KELLY v NEW ZEALAND POLICE [2016] NZHC 2233

KELLY v NEW ZEALAND POLICE [2016] NZHC 2233 [20 September 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000079[2016] NZHC 2233BETWEEN SARAH LOUISE KELLYAppellantAND NEW ZEALAND POLICERespondentCRI-2016-409-000080BETWEEN SARAH LOUISE KELLYAppellantAND THE QUEENRespondentHearing: 20 September 2016Appearances: P N Allan for AppellantD Elsmore and E Henderson for RespondentJudgment: 20 September 2016ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant, Ms Sarah Kelly, appeals against a sentence of two years and one month's imprisonment imposed by Judge Kellar in the District Court on 22 July 2016. The sentence relates to the following convictions:(a) Two counts of theft under $500;(b) One count of robbery;(c) One count of common assault; and(d) One count of assault with a weapon.[2] Ms Kelly pleaded guilty after a sentence indication. She maintains now however that the sentencing Judge erred in not imposing that sentence of home detention. In the alternative, in her Notice of Appeal Ms Kelly appeals her sentence on the ground that the sentence imposed by Judge Kellar in the District Court was manifestly excessive.Background[3] Turning to the background of this matter, the offending was against two victims on separate occasions. The first set of offending was against Victim A, a man Ms Kelly met through an internet dating site. Ms Kelly and Victim A came up with an arrangement in which Victim A would pay Ms Kelly for sex. Around 18 July 2014, Victim A received a text message from Ms Kelly asking if she could move in with him. He replied that she could and she moved in that evening.[4] A few days later, on 21 July 2014, Victim A purchased a pair of DC shoes online and they were delivered to his residence. Ms Kelly intercepted those shoes and subsequently gave them to a friend of hers.[5] Later, on 9 August 2014, it appears Victim A could not find a hoodie he owned. Ms Kelly had taken the hoodie and subsequently gave it to another friend. Victim A contacted Ms Kelly a number of times by text message with regard to the missing hoodie, but Ms Kelly denied taking it.[6] The communication resulted in Ms Kelly deciding to move out of the address. However, certain items of her property and her dog remained there. Victim A and Ms Kelly exchanged text messages on 10 and 11 August 2014 to arrange uplifting of this property.[7] After 2 days, Ms Kelly had not collected the property so Victim A placed it in rubbish bags and put it outside. He sent a message to Ms Kelly informing her of this. She subsequently uplifted the items and then sent text messages to Victim A complaining of damage to her computer tablet.[8] On 16 August 2014, Ms Kelly demanded payment for the damage to the tablet but Victim A said that he was not responsible for that damage.[9] Under the circumstances prevailing in the matters I have just mentioned, the robbery offending occurred. Then, at about 12.15 p.m. or shortly thereafter, Victim A was in the kitchen of his house when Ms Kelly came in through an open door and told him she wanted $60 for the damaged tablet. Victim A told her that he had not damaged her tablet. He got out his phone and tried to ring the police, however Ms Kelly knocked the phone out of his hand and ended up in possession of it. Victim A tried to grab it back and a wrestle ensued. Ms Kelly kept demanding money from Victim A who kept telling her that he had not damaged her tablet and did not owe her any money.[10] Ms Kelly then punched Victim A in the left side of his face with her closed right fist. She then called in a Mr Sanders and a Mr Croswell, co-offenders to this offence. Mr Sanders and Mr Croswell entered and advanced on Victim A, forcing him into the corner of the kitchen.[11] Mr Sanders and Mr Croswell began attacking Victim A, punching him in the body and head. He tried to fend them off. At one stage, Mr Sanders got Victim A in a head lock. Mr Sanders then released Victim A from the headlock and the two co- offenders stopped the assault.[12] Ms Kelly then approached Victim A and again punched him on the left side of his face. All three defendants then began walking around the house looking at various items of property. Ms Kelly started looking for Victim A's laptop which she had earlier threatened to take if the damage to her tablet was not paid for. By this time, the monetary demands had increased to $300.[13] Ms Kelly then told Victim A to tell her where his laptop was otherwise shewould start looking in his flatmate's room. Victim A said he could not afford $300 and could only give her $100. Ms Kelly then said she was going to go into theflatmate's room and Victim A attempted to bar her entry.[14] Ms Kelly again punched Victim A in the face with a closed fist. As a result of the punch, Victim A let her into his flatmate's room. Ms Kelly looked around the room and, not finding what she wanted, walked back into the lounge.[15] Fearing the escalation of the situation, Victim A offered to go to an ATM machine to withdraw some money. An amount of $100 was agreed upon. All three defendants then accompanied Victim A out of the house. As they were leaving,Victim A's flatmate returned. Concerned at what he had observed, the flatmate rang the police.[16] Mr Crosswell then drove everybody to a petrol station. Ms Kelly said she wanted cigarettes as well and increased the demand to $130. Ms Kelly and Mr Sanders walked with Victim A straight to the cash machine. They stood next to him as he withdrew $130 and handed the money to Ms Kelly.[17] The second set of offending happened whilst Ms Kelly was on bail for the earlier offending, this occurring on 3 February 2016. The offending occurred against another victim, Ms Kelly's boyfriend at the time. The facts relating to this matter were as follows. In the early hours of that particular morning, the couple became involved in a heated argument over synthetic drugs. Ms Kelly then picked up a metal handled broom and struck this victim near his right elbow . She then grabbed a metal jug and used it to hit Victim B on his head.