The Queen v Finn [2000] NZCA 210; (2000) 18 CRNZ 332 (21 September 2000)

Last Updated: 8 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA290/00

THE QUEEN

V

FIONA MEGAN FINN

Hearing:	19 September 2000
Coram:	Keith J Robertson J Baragwanath J
Appearances:	J E Westgate for the Appellant J M Jelaś for the Crown
Judgment:	21 September 2000

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1] The appellant, Ms Finn, appeals against the sentence imposed following her conviction by a jury in the Dunedin District Court on charges of injuring with intent to injure and theft of the complainant’s earring. A co-offender, Ms Winder, had previously been sentenced to nine months imprisonment on her plea of guilty to those and certain other charges; that sentence was suspended for 18 months. A concurrent term of nine months supervision was imposed. The appellant’s sentence, by a different Judge, on 16 August 2000, was of six months imprisonment followed by a cumulative period of six months supervision. The sentencing Judge declined to suspend the sentence, although giving the appellant leave to apply for home detention.
[2] It is common ground that the offending constituted “serious violence” in terms of s5 Criminal Justice Act 1985, which provision allows exceptions to imprisonment in special circumstances.
[3] Section 21A gives jurisdiction for the suspension of a sentence of imprisonment. One issue on appeal is whether the sentencing Judge was able to decide not to suspend the sentence of imprisonment simply because in finding that there are no “special circumstances” within the meaning of s5 the sentencing Judge was justified in deciding not to suspend the sentence of the appellant.
[4] It seems that counsel in the District Court as well as Mrs Westgate in her written submissions before us ran together the discretions in ss5 and in 21A. They relied on an oral judgment Whelan v Police AP 7/98 High Court, Christchurch Registry, 20 February 1998 at page 4

[R v] Petersen [[1994] 2 NZLR 533] is ... authority for the proposition that special circumstances may possess a quality which means that while they are insufficient in terms of s5, nevertheless such circumstances are sufficient in terms of s21A to enable the Court to suspend the term. I confess that I find the distinction one difficult to understand but the fact is that it has been recognised and applied by the Court of Appeal.

The sentencing Judge appears also to have run together the exercise of the two discretions.

[5] For the reasons that follow we disagree with that approach and hold that the two separate discretions must be exercised separately. We find it necessary to exercise the s21A discretion afresh. Having done so we have concluded that the appeal must be allowed, with the consequences stated in paragraph [37].

The legislation

[6] Parts of ss5 and 21A are reproduced

5. Violent Offenders to be Imprisoned Except in Special Circumstances—

(1) Where—

(a) An offender is convicted of an offence punishable by imprisonment for a term of 2 years or more; and

(b) The court is satisfied that, in the course of committing the offence, the offender used serious violence against, or caused serious danger to the safety of, any other person,—

the court shall impose a full-time custodial sentence on the offender unless the court is satisfied that, because of the special circumstances of the offence or of the offender, the offender should not be so sentenced.
...

(3) In determining the length of any sentence of imprisonment to be imposed in any case to which subsection (1) or subsection (2) of this section applies, the court shall have regard, among other matters, to the need to protect the public.

21A Suspended Sentences—

(1) Where a court sentences an offender to a term of imprisonment of not less than 6 months and not more than 2 years, it may make an order suspending the sentence for a period not exceeding 2 years from the date of the order.

(2) A court shall not make an order under subsection (1) of this section if it would not have sentenced the offender to imprisonment in the absence of power to make an order suspending the sentence.

(3) A court making an order under subsection (1) of this section shall specify a suspended sentence that corresponds in length to the sentence of imprisonment that it would have imposed in the absence of power to make an order suspending the sentence.

[7] Section 5 of the Interpretation Act 1999 provides

5 Ascertaining Meaning of Legislation—

(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

[8] Section 5 of the Criminal Justice Act is part of a broad continuum of sentencing policy directions that also embraces ss6, 7(2) and (3) and 8A(2)

6 Offenders Against Property Not to be Detained Except in Special Circumstances —

Where an offender is convicted of an offence against property punishable by imprisonment for a term of 7 years or less, the court shall not impose a full-time custodial sentence on the offender unless the court is satisfied that, because of the special circumstances of the offence or of the offender, any other sentence that it could lawfully impose would be clearly inadequate or inappropriate.

