THE QUEEN v TRACEY ROCHELLE WELLS [2000] NZCA 220 (28 September 2000)

IN THE court of appeal of new zealand

ca267/00

THE QUEEN

V

TRACEY ROCHELLE WELLS

Hearing:	28 September 2000
Coram:	Gault J Ellis J Robertson J
Appearances:	N C H Hewat for Appellant C L Mander for Crown
Judgment:	28 September 2000

judgment of the court DELIVERED BY GAULT J

[1] Tracey Wells was found guilty following jury trial in the High Court at Napier on four counts of kidnapping, and four counts of injuring with intent to injure.She was subsequently sentenced to an effective term of imprisonment of two years nine months.This comprised sentences of two years six months on each of the charges of injuring with intent and two years nine months on the kidnapping charges, all to be served concurrently.She appeals against the sentence on the ground that it is manifestly excessive.

[2] The incident giving rise to the charges resulted from a burglary committed by the complainants upon the residence occupied by the appellant and her partner, a co-offender Mr Te Maari.He was associated with the Mongrel Mob. Valuable items were taken and the property despoiled.An associate of Mr Te Maari, a Mr Wairau, learned the identity of the offenders.They were five young people, three 14 year old males and two females, one 16 and the other 18 years of age.The three offenders decided to teach the complainants a lesson and inflict their own punishment.

[3] Each of the complainants was rounded up at their home or at the homes of other people, where they were beaten and bundled into the back of a van driven by Mr Te Maari.The complainants were punched by Mr Te Maari and Mr Wairau, and on some occasions they were struck with a piece of wood and a wooden pick handle.In the rear of the van was a machete that Mr Wairau and the appellant brandished from time to time.All three offenders at some point in the journey had possession of the machete.While the male offenders certainly inflicted most of the violence there is evidence that the appellant punched at least one of the complainants during the ride in the van.

[4] The offenders took the victims to an address where they were herded from the van to a small shed at the rear of the property.From there they were brought out one by one and the violence continued.The complainants were struck with the pick handle and punched.The male complainants were ordered to put their hands on the bonnet of a car and were told they would have their fingers chopped off as punishment for stealing.The offenders repeatedly punched the complainants, although the appellant seems mainly to have concentrated her assaults on the female complainants.There was no evidence that she used any of the weapons apart from waving the machete at one point during the journey in the van.The three male complainants all received cuts from the machete as well as significant bruising to various parts of their bodies.One of the female complainants had a tooth knocked out and both females received bruising to their faces and heads.One of the male complainants was the primary victim, apparently having some family connections with a rival gang.He was beaten in a merciless fashion and spent two nights in hospital.The Judge described the offending as follows:

While to some extent some of your victims clearly felt they got what was coming to them, this was a prolonged bout of terror over some two to three hours which got totally out of control as a result of your taking the law into your own hands.The victims did not deserve brutal beatings.The male victims did not deserve to be put in a shed and brought out one by one and threatened to put their hand on the bonnet of the car so their fingers could be chopped off.

[5] The two co-offenders, Mr Te Maari and Mr Wairau, pleaded guilty in the course of trial to most of their offences, although they tried to minimise the offending where possible.The appellant maintained her pleas of not guilty but was found guilty on four charges of kidnapping and four charges of injuring with intent.As the sentencing Judge noted, the jury obviously had a reasonable doubt as to the fifth charge of kidnapping involving the eldest complainant and also accepted that while the appellant was guilty of injuring with intent, she was not a party to the wounding offences to which her co-offenders pleaded guilty.

[6] The two co-offenders were sentenced to four years imprisonment for each of the kidnapping offences and three intentional wounding offences.Sentences of 2½ years were imposed on them for the intentional injury offences.

[7] It is not easy to determine, in light of the verdicts, the extent of the participation of the appellant in the violence.Clearly this was a joint enterprise in which she was a participant, yet the jury acquitted her on the more serious wounding charges of which the co-offenders were convicted.She was found guilty on the alternative and lesser charges of injuring with intent.

[8] The Judge, who heard the evidence, said that the appellant "had carried out violence to those in the van".That would have been the punch or punches referred to.The Judge also said:

Miss Wells, you have at all times sought to distance yourself from your male associates.It is clear you were very much a party to the events of the evening, although, as the jury has found, you were not part of the most serious violence.However, you waved the machete around, completely lost control in respect of the main victim, and were not averse to inflicting such harm as you were capable of upon the complainants.You cannot avoid your share of responsibility for what occurred.

[9] The main victim was intentionally wounded and the appellant was found not guilty of that.We are, therefore, presented with the question of the culpability of the appellant who participated in the kidnapping of the victims and perpetrated some violence upon four of them which resulted in injury but not wounding.

[10] The principal argument on the appeal was that the appellant should be regarded as much less culpable because of pressure operating upon her from her relationship with her then partner and co-offender.There was some basis for this in the record, in her partner's history and in the acceptance by police officers involved that she was in no position to retire from the situation.

[11] It was said she was caught up emotionally and drawn in to the enterprise by experienced gang members and then was carried along to the stage where she conducted herself in a manner which was quite out of character and which she now greatly regrets.As the pre-sentence report states, she was scared not to go along and now feels that had she been stronger the offences may not have happened.

[12] The report also records that the appellant has not previously appeared in court, now has ended the relationship and is addressing the issues arising from it.The report is favourable and is supported by a large number of written references referring to the appellant's impressive background of relationships and achievements.They speak highly of her work caring for children both in New Zealand and Australia.

[13] This is a difficult case.On the one hand the submission of the Crown is a strong one.The Judge heard the witnesses and was in the best position to assess the culpability of the appellant.On his assessment the sentence was within the range open to him.On the other hand this is a harsh sentence for a young woman who made the mistake of allowing herself to be caught up in a serious criminal enterprise because of her emotional tie to her partner.She became involved in the matter which had gang overtones and was dealt with accordingly.

[14] A first offender with an unblemished background is entitled to call upon that good character by way of mitigation of sentence.She did not instigate the offending and could not have stopped it.She went too far but, as Mr Mander accepted, sentences of two years nine months for punching are rare.We have been persuaded that a lesser sentence will be a sufficient response to her involvement given the good prospects that she can resume a responsible and valuable role in the community.

[15] Accordingly, the appeal is allowed.The sentences for all offences are quashed and are substituted by sentences of imprisonment for two years.We consider that sentence better reflects the total culpability of the appellant when compared with that of the co-offenders taken against their respective backgrounds.

[16] Leave to apply to the District Prisons Board for home detention is granted.

Solicitors

McKay Hill, Napier, for Appellant

Crown Solicitor, Wellington, for Crown