[18] Ms Kelly then pushed Victim B, causing him to fall backwards over a chair. She then pushed him again causing him to fall against a wall.Jurisdiction[19] Turning now to the jurisdiction available here, Ms Kelly appeals to this Court as of right.1 Under s 250 of the Criminal Procedure Act 2011, the Court must only allow an appeal against sentence if it is satisfied that there has been an error in the1 Criminal Procedure Act 2011, s 244.sentence imposed and that a different sentence should be imposed.2 The appellant'sright to appeal here is not affected by her application for a sentence indication.3Procedural History[20] Turning now to the procedural history in this matter, for the two charges of theft and one charge of robbery, convictions were entered on 27 April 2016. On the same day, Judge Kellar delivered a sentence indication as to the likely sentences that Ms Kelly and her co-defendants would receive if they pleaded guilty within a specified time period. With regard to Ms Kelly's sentence indication, Judge Kellar in addressing counsel for Ms Kelly said this:Mr Allan I am not quite sure how I would structure this and I am not going to articulate a starting point because I cannot quite figure out where that should be at the moment. The end point that I think I would get to Mr Allan is consideration of a sentence of home detention or community detention and intensive supervision. It might be towards the upper end of either of those sentences and that is subject to all things being equal, so suitable address, she regarded as being suitable and the like.[21] As the sentence indication was delivered to all three of the defendants on the same day, it seems Judge Kellar only turned his mind to the first set of offending, against Victim A.[22] On 22 July 2016, the appellant was sentenced by Judge Kellar to 25 months'imprisonment. The sentence imposed reflected the robbery and theft charges as well as the additional charges of assault with a weapon and common assault. Judge Kellar at the time noted as follows:Ms Kelly, on 27 April this year I gave you a sentence in relation to a reduced charge of robbery and two charges of theft that went alongside it. This was a sentence of home detention or community detention and intensive supervision. In my sentence indication remarks I indicated that the sentence might be at the upper end of those sentences and that it is subject to all things being equal including a suitable address being available, you being regarded as suitable and so on. You accepted that sentence indication and you are now for sentence in respect of those charges. What was not included in the sentence indication are two offences that were committed on 3 February 2016, one an assault under s 9 Summary Act 1981; the assault using a metal broom handle as a weapon. The maximum penalty for which isfive years' imprisonment.2 Section 250(2).3 Section 245[23] In concluding his sentencing, Judge Kellar took the robbery charge as the lead offence, identifying as aggravating features the number of offenders, an element of detention, premeditation, and actual violence including punches to the head. After considering comparable cases, Judge Kellar adopted a starting point of two years andfour months' imprisonment. A concurrent sentence of one month imprisonment was imposed to reflect the two charges of theft.[24] The sentence was then uplifted by six months to reflect the charges on the second set of offending of assault with a weapon and manual assault. This uplift also reflected the fact that those latter offences were committed while the appellant was on bail for the robbery. Judge Kellar then gave a 25% discount for the appellant'sguilty plea. After a further reduction of one month which took into account theprinciple of totality, an end sentence of two years and one month's imprisonment wasreached.Sentence Indication Regime[25] I turn now to consider the sentence indication regime. The sentence indication regime is set out in ss 60 to 65 of the Criminal Procedure Act 2011. The effect of a sentence indication is set out in ss 115 and 116. A sentence indication is a statement by the court of the likely type or quantum of the sentence which will be imposed on a defendant if he or she pleads guilty at that time.4 A sentence indication may be given at the request of the defendant provided that the court is satisfied that it has sufficient information available at that time. As a bare minimum, the court must have a summary of facts, information as to any previous convictions, and a copy of any victim impact statements.5[26] A sentence indication is binding on the judicial officer that gave it unless information become available to the court after the sentence indication and the judicial officer is satisfied that the information materially affects the basis on which the indication was given.6 In circumstances where the Court proposes to impose a4 Section 60.5 Section 61.6 Section 116.sentence of a different type or of a greater quantum, the Court must grant leave to a defendant who applies to withdraw his or her guilty plea.7[27] In a recent decision Scoles-Young v Police, Mander J carefully traversed the judicial approach required to circumstances whereby a sentence imposed had departed from an indicated sentence.8 Scoles-Young v Police involved a case where the sentencing judge had indicated home detention as a possible sentence but ultimately imposed instead a period of imprisonment.[28] On appeal to this Court, Mander J referred first to Biskowiak v Police, a 2015 High Court case where the defendant's sentencing indication in the District Courtincluded the possibility of home detention depending upon the content of a pre- sentence report and the defendant's suitability for such a sentence.9 Despite a favourable report, the defendant was ultimately sentenced to imprisonment, with his previous offending being cited as a key factor in the decision to decline home detention.[29] In allowing the appeal from that District Court decision in Biskowiak, Clifford J in the High Court observed that the sentencing Judge had not made it clear that he was still reserving to himself an opportunity to further assess the significanceof the appellant's previous convictions and the risk of reoffending when he had given the indication. As a result, the appeal in that case was allowed and the case remitted back to the District Court in order to allow the defendant the opportunity to re-plead to the charge.