LEMON V POLICE HC CHCH CRI 2009-409-000003 [2009] NZHC 262 (5 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                CRI 2009-409-000003
                                                                CRI 2009-409-000004



                              PIATA DONETTA
LEMON
                                     Appellant



                                            v



                       
                POLICE
                                       Respondent



Hearing:           5 March 2009

Counsel:           P
N Dyhrberg for Appellant
                   C J Boshier for Respondent

Judgment:          5 March 2009


                      
      JUDGMENT OF FOGARTY J



[1]     This is an appeal against a sentence imposed by Judge Erber on 1 December
last, of two years
imprisonment. The appellant, a woman aged 39, was appearing for
sentence before Judge Erber on the probation officer's application
for re-sentence in
relation to four burglaries and various other relatively minor offences, largely a theft
on which she had been
sentenced to nine months intensive supervision by Judge
Somerville on 21 February.


[2]     Judge Erber took a starting point of
three years which is not challenged on
appeal, reducing it by one year. The relevant part of his notes is paragraph [7] which
will
be set out.

LEMON V POLICE HC CHCH CRI 2009-409-000003 5 March 2009

       [7]      Overall, looking at the case and trying to
determine what I would
       have done had you come before me in circumstances where intensive
       supervision was not appropriate,
I would have come to the view that a term
       of imprisonment of three years would have been appropriate for these
       burglaries
which were all burglaries of dwelling houses. However, I bear in
       mind that you pleaded guilty. I bear in mind the matters
which Mr Dyhrberg
       has raised, particularly those of a sensitive nature in your life and the
       violence to which you have
been a victim and come to the view that an
       overall sentence of two years imprisonment is appropriate.

[3]    On appeal Mr
Dyhrberg argued that a full entitlement for a plea of guilty
could not be pursued and that an appropriate discount for pleas of guilty
would have
been 25%. But, however, he argued that Judge Erber did not give sufficient discount
for the personal matters of a sensitive
nature which I will explain in a moment. He
argued that the discount for a plea of guilty and the discount for extraordinary
personal
circumstances should have been analysed separately. There is no doubt that
Judge Erber did take both factors into account so the
question focuses on whether or
not they should have been analysed separately and in any event whether the outcome
should be disturbed
on appeal.


[4]    The personal circumstances were averted to by Judge Somerville in his notes
on 21 February. It would appear although
he does not spell it out, that the appellant
was at the time, however, there is some doubt as to how long, suffering from
significant
domestic violence. Mr Dyhrberg argued that she could be put into a
battered woman category and I should say by parenthesis here that
Ms Boshier said
that one would normally call for an expert's report before making a finding that a
person suffered from a battered
woman syndrome.


[5]    What impresses me here is that Judge Somerville, a very experienced, Family
Court Judge, treated this offending
as the appellant's means for getting herself back
into prison so as to escape the uncontrolled environment and get back into a highly
controlled environment "where you are protected from men".                   I set out two
paragraphs from Judge Somerville's sentencing
notes:

       [2]      I think Mr Kerr was probably right that part of the background to
       this is that you feel safer in prison.
It is easier for you to live in a highly
       controlled environment where you are protected from men, but really I
       cannot
sentence you to life imprisonment for this and it is not acceptable that
       when you come out of prison you go back into the same unsatisfactory
       situations and then do desperate things to go back to prison. Really it would

       be best for you Piata if you made some
decisions to stay out of prison and
       you used all the help you could get to stay safe in the community.

       ...

     
 [4]      The unfortunate thing is that your means of getting yourself back to
       prison victimises other people in the community.
Look what you did to your
       friends and your neighbours. I know you must be ashamed of it and it is no
       satisfaction to
them that you have had this sad upbringing and this sad life.
       They still feel as though their privacy was invaded and they
do not really
       care why you did it. They are upset that you did.

[6]    I infer, and confidently I think, from his reasoning,
that he was quite satisfied
that there was a direct link between the violence that she had been suffering
domestically with the offending.
That in my view brings this case within the line of
authority of the two Court of Appeal decisions of R v Whiu CA195/07 [20 December
2007] and R v Guthrie  [2008] NZCA 439. I note that Arnold J was a member of
both Courts. He gave the reasons in Whiu though not in Guthrie. He also gave the
reasons in
R v Hill  [2008] 2 NZLR 381 which is referred to in Guthrie and Guthrie
also refers to the Supreme Court decision in Jarden v R  [2008] NZSC 69 identifying
that personal circumstances of an offender may be relevant because they contributed
in some way to the offending or on
purely compassionate grounds. In Jarden it was
the latter case. In the case before me it is the former, that they contributed in
some
way to the offending.


[7]    In both Whiu and in Guthrie there was a diagnosis of a battered woman
syndrome. In Whiu it was
held that the existence of the syndrome can be taken into
account as either reducing the culpability of offending or as a mitigating
personal
circumstance. In Guthrie it was held that the evidence did not establish that the
syndrome contributed materially to offending
but nonetheless the Court held that the
Judge ought to have given some weight to the appellant's personal circumstances.


[8]  
 As I have had occasion to observe already a couple of times, Judge Erber did
take both plea of guilty and her personal circumstances
into account in paragraph [7].
However, I think it is important to keep these considerations separate and I note the
question of
personal circumstances is addressed as a separate item in Whiu, Guthrie
and Jarden. For this reason, I think the safer course is
to do the consideration
separately and then see where one gets to.

[9]    Mr Dyhrberg also drew my attention to the Court of Appeal
decision of R v
Fonotia  [2007] 3 NZLR 338 as authority for the proposition that the aggravating and
mitigating matters should be taken into account and the starting point
adjusted
accordingly before the discount for plea of guilty is brought into play.


[10]   Following that logic Mr Dyhrberg argued
for a discount of nine months off
the starting point of three years and then a 25% discount on the resulting 27 months,
reducing
the appropriate sentence to 21 months. That is three months lower than
Judge Erber's outcome.


[11]   Relying on Whiu and Guthrie
I agree that nine months is an appropriate
discount given the findings of fact by Judge Somerville which I do not disagree with
and
in any event do not think it appropriate for myself as an appellate Judge to differ,
given his expertise.


[12]   As a result then
I adopt the calculations of Mr Dyhrberg and then turn to
consider whether or not the three month difference justifies disturbing
Judge Erber's
conclusion.


[13]   To use common parlance when one gets within a few months of a judgment it
is important for a Court
on appeal not to be simply fiddling with the judgment of the
sentencing Judge. I regard it as something of a line call here but I
am disposed to
think that the sentence should be reduced below two years to 21 months, partly to
reflect what I think is the importance
of keeping the analyses separate.


[14]   Accordingly, the appeal is allowed and the sentence is reduced to 21 months.
In common
with the method of Judge Erber the sentence is substituted for the
concurrent sentences of two years imprisonment on each of the
charges of burglary.
The other sentence in the balance of paragraph [8] of the notes set out below,
remains the same:

       [8]
    On each of the charges of burglary you are sentenced to two years
       imprisonment. On each of the other charges for which
you are for
       re-sentence, and in relation to the charge of theft to which you pleaded guilty
       today, you are sentenced
to three months imprisonment but that is not in
       addition to the two years imposed. No other sentence I think is appropriate.

       Informations ending 951 and 952 are withdrawn by leave and no sentence of
       course is imposed on them.




Solicitors:
P N Dyhrberg, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent