The Queen v Patricia Mahutoto

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 342/00

THE QUEEN

PATRICIA MAHUTOTO

Hearing:	29 November 2000
Coram:	Gault J McGrath J Penlington J
Appearances:	K Ryan QC for Appellant
MA Treleaven for Respondent
Judgment:	13 December 2000

JUDGMENT OF THE COURT DELIVERED BY PENLINGTON J

INTRODUCTION

This is an appeal against conviction and a sentence of 16 years imprisonment.
The appellant is a woman aged 53 years.
The prosecution arose out of the home invasion of a flat at 2/5 Mon Desir Place, Manurewa in the early hours of the morning of Saturday, 23 October 1999. At the time of the attack three persons lived at that address; Robert Rogers (Rogers), his partner, Lorraine McEwan (Lorraine) and her son by an earlier relationship, Rodney McEwan (Rodney). Rogers and Lorraine were in their 50s. Rodney was aged 34 years.
The Crown case was that a home invasion was carried out by four persons, Christopher Hereora (Hereora), Peter Matehaere (Matehaere), Jay Wallace (Wallace) and Illya Monty Waipouri -also known as Mitch Waipouri - (Waipouri) and that while the appellant, the divorced wife of Rogers, did not physically participate in the home invasion, she was the instigator and procurer of it, as a contract hit which was motivated by revenge and jealousy.
As the result of the home invasion, all three occupants of the flat were severely injured, especially Rogers.
On 5 May 2000 Waipouri pleaded guilty to one count of aggravated burglary, one count of aggravated robbery and two counts of causing grievous bodily harm with intent. The sentencing Judge took a starting point of 16 years and after an allowance of 3 years for the pleas of guilty, he imposed a sentence of 13 years imprisonment. The appellant, Hereora, Matehaere and Wallace each pleaded not guilty to one count of aggravated burglary, one count of aggravated robbery of Rogers, one count of causing grievous bodily harm with intent in respect of Rogers, and one count of causing grievous bodily harm with intent in respect of Lorraine.
At the conclusion of the Crown case, Matehaere and Wallace successfully applied for discharges under s.347 of the Crimes Act 1961 on all counts. The trial proceeded against the appellant and Hereora. The jury found both of them guilty on the counts of aggravated burglary and causing grievous bodily harm with intent in respect of Rogers. They were acquitted on the other two counts. On 1 September 2000, Hereora was sentenced to 14 years imprisonment on each count to be served concurrently, and the appellant was sentenced to 16 years imprisonment on each count, also to be served concurrently.
The appellant now appeals against both conviction and sentence.
The only ground of appeal against conviction which was pursued by the appellant was that the cumulative effect of a number of matters, each being said to be prejudicial, caused a miscarriage of justice.
Before the trial there was an unsuccessful challenge by the appellant to the admissibility of some hearsay evidence from two witnesses, Boynton and Ashworth, on the grounds that it did not satisfy the threshold requirements for admissibility under the party and conspiracy exception to the hearsay rule. See R v Humphries [1982] 1 NZLR 353, R v Buckton [1985] 2 NZLR 257, R v Uea (1989) 4 CRNZ 703, R v Crowe [1996] 3 NZLR 415, R v Tauhore [1996] 2 NZLR 641, R v Harris [1998] 1 NZLR 405. The rule states that the acts and/or declarations of a co-conspirator or a party to the offence may be admitted for the purposes of establishing the truth of an express or implied assertion contained in them against each and every co-conspirator or party to the offence, provided that (i) such acts and/or declarations were committed in furtherance of the conspiracy or joint offence; and (ii) there is independent evidence which links the co-conspirator or party to the offence, to the conspiracy or joint offence.
The appellant in his notice of appeal attacked the pre-trial ruling. That ground of appeal was however very properly abandoned at the hearing of the appeal having regard to the established authority.

