A (CA230/2017) v R [2018] NZCA 61

A (CA230/2017) v R [2018] NZCA 61 [21 March 2018]ORDER PROHIBITING PUBLICATION OF THE NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF THE APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF THE NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF THE VICTIMPURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF THE NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF CO-DEFENDANTSPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF DETAILS OF ASSISTANCEGIVEN BY THE APPELLANT TO THE POLICE.IN THE COURT OF APPEAL OF NEW ZEALANDCA230/2017[2018] NZCA 61BETWEEN A (CA230/2017)AppellantAND THE QUEENRespondentHearing: 13 February 2018Court: Cooper, Ellis and Katz JJCounsel: R A B Barnsdale for AppellantJ E Mildenhall for RespondentJudgment: 21 March 2018 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the name, address, occupation oridentifying particulars of the appellant pursuant to s 200 CriminalProcedure Act 2011.D Order prohibiting publication of the name, address, occupation oridentifying particulars of the victim pursuant to s 202 CriminalProcedure Act 2011.E Order prohibiting publication of the names, addresses, occupations oridentifying particulars of co-defendants pursuant to s 200 CriminalProcedure Act 2011.F Order prohibiting publication of details of assistance given bythe appellant to the police.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] In June 2015 Ms A was one of five women involved in the violent stand-overof another woman in her own home. Following a sentence indication in August 2016,Ms A pleaded guilty to one charge of aggravated burglary. On 20 September 2016,she was sentenced to three years and three months' imprisonment. The Judge arrivedat that end sentence after affording Ms A a discount of 33 months for mitigatingfactors. This included credit of four months for her offer to give evidence at the trialof some of her co-offenders.[2] The next month, Ms A followed through on her offer and gave evidence at thetrial of the principal offender, Ms E. Ms E was convicted. Ms A now seeks leave toappeal her sentence out of time. The sole ground of her appeal is that her sentencewas manifestly excessive because the prospective discount given for her assistance atMs E's trial was insufficient.[3] The application for leave is not opposed and we grant leave accordingly.The offending[4] On 15 June 2015, Ms A was at an address in a Waikato town together withMs B, Ms C, Ms D and Ms E. They conceived a plan to rob Ms X, whom they believedwas in possession of a significant amount of money and methamphetamine. Ms E wasthe architect of this plan.[5] In the early morning of 19 June 2015, the five women went to McDonalds andleft with an empty soft-drink cup. They then went to a service station where Ms Afilled the cup with petrol. From there, they continued to Ms X's house.[6] The plan was that Ms D (who was known to Ms X) and Ms A would knock atthe door and, when she opened it, Ms A would throw the petrol in her face. Ms E hada butane torch with her. But when the moment came for Ms A to throw the petrol, shefroze. Ms E then grabbed the cup from her and threw the contents atMs X's face. Both Ms E and Ms A then chased her down the hallway, through abedroom to the en suite bathroom.[7] Ms X managed to lock herself inside the bathroom. Ms A kicked at the doorand threats were made. The butane torch was lit and thrust under the door in an attemptto set the carpet alight.[8] Ms X came out of the bathroom and was taken to the lounge. Around this time,Ms D and Ms A left the house and went to the driveway of the house next door.[9] Ms E, Ms C and Ms B then assaulted Ms X, including with rocks. Theydemanded property and money. Ms X was stripped, searched and made to squat andcough to see whether she was concealing anything. Ms B then took Ms X to an ATMwhere she was forced to withdraw money and hand it over. She was taken to the housewhere the plan had originally been conceived and beaten again. Ms A andMs D also went back to this address. Ms E gave Ms A $50 cash and told her to go andbuy cigarettes and alcohol. After doing that, Ms A left the house and took no furtherpart in the offending.[10] While at the address, Ms X was told to contact her father and tell him sheneeded $10,000 to settle a drug debt or she would not be seen alive again. Ms B andMs C then took her back to her own house. Ms X's father called police who went tothe victim's house and found the three women there. Charges were later filed againstall five women.The sentencing of Ms B[11] On 3 August 2015 Ms B pleaded guilty to aggravated robbery, aggravatedburglary and kidnapping. She was sentenced in October 2015.1 Judge Riddell adopteda starting point of eight years' imprisonment and applied a 25 per cent discount for herguilty pleas,2 leaving an end sentence of six years' imprisonment.3[12] Subsequent to her sentencing, Ms B was asked by police if she would giveevidence for the Crown at the trial of her four co-offenders. She agreed, on theunderstanding that if she provided truthful evidence at the trial, the Crown wouldsupport a sentence appeal on the grounds that there had been a significant change incircumstances.