R v Wallis [2014] NZHC 2479 (9 October 2014)

Last Updated: 17 November 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-019-6075 [2014] NZHC 2479

THE QUEEN

v

_{ANNETTE KAYE WALLIS}

Hearing:	9 October 2014
Counsel:	R G Douch for the Crown M Bates for the Prisoner
Judgment:	9 October 2014

_{SENTENCING NOTES OF BROWN J}

Solicitors: Crown Solicitor, Hamilton

Counsel: M Bates, Hamilton

R v WALLIS [2014] NZHC 2479 [9 October 2014]

[1] Ms Wallis you are being sentenced today on one charge of wounding with intent to cause grievous bodily harm under s 188(1) of the Crimes Act. You pleaded guilty to this charge on 18 August 2014.

Background facts

[2] The Crown prosecutor has read this morning the summary of facts and I will only refer then briefly to aspects of them. But in summary, you and the victim had been in a relationship on and off for some five years prior to your offending. On the morning of 17 November 2013 you were together at your residence. There was a degree of harassment to the point that the victim decided he needed to leave the premises. He loaded his possessions into a van and attempted to drive away from the address but he could not because you blocked the driveway entrance with your car.

[3] Approximately an hour was spent then as he attempted to persuade you to allow him to leave. You would not agree and you said that you would crash your car into his van in order to kill you both. You then drove your vehicle at the victim and he ducked behind his van to avoid being struck. He left the property on foot, walked to a neighbouring road and when he came out into the roadway you pursued him in your car. You drove it onto the footpath towards him and he had to take evasive action to avoid the car. The victim then walked onto a traffic island and in pursuit you drove your vehicle onto the traffic island narrowly missing him on that occasion.

[4] The victim then crossed into a shopping complex and walked through the car park. You drove through the car park and you drove straight at him, hitting him and carrying him for several metres on the bonnet of your vehicle. When he fell off the car you reversed and accelerated forward at speed again. You hit him with the car, knocked him to the ground and then you drove on top of him and trapped him under the front left wheel for a period. You attempted to drive towards him again and passers-by, who were attempting to come to his aid, had to take evasive action to avoid being hit themselves but at the last moment you veered to the left and drove along the footpath hitting a street sign.

[5] You then proceeded onwards to a grass reserve by the Waikato River. You stopped the vehicle just before the river track footpath. You remained in the vehicle talking on your cellphone for several minutes and when the police arrived you drove at speed over the cliff and plunged some 15 metres into the Waikato River. You were assisted out of the river and taken to Waikato Hospital. The victim was also taken to hospital by ambulance. He suffered multiple, extremely serious, fractures to his left leg and foot. He had concussion and multiple bruises to his head and body.

Victim impact statements

[6] I acknowledge the presence today of the victim and I have received several victim impact statements from his family and from himself. I have an impact statement from the victim who explains he was in hospital for some six weeks and bed ridden for four to six months as a result of the offending. He suffered a financial burden whilst being on ACC payments for six months. He says he suffered emotional harm and that he and his daughter can no longer do things they used to do and that he has been unable to pursue leisure activities that he previously did.

[7] The victim’s sister states that she was shocked and panicked when she saw him being hit by your car on the television. She claims to be angry at seeing his independence taken away from him and has concern that her niece is fearful for her and her father’s safety. She worries that the borderline personality disorder is not easily treated and that you may yet be a risk to the victim’s safety.

[8] The victim’s mother says that you have caused the family much fear, despair and anguish and she considers that your actions have broken something inside her. His father speaks of the shock of seeing his son in hospital, bruised and with a badly crushed right ankle and foot and recalls the doctors saying they might have to amputate his leg if they could not get the blood flowing again.

Personal circumstances

[9] Mr Bates says you have not previously appeared before this Court.

Pre-sentence report

[10] I have had the advantage of reading your pre-sentence report. The report writer notes your difficult upbringing. At the age of 14 you were removed from your home by Child, Youth and Family amid concerns for your safety. You suffered psychological and physical abuse at the hands of your step-father. You married at an early age and have one daughter who is now 23 years old. Your marriage ended seven years later.

