THE QUEEN v AMINDA CLAIRE BOYD [2000] NZCA 32 (1 March 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca18/00

THE QUEEN

V

AMINDA CLAIRE BOYD

Hearing	29 February 2000
Coram	Keith J Doogue J Penlington J
Appearances	S J Shamy for appellant M J Thomas for respondent
Judgment	1 March 2000

judgment of the court DELIVERED BY DOOGUE J

[1] This is an application for leave to appeal against a sentence of two and a half years' imprisonment.The application for leave to appeal out of time is not opposed and it is granted.What is at issue is the length of the sentence of imprisonment and whether it could properly be reduced to a period which would have permitted a suspended sentence of imprisonment.

[2] The undisputed summary of facts disclosed that at 3.30am on 22 October 1998 the appellant climbed through a window to gain entry to the acute gynaecology admissions unit of the Christchurch Women's Hospital.She went to an examination room.One of the nurses on duty had then entered the room.The appellant struck the nurse once across the back of the head with an unknown object, causing the nurse to lose consciousness and fall heavily to the ground. The appellant, who it appears to be accepted was under the influence of drugs and was looking for drugs, unsuccessfully looked through the room before running away.When spoken to by the police, the appellant admitted climbing through a window at the hospital but denied hitting anybody and gave a false explanation for her presence.

[3] Depositions were taken on 10 March 1999 and the appellant was committed for trial.The appellant pleaded guilty but only on arraignment on 26 November 1999, immediately prior to trial.She was sentenced on 22 December 1999.

[4] At the time of the offence the appellant was 24 years of age.She is now 26 years of age.

[5] The pre-sentence report dated 9 December 1999 indicated that a counsellor at the Community Alcohol and Drug Service reported that, despite occasional lapses during 1999, the appellant's progress on a methadone treatment programme had been good and that she had shown a "vast improvement in comparison to her situation a year ago".That counsellor considered that she still had some way to go in stabilising her life but that she had the potential to do well.The report indicated that the appellant was a young woman with intelligence and good potential.It was acknowledged by the writer of the report along with counsel for the appellant on behalf of the appellant that the offending came within the scope of s5 of the Criminal Justice Act 1985.However, the report noted that if a custodial sentence were suspended the appellant would be suitable for periodic detention and supervision, subject to a special condition relating to assistance for her drug abuse problem.

[6] The appellant has nine other convictions.None was for a crime of violence.The two most recent convictions post-dated the offending on 22 October 1998 and included failure to answer bail and possession of a prescription medicine.

[7] The injured nurse suffered no lasting physical effects from the attack but is still suffering emotional damage and the victim impact statement indicates that is continuing.The sentencing Judge noted:

I accept what the victim has said in that regard.There is a strong likelihood, in my assessment, that she will carry the trauma of this attack on her for the rest of her life.It was, on any view, a nasty and vicious attack on a decent and completely unsuspecting woman simply going about her work in her work environment in an area where she ought to have been and ought to have been able to feel secure. ....

The significant feature is that even after a year she shows no sign of being emotionally recovered.

[8] The sentencing Judge understandably took the view that the appellant had gone to the hospital in search of drugs to feed her habit and that therefore the offending was drug related.

[9] The appellant had submitted at sentencing that the violence was not premeditated and that in fact violence was out of character for the appellant. The Judge took the view that the appellant must have contemplated the possibility, if not the probability, that her activities within the hospital would be interrupted and must have known that if that occurred an incident of the sort which did occur was likely to happen.He did not suggest at any stage that the appellant went to the hospital with the intention of committing an assault.There has been some argument before us in respect of the issue of premeditation, but it is quite clear from the sentencing remarks that the Judge took the view that the unlawful entry into the hospital for the purpose of stealing drugs was what was premeditated, with the event which occurred being a likely outcome, even although violence was not premeditated.Thus, in dealing with the aggravating features of the offending, the sentencing Judge referred to the element of premeditation in the sense already explained, the facts that the offending was drug related, the victim was completely unsuspecting, there was a substantial disparity in ages between the young appellant and the victim in her fifties, there had to have been a substantial degree of violence to render the victim unconscious, albeit that there was only one blow and the attack was not continued, and the substantial emotional consequences for the victim.The Judge took into account as mitigating features the age of the appellant, to some extent her plea of guilty taking into account that it was at a very late stage and the fact that there were no previous convictions for violence, although that is more properly an absence of an aggravating feature. Positive features set out in the pre-sentence report, and emphasised by the Judge, included the appellant's progress on the methadone programme, changes made to her life since the incident and the likelihood there would be no further offending of the same kind.

[10] The sentencing Judge took the view that the appropriate starting point in respect of the offending was four years' imprisonment.He indicated that in the ordinary way he would have given a credit of 12 months' imprisonment in respect of the mitigating factors and the plea of guilty, but he increased that credit to 18 months to have regard to the changes the appellant was said to have made since the offending.As a result, he imposed the sentence now under appeal of two and a half years.

