THE QUEEN v PHANEE HENSLEY [2002] NZCA 74 (18 April 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca50/02

THE QUEEN

V

PHANEE HENSLEY

Hearing:	17 April 2002
Coram:	Gault J Keith J Anderson J
Appearances:	G Collin for Appellant
	J M Jelaoe for Crown
Judgment:	18 April 2002

judgment of the court DELIVERED BY ANDERSON J

The issue

[1] This is an appeal against a sentence imposed on 14 February 2002 for assault with a weapon, an offence under s 202C(1)(a) of the Crimes Act 1961. The appellant had been found guilty following trial before a District Court Judge and jury and sentenced to nine months imprisonment with leave to apply for home detention.Having served some weeks in custody she was granted home detention.

[2] The appeal is brought on alternative grounds; that a finding of special circumstances under s 5 of the Criminal Justice Act 1985 should have been made so as to indicate other than a full time custodial sentence; or that the sentence of imprisonment should have been suspended pursuant to s 21A of the Criminal Justice Act 1985.

The facts

[3] The appellant is Thai. She met Graham Hensley, a New Zealander, in 1997 while he was on holiday in Thailand. She married him in New Zealand in 1998. The victim of the assault is a Mr Brian Faass, Mr Hensley's friend.

[4] After the marriage the appellant returned to Thailand on several occasions, the last of these being in January 2000. She returned to New Zealand in April 2000 leaving behind in Thailand a daughter in her early teens. Mr Hensley testified that when the appellant returned, he noticed a change in her behaviour. She seemed to become obsessive about him and about money. Her mood was depressed and otherwise disturbed.

[5] Mr Hensley thought his wife should go back to live in Thailand.He wrote to her brother there in mid-June expressing concerns about the appellant's mental state and seeking his assistance in persuading her to return to Thailand.

[6] On 28 June 2000, Mr Hensley and two friends spoke with the appellant about returning to Thailand. She was offered a one way ticket and some money. Mr Faass, the complainant, offered to lend Mr Hensley money for this purpose.

[7] The next evening, 29 June 2000, Mr Hensley and the appellant were at home. Mr Hensley testified that during the evening, the appellant, while in the kitchen, had taken a small steak knife and "pushed it into her shoulder", piercing her clothing but not cutting her skin. He told her not to be silly and she went to the bedroom. Mr Hensley describes her mood that evening as "a bit strange".

[8] Later that evening, Mr Faass arrived at the Hensley's address, bringing with him fish and chips for dinner. The appellant remained in the bedroom and Mr Hensley took some dinner in to her. He found her sitting in a cupboard. Mr Hensley returned to the kitchen and stood eating at the breakfast bar with Mr Faass. Approximately five minutes later, the appellant came into the kitchen, carrying her plate of uneaten dinner. Mr Hensley testified that she put the plate down, saying "I don't want these". She commenced a conversation with the two men before suddenly picking up a steak knife lying on the breakfast bar and attempting to stab Mr Faass shouting "I kill you". The knife was held head-high, pointing in the direction of the complainant. Mr Faass was able to fend off the attack, and gain possession of the knife. Mr Hensley told the appellant "you can't do that in New Zealand" and it appeared that the situation had calmed down. Approximately five minutes later, the appellant opened the kitchen drawer, took another steak knife and again attempted to stab Mr Faass. Mr Faass grabbed her hands and Mr Hensley restrained her and told Mr Faass to go and get the police.

[9] The appellant, through an interpreter, testified that she had been happy to be married to Mr Hensley and liked living in New Zealand. She stated that after her last visit to Thailand, her husband had changed:

...he said that he felt that he had changed and a friend of his was coming from Singapore...I was saddened that he was planning to take more care of others rather than me...I felt that he was losing interest in me...I felt sorry and sad about that.

[10] She also explained that "in my culture how could I face my friends, I would have lost so much face if I had returned." She testified that at a meeting on the night before the assault, she was offered $3000 if she returned to Bangkok. She refused that offer and was then given a deadline of seven days to leave Mr Hensley's house.

[11] During the evening of the following day, she saw Mr Hensley take her clothes and put them in front of the unit. She went out, gathered them up and brought them back into the unit. She testified that it was at that point that she attempted to stab herself in the shoulder, "as a way of finding out what would be his reaction". She and her husband were discussing the incident when Mr Faass arrived. At that point, the appellant stated, she went to the bedroom, not wanting to hear their discussion. Although she covered her ears with her hands, she could still hear them talking, and heard the words "fuck off, go Bangkok". She then took the fish and chips which had been brought to her, put them down in front of Mr Faass and said "if you want to have this sort of discussion, have it at your house, not at mine." Mr Faass replied "have you moved out to stay with your friend yet" and laughed. The appellant testified that:

...teasing me, was the trigger, it flashed through me that here they are, going to push me out...where am I to go, I have no brothers and sisters here, I have no family, no friends, that's what sparked it.