BACKGROUND

Before considering the arguments of counsel, we set out the background.
The appellant had had a previous marriage and a previous relationship. She had two daughters, Denise and Marilyn. In the late 1980s the appellant became friendly with Rogers. They married in 1990. The matrimonial home was 4 Ririno Place which earlier had been acquired by the appellant and her partner. That relationship had ended with his death. Ririno Place was fully furnished. It was physically proximate to 2/5 Mon Desir Place.
Initially, the appellant's marriage to Rogers was a happy one. It then ran into difficulties. About 1995 the appellant went to Australia to look after her sister who was terminally ill with cancer. The appellant was in Australia for two or three years. She would return to New Zealand from time to time for short periods. In the meantime, Rogers continued to live in the Ririno Place property.
While the appellant was in Australia, she asked Rogers to sell the matrimonial home. Rogers marketed the property but was unsuccessful in obtaining a sale. He then let it, it seems with the concurrence of the appellant. About this time Rogers disposed of most of the furniture apart from keeping a small amount for himself and the appellant’s daughter, Marilyn.
On letting the Ririno Place property Rogers moved into 2/5 Mon Desir Place which was owned by Lorraine. Initially Rogers was a boarder. Subsequently a relationship developed between him and Lorraine.
In 1998, the appellant returned to New Zealand. Her marriage to Rogers was dissolved in that year after her return. The tenant in the Ririno Street property was evicted. The appellant moved into the property which had been left in a mess by the tenant.
The Crown case was that the appellant was jealous of the relationship between Rogers and Lorraine. The appellant denied any jealousy. As well, the appellant was said to be angry with Rogers concerning the disposal of the furniture which she asserted he had done without her authority and without an accounting to her.
The Crown relied on a number of incidents before the home invasion. They were put forward as being relevant to the appellant’s state of mind at the time of the alleged offending.
First, the appellant’s daughter Denise gave evidence that the appellant telephoned her from Australia to the effect that she, the appellant, wanted one of Rogers’ legs broken. The appellant denied this comment.
Secondly, Rogers deposed that on one occasion he met the appellant at the Manurewa RSA. He told her that he did not wish to see her again. On their way home, according to Rogers, the appellant drove her car at a power pole. Rogers said that he then grabbed the steering wheel and applied the hand brake resulting in the car hitting a fence. Afterwards, at the accident scene, the appellant threatened to kill both Rogers and Lorraine.
Thirdly, Rogers deposed that in January 1999 he was waiting at a bus stop when he was hit by a car driven by the appellant. The collision resulted in a knee injury. After the collision, Rogers said that the appellant got out of her car and said to him “I didn’t break any bones this time, arsehole, but I will next time”. The appellant said that she could not remember that incident and, in any event, she denied making the alleged statement.
Here it is to be noted that the bus stop incident led to a charge of injuring with intent to injure. On 19 May 1999 the appellant was ordered to come up for sentence if called on within one year.
Fourthly, on another occasion, according to Rogers and Lorraine, the appellant called at the Mon Desir Place flat. During the visit there was a scuffle between the appellant and Rogers in the conservatory. Rogers then took the appellant home. Later, the appellant returned at least twice. On the last visit the appellant told Lorraine that she, the appellant, was going to kill Lorraine. The appellant denied knowing Lorraine or making any threats to her.
Some time before the events on Saturday, 23 October 1999, Boynton and Waipouri visited the appellant’s place at Ririno Place. Boynton referred to her as Kui Waipouri. He remained in the car while Waipouri spoke to the appellant at the back door for about ten minutes. At the end of that conversation Waipouri returned to the car with a steel wheel brace which he, Waipouri, had obtained from the nearby garage at the direction of the appellant. He put the wheel brace under the front seat.
Waipouri and Boynton then drove off back to Boynton’s place. On the way, there was a conversation between Boynton and Waipouri. This was the evidence which was the subject of part of the pre-trial challenge referred to above. According to Boynton’s evidence, Waipouri asked Boynton to do a Mahie – or hit – ‘around the corner’ with him. Waipouri pointed to the target property at 2/5 Mon Desir Place. The proposed hit would involve breaking the legs of the appellant’s former husband for a payment of $5000 by the appellant, tying up the victim, taking his Gold Cards for subsequent use, and his money. Boynton’s task in the proposed hit was to hold down the woman who lived in the house. The reason for the hit was that the appellant’s former husband had taken her house and had left her without anything.
Boynton said that he told Waipouri that he did not want to have anything to do with the hit:
Because they were too old and because she said she would give us $5000, be better if we gave her $5000 just to learn where the $50,000 was. It didn’t make sense, it was a load of garbage.
Boynton also deposed that he was present when Waipouri asked two other mutual friends to participate in the hit. They were Ashworth and Hereora. On each occasion Boynton asserted that he urged non participation.
At the time of the attack, Boynton said that he was at Meremere celebrating his mother’s 50^th birthday. It was not suggested by the Crown that he was a participant in the home invasion.
Ashworth was also a Crown witness. He was introduced to Boynton who in turn introduced him to Waipouri. Ashworth deposed to going for a drive in Waipouri’s car. Boynton was also a passenger. Ashworth said that Waipouri parked opposite Mon Desir Place. He then said to Ashworth that he had sussed out a job on a place in that street (which place he pointed out); that an elderly couple lived there; that the man in the house was the ex husband of his auntie; and that there was a large amount of cash in the house. The house which Waipouri pointed out was the place where Rogers and Lorraine lived.

According to Ashworth, after this conversation Waipouri drove to Ririno Place where he stopped again. He went inside. After a while he emerged with a woman behind him. Waipouri then returned to his car and drove off. Ashworth gave evidence of a conversation with Waipouri. This too was part of the pre trial challenge referred to above. Ashworth deposed that Waipouri said to him that his auntie wanted him to bash her ex husband and take his money. Ashworth questioned why they could not sneak into the house and take the money without anything more. Waipouri did not reply. It was not suggested that Ashworth took part in the home invasion.
It was common ground that a home invasion took place in the early hours of the morning of Saturday 23 October 1999.
When the attack commenced all the occupants of the flat were asleep; Rogers and Lorraine in one bedroom and Rodney in another.
Rodney was awoken and beaten by masked intruders. A pillowcase was pulled over his head, some fabric was stuffed in his mouth and his hands and feet were bound with a stocking.
Lorraine was awoken by someone hitting her face. She saw a person with a black balaclava over his head. At the same time someone else was hitting Rogers on the head. As this assault continued, she heard him gurgling. There were three requests for the whereabouts of the money. She did not see any weapons.
During the home invasion, the flat was ransacked. The alarm was raised by Rodney on his cellphone when he found that the telephone line had been cut. On the arrival of the police shortly after 1 am, Rogers was found to be unconscious and Lorraine was found to be barely conscious. They were immediately taken to hospital.
During the attack, Rogers’ credit cards were stolen.
About an hour after the intruders left the Mon Desir Place property, there were several attempts at an ASB ATM machine in Broadway with two cards in Rogers’ name. Waipouri was identified on a video surveillance tape as the activator.
As the result of the attack, Rogers suffered a retrograde amnesia. He has no recollection of the events which occurred. In the attack, he suffered severe injuries for which he was hospitalised for about a month. He received multiple skull fractures, and a broken nose. His cheekbones and eye sockets were pulverised. He also suffered a broken finger and a number of deep facial lacerations. Extensive surgery had to be performed on him. After his discharge from hospital, he convalesced at home and went on to Accident Compensation. He returned to work on a part time basis in or about March 2000. Corrective surgery is yet to be carried out on his face.
Lorraine suffered a fractured skull, puncture wounds and lacerations to the right temple, bruising to the right eye and right cheek and fractures of the right cheek bone and eye socket. Bone graft surgery was required.
Rodney received extensive bruising and abrasions to his back and shoulder area, wrists, face and legs.
The offenders wore gloves and balaclavas. The use of a stolen car was pre-arranged. It was evident from Rodney’s evidence that it is probable that a weapon or weapons and bindings were taken to the scene.
At the time of the attack the appellant had a man living at her address called Donald Lowe. Later on 23 October 1999 the police called at the appellant’s home. She was not in. The police officer spoke to Lowe. Lowe said that when the appellant came home she was very angry with him for letting the police inside.
On 27 October 1999, the Wednesday after the attack, the appellant made some remarks to Lowe which the Crown relied on. The appellant asked Lowe, who had served a prison term, what it would be like to go to prison. He told her that it was not a place for her to go to and a little later she said, according to Lowe, “I’m going to prison”. As well, according to Lowe, she asked him if the police could check on a bank account to which he said "Yes”. About this time Lowe also deposed that the appellant changed her telephone number as she did not want anybody to communicate with her.
The appellant was seen by the police on 28 October and 9 November 1999.
On 9 November, the appellant was shown a statement by Waipouri who had already been interviewed. Apart from admitting that she knew the person who had made the statement was a person who wanted to rent her house, she denied that she had arranged and organised for Waipouri to go to the Mon Desir Place flat to break Rogers’ legs. She also denied that she had told him that there would be $40,000 in cash in the house. Otherwise the appellant relied on the right to silence as she had done on 28 October.
The appellant elected to give evidence at her trial. She denied knowing Hereora, Matehaere, Wallace and Waipouri. She admitted that she was related to Waipouri. He was a son of a nephew. She asserted that she had only met him once and that that was when he came with a niece about the letting of her property. She denied that they had talked at the back door or that he had taken a metal item away from her property; or that he was with anyone else. She asserted that she did not know that Waipouri was sometimes known as Mitch and that his first names were Illya Monty.
The appellant said that she was unable to understand the evidence about Waipouri’s call with Boynton. She deposed that she had never met Boynton before. She said that she first became aware of the attack when her sister telephoned her in the week after Labour Weekend. There was also a conflict of evidence on other matters. The appellant denied telling her daughter that she wanted one of Rogers’ legs broken. She denied telling him that she would kill him and Lorraine. She denied the incident about driving a car at a lamp post. She denied the remark associated with the bus stop incident. She denied knowing Lorraine or making any threats to her. The appellant asserted that she did not want to hurt Rogers because “he is a good man”.
The appellant called one other witness; a niece, Hazel Waipouri. She described a visit with Waipouri for the purpose of the latter renting the appellant’s house. According to Hazel Waipouri, at the time of that visit, the appellant said to her “I haven’t seen this boy before”.