7 General Limitation on Imprisonment—

(2) Where the court considers that it should impose a sentence of imprisonment, the term of the sentence shall be as short as is, in the opinion of the court, consonant with promoting the safety of the community.

(3) This section shall be read subject to section 5 of this Act.

8A. Limitation on Combined Sentences—

(2) Where a court imposes a community-based sentence cumulative on a sentence of imprisonment, the total duration of the combined sentences shall not exceed the term of imprisonment that would otherwise be appropriate for that offence.

[9] By such provisions Parliament has expressed its will that, at one end, in cases of serious violence, the sentencing Court give heavy weighting to the interests of denunciation, punishment and deterrence expressed in a sentence of imprisonment. To justify giving effect to the competing public interests of rehabilitation and allowing exhibition of mercy requires the existence of “special circumstances” within that context as well as in relation to the offender. Where it is a property offence, an opposite presumption obtains. The term of imprisonment is to be kept as short as is compatible with the need to protect the public. The total period of sentence of imprisonment and a cumulative community based sentence are not to exceed the term appropriate had imprisonment been imposed.
[10] The s21A discretion is exercised only after an initial appraisal under s5 (or s6). Section 21A does not fall for consideration unless the Court has already found that the proper sentence is one of imprisonment and for a term of between six months and two years. The Court then, but only then, possesses jurisdiction to consider whether that sentence of imprisonment should be suspended. In Petersen this Court gave guidance about how the s21A discretion should be exercised. That is to be done within the narrow limits of that section. The sentence must include imprisonment of between six months and two years, but may also include conditional suspension and a non-custodial sentence.
[11] That is not to say that the s5 factors are necessarily unrelated to those of s21A. In the present case they overlap completely, save for the additional element of parity to be considered under s21A. But because the discretions are conferred for different purposes they require to be exercised separately.
[12] We turn to consider the facts of this case, first in terms of s5.

Section 5: The circumstances of the offence

[13] The offences occurred in the evening of 4 February 2000 - the appellant’s 20th birthday. She and her co-offender Jackie Winder, aged 22, had been drinking in a public bar at Waikouaiti. An altercation developed with a group which contained the complainant, a 50 year old woman. Abuse was hurled from both sides. The initial phase concluded with the complainant pushing the appellant and the appellant’s punching the complainant in the eye. The manager and others intervened. No charges resulted from this phase.
[14] Some hours later the complainant left the bar to walk home. The appellant and her co-offender followed her outside into the street, the appellant coming up behind her. While it is unclear precisely who did what, the complainant ended up on the ground. Both offenders were actively engaged and helping one another in attacking her, punching her in the face, pulling clumps of hair out of her head and grabbing her around the neck. The co-offender jumped on the complainant’s ribs; the appellant bit her abdomen. The attack had been sustained for some minutes until the complainant’s screams woke a neighbour. As a parting shot the offenders stole the earring that was the subject of the second count.
[15] Among the important circumstances of the offence is the effect on the victim. While she was not hospitalised it was necessary for her to see a doctor the following day. He noticed a bruise around her left eye, several patches of total baldness where hair had been pulled out and a significant bruise on her left forehead with half inch deep swelling. She was very tender around the voice box where she had been squeezed or choked. Her lips were swollen, her ribs very tender and bruised and a bite mark was noted on her abdomen.
[16] In addition to her physical injuries the complainant suffered recurrent nightmares, had difficulty sleeping, became afraid of walking in isolated areas by herself, from which she had derived enjoyment, and suffered depression. She found it very stressful to give evidence on two occasions and undergo cross-examination on both occasions on the basis that her evidence was untrue. She suffered loss of something like two weeks’ wages.

The circumstances of the offender

[17] As a result of difficulty with schooling the appellant spent periods at High Cliff Special School. In 1997 she attended a mechanics course and in 1998 one in business. Having in 1997 formed an association with the father of her daughter, who is now a year old, she separated from him in April 2000. Since her sentencing she has learned that she is again pregnant.
[18] The Judge accepted the following factors, advanced again in this Court:

(1) the appellant’s youth;

(2) she is a first offender;

(3) she is remorseful;

(4) she is an excellent mother;

(5) she has insight into and commitment to deal with the alcohol problem that underlay the offending.