[11] You were diagnosed with borderline personality disorder and bi-polar disorder 20 years ago and you have been involved with mental health services in Hamilton. Five years ago you entered into an on and off relationship with the victim and you indicated to the report writer that he was abusive with mental health issues and that you obtained a protection order and trespass order against him.

[12] You told the report writer that on 9 November, that is shortly before this incident, you underwent surgery and were discharged with home help. You say the victim said he would look after you without the home help but during the days leading up to 17 November you say he became abusive. This, together with the stress of recovery from surgery, led to extreme depression for you. On the day of the incident you say you snapped and lost it and that this resulted in the commission of the offending. The report writer says that you stated that your intention was never to hurt the victim and that your remorse appeared to be genuine.

[13] The report writer considers that, given your remorse and motivation to remain offence free, your risk of offending can be assessed as low. However the violent nature of your offending and the injury caused to the victim indicates a medium to high risk of harm to others. The report writer recommends a sentence of home detention while continuing to engage with mental health services to address your mental health issues.

Psychiatric report

[14] I have also had the benefit of reading the psychiatric report prepared by

Dr Kariyannis to which Mr Bates has referred. In regards to the events of

17 November you told Dr Kariyannis that at the time you had much stress in your life. You were in pain from your surgery of 9 November, you had been prescribed strong analgesics and you were sedated. You say that the victim had verbally abused you during the night of 16 November, that you had not slept and you say that you followed the victim to his vehicle in order to get closure on the disagreement. You then say you have no recollection of running him over. You have never hurt anyone before and you say that on that day you broke down and you regret the episode.

[15] Dr Kariyannis states that, in his opinion, since your adolescence your history demonstrates a pervasive and persistent pattern of emotional instability, abnormal style of thinking, impaired interpersonal functioning and poorly adaptable behaviour consistent with a diagnosis of borderline personality disorder.

[16] Dr Kariyannis notes that you fit the criteria for a disorder of the mind in accordance with the Mental Health (Compulsory Assessment and Treatment) Act

1992. However he considers you would have been fit to stand trial. He recommends that, should you receive a custodial sentence, that the prison psychiatric service should continue to provide services to you.

Sentencing considerations

[17] I approach the assessment of your sentence by a well recognised three stage process:

(a) Identifying a starting point which takes into account aggravating and mitigating factors of the offending but excludes aggravating and mitigating features which relate to you;

(b) I consider whether the starting point should be adjusted for factors personal to you, except for the factor of the consideration of the guilty plea; and

(c) I consider whether the provisional sentence should be adjusted to reflect the guilty plea.

[18] I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002. The relevant purposes I have particularly taken into account in considering your sentence are:

(a) holding you accountable for the harm done to the victim by your act of violence;

(b) promoting in you a sense of responsibility for and acknowledgment of that harm;

(c) denouncing your conduct; and

(d) deterring you and other persons from such offending.

[19] I have also had regard to the purposes of assisting you in your rehabilitation and reintegration into society. I have also taken into account the principles of sentencing set out in s 8 of the Act, particularly s 8(a) relating to the gravity of the offending, your culpability, consistency with other sentencing levels and imposing a sentence on you which is not disproportionately severe.

Counsel’s submissions

Crown’s submissions

[20] The Crown considers that the Taueki¹ factors of extreme violence, premeditation, serious injury, use of a weapon and the vulnerability of your victim (as someone on foot while you were in a car) are the aggravating factors that I must take into account when setting your starting point.

[21] The Crown considers that your offending falls really on the cusp between Band three and Band two of Taueki but the Crown settles for the submission that the offending falls within the upper Band two. Band two justifies a starting point of between five and 10 years imprisonment. The Crown submits a starting point of

_{eight years for your offending is appropriate.}

¹ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[22] The Crown acknowledges that you are entitled to discounts for your late guilty plea, for remorse (albeit tempered as Mr Douch has emphasised) and for your mental illness which can be said to be partially causative of your offending.