She then picked up a knife and said, "I'll kill myself" as she moved the knife towards her chest. Both men then rushed towards her and Mr Faass grasped the blade of the knife and wrestled it from her hand. She then picked up a second knife, ran across the room and said "I am going to kill myself". Mr Faass followed and took the knife from her, grabbing it by the handle. Mr Faass then left the house, saying that he was going to get the police.

[12] The appellant's exculpatory explanation that she was intending to harm herself, not Mr Faass, was plainly not accepted by the jury as a reasonable possibility.

[13] Mr Faass suffered scratches to his hands, described by a police constable as similar to cat scratches, but was otherwise unharmed.The emotional effects on him seem, fortunately, to be quite minor.He said in a victim impact report that the event comes to mind occasionally but hasn't affected his every day living.

[14] Not long after the incident, she and her husband having separated, the appellant formed a new relationship.Her daughter came to New Zealand to live with her and she found part time employment.Her employer spoke highly of her.

District Court judgment

[15] In the District Court, counsel for the appellant argued that because of special circumstances a sentence of imprisonment should not be passed.The relevant circumstances were: the pressure on the appellant from her husband and his friends; the provocation of that and the threat of being sent back to Thailand; the appellant's social isolation within her marriage; the impulsive nature of the attack and that very minor injuries were inflicted. Counsel for the appellant also argued that there were special circumstances of the appellant herself, these being that the appellant was a first offender and that the behaviour was out of character.

[16] The Judge held that s5 of the Criminal Justice Act 1985 applied because the appellant's actions caused serious danger to the safety of Mr Faass.He considered that none of the factors relied on by counsel was, on its own, a special circumstance and that they did not become a special circumstance when accumulated. They were accepted as mitigating factors.

[17] The Judge considered the aggravating factors in this case to be the potential for harm consequent upon the attack and that the appellant did not accept the verdict and had no remorse. He held that a sentence of imprisonment was appropriate in this case but that:

I am going to make it as light as I possibly can bearing in mind all of those circumstances that [counsel] says are special. They do go some way in mitigation.

He determined the sentence should be nine months imprisonment.

[18] He then considered the discretion, under s 21A of the Criminal Justice Act to suspend the sentence. He held:

The most telling factor is your non-acceptance of the verdict and your non-acceptance that you have done anything wrong. That is a view that you are entitled to take, but it does not wash with me. I think that in those circumstances standing back from the matter it would be inappropriate to suspend the sentence. I do, however, think that because of your personal circumstances you should be granted leave to apply for home detention.

Submissions

[19] Counsel for the appellant submitted that special circumstances exist which justify the non-imposition of a sentence of imprisonment, or justify the suspension of any imprisonment imposed. The circumstances relied upon are:

[a] The appellant was placed under extreme emotional pressure by Mr Hensley and the complainant over a sustained period of time,

[b] The appellant was, at the time of the offence emotionally distraught and had expressed and demonstrated a desire to harm herself,

[c] The appellant is of small stature and was easily disarmed,

[d] The complainant suffered no harm as a result of the incident,

[e] The offending involved cultural issues including communication difficulties, the consequence to the appellant of returning to Thailand, her dependence on her husband, the breakdown of their relationship and her lack of family or support in New Zealand,

[f] The appellant is 47 and has no convictions in New Zealand or Thailand,

[g] The appellant is a non-violent person and violence is extremely out of character

[h] She has been assessed as having a low risk of re-offending,

[i] The factors contributing to the offending are no longer present in her life as she has separated from Mr Hensley and re-established herself in New Zealand,

[j]Her 16 year old daughter now lives with her and is dependent upon her, as she speaks no English,

[k] Her imprisonment has resulted in the loss of her employment,

[l] Her English language capability has improved,

[m] Neither the complainant or Mr Hensley indicated a wish that a deterrent sentence be imposed,

[n] There are no or negligible safety issues present.

[20] It was also submitted that the fact that the appellant did not show remorse or accept wrongdoing should not have been considered to be aggravating factors.

[21] The Crown submitted that "special circumstances" for the purposes of s 5 of the Act requires something that can be identified individually or cumulatively as taking the case out of the ordinary range of cases and that those circumstances must be weighed against the nature and gravity of the offending. It was submitted that some of the circumstances relied upon were appropriately accepted by the Judge as mitigating factors but matters such as the appellant's age, good record, character and dependants, are not outside the ordinary range of circumstance of an offender.It was within the sentencing Judge's discretion to determine that the remaining circumstances are not sufficiently special to militate against the imposition of a custodial sentence. It was further argued that expression of remorse or acknowledgment are usual and appropriate before the statutory presumption of a custodial sentence can be avoided. It was submitted that it was within the sentencing Judge's discretion not to suspend the custodial sentence given that the statutory objectives of a suspended sentence include rehabilitation, which is dependent on acknowledgment of wrongdoing.Counsel very properly recognised, however, that it is inappropriate to regard non-acceptance of the verdict as an aggravating feature and, as well, drew the Court's attention to a somewhat inconsistent reference to "expressed remorse" in the pre-sentence report.