Sentence of imprisonment inevitable

[19] The foregoing circumstances of the offence and the offending are unhappily altogether too common to be regarded as “special” for the purposes of s5. Exercising judgment under that section as a first stage, the Judge was right to see no justification for a sentence other than imprisonment. Mrs Westgate did not contend otherwise.

Section 21A discretion not separately exercised

[20] This Court may interfere with the exercise of a discretion only if it was performed on an incorrect basis, or the result reached is unsustainable.
[21] Mrs Westgate submitted:

• (1) the disparity with the sentence of Ms Winder is unjustifiable and unsustainable;
• (2) the Judge took the wrong approach.

[22] It is convenient to deal first with (2).
[23] Oral reasons for decision are given in the course of a busy list without the opportunity for meticulous preparation. The present question is whether their essence is correct. It is desirable to reproduce the passage containing the Judge’s reasons for declining to suspend the prison sentence

It is accepted by Mr Westgate [who then appeared] on your behalf that serious violence within the meaning of s 5 of the Criminal Justice Act was involved here and that means, as you probably know, that unless there are special circumstances I am obliged to send you to prison. If special circumstances exist they might either justify a non-custodial outcome or they might be such that would justify suspension of the prison sentence that would otherwise be appropriate. If there are no special circumstances so as to overcome s5, then a suspended prison sentence is simply not an option.

In terms of deciding whether or not there are special circumstances here, Mr Westgate stressed a number of factors that he submitted were significant. He stresses the fact that you are a young woman aged 20 and you are a first offender. He submitted that the injuries were not the most serious. He says that you are now remorseful about what happened, you are regarded as an excellent mother, you do acknowledge also a problem with alcohol but you are committed to dealing with that issues, and for those reasons he submits that there are special circumstances here. He also raised the issue of parity of sentence, in other words, your co-offender received a suspended prison sentence and Mr Westgate invites me to take that factor into account also.

I have looked at the sentencing remarks of the Judge who sentenced your co-offender. In her case he identified that special circumstances existed and he isolated three factors. Firstly, he relied on provocation, although I am not sure what that is a reference to because if it was a reference to what happened in the hotel that was some hours before and I would have thought hardly amounted to provocation. He relied, however, on certain mental health issues that arose with your co-offender and also her heavy responsibilities to her four children and she had some particular difficulties with some of those children. In addition, your co-offender could claim some credit for her guilty plea, although that is not what I understood to have really influenced the Judge in imposing a suspended prison sentence. Acknowledging then the parity issue, whilst I must have regard to what happened to your co-offender, I am not necessarily bound to follow that same course.

Reverting once more to your personal situation and reverting to the matters that Mr Westgate relies upon the fact that you are a young woman aged 20 is not a special circumstance. Similarly, that you are a first offender is not a special circumstance. I accept to an extent the fact that the injuries are not the most serious, but assaults generally speaking are not necessarily solely judged on what their impact is in a physical sense. I have already commented that in my view this was a sustained attack, a two on to one situation that involved the injuries that I have referred to.

The factors of your remorse and your recognition of a problem with alcohol are not special circumstances either and nor is your position as being regarded as an excellent mother. I appreciate that Mr Westgate in his submissions did not necessarily argue that each single factor on its own amounts to special circumstances. Always I would understand he is asking me to put them together and to arrive at a conclusion on a cumulative sense that they amount to special circumstances.

I am afraid to say, Ms Finn, that I do not accept that there are special circumstances here and because of that, in my view, I have a duty to send you to prison. (Emphasis added)

[24] As is apparent, most obviously from the italicised passage, the Judge ran together the exercise of the s5 discretion and that under s21A. For the reasons already given we consider that he erred in doing so. It is therefore necessary for us to exercise the sentencing discretions afresh. In doing so it is open to us to take into account the current pregnancy.

