THE QUEEN v TANYA TE AROHA ERANA GAGE [1999] NZCA 95 (26 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca369/98

THE QUEEN

V

TANYA TE AROHA ERANA GAGE

Hearing:	13 May 1999 (at Auckland)
Coram:	Elias CJ Blanchard J Anderson J
Appearances:	L M Bidois for Appellant C B Cato for Crown
Judgment:	26 May 1999

judgment of the court delivered by blanchard j

[1] The appellant pleaded guilty to attempting to murder her brother and was sentenced to seven years imprisonment. She now appeals against that sentence.

[2] The Summary of Facts reveals that the attack occurred in the early hours of the morning of 26 September 1997. The appellant, then aged 22, had been at a small social gathering at a neighbour's place along with her brother and his de facto wife. Alcohol was being consumed, and it seems that an argument developed.Just after midnight a number of persons, including the appellant, her brother and his partner, left the address.

[3] The argument continued on the footpath outside and the appellant yelled out a number of times that she was going to kill her brother. She went to her parents' address and got a long-handled spade, which she banged into the lawn of her parents' home several times while shouting threats at her brother. The appellant's father took the spade away from her. She then went to her own address across the road and got a large serrated kitchen knife which she sharpened using a steel.

[4] When the appellant went back outside she found her brother fighting with his partner. The appellant and her brother then got into a fight during which she got her brother in a headlock from behind and then pulled his head back and slashed his throat with the knife. He also suffered stab wounds to his left and right shoulders, left and right abdomen, right wrist and a deep laceration to his left upper arm. The wound to his left arm cut a main artery, which, if not properly treated, would have been fatal. The victim was flown to Waikato Hospital for surgery to save his arm. He was discharged two weeks later, but it seems that he has suffered permanent nerve damage as a result of the wound.

[5] The appellant at first denied that she had stabbed her brother, but later admitted that she had used a knife on him as he was attacking her and his partner.On the day of trial she pleaded guilty to the charge of attempted murder.

[6] The sentencing Judge noted that there were a number of aggravating features in this case. The appellant had put in a considerable amount of preparation, first by taking a spade from her parents' property, and then by going to another property, finding a knife, and carefully sharpening it. The attack itself was prolonged and determined, producing wounds which, if they had not been promptly treated, would have been fatal.

[7] In mitigation, the Judge noted that the appellant had clearly been provoked by her brother's behaviour beforehand. This did not justify her conduct, and she seemed to have accepted this by pleading guilty, but the immediate reason for the attack was to prevent the victim continuing an assault on his pregnant de facto wife, so there was a strong element of defence of another. The appellant came from a background where violence was an accepted response, and she had to some extent tried to get help for this problem. The appellant had stated her remorse and the victim appeared to have accepted that, although a victim impact statement was not available. The Judge did not think that the appellant's guilty plea at a very late stage carried much weight by way of discount of penalty.

[8] Finally, noted the Judge, the appellant was a person with a demonstrated propensity for violence and had reacted with excessive and potentially deadly force, far beyond what the situation, as bad as it was, merited. The Judge did, however, note that he had to take into account the fact that the appellant at the time of sentencing on 6 October 1998 was three months pregnant. The Judge made reference to s5 of the Criminal Justice Act 1985, and noted that, notwithstanding the elements of provocation and defence of the victim's pregnant partner, the nature and degree of force used, set against a background of previous convictions for violent conduct, was such that there could not be said to be any special circumstances justifying anything other than imprisonment. In a case of attempted murder, the need to protect the community was a major issue. In the light of these factors, and notwithstanding her pregnancy, the appellant was sentenced to seven years imprisonment.

[9] The appellant has two previous convictions for violence using a weapon in 1994 and 1995.For the latter (injuring with intent to cause grievous bodily harm) she served a 15 month term of imprisonment.

[10] Since the sentencing there have been two developments.First, this Court was moved to order a psychiatric report on the appellant under s121 of the Criminal Justice Act 1985.That report has proved to be very helpful and has shed some new light on the appellant's behaviour on the night in question.We are convinced that if the sentencing Judge had had this information available to him he would have taken a somewhat different view of the matter.The consultant psychiatrist carefully reports Ms Gage's description of a long history of sexual and physical abuse experienced by her between the ages of three and thirteen perpetrated by various male family members.The appellant also described a very physical abusive relationship with a partner when she was 16 to 18 years old.She described symptoms which the psychiatrist believes to be suggestive of chronic post traumatic stress disorder resulting from these experiences.Ms Gage also has a long history of heavy alcohol abuse and gave as the reason for this a wish to relieve her symptoms and block out memories of abuse.The report contains the following passage:

She describes a fairly regular pattern of becoming angry with males when she is intoxicated and frequently acting on her anger, particularly if she sees a male abusing a female in anyway.She describes a strong sense of identifying with the female victim, and wanting to defend herself and the victim against further hurt, and wanting the alleged aggressor to suffer like she has, as a result of her abuse.On the night of the offence she describes herself as feeling enraged that her brother assaulted both her and his pregnant partner and she wanted to both stop the assault and to punish him for it.

