Tua v Police HC Auckland CRI 2011-404-340

[2011] NZHC 1893

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-340

BETWEEN  DON SANDRA TUA Appellant

ANDTHE POLICE Respondent

Hearing:         15 November 2011

Appearances: H Talbot for appellant

B Hamlin for respondent

Judgment:      18 November 2011

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.30 pm on Friday 18 November 2011

Solicitors:

Public Defence Service, Manukau  [email protected]

Crown Solicitor Auckland,  [email protected]

TUA V POLICE HC AK CRI 2011-404-340 18 November 2011

[1]      This is an appeal against a sentence of three years two months imprisonment imposed by Judge Clapham on the appellant on 5 August 2011 on one charge of wounding with intent to cause grievous bodily harm, contrary to s 188(1) of the Crimes Act 1961.  At the same time, the appellant was sentenced to three months imprisonment concurrently on summary charges of possession of methamphetamine and of possession of utensils for the consumption of methamphetamine.

Background

[2]      The appellant, now aged 26 years, had for some time been working part time as a transgender prostitute.  She was living in a domestic relationship with a young man who had certain mental health difficulties.  Both resorted to drugs and alcohol regularly.

[3]      Late on the night of the principal offence, the appellant wished to use the couple’s motor car.  Ms Talbot advises that the appellant wished to go to work as a prostitute.  There is other information suggesting that the appellant wanted to visit friends.   The precise purpose of her trip does not matter significantly.   Both the appellant and the victim were using methamphetamine on the day of the accident. The appellant accepts that they were both on a “high” as a result.

[4]      The appellant left the house by car and drove to a nearby petrol station.  The victim followed on foot.  Another argument took place in front of the station.  The victim got into the car.  The appellant then drove back to the house and demanded that the victim alight.  He refused to do so. The appellant threatened to assault him if he did not get out, but the victim remained in the car.

[5]      The appellant went into the house and returned shortly with a large machete with which she proceeded to attack the victim.   The victim left the car and the appellant then drove off without him.

[6]      The victim received serious injuries.  There was a deep cut to his right arm which required surgery and a cast;  and also a cut to his head which required stitches.

The victim was in hospital for three days.  He suffered from a bipolar illness.  The appellant had been his primary caregiver.  They had been in a relationship for about two years and had been living together for about nine months.  At the time of the offending the victim was not taking his medication.

[7]      Following  the  entry  of  a  guilty  plea  by  the  appellant,  the  victim  was committed to mental health care by his parents.  The appellant was remorseful for what had occurred.  She wrote letters of apology to the victim, but they did not reach him.  The appellant also indicated a willingness, and indeed a desire, to participate in a  restorative  justice  process,  but  she  was  rebuffed.    The  victim’s  family  was unwilling to have any further contact with the appellant.  The victim unfortunately committed suicide shortly after the appellant had been sentenced.

[8]     In respect of the methamphetamine offending, the appellant had been apprehended by the police about a week prior to the principal offending.  She was found inside a tavern by the police at about 5.40 am.  A search under the Misuse of Drugs Act 1975 revealed a small ziplock bag containing approximate 0.25 grams of methamphetamine, and a used glass methamphetamine pipe.

District Court sentencing

[9]      Judge Clapham’s sentencing remarks were relatively brief, as is often the case in a busy sentencing list.  He recorded what he understood to be the agreement of counsel that the appropriate starting point was of the order of three and a half – four and a half years imprisonment.  On appeal, Ms Talbot, who also appeared at the District Court, advised that she had contended that a starting point of three and a half

– four years ought to be selected.  But she accepts that there would be room for a slightly higher starting point.   I consider that concession to be responsibly made. The case clearly falls within band 1 of the Taueki[1] bands which mandates a starting point of between three and six years.   I consider that a starting point at about the middle of the band was appropriate.

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

[10]     In Taueki,[2] the Court of Appeal specifically referred, by way of example, to a domestic assault:

[2] Taueki fn 1, at [37].

… which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable.

That was said to require a starting point in the region of four years, but where there is a degree of premeditation or the use of a weapon (but no lasting injuries) a higher starting point could be expected, perhaps five years or more.  It is to be noted that premeditation and the use of a weapon were viewed as alternatives.  Cumulatively they would plainly justify a starting point of the order of five years imprisonment.