APPEAL AGAINST CONVICTION

We now turn to Mr Ryan’s argument in support of the appeal against conviction. He pointed to a number of pieces of evidence which he contended were prejudicial. He submitted that the cumulative effect of these occasioned a miscarriage of justice. We shall now examine each in turn.
First, in Rogers’ evidence in chief he was asked “Tell us how the marriage ended, please?” To which he replied:
Towards probably in 1998 she wanted to go to Australia to look after her sick sister. She did and I stayed in the house looking after the house. I heard through other people she was actually living with somebody else.
Mr Ryan submitted that the answer portrayed the appellant as a deceitful person in that though she had said she had gone to Australia to look after her sick sister, according to Rogers' answer she had formed a relationship with another man, and that illegitimate prejudice to the appellant arose therefrom. We cannot accept Mr Ryan’s submission that there was any prejudice to the appellant. The prosecutor's question was an open-ended one. It concerned the break up of the marriage and the answer flowed from the question whether it was true or not.
Secondly, in Rogers’ evidence in chief, he deposed that he was asked whether he had seen the appellant between the bus stop incident and the home invasion. He replied that he:
..never noticed her again she never bothered me again but about 3 days before the incident I was on my way to work walking again I heard a car toot its horn and saw somebody waving so I smiled and waved back and I realised it was Patricia and I wondered at the time why she was waving and smiling at me perhaps she's got something else up her sleeve.
Mr Ryan submitted that this answer tended to suggest that the appellant had planned the future assault on him and the others at the Mon Desir Place flat and that that answer contained illegitimate prejudice. Again, we are unable to accept Mr Ryan’s submission. We accept that the words “Perhaps she’s got something up her sleeve” was a throwaway line but given the earlier incident – the journey home from the RSA and the bus stop incident, and given the attack three days later, it was a reasonable comment by Rogers. We are unable to say that it occasioned any prejudice to the appellant.
Thirdly, in Lorraine’s evidence in chief, she was questioned about the nocturnal visits by the appellant to the Mon Desir Place flat. We set out a portion of her evidence on this topic:
Did she return a fourth time that night or was it only three visits…I can’t be certain because by this time I was quite shaky but I think it would have been four because the third time when she said she was going to kill me that was when I got on the phone and rang my son.
Just going back to the first visit, did Mr Rogers formally introduce you to her when she came to the conservatory door…no.
How do you know it was his wife….well he get her out and took her back home because later on she actually chased him around the streets with a knife. He told me the following day.
Just want you to understand you can only tell us things you saw yourself, OK, it's just a legal rule, its not your fault, its just a legal rule….sorry.

