Leonard v R [2011] NZCA 583 (18 November 2011)

Last Updated: 24 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/2011 [2011] NZCA 583

BETWEEN NICOLE TAWERA LEONARD Appellant

AND THE QUEEN Respondent

Hearing: 2 November 2011

Court: O'Regan P, Chisholm and Potter JJ

Counsel: C M Clews for Appellant C A Brook for Respondent

Judgment: 18 November 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Chisholm J)

[1] After being found guilty of aggravated wounding by a jury in the Hamilton District Court, the appellant was sentenced by Judge Burnett to four years and three months imprisonment on that charge. A concurrent sentence of two years and three months was imposed for a burglary that arose out of the same events. The appellant had pleaded guilty to the burglary.
[2] This is an appeal against sentence on the grounds that the sentence was manifestly excessive. It is alleged that the Judge made factual errors, failed to take into account the actions of the victim, and that there is a disparity between the sentence imposed on the appellant and the sentence imposed on her 15 year old female co-offender.

Facts

[3] At about 11 pm on 16 March 2010 the appellant and her co-offender broke into the victim’s home in Hamilton. At the time the victim, his wife and daughter were asleep. Having been woken the victim went into the dining room where he found the appellant and her co-offender in the process of removing the laptop computer.
[4] Each of the offenders then ran off in a different direction. The victim chased the appellant who tripped and fell. A tussle resulted during which the victim struck the appellant, not realising she was a woman. The victim then managed to grab the appellant’s handbag which he took back to his wife who had by then rung the police. The appellant followed the victim back and asked him for her handbag. He refused to give it back and said the police could sort it out.
[5] Then the appellant called her friend for help and started to run away. As the appellant tried to climb a fence the victim pulled her back down. During a struggle that followed the appellant bit the victim on the arm and would not let go. The victim’s skin was ripped as he ultimately broke her hold. At this point the co-offender stabbed the victim in the back with a knife.
[6] The appellant and the co-offender then ran off. Within a short time they were caught by neighbours and the police.
[7] As a result of the incident the victim was briefly hospitalised and had to take time off work. He has scarring to his back and arm. Both the victim and his wife, who was heavily pregnant, are now fearful for their safety and the safety of their children.

The appellant

[8] At the time of the offending the appellant was 22 years of age. She suffers from serious drug and alcohol addictions. Although her list of previous convictions is relatively brief, it does include convictions in 2009 for aggravated assault and burglary. Sentences of imprisonment were imposed for that offending. The probation officer did not detect any signs of remorse.

Sentencing in the District Court

[9] After traversing the factual background and the impact on the victim and his family, the Judge discussed the starting point that should be adopted with reference to R v Taueki.[1] She seems to have proceeded on the basis that the offending fell within band 1 (starting point of three – six years).
[10] The Judge noted that the victim had suffered a “serious” injury to his forearm and that the attack by the appellant had been combined with an attack from the appellant’s co-offender during which the victim had been stabbed. She commented that the appellant was “dressed on the night in red and black, colours readily recognisable in the Waikato as gang colours.”[2] It was also noted by the Judge that the offending involved the burglary of a dwelling house at night, the victim and his family were vulnerable, the appellant’s previous convictions included aggravated assault, and the offending occurred while the appellant was on remand.
[11] On the mitigating side the Judge noted that the appellant had been found guilty of aggravated wounding at trial and that there were no mitigating factors in relation to that offending. She accepted, however, that the appellant was entitled to a discount for a guilty plea to the burglary charge. The Judge also noted that the appellant had intellectual limitations.
[12] With reference to the appellant’s co-offender, the Judge said:

[18] As for the co-offender, she was 15 years of age at the time when sentenced. She was a youth who was remanded to the District Court for sentence and she received an end sentence of 10 months’ home detention. This would have taken into account a much higher starting point, of course, a significant discount under the guideline of R v Hessell [2009] NZCA 450 that applied at the time, plus the recognition of her extreme youth, prospects of rehabilitation and that she had no prior convictions. There are considerable distinguishing features which separate Ms Leonard from her co-offender.

[13] Against that background the Judge adopted a starting point of “between three and a half to four years” imprisonment, applied an uplift of six months for the previous convictions/offending while on remand, and then arrived at a final sentence of four years and three months imprisonment. As already mentioned, a concurrent sentence was imposed in relation to the burglary.

Was the sentence manifestly excessive?

[14] When determining this matter it is convenient to respond to the particular matters raised by Mr Clews.

Factual errors made by the Judge

[15] Mr Clews contended that when sentencing the appellant the Judge had made three factual errors:

• (a) the point of the knife blade had broken when the victim was stabbed in the back by the appellant’s co-offender;
• (b) by indicating that the victim had described the appellant “biting him like a dog hanging on” and that he “felt his flesh tearing from her clamped teeth”;
• (c) by asserting that the appellant’s red and black clothing was readily recognisable in the Waikato as gang colours.

For reasons that we can express relatively briefly we do not see any merit in these points.

[16] While Mr Clews’ submission that there is no evidence to support the Judge’s comment about the blade of the knife breaking seems to be right, we do not accept that this remark assumed any significance in the sentencing of the appellant. It formed part of the background information involving the appellant’s co-offender. In any event, it is the end sentence that needs to be considered rather than the path by which it is reached.
[17] As to the second alleged error, the Judge did not purport to quote the exact words that had been used by the victim. Rather, she was expressing in her own words what the victim had said about the biting and we are satisfied that her summary was accurate. It was clear from the evidence that the appellant’s teeth had in fact clamped tightly on the victim’s arm, she would not let go, and the victim’s skin was torn when the hold was eventually broken.
[18] Finally, we refer to the Judge’s comment that the colours the appellant was wearing that night were “readily recognisable in the Waikato as gang colours”. No doubt the Judge was familiar with the local scene and it was open to her to make an observation of this nature without the necessity for an evidential foundation. We note that the submissions on behalf of the appellant do not suggest that the Judge’s observation was inaccurate.

The role played by the victim

[19] As we understand Mr Clews’ argument, the suggestion is that the victim should bear some responsibility for the aggravated wounding and this should have been taken into account by the Judge as a mitigating factor. We reject that proposition. The aggravated wounding arose because the appellant and her co-offender attempted to burgle the victim’s house that night and the events culminated in the appellant biting the victim. At trial the appellant’s defence that she was acting in self defence when she bit the victim was rejected by the jury. We are not prepared to re-visit that issue.

Disparity with sentence imposed on co-offender

[20] We agree with Mrs Brook that the attempt on behalf of the appellant to compare the final sentences imposed on the appellant and her co-offender is misconceived because it does not provide a reliable indicator as to whether there was a disparity in this case. Given the significant differences between the personal factors relating to each offender, the appropriate comparison is between the starting points used in relation to each offender.
[21] In the case of the appellant’s co-offender the starting point was five years imprisonment which reflected the more serious charge that she faced. This was in keeping with the starting point of between three and a half years and four years imprisonment that was used in relation to the appellant. The significantly lower end sentence for the appellant’s co-offender reflected her personal mitigating factors which did not apply to the appellant.

Conclusion

[22] None of the matters raised has any merit. The starting point adopted by the Judge was within the available range, the uplift was appropriate and the end sentence was not manifestly excessive.

Result

[23] The appeal is dismissed.

Solicitors:
Kit Clews Law Limited, Hamilton for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Taueki [2005] 3 NZLR 372 (CA).
[2] At [12].