Woods v R
[2011] NZCA 573
•10 November 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA428/2011 [2011] NZCA 573 |
| BETWEEN STACEY NANCY WOODS |
| AND THE QUEEN |
| Hearing: 27 October 2011 |
| Court: O'Regan P, Randerson and Harrison JJ |
| Counsel: E R Fairbrother for Appellant |
| Judgment: 10 November 2011 at 4 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
_______________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
The appellant, Ms Woods, pleaded guilty to manslaughter on the morning on which her trial was to commence. The plea was entered after the charge she faced was reduced from murder to manslaughter. She was sentenced to four years imprisonment. She now appeals against sentence on the basis that it is manifestly excessive.
Grounds of appeal
The appeal is advanced on the principal ground that the Judge did not give a sufficient discount for the guilty plea. The other grounds are that insufficient weight was given for remorse and other personal mitigating circumstances and that the sentencing Judge, Potter J, erred in her assessment of the culpability of the appellant in the circumstances of the offending.
We will summarise the factual background and the Judge’s sentencing decision, before dealing with each of the grounds of appeal in turn.
Background facts
The following background is taken from the agreed summary of facts on the basis of which the appellant pleaded guilty.
The appellant had been in a relationship with the deceased for approximately 10 years. They had two children together. Ms Woods was aged 28 at the time, and the deceased was aged 29 years. There was a history of violence in the relationship. The couple had recently moved to Gisborne, where they had decided to make a fresh start. It was hoped that they would leave negative influences behind them in Auckland. The deceased had spent time in prison, including for assaulting the appellant.
On Friday 21 May 2010, the appellant and the deceased went to the appellant’s brother’s house. A large amount of alcohol was consumed. There was some arguing but the evening was otherwise uneventful. They drove home at around 4.30 or 5 am. The deceased was driving. The argument resumed and the deceased assaulted the appellant by punching her in the face several times. The appellant received a bloody nose and a swollen upper lip.
On arriving home, the appellant hid in the garden for a time. She then went into the bathroom and washed the blood off her face. The deceased went into the bathroom and the argument continued. He made some derogatory comments about the injuries and denied being responsible. The deceased said he would leave the appellant and return to Auckland. The two made their way to the kitchen.
The appellant grabbed a serrated knife from the top kitchen drawer. She said she had no recollection of doing so, and thought she had grabbed a screwdriver. She stabbed the deceased twice in his upper chest. One of the stab wounds penetrated the heart and was fatal. In describing events to a psychologist who interviewed her, the appellant said she had been backed into a corner and was frightened. She told police that she believed the deceased was going to assault her again.
The appellant and her fourteen year old sister, who was present, then tried to assist the deceased. He could not be revived. The sister ran to a neighbour’s house, and the neighbour called an ambulance. The deceased was dead by the time the police and the ambulance had arrived.
The appellant admitted stabbing the deceased. She said they had been drinking and had had no sleep. She said she did not mean to do anything like what happened and that he did not deserve to die.
Sentence
In setting the starting point, the Judge considered a number of factually similar cases involving manslaughter by a woman of her partner. On the one hand, she saw the offending as more serious than R v Tamati[1] and R v Stone[2] where the stabbing was not to the chest but to the leg. She also saw it as more serious than R v Mahari,[3] where the stabbing was to the shoulder. In Stone and Mahari, a starting point of four years, six months was adopted. In Tamati, the starting point was four years. On the other hand, the Judge saw the circumstances as less serious than R v Brown.[4] In that case, the starting point of six years took into account the fact that Ms Brown had a previous conviction for assault on her partner with a knife, that there was no history of abuse by the deceased and that Ms Brown had continued to hysterically kick the deceased after stabbing him in the chest.
[1] R v Tamati HC Tauranga CRI-2009-087-1868, 27 October 2009.
[2] R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005.
[3] R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007.
[4] R v Brown HC Napier CRI-2008-020-3130, 24 November 2009.
The Judge adopted a starting point of four years, nine months imprisonment.
The Judge then considered relevant mitigating factors. She noted that an indication of a willingness to plead to manslaughter had been given quite late, on the Sunday night before the trial was scheduled to begin on the Monday morning. A discount of six months was made for the guilty plea (approximately an 11 per cent discount).[5] The Judge accepted the sincerity and integrity of the appellant’s remorse “unreservedly”.[6] She allowed three months for this remorse and for personal circumstances, including the abusive context.
[5] Calculated off the sentence of four years, six months the Judge would otherwise have given.
[6] At [18].
This gave an end sentence of four years imprisonment. The Judge said the offending was too serious to merit home detention. No challenge to this aspect of the sentencing decision is made on appeal.
