IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CRI [2014] NZHC 3274 TELEISHA MCLAREN. S N McKenzie for Crown

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CRI [2014] NZHC 3274 TELEISHA MCLAREN v Hearing: 15 December 2014 R Appearances: H T Young for Appellant S N McKenzie for Crown Judgment: 17 December 2014 JUDGMENT OF DUNNINGHAM J Introduction [1] In August 2014, Ms Teleisha McLaren pleaded guilty to one count of each of the following: (a) injuring with intent to injure; 1 (b) kidnapping; 2 (c) threatening to do grievous bodily harm; 3 and (d) driving while forbidden Crimes Act 1961, s 189(2). Crimes Act 1961, s 209. Crimes Act 1961, s 306(1)(a). Land Transport Act 1998, s 52(1)(c). MCLAREN v R [2014] NZHC 3274 [17 December 2014]

2 [2] On 13 November 2014, Judge Crosbie sentenced her to two years and four months imprisonment on the lead charge of injuring with intent to injure. On each of the kidnapping and threatening to do grievous bodily harm charges, the Judge sentenced her to six months imprisonment, to be served concurrently with the sentence on the alleged charge. On the driving charge she was convicted, discharged, and disqualified from driving for six months. [3] Ms McLaren now appeals against that sentence. She submits that there were errors in the determination of the sentence and, as a result, it was manifestly excessive. Background [4] The relevant background all relates to events occurring in July 2014, when Ms McLaren was 18 years old. [5] On 9 July 2014, Ms McLaren was stopped in Invercargill and found to be driving while forbidden. [6] On 10 July 2014, Ms McLaren s mother refused to return her two year old daughter until Ms McLaren cleaned up her house. Ms McLaren went to the police station and complained to police that her child was being kidnapped. She said to a police staff member if she is going to kidnap my daughter, I will slit her throat. [7] At around pm on 20 July 2014, Ms McLaren and her co-offender, Ms Crystal Murray, were at a house in Invercargill. They had been drinking for around five hours. This is where the events leading to the injuring with intent to injure took place. [8] The victim of this offending is Ms Murray s flatmate. Dr Jim Roache, a psychologist, reports that she is intellectually disabled. While she presents as a likeable and friendly young woman with a relatively normal vocabulary, she has significantly restricted cognitive abilities.

3 [9] Ms McLaren and Ms Murray went to the bedroom to discuss allegations that the victim had been making things up and talking about Ms Murray in a pejorative way behind her back. Upon emerging from the bedroom, they attacked the victim. [10] They took the victim s cellphone so she could not call the police. They also took her glasses so she could not see properly. Over the course of the attack, which lasted between 30 and 45 minutes, they prevented her from leaving on at least four separate occasions. [11] The assault began by both Ms McLaren and Ms Murray slapping the victim around the head and face and yelling at her. She stood up. They threw her to the ground. They then slapped and punched the victim around the head while she lay on the floor in a foetal position. Again, they prevented an attempted escape by throwing her to the ground. They kicked the victim all over her body and delivered around four kicks to the head. They punched and slapped her head while she was on the ground. [12] The victim was then thrown on the couch. Ms Murray picked up a steak knife and showed it to the victim. Ms McLaren told her to put the knife down. Ms Murray threw several glasses of water on the victim who was crying and begging to leave the address. Two of Ms McLaren s associates arrived and told her to let the victim go. The victim escaped out the back door. Ms Murray chased the victim down, threw her to the ground, and slammed her head into a fence repeatedly. Ms McLaren followed her and gave the victim her cellphone back. [13] The victim was left bleeding profusely. She had numerous bruises to her head and pain in her back. District Court decision [14] The Judge took injuring with intent to injure as the lead charge, noting that while it did not carry the greatest maximum penalty, it was the most serious offence

