RUDOLPH v R [2019] NZCA 451

RUDOLPH v R [2019] NZCA 451 [24 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA239/2019[2019] NZCA 451BETWEEN TERRANCE CLINTON RUDOLPHAppellantAND THE QUEENRespondentHearing: 8 August 2019Court: Kós P, Woolford and Dunningham JJCounsel: S Brickell for AppellantJ E Mildenhall for RespondentJudgment: 24 September 2019 at 9 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)Introduction[1] Terrance Rudolph, the appellant, was sentenced on 14 May 2019 to two yearsand 10 months' imprisonment on:1(a) one charge of aggravated robbery; and1 R v Rudolph [2019] NZHC 1050.(b) one representative charge of dishonestly using a document.[2] The appellant now appeals her sentence,2 on the grounds that there is a markedand unjustifiable disparity between the sentences imposed on her and on herco-offenders in this case.3[3] She says this has arisen because:(a) the starting point adopted was too high when compared with the startingpoint taken for her co-offenders, and in light of her relative culpability;and(b) there is no justification for her co-offenders receiving greater discountson account of personal mitigating factors.The facts[4] In the early hours of 15 January 2017, one of the appellant's co-offenders,Asia Robertson, was at a bar on Karangahape Road where she met the complainant.At around 3.00 am they agreed to leave the bar together. On the way tothe complainant's house, they picked up another co-offender, Carly Goodson.The three of them then drove in the complainant's car to a motel in Epsom.The appellant was already at the motel unit.[5] After the group arrived, Ms Goodson and the complainant went into a bedroomtogether. The complainant had agreed to pay Ms Goodson for sex. At that pointanother co-offender, Nykell-T Hegotule, burst into the bedroom. He was armed witha large kitchen knife and was wearing a T-shirt emblazoned with a gang logo.Mr Hegotule told the complainant he was a gang member and he demandedthe complainant's money and threatened to stab him. Ms Robertson entered the roombringing the complainant's phone with her. The appellant then entered the room, alsoholding a knife.2 Criminal Procedure Act 2011, s 244.3 Although the appellant was born male, we refer to her using feminine pronouns as she identifiesas transgender.[6] Ms Robertson and Mr Hegotule demanded the complainant's PIN number.They directed him to transfer $5,000 to a bank account of their choosing but then toldhim to cancel the transfer. They took his mobile phone and wallet. The appellant andMs Robertson told the others that they were going to an ATM to withdraw moneyusing the complainant's bankcard. As they were leaving the complainant made anattempt to flee through a ranch slider. Ms Robertson was standing in the doorwaywhile the appellant was standing just outside. They blocked the complainant fromleaving. Mr Hegotule punched the complainant in the back of the head and hecollapsed, dazed. He was hit again, then bound and gagged.[7] The appellant and Ms Robertson left the motel in the complainant's car.The appellant withdrew $2,800 from various ATMs in the area. Mr Hegotule andMs Goodson left the motel soon after. The complainant was abandoned at the motel,still bound and gagged. Eventually, he managed to free himself and summon help.He was subsequently treated for a fractured eye socket and concussion. The moneywhich was stolen from him was never recovered or repaid.Sentencing of co-offenders[8] Ms Robertson was sentenced by Woodhouse J on 27 June 2018 having pleadedguilty to charges of:4(a) aggravated robbery;(b) kidnapping;(c) unlawfully taking the complainant's car; and(d) dishonestly using a document, namely the complainant's card.[9] Ms Robertson at 18 years old, was the youngest by eight years of allfour offenders.5 The starting point on all charges was four and a half years'4 R v Robertson [2018] NZHC 1557.5 At [8].imprisonment.6 After a deduction of 20 per cent for personal circumstances and15 per cent on account of her youth, along with the guilty plea discount of 20 per cent,the end sentence was two years and four months' imprisonment.7[10] Mr Hegotule and Ms Goodson proceeded to trial. Mr Hegotule was foundguilty of:(a) demanding with intent to steal;(b) injuring with intent to injure;(c) aggravated robbery;(d) kidnapping; and(e) dishonest use of a document.[11] The starting point adopted by Whata J for Mr Hegotule was five years'imprisonment.8 His sentence was reduced by 20 per cent on account of personalmitigating factors, resulting in an end sentence of four years' imprisonment.9Mr Hegotule was a second strike offender, and thus will have to serve his sentencewithout parole.10[12] Ms Goodson was found guilty at trial of:(a) demanding with intent to steal;(b) kidnapping; and(c) dishonest use of a document.6 At [3].7 At [4]–[18].8 R v Hegotule [2018] NZHC 2790 at [8].9 At [15] and [18].10 At [17].She was acquitted on the charge of aggravated robbery.