CARROLL v R [2019] NZCA 172

CARROLL v R [2019] NZCA 172 [21 May 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA55/2018[2019] NZCA 172BETWEEN DOMINIQUE KEREHOMA RACHAELCARROLLAppellantAND THE QUEENRespondentHearing: 9 April 2019Court: Miller, Collins and Toogood JJCounsel: M E Goodwin and E I Haronga for AppellantE J Hoskin for RespondentJudgment: 21 May 2019 at 11.00 amJUDGMENT OF THE COURTA The application to adduce fresh evidence is granted.B The appeal is allowed.C The sentences are quashed and concurrent sentences of 10 years and sixmonths' imprisonment are substituted.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Ms Carroll was convicted at trial on one charge of wounding with intent tocause grievous bodily harm and another of aggravated burglary. She was sentencedto 12 years' imprisonment for each charge, to be served concurrently, with nominimum period. She has abandoned an appeal against conviction but maintains oneagainst sentence.The facts[2] The facts as found by Judge Adeane, who presided over the trial, were asfollows:1[2] It is clear enough now that, acting in concert with a 17 year old girl,Ms Carroll went to the Hastings home of the 77 year old male victim. By wayof background, he had been the landlord of a young male friend of youraccomplice and she had recently spent a night at the house and thereby becomeaware of the old man's circumstances and, of course, of his vulnerability.Her friend had since left the house and he was living alone.[3] The two of you hatched a plan to rob him and you went to his homelate at night. You had armed yourself with a ball peen or engineer's hammerand when you were denied entry to the house you used this, first of all, tosmash open glass so that you could unlock the front door to the house andmake entry. Inside, the elderly occupant was immediately attacked with blowsand kicks, including blows with this hammer. Even when he had been renderedunconscious, a piece of firewood was procured and he was struck about thehead with it. There is some dispute about who was immediately responsiblefor that, but it was used at the very least in the course of a joint combinedattack on him.[4] Little more needs to be said about the savagery of this attack than thatit resulted in three weeks of hospitalisation, extensive lacerations to the headand face requiring remedial stitching, three operations to repair complexfractures to one hand and all the obvious physical and emotional dramaresulting from an attack of this kind in these circumstances.[5] It is also clear enough that you were the principal dispenser of theviolence and you were the individual employing the hammer for that purpose.[6] Once this violence had overcome all resistance, the two of you thenagain jointly plundered the home of any of its modest contents that you couldcarry off.The sentencing[3] When sentencing Ms Carroll's 17-year-old female co-offender, who pleadedguilty before trial, Judge Rea stated that an appropriate starting point for the principaloffender, Ms Carroll, would be 12 years.2 Judge Adeane adopted the same startingpoint when sentencing Ms Carroll, stating that it recognised an abundance of1 R v Carroll [2017] NZDC 28906 [Sentencing decision].2 Sentencing decision, above n 1, at [8] citing R v Allen [2017] NZDC 1741 at [25].aggravating features: premeditation, the use of a weapon, attack to the head, extremeviolence, home invasion, facilitation of theft, vulnerability of the victim and seriousinjury and associated adverse effects for him.3[4] The Judge noted personal aggravating features: Ms Carroll, who is 31, has ahistory of drug abuse and "an acknowledged anger problem" with an evident growingpropensity for violence reflected in her recent criminal history.4 He stated that thathistory is "replete not only with violent offending, but with earlier dishonestyoffending also".5[5] The Judge considered that Ms Carroll presents a high risk of harm to others;she continued to deny any part in the offending despite compelling evidence to thecontrary, the offending was "coldblooded and merciless", and she presented with noacknowledgment or remorse and no apparent willingness to confront and address theunderlying causes of her offending.6 He noted that she has four children but statedthere was nothing in her personal circumstances that would warrant an adjustment.He also noted that she had spent a period on EM bail but he did not make anyallowance for it, stating that "bail was not a foregone conclusion by any means" giventhe gravity of her offending.7The appeal[6] Mr Goodwin, who appeared as Ms Carroll's assigned counsel on appeal anddid not represent her at trial, argued that the Judge had erred by sentencing her on factsnot proved at trial, by adopting a starting point that was too high, and by giving nodiscount for a long period on EM bail.[7] Mr Goodwin also submitted that an allowance ought to be made for culturalfactors. To that end he sought to adduce fresh evidence on appeal,8 in the form of acultural report prepared under s 27 of the Sentencing Act 2002. He submitted that the3 Sentencing decision, above n 1, at [10].4 At [12].5 At [12].6 At [13].7 At [9].8 See Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [103]; and Lundy v R [2013] UKPC 28,[2014] 2 NZLR 273 at [125].report established a causal connection between adverse formative circumstances andthe offending and this merited a discount of up to 25 per cent.The s 27 report[8] The Crown did not oppose admission of the cultural report on appeal.We observe that such reports should not be produced for the first time on appeal.The questions whether a cultural report justifies any allowance in the sentence, and ifso how much, are best answered by the trial judge. Where the opportunity to producesuch a report has not been taken at first instance and it appears to this Court that thereport may make a difference, the proper course may be to remit the matter to the trialjudge for re-sentencing. In this case, however, neither party wanted us to do that.