BASSETT v R [2022] NZCA 642

BASSETT v R [2022] NZCA 642 [20 December 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGEOF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA599/2016[2022] NZCA 642BETWEEN MIHI ISIBELLA BASSETTApplicantAND THE KINGRespondentHearing: 22 November 2022Court: Katz, Mander and Downs JJCounsel: I Jayanandan and H N Kim for ApplicantB J Thompson and H S Cunningham for RespondentJudgment: 20 December 2022 at 10:00 amJUDGMENT OF THE COURTThe application for leave to withdraw the notice of abandonment of appealagainst sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Downs J)The issue[1] In 2016, Mihi Bassett received a 10-year term of imprisonment for a violenthome invasion.1 She filed an appeal against sentence but later abandoned that appeal.1 R v Bassett [2016] NZDC 21398 [Sentencing notes].Ms Bassett seeks permission to withdraw her abandonment. This judgment addressesthat application.Background[2] On 8 June 2014, Ms Bassett and other defendants went to the victims' home.They believed one of the victims was a "paedophile" and intended a "hit" on him.The defendants were armed with a shotgun, hammers, and a knife. Ms Bassett andher co-defendants detained the family at gunpoint and then assaulted everyone present(one member of the family managed to escape and ran to get help). The assaults werevicious and gratuitous. The intended target sustained the most serious injuries, whichrequired hospitalisation and surgery. But the most enduring harm to the victimsappears to have been psychological. They describe the offending as life-changing.[3] Ms Bassett was charged with a catalogue of serious offences:aggravated burglary,2 kidnapping (x 4),3 injuring with intent to cause grievous bodilyharm (x 3),4 intentionally causing grievous bodily harm,5 wounding with intent tocause grievous bodily harm,6 theft,7 and intentional damage.8[4] Ms Bassett sought a sentence indication. On 27 September 2016,Judge D J McDonald indicated a starting point of 12 years' imprisonment, mitigatedby 15 percent if Ms Bassett pleaded guilty.9[5] Ms Bassett was then represented by Aaron Dooney, an experiencedcriminal lawyer. Mr Dooney advised Ms Bassett to take time to consider theindication. Ms Bassett did not do so. She pleaded guilty the same day.Judge McDonald sentenced Ms Bassett on 26 October 2016. He imposed a 10-year2 Crimes Act 1961, ss 232(1)(a) and 66.3 Sections 209(b) and 66.4 Sections 189(1) and 66.5 Sections 188(1) and 66.6 Sections 188(1) and 66.7 Sections 219, 223(b) and 66.8 Sections 269(2)(a) and 66.9 R v Lemon DC Whangarei CRI-2014-092-8926, 27 September 2016 [Sentencing indication] at[26].term of imprisonment but no minimum period.10 Ms Bassett was then 23 years of age,albeit she already had extensive experience of the criminal justice system.[6] Ms Bassett instructed Mr Dooney to file an appeal against sentence. He did soon 29 November 2016. Ms Bassett signed the notice, which challenged the sentenceon the conventional basis it was "manifestly excessive".[7] On 13 April 2017, Ms Bassett instructed Mr Dooney to abandon her appeal.Mr Dooney made a file note, which recorded her instruction as "unequivocal".On 18 April 2017, Mr Dooney filed a notice of abandonment on Ms Bassett's behalf.[8] On 29 July 2021, Ms Bassett filed a notice of appeal in relation to bothconviction and sentence. The notice said there was "insufficient evidence" to supportMs Bassett's convictions and the sentence was "very harsh". In relation to the sentenceappeal, the notice of appeal was treated as an application to withdraw the notice ofabandonment. On 27 April 2022, Ms Bassett abandoned her out-of-time convictionappeal. So, the only issue before us is whether Ms Bassett should have permission towithdraw her 2017 abandonment of the sentence appeal. Brief discussion of principleis helpful at this juncture.Principle[9] As its name implies, a notice of abandonment in relation to an appeal bringsthe proposed appeal to an end.11 The appeal may be revived if the appellate courtgrants permission, which is not given lightly. Permission is given in two broadsituations.12 First, when the notice of abandonment is a nullity because it was not theproduct of a deliberate and informed decision by the defendant to end the appeal.Second, in exceptional circumstances when the interests of justice require the court toset the notice of abandonment aside. A relevant consideration is whether the applicanthas identified a clear and material error of fact or law in the decision under appeal, orin the applicant's decision to abandon the appeal.10 Sentencing notes, above n 1, at [10].11 Criminal Procedure Act 2011, ss 214 and 337.12 See for example the discussion in Marteley v R [2021] NZCA 636 at [34] and [37].