The Queen v Joanna Mary Courtney
[2000] NZCA 366
•6 December 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 379/00 |
THE QUEEN
V
JOANNA MARY COURTNEY
| Hearing: | 5 December 2000 |
| Coram: | Keith J Robertson J Goddard J |
| Appearances: | M H McIvor for the Appellant J C Pike for the Crown |
| Judgment: | 6 December 2000 |
| JUDGMENT OF THE COURT DELIVERED BY GODDARD J |
On 30 June 2000 the appellant was sentenced to 14 months imprisonment on eight charges of wilful damage. In addition, she was ordered to serve a term of 18 months imprisonment, activated from a sentence of two years imprisonment imposed on 11 February 1999 and suspended for two years. The total sentence imposed therefore one of two years and eight months imprisonment. She now appeals against that total sentence of imprisonment on the grounds that both of its components are manifestly excessive in all the circumstances.
Background Facts
All of the charges arise from two episodes of extreme anti-social behaviour by the appellant. The first episode of offending, for which she received a sentence of two years imprisonment suspended for two years, comprising arson, attempted arson, wilful damage, theft, intentional damage, possession of a weapon and some other minor charges. Judge Rea on sentencing the appellant aptly described this offending as “rather chilling”.
The arson charge involved an attack on the home of a former member of the Police. Although the home was left standing the interior was destroyed. Another property attacked by the appellant was a church. She has shown no remorse for any of her actions but tends to blame other people for her behaviour. The pre-sentence report describes her behaviour as destructive and dysfunctional and the appellant as devoid of understanding of the impact of her crimes on others. The imposition of a suspended sentence by Judge Rea was clearly lenient for the crimes she had committed and was designed to maximise her chances of rehabilitation. It was coupled with a sentence of 10 months periodic detention and two years supervision with conditions that the appellant reside with an uncle and aunt in Paraparaumu and attend school there. She was also prohibited from entering either Hamilton or Mount Maunganui without the consent of her probation officer.
The second episode of offending was also targeted at the Police. The appellant has apparently developed an animus towards the Police as a result of some perceived grievance. The facts of that offending were traversed by Judge Callander on sentence as follows:
… on 8 February of this year in the company of your 16 year old twin brother and a 14 year old friend you tagged the various properties that are the subject of the complaint. You took three cans of blue spray paint. You drove to six Police addresses around the city. Two of those were private Police Officers’ homes. You had covered your head with a hood. You encouraged your younger accomplices to do the same. You then sprayed derogatory slogans directed at the Police on the buildings, on two cars, a fence, concrete walls, a house and a driveway. The first targeted address was that of a Constable. The tagging was directly personally at him with crude graffiti. One of the comments was “pig, you’re mine”.
I have today been provided with photographs. Those are mainly photographs of the targets of your graffiti and it shows targeting in very bold lettering of a crude type directed principally at the Police. The word “pigs” feature with some obvious clarity on the walls of the houses and fences. There were abbreviations used in some cases. I note for instance on the Police patrol car large abbreviates “FTP: appearing several times. It appears on other targets such as the front of the West Hamilton Policing Centre and on the pavement in several places.
Fortunately a member of the public saw your group running from the West Hamilton Police Station and you were consequently apprehended by the Police on 9 February, the next day.
On the basis of the above facts Judge Callander took the view that the appellant had been the “prime mover” in the offending. As the oldest member of the group she “clearly lead the pack”, comprising her twin brothers and a younger friend, into the offending and that was an aggravating feature. The Judge described the appellant’s motives as being clearly to harass and target the Police in a “grossly unjustifiable and frightening way”. He found the offending to have been premeditated and planned and therefore requiring a deterrent sentence.
The appellant sought on appeal to deny having herself tagged the properties whilst nevertheless admitting that she had driven her co-offenders to each of the scenes knowing what they were going to do. In respect of the West Hamilton Police Station offence, she contended that the evidence established her as sitting in the car while her co-offenders tagged the building. Her attempt to minimise her own involvement in this way has the unfortunate effect of seeking to cast greater blame on her younger siblings and friend. That is an unattractive feature. In any case, the appellant’s responsibility as the driver of the vehicle and as a party to the offending fully justified the approach taken by Judge Callander. Having regard to the recidivist aspect of her offending, namely that it was property-damaging and targeted dominantly against the Police, the Judge found himself unable to regard either the offending or the appellant’s role in it as trivial.