Reasons for decision

[22] The offence of assault with a weapon, proscribed by s202C(1)(a) of the Crimes Act 1961, carries a maximum penalty of five years imprisonment.In cases where assault with a knife results in actual wounding or injury relevant offences would be wounding with intent to cause grievous bodily harm, which pursuant to s188 of the Crimes Act carries a maximum penalty of 14 years imprisonment or injuring with intent to injure which pursuant to s189 carries a maximum term of 10 years imprisonment.The potential for injury rather than its occurrence is recognised in the terms of s202C(1)(a) itself.Given the minimal consequences for Mr Faass and the charging under s202C(1)(a) the seriousness of the offence can of course only be realistically perceived in terms of potential.Some indication of the actual potential is that despite two attempts to attack Mr Faass the complainant suffered only minor scratches to his hands.The minimal consequences must reflect the appellant's distressed state and the superior strength and control of the two men.

[23] In view of these matters it might have been considered doubtful whether, in terms of s5(1)(b) of the Criminal Justice Act 1985 the appellant "caused serious danger to the safety of, any other person", or even whether she used "serious violence" as distinguished from violence against Mr Faass.The arguable nature of the point is not entirely irrelevant.The form of the violence, particularly if marginally serious, is a matter to consider in connection with special circumstances of the offence or of the offender.

[24] The Judge did not refer to any comparable cases but there are some which may have assisted him.In R v Clarkson CA 69/89 24 October 1989, a sentence of four months periodic detention and 12 months supervision was imposed for assault with a weapon where the offender had actually inflicted a minor knife wound in the victim's upper leg in what was a premeditated attack. In E v Police High Court, Wanganui, AP8/99 6 September 1999, the Court considered but did not disturb a sentence of six months imprisonment suspended for 12 months together with six months supervision following a plea of guilty to a charge of assault with a weapon where the offender in the course of a domestic incident had stabbed the victim.In R v Poa High Court, Auckland, T279/96, the offender had been convicted of the more serious offence of injuring with intent to injure.She stabbed her de facto husband and tried to pour boiling water over him.The victim suffered cuts to his hand and biceps in consequence of what was recognised as a planned offence albeit by a woman in a state of acute distress.The actions were considered out of character and the offender unlikely to reoffend.She was sentenced to 15 months imprisonment suspended for two years coupled with two years supervision.

[25] In a case of wounding with intent to cause grievous bodily harm, R v Winiata High Court, Wellington, S35/92 15 May 1992, the offender stabbed a man three times with a knife after provocative conduct by the victim towards the offender's child.A sentence of six months periodic detention and 18 months supervision was imposed.In R v Mana T103/94, High Court, Auckland, 19 December 1994, the offender cut her husband's hand and wounded him on the left knee before stabbing him twice in the back.She had been the victim of spousal abuse and the particular offending was considered to be the outcome of welled up anger and frustration.The sentence imposed for wounding with intent to injure was two years supervision.

[26] In each of these cases both the violence used and the danger caused was more serious than in the present case, but the sentences were appreciably more lenient.

[27] Notwithstanding the particular advantage of the District Court Judge in presiding over the trial and observing the appellant we are quite satisfied that the sentence should have been other than a full-time custodial sentence.

[28] If subs 5(1) of the Criminal Justice Act 1985 applies, the circumstances of the offence and of the offender were plainly sufficiently special to compel a non-custodial sentence.

[29] When a middle-aged person of previous exemplary character commits an offence of this nature it is instructive to the sentencing process to inquire why.Such inquiry bears not only on the culpability for the offence but also the rehabilitative considerations of sentencing.

[30] In the present case these circumstances have a compelling mitigating quality.Mrs Hensley's emotional and mental state were plainly aberrated, as the distress, attempt at self-harm and retreating to a cupboard indicate.Mr Hensley, whose attitude did not seem calculated to play down the seriousness of the matter, had noticed strange conduct over a period of months after the appellant's return from Thailand.She plainly had language difficulties and felt very anxious and insecure in her domestic situation.She had no family in New Zealand but a young daughter back in Thailand.However well intended Mr Hensley's attempts to get her to return to Thailand may have been, her own perception, affected by her general distress and language problems, was that he merely wanted to get rid of her.The cultural implications both of her displacement in New Zealand and the prospect of being sent back to Thailand were significant.Her sense of isolation and grief must have been acute.

[31] The mitigating quality of the social and cultural isolation of offenders from overseas has been clearly recognised by this Court in cases such as R v Fate (1988) 16 CRNZ 88 and R v Suluape CA 249/01, 27 March 2002.In the present case the circumstances of the offence and of the offender, tending partially to merge, relating to the appellant's emotional state and the reasons for it, were plainly of a sufficiently special nature to compel a sentence other than of full-time custody.The conduct of the appellant's life between the offence and the trial reinforces that conviction.

[32] But here the appellant has served, and in terms of home detention is still serving, a custodial sentence.Justice and expediency combine to indicate that the appeal should be allowed, the sentence of nine months imprisonment quashed and imposed in substitution a sentence of a term of imprisonment expiring immediately.We make orders accordingly.

Solicitors

Linwood Law, Christchurch for Appellant

Crown Law Office, Wellington for Crown