[9] The report was written by Ms Shelley Turner. It records Ms Carroll'sdisadvantaged background. She identifies as Māori but does not know all her iwiaffiliations. She was raised as the whāngai child of her maternal grandmother becauseboth parents had substance abuse issues. She experienced a low standard of living,severe physical discipline, and sexual abuse at the hands of a partner of hergrandmother. She had no early childhood education and was often truant athigh school. Misconduct led to her changing schools and she withdrew from theeducation system after the fourth form with no formal qualifications. In 2006 she wassentenced to six months' imprisonment for driving offences and a spate of offences ofdishonesty. She then settled into steady employment in a shearing gang and met thefather of her children. Unfortunately he was deported as an overstayer in 2014 andthis appears to have had a serious impact upon her. She became involved with theMongrel Mob. Concern about her drug use led to her children being removed fromher care in 2015.[10] Ms Turner considers that there is a causal link between her cultural backgroundand her offending, for several reasons: her limited knowledge of her whakapapa andculture evidences inter-generational displacement; she is a whāngai child raised incircumstances of family violence and abuse, with substance abuse issues and limitededucation which have led her to offend as a young person and limited her employmentopportunities; and she sought refuge in gang culture after losing her partner andchildren. Ms Turner also reports that Ms Carroll has some whānau support from hergrandmother and younger brother. She acknowledges that she should not havemaintained her not-guilty plea, which precluded restorative justice processes. She isnow remorseful for her offending and wants to parent her children. She is stronglymotivated to change and will benefit from drug counselling and parenting courses.[11] We accept that information in the report was not before the sentencing Judgeand is material to sentence. It sufficiently establishes a causal connection betweencultural circumstances and offending, it identifies mitigating circumstances, and itpoints to genuine prospects of rehabilitation. We admit it accordingly.Sentenced on evidence not proved at trial?[12] Mr Goodwin submitted that the Judge relied on evidence not proved at trialwhen he referred to a piece of firewood used as a weapon to attack the elderly victim.This was in issue at trial, with the evidence establishing that DNA recovered fromblood on the piece of firewood belonged to the victim. He submitted that evidence asto how the blood ended up on the piece of wood was equivocal and it might havehappened through transference. Ms Carroll gave evidence at trial and the prosecutordid not put to her that she struck the victim with the piece of wood.[13] We do not think there is anything in this point. The Judge did not find thatMs Carroll had struck the victim with the piece of wood and during sentencing heacknowledged a dispute about who was immediately responsible for that.He concluded rather that the firewood was used at the very least in the course of a jointcombined attack. That finding of fact was open to him.The starting point[14] Mr Goodwin submitted that the Judge failed to properly identifythe aggravating features and erred in his overall evaluation of the seriousness ofthe offending. This was not a case of extreme violence and serious injury. Nor wasthe victim overly vulnerable. He acknowledged that there was an element ofpremeditation, that a weapon (a hammer) was used, that violence was used toincapacitate the victim and steal property from him, that there were two attackers andthe victim was attacked in his home. However, the offending properly falls betweenthe top of band two and bottom of band three in R v Taueki.9[15] The starting point may have been stern, but it was within the available range.We agree with Ms Hoskin that the offending plainly falls within band three. A largenumber of aggravating factors were present in serious degree. Notably, the offendersused extreme violence in a premeditated way to facilitate a burglary, a weapon wasused to attack the victim's head, and the Judge's description of the victim's injuries(see [2] above) was accurate. The victim, who was aged 77, was vulnerable and hewas attacked in his home.Mitigating and aggravating factors[16] As noted, Judge Adeane stated that Ms Carroll has an acknowledged angerproblem with an evident growing propensity for violence reflected in her recentcriminal history. He stated that her history is replete with violent offending. We donot share this view. Ms Carroll has many convictions for offences of dishonesty, butvery few for violence. She only has convictions in 2014 and 2015 for assault.The Judge did not uplift the starting point for previous criminal history, but weconsider that this error has a bearing on his view that Ms Carroll presents a reoffendingrisk.[17] Ms Carroll spent 10 months on EM bail with one breach. It is well establishedthat while EM bail is a mitigating factor,10 there is no rule as to how much discount, ifany, should be given.11 In this case, however, it is common ground that the Judge erredby declining credit for EM bail on the ground that she was lucky to get bail in the firstplace.12 In the circumstances, we consider that a modest allowance was appropriate.[18] That brings us to the s 27 report. For the reasons given above we consider thatit is relevant. It paints a picture of Ms Carroll that detracts somewhat from her9 R v Taueki [2005] 3 NZLR 372 (CA).10 Sentencing Act 2002, s 9(2)(h).11 Chea v R [2016] NZCA 207 at [110] citing R v Faisandier CA185/00, 12 October 2000 at [28];R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; Keown v R [2010]NZCA 492 at [12]; and Rangi v R [2014] NZCA 524.12 See O'Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [44].culpability and points to prospects of rehabilitation. Denunciation and accountabilityare important sentencing considerations in this case. They make a long sentenceinevitable. However, they do not preclude any allowance for cultural factors.13[19] In the circumstances we will make a global allowance of 18 months for EMbail and the factors mentioned in the s 27 report.Result[20] The application to adduce fresh evidence is granted.[21] The appeal is allowed.[22] We quash the sentences of 12 years' imprisonment on the charges of woundingwith intent to cause grievous bodily harm and aggravated burglary and substituteconcurrent sentences of 10 years and six months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent13 See Arona v R [2018] NZCA 427.