[13] As it transpired, Ms E was the only co-offender who went to trial. Ms B gaveevidence as agreed.[14] In Ms B's subsequent sentence appeal, the Crown acknowledged that she hadprovided a detailed formal statement to the police, that she had fully come up to briefand that her evidence at trial was important. In his judgment on the appeal, given on8 June 2017, Mander J noted that, while the Crown would have been able to proceedto trial without Ms B's evidence, its importance to the Crown case was demonstratedby the fact she had been approached by the prosecution.4 He held that although thesentence imposed in the District Court had been entirely within range, the Court didnot anticipate Ms B's later assistance, and could not have done so.5 Accordingly, the1 R v [B] [2015] NZDC 21022.2 At [34].3 At [35].4 [B] v R [2017] NZHC 1243 at [23].5 At [8].sentence originally imposed should now be regarded as manifestly excessive.6His Honour considered it appropriate to allow a further 25 per cent discount torecognise her co-operation and assistance.7 He quashed the sentence of six years'imprisonment and substituted a sentence of four years.Ms A's sentence indication and sentencing[15] In the meantime, on 29 August 2016, Judge Cocurullo had given sentenceindications for both Ms D and Ms A in relation to a single charge (each) ofaggravated burglary.8 The Judge indicated Ms A's culpability warranted a startingpoint of six years' imprisonment. In terms of discounts, he said:9In my view the [guilty plea] discount accordingly to be afforded to you is oneof 20 percent discount to the starting point of six years' imprisonment. Ofcourse I again specifically leave off the topic as set out in paragraphs 3 and 7of Mr Walsh's submissions — that issue for further discount considerationand I repeat the general comment that I made that if such occurs in theaffirmative, a discount would follow the issue being that the Court is unableto appreciate what that would be to give a definitive response.[16] It can be inferred that the "topic" so obliquely referred to here is the possibilityof Ms A giving evidence against her co-offenders.[17] Ms A then pleaded guilty. She was sentenced on 20 September 2016. Duringher sentencing, the Judge was advised that she had signed a letter in which sheexpressed remorse and recorded her agreement to give evidence against herco-offenders. The possibility of such assistance was acknowledged by the Crown'ssubmissions to be a potential mitigating factor.[18] In his sentencing notes, the Judge addressed the question of discounts asfollows:10[3] I heard from the Crown and your lawyer. They succinctly put the threematters that I want to address before me. They are, what discount I wouldgive to you for the duress aspect in the offending and I will come back to thatin a minute. The second is of a matter well known to your lawyer that I call a6 At [8].7 At [25].8 R v [D] DC Hamilton CRI-2015-019-3742, 29 August 2016.9 At [17].10 R v [A] [2016] NZDC 18385.sensitive issue and the third is of your personal circumstances. You will beaware that I gave a sentencing indication of 6 years' imprisonment with a20 per cent discount for a guilty plea. What, of course, I would do there isstart at the six years, appreciate any further discount for you and then re-applythe 20 per cent discount.[4] I move to the aspect of duress. You did not pursue a compulsiondefence. The Court looks at that position responsibly in this way. This is notsomething fanciful that has been dreamed up by a defendant. Your lawyer hascarefully in submissions set out the evidence and the principled basis on whichthe Crown hold evidence to suggest that you were under some form of duressduring this offending. I remind myself that your involvement essentiallystopped at a time shortly after the bathroom incident and others went on to dogreater and more significant violence than you. What I intend to do in respectof the duress issue is discount the starting point by a period of10 months' imprisonment. The sensitive issue needs to be dealt with carefullyand I appreciate a reduction there in the way both the lawyers have agreed thatshould go by simply attributing your willingness to address that matter by afurther discount of four months.[5] I turn to your personal circumstances. I have read carefully yourpre-sentence report. It tells me much about you. I am well aware of thestruggles that you have come from. I am also well aware of the significancethat illicit drugs have played in your life. I am well aware of your remorseand I am well aware that you have young children and I am well aware of thereal difficulties there are in that respect and what your incarceration will bring.I think here I can look at your personal circumstances in a somewhat mercifulway and what I intend there is to apply a further deduction of nine months'imprisonment in respect of those matters.