Mallett v R [2014] NZCA 39 (28 February 2014)

Last Updated: 5 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA576/2013 [2014] NZCA 39
BETWEEN	DIANA ELIZABETH MALLETT Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	C P Brosnahan for Appellant J E Mildenhall and A R van Echten for Respondent
Judgment:	28 February 2014 at 10.00 am

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. The sentence of three years and nine months’ imprisonment on the aggravated robbery conviction is quashed. In its place we impose a sentence of three years and two months’ imprisonment.

100. The cumulative sentence of one month imprisonment on the offering to supply methamphetamine remains in place.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

[1] Ms Mallett pleaded guilty to a charge of aggravated robbery and a charge of offering to supply methamphetamine.^[1] She was sentenced by Judge Cameron to a total of three years and 10 months’ imprisonment.^[2] She appeals on the ground that the sentence was manifestly excessive because insufficient discount was given for the restrictive bail conditions during her remand and for her demonstrated rehabilitation during that period.

Background

[2] The aggravated robbery was of Ms Mallett’s former partner. She arranged with him by text to be present at an agreed location under the pretext of supplying cannabis to him. When he arrived at that location with $1,600 to purchase cannabis he was subjected to a severe beating by three men and the $1,600 and other items were taken from him. ^[3] Ms Mallett then drove the three men from the scene. This offending took place on 3 November 2009.
[3] The drug offending took place on 25 October 2009. Ms Mallett loaned her cellphone to another person and that person offered to supply a third person with a point bag (0.1 grams) of methamphetamine. Ms Mallett was complicit in that she knew her cellphone was going to be used for this purpose.
[4] There was a significant delay between Ms Mallett’s arrest in 2009 and her sentencing in the District Court on 1 September 2013.^[4] Much of this delay arose from matters beyond Ms Mallett’s control. During this period:

• (a) Ms Mallett was initially in custody and then remanded on bail subject to a 24 hour curfew for a period of about four months. For this period she lived with her four children in her sister’s house in another city. On 1 January 2010, while subject to the 24 hour curfew, she assaulted her eldest child (who was then about 10 years old). She pleaded guilty to the assault charge and was sentenced to nine months’ supervision and 100 hours’ community work. She completed this sentence without incident.
• (b) In March 2010 Ms Mallett returned to her home town and her conditions of bail were changed to a 7 pm to 7 am curfew for a one year period. After that the curfew was removed altogether. Ms Mallett complied with her bail conditions. During this period Ms Mallett was caring for her sick mother. Her mother died in late 2012.
• (c) During the four year period Ms Mallett was on remand she had the opportunity to reassess her life. Information was provided to the Court of real and significant positive changes in Ms Mallett’s approach to her responsibilities as a mother and to life generally by the time of her sentencing in September 2013.

[5] In sentencing Ms Mallett Judge Cameron adopted a starting point of 5 years’ imprisonment on the lead charge of aggravated robbery. From that starting point he applied a 20 per cent discount for Ms Mallett’s guilty plea.^[5] He reduced the sentence by three months for time spent on restrictive bail, remorse and matters referred to in letters of support that were provided to the Judge. That meant a sentence of three years and nine months’ imprisonment for the aggravated robbery. A cumulative sentence of one month’s imprisonment was imposed for the offering to supply charge.