4 having regard to the circumstances. The Judge found that there were seven Taueki, aggravating factors present which he identified as: 5 (a) extreme violence; (b) serious injury; (c) use of weapons; (d) attacks to the head; (e) multiple attackers; (f) a vulnerable victim; (g) what occurred compromised the integrity of the victim s home. [15] Applying the approach in R v Nuku, where the Taueki factors are applied to less serious offending, the Judge placed the offending in band three, attracting a starting point of between two and five years imprisonment. 6 The Judge took a starting point of three years and three months imprisonment. [16] The Judge then imposed an uplift of three months imprisonment for the kidnapping charge, a second uplift of three months for the threatening charge, and a third uplift of three months for offending while on bail. That brought the starting sentence to four years imprisonment. [17] From that the Judge allowed a 15 per cent discount for youth, remorse and having no previous convictions. The Judge also allowed the full 25 per cent discount for an early guilty plea. Arithmetically that should have brought the sentence down to three years and five months, and then two years and six months (rounding down). However, the Judge appears to have erred in failing to apply the guilty plea discount 5 6 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA). Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

5 after all other discounts have been applied, and arrived at an end sentence of two years and four months. 7 Jurisdiction [18] This Court, as first appeal Court, 8 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed. 9 [19] The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in s 385(3) of the Crimes Act 1961, and s 121(3) of the Summary Proceedings Act As Kós J put it recently, the manifestly excessive criterion for appeal has not been eradicated. 11 Grounds of appeal [20] Ms McLaren relies on the following grounds of appeal: (a) the Judge misstated the facts; (b) the starting point adopted on the alleged charge was too high; (c) the three uplifts imposed were too high; and (d) the Judge had no power to disqualify Ms McLaren from driving. Ground one misstatement of facts [21] Mr Young, for Ms McLaren, points out that the Judge proceeded on the basis of an outdated summary of facts. It appears that the Judge s sentencing notes were based on a summary of facts that was handed up when Ms Murray pleaded guilty. By the time Ms McLaren pleaded guilty seven days later, agreed amendments had As required by Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73]. Criminal Procedure Act 2011, s 247. Criminal Procedure Act 2011, s 250. Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482. Smith v R [2014] NZHC 3033 at footnote 13.

6 been made to the summary in relation to her actions. The Crown accepts that this appears to have been what happened. [22] Mr Young points to five changes made to the summary of facts that he submits could have had an impact on the outcome. [23] First, Ms McLaren was originally said to have punched the victim in the head with closed fists. That was amended to slapping and punching the victim in the head. [24] Second, Ms McLaren was said to have begun kicking and kneeing the victim in the back and head numerous times. This first episode of kicking and kneeing was removed from the amended summary. [25] Third, Ms McLaren was said to have kicked and kneed [the victim] all over the body and to the head numerous times using both feet in the kicking phase of the attack. That was amended to kicked [the victim] all over the body and to the head around four times. In the amended summary it was also noted that Ms McLaren had bare feet, and that her part in the phase of the assault following the kicks to the head was to kick the victim in the legs at least twice and punch the victim in the head. [26] Fourth, in the amended summary, it was noted that after Ms Murray picked up the steak knife, Ms McLaren told Murray to put the knife down. [27] Fifth, in the original summary of facts, after describing the knife incident, it was said that over the course of the following 30 to 45 minutes the victim has repeatedly pleaded with the defendants to let her go. In the amended summary that was changed to this assault and unlawful detention lasted between minutes. [28] I accept that the fact the Judge proceeded on the wrong version of the statement of facts, was an error in the sentencing process. I also do not consider it appropriate to review each charge and decide whether or not it, individually, was