[10] The principle of finality is an important countervailing consideration whensomeone seeks to set an abandonment aside.13The competing cases[11] Ms Jayanandan's two-page submission on behalf of Ms Bassett did not identifywhich situation governed the application, nor articulate, at least clearly, whyMs Bassett should be permitted to set aside her abandonment of the sentence appeal.[12] In support of her application, Ms Bassett filed a short affidavit in which shesaid:When I was arrested, it was just one month after I turned 21, and I was quitenaive and [had] not been in much serious trouble until then.I recall clearly instructing Mr Dooney to appeal my sentence as I felt that thesentence I received was too harsh. I was young and the sentence seemed likeit would keep me in prison forever.I had been in custody before my trial and was staying strong, handling all thestress and hardship that life in prison brings with it, because I felt that I willbe free at the end of my trial.When I ended up pleading guilty and after I was sentenced, I lost all hope andwent into major depression.At the time when I was sentenced Mr Dooney told me that I had a short timeto decide if I wanted to appeal or not.He was not wrong [and] it was a well known fact in prison that you have 21days to appeal.At the same time, I was in a toxic relationship with one of my co-offenders [She] was very abusive and overpowering. She controlled my life and I wasnot really allowed to think for myself.I was lost. I had no hope, was overwhelmed and I could not think clearly.I felt like I was never going to leave prison.I felt alone, unprotected and unsafe. I realised that the people here inside withme were going to decide what my life would be like and these were not nicepeople.It was not until much later, when my current partner came into my life inprison that things got better for me. I began to get the help and supportI needed.13 At [37(b)].I have received medication for severe depression whilst in prison and havealso managed to find very helpful, the one on one counselling for anger/trauma[and] depression.If I instructed Mr Dooney to withdraw the appeal against Sentence, I have norecollection of doing so.I do not recall signing anything to that effect or speaking to him about it.My primary focus was surviving each day and trying to minimise the abusefrom [my co-offender].[13] Ms Jayanandan gave us a report prepared by Dr Shanmukh Lokesh,a forensic psychiatrist, dated 21 September 2020. The report was prepared inconnection with unrelated offending: an arson committed by Ms Bassett within prisonon or about 12 December 2019. Dr Lokesh examined Ms Bassett on9 September 2020. He said he believed Ms Bassett was suffering post-traumatic stressdisorder, which went back "ten years", due to Ms Bassett being the victim of a violentcriminal offence.14 Dr Lokesh also said Ms Bassett appeared to have suffered a majordepressive disorder within prison, which culminated in her attempting to take her lifeon 22 January 2020.[14] Mr Dooney swore an affidavit on behalf of the Crown.15 He said he acted forMs Bassett for almost two years, and she was "confident and outspoken despite herrelative youth". Mr Dooney said he never had concerns about Ms Bassett's mentalhealth, she never raised any with him, and the material in the file raised no suchconcerns.[15] Ms Bassett was cross-examined at the hearing. So too, extensively,Mr Dooney.[16] Ms Bassett said she had little recollection of her dealings with Mr Dooney anddid not remember instructing him to abandon the appeal. However, Ms Bassett agreedshe was "outspoken" when interacting with Mr Dooney. She also agreed she was14 Detail is not required.15 Ms Bassett waived legal professional privilege.housed in a maximum security unit between August 2019 and December 2020, a pointwe return to shortly.[17] Against this background, Ms Jayanandan said Ms Bassett was not contendingher notice of abandonment constituted a nullity. In particular, Ms Jayanandan said shedid not rely on Dr Lokesh's report to argue Ms Bassett did not make an informeddecision to abandon the appeal; rather, she relied on the report to demonstrate possiblelinkage between Ms Bassett's post-traumatic stress disorder and her commission ofthe 2014 offences. Ms Jayanandan said the interests of justice favoured granting leaveto withdraw the 2017 abandonment as this possible linkage could mitigate the 10-yearsentence imposed by Judge McDonald, especially as the Judge said this when he gavethe (earlier) sentence indication:16Ms Bassett, again you have a list of criminal convictions, but again none ofthem are of like offending as that you face here. I would not uplift. I wouldgive you 15 percent discount for your plea. I would not impose a non-paroleperiod. Of course, I would call, if you pleaded guilty, for pre-sentence reportsand for any other reports such as psychological reports that your counsel mayconsider would be appropriate. The sentence indication I give to you wouldbe the maximum. If other matters are thrown up in the sentence report which[call] for a further discount, of course, you would be entitled to that. However,there would be no increase from what I give you today.