[11] The second development is the birth of Ms Gage's child which occurred last month.The pregnancy appears to have been a positive development in the appellant's life.It seems to have been unexpected as Ms Gage has said that she has never used contraception since becoming sexually active and thought she was unable to have children.Accordingly there does not seem to be any question of an attempt to influence the sentence by arranging the occurrence of a pregnancy while on bail.

[12] The positive impact on the appellant of having a child is said to be demonstrated by her abandoning alcohol and cannabis use when she discovered she was pregnant.The psychiatrist reports that Ms Gage feels that her alcohol abuse has been a major problem for her but that she denies any intention to start drinking or smoking again because she now has a goal in life in terms of caring for her baby.At present the baby is being looked after by a grandmother but there are arrangements under which the appellant is able to see the child in prison at regular intervals.

[13] The psychiatrist does not consider that currently the post traumatic stress disorder is of sufficient severity to pose a risk to Ms Gage herself or to others but advises that, in view of the appellant's history of sexual and physical abuse, alcohol and cannabis use and violent offending, she may well be at risk of repeat offending.On the positive side, however, the report notes that she does appear to have stopped alcohol and cannabis abuse and has a recognition that alcohol has been a significant problem for her in the past. She also recognises that she has a major problem with managing her anger, particularly when she is intoxicated with alcohol.She expresses deep remorse for the assault.

[14] The psychiatric report concludes with a number of recommendations which we now set out and wish to draw to the attention of the prison authorities as it is in our view essential that the appellant should at an early time be given the help which is recommended:

1. I would strongly recommend that she participates in a drug and alcohol rehabilitation programme during her prison term and that this be considered as a parole requirement on her release from prison.Her main motivation for stopping drug and alcohol abuse has been her pregnancy and then the birth of her daughter.If she does not obtain custody of her daughter once she is released from prison she may lose her motivation to stop drinking and therefore again be at increased risk of reoffending.

2. I would recommend that she undertake an anger management course during her time in prison in order to help change her pattern of behaviour and develop other more appropriate strategies for dealing with her behaviour.

3. I consider Ms Gage might benefit from some ongoing counselling, specifically targeting her own sexual abuse issues.It is likely she would be eligible for counselling through ACC funding, and this could be commenced during her prison term.

4. Forensic Psychiatric Services will be available to monitor her mental state while she is in prison and would consider other treatments including medication that may help with her post traumatic symptoms.

5. Ms Gage may benefit from a scholastic education programme if this is available in prison.This would serve to increase her self-esteem, increase her employment opportunities, and perhaps lessen the risk of her returning to a cycle of unemployment, poverty and drug abuse.

[15] In his submissions Mr Bidois, who did not appear for Ms Gage at the sentencing, argued that in the particular circumstances now revealed the sentence was manifestly excessive.Greater allowance should have been made for the fact that Ms Gage had been provoked by her brother's conduct towards herself and his partner.In his deposition the brother acknowledged attacking the partner and also another woman.Another witness reported seeing the brother hitting Ms Gage at an earlier stage in events.This is not mentioned in the Summary of Facts which was before the Judge but is consistent with what Ms Gage has told the psychiatrist.

[16] Mr Bidois also submitted that the attack was not as calculated or determined as it may have appeared to the Judge.He pointed out that, although she made threats and brandished the spade, she did not actually use it and allowed her father to take it away.When she did eventually attack her brother with the knife it was a ferocious attack but the reason for that ferocity now appears from the psychiatric report.Counsel submitted that by reason of her abusive history Ms Gage was unable to control her behaviour when she saw her brother physically abusing a pregnant woman and this may explain the ferocity of the attack.

[17] Counsel also drew the Court's attention to the brother's acceptance of his sister's remorse.

[18] Mr Cato, for the Crown, accepted that the position described by the psychiatrist is far more explanatory than the material which the Judge had before him.He noted that it was difficult to draw the link between the violent offending on this occasion, and the incidents for which Ms Gage was convicted in the past, without an understanding of the disorder identified by the psychiatrist.The past convictions also related to situations in which the appellant or another female were subjected to violence by a male.On the second of them she was convicted as a party only.

[19] Mr Cato pointed out, however, that the appellant has pleaded guilty to an offence which involves an intention to kill and that the attack involved several wounds and the distinct possibility that the brother might have died but for prompt action by others.Mr Cato said, and we agree, that a substantial prison term had to be imposed for conduct of this kind, even allowing for the mitigating circumstances which have been referred to.

[20] Just as the Court is cautious about disturbing sentences for manslaughter where, by reason of the great variety of circumstances in which a culpable homicide may have occurred, there is room for considerable discretion on the part of a Judge sentencing for attempted murder, particularly where it appears that there may have been provocation.However, as we have already noted, this Court has now been made aware of significant matters which the trial Judge was unable to take into account.We are satisfied that the interests of justice will be served, and the appellant given the opportunity of making something of her life, if the period of imprisonment is reduced.We consider that a sentence of 4½ years imprisonment is in the circumstance sufficient to mark society's disapproval of the offending and accordingly allow the appeal, quash the sentence imposed in the High Court and substitute a sentence of 4½ years imprisonment.

Solicitors

Crown Solicitor, Auckland