tonkin was sentenced to seven and a half years imprisonment with a minimum non parole period of four years and Mr Hall was sentenced to six and a half years imprisonment with a minimum non parole period of three years.  They have appealed against their sentences and against the imposition of a minimum non parole period. 

Facts

[2]       For eight years Ms Tonkin and the victim had been in a relationship which ended in June 2004 following which Ms Tonkin apparently stalked and harassed the victim.  After Ms Tonkin and Mr Hall, who was aged 18 years at the time, met in a psychiatric unit during March 2005 they formulated a plan to abduct the victim from his home, take him into the Kaweka Ranges, and leave him there.

[3]       On 7 April 2005 Ms Tonkin purchased a shotgun while Mr Hall waited down the road.  At about 1am on 13 April Mr Hall went to the victim’s address and cut the lock to the back gate so that they could gain easy access to the property.  Later that night both appellants returned to the victim’s address, entered, and waited for the victim.  Mr Hall was armed with a loaded shotgun. 

[4]       When the victim returned home at about 7am he was confronted by Mr Hall who was dressed in dark clothing and was wearing a balaclava.  Mr Hall pointed the shotgun at the victim who lunged towards the shotgun and took hold of the barrel.  A struggle ensued and the shotgun was discharged, but fortunately no-one was injured.  Ms Tonkin then pulled a knife out of Mr Hall’s pocket and the victim suffered a severe slash wound to his hand when he grabbed the knife.  Ultimately the victim was subdued at gun point, bound and gagged.  

[5]       The victim was then taken out to his own car and told to get into the back seat, which he did.  A duvet was placed over him and Mr Hall then drove the vehicle up to Taihape Road where they met with Ms Tonkin who had driven her own car.  At that point Mr Hall transferred the shotgun and a laptop computer (which had been stolen from the victim’s address) into Ms Tonkin’s vehicle and the appellants then swapped vehicles. 

[6]       Ms Tonkin drove the victim further into the Kaweka Ranges.  Unbeknown to Ms Tonkin the victim had managed to free his hands and when Ms Tonkin stopped the vehicle he jumped up, grabbed the knife from the passenger’s seat, and ran after Ms Tonkin who had left the vehicle.  He then stabbed Ms Tonkin four times before running off into the bush in which he wandered for approximately seven hours in very cold conditions wearing only his underpants.  At approximately 3pm he found a road and enlisted help. 

[7]       The victim was airlifted to hospital suffering from hypothermia, a fractured vertebrae from falling down a cliff as he was running from Ms Tonkin, severe lacerations to his hands, superficial cuts to his back, stomach, legs and feet, and severe shock.  He underwent surgery in relation to severed tendons and remained in hospital for six weeks.

[8]       The appellants were jointly charged with the offences mentioned earlier.  Each of these offences carries a maximum term of imprisonment of 14 years. 

The Appellants

[9]       When she was sentenced Ms Tonkin was 38 years of age.  She had been admitted to the psychiatric ward where she met Mr Hall after she had attempted suicide.  Mr Hall subsequently stayed with her in Napier.  Although she told the probation officer that she purchased the gun for use on herself, she acknowledged that the idea of abducting the victim arose before the gun was purchased.  The probation officer reported that Ms Tonkin had consistently downplayed her role in the offending but that she appeared to be extremely remorseful and that the risk of re-offending was low.  Ms Tonkin does not have any relevant previous convictions. 

[10]     At the time of sentencing Mr Hall was 18 years of age.  Following an attempt on his life his family had arranged for him to be admitted to the psychiatric unit because of their concern about his deteriorating mental health.  He expressed remorse to the probation officer who considered that the risk of re-offending is low.  The probation officer described him as a vulnerable young man who was more open to influence than most.  Apart from a conviction for possession of an offensive weapon in 2004 he does not have any relevant convictions.  A psychiatric report prepared for the sentencing Judge described Mr Hall as: 

… a vulnerable, young, immature man who displayed signs of mental ill health prior to the alleged offences.  Mr Hall has a recent pattern of self harming and homicidal expressions, which occurred in the context of a relationship break up. 

The psychiatrist considered that Mr Hall’s particular cluster of difficulties was caused principally by his personality rather than by a superimposed mental illness.  

Sentencing In The District Court

[11]     Having outlined the facts and observed that the consequences to the victim had been “horrendous”, the Judge turned his attention to the appropriate starting point taking into account the totality of the offending.  He concluded that he should follow R v Taueki & Ors CA384/04, CA417/04, CA434/04 30 June 2005 on the basis that in paragraph [9] of its decision the Court of Appeal had indicated that the guidelines formulated in that decision would apply by analogy to s 191(1) of the Crimes Act and to other offences involving the infliction of serious violence. 