[11]     By inference (because the sentencing remarks are not explicit), it is to be assumed that the Judge took a starting point of the order of four and a half years.  He observed that there was a need for an uplift to take account of aggravating factors, which included a degree of premeditation (albeit not extreme in that he accepted that the  appellant  may initially not  have  intended  to  use  the  knife,  but  certainly to intimidate the victim with it), together with the appellant’s poor record.  Her list of previous offences runs to several pages.   There have been four prior offences involving violence, although this was by far the most serious.

[12]     The Judge imposed an uplift, although without quantifying it, and then made what he called a “necessary deduction” although again no precise figure is used. Plainly he took into account the guilty plea and what he called “… the difficult matter of balancing the actuality of a difficult domestic relationship”, but he went on to say there was no suggestion that the use of a knife to impose one’s will is the appropriate way to behave.

[13]     Having referred to (unquantified) uplifts and discounts, the Judge imposed a sentence of three years two months imprisonment on the lead charge, and concurrent sentences of three months for the summary offending.

Analysis

[14]     Ms Talbot points out the need to take into account the true level of culpability inherent in this offence.  In that regard she refers to the observations of the Court of Appeal in Taueki,[3]  where mention is made of “exceptional cases”  in  which the sentencing Judge considers that offending, while technically falling within s 188(1) of  the  Crimes Act,  involves  culpability at  a  level  which  may have  been  better reflected in a lesser charge.  The Court went on to indicate that some recognition of different approaches to the exercise of prosecutorial discretion in different parts of the country may be needed.

[3] Taueki fn 1, at [27].

[15]     Ms  Talbot  indicates  that  some  consideration  was  given  in  this  case  to defending the charge, because the facts arguably fit better under the umbrella of recklessness rather than at the higher level.   However, she says, in the end the decision was made to plead guilty, because trial fixtures are much delayed in the Manukau District Court, with the result that the appellant would have spent a very long period in custody on remand awaiting trial.  The implied invitation is to treat this as within the class of exceptional cases identified in Taueki.  It is difficult to do that here.  The appellant took the trouble to drive back to the residence shared by this couple in order to retrieve a machete, with which she threatened the victim and then severely wounded him.  Both were under the influence of methamphetamine.  The appellant accepts that she becomes “aggressive” when in that condition.  There were elements both of premeditation and intent here.

[16]     Counsel agreed that it would be appropriate for present purposes to assume that the Judge adopted a starting point of four and a half years imprisonment, and that he then added to that figure in order to reflect aggravating factors.  There were three principal factors.  The first was the nature and extent of the appellant’s criminal record.  She had been sentenced to imprisonment in the past.  Her long list included convictions for possession of a knife in a public place (in 2007) and for common assault and possession of an offensive weapon (both on 12 April 2010).  The second factor arises from the circumstance that she was still serving a sentence of intensive

supervision in respect of the April 2010 sentence.  In addition, the appellant had been sentenced on 6 December 2010 to one year’s supervision for wilful damage.  The third factor was that the Judge was obliged to consider an uplift in respect of the summary matters for which the appellant appeared for sentence.

[17]     Ms Talbot accepts that an uplift of the order of three months was appropriate. Mr Hamlin says that between three and six months was justified.  I consider an uplift of up to six months was well warranted.   That produces a figure of five years imprisonment, before considering any discounts for mitigating factors.

[18]     The Crown accepts that the appellant was eligible for a discount of up to

25%, in line with Hessell v R.[4]    There is nothing here to suggest that a full 25% discount was inappropriate.  That would bring the end sentence down to three years nine months before further discounts for special mitigating factors.  It is here that the argument for the appellant is focused. Ms Talbot submits that there ought to have been a further very substantial discount for a number of mitigating factors which I now discuss in turn.

[4] Hessell v R [2011] 1 NZLR 607 (SC).

[19]     The first is remorse.  In Hessell, the Supreme Court held that remorse which was real and heartfelt, and which went beyond mere lip service, might justify a separate discount.  Ms Talbot says this factor is of particular importance.  She points to the appellant’s attempts to contact the victim (unsuccessfully because the victim’s family were opposed to any contact) and to his other attempts to initiate restorative justice steps.  By reference to a letter written by the victim to the appellant, she says that the appellant’s initiatives would have been appreciated by the victim, had they reached the latter.