Taking into account the fact that the appellant had successfully completed her sentence of 10 months periodic detention, the Judge nevertheless noted that the offending had been committed halfway through the period of suspension of a current sentence and period of supervision, and thus constituted offending committed whilst the appellant was subject to a community based sentence. The Judge found that of itself required a deterrent approach.
The Sentence Computation
Determining that a total sentence of two years eight months imprisonment was appropriate for the following reason, Judge Callander said:
… having weighed and assessed the figures and the facts and the submissions that have been presented to me, the two years sentence imposed on 11 February is now activated. In terms of s21A(4) of the Criminal Justice Act I am of the opinion that it would be unjust to order that to take effect for the full two years. That is because you served the 10 months periodic detention ordered as the actual punitive sanction. The February 1999 sentence will now take effect with a lesser term of imprisonment of 18 months.
I now turn to the present offending. For the reasons I have already mentioned, in my view any sentence on today’s offending should be cumulative. That means it should be added to the 18 months sentence that was imposed upon you last year. That is because of the special circumstances of your offending and I am quite clear that any other approach would be clearly inadequate or inappropriate. I am also clearly satisfied by the Crown that the safety of the community is a real factor in your sentencing and that the only appropriate and prudent response of the community is a further term of imprisonment. It will be as short as is consonant with the safety of the community.
Given the number of charges and the grave background factors I have already mentioned, and taking into account your age, in my view the starting point from a totality point of view should be 18 months imprisonment. This will be reduced to 14 months imprisonment for the guilty pleas you entered to these matters. As a consequence you will serve the suspended sentence of 18 months plus an additional 14 months, rendering you a prisoner for a total period of two years and eight months. Any future offending of this sort will be met by an increasingly punitive term of imprisonment.
Discussion
The first limb of the appeal is directed to the activation of 18 months of the two year suspended sentence. The second ground is that the 14 month sentence imposed for the wilful damage charges is manifestly excessive.
It is convenient to dispose of the second ground first. The maximum penalty on each charge is five years imprisonment. It cannot be said that a starting point of 18 months imprisonment is excessive in the circumstances and when viewed against the maximum. That starting point took full account of the appellant’s youthfulness. The sentence was then discounted by four months to take account of her guilty pleas. The fact that this was further offending which again targeted the Police and committed whilst an earlier and extremely lenient sentence was still in force required a firm but not crushing response from the Court. Furthermore, the appellant has other convictions which are also of a disturbing anti-social nature. We therefore find nothing in this ground of appeal.
Turning to the first ground of appeal, we are satisfied this does have substance. At the time the appellant committed the present offending, she had satisfactorily completed her sentence of 10 months periodic detention. That sentence related to offending which had taken place more than 12 months prior to the sentencing date, namely in February 1998. Further, one year of her suspended sentence of imprisonment had already expired. To give credit for only six months of that suspended sentence underrates the efforts the appellant appears to have made during her year in Paraparaumu and the satisfactory completion of her periodic detention. Whilst the amount of a suspended sentence which is properly to be activated in any case does not depend upon mere mathematical calculation, greater allowance could have been made in the appellant’s case so as to reinforce the positive efforts she has made. In the circumstances, we are of the view that activation of 18 months of the two year suspended sentence was too great. In reaching this view we are not overlooking the extremely lenient nature of that suspended sentence nor minimising the gravity of the appellant involving herself in further offending during the period of suspension. Nevertheless we are satisfied that nine months is a sufficient period to activate in addition to the entirely appropriate sentence of 14 months imprisonment for the eight charges of wilful damage.
Judgment
The appeal is allowed. The order that the appellant serve 18 months of her suspended sentence of two years imprisonment is quashed and in lieu she is to serve nine months of that sentence plus 14 months imprisonment for the eight charges of wilful damage.
Solicitors:
M H McIvor, Hamilton for the Appellant
Crown Law Office, Wellington for the Crown
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