The Queen v Norman [2007] NZCA 351 (15 August 2007)

Last Updated: 23 August 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA301/07

[2007] NZCA 351

THE QUEEN

v

SAMANTHA NANCY NORMAN

Hearing: 23 July 2007

Court: Wilson, Panckhurst and Venning JJ

Counsel: A E Stevens for Appellant
D La Hood for Crown

Judgment: 15 August 2007 at 11am

JUDGMENT OF THE COURT

1. Appeal against sentence allowed and sentence of eight months imprisonment quashed.
   
2. In substitution, appellant ordered to undertake 300 hours community service and to be subject to supervision for nine months.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wilson J)

Introduction

[1] The appellant appeals against a sentence of eight months imprisonment, with leave to apply for home detention, imposed by Judge A D Garland in the District Court at Dunedin on 22 June 2007.
[2] This sentence was consequent upon the conviction of the appellant, following a jury trial, of one count of injuring with intent to injure (s 189(2) of the Crimes Act 1961). At the commencement of the trial, the appellant had entered a plea of guilty to an alternative charge of common assault under s 196 of the Crimes Act. She was acquitted by the jury of more serious charges relating to being a party to a vicious attack by two male co-accused on the victim’s husband.
[3] A female co-accused was convicted of the same charge as the appellant. Unlike the appellant, the co-accused had been in custody pending the trial. By the time of sentencing she had already served the twelve months imprisonment to which she was sentenced and was therefore entitled to immediate release.
[4] The appellant appeals against the sentence on the grounds that a sentence of imprisonment was inappropriate or wrong in principle. In response, the Crown submits that the Judge was right to conclude that imprisonment was the only sentence which would meet the sentencing principles of denunciation and deterrence.

The facts

[5] Shortly after midnight on the night of 7-8 October 2006, the victims came across the appellant and her co-accused standing on a footpath.
[6] At that time, the appellant and her female co-accused were involved in a verbal dispute, using bad language. They directed abuse at the female victim who, understandably, told them to desist.
[7] Without warning, the female co-accused then punched the female victim twice in the face, striking her in the region of her eyes, and the appellant joined in the attack. They then both continued to punch the victim about the face, as many as ten or twelve times. The victim tried to protect herself but, as a result of the number of punches and the force behind them, was knocked to the ground.
[8] As a consequence of this attack, the victim suffered severe bruising to her right eye which proved to be very painful. The swelling lasted two to three weeks but the eye remained painful for some two months after the attack. The physical injuries did however resolve without any long-term effects.
[9] The victim’s husband was less fortunate. He suffered very severe injuries which have continuing consequences for him.
[10] Following sentencing on a Friday, the appellant was in custody until the following Monday, when she was granted bail pending this appeal.
[11] Counsel informed us that the appellant is currently studying full-time at a polytechnic.

Issues

[12] In sentencing the appellant, Judge Garland took as a starting point the guideline judgment of this Court in R v Taueki [2005] 3 NZLR 372. The appellant contends that he was wrong to do so, because that judgment provides guidelines for sentencing for offences involving serious violence. The Crown contends however that the Judge was justified in relying on Taueki because the present case did involve serious violence and, in the alternative, Taueki provides guidance by analogy.
[13] Alternatively, the appellant contends that the sentence imposed on her did not comply with the principles prescribed by the Sentencing Act 2002. The Crown submits that it did.

Submissions for the appellant

[14] For the appellant, Mrs Stevens emphasised that the sentence must reflect:

• (1) The nature and gravity of the offence.

(2) The circumstances of the offender.

(3) The behaviour of the offender subsequent to the commission of the offence.

[15] Counsel submitted that the starting point is the Sentencing Act, including the mandatory requirements that the Court:

• (1) Take into account the gravity of the offending in the particular case, including the degree of culpability of the offender (s 8(a)).
• (2) Impose the least restrictive outcome that is appropriate in the circumstances (s 8(g)).
• (3) Take into account the age of the offender, any remorse and any evidence of previous good character (s 9(2)(a), (f) and (g)).
• (4) Take into account the response of the offender or the offender’s family to the offending (s 10(1)(c)).
• (5) Assess whether the purposes of sentencing can be achieved by a sentence other than imprisonment (s 16).

[16] Without seeking to minimise the seriousness of the offending, Mrs Stevens submitted that the offending was distorted in its seriousness by the vicious attack on the victim’s husband. If the appellant and her female co-offender had appeared for sentence without their male co-offenders (who were sentenced to five years and five years three months imprisonment respectively for the assault on the male victim) they would not have received sentences of imprisonment.
[17] Counsel then submitted that the appellant had no personal aggravating circumstances and, to the contrary, there were a number of mitigating considerations. She was aged 17, had no previous convictions and was described in the pre-sentence report as an immature young woman with very little experience in “the outside world”. She had been naïve and was “in the world she was not mentally equipped to make decisions in”.
[18] As this Court recognised in R v Thomas CA138/05 6 July 2005 at [17] when substituting a community-based sentence for a term of imprisonment (quoting Kennedy J in Roper v Simmons [2005] USSC 2017; 125 S Ct 1183 (2005) at 1195):

The susceptibility of juveniles to immature and irresponsible behaviour means their irresponsible conduct is not as morally reprehensible as that of an adult.