[11] It is submitted for the appellant that the sentencing Judge erred in taking into account premeditation as one of the aggravating features of the offending.In the context of the actual remarks of the sentencing Judge we see no substance in this submission.The Judge never suggested that the violent offending was premeditated.The premeditation to which he refers is the unlawful entering and attempted theft of prohibited drugs so that the violence was in the course of other offending and for the purpose of escape.Within context no criticism can be made of this aspect of the sentencing remarks.

[12] Secondly, it is submitted the sentencing Judge wrongly took into account that the appellant ran off without stopping to assist her victim.It is submitted for the appellant that this was an integral part of the offence and could not constitute an aggravating feature.It is true that the sentencing Judge referred to this factor in his narrative of events.He did not, however, refer to it when he came to list aggravating features in respect of the offending.In context it was an appropriate statement.If the appellant had, after realising that she had knocked the victim unconscious, paid some attention to the condition of her victim, it would have been a mitigating circumstance, notwithstanding the commission of the crime.Thus, in the context of the sentencing, the appellant's actions immediately after the commission of the crime were of some relevance.

[13] Thirdly, it is submitted for the appellant that the starting point of four years' imprisonment taken by the sentencing Judge was unnecessarily high. Given that the maximum sentence for the offence is 14 years' imprisonment and the decision of this Court in R v Hereora [1986] 2 NZLR 164, we can see no force in this submission.In any event, what we are ultimately concerned with on this appeal is the sentence imposed.As Hereora indicated, cases involving impulsive acts of violence using a weapon can attract a sentence within the bracket of three to five years.Having regard to the aggravating features of the present offending, it cannot be said that the sentencing Judge took a starting point which was outside the range reasonably available to him.The appellant submits he should have taken three years, with particular reference to another decision of this Court in R v Jefferies (CA123/85 18 October 1985) but that case has features not present here, in particular that the 17 year old offender was 20 years of age at the time of sentencing.

[14] Fourthly, it is submitted that the evidence now put before the Court that the appellant was pregnant at the time of sentencing is a factor which entitles this Court to revisit the sentence imposed as that was not known to counsel or to the sentencing Judge.

[15] Section 94(1)(a) of the Criminal Justice Act 1985 provides that the Minister of Corrections may direct that a prisoner serving a determinate sentence be released once she has given birth.The release can be subject to conditions and, if necessary, recall.

[16] The appellant refers to R v Maney (CA 12/88, 18 April 1988), where this Court recognised that the relationship between a mother and child and the undesirability in general of keeping a mother and her newly born child in prison or rearing the child away from the mother were personal circumstances relevant to the matter of sentence.However, the Court, in dismissing the appeal in that case, made plain that it cannot be taken as being always the case that women who are pregnant are immune from punishment and prison by reason only of that fact, particularly given that s. 91 is specifically designed to cover the case of a woman who gives birth to a child while serving a sentence of imprisonment.

[17] Maney has been followed in this Court on a number of occasions.

[18] Of itself the pregnancy of the appellant would not by itself normally be enough to justify the Court interfering with the sentence under appeal unless there were other circumstances which justified it.See, for example, R v Tuakei (CA86/98, 27 May 1998).

[19] Fifthly, the appellant submits that the Judge gave insufficient weight to other credit factors, and in particular emphasis is placed on the progress made by the appellant in changes in her lifestyle since the offence.For the appellant a passage in the pre-sentence report referring to her vast improvement in respect of drug treatment was emphasised, as was the fact that, instead of virtually living on the streets and being addicted to hard drugs as at the time of the offending, she was by the time of sentencing living in a stable place with her grandparents, observing her bail conditions and had started part-time employment as a cleaner.

[20] As against that, however, there was the offending in 1999 already traversed subsequent to the deposition hearing.In addition, the appellant has continued to deny her offending by insisting that she went to the hospital to visit a friend, when that was palpably false.In any event, in respect of this aspect of the matter the Judge gave a substantial allowance of six months over and above what could well be said to be a very generous discount of one year in the circumstances of a very late plea of guilty.

[21] Ultimately we must look at the matter in the round.The appellant's submissions are designed to have this Court reduce the term of imprisonment to two years or less so that it can be suspended with appropriate non-custodial sentences.However, the true issue is whether the sentence of two and a half years imposed upon the appellant, having regard to the circumstances before the sentencing Judge and having regard to the circumstances relating to the appellant's pregnancy put before this Court, can be said to be manifestly excessive.We think not.Given both the aggravating and the mitigating circumstances of the offending, the sentence imposed could be said to be a lenient sentence.We can see no justification for interfering with it because of the appellant's pregnancy when if a sentence of three years' imprisonment had been imposed it would have been unlikely that this Court would have interfered.

[22] The appeal fails and the sentence under appeal is upheld.

Solicitors

S J Shamy, Christchurch, for appellant

Crown Law Office, Wellington for respondent