Sudol v R [2011] NZCA 189 (16 May 2011)

Last Updated: 25 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA118/2011 [2011] NZCA 189

BETWEEN JESSICA ANNE SUDOL Appellant

AND THE QUEEN Respondent

Hearing: 9 May 2011

Court: Chambers, Venning and Courtney JJ

Counsel: A Stevens for Appellant K A L Bicknell for Respondent

Judgment: 16 May 2011 at 11 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentence of seven months’ imprisonment on the charge of assault with a weapon is quashed and a sentence of four months’ imprisonment on that charge is substituted. All other sentences are confirmed. The total sentence becomes 10 months’ imprisonment.
   

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REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] On 1 February 2011, having pleaded guilty to assault with a weapon, two breaches of intensive supervision, attempting to escape from custody and intentional damage, the appellant was sentenced by Judge O’Driscoll in the District Court at Dunedin. The Judge imposed a total term of imprisonment of 13 months.[1] The appellant’s current release date is 22 June 2011.

Background

[2] Although the appellant is only 24 years old she already has a substantial list of convictions. She has in excess of 60 convictions, including two previous convictions for common assault, and convictions for assault with intent to rob and aggravated robbery. She has been sentenced to imprisonment before.
[3] On 12 February 2010 the appellant had been at home drinking. She and an associate went to a massage parlour where she had formerly worked. She was asked to leave the premises. The appellant remonstrated with the receptionist, who accompanied her and the associate outside the building. In the course of the confrontation the appellant punched the receptionist on the left hand side of the face just below her left eyebrow. The blow caused a small wound that started to bleed. At the same time the appellant removed a pocket knife from her clothing, extended the blade and waved it in the direction of the victim.
[4] The appellant was originally charged with wounding with intent to cause grievous bodily harm. Mrs Stevens, who has acted for the appellant throughout, sought to have that charge reduced. Ultimately an amended indictment was presented charging wounding with intent to injure and, in the alternative, assault using a knife as a weapon. When the amended indictment was presented to the Court on 30 September 2010 the appellant pleaded guilty to the lesser charge.
[5] At the time she committed this offence in February 2010 the appellant was subject to a sentence of intensive supervision. She had earlier breached that sentence on two occasions, the first when she failed to report to her probation officer on 17 November 2009, and the second when she failed to attend a psychologist’s appointment on 19 January 2010.
[6] When the appellant appeared in Court on 15 February on the wounding and breach of supervision charges she was remanded in custody. Despite that she stepped out of the dock, into the courtroom, and attempted to leave the Court through the public gallery. She was apprehended by the police about two metres from the dock and taken into custody.
[7] The last matter the appellant was sentenced on was the charge of intentional damage. The damage was to a bracelet monitor. After a short time in custody following the 15 February incident the appellant was admitted to electronically monitored bail on 11 March 2010. On 31 December 2010 she cut off her bracelet monitor and left her bail address. The police checked the address on a number of occasions but were unable to locate her. On 3 January the appellant told the police that she was living at an associate’s address in South Dunedin and arranged to surrender herself. She was then taken into custody until she was sentenced on 1 February 2011.

The sentencing decision

[8] When the appellant pleaded guilty to the reduced charge of assault using a knife as a weapon on 30 September 2010, the Crown indicated it was not seeking a custodial sentence. Judge Kellar agreed to consider an electronically monitored sentence and supervision, subject to a suitable assessment and report. The probation report obtained for sentencing purposes recommended community detention.
[9] However, before the appellant was sentenced she committed the further offence of damaging the bracelet monitor and remained at large, in breach of her bail conditions for three days. Mrs Stevens accepted that, in the circumstances, the earlier sentence indication was no longer binding. Judge O’Driscoll called for an updated report. The updated report concluded that community detention could no longer be recommended.
[10] Judge O’Driscoll constructed the sentence of 13 months’ imprisonment in the following way. The Judge took a starting point of nine months’ imprisonment on the charge of assault with a weapon. He uplifted that by three months to take account of the appellant’s previous convictions for violence. He then deducted five months to take account of the guilty plea and the period the appellant had been on electronically monitored bail. The end result was a sentence of seven months’ imprisonment on that charge.
[11] On the charges of breaching intensive supervision the Judge took as a starting point six months’ imprisonment. He reduced that by two months. The end result of four months’ imprisonment was imposed cumulatively.
[12] The Judge considered the offence of escaping from custody to be a feeble attempt to escape. He took as a starting point three months’ imprisonment. Allowing for the guilty plea he imposed a sentence of two months’ imprisonment to be served concurrently.
[13] On the charge of intentional damage the Judge took a starting point of three months’ imprisonment, and again reduced that by one month for the guilty plea. The resulting two month term was again imposed cumulatively, making the effective sentence 13 months’ imprisonment.

The appeal

[14] Mrs Stevens submitted that the Judge erred in principle by sentencing the appellant to imprisonment because community detention was the appropriate sentence. However, recognising the time the appellant has already spent in custody, Mrs Stevens accepted an electronically monitored sentence was no longer feasible. She submitted the sentence appeal should be allowed and the period of imprisonment reduced to time served.

Did the Judge err in principle in imposing a sentence of imprisonment?

[15] The reasons the Judge gave for concluding community detention was no longer appropriate were:

• the appellant’s extensive list of previous convictions;
• her previous violent offending;
• she had been sentenced to imprisonment before;
• she had breached the sentence of intensive supervision;
• she had breached Court orders in the past; and
• she had offended while subject to intensive supervision.