[12]     The Judge concluded that the offending fell within the third band described in Taueki which indicated a sentencing range of between nine and 14 years imprisonment.  In arriving at that conclusion the Judge highlighted seven features of the offending:  extreme violence, premeditation, serious injury, use of weapons; use of violence to facilitate the kidnapping, multiple attackers and home invasion.  He decided that the appropriate starting point was ten years imprisonment. 

[13]     Aggravating and mitigating factors relating to Ms Tonkin were then considered.  The following aggravating features were mentioned:  unlawful entry into the victim’s house;  injuries to the victim;  premeditation;  and the use of weapons.  Mitigation features accepted by the Judge were:  absence of previous convictions for violent offending;  early guilty plea;  full co-operation with the police;  genuine remorse;  depression, which the Judge accepted resulted from the ending of the relationship and the fact that Ms Tonkin “simply could not let go”;  and the low risk of re-offending..  However, judging from his comments the Judge was not impressed by the suggestion that the firearm was purchased by Ms Tonkin for self-harm and that she only intended to humiliate the victim. 

[14]     In relation to Mr Hall similar aggravating features were noted.  On the mitigation side the Judge took into account his age;  full co-operation with the police;  very early guilty plea;  remorse;  his psychiatric condition;  and his vulnerability, with the last two factors being identified as particularly important.  The Judge commented that Mr Hall was “clearly able to be influenced by [Ms Tonkin] into making what he now regards as a poor decision” and that the motivation behind the offending was largely of Ms Tonkin’s making. He noted, however, that Mr Hall was a willing participant.

[15]     After taking into account mitigating factors the Judge arrived at a sentence of seven and a half years imprisonment for Ms Tonkin and six and a half years for Mr Hall.  A minimum period of imprisonment was imposed in each case because the Judge was satisfied that the usual one third period would be insufficient for any of the purposes mentioned in s 86 of the Sentencing Act 2002.  He also observed “the victims need to know that you are out of their lives for a set term so that they can get on and re-establish their lives”. 

The Appeals

[16]     Ms Tonkin’s appeal relies on three primary grounds: 

(a)The Judge erred in principle by using the aggravated wounding charge as the lead charge and by applying R v Taueki & Ors.

(b)The sentence of seven and a half years imprisonment is manifestly excessive.

(c)The minimum non parole period was wrong in principle.  

Each of these grounds was developed in detail by Mr Snell. 

[17]     In relation to the first ground Mr Snell argued that the aggravated wounding charge could not have been the lead charge because by its very wording it was subsidiary to the kidnapping charge.  Under those circumstances the Judge should have applied R v Ratana CA357/90 and CA358/90 25 February 1991, the leading kidnapping authority.  Mr Snell’s alternative submission was that even if the Judge was entitled to sentence on the basis that the aggravated wounding charge was the lead charge, he had fallen into error by applying R v Taueki which had not been decided at the time the offending occurred.  He noted that at the time of the offending the leading aggravated wounding authority was R v Hereora [1986] 2 NZLR 164.

[18]     Mr Snell’s argument in relation to the second ground of appeal focussed on R v Wharton CA374/02 27 March 2003), R v Oran CA184/02 13 February 2003, R v WN HC DN T4756/04 5 November 2004 and R v Walsh CA281/04 19 May 2005.  All of these cases involved the kidnapping of a former partner and Mr Snell emphasised that in each case a sentence significantly below seven and a half years imprisonment had been imposed.  He submitted that the starting point in this case should have been within the range of five to seven years. 

[19]     As to the third ground of appeal, Mr Snell argued that there was no need to hold the offender accountable, denounce her conduct, or protect the community, because she had acknowledged responsibility by pleading guilty and the risk of re-offending was low.  He also maintained that the Judge had fallen into error by taking the needs of the victims into account.

[20]     Mr Hall alleges that the sentence imposed on him was manifestly excessive because:

(a)it did not sufficiently distinguish between the degree of involvement of the two appellants.

(b)there was insufficient recognition of mitigating factors including the appellant’s age. 

It is also alleged that the imposition of the minimum non parole period was wrong in principle. 

[21]     As to the allegation that the sentence was manifestly excessive, Mr Jefferson placed particular reliance on a number of factors:  Ms Tonkin had taken advantage of Mr Hall’s psychological condition and vulnerability;  she had manipulated him;  the age disparity;  Ms Tonkin had planned and directed the offending and had purchased the shotgun;  and the strong mitigating factors applying to Mr Hall, especially his age.  Counsel submitted that in all the circumstances a differential of one year was insufficient. 

[22]     Finally, Mr Jefferson advanced two primary reasons to support his submission that the minimum non parole period was wrong in principle:  first, by taking into account the victim’s needs the Judge had taken into account an irrelevant consideration;  second, insufficient weight had been given to Mr Hall’s age, his psychiatric condition, the absence of an extensive list of previous convictions, and the prospects of rehabilitation. 