[19] Mrs Stevens then submitted that the appellant had displayed genuine remorse when interviewed by the police after the offending and continued to do so. As the pre-sentence report stated, “[the appellant] presented as willing to take responsibility for her part in the incident” and “she presented as genuine when she stated that she did not think what they did was right and those people did not deserve that”.
[20] In addition the appellant came from a hard-working family with no Court history and had familial support. Her mother had written to the victim and apologised shortly after the incident occurred.
[21] In summary, Mrs Stevens submitted that an appropriate penalty would be orders that the appellant undertake 300 hours of community service and be subject to a supervision for nine months.

Submissions for the Crown

[22] While acknowledging that the sentence under appeal was a “stern” one, Mr La Hood submitted that it was justified by considerations of denunciation and deterrence.
[23] Counsel submitted that the sentencing Judge was correct to apply Taueki because the present case did involve serious violence and, in any event, Taueki provided guidance by analogy.
[24] Mr La Hood referred us to, and adopted, the observation of this Court in R v Highley CA164/06 13 September 2006 at [11] that:

[Taueki] provides tariff guidance for offending more serious than that committed by the appellant. But it is none the less of substantial assistance in the present context – indeed very much more so than the other sentencing decisions relied upon by the appellant, none of which could fairly be regarded as tariff guidance.

[25] Counsel went on to submit that, on any view of the evidence, this was an attack on the head by two attackers and the violence was serious.
[26] Mr La Hood also relied upon the statement of this Court in R v Franklin and Hirini CA145/05 26 May 2005 at [30] that:

Mindless violence in hotels by people who have had far too much to drink is a serious social problem and the Court is entitled to take the view that a short, sharp shock, even for relatively young mothers, is the appropriate response.

This, counsel submitted, supported the right of the sentencing Judge to choose a sentencing option which best met the goals of denunciation and deterrence.

[27] Developing the submission, Mr La Hood submitted that Franklin and Hirini is the most closely analogous authority. It involved guilty verdicts following trial on a count under s 189(2) involving two teenage females who attacked another female in a bar by punches and kicks whilst on the ground. The appellants were given credit for their youth and lack of previous convictions. In upholding the sentence of four months imprisonment, this Court commented (at [32]) that:

This may be seen as a stern response by some, but the underlying problems deserve condemnation and there is nothing which suggests to us that the wrong principle was adopted by the Judge or that his result was manifestly excessive.

Discussion

[28] We preface our discussion with two comments on the approach of the sentencing Judge.
[29] First, we can readily understand why the Judge took the view that imprisonment was the appropriate penalty for what he correctly characterised as “unprovoked and wanton street violence”.
[30] Secondly, having sentenced the three co-offenders to imprisonment, the Judge may well have thought that consistency required a similar penalty to be imposed on the appellant.
[31] However, the appellant was in a different category. The two male co-offenders committed a much more serious assault and, as we noted at para [3] above, the term of imprisonment to which the female co-offender was sentenced did not involve any further penalty because the time had already been served.
[32] Notwithstanding the comprehensive and helpful submissions that we received from both counsel, this appeal comes down to a single and narrow issue: do the sentencing objectives of denunciation and deterrence outweigh the statutory directions to impose the least restrictive outcome and to assess whether the purposes of sentencing can be achieved by a sentence other than imprisonment?
[33] Unlike the Judge, we take the view that they do not.
[34] We are mindful of the comment of this Court in R v Conway CA234/04 8 November 2004 at [65] that:

There is a world of difference, in the minds of most members of the community, between a sentence of imprisonment and a sentence of community work ...

However the force of this observation is reduced where, as here, the offender is given leave to apply for home detention.

[35] Community work and supervision of the duration proposed by Mrs Stevens represent a very significant penalty. To them must be added the cumulative effect on a 17 year old with no prior convictions of arrest, trial, conviction, sentence to imprisonment and a weekend in custody.
[36] Taken together, we think that these matters do adequately achieve the purposes of denunciation and deterrence.
[37] It follows that, in our opinion, there was no necessity for the appellant to be sentenced to imprisonment, even with leave to apply for home detention.

Result

[38] The appeal is allowed and the sentence of eight months imprisonment is quashed.
[39] In substitution, the appellant is ordered to undertake 300 hours community service and to be subject to supervision for nine months.
[40] While under supervision, the appellant will be required to complete any assessment or programme which the Probation Officer directs her to undertake.

Solicitors:
Crown Law, Wellington