[13] A starting point of two years and nine months' imprisonment was taken byWhata J with kidnapping as the lead charge.11 After an adjustment of 15 per cent forpersonal mitigating factors, and of four months (12 per cent) for time spent on EM bail,an end sentence of two years' imprisonment was imposed.12[14] The appellant was not sentenced until much later. This is because, having beengranted EM bail on 15 September 2017, she removed her EM bracelet on6 December 2017 and absconded. A warrant for her arrest was issued. She was onlyre-arrested on 3 November 2018 after the trial for Mr Hegotule and Ms Goodson hadconcluded. She eventually pleaded guilty to aggravated robbery and dishonestly usinga document on 1 March 2019.13The sentencing decision[15] On 14 May 2019 Moore J sentenced the appellant. He set a starting point ofthree years and nine months for the aggravated robbery.14 In doing so, he undertooka comparison between the respective levels of culpability between her and herco-offenders. The Judge noted that the appellant's role in the offending was moresignificant than Ms Goodson's, whereas Ms Robertson's role was more serious thanthe appellant's in that she was involved in an element of planning of the offending.15[16] In terms of the aggravating features of her offending, the Judge identified thatthe appellant was "a willing and active participant" who armed herself with a kitchenknife.16 Furthermore, she "actually carried out the purpose of the robbery by visitingthe ATMs and withdrawing funds".17 He added that she helped preventthe complainant's desperate attempt to escape.18 However, he accepted that she was11 R v Goodson [2018] NZHC 3155 at [13].12 At [14]–[16].13 The Crown offered no evidence on the other charges which were duly dismissed.14 R v Rudolph, above n 1, at [32].15 At [29]–[31].16 At [30].17 At [30].18 At [30].not involved in the planning of the offending, rather she was only involved once it was"actually unfolding".19[17] From the starting point of three years, nine months the Judge applied a discountof 10 per cent for the appellant's "deprived social background, limited expressions ofremorse and efforts at rehabilitation".20 The Judge considered the claim for a discretediscount for remorse was difficult to reconcile with her decision to abscond for alengthy period of time.21 He also noted that larger discounts for deprivation "tend torely on identifying linkages between personal circumstances and the offending andthus the moral culpability of the offender".22 However, in this case, he considered thenexus between her deprived background and the offending was unclear.[18] Finally, the Judge applied a discount of 15 per cent for her guilty pleas, notingthat it was a "very generous discount", perhaps even "overly generous".23The appeal[19] Mr Brickell presented the appeal on the sole ground that the disparity withthe sentences of the appellant's co-offenders was such that the appeal should beallowed on the basis that the disparity would lead a "reasonably minded independentobserver" to believe that "something had gone wrong with the administration ofjustice".24[20] In response to our questions, Mr Brickell accepted that the sentence, viewedindependently of the other sentences, was not so out of range that it would warrantsetting aside on appeal.[21] That said, his submissions advanced the appeal on the basis of two allegederrors in sentence which warranted a different sentence being imposed. First, hesubmitted that the Judge erred in assessing the appellant's culpability, saying she19 At [31].20 At [45].21 At [40].22 At [43], citing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.23 At [47].24 R v Lawson [1982] 2 NZLR 219 (CA) at 223.should have been regarded as the least culpable offender. Her involvement inthe aggravated robbery was to enter the bedroom sometime after Ms Robertsonholding a knife that she had been using earlier in the evening for cuttingmethamphetamine. She did not use the knife or threaten the complainant with theknife and was not involved in the planning of the robbery.[22] Mr Brickell took issue with the Judge saying that the appellant "followed"Ms Robertson into the bedroom with a knife, rather than that she came sometime later.He also took issue with the Judge's characterisation of the statement in the summaryof facts that the appellant blocked the complainant from leaving the bedroom asassisting in the complainant's detention. He said this inference was not reasonablyavailable from the agreed summary of facts. It was her "mere presence" whichblocked the complainant from leaving rather than that she had an intention to stop himfrom doing so.[23] Accordingly, looked at in the round, Mr Brickell submitted that the appellant'sstarting point of three years and nine months' imprisonment was too high when herculpability is measured against that of her more culpable co-offenders who also faceda greater number of charges. In particular, he considered that the difference of a yearin starting point between Ms Goodson and the appellant was too great.[24] The second challenge to the sentence related to the level of discountthe appellant received for personal mitigating factors.[25] The psychological report presented by Dr John Nuth which was available atsentencing pointed out that the appellant identifies as transgender and was living onthe margins of society. She lived in a household where her father was physically andmentally abusive, particularly towards her mother. She suffered significant trauma inher life, including witnessing her sister being raped when she was seven. She wasplaced into CYFS's care and she reported moving between 23 different foster homes.She was introduced to drugs at age 10 and then sold into prostitution at the age of 12,which is when she developed a methamphetamine addiction.