R v Wyant [2015] NZHC 3076 (4 December 2015)

Last Updated: 7 August 2017

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202

_{CRIMINAL PROCEDURE ACT 2011.}

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-012-000570 [2015] NZHC 3076

THE QUEEN

v

_{ANNABELLE WYANT}

Hearing:	4 December 2015
Appearances:	R P Bates for Crown A Stevens and D L Henderson for Defendant
Judgment:	4 December 2015

_{SENTENCING NOTES OF DUNNINGHAM J}

[1] Annabelle Wyant, you are here to be sentenced having pleaded guilty to, and being convicted on, charges of the attempted murder, unlawful possession of a firearm and driving with excess blood alcohol.

The background facts

[2] The background facts are that you were 34 years old at the relevant time, and the single mother of two children.

R v WYANT [2015] NZHC 3076 [4 December 2015]

[3] On 6 March 2015 you had been drinking alcohol at your home, and then with a friend of yours at your friend’s address. At about 3.00 pm that afternoon, while intoxicated, you drove to your children’s school to pick them up and take them home. You have also disclosed to the writer of the pre-sentence report that you had been using “Rock”, a solid form of ecstasy, along with alcohol on that day.

[4] When you arrived home, you went to your bedroom and picked up a .22 calibre hand gun from your drawers, along with ammunition for that gun. You then loaded the gun and got into your car and drove to your victim’s house. He is someone known to you and your family as he is the partner of a relative of yours, and your parents have also had unsatisfactory business dealings with him.

[5] You drove up the driveway of your victim’s house and tooted your horn to indicate your arrival. Your victim left the house, came up to the car, and attempted to speak to you, and he said you appeared to be in an agitated state. Without warning, you picked up the firearm from the front passenger seat, you pointed it at your victim and fired a shot at him, striking him in the chest area. You then attempted to fire a second shot, but the firearm malfunctioned and your victim was able to wrestle the firearm off you. You immediately left the scene in your car.

[6] Your victim was able to contact emergency services and was flown to

Dunedin hospital by helicopter with life threatening injuries.

[7] You returned to your home and then drove yourself to the Dunedin Central

Police Station, where you handed yourself in.

[8] At the station, your blood alcohol level was tested and it was found to be

1554 micrograms of alcohol per litre of blood.

[9] Your victim had a bullet lodged in his upper torso which medical staff decided would be too dangerous to attempt to remove. He did, however, spend six days in hospital, before he was discharged.

[10] On 7 March 2015, you were interviewed by Police about the above events. You admitted your participation as I have described. However, you also recounted that your victim had threatened and intimidated you over the past few years and your attempt to kill him was motivated by your desire to protect yourself and your family from ever being threatened by him again. Indeed, you say that on the day in question, you had viewed security tapes showing your then partner being assaulted by your victim, which precipitated your desire to confront him.

Victim impact statements

[11] I have read victim impact statements from both your victim and his partner. She says that at the time of the offending she was eight months’ pregnant. She says she is deeply troubled by seeing her partner suffering as he is, and that this suffering has resulted in conflict and unhappiness in her relationship with him. She also said that his incapacity to work has meant that she has had to work in order to financially sustain the family, despite being heavily pregnant.

[12] At the time he made his statement your victim noted that he was still on strong painkilling medication and was unable to work. He repeats his partner’s claim about the stress and anxiety that the incident has caused to their relationship, saying that he wants to support his family by working, and he is angry that he currently cannot do so.

Starting point

[13] The lead offence for sentencing purposes is, of course, the attempted murder. The maximum sentence for this offence is 14 years’ imprisonment.

[14] Counsel are in agreement that this is an offence involving serious violence, and the guideline decision in R v Taueki is relevant to setting the sentence.¹ In terms of the aggravating features, the fact that the offence involved extreme violence, a degree of premeditation, that a dangerous weapon was used and your victim suffered

_{serious injuries are all accepted as aggravating features. The Crown also suggested}

¹ R v Taueki [2005] 2 NZLR 372 (CA).

that an aggravating feature is the fact the offending occurred on the victim’s property, and he was entitled to feel safe in his own home. However, I accept that this is not, of course, a home invasion. The attack took place outside the home, rather than in it, and I do not treat this as a further aggravating feature.

[15] In terms of mitigating features relating to the offence, the fact that you were under the influence of alcohol and drugs at the time of the offending is not, of course, able to be treated as a mitigating factor. However, I will later return to the background factors relevant to you which may, at least to some extent, explain your dependence on these substances.

[16] More important, I consider that the conduct of the victim should be considered a mitigating feature of the offence. The letter from your mother sets out the background of intimidation between your victim and you, including an incident where he assaulted your partner. You also report that when your victim saw you he would make threatening gestures towards you, for example, making the shape of a gun and pointing it at your head. Your mother explains that you were sufficiently fearful of the victim and that you moved away from the area to Waitati for a period. It was only earlier this year that you moved back to the Purakaunui area with both of your children.