Discussion

[23]     The aggravated wounding charge against the appellants alleges that, with intent to facilitate the commission of a crime, they rendered the victim incapable of resistance.  Given the framing of the charge we accept that at least in a technical sense the aggravated wounding charge could not be properly regarded as the lead charge because it is ancillary to the kidnapping charge.  We also accept that it is inherent in the charge that the Crown is not alleging that the aggravated wounding was intentional.  Thus we agree with Mr Snell that R v Taueki was not the primary sentencing authority.  Having reached that conclusion it is unnecessary for us to consider Mr Snell’s alternative submission that the Judge should not have relied on R v Taueki because it had not been decided at the time the offending occurred. 

[24]     On the other hand, we agree with the Judge that when arriving at an appropriate starting point it was necessary to take into account the totality of the offending.  Whether or not the kidnapping offence is regarded as the lead charge, all the circumstances need to be taken into account.  As already noted each of the charges carries a maximum sentence of 14 years imprisonment. 

[25]     Once the totality of the offending is taken into account it becomes clear that this offending is towards the most serious end of the spectrum.  It involved considerable premeditation, including the purchase of a firearm, by two people acting in concert.  It also involved a home invasion in which the offenders were armed with a loaded firearm and a knife.  By the time the victim was confronted Mr Hall was wearing a balaclava.  The discharge of the firearm and the use of the knife which resulted in injuries to the victim’s hand were an entirely predictable consequence of the offenders’ actions.  After the victim had been subdued he was bound, gagged and driven into the Kaweka Ranges and his exposure to the elements in the bush was also a predictable, and probably intended, consequence of the offenders’ actions. 

[26]     Given this combination of factors, we are satisfied that the Judge’s starting point of ten years imprisonment was within the range available to him, albeit at the top of the range.  In reaching that conclusion we have, of course, considered the authorities cited by Mr Snell.  But as this Court noted in R v Wharton at [11], there can be an infinite variety of circumstances which underlie the crime of kidnapping and in this case there were the additional aggravating features giving rise to the other two charges.  Although the starting points in the authorities cited by Mr Snell are considerably lower than the starting point under consideration, we are satisfied that none of those cases involved overall criminality even remotely approaching that of the appellants in this case.

[27]     There was no serious challenge to the 25% discount for mitigating factors allowed by the Judge in the case of Ms Tonkin and we accept that in arriving at the actual sentence for Ms Tonkin the Judge gave proper consideration to that factor.  It follows that Ms Tonkin has failed to establish that the sentence of seven and a half years was manifestly excessive. 

[28]     We have also concluded that she has failed to establish that the four year minimum non parole period was wrong in principle.  While we accept that for the purposes of s 86 of the Sentencing Act the Judge’s reference to the interests of the victim was an irrelevant consideration, the imposition of that minimum non parole period can be nevertheless easily justified by the extremely serious nature of this offending and the need to deter other persons from the same or similar offending in terms of s 86(2)(c). 

[29]     Now we turn to Mr Hall’s appeal.  The key issue is whether the additional discount of 12 months to reflect Mr Hall’s particular mitigating factors was sufficient.  In other words, this is primarily a disparity issue.  As indicated by this Court in R v Rameka [1973] 2 NZLR 592 at 593:

What has to be shown is that the appellant has received too long a sentence … In each case the whole of the surrounding circumstances and the situation of the offender have to be taken into account …

The Court went on to say that it will in special cases have regard to disparity as a ground of appeal against sentence, but only when the disparity appears unjustifiable and is gross.  In R v Lawson [1982] 2 NZLR 219 McMillan J at 223 put the matter on the basis that the test is whether a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would think that something had gone wrong with the administration of justice.

[30]     Applying those principles we have reached the conclusion that in all the circumstances the additional discount of one year in the case of Mr Hall is grossly inadequate.  The Judge sentenced Mr Hall on the basis that he had acted under the influence of Ms Tonkin.  Once Mr Hall’s age and his psychiatric condition are also taken into account it becomes apparent that a significant differential is required.  In our view there should have been an additional discount of two years.  It follows that Mr Hall’s appeal must be allowed and his sentence reduced to five and a half years imprisonment. 

[31]     For reasons already given with reference to Ms Tonkin’s appeal we do not accept that it was wrong in principle for the Judge to impose a minimum non parole period in this case.  In reaching that conclusion we have taken into account both Mr Hall’s age and his psychiatric condition.  However, it will be necessary to reduce the minimum non parole period in Mr Hall’s case to reflect the fact that his sentence of imprisonment has been reduced. 

Outcome

[32]     Ms Tonkin’s appeal is dismissed.  Mr Hall’s appeal is allowed.  His sentence of six and a half years imprisonment with a minimum non parole period of three years is quashed and replaced with a sentence of five and a half years imprisonment with a minimum non parole period of two and a half years.

Solicitors:
Crown Law Office, Wellington