Uncles v R
[2012] NZCA 144
•16 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA637/2011 [2012] NZCA 144 |
| BETWEEN KATRINA MAREE UNCLES |
| AND THE QUEEN |
| Hearing: 12 March 2012 |
| Court: O'Regan P, MacKenzie and Asher JJ |
| Counsel: R M Gould for Appellant |
| Judgment: 16 April 2012 at 10.30 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of four years and seven months’ imprisonment is quashed and substituted by a sentence of imprisonment for three years and eight months.
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REASONS OF THE COURT
(Given by Asher J)
Introduction
Katrina Maree Uncles was sentenced to a term of four years and seven months’ imprisonment on charges of wounding with intent to injure and aggravated burglary. She appeals that sentence.
Prior to the attack Ms Uncles had formed the belief that the complainant had been having sexual contact with her 14 year old son. The complainant was a 62 year old male who was living alone and was at the time on bail having been charged with historic child sex offending.
The complainant was in bed in his home at around 10 or 11pm at night when he was woken by a knocking at the door. When he did not open the door, the door was kicked open. He was in the process of calling the Police when Ms Uncles came into his room and tried to grab the telephone. The complainant hit Ms Uncles with the back of his hand. Ms Uncles then called out to her co-accused Grayson Weaver who ran in, pushed past Ms Uncles, and punched the complainant in the face so that he fell to the ground hitting a tallboy as he did so. The complainant got to his hands and knees and was then struck by four blows to the head delivered by Mr Weaver.
A noose from a rope was then placed around the complainant’s neck and tightened. He struggled but was being strangled by the noose. His struggling made the strangulation worse. He pretended to pass out. However, the strangling continued. The complainant got to the point where he in fact did start to pass out. The noose was suddenly released and the attackers left.
The Police arrived soon after. They observed that the door had been smashed and that there was broken glass and blood in the house. The complainant was found slumped on the floor and bleeding with the noose still around his neck.
The complainant was admitted to Palmerston North Hospital. He spent in total a week in the intensive care ward before being transferred to Hutt Hospital where he underwent a seven hour operation to have his injuries repaired. There was a further period of intensive care. He had multiple facial fractures including fractures to his jaw and nerve damage to his left eye. Plastic surgery was required to repair the wounds. In addition, he suffered bruising, swelling and cuts. He has been severely affected by the assault. He is fearful and hears noises at nights. He has had a number of metal plates inserted into his face and near his eyes. His vision has worsened and his top teeth have been loosened. He has numbness in his scalp and suffers from dizziness which is likely to continue.
The sentencing decision
Ms Uncles and her co-accused entered guilty pleas at a sentence indication hearing. The sentencing Judge, Judge Dawson, carefully set out the facts and recorded that he had read the probation reports, the victim impact statement and two psychiatric reports prepared in relation to Ms Uncles. In relation to Ms Uncles he reiterated the serious injuries to the complainant and the long term effects of the assault. He considered the aggravating factors of assault to the head, use of a weapon (the rope), unlawful entry, and the extent of the harm. He also noted that there was a vigilante aspect to the offending, and the vulnerability of the victim.
The Judge stated that there was some premeditation involved. He also referred to Ms Uncles’ past and present convictions. He noted in mitigation the guilty pleas. Having reviewed all these factors he stated in relation to both Ms Uncles and her co-accused:[1]
In my view, a starting point for that offence is a sentence of imprisonment of five years. I now [need] to take into account the aggravating factors and I increase that to five years and nine months’ imprisonment. After then taking into account the mitigating factor I have mentioned, it is appropriate to sentence you to a term of imprisonment of four years and seven months, and that applies to each of you.
[1] R v Weaver DC Palmerston North CRI-2011-054-99, 16 May 2011 at [22].
He had earlier referred to the fact that Ms Uncles suffered from bipolar disorder. Presumably with this in mind he made an order under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that she be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
The grounds of appeal
Ms Gould for Ms Uncles did not challenge the end starting point of five years and nine months’ imprisonment reached by the Judge. Nor did she challenge the discount of 20 per cent for the guilty plea. The focus of her submissions was the assertion that there was a failure by the Judge to recognise Ms Uncles’ serious mental illness as a standalone mitigating factor. She also submitted that there should be a discount for remorse and Ms Uncles’ personal circumstances. She argued that there could be total discounting sufficient to reach two years’ imprisonment, thereby making Ms Uncles eligible for home detention.
Ms Preston in reply did not quarrel with the proposition that Ms Uncles’ mental illness should have been treated as a mitigating factor. She acknowledged that the Crown prosecutor at sentencing had accepted that a discount in the vicinity of 20 per cent was available due to the appellant’s diagnosed mental disorder, in addition to any discount for a guilty plea. She submitted that the starting point adopted by the Judge of five years’ imprisonment was at the lower end of the available scale. She acknowledged the lack of any apparent distinction between Ms Uncles and her co-offender to recognise reduced culpability on the part of Ms Uncles.
The psychiatric evidence
There were no less than eight psychiatric reports (including short letters) by Dr Jacqueline Short and Dr Justin Barry-Walsh, both consultant psychiatrists. The psychiatrists made assessments both prior to plea (ascertaining her fitness to plead), and provided additional reports prior to sentencing. The Judge referred to two psychiatrist’s reports.
In her first full report Dr Short concluded that the appellant would not have been fit to stand trial prior to her mental state stabilising at the inpatient mental health unit, but was “currently” fit to do so. She diagnosed Ms Uncles as having bipolar affective disorder, complicated by substance misuse and a history of physical and sexual trauma. In the opinion of Dr Short there was a nexus between her relapsing mental disorder and her offending.