[19] Accordingly, from the six year starting point, his Honour allowed a totaldiscount for personal mitigating features (other than the guilty plea) of 23 months, fourof which were for Ms A's willingness to assist the authorities.11 Those discountsbrought the sentence down to one of four years and one month imprisonment. Afterapplying the 20 per cent discount previously indicated for the guilty plea, Ms A wassentenced to three years and three months' imprisonment.Ms D's sentencing[20] Ms D also pleaded guilty following Judge Cocurullo's sentence indication.The Judge had assessed Ms D's culpability as less than that of Ms A and had indicateda starting point of five years' imprisonment with an uplift of one month for herprevious convictions for assault. At sentencing she received a 10 month discount onaccount of "duress" from Ms E, 12 months for her personal circumstances and remorse11 Again, we accept that the "sensitive issue" referred to by the Judge at [4] was a reference to thiswillingness.and four months for an offer of assistance to authorities. With a 20 per cent guilty pleadiscount, her end sentence was two years and four months' imprisonment.Ms C's sentencing[21] In October 2016, on the first day of trial, Ms C pleaded guilty to charges ofaggravated burglary, kidnapping and aggravated robbery. At sentencing,Judge Marshall (having by then presided over Ms E's trial) regarded Ms C'sculpability as greater than that of both Ms D and Ms A and on a par with that of Ms B.12The eight year starting point adopted for Ms B was therefore applied. Unlike Ms Aand Ms D, who had both received discounts for being influenced by Ms E's"overbearing manner", Ms C was said to have been "fully involved" and no suchdiscount was warranted.13 She did, however, receive a six month reduction forundertaking a number of self-improvement courses.14 With a 10 per cent discount forher late guilty pleas, Ms C was sentenced to six years and 10 months' imprisonment.Ms E's trial and sentencing[22] Both Ms B and Ms A gave evidence at Ms E's trial. Ms E was found guilty attrial of aggravated robbery, aggravated burglary, kidnapping, assault with a weapon,assault with intent to injure and demanding with intent to steal. At sentencing,Judge Marshall said that she was the most culpable of the five women.15 The Judgeconsidered the appropriate starting point for her, as ringleader, was nineyears' imprisonment, reduced by 18 months in recognition of her health difficultiesand for "allowing the trial to progress smoothly".16 The end sentence was seven yearsand six months' imprisonment.1712 R v [C] [2016] NZDC 21095 at [15]–[16].13 At [24].14 At [25].15 R v [E] [2017] NZDC 997 at [8].16 At [8]–[9].17 At [16].Ms A's appeal: discussion[23] As noted earlier, the sole ground of appeal is that insufficient credit wasafforded to Ms A for giving evidence against Ms E. More particularly, Mr Barnsdalesubmitted that:(a) a discount of five per cent was too little and an application of thisCourt's decision in R v Hadfield suggested that a discrete discount ofbetween 10 and 20 per cent for Ms A's assistance was warranted;18 and(b) the sentencing Judge failed to assess the "value" of Ms A's evidence inthe context of Ms E's trial.[24] In Hadfield, Mr Hadfield offered to, and did, assist in the detection andapprehension of four other people involved in the importation of 800 grams of puremethamphetamine. The police acknowledged that without his assistance they wouldnot have discovered the identity of these other offenders, two of whom pleaded guilty.The sentencing Judge gave a 45 per cent discount for Mr Hadfield's guilty plea andassistance to the authorities.19 After being sentenced Mr Hadfield gave evidence atthe trial of the two other offenders. He appealed his sentence on the ground that thiswarranted a further discount. The Court of Appeal accepted that the sentence had onlytaken into account his cooperation and assistance prior to sentencing. The Courtallowed Mr Hadfield a further discount of 15 per cent.[25] In accepting that the appropriate discount to be applied will depend upon thevalue or quality of the assistance provided, the Court referred to the principles asarticulated by the English Court of Appeal:20Value is a function of quality and quantity. If the information given isunreliable, vague, lacking in practical utility or already known to theauthorities, no identifiable discount may be given or, if given, any discountwill be minimal. If the information given is accurate, particularised, useful inpractice, and hitherto unknown to the authorities, enabling serious criminalactivity to be stopped and serious criminals brought to book, the discount may18 R v Hadfield CA337/06, 14 December 2006.19 The Court of Appeal proceeded on the assumption that 15 per cent was for assistance and 30 percent was for the guilty plea and remorse.20 At [28], citing R v A [1999] 1 Cr App R (S) 52 (CA) at 56.be substantial. ... Where, by supplying valuable information to the authorities,a defendant exposes himself or his family to personal jeopardy, it willordinarily be recognised in the sentence passed. For all these purposes,account will be taken of help given and reasonably expected to be given in thefuture.