[16] Mrs Stevens submitted that all of the above factors were present when Ms Sudol had been before the Court on 30 September 2010 and had been given an indication community detention might still be available. Further, in her submission, they effectively amount to the same thing, namely her history of offending. The Judge had erred by focussing on the appellant’s past wrongs and by failing to give her credit for the lengthy period she had spent, in stressful circumstances, subject to the constraints of e-bail.
[17] Mrs Stevens submitted that by the time the appellant was sentenced she had spent a substantial period, some nine months, on e-bail. That was despite the fact she was living on her own with a baby. Further, the appellant was coping with the stress of dealing with the loss of close friends. Two of her best friends were severely troubled. One committed suicide on 20 November 2010. The other committed suicide on 14 January 2011. Mrs Stevens submitted the month the appellant had spent in custody awaiting sentence following her removal of the bracelet was sufficient punishment for that offence.
[18] For those reasons Mrs Stevens submitted that in imposing the sentence of imprisonment the Judge had erred in principle.

Decision

[19] In our judgment the Judge cannot be said to have been wrong in principle in imposing a sentence of imprisonment in this case. While the general features referred to by the Judge were present in the appellant’s history when the possibility of a community sentence was left open, there were a number of further, relevant, developments by the time the appellant was for sentence before Judge O’Driscoll. The Judge was right to be concerned at her recent behaviour.
[20] Following the sentencing indication on 30 September the appellant had breached the conditions of her electronically monitored bail on two occasions. On 20 October 2010 she accidentally sent a text message to her EM bail assessor about a drinking party at her home. She subsequently failed a breath screening test. On 2 December 2010 she breached her e-bail conditions again by failing to return home. Those breaches were followed by the appellant’s action on New Year’s Eve of cutting through the ankle strap of her bracelet monitor and absconding. While she contacted the police on 1 and 2 January 2011 she refused to return home and would not tell the police where she was living.
[21] When those incidents, which had occurred shortly after the sentencing indication had been provided, are considered together with the appellant’s past history, there were reasonable grounds for the Judge to conclude that, in terms of s 17 of the Sentencing Act 2002, the appellant would be unlikely to comply with a sentence of community detention. Further the probation officer no longer supported a sentence of community detention.
[22] In response to the appellant’s bad record, Mrs Stevens submitted that the appellant’s attitude had changed since the birth of her child. Against that, we note that the baby was born on 18 October 2009 but the appellant had still offended in the early hours of 13 February 2010 in relation to the charge of assault with a weapon following a bout of drinking.
[23] However, while we consider it was open to the Judge to have imposed a sentence of imprisonment, we accept there is force in Mrs Stevens’ submission that the overall sentence of 13 months was, in the circumstances, manifestly excessive.
[24] We consider the Judge gave insufficient credit for the period the appellant spent subject to restrictive conditions of e-bail. She was effectively on e-bail from 11 March 2010 until she removed her bracelet on 31 December 2010, a period of nearly 10 months. She was initially subjected to a 24 hour curfew. Although the 24 hour curfew was subsequently relaxed so that she could attend a Family Start Programme for two hours a day and was later relaxed further, it is relevant that during this time the appellant had the care of her new-born baby.
[25] Further, it is relevant that the appellant was willing to plead guilty to a charge of assault at least, from an early stage.
[26] On all other sentences the Judge allowed a full discount of a third for the guilty plea. Applying that to the start point of 12 months (including the aggravating factor of the previous convictions) the reduction for the e-bail in this case was only one month. Even accepting the exercise is an evaluative one, in our judgment a reduction of only one month was insufficient in the circumstances of the present case.[2]
[27] We also consider that a starting point of nine months for the incident described in the summary and the uplift of three months for previous convictions was, in the circumstances, too severe.
[28] Further, by taking the maximum sentence for the breaches of intensive supervision and wilful damage as a starting point and making the resultant sentences cumulative, the effective end sentence of 13 months is manifestly excessive.
[29] We do not need to evaluate exactly how these concerns should be reflected in amended individual sentences. That is because we are quite satisfied that the overall sentence, however constructed, could not reasonably have exceeded 10 months’ imprisonment. The appellant has already served more than five months’ imprisonment. She has therefore already served more than she reasonably should have.
[30] In these circumstances, all that is required of us is that we adjust the sentence so as to achieve her immediate release. The easiest way of doing that is simply reducing the sentence of seven months’ imprisonment on the charge of assault with a weapon to four months’ imprisonment. That has the effect of reducing the total sentence to 10 months’ imprisonment, which would have been a fair sentence (albeit still probably on the high side). We do not need to adjust the other sentences; nor do we need to adjust the Judge’s directions as to whether such sentences were concurrent or cumulative. It will be appreciated that this judgment has no precedent value so far as individual sentences are concerned, as we have not found it necessary in the circumstances to readjust them.

Result

[31] For those reasons we allow the appeal. The sentence of seven months’ imprisonment on the charge of assault with a weapon is quashed and a sentence of four months’ imprisonment on that charge is substituted. All other sentences are confirmed. The total sentence becomes 10 months’ imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Sudol DC Dunedin CRI-2010-012-752, 1 February 2011.
[2] R v Keown [2011] NZSC 7.