Sullivan v R [2011] NZCA 366 (3 August 2011)

Last Updated: 10 August 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA799/2010 [2011] NZCA 366

BETWEEN LUANA TEAWHINA SULLIVAN Appellant

AND THE QUEEN Respondent

Hearing: 13 July 2011

Court: Randerson, Potter and Ronald Young JJ

Counsel: A Snell for Appellant A Markham for Respondent

Judgment: 3 August 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

1. The concurrent sentences of 10 years and two months’ imprisonment on the two counts of wounding with intent to cause grievous bodily harm are quashed.
2. Sentencing on these two counts is remitted to the District Court to re-sentence the appellant in terms of the direction in [37] of this judgment. All other sentences imposed on the appellant remain undisturbed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction and the appeal grounds

[1] The appellant says her sentence of ten years and two months’ imprisonment imposed by Judge Adeane in the District Court[1] was manifestly excessive because it failed to reflect her lesser involvement in the offending. She says counsel representing her at sentencing wrongly failed to seek a disputed facts hearing so that her lesser involvement could have been established. The sentencing Judge thereby wrongly sentenced her on a summary of facts which she partially disputed.
[2] The appellant pleaded guilty two days before trial to the following charges:

(a) theft (6 January 2010);

(b) burglary (7 January 2010);

(c) theft (7 January 2010);

(d) wounding with intent to cause grievous bodily harm (7 January 2010);

(e) kidnapping (8 January 2010);

(f) kidnapping (8 January 2010);

(g) wounding with intent to cause grievous bodily harm (8 January 2010);

(h) theft (8 January 2010);

(i) assault with a weapon (13 January 2010); and

(j) assault with a weapon (13 January 2010).

[3] The appellant was charged with two others, Ms Haddon and Mr Williams. Mr Williams pleaded guilty at an early stage. He was sentenced in the District Court to nine and a half years’ imprisonment reduced on appeal by this Court to eight years’ imprisonment.[2]
[4] The appellant had originally also faced two charges of threatening to kill and three further charges of assault with a weapon on which she was discharged upon her pleas of guilty. Her sentence of ten years and two months’ imprisonment commenced with a starting point of 12 years from which 15 per cent was deducted.
[5] To support this appeal new counsel was instructed. Ms Sullivan signed a waiver of privilege. In an unorthodox approach, counsel for the appellant filed an affidavit by Ms Sullivan’s previous counsel, Mr Malik, detailing the circumstances under which she came to plead guilty and sentencing counsel’s instructions as to the appellant’s involvement in the offending.[3] However, the Crown has now had an opportunity to obtain a further affidavit from Mr Malik. As a result we now have a full report of the circumstances which gave rise to the sentencing.
[6] After hearing this appeal, we asked the appellant to file and serve an affidavit relating to:

(a) The extent and nature of her physical involvement in the serious assaults which took place on 7 and 8 January 2010; and

(b) Her instructions to Mr Malik in relation to her physical involvement in those incidents at the time she pleaded guilty.

[7] That affidavit has now been received. We will return to its content later in this judgment.

Facts on which appellant was sentenced

[8] It is common ground that there was no agreed summary of facts but the Crown presented to the sentencing Judge a summary which they said reflected the facts which we now summarise.
[9] There was an interrelationship between the victim and the offenders. The primary victim was Ms M (58 years) who for a number of years boarded with Mr N. Mr N is the step-father of Ms Haddon and the grandfather of Mr Williams. Ms Sullivan was Mr Williams’ partner at that time of the offending.
[10] Mr N was admitted to hospital in January 2010. Ms M stayed on at his house. Ms Haddon and the appellant visited Ms M and accused her of the theft of some of Mr N’s money. They forced her to leave her address. The appellant took the keys to Ms M’s car and drove her to her brother’s residence where she was to stay. She then kept Ms M’s car.
[11] On 7 January 2010 the appellant together with the two co-offenders, and others, arrived at Ms M’s new address. They again accused her of the theft of money and belongings. They took a number of items which belonged to her. Later that day the offenders returned to the address. Mr Williams grabbed the victim by the hair and dragged her outside. The appellant went with them. Ms M was punched to the ground by Mr Williams and the appellant who continued to punch and kick her until she lost consciousness. They then took her inside and cleaned up her injuries. This was the first wounding with intent to cause grievous bodily harm charge.
[12] Ms M and her brother were threatened with violence if they told what happened. A false story was made up by the offenders about the assault. Ms M was told she was to tell this false story if she was asked about the assault. She was then taken to hospital for treatment. Ms M had severe bruising and a fractured eye socket. She was released the next day.
[13] On the day of Ms M’s release from hospital (8 January) the appellant (who drove the car) and the other two offenders took Ms M to the Ngaruroro River. The appellant and Mr Williams then took the victim from the car, punched her until she fell to the ground where they continued to punch and kick her. Eventually she lost consciousness. She was taken back to the vehicle semi-conscious and covered in blood. The offenders took her to her address where they cleaned her up. This was the second wounding with intent to cause grievous bodily harm charge.
[14] Subsequently there were threats by the offenders to Ms M and her brother to keep quiet about what had happened.
[15] Some days later Ms M and her brother were in a car. The appellant was driving Ms M’s vehicle which had been taken from her some days earlier. The other offenders were also in the car. The appellant attempted to stop the car Ms M was in cutting in front and forcing it to stop. When the victim’s car attempted to reverse the appellant drove her car into the vehicle. The police were phoned. The appellant followed the victim’s car to her address but eventually left.

Sentencing counsel and his instructions

[16] Mr Malik first spoke in detail with the appellant on 26 March 2010 by telephone. He made a written record of the discussion. The appellant then denied she had any involvement in the 7 January assault on Ms M. She admitted involvement in the 8 January assault. The appellant told Mr Malik with regard to the 8 January assault that when she saw the co-accused, Mr Williams, beating Ms M she went over to help the victim. However, the victim grabbed her leg and the appellant then punched and kicked her.
[17] A private investigator was then instructed by counsel for the appellant. He also interviewed the appellant. She told the private investigator she had been involved in the 7 January assault but said she only slapped Ms M once in the face. She described a number of others who had been kicking and punching the victim.
[18] As to the 8 January assault the appellant told the investigator she had slapped the victim in the face and kicked her once in the leg. Again she described others as seriously assaulting the complainant.
[19] On 25 September Mr Malik saw the appellant and made notes of their discussion. As to the 7 January assault the appellant said she was outside the house observing the others seriously assault the victim. Counsel noted the appellant accepted that she had slapped the victim as the victim was returning to the house (after the assault by the others). The note says “On this basis she will accept being guilty as a party to the GBH charge”.
[20] As to the 8 January assault Mr Malik’s note says the appellant denied she drove the vehicle to the river. She says Mr Williams was driving. The appellant told Mr Malik the assault at the river mainly involved the others but that she slapped the victim twice with an open hand and kicked her once in the calf.
[21] Sometime after the appellant was charged Mr Malik wrote to the Crown advising that she would be prepared to plead guilty to some of the charges on the basis of her description of limited involvement in the offending. Counsel also asked that the Crown offer no evidence on some charges which were denied. On the two wounding with intent to cause grievous bodily harm charges the offer was that Ms Sullivan would plead guilty, but that the summary of facts should reflect the fact that on the 7 January charge, her involvement was limited to observing the attack by Mr Williams and slapping the complainant. On the 8 January charge the appellant accepted she had slapped the complainant twice in the face with an open hand and kicked her once in the calf area. Ms Sullivan said she denied the charges of kidnapping. The Crown rejected the offer of settlement.

Evidence before this Court

[22] Mr Malik has sworn three affidavits relating to this appeal. The essence of Mr Malik’s evidence is that he had always been instructed by the appellant that she was less involved than Mr Williams in the two principal assaults. He said, however, the difficulty he had when making submissions at sentencing was that the appellant’s instructions varied as to her precise involvement in the offending. Thus, he could not be specific when addressing the sentencing Judge as to the extent of her involvement. However, he emphasised her lesser involvement.
[23] Mr Malik accepted he had not discussed a disputed facts hearing with the appellant before sentencing, nor had he suggested such a process to the sentencing Judge.
[24] With reference to the affidavit from the appellant before this Court the appellant says, with respect to the 7 January assault “I was involved to the extent I slapped Ms M with a backhand”. And as to the 8 January assault she says “I was involved to the extent that I slapped Ms M up to four times in the face with a backhand and kicked her once”.

The District Court sentencing

[25] Counsel for the Crown and the appellant filed written submissions for the Judge at sentencing. The summary of facts prepared by the Crown was handed to the Judge with no direct indication from either counsel as to whether it was an agreed or a disputed summary. The Crown submissions said that this appellant’s role and the role of Mr Williams were indistinguishable. It accepted that the other co-accused’s role (Ms Haddon) was less, especially given she was not involved in the 7 January assault.
[26] Counsel for the appellant’s sentencing submissions said a distinction could be made between Mr Williams and Ms Sullivan on the basis that she played a lesser role in the offending.
[27] As to the incident of 7 January counsel for the appellant, at sentencing said:[4]

In relation to the indictment of 7 January 2010, it is accepted that Ms Sullivan followed Mr Williams as he dragged Ms M outside. While Ms M, in her statement refers to being kicked and punched by Mr Williams, Ms Sullivan and one other, it is submitted that she was not able to provide an account of what role each person played. It is submitted that it is open for the Court to infer that it was Mr Williams who was the main aggressor, and who carried out the brunt of the assault. It was Mr Williams who was angry at the comments made by Ms M; had dragged her outside; pushed her to the ground; knocked her to the ground; and started punching Ms M to the shoulders, face and ears.

[28] And in relation to facts which gave rise to the second serious assault, counsel for the appellant said:[5]

In relation to the assault at the river, counsel is instructed that the majority of blows were inflicted by Mr Williams.

[29] As to relative responsibility the Judge at sentencing said:[6]

Comparing you, Sullivan, with the third offender, Williams, you were redressing the same imagined slight as he was and I accept the Crown’s submission that attempts to distinguish between you would be based on minor differences which, in reality, are dwarfed by the common features and the mutual enthusiasm which the two of you showed for actually beating this woman in the fashion you did. It may have been that this attack caused more damage done, but that does not create any basis for distinction in the context.

Submissions and Discussion

[30] In support of this appeal Mr Snell submitted that a disputed facts hearing should have taken place to determine the appellant’s role in the offending and therefore the basis on which she could be sentenced. Mr Snell stressed that there was notice of a serious dispute as to the appellant’s level of involvement in the offending before sentencing. Given this aspect of the case was a vital part of sentencing a disputed facts hearing was required. A failure to have such a hearing had resulted in a manifestly excessive sentence being imposed.
[31] Section 24 of the Sentencing Act sets out the circumstances under which a disputed facts hearing can appropriately be held. It provides:

24 Proof of facts

(1) In determining a sentence or other disposition of the case, a court—

(a) may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and

(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial:

(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:

(e) either party may cross-examine any witness called by the other party.

(3) For the purposes of this section,—

aggravating fact means any fact that—

(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

mitigating fact means any fact that—

(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[32] At sentencing it was clear that the prosecution and defence had quite different descriptions of the appellant’s involvement in the offending. The summary of facts was not presented to the Judge as an agreed summary. Counsel for the appellant made it clear to the Judge that the appellant claimed substantially less involvement in the offending than the prosecution summary identified. Although counsel for the appellant, Mr Malik, should have triggered the s 24 process, he did not do so.
[33] It was clear from counsel submissions, however, that there were important disputed facts about the appellant’s involvement. We consider it was the Judge’s obligation pursuant to s 24(2)(a) to indicate what weight the Judge would attach to the dispute about the extent of the appellant’s involvement in the offending and its significance to sentencing. However, this was not done. It was, therefore, not open to the Judge in terms of s 24 to proceed to sentence the appellant on the basis of the prosecution-prepared summary of facts. The Judge was in error when he did so.
[34] In this case a further error occurred. The appellant pleaded guilty on the basis of her claimed limited involvement. She was not given advice by her counsel that she was entitled to a disputed facts hearing if, as seemed to be the case, the prosecution did not accept her version of the facts. This failure also compromised the integrity of the sentencing.
[35] In those circumstances we are satisfied that the sentencing process has gone wrong in this case and the appellant was wrongly sentenced on the basis of the prosecution summary of facts.
[36] Counsel for the appellant advised us that the appellant understands and accepts that if at any disputed facts hearing held her version of events is rejected by a Judge in the District Court, and the prosecution version accepted, then that rejection may compromise her generous guilty plea discount of 15 per cent, and may ultimately result, therefore, in a longer sentence than the one currently imposed.
[37] There is one final matter. We are concerned to ensure that the s 24 disputed facts hearing process, if necessary in this case, is heard appropriately. To facilitate the s 24 process, we consider the appellant will need to more closely describe what she accepts is her involvement as a secondary party to the two counts bearing in mind that she has pleaded guilty to both counts and the effect of s 24(1)(b). Once this is identified the prosecution will need to decide if they wish to dispute the appellant’s version of the facts. If they do then the two versions of the “facts” will need to be presented to the sentencing Judge for his s 24(2)(a) assessment. If the Judge’s conclusion is that the prosecution version of the facts would have significance at sentence, then it will be for the prosecution to decide whether they wish to rely upon their version of the facts at sentence. If they do, then a disputed facts hearing will need to be undertaken. At such a hearing it will be for the prosecution to prove beyond reasonable doubt those facts relating to the involvement of the appellant in the offending that the Judge has identified would be significant at sentencing.

Result

[38] For the reasons given, therefore, the sentence of 10 years and two months’ imprisonment imposed on the two charges of wounding with intent to cause grievous bodily harm will be quashed. The sentencing is referred back to the District Court to resentence the appellant after providing, should it be required, the opportunity for a disputed facts hearing regarding the appellant’s culpability with respect to the two counts of wounding with intent to cause grievous bodily harm. All other sentences imposed on the appellant remain undisturbed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Sullivan DC Napier CRI-2010-020-268, 29 October 2010.
[2] Williams v R [2010] NZCA 304.

[3] Court of Appeal (Criminal) Rules 2001, r 12A.
[4] At 12.
[5] At 14.
[6] At [13].