Mr Ryan complained that Lorraine’s evidence to the effect that the appellant “actually chased [Rogers] around the streets with a knife” was hearsay and highly prejudicial in that it showed that the appellant was a dangerous and violent person. We accept that this statement was hearsay evidence. We note, however, that immediately after it was given the prosecutor very properly explained to the witness in layman’s terms the hearsay rule. There was no intervention by the trial Judge and that was understandable given the prosecutor’s explanation to the witness of the hearsay rule. Mr Ryan accepted that the appellant’s counsel did not object either then or later in the trial, and that he did not request the Judge to include a reference to the inadmissible evidence in her summing up – and we note that she did not herself make any reference to it. In our view, while the evidence was inadmissible hearsay, it did not occasion any illegitimate prejudice to the appellant given the proper response of the prosecutor.
Fourthly, Mr Ryan took us to the evidence of Boynton and Ashworth. Given the appellant’s abandonment of her attack on the admissibility of the hearsay evidence by these two witnesses, the appellant was unable to complain of illegitimate prejudice. Once admitted, the credibility and reliability of both Boynton and Ashworth were jury issues. In the event, it is obvious from the verdicts of the jury that they accepted, contrary to the appellant’s denial, that she had procured Waipouri to carry out a hit on Rogers at the Mon Desir Place flat.
Fifthly, Mr Ryan complained about a portion of the prosecutor’s re-examination of Boynton. The line of questioning was directed towards any communication between Boynton and Hereora.
Just want to ask you please, did you tell Chris what you knew what it was…I definitely did.
You just tell me what you remember saying to Chris about it……yes, I told Chris that 5000 dollars is being offered to receive $50,000 that didn’t make sense because usually it’s the other way around, I also knew for a fact that Kui is doing this because he’s left her for another woman not because he emptied out the house and a whole lot of other stuff as well. There was talking about gold cards and all sorts just didn’t make sense.
Mr Ryan submitted that Boynton’s evidence about ‘knowing for a fact that Kui is doing this because he’s left her for another woman’ was prejudicial hearsay evidence. We agree with Mr Ryan’s submission that the evidence was hearsay and that it was inadmissible in that it was not in furtherance of the alleged common design. It was a gratuitous addition by Boynton to the answer to the question which had been put to him. This is a situation in which a trial Judge might or might not comment. It is in his or her discretion. We note that at the time there was no objection by the appellant’s counsel and that the Judge was not invited to refer to the inadmissible evidence specifically in her summing up. Often, for tactical reasons, defence counsel will refrain from drawing further attention to a piece of prejudicial evidence and, in the absence of any further reference by counsel, the Judge adopts the same stance. Given that this was entirely within the discretion of the Judge, we do not think that in the circumstances the inadmissible hearsay evidence occasioned sufficient prejudice to warrant our further examination of the verdict on this account.
Sixthly, Mr Ryan took us to the evidence of Donald Lowe and the appellant’s daughters, Denise and Marilyn. He accepted that he was unable to complain of any illegitimate prejudice. In our view, Mr Ryan’s submissions in respect of these witnesses, went to issues of credibility which were jury issues.
Seventhly, Mr Ryan complained about some evidence given by a Detective Constable Clark. This officer interviewed Hereora on 23 November 1999. After giving him the usual warning and Bill of Rights advice, Detective Constable Clark took a written statement from Hereora. In effect, Hereora put forward alibi. He said he was in Tauranga at the time of the home invasion. Detective Clark then deposed (and this was evidence which was the subject of objection):