[26] Similarly, this Court observed in Williams v R:21[11] The key determinant of the discount to be given for assistance willgenerally be its value. Other factors, such as the nature of the assistance given(including whether the informant gives or is prepared to give evidence at trial),the degree of personal risk involved and adverse consequences suffered willalso be weighed where relevant. But they will count for little if theinformation itself has no practical value.[27] In the present case, however, there are a number of difficulties with theargument advanced by Mr Barnsdale.[28] First, despite the fact that Mr Barnsdale urged upon us the need to quantify thevalue of Ms A's evidence, he candidly accepted that this task would be a difficult one.He did not proffer any tools with which that exercise might be undertaken. Althoughwe were provided with a transcript of Ms A's evidence at Ms E's trial, it wascompletely devoid of context. Mr Barnsdale rightly acknowledged that it was notpossible to tell from it whether she added in any material way to the evidence givenby Ms B which, as we have recorded above, the Crown has previously accepted wasof significant value.[29] Secondly, and as Ms Mildenhall said, Ms B's guilty plea in 2015 together withher much earlier willingness to help the police may well have played a part in the someof her co-offenders (including Ms A) later seeking sentence indications and enteringguilty pleas. Ms A did not communicate a willingness to assist the authorities untilafter it became apparent that Ms B would be a witness at her upcoming trial.Accordingly, to the extent it is possible to assess the relative usefulness of Ms B'sassistance and that of Ms A, the scales weigh heavily in favour of Ms B.[30] Thirdly, the sentencing Judge was aware of Ms A's offer to give evidence and,in taking it into account, we think he must have proceeded on the assumption that she21 Williams v R [2011] NZCA 384.would follow through. In that way Ms A's case is quite different from that of Ms Band Mr Hadfield, where the relevant assistance was not known about at the time ofsentencing and so was not, and could not have been, factored into the sentence eachof them received.[31] The last difficulty with Mr Barnsdale's position is also the most fundamental.Even if we were persuaded that a greater discount should have been allowed for Ms A'sassistance (which we are not) we would still need to be satisfied that Ms A's endsentence was manifestly excessive. We agree with Ms Mildenhall that there are othercomponents of the sentence that appear to be generous. In particular, we note that:(a) a 20 per cent discount was given for a guilty plea entered over a yearafter her first appearance, over a year after Ms B's plea and only twomonths before trial; and(b) there was no uplift for Ms A's previous convictions (in 2007 and 2013)for aggravated robbery, burglary, threatening behaviour and robbery.[32] The reality is that Ms A received a total discount of 46 per cent (33 months)for mitigating factors and her guilty pleas. The Judge's starting point isunimpeachable. There is nothing jarring when Ms A's sentence is compared with thosereceived by her co-offenders, once their different respective circumstances are takeninto account. There is, accordingly, no basis upon which we could conclude that theend sentence was excessive, let alone manifestly so.Result[33] The application for an extension of time to appeal is granted.[34] The appeal is dismissed.[35] For the purpose of protecting the safety of the appellant, we make an orderprohibiting publication of the name, address, occupation or identifying particulars ofthe appellant pursuant to s 200 of the Criminal Procedure Act 2011.[36] In order to protect the identity of the appellant, we make an order prohibitingpublication of the name, address, occupation or identifying particulars of the victimpursuant to s 202 of the Criminal Procedure Act 2011.[37] For the same reason, we make an order prohibiting publication of the names,addresses, occupations or identifying particulars of co-defendants pursuant to s 200 ofthe Criminal Procedure Act 2011.[38] Finally, and again for the purpose of protecting the safety of the appellant, wemake an order prohibiting publication of details of assistance given by the appellantto the police.Solicitors:Crown Law Office, Wellington for Respondent