7 material to the sentencing process, because on that approach, I might miss the totality of effects that the amended summary of facts might have had on the Judge s thinking when embarking on the sentencing process. Given there were five differences, I think the safer course of action is to look at the totality of the facts and decide where the starting point should be independently of the Judge, then compare that with the starting point adopted by the Judge and make a decision as to whether the starting point he adopted was inappropriate. [29] That decision leads directly on to the second ground of appeal which is that the starting point adopted on the lead charge was too high. Ground two the starting point adopted on the lead charge was too high [30] Mr Young says that only three Taueki aggravating factors were present, so the offending falls at the top end of band two of Nuku and warrants a starting point of around two and a half years imprisonment. [31] As a further point, Mr Young submits that the Judge erred in assessing Ms McLaren s role as only slightly less culpable than Ms Murrays. He submits that she counselled Ms Murray to put the knife down and effectively withdrew from the joint enterprise at that point. She took no part in the further incident where Ms Murray repeatedly slammed the victim s head into the fence. In fact, she followed the victim and gave her back her cellphone. [32] I do not accept that Ms McLaren withdrew from the attack after the knife incident. She pleaded guilty as a joint principle party to the whole of the injuring offending. 12 The question is whether she is less culpable than Ms Murray, having not personally inflicted the blows against the fence or used the knife. I consider that she is less culpable (as did the District Court Judge) and I consider the appropriate starting point in that light. [33] Upon reconsideration using the updated summary of facts, I find the following aggravating factors were present: 12 Crimes Act 1961, s 66(1)(a).

8 (a) Extreme violence. The attack was prolonged and that is the case whether it lasted 30 to 45 minutes or an hour. (b) Premeditation. There was a mild degree of premeditation involved. The co-offenders withdrew to the bedroom, conferred, then attacked in a co-ordinated fashion. (c) Serious injury. I do not consider that the injuries suffered by the victim were very serious in the sense used in Taueki. Her injuries, while extensive, were of moderate severity involving some bleeding, bruising and pain in her back. (d) Use of weapons. Ms Murray did use a knife in this joint enterprise in the sense that she brandished it at the victim. But it was not used to harm the victim and Ms McLaren counselled her to put it down. I do not think this could be said to be an aggravating feature of Ms McLaren s conduct. (e) Attacking the head. This is a serious aggravating factor. A large number of punches were landed on the victim s head and Ms McLaren contributed some of the four kicks to the victim s head. (f) Multiple attackers. This is an aggravating factor because there were, of course, two attackers. (g) Vulnerable victim. This is a serious aggravating factor. The victim was particularly vulnerable as an intellectually disabled person. In fact, Dr Roache described her as highly vulnerable. Aspects of the attack were particularly cruel, such as taking the victim s glasses and throwing water on her. [34] I also note at this point that another misunderstanding of the Judge was that he assumed the assault took place in the victim s home, and that this was an aggravating feature. In fact, as the Crown accepts, the assault took place in

9 Ms McLaren s home at Mary Street in Invercargill, not the victim s home, and it was not a further aggravating feature. [35] From the above, I have considered that there are three serious aggravating features, another two present to a moderate degree and another present to a mild degree. A starting point in band two of up to three years imprisonment will be appropriate where there are three or fewer aggravating factors present, where there are three or more aggravating factors and the combination of those features is particularly serious, the offending falls within band three. Particularly relevant is this passage from the Court of Appeal s decision in Nuku v R: 13 The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features. [36] The fact that there are three aggravating factors present to a serious degree means that a starting point near the top of band two is the minimum that could be taken. It is arguable whether, in combination, they were particularly serious, but given that prolonged violence will generally require a band three starting point, even when there are few other aggravating features (here there are several), a starting point at the bottom of band three (of three years) was unavoidable. [37] Mr Young points to a comparable case relied on by the Judge at sentencing: R v Singh-Kang. 14 In that case, the defendant was one of three who kidnapped and assaulted a friend who had allegedly unlawfully sold the defendant s car. The victim was bundled into a car, punched and kicked, driven to a picnic area, punched and kicked again and stomped on. The defendant then displayed a running chainsaw close to the victim s neck and said do you think I m all shit?. The whole attack took about one hour. [38] Asher J took a starting point of two years and three months on the injuring with intent to injure, an uplift of nine months on the kidnapping charge, and a further uplift of three months for the chainsaw incident (which a co-offender who was Nuku v R, above n 6, at [38](c). R v Singh-Kang [2014] NZHC 126.