[17] Although, of course, there was no immediate threat to you and your family members on the day of this incident, I accept that the background as outlined in your mother’s letter, is a mitigating feature of the offence and that should be brought into account in setting the starting point.

[18] As I said earlier when I gave you a sentencing indication, having regard to the cases that the lawyers referred me to, I would have set a starting point of around eight years, but for the previous violence and intimidation towards you and your family members by the victim.² However, in light of that factor, which I saw as a mitigating feature of the offence, I decided, and continue to hold, that a starting point

_{of six and a half years is appropriate.}

² R v Gloria Cherrington [2013] NZHC 729; R v Guamzhi Yu [2015] NZHC 89; R v Rukate Pono Hemopo [2014] NZHC 2950; R v Blaine Ross Hughes [2014] NZHC 3208; R v Steven Pengelly [2013] NZHC 527 and R v Ricky Mullen [2014] NZHC 917.

Aggravating and mitigating features of the offender

[19] I then have to consider the aggravating and mitigating features which are personal to you. In that regard I have taken account of the information which has been supplied by your lawyer regarding your health conditions and those aspects of your upbringing which may have contributed to you being more vulnerable to the actions of your victim, and more likely to turn to drugs and alcohol, which I have no doubt contributed to your behaviour on the day in question.

[20] When you were born you were diagnosed with a rare disease called congenital adrenal hyperplasia. That is a permanent condition and you have been on steroid medication for it throughout your life. Your mother considers, and I accept, that this condition, made you a more fearful child and more self conscious about your body and your self identity.

[21] Another aspect of your background is that your father was an alcoholic and, when you were three years old, your parents separated and he left Dunedin. You have also experienced tragedy in your lifetime. You have friends who died in the Aramoana tragedy and not too long after this, a close friend was diagnosed with a brain tumour and died six months later. You were assaulted by your first partner at

16, which made you sufficiently fearful to move to Hastings on your own. However, you were then the victim of a rape and your mother said it was at this point you turned to alcohol.

[22] More recently you have developed further health problems, suffering both a back and ankle injury and your mother says you have developed arthritis and you live in chronic pain.

[23] This is an unhappy history and, while of course it does not excuse your actions on the day in question, it does go a long way to explaining why you were so fearful of your victim and why you turned to excessive use of drugs and alcohol.

[24] I also take into account the evidence of your immediate regret and remorse for your actions. In terms of remorse, I take the letter of apology you wrote at face value. I also accept that your behaviour was out of character. While you have some

prior convictions I agree that you are not a violent person and you are genuinely remorseful for what happened. While in your presentence report, you sought to explain your behaviour, I do take account of the fact the report writer says that “at no time did you minimise your actions”. Furthermore, I take into account your recent efforts to deal with your addictions as evidence of your remorse and your willingness to change. As the report writer notes, it is really these addictions which might put you at risk of reoffending.

[25] I also take account of the fact that your present health would make a lengthy term of imprisonment disproportionately severe.

[26] So, in accordance with my sentencing indication I am prepared to make a deduction of 15 per cent for your remorse, your rehabilitative prospects and personal factors including your health issues. And, that reduces your sentence to five years, six months.

[27] I also accept you should get a discount for your guilty plea. It was, of course, entered only shortly before hearing and, arguably, not at the first available opportunity. However, you admitted responsibility for the act of attempting to murder your victim almost immediately, by going to the Police and reporting your actions. For that reason, I am satisfied that it is appropriate to give you a 20 per cent discount. Applying that discount, the end sentence remains consistent with that given in your sentencing indication, being four years and five months’ imprisonment.

Other offences

[28] On the other offences, both the offence of possessing a firearm without a licence and driving with excess blood alcohol are inextricably linked to the lead charge, and they form part and parcel of it. For these reasons I do not consider that a cumulatively imposed sentence on either of these would be justified. However, the fact that you unlawfully possessed a firearm is serious. Someone with your alcohol problem is clearly not a suitable person to have possession of a weapon and the events of 6 March demonstrate that clearly. Similarly, on the driving with excess blood alcohol charge, I will be sentencing you to a concurrent sentence.

[29] So Ms Wyant, I now ask you to stand.

[30] On the charge of attempted murder, you are sentenced to four years and five months’ imprisonment. On the charge of unlawful possession of a firearm, I sentence you to nine months’ imprisonment to be served concurrently with the lead sentence. And, on the driving with excess blood alcohol charge, I impose six months’ imprisonment, to be served concurrently, and I also disqualify you from driving for 13 months.

[31] I make an order suppressing the victim’s identity pursuant to s 202 of the

Criminal Procedure Act 2011. [32] You may stand down.

Solicitors:

RPB Law, Dunedin

Anne Stevens, Dunedin