Discount for guilty plea
Counsel for the appellant at trial and on appeal was Mr Fairbrother. He submitted that the Judge ought to have given a discount for the appellant’s guilty plea of about 25 per cent given the circumstances in which the plea was entered. He took issue with the Judge’s approach of giving only a limited discount because the plea was entered at the very last minute, having been signalled only the day before the trial.
Mr Fairbrother said the appellant was charged with murder and the Crown’s agreement to accept a guilty plea to a reduced charge of manslaughter indicated that the lower charge was appropriate to the facts. He said the plea may have been entered much earlier if the Crown had charged the appellant with manslaughter at the outset or indicated to the defence that it was prepared to reduce the charge if a guilty plea to the lower charge was in prospect. But it did not.
In support of his contention that the appellant ought to have been charged with manslaughter from the outset, Mr Fairbrother pointed to the Crown Law Prosecution Guidelines, which state that the agreement to accept a plea should be on the basis that it was in “conformity with the evidence available”.[7] He noted that there was no additional information or material made available to the Crown to justify a change in its position from pursuing a murder charge to accepting a guilty plea to manslaughter. He said there was no indication from any of the eye-witness testimonies, or from the appellant’s statements, that the appellant had the necessary mens rea for murder. He said that the appellant’s position was made clear to the police in lay terms “in two hours of emotionally charged interviews with police within hours of the homicide.” Accordingly, he said that the onus was on the Crown to charge appropriately and that the appellant was entitled to the full 25 per cent discount permitted in Hessell v R.[8]
[7] Crown Law Prosecution Guidelines (1 January 2010) at [10.2.1].
[8] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
For the Crown, Ms Edwards submitted that this was not a case where it was obvious from the outset that a manslaughter charge was appropriate. Although the appellant claimed that she had no intention to kill, the Crown noted that two stab wounds, one to a depth of seven centimetres, provided a sound basis for the Crown to argue murderous intent. Self defence was a possible defence on the appellant’s account of what happened, but the jury might not accept that the appellant had acted reasonably in the circumstances. Ms Edwards noted that eight months elapsed between committal and trial, during which time the appellant was represented by experienced counsel and was presumably advised of her options. However she did not indicate until the day before trial that she was prepared to plead guilty to manslaughter.
The main issue arising from Mr Fairbrother’s submissions is what constitutes the earliest reasonable opportunity where a charge of murder is amended to manslaughter and then immediately pleaded to. Notably, the appellant had acknowledged to police that she had stabbed the deceased but maintained that she did not have the requisite intention.
This Court’s decision in R v Hessell[9] defined the first reasonable opportunity. In particular, it said it would not be open for the Court to extend the date of first reasonable opportunity on the basis that plea bargaining was underway. Instead, the decision encouraged the accused to write to the prosecutor, communicating a willingness to plead to a lesser charge.[10] The time at which this willingness to plead was communicated would then be the relevant time from which to assess the discount.
[9] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[10] At [41]–[43].
In contrast, the Supreme Court emphasised the considerable discretion that must be accorded to trial judges in determining what was the first reasonable opportunity:
[75] ... Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.
...
[77] All these considerations call for evaluation by the sentencing judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.
In the present case, the Judge considered that the time at which the willingness to plead guilty to manslaughter was communicated was the significant time for the purposes of assessing the discount for the guilty plea.[11] She made a finding that the appellant had notified the Crown of a willingness to plead the day before trial.[12] The Judge concluded that:
The very late manslaughter plea to a murder charged does not qualify as a plea at the first opportunity to an amended indictment. ... The circumstances in which the guilty plea was entered are that on the Sunday prior to trial the Crown was advised of the offer of a plea to manslaughter. On the Monday morning when the trial was due to commence the jury was empanelled and the trial was adjourned while the Crown completed consultation with the Solicitor-General and a summary of facts was agreed by counsel for the Crown and the defence. The guilty plea was then entered on the afternoon of the first day of trial. The plea spared the prisoner’s ten year old son and her fifteen year old sister from giving evidence but that was a prospect they had been obliged to contemplate right up to the eleventh hour. The plea also saved the State the cost of the trial. Accordingly the prisoner is entitled to a limited discount for the late guilty plea. I set that discount at six months.
[11] At [20].
[12] At [20].
We accept Ms Edwards’ submission that there was nothing improper about the Crown initially charging the appellant with murder. We do not see any reason to impose an obligation on the Crown to indicate a willingness to accept a plea to a lower charge so as to provide an opportunity for an accused person to qualify for a discount for an early guilty plea. We are satisfied that the Crown had a sufficient evidential basis for laying the charge of murder. Within a relatively short period after the appellant was charged, she had the opportunity to offer a plea to manslaughter. The same circumstances prevailed then as they did when she in fact made her offer over a year later.