10 otherwise sentenced for the same offending had not been involved in). 15 submits that Ms McLaren was less culpable than either offender in Singh-Kang. Mr Young [39] Two responses can be made to that point. First, Asher J acknowledged that he had been very lenient in his sentencing indication in placing the injuring offending in band two, but was nevertheless bound by it: 16 This was a very nasty and prolonged assault. I have to say as I have come back to the sentencing process I consider that my placing of your offending in band two was, if anything, generous to you. There certainly was a case for seeing your offending as band three of offending in terms of Nuku v R. [40] Second, the offending in Singh-Kang was broadly comparable to this case. Both were similarly prolonged (given I do not consider the difference between 45 minutes and about an hour is material), involved similar kicking and punching and attacks to the head, and involved a degree of premeditation. In both cases, one offender brandished a weapon, but this case might, however, be seen to be more serious given that the victim was extremely vulnerable. [41] In my view, a minimum starting point of three years was required. The Judge cannot be said to have erred in imposing the starting point of three years and three months imprisonment. It was clearly within range and I see no reason to begin with a different starting point. [42] Mr Young also submits that the starting point adopted gave rise to an unfair disparity between the co-offenders. 17 I do not accept that is the case. While Ms McLaren did show a change of heart towards the end of the offending episode, it appears her more moderate behaviour manifested itself once other associates arrived at the flat. It was one of them who removed the knife from Ms Murray, and it was them who told the defendants to let the victim go. While Ms McLaren s attitude towards the victim did improve at this stage, I am satisfied that the three month differential adequately reflects this At [21]. At [16]. Sentencing Act 2002, s 8(e).

11 Ground three the three uplifts imposed were too high Uplift for kidnapping offending [43] The Judge imposed a three month uplift to recognise the totality of the offending when the kidnapping charge was included. In light of Singh-Kang, a combined sentence of three years and six months on the injuring and kidnapping charges appears high, as that sentence is six months higher than the total imposed for those offences on the offender in Singh-Kang, before taking into account additional culpability for the chainsaw incident. [44] In the present circumstances, I consider that the culpability of the kidnapping charge is adequately encompassed in the prolonged attack aggravating feature that uplifts the offending into band three of Nuku. I would impose no uplift. Uplift for threatening to kill and offending while on bail [45] Some uplift needs to be made for the threat made to kill Ms McLaren s mother. While I accept Mr Young s submission that it was made in an emotional context, where Ms McLaren s mother was resisting returning Ms McLaren s child to her because of the state of her home, I balance that by the fact that it was clearly a serious threat because it was made before a police officer in a police station. [46] In addition, offending on bail is an aggravating factor. 18 However, Ms McLaren has not offended on bail before. [47] I consider that a total uplift of six months imprisonment (between 15 and 20 per cent of the starting point) for these matters was excessive. I would impose two months for the threat and one month for offending while on bail. Ground 4 the Judge had no power to disqualify Ms McLaren from driving [48] It is clear that the Judge had no power to disqualify Ms McLaren from driving. The sentence available is a fine only. The Crown accepts that this is the case. In this respect the appeal must be allowed. 18 Sentencing Act 2002, s 9(1)(c).

12 Conclusion [49] Drawing all the threads together, I have upheld the starting point of three years and three months on the lead charge, with a total uplift of three months, bringing the start sentence to three years and six months. From that, a discount of 15 per cent for youth, remorse and no previous convictions takes the sentence to one of just under three years. A further discount of 25 per cent for an early guilty plea takes the end sentence to two years and three months imprisonment. [50] That is just one month less than the end sentence actually imposed by the Judge. The focus on appeal is on the end sentence imposed, not how it is constructed. To modify the sentence on appeal would be tinkering and I decline to do so. 19 [51] I therefore allow the appeal in one respect only: Ms McLaren s sentence of disqualification from driving for six months should be quashed. Solicitors: H T Young, Invercargill Crown Law, Invercargill 19 See Smith v R, n 11, at [27]: An adjustment of one or two months to [the appellant s] sentence would be mere tinkering at [27].