Dr Short thought that the mental disorder may have significantly impaired her judgment at the time of offending and that on the information available to her she may have had a defence of insanity available to her. She was extremely emotionally aroused during the offending, and appeared to have “fused” the victim’s face with the person who raped her when she was 15 years old. It was noted that a few days before the alleged offending Ms Uncles’ mental state had deteriorated to such an extent that concerns were raised by the Community Mental Health Nurse that her judgment and self-control were at imminent risk of becoming impaired. Dr Short concluded:
To summarise: it is my opinion, based on the evidence available to me, as set out in both of my psychiatric reports, that at the time of the alleged offending, Ms Uncles was suffering from a disease of the mind, to such an extent as to likely render her incapable of understanding that her actions were morally wrong and that a defence of insanity, within the meaning of Section 23 of the Crimes Act 1961, is likely to be available to her.
Dr Barry-Walsh in his report noted that Ms Uncles’ mental state had significantly deteriorated prior to the offending. She had not been taking her prescribed medication on a regular basis. He agreed with Dr Short that Ms Uncles was at the time of the offending labouring under a disease of the mind and had bipolar affective disorder. He did not find her to be obviously mentally ill and was of the opinion that the defence of insanity was not available to her. However, he expressly observed that there was a nexus between her mental illness and the offending. He concluded:
Irrespective of whether Ms Uncles is found guilty or not guilty of the alleged offending I would observe she is a traumatised woman with a serious mental illness. She therefore requires ongoing psychiatric treatment. At this stage it is considered that this treatment needs to continue within Rangipapa. I consider this appropriate given her clinical state. I would further point out to the court that should she be found guilty of the offending then I consider that her mental illness would provide substantial mitigation.
Discussion
The starting point
The Judge rightly considered wounding with intent to injure as the lead offence. While aggravated burglary was proven, given the reason for the break-in, which was Ms Uncles’ perception that the complainant was sexually interfering with her son, the wounding charge best captured her culpability.
The actions of Ms Uncles and Mr Weaver and the injuries suffered by the complainant would have justified a more serious charge than wounding with intent to injure. Nevertheless, the charge at the sentence indication hearing was laid under s 188(2) of the Crimes Act 1961 and the maximum sentence was seven years’ imprisonment. Thus any decision as to the starting point, while it could take into account the factors listed in R v Taueki[2], had to be adjusted to that seven year starting point. Both Ms Uncles and Mr Weaver were most fortunate in this respect.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
Even so, the starting point chosen by the Judge after taking into account the aggravating factors of five years and nine months’ imprisonment was at the low end of the range. The Crown did not ask us to adopt a higher starting point.
Discount for personal mitigating factors
It is clear from the sentencing notes that the only discount that allowed for personal mitigating factors was a 20 per cent discount to the starting point of five years and nine months’ imprisonment, reducing it to four years and seven months’ imprisonment. This is not only clear from the arithmetic, but also because of the Judge’s reference to only one factor “in mitigation”, the guilty plea, and the lack of any differentiation in the sentences of Ms Uncles and Mr Weaver. The bipolar disorder was not treated as a factor relevant to the length of the sentence, but only as to the nature of Ms Uncles’ detention.
The Crown had submitted that in the District Court a 20 per cent discount for Ms Uncles’ mental disorder was appropriate. It is not sought to resile from that submission on appeal. Ms Gould seeks a considerably higher discount.
We have no doubt that it was necessary to discount Ms Uncles’ sentence because of her mental disorder. As we have noted, Dr Short considered her mental disorder to be so severe that it would support a defence of insanity. Dr Barry-Walsh, while not agreeing that the test for insanity was reached, considered that there was a nexus between her mental illness and the offending.
When Ms Uncles committed the offending she believed that the complainant was sexually interfering with her 14 year old son. She was suffering from actual delusions at the time she carried out the wounding, confusing the complainant with the person who had raped her when she was 15. She indicated that she was being instructed by spirits as to what to do to the complainant and in particular that a spirit instructed her to make a noose and “to choke [the complainant] until he poos”. The psychiatrists accepted these statements as genuine.
It was also appropriate for account to have been taken of the information concerning Ms Uncles’ rehabilitation and remorse. Both psychiatrists reported acceptance by Ms Uncles of her need to receive treatment and to stabilise. She has made good progress. She now regrets her actions and has recognised that what she did was wrong. She accepted that she should have been admitted to hospital prior to the alleged offending. Neither of these experienced psychiatrists suggested that her moves towards rehabilitation, or her remorse, were in any way false.
Therefore, we conclude that a discount should have been allowed for her mental disorder in the sentencing process, and her remorse and rehabilitation. We assess that discount at 20 per cent. Applying the 20 per cent discount for her mental disorder and remorse, the sentence is reduced from five years and nine months to four years and seven months’ imprisonment. At that point the 20 per cent discount for the guilty plea is made to reduce the sentence to three years and eight months’ imprisonment.
The 20 per cent discount for her mental disorder, remorse and rehabilitation is a conservative discount in the circumstances. However, we are mindful of the equally conservative starting point even accepting the seven year maximum on the lead charge. Accepting that maximum, and taking into account the mitigating factors of Ms Uncles’ mental illness, remorse and rehabilitation, and her guilty plea, a sentence of three years and eight months’ imprisonment is appropriate.
This will create a disparity between the sentence imposed on Ms Uncles and the sentence imposed on Mr Weaver. However, the disparity is fully justified because of the clear evidence of Ms Uncles’ serious mental disorder. While there is a statement that Mr Weaver suffered from depression and associated anxiety and paranoia in his pre-sentence report, there is nothing to show any relevant mental illness at the time of the offending.
Result
The sentence of four years and seven months’ imprisonment is quashed and substituted by a sentence of imprisonment for three years and eight months. No change is made to the order made by the Judge under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act.
Solicitors:
Crown Law Office, Wellington for Respondent
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