Gourley v R [2014] NZCA 529 (31 October 2014)

Last Updated: 5 November 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA310/2014 [2014] NZCA 529
BETWEEN	SUSAN MICHEL GOURLEY Appellant
AND	THE QUEEN Respondent

Hearing:	13 October 2014
Court:	Harrison, Asher and Lang JJ
Counsel:	P K Hamlin for Appellant J E Mildenhall for Respondent
Judgment:	31 October 2014 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Asher J)

Background

[1] The appellant Ms Gourley pleaded guilty and was convicted and sentenced in the Dunedin District Court to 11 months’ home detention for injuring with intent to injure.^[1] She appeals against that sentence.
[2] Ms Gourley and the victim, her former partner, were at home together drinking wine and watching television. An argument developed during which the victim struck Ms Gourley in the face knocking off her glasses. Ms Gourley went to the kitchen and took hold of a stainless steel kitchen knife of approximately 20 centimetres in length. She then attacked the victim, chasing her around the house. She caught her, grabbed her by the hair and began to stab her. She moved the knife in a downwards motion at the victim who raised her arms to block the blows. The victim received lacerations and puncture marks to her arm.
[3] The victim managed to get into the toilet and lock the door. She then tried to climb out the window to escape. Ms Gourley went outside and tried to stab the victim, forcing her back in through the window. During the assault Ms Gourley stated frequently that she was going to kill the victim. When the victim was in the toilet Ms Gourley said she would not get out of the toilet alive. Ms Gourley stabbed at the toilet door leaving scratches and puncture marks in the wood.
[4] The police were notified after neighbours heard the victim screaming. As a result of the attack the victim received a four centimetre cut to her forearm which required butterfly clips, and four small puncture marks to the upper arm and forearm which were also bruised. She had bruising and soreness to the scalp from her hair being pulled.
[5] Judge Crosbie provided a sentence indication on 28 January 2014.^[2] He indicated that the Crown conceded an “end point” of no more than two years’ imprisonment (including a discount of 15 per cent).^[3] The Judge stated that he would be prepared to consider a sentence of home detention providing the probation report indicated full acceptance by Ms Gourley of what occurred, some commitment to ongoing treatment and counseling, and providing there was acceptance by Ms Gourley that she should not have contact with the victim unless it was arranged through the Community Probation Service.
[6] Judge Crosbie sentenced Ms Gourley on 11 April 2014. Although the probation report had not been favourable to Ms Gourley, there had been a subsequent psychological report and other statements which indicated efforts on her part to address her anger and rehabilitate herself.
[7] The Judge sentenced Ms Gourley to 11 months’ home detention. Mr Hamlin on her behalf submits: first, that the length of sentence was manifestly excessive; second, that the Judge failed to take into account the fact that Ms Gourley had been remanded in custody for one month following her arrest; and third, that the Judge failed to take into account that there was a bail condition for the period prior to sentencing requiring her to remain in Dunedin when she lived in Taupō.

Decision

[8] The Judge did not in the course of the sentence indication or sentencing decision set out the starting point or the exact mitigating factors he relied on. He went no further than observing that the Crown had submitted a starting point of two years to two years nine months, an uplift of three months for previous violence, and “a discount of 15 percent”.^[4] He referred in his sentencing indication notes to a 15 per cent discount, which it can be assumed he applied.^[5] In the absence of a reasoned explanation it is difficult to reconstruct the breakdown of the Judge’s end sentence and therefore it is necessary for us to make our own assessment.

Starting point

[9] Although he did not fix a clear starting point, the Judge concluded in his sentence indication, following the guideline judgment of R v Nuku, that the offending fell within band two of R v Nuku (up to three years’ imprisonment).^[6] That band applies where there are three or fewer of the aggravating factors listed in Taueki v R.^[7] Here there were two aggravating factors being the extent of violence and the use of a weapon.
[10] This charge was of injuring with intent to injure, which is in the lower-middle of the lexicon of seriousness in the summary set out in R v Nuku.^[8] In the context of this charge, given the ongoing and persistent nature of the chase, the prevention of the victim’s escape, the threats to kill, and the lengthy attack, the extent of the violence was of a high degree. There was an element of provocation, but this is not a major factor reducing culpability given the duration and extremity of the attack. The maximum penalty is five years’ imprisonment, and a starting point in the top half of band two of R v Nuku of at least two and a half years’ imprisonment was appropriate.

Aggravating factors

[11] In terms of aggravating features, Ms Gourley had been found guilty of wilful damage in October 2009 and injuring with intent to injure in November 2004, together with a number of less serious earlier convictions going back to 1986. She was sentenced to 150 hours’ community work and supervision for nine months on the injuring with intent to injure charge. The injuring with intent to injure and wilful damage convictions related to the victim of the latest offending. These earlier convictions were a significant aggravating factor. Ms Gourley had palpably failed to be deterred by her previous convictions and penalties from further offending against the same victim, increasing the need to denounce and deter. The Judge gave a three month uplift. That was very modest. An increase of six months (20 per cent) resulting in a starting point of three years’ imprisonment would have been appropriate.

Mitigating factors

[12] Ms Gourley had, it would seem after some initial hiccups, worked hard on rehabilitation, and ultimately there were positive reports from psychologists, indicating both remorse and constructive efforts to rehabilitate. A deduction of up to six months could have been allowed under that head. Equally in calculating the end sentence, a one month deduction for the time Ms Gourley had spent in prison, extending the discount of six months to seven months would have been fair, given that she would not otherwise get a credit for it if the ultimate sentence was home detention.^[9] On top of that, approximately 15 per cent for a late guilty plea would have been appropriate. This would have left an end sentence of approximately two years’ imprisonment. This was in fact the end sentence reached by the Judge, although it is not clear from his decision what route was followed.
[13] The ultimate question must always be whether the end sentence was manifestly excessive, regardless of how it was calculated. Given our decision that an end sentence of approximately two years’ imprisonment was appropriate, the sentence ultimately arrived at by the Judge of 11 months’ home detention was entirely unexceptional. It reflected Ms Gourley’s commendable efforts to rehabilitate herself. It is at a level which can be seen as reflecting the time spent by her in custody.
[14] This Court has previously noted that there is no requirement that judges should take time spent on bail into account when sentencing a person to home detention.^[10] There is no rigid mathematical formula to be applied in those circumstances, and if any discount is allowed it can be seen as part of an overall evaluative process. The end sentence of 11 months’ home detention is well in the range and can in any event be seen as recognising her period on bail.
[15] Mr Hamlin in his written submissions suggested that the special conditions imposed were part of the manifestly excessive nature of this sentence. However, in the original sentencing submissions her counsel stated that Ms Gourley understood the meaning and purpose of the conditions and had indicated a willingness to comply with them, save for one condition relating to travelling back to Taupō. In our view the conditions were fair and they were not punitive. They were designed to minimise the risk of contact with the victim leading to further offending. Given Ms Gourley’s past history, this was appropriate.

Result

[16] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Gourley DC Dunedin CRI-2012-012-3584, 11 April 2014.

^[2] R v Gourley DC Dunedin CRI-2012-012-3584, 28 January 2014 [Sentencing Indication].

^[3] At [15].

^[4] Sentencing Indication, above n 2, at [8].

^[5] At [8] and [17].

^[6] At [8]–[9]; R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39 at [38(b)].

^[7] R v Nuku, above n 6, at [38(b)]; Taueki v R [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [31].

^[8] R v Nuku, above n 6, at [5].

^[9] See below at [14].

^[10] Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [15].