We see this case in very much the same terms as the High Court Judge did: the position taken by the appellant appeared to be that she would pursue a defence of self defence and seek an acquittal at trial. Her decision to change course and offer a plea to manslaughter was a last minute decision. There is nothing wrong with that, but by changing her position late in the day she did not qualify herself for a discount based on an early guilty plea. Because of her last minute decision, the benefits which could have been derived from the guilty plea, such as the use of the Court’s time and the avoidance of stress for potential witnesses, particularly child witnesses, did not accrue. In those circumstances we consider that the approach taken by the High Court Judge was correct and that the discount she gave for the guilty plea was appropriate.
Personal circumstances and remorse
The Judge allowed a discount of three months to reflect personal circumstances and remorse. This amounted to approximately five per cent off the starting point of four years, nine months. The Judge did not separate out personal circumstances from remorse. The relevant personal circumstances identified were the violent relationship between the deceased and the appellant and the fact he had assaulted her prior to their returning home.
Mr Fairbrother submitted that the Judge erred in considering remorse and the personal circumstances together. He submitted that weight should also be placed on the difficult childhood of the appellant, in particular the violent relationship between her parents and the role of intergenerational violence that meant she lacked an “appropriate frame of reference with which to assess a healthy relationship”. Other relevant circumstances included her being “somewhat of a victim” and her mild depression, which was seen as related to the stress of the court processes. He submitted that a discount of some six months from a four year starting point was appropriate.
In terms of remorse, he said that the Judge had accepted that the highest level of remorse was shown, and that accordingly, a greater discount was necessary. The appellant submits that where there is real remorse expressed, a discount of at least eight per cent discount should apply. He said this was the level of discount contemplated by the Supreme Court in Hessell,[13] although he noted that no maximum discount for remorse had been specified by the Supreme Court. Again he submitted that a six month discount from the four year starting point was appropriate.
[13]That is, the difference between the 33 per cent discount for the guilty plea and remorse under this Court’s approach, and the 25 per cent discount available for the guilty plea only under the Supreme Court decision.
Ms Edwards accepted that another Judge may have given greater discount for remorse and other personal factors, but submitted that it was not sufficiently low to mean that the sentence was manifestly excessive in all the circumstances.
We agree with Ms Edwards that a more generous discount may have been available to the Judge. But we do not see the approach taken by the Judge as involving any error on her part. The question we must address is whether the overall sentence is manifestly excessive, and we will come back to that assessment after considering the third point of appeal.
Assessment of culpability
Mr Fairbrother took issue with the Judge’s assessment of the appellant’s culpability. She had rejected his submission that the use of the knife was “unintentional”. The Judge was not prepared to distinguish the case from the facts of other similar cases cited to her,[14] such as Tamati where the offender had deliberately selected a knife as a weapon to scare:
The action of Ms Woods in taking the knife from the kitchen drawer may have been reactive to the situation in which she found herself rather than being selected as a weapon to scare the deceased, but I do not consider the difference significant. In all the cases referred to, including this case, a kitchen knife was a weapon readily accessed by the offender and used in a way that proved fatal.
[14] Discussed at [11] above.
Mr Fairbrother said that the Judge erred in that she ought to have seen the reactive nature of the appellant’s response as distinguishing the case from those like Tamati which had an element of deliberateness. He said the appellant had simply grabbed anything in circumstances of a panic to fend off a perceived imminent attack, and that the fact that the blows were to his chest was attributable to the “dynamics of movement rather than a selection of target”.
We do not consider that the Judge erred in setting the starting point at four years, nine months. If anything this was a generous starting point compared to Stone and Mahari, where the stabbing was aimed at the leg and the shoulder. In both those cases, a starting point of four years, six months applied. The starting point in this case was only three months higher and reflects the more serious nature of stabbing the deceased in the chest. The appellant claimed she was not aware that she had picked up a knife, and suggested at one stage it was a screwdriver. Even if that were so, she still stabbed the deceased in the chest twice with the implement, with sufficient force that the fatal wound was seven centimetres deep.
The starting point was available to the Judge. She did not err in assessing the degree of culpability of the appellant.
Overall assessment
In our view the starting point taken by the Judge was within range, the approach she took to the treatment of the guilty plea was appropriate, and the discount she gave for personal factors including remorse did not involve any error. Overall, we consider that the sentence was not manifestly excessive. In those circumstances we dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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