[18] Ms Jayanandan said the italicised passage demonstrated Judge McDonaldexpected to receive a psychological report in relation to Ms Bassett, and if one hadbeen prepared for sentencing, it would have demonstrated linkage between theoffending and Ms Bassett's post-traumatic stress disorder.Analysis[19] We confess to finding Ms Jayanandan's submissions a little difficult to follow.That said, we are satisfied we should not give Ms Bassett permission to withdraw herabandonment of the sentence appeal irrespective of how her case is framed. We makesix points.[20] First, we have no reason to doubt the truthfulness or accuracy of Mr Dooney'sevidence, including his account of Ms Bassett's instruction to abandon the appeal.16 Sentencing indication, above n 9, at [25] (emphasis added).This aspect is supported by a contemporaneous file note, which again, records theinstruction as "unequivocal". Mr Dooney's description of the instruction is consistentwith Ms Bassett being "outspoken" in her interactions with him, which sheacknowledged as correct under cross-examination.[21] Second, Dr Lokesh's report does not support the proposition Ms Bassett couldnot make an informed decision about abandonment in April 2017. Several points arisehere. The report was prepared for an unrelated offence and a different purpose: tomitigate an in-prison arson committed on or about 12 December 2019. Dr Lokesh wasnot asked about Ms Bassett's state of mind in 2017. Unsurprisingly then, his reportsays nothing about this topic. In any event, the major depressive disorder discussedby Dr Lokesh appears to have coincided with Ms Bassett's incarceration in a maximumsecurity unit. As foreshadowed, Ms Bassett agreed this was between August 2019 andDecember 2020, hence more than two years after Ms Bassett abandoned the appeal.We acknowledge Dr Lokesh also said Ms Bassett appeared to have suffered post-traumatic stress disorder for approximately 10 years. However, Dr Lokesh did notsuggest this would preclude Ms Bassett from giving instructions to a lawyer.[22] Third, Ms Bassett's affidavit implies a co-defendant, with whom she was in arelationship, precluded her from pursuing the appeal rather than some other causebeing operative. However, Ms Bassett accepted in cross-examination she did not tellMr Dooney about that alleged influence. Mr Dooney detected no such influence.[23] Fourth, we do not accept Judge McDonald expected to receive a psychologicalreport in relation to Ms Bassett. The remark needs to be understood in context.The Judge was merely saying he would consider any reports placed before him whendetermining the existence of, and weight to be given to, mitigating features.[24] Fifth, we do not read Dr Lokesh's report as identifying linkage between the2014 offending and Ms Bassett's post-traumatic stress disorder. Dr Lokesh did notposit any such linkage; he was, of course, concerned only with the 2019 arson, andwhat sentence might be passed in relation to it. We reiterate a point we made at [21]:there are obvious dangers in relying on a psychological report prepared about anunrelated offence and for a different purpose.[25] Sixth, Ms Jayanandan's submission a timely psychological report would havedemonstrated linkage between the offending and Ms Bassett's post-traumatic stressdisorder is speculative. Again, we have no evidence of any such linkage. Relatedly,the argument that this issue should now be explored is answered, firmly, by theprinciple of finality. The five victims would all have concluded, quite reasonably, thecourt case was behind them. So too their local community. The offending occurredin 2014. Ms Bassett pleaded guilty in 2016. She was sentenced the same year.She abandoned the appeal in 2017. Even the most recent of these events is now fiveyears ago. Ms Bassett's explanation for the delay is unconvincing, a conclusionbuttressed by our advantage in observing Ms Bassett testify. The interests of justicedo not, therefore, support the abandonment being set aside.Result[26] The application for leave to withdraw the notice of abandonment of appealagainst sentence is declined.Solicitors:Crown Law Office, Wellington for Respondent