[20]     The letter from the victim, and a second letter to the appellant by the victim’s parents (in which they lay blame for the victim’s death at the appellant’s door), were not before the District Court Judge and were the subject of an application by the appellant to adduce further evidence.   Her application was initially opposed by Mr Hamlin, but it seemed to me that the Court must be placed in a position in which it is in possession of all information relevant to sentence.  Mr Hamlin suggested that

the Court should simply consider material before the sentencing Judge.  Ordinarily that would be so but if, (as here) there is material that might have influenced the sentencing Judge if before him, then this Court ought to entertain it.

[21]     Accordingly, I have considered the letters tendered by Ms Talbot.  The long letter from the victim certainly attests to the close relationship between him and the appellant.  It also indicates that the victim’s injuries had healed satisfactorily some months after the attack.

[22]     I accept that the appellant took some steps to convey her regret.  However, it seems that some of her letters were not delivered.

[23]     On the other hand, any allowance for remorse would need to be limited in the light of the appellant’s statement to the probation officer to the effect that, if the victim had done what he was told, the incident would not have occurred.   That suggests the appellant allocated a considerable degree of blame to the victim, who after all had simply wanted to accompany the appellant and had refused to get out of a motor vehicle.

[24]    Accordingly, in my view, any allowance for remorse would need to be conservative.   (On that same topic Ms Talbot submits that a claimed element of provocation on the part of the victim might be relevant to the assessment of the appropriate  starting  point.    I do  not  consider  the  victim  to  have  provoked  this incident to the point at which it could be recognised in the overall culpability assessment).  Ms Talbot also argues that some identifiable allowance ought to have been made by way of discount in respect of:

(a)       the domestic nature of the relationship between the appellant and the victim;  and

(b)      the  victim’s   wishes   (the  victim   apparently  not   supporting  the

imposition of a significant penalty on the appellant).

[25]     The answer to both of these contentions is to be found in Taueki.[5]Domestic violence is no less serious than violence between offender and stranger.  Very often, as here, there is a degree of vulnerability on the part of the victim.  Moreover, the public interest outweighs the views of the victim as to punishment in all but special cases, of which this is not one.

[5] Taueki fn 1, at [33].

[26]     Finally, Ms Talbot refers to the special difficulty confronting the appellant as she serves a sentence of imprisonment in a men’s prison, by reason of her sexuality. In my view this is Ms Talbot’s strongest point.   It has long been recognised that where, due to a medical condition or disability, prison would constitute a more severe penalty for a particular offender, considerable leniency may be shown in sentencing.[6]   By the same token, lesser discounts have been held to be warranted, for example in cases where the prisoner is a foreigner (particularly a non-English speaking foreigner) who is therefore separated from family and a personal support network.[7]   Likewise, an additional discount is sometimes allowed in order to reflect a

prisoner’s mental health problems.[8]     Similarly, a limited discount will sometimes be

allowed where a prisoner has gender identity issues.[9]

[6] R v Verschaffelt [2002] 3 NZLR 772 (CA) at [22].

[7] R v Sangkamyong CA36/84, 3 July 1984 and R v Hensley CA50/02, 18 April 2002..

[8] R v Wright [2001] 3 NZLR 22 (CA) at [22] and R v Lucas-Edmonds [2009] 3 NZLR 493 (CA).

[9] R v Warwick HC Auckland CRI 2010-057-508, 15 June 2010.

[27]     Ms Talbot suggests that all of the further mitigating factors identified by her (but not, she says, recognised by the sentencing Judge) could justify an overall discount (in addition to that for the guilty plea) of an additional 25%.  She argues that the sentence was manifestly excessive, because an insufficient allowance has been made for these mitigating factors, and that the ultimate sentence ought to have been of the order of two years eight months rather than three years two months.

[28]     I disagree.  I consider that the Judge would have been justified in adopting a starting point of four and a half years, and increasing it by six months in order to take account of aggravating factors.  From that point, the sentence actually imposed can be reached by allowing a discount of nine months for mitigating factors other

than the guilty plea. That is a discount of 15% which I consider to be ample.

[29]     From the resulting figure of four years three months, a 25% discount for the guilty plea (rounded in favour of the appellant) produces a sentence of three years two months imprisonment.   That is precisely the sentence imposed by Judge Clapham.

[30]     While  there  may  be  room  for  argument  over  the  extent  of  the  discount properly allowable for mitigating factors other than the guilty plea, it cannot in my opinion be claimed that  the sentence was  not within the range available to the learned Judge.

Result

[31]     For the foregoing reasons, the appeal against sentence is dismissed.

C J Allan J