Re-exercise of the sentencing discretion

[25] We have recorded that the case falls within s5. We consider appropriate a term of one year’s imprisonment. The next question is that of suspension.
[26] The factors here requiring appraisal in terms of Petersen include those listed in paragraph [18]. But there is a further issue in this sentencing, namely, the comparison with the sentence imposed on the co-offender Ms Winder. As this Court noted in R v Lawson [1982] 2 NZLR at 223

A marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even handedly.

[27] In R v Thompson and Pullen-Burry CA 245/98, CA267/98 22 December 1998 at p12

A Court’s approach to a case where unjust disparity is argued has regard to the appearance of the administration of justice to the reasonable minded independent observer aware of all the circumstances of the offence and of the offenders ... . In a particular case there may be a recognisable disparity if no real basis exists for distinguishing between co-offenders who have had sentences of imprisonment suspended and those who have not.

[28] There is however need, in seeking to prevent one disparity, to avoid creating another. As this Court stated in R v Ryder CA116/98, 23 June 1998

the Court must consider whether reducing a proper sentence imposed on one offender in order to bring it into line with the sentence imposed on a co-offender would itself cause public concern at the administration of justice.

[29] So Lord Parker CJ observed in R v Coe [1969] 1 All ER 65 at 68-9:

the Court does in general seek to ensure that sentences as far as possible favourably compare one with another, but they are not bound to do so and when one finds, as one does in the present case, that really the sentence imposed on the co-accused is a wholly inadequate sentence, this Court can see no ground whatever for making the larger sentence strictly compare with the lower one.

[30] In this case the circumstances of the offending of the appellant and of Ms Winder in relation to Counts 1 and 2 are indistinguishable. Ms Winder then proceeded to commit further offences of disorderly behaviour, resisting arrest and intentional damage. The Judge added an order for reparation of $65 but otherwise did not increase Ms Winder’s sentence.
[31] The circumstances of the offenders are similar. Of the factors taken into account by the first sentencing Judge, those of depression and of child care apply to each, although there was more specific evidence in the case of the co-offender of a clinical condition and of remorse. In both cases there was evidence of the interests of young children (in the appellant’s case a child) in the care of an “excellent mother”. The similarity is potentially the greater in the light of the appellant’s further pregnancy.
[32] Importantly, at the hearing prior to Ms Winder’s sentence, the Crown acknowledged that a suspended sentence was an option available to the Court. The different stance taken before the sentencing Judge in this case goes to the issue of disparity.
[33] The Judge did not err in stating that, while having regard to what happened to Ms Winder, he was not bound to follow the same course.
[34] It was not open to the appellant, as it was to Ms Winder, to have taken into account in her favour the prompt plea of guilty which both acknowledged responsibility and could have saved the complainant from giving evidence. That plea justifies the reduction in Ms Winder’s case to nine months of the effective twelve month term (six months imprisonment followed by six months supervision) imposed on the appellant: see s8A(2) which we have reproduced at paragraph [8].
[35] The cowardly and brutal beating and hair pulling and the nature of the injuries to the complainant, coupled with the stronger evidence of mental illness in the other case, clearly justified a term of imprisonment.
[36] Whether special circumstances to justify suspension existed is a matter on which reasonable minds could differ. But we have decided that in performing our fresh exercise of the sentencing discretion the public interest in parity should tip the scales.
[37] The total sentence imposed was 12 months, six months imprisonment and a cumulative sentence of six months supervision. As the imprisonment has now been suspended, it is necessary for the supervision to be increased to twelve months, to commence immediately. While we are conscious that in the result the appellant’s suspended prison term is shorter than that of her co-offender whose mitigating circumstances are greater, we have taken into account that in terms of s8A(2) the appellant’s total sentence is longer and she has already served over a month in prison.
[38] It is our duty under s21B to explain to the appellant that if she is convicted of a further offence punishable by imprisonment while subject to the suspended sentence we have imposed, she is liable to undergo that sentence in addition to any other sentence which may be imposed. We accordingly direct that a copy of the present reasons for judgment be sent to her by the Registrar and ask counsel to explain its effect to her.

Solicitors:
J A Westgate, Dunedin for the Appellant
Crown Law Office, Wellington