THOMAS v R [2004] NZCA 166 (2 August 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/04THE QUEEN

v

DEBBIE REREMOANA THOMAS

Hearing: 21 July 2004

Coram: O'Regan J Panckhurst J Paterson J

Appearances: P G Mabey QC for Appellant
A Markham for Crown

Judgment: 2 August 2004

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1] In this appeal against sentence the appellant challenges a sentence of nine months imprisonment accompanied by leave to apply for home detention and deferment of the term, on the basis that a community based sentence was the appropriate and proper sentencing response.
[2] The sentence was imposed in relation to two offences of threatening to cause grievous bodily harm. The threats were made against young women whom the appellant believed knew the identity of a person who had provided information (narked) to the police in relation to a burglary committed by her partner. Hence, it is the Crown’s submission that the sentence is, if anything, compassionate, since the threatening offences were of a nature to strike at the proper administration of justice. On that ground alone, a deterrent response was required.

The factual background

[3] On 4 July 2003, a serious supermarket burglary was committed. Property to a value of $4500 was stolen.
[4] On 10 July, the police executed a search warrant at the appellant’s home. Property from the burglary to an approximate value of $1000 was recovered. Her partner was arrested and charged with the burglary. The appellant was charged with receiving in relation to that part of the property recovered at her address.
[5] On 11 July, the appellant’s partner appeared in the District Court. She attended the hearing having been released on bail with reference to the receiving charge. While in the dock the appellant’s partner motioned towards two young women, aged 16 and 18 years, and mouthed the word “narks.” After the hearing, the appellant approached the complainants and demanded to know who had narked to the police. By gesture she indicated a shot to the head. The appellant also said that if the complainants would not come with her and identify the informant she would drag them by the hair.
[6] Fearful for their safety, the complainants drove with the appellant to an address. In the course of the journey the appellant continued to demand details of the informant and to threaten to harm the complainants, including to burn down their homes if the required information was not provided. However, the appellant’s conduct was erratic to the extent that her threatening behaviour was also interspersed with occasions when she was calm and apologised to the complainants for her conduct.
[7] Upon arrival at the address the appellant made to enter the property which had been indicated to her. At this point the complainants made their escape.
[8] The matter was reported to the police. The appellant was spoken to at her home later the same day. She made a partial admission and also apologised for having threatened and frightened the two teenagers. After arrest the appellant was initially remanded in custody for about three to four weeks.
[9] On 11 March 2004, while the appellant was on bail, she was involved in an offence of disorderly behaviour. In the early hours of the morning outside a city bar, and in the context of a dispute with another woman, she threw a bottle at a passing vehicle. The appellant was sentenced on this matter at the same time as she was imprisoned on the indictable charges. In relation to it, the appellant was convicted and discharged, Judge McGuire noting that the offence was relatively minor, albeit it reflected no credit on her that she was abusing alcohol at a time when she was on bail on serious charges.
[10] With reference to the receiving and threatening charges, pleas of guilty were entered on arraignment on 17 March 2004. Subsequently, on 14 May 2004, the appellant was sentenced to nine months imprisonment on the threatening charges, and one month’s imprisonment on the receiving charge, such terms to be concurrent, the subject of leave to apply for home detention and deferred pursuant to s100 of the Sentencing Act 2002, to enable the Parole Board to consider a release to home detention before any part of the sentence had been served.
[11] Mr Mabey QC, advised us in the course of his submissions that a release to home detention was granted in late June and, accordingly, the appellant is currently serving her sentence in that manner.

Grounds of appeal

[12] Mr Mabey, in a short but effective submission, contended that a term of imprisonment was, for this appellant and in the circumstances of this case, unjustified, wrong in principle and clearly excessive. In his submission the appellant could be held accountable, a sense of responsibility and acceptance fostered in her, and denunciation and deterrence achieved by imposition of a community based sentence. Counsel argued that a primary focus of the sentencing in this case should have been upon the rehabilitation of the appellant. With reference to the Judge’s sentencing remarks, it was contended that he had been wrongly deflected from an objective assessment of relevant criteria in the Sentencing Act, on account of a pre-occupation with the seriousness of the offending. Thereby a less restrictive outcome, appropriate in view of the appellant’s age (23 years), acceptance of responsibility, remorse and previous good record, was overlooked. On this basis, Mr Mabey sought a sentence of community work, which would achieve the elements of retribution, deterrence and punishment, coupled with supervision which would promote the appellant’s rehabilitation.

The Crown’s submissions

[13] Ms Markham did not accept that the sentence imposed was excessive, let alone plainly so. Properly, in our view, she stressed that the offences which attracted the lead sentence were serious in that they involved conduct which struck at the proper administration of justice. The Judge, faced with the need to balance different sentencing considerations, had arrived at a sentencing response which appropriately marked the seriousness of the offending and at the same time struck a compassionate balance.

Discussion

[14] We are unpersuaded that the sentence is in any way inappropriate or excessive. To the contrary, we are satisfied that faced with the need to impose a sentence which both incorporated a punitive and deterrent element, and which also recognised the rehabilitative needs of the particular offender, the Judge achieved these competing ends.
[15] Naturally enough Mr Mabey had no quarrel with the sentencing elements of leave to apply for home detention and deferment of the term. These he said, were justified on account of what the Judge termed a glowing pre-sentence report and, in particular, the appellant’s responsibilities as a mother to her young daughter. The essence of his argument, in our view, was a criticism that the Judge fell into error by deferring consideration of the favourable personal aspects to the point where he decided the questions of leave and deferral. Had he considered these elements when weighing the need for a sentence of imprisonment at all, the balance would have moved to a community based sentence.
[16] We disagree. On our reading of the sentencing remarks we are satisfied that the Judge had regard to all relevant matters in determining that a short sentence of imprisonment was unavoidable. His conclusion was introduced with the words:

The best I can do for you today is this. I do not think I can avoid imposing a sentence of imprisonment.

This followed unstinting reference to the personal mitigating features.

[17] Moreover we agree with the conclusion itself that this was serious offending representing, as the Judge put it, a descent “to the law of the jungle.” A prison term was necessary. Its term reflected the need for consistency in terms of sentencing levels generally and was also the least restrictive outcome that was appropriate in the circumstances. The subsequent exercise of the discretions to grant leave and defer produced an outcome which struck an appropriate final balance.

Result

[18] For the above reasons, the appeal against a sentence of imprisonment is dismissed.

Solicitors:
Paul Devoy, Tauranga for Appellant
Crown Law Office, Wellington