Defence submissions

[23] Mr Bates submits that the aggravating factors in this case were the extreme violence of your offending, the serious injuries suffered by the victim, the use of a weapon and the vulnerability of the victim, vis à vis the vehicle. Mr Bates disputes any premeditation on your part or any intention or attempt to attack the victim’s head.

[24] Mr Bates agrees that your offending falls within Band two of Taueki but denies that it is a premeditated domestic assault. As a result he recommends a starting point in the range of five and a half to six years imprisonment. He submits that, after discounting from the starting point for a guilty plea, remorse and your mental health issues, a sentence of home detention is appropriate. A sentence of home detention is only available if the discounts bring me to a sentence of two years or less.

Sentencing approach

[25] In sentencing today I must apply the decision in Taueki which is what is known as a tariff case. Taueki sets the limits for sentencing for grievous bodily harm offending in New Zealand. Serious violent offending will fall into one of three bands depending on the presence or absence of aggravating and mitigating factors. Those factors, as the submissions we have heard reflect, are extreme violence, premeditation, serious injury, use of weapons, attacking the head, vulnerability of victim, home invasion.

[26] It is important that you and all those present understand that the task that I have to perform today is not a matter of personal preference. I do not have a free hand, so to speak. I have to sentence you within the confines of the law. To the extent that the law allows me to take your mental illness and remorse into account, I will. But the Court of Appeal have set those firm bands for grievous bodily harm

offending in New Zealand and I have to determine where your case fits within that body of law.

[27] In Taueki the Court of Appeal gave guidance on how the bands relate to domestic assaults. For Bands one and two they said:

Band one

[36] This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening.

...

Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

Band two

[38] This band will be appropriate for GBH offending which features two or three of the aggravating factors referred to in [31] above.

...

Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

[28] The starting points of imprisonment in those three bands are: (a) Band 1 – between three and six years;

(b) Band 2 – between five and 10 years; and

(c) Band 3 – between nine and 14 years.

[29] I agree with both the Crown and your counsel that your offending places you within Band two of Taueki. I have looked at three comparable cases. In R v Goyen²

Mr Goyen was convicted of wounding with intent to cause grievous bodily harm. Mr Goyen ran over a person unknown to him in the forecourt of a petrol station after the man slapped the bonnet of his car. The man suffered life-threatening internal injuries. The Court of Appeal upheld that extreme violence, serious injury and use of a weapon were aggravating factors. They placed the offending in Band two of Taueki and upheld a six year starting point on appeal.

[30] In R v Clarke³ the offender had a tumultuous on and off relationship with his partner. After he picked her up from a party and dropped her at her home they got into an argument. She starting kicking and punching the car as he sat in it. He turned the car on and drove over her once breaking her pelvis in three places and leaving her with severe and lasting physical injuries. The Judge agonised over whether to place the offending in Band one or Band two. He noted the presence of a weapon and serious injuries suggested Band two but did not consider it to be a premeditated domestic assault which Taueki dictated would place it in Band two. He ultimately placed the offending in Band two but imposed a starting point of five years and three months to reflect both the lack of premeditation and the provocation by the offender’s partner.

[31] In R v Heremaia⁴ Mr Heremaia was punched by Mr Nepe at a party. Mr Heremaia was very intoxicated and returned to the party with his car and ran over Mr Nepe and his friend twice. Mr Nepe suffered very severe internal injuries, including liver damage that took over two years to heal. Gilbert J imposed a starting point of six years and six months imprisonment. He considered there was an element of premeditation to the offending but provocation was also present.

[32] I consider a starting point of seven years imprisonment should be imposed in this case. The factors of extreme violence, serious injury and the use of a weapon (namely a motor car) are three aggravating factors which place your offending well

_{within Band two of Taueki. While I do not consider that your offending was}

² _{R v Goyen CA285/05, 1 May 2006.}

³ _{R v Clarke HC Auckland CRI-2010-090-1184, 7 April 2011.}

⁴ R v Heremaia [2012] NZHC 3361.

premeditated as such, and while I agree that this