[30] In another case referred to by Mander J, Appuhamilage v Police, a 2015 High Court decision, a sentence of 12 months' imprisonment with the possibility of homedetention was indicated by the District Court.10 However, during sentencing, an additional 200 hours of community work was added to the sentence. The appeal to this Court was also allowed, this time by Moore J. His Honour concluded in that case that the sentencing Judge had erred in failing to give the defendant an7 Section 115.8 Scoles-Young v Police [2016] NZHC 1120.9 Biskowiak v Police [2015] NZHC 486.10 Appuhamilage v Police [2015] NZHC 2355.opportunity to vacate her plea or in failing to impose the sentence which had been earlier indicated.[31] In a further case, this a decision of the Court of Appeal in Taylor v R, a 2013 decision, the Court of Appeal there examined whether a sentence differed substantially from the sentence indicated, to warrant an appellant being afforded the opportunity to vacate a guilty plea.11 This was another case where further information became available to the Judge at the sentencing hearing that had not previously been provided. The Court of Appeal in Taylor observed that where a sentence indication generates an expectation and for whatever reason the expectation is not met, the defendant should be given the opportunity to vacate his or her plea.The focus should therefore be on what the defendant's expectation was, as a result of the sentence indication process.[32] Returning to the High Court decision in Scoles-Young, in that case Mander J held that while the Judge in the District Court indicated the possibility of home detention, this, in the circumstances of that case, did not create an expectation on theappellant's part that those other possibilities such as imprisonment were not available.12 With the sentencing judge later obtaining a more detailed report of the appellant's prior offending, the Judge was entitled to refuse to substitute a sentence of home detention.Analysis[33] Turning now to an analysis in the present case, as I have already noted here, the appellant submits that Judge Kellar was bound by his sentence indication, or in her Notice of Appeal in the alternative, that the sentence he imposed was manifestly excessive.Did Judge Kellar depart from his sentence indication?[34] Turning now to the first question, did Judge Kellar depart from his sentencing indication and in such a way that this would have conflicted with the defendant's11 Taylor v R [2013] NZCA 55.12 Scoles-Young v Police, above n 8, at [29].proper expectation as a result, the appellant here submits that the sentence indication covered all charges against her. This is because the Judge had the summaries of fact before him and had indicated that the police charges would change the length but not the type of sentence. On this aspect, however, I do not accept this submission. The sentence indication was delivered at a time the convictions in respect of the offending against Victim A only were entered. I am satisfied Judge Kellar's sentence indication only referred to that offending. At the stage of sentencing, Judge Kellar expressly noted that the sentence indication did not take into account the later convictions for assault with a weapon and manual assault.[35] Applying the test from Taylor v R, as I see the position, it could not be saidthat Judge Kellar's sentencing was beyond the appellant's expectation as a result ofthe sentence indication process. As I have already noted, Judge Kellar's sentenceindication was also expressly conditional upon the appellant obtaining a positive home-detention report. In Judge Kellar's sentence indication, His Honour repeatedlyemphasised that the sentence was conditional upon "all things being equal, sosuitable address, she regarded as being suitable and the like". As it turned out later, the criteria were accepted as not being met due to what was said to be "the apparent transient nature of people moving through the address, the theme of drug users". In the event that these conditions were not satisfied, as Judge Kellar found to be the case, a sentence of imprisonment was clearly within the appellant's expectationinformed by the terms of the sentence indication.Whether the sentence imposed is manifestly excessive?[36] Turning now to the second ground of appeal noted in the Notice of Appeal itself, on this aspect, before me today Mr Allan effectively withdrew this aspect of the appeal. Notwithstanding this, for completeness I need to say here that I am satisfied the end sentence of two years and one month's imprisonment imposed by Judge Kellar in the District Court was well within range of available sentences in his discretion. In R v Mako, the Court of Appeal identified the following robberyoffending as warranting a starting point of 18 months' to three years'imprisonment:1313 R v Mako [2000] 2 NZLR 170 (CA) at [59].At the other end of scale would be a street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months to 3 years. Actual physical enforcement might well require a higher starting point.[37] While the guideline in Mako essentially applies to aggravated robbery and not robbery simpliciter, the authority is persuasive, in my view, in the context of this case. The robbery here involved multiple offenders acting together by bullying or menacing conduct to enforce demands for money. Actual physical enforcement was used, including punches to the head. Also present were the additional aggravating features of detention and premeditation. Based on these factors, a starting point oftwo years and four months' imprisonment and an end sentence of two years and onemonth's imprisonment finally adopted by Judge Kellar for all the offending here was appropriate. The starting point clearly reflected the features of the robbery offendingResult[38] For the reasons I have outlined above, this appeal is dismissed....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopy to:Phillip Allan, Christchurch