[26] Despite that, Dr Nuth noted that the appellant was not beset with mental healthdifficulties or prominent personality problems, nor did she have an entrenchedpro-criminal attitude. She therefore had good prospects of rehabilitation and she waswilling to engage in restorative justice.[27] Mr Brickell pointed out that Mr Hegotule, who came from a more stablebackground but turned towards gangs in his late teens, was afforded a 20 per centdiscount for personal mitigating factors. Similarly, Ms Goodson, although notconvicted on the aggravated robbery charge, was afforded a discount of 15 per centfor compassion shown towards the complainant, her difficult upbringing and herprospects of rehabilitation.[28] In short, in light of her compelling personal circumstances and her remorse andprospects of rehabilitation, Mr Bicknell submitted that the appellant should also havereceived a discount of 20 per cent.Discussion[29] We do not consider the appeal can succeed on the grounds of disparity ofsentence with the appellant's co-offenders.[30] First, we do not depart from the Judge's ranking of culpability. He was acutelyconscious of the fact that the co-offenders had been sentenced by two different Judgesand on different combinations of charges and he took some care to establish theirrelative culpability. We consider he was correct to see the appellant's offending asmore culpable than Ms Goodson's, but less culpable than Ms Robertson's.[31] We do not consider the fine distinctions Mr Brickell seeks to draw fromthe summary of facts as warranting a different starting point. The appellant went intothe bedroom with a knife. Whether she followed Ms Robertson immediately or aftera short interval of time, it makes no practical difference to the fact she participated inthe aggravated robbery. Similarly, we accept that the complainant was blocked fromleaving by the appellant and Ms Robertson and this was properly treated as anaggravating feature of the offending. We are therefore satisfied that the Judgeconsidered all the circumstances of the offending in determining the starting point, andproperly recognised the appellant's culpability.[32] We agree, though, that there is more strength to the submission thatthe discount afforded for personal mitigating factors was too little, particularly whencompared to her co-offenders. For example, Mr Hegotule received a 20 per centdiscount for his difficult upbringing, efforts towards and capacity for rehabilitation,acknowledgement of and remorse for the offending and preparedness to engage inrestorative justice.25 Similarly, Ms Robertson received a 20 per cent discount for"the wide range of significant difficulties you have experienced from a very youngage" as well as for psychological problems.26[33] While we accept that it is a matter of judicial discretion as to how much weightshould be given to the personal circumstances of an offender as a mitigating factor,and the Judge certainly traversed the information thoroughly and thoughtfully,we consider there were factors here which warranted a greater discount being applied.We accept Mr Brickell's submission that there is an obvious inference thatthe appellant's extremely unstable background, leading to prostitution and drug use,coupled with the obvious difficulties of identifying as transgender, has led her to liveon the margins of society and become involved in the type of offending which hasoccurred here.[34] However, as is well accepted, the focus on appeal should not be on the processby which the end sentence was reached, but rather on the end sentence itself andwhether it reflects the overall criminality of the offending and the offender.27 In thiscase, we also have to take into account the adjustment for a guilty plea. The Judgedescribed it as very generous and we agree. It was entered more than two years afterthe offending occurred and at a point where the complainant had already had to giveevidence at the trial for two of the defendants. Furthermore, the appellant benefitedfrom the Crown's decision not to offer evidence on the remaining charges. In thesecircumstances, only a modest discount was warranted. To the extent that we have25 R v Hegotule, above n 8, at [15].26 R v Robertson, above n 4, at [6] and [9].27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].reservations about the level of discount for personal mitigating factors, remorse andrehabilitative prospects, these are compensated for by the application of a generousdiscount for a guilty plea.Conclusion[35] We do not consider that the sentence imposed on the appellant wrongly reflectsher culpability as compared to her co-defendants and there is no disparity such aswould meet the threshold in R v Lawson.28[36] We also do not consider that there were errors in sentencing which wouldwarrant a different sentence being imposed.Result[37] Accordingly, the appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent28 R v Lawson, above n 24.