…I said Chris, we’ve got to cut to the chase now I know what you told me about going to Tauranga is all teka. I know that you were involved in the ag burg or what the papers are calling it the home invasion up in Manurewa. He said I told you I was in Tauranga. I said no, its time to tell the truth. We know who was involved in it and I can tell you what your movements were from about 10 pm on Friday night of Labour Weekend and also Monday after Labour Weekend and all of that doesn’t include being in Tauranga, you weren’t there. He said I’ve given you a statement and I’ll stick to it. I said I know that you, and Jay and Mitch and Prickles were there. I know that you were at Jay’s house in Ferguson Street, 61 Ferguson Street, Manurewa before going to do the job. You taped up the fingers put gloves on, beanies and then went to do the job in Jay’s Commodore. And why, because Mitch said that there was a forty thousand dollar earn at the house. He said I’ll stick to the statement that I’ve given you. I said now I know that Mitch was the one that did the bashing of the old guy. He did so because of what the old lady Terehia Mahutoto had told him that the old guy had ripped her off and that he had forty thousand dollars in his house beside his bed. I know that’s all bullshit. No-one has that amount of money in their home. Terehia spun a good story on Mitch and sucked him in and then he told you that there was a good earn all for what. He got five hundred dollars and you guys got nothing. She ripped you guys off in a big way. You need to look after yourself. At the moment we’ve only got Mitch in the main bedroom giving the old guy the bash.
Mr Ryan submitted that this evidence was objectionable on a number of grounds:
[a]The police officer introduced evidence of what Waipouri had said. This evidence was hearsay, inadmissible and prejudicial to the appellant.
[b]The police officer in his evidence expressed his own opinion of the appellant’s motivation – namely, that she had ripped off Waipouri and the others. This was not part of the Crown case and in any event was inadmissible and prejudicial to the appellant.
We were informed by Mr Treleaven that the Crown offered Hereora’s counsel the removal of the evidence under objection. That offer was declined. Hereora’s counsel wanted the evidence led. Unfortunately, the same offer was not made to the appellant’s counsel.
Mr Treleaven confirmed that at the time the evidence was given there was no objection by the appellant’s counsel. Mr Treleaven drew our attention to the summing up in which the Judge gave a direction that Hereora’s statement was only evidence for or against him as the person who had made it. There was, however, no further direction in respect of Detective Constable Clark’s evidence and such a direction had not been sought by the appellant’s counsel.
Mr Treleaven accepted that ‘a ripping off’ by the appellant of Waipouri and the others who participated in the home invasion was not part of the Crown case. He also accepted, and in our view rightly, that the police officer should not have intruded his own opinion into the evidence or introduced what Boynton had had to say to him which was inadmissible hearsay. Nevertheless, Mr Treleaven contended that the inadmissible evidence had not, in all the circumstances of this case, occasioned a miscarriage of justice.
We have carefully considered the submissions on this complaint. We express concern that this inadmissible evidence was introduced by the police officer. We have had occasion recently to deprecate this kind of conduct on the part of the police. See R v Hunt (CA178/00, 26 September 2000) See also R v Halligan [1973] 2 NZLR 158 (CA). We note, however, that the appellant’s counsel did not take the point either at the time the evidence was given or later in the trial. It might have been appropriate for the Judge to have drawn the jury’s attention to the evidence either at the time it was given or in her summing up or on both occasions and to direct them that it was inadmissible hearsay, and that they should disregard it. In the event, that course was not adopted; possibly because the point was not taken by the defence. In our view, in the context of this case, we cannot say that the Judge was wrong. The objectionable evidence did not go to the initiation of the offending but rather to the motive for it. This was not central to the critical issues in the case. Although regrettable, we have reached the conclusion that the evidence under attack did not occasion a miscarriage of justice. There was plainly plenty of other admissible evidence which the jury could accept and obviously did accept, of the appellant’s involvement in the offending.
For the reasons given we are therefore unable to find that there has been a miscarriage of justice. Accordingly, the appeal against conviction is dismissed.

Appeal against Sentence

We now deal with the appeal against sentence.
In sentencing the appellant the Judge said that the case involved a brutal home invasion of the most serious kind. She noted that the seriousness of the injuries inflicted on Rogers and the adverse long term consequences of those injuries. She observed that he was lucky to be alive.
Anderson J, in sentencing Waipouri, (Auckland Registry T000515, 5 May 2000), had proceeded on the basis that he was the ring leader of the execution of the plan of the home invasion.
In this case, the Judge construed the jury’s verdict as an acceptance that the appellant had procured a contract hit and that that had been motivated by revenge and jealousy. The Judge proceeded on the basis that but for the appellant’s procurement the crimes would not have been committed and that accordingly the appellant’s culpability should be equated with that of Waipouri.
The Judge followed the step by step approach laid down by this Court in R v Palmer [2000] 1 NZLR 546 (CA) where home invasion is involved. First, the Judge determined the notional sentence that would have imposed before the home invasion was passed. Like Anderson J in sentencing Waipouri, she placed the appellant’s offending at the highest end of the third category set out in R v Hereora [1986] 2 NZLR 164 (CA). In that case, this Court set out guidelines for the sentencing in cases involving wounding and causing grievous bodily harm with intent. The first category involves cases of an impulsive act of violence which would attract sentences of three to five years. The second category involves cases disclosing a combination of aggravating features which would attract sentences of five to eight years; and the third category involves unusually grave aggravating features which would attract sentences of up to 12 years.
In accepting that this case fell into the third category the Judge referred to the premeditation and professionalism of the home invasion and the deliberate infliction of grave injuries.
Having taken a starting point of 12 years, the Judge then moved to the second step – the home invasion step - and, as Anderson J had done in sentencing Waipouri, added four years, making a total of 16 years.
The Judge then addressed the point that on the one hand Waipouri had pleaded guilty to all four charges whereas the appellant had only been found guilty of aggravated robbery and causing grievous bodily harm with intent in respect of Rogers. On this point she said:
.. the Crown has submitted that your culpability is very high on the basis that you procured these crimes as a contract hit motivated by revenge and jealousy. This must have been accepted by the jury. This means that, if it had not been for you, these crimes would not have been committed. This puts you, in my view, in the same category of offending as Mr Waipouri. As such Mrs Mahutoto I take the view that the notional starting point should be 12 years with 4 years added for the home invasion aspect. This means a sentence of 16 years before the consideration of mitigating factors.
Mr Ryan attacked the starting point. Mr Ryan submitted that the Judge had fallen into error in making the finding of equal culpability with Waipouri. He advanced four reasons for this submission:

-First, the appellant was convicted on two counts, aggravated burglary in respect of Rogers, and causing grievous bodily harm with intent in respect of Rogers. She was acquitted by the jury of aggravated robbery of Rodney and causing grievous bodily harm with intent to Lorraine. In contrast, Waipouri pleaded guilty to all four charges. Mr Ryan submitted that the verdicts of not guilty demonstrated the jury’s view that Waipouri went beyond the appellant’s original plan of doing violence to Rogers and stealing his cards and money.
-Secondly, Waipouri took part in the home invasion and was the leader of that offending, whereas the appellant did not physically take any part in it.
-Thirdly, there was a significant difference between the criminal records of Waipouri and the appellant. Waipouri was a career criminal and had accumulated no less than 103 previous convictions. Additionally, at the time of the commission of these crimes, he was addicted to methamphetamine, he was unremorseful, his motivation to change was considered to be low and there was a high risk of reoffending. The appellant on the other hand had only two previous convictions; the injuring with intent to injure conviction in May 1999 – the bus stop incident – and a conviction for false pretences in October 1994 for which the appellant was also sentenced to come up before the Court if called on within one year.
-Fourthly, there were a number of significant positive factors which tended to mitigate the appellant’s offending, factors which were not available to Waipouri:
(a)   The appellant had an excellent work history.
(b)   This offending apart, she had a responsible life style.
(c)   According to the probation officer, there was a likelihood that she would not offend again.
(d)   The appellant over a period of three years had provided nursing care, companionship and general assistance to her cancer-ridden sister.
(e)   The probation officer had favourably recommended that the sentence of the Court should reflect her hitherto responsible lifestyle.

Mr Treleaven, on the other hand, for the Crown, submitted that the starting point taken by the Judge was the correct one in all the circumstances of the case. He emphasised in particular the premeditation of the appellant in deliberately procuring the home invasion; the use of a weapon (such a conclusion being a reasonable inference from the medical evidence) on Rogers; the nature and extent of the horrific injuries inflicted on Rogers, and the fact that one of the previous convictions, albeit attracting a very lenient sentence involved the victim, Rogers.
Having carefully considered the competing submissions, we have reached the conclusion that this was most serious offending involving horrific injuries. On the other hand, we consider that Mr Ryan was correct when he contended that having regard to the four matters advanced by him, the starting point of 12 years was too high in our view by 18 months. Applying the appropriate home invasion element to that, the proper sentence ought to have been one of 14 years imprisonment. Such a sentence would properly take into account the matters contended for by Mr Treleaven for the Crown and at the same time recognise the distinction which we consider ought to be made between Waipouri’s case and the appellant’s case.
Accordingly, for the reasons given, the appeal against sentence is allowed. The sentence of 16 years is quashed and in lieu thereof the appellant will be sentenced to 14 years imprisonment.

Solicitors
Crown Solicitor, Auckland, for Crown

[2000] NZCA 385

13 December 2000