Discussion

[6] In our view the discount of three months (or six per cent) was too small for the two factors for which it was given. A discount of close to that could have been given for the lengthy period that Ms Mallett was on restrictive bail conditions. The discount that was given meant that very little was given for the positive steps Ms Mallett had taken towards rehabilitation. We consider that this is a case where the steps she had taken were worthy of greater recognition in the sentence she received.
[7] The changes made by Ms Mallett need to be seen in context. She had a difficult background. She suffered abuse from an early age. She left school at 14. Her partner (the victim of the aggravated robbery), with whom she had her four children, was abusive. That relationship ended some time in 2007. Ms Mallett had a number of convictions, most notably assault convictions arising out of an incident in 2006, a conviction for assaulting a police officer in early 2007, and the assault of her son in January 2010. Child, Youth and Family (CYF) apparently had concerns about her ability to provide safe care for her children. As a result she lost custody of her children for a period.
[8] Against that history a letter from CYF dated 21 February 2013, which was before the sentencing Judge, attested to the “significant and positive changes” Ms Mallett had made.^[6] The letter said that Ms Mallett had brought herself to the point where CYF “were confident she could provide a good standard of care for her children”, that the children were “thriving” in her care and would continue to do so if they remained in her care. Along similar lines a letter dated 19 July 2013, from the Principal of the primary school which one of Ms Mallett’s children attended, described that child as “well cared for, well fed, and much loved” and Ms Mallett as “working hard to build a strong home for her family”. There was also a letter from a long-time friend describing the positive changes Ms Mallett had made.
[9] The Crown submits that, if the discount for mitigating factors was at the low end, the starting point of five years was lenient. It submits that Ms Mallett’s culpability was comparable to her co-offender, Mr Wiari, with whom the plan for the aggravated robbery was arranged. The starting point for Mr Wiari was at least six years’ imprisonment.^[7] The Crown also submits that the starting point could have been uplifted because of Ms Mallett’s previous convictions for violence. The Crown submits that in these circumstances Ms Mallett’s overall end sentence was not manifestly excessive.
[10] In our view the five year starting point was available and not overly lenient. Although Ms Mallett played a key role in the aggravated robbery, there was no evidence that she knew the extent of violence that would be inflicted upon her former partner and she was not directly involved in administering it. Ms Mallett’s history of violence was relatively limited and somewhat historic by the time she was sentenced. The Judge was correct not to uplift the starting point in these circumstances.
[11] The failure to give rehabilitation adequate recognition led to a sentence that was manifestly excessive. Taking the starting point of five years for the aggravated robbery, we apply a 20 per cent (12 months) discount for the time spent on restrictive bail conditions and the positive rehabilitation efforts that have been made. We reduce that by a further 20 per cent (10 months) for the guilty plea. That leaves an end sentence on the aggravated robbery charge of three years and two months’ imprisonment. To that we add one month for the offering to supply methamphetamine charge. That leaves an end sentence of three years and three months’ imprisonment.

Result

[12] The appeal is allowed. The sentence of three years and nine months’ imprisonment on the aggravated robbery conviction is quashed. In its place we impose a sentence of three years and two months’ imprisonment. The one month cumulative sentence on the offering to supply methamphetamine conviction remains.

Solicitors:
Crown Law Office, Wellington, for Respondent.

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^[1] Crimes Act 1961, s 235(a) and (b); Misuse of Drugs Act 1975, s 6(1)(c) and (2)(b).

^[2] R v Mallett DC Wanganui CRI-2011-083-708, 1 August 2013.

^[3] Injuries were inflicted with baseball bats and a compressed air powered BB gun. The victim suffered extensive bruising on his legs, arms and back and three metal ball bearings were lodged in his scalp which needed to be surgically removed.

^[4] Ms Mallett entered guilty pleas in late 2011, close to the time the trial on the aggravated robbery was to take place. She claimed that she was compelled to arrange the robbery because of threats to her and her family from Mongrel Mob members. This claim was rejected as not credible following a disputed facts hearing which took place in February and April 2013. See R v Mallett DC Wanganui CRI-2009-083-3128, 30 May 2013.

^[5] In accordance with Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73] the correct approach was to apply the guilty plea discount after all other relevant matters had been evaluated and a provisional sentence reflecting them arrived at.

^[6] A similar letter had been provided in November 2012. However the pre-sentence report dated 31 January 2013 recorded that CYF had concerns about Ms Mallett. It was unclear from this report if this was based on new information and how that was to be reconciled with the letter from CYF in November 2012. For that reason counsel for Ms Mallett obtained the letter from CYF dated 21 February 2013.

^[7] R v Wiari DC Wanganui CRI-2010-083-317, 18 April 2011. The sentencing Judge imposed a four year sentence. The sentencing remarks are not clear as to how exactly that end sentence was arrived at but the sentencing Judge did refer to a “starting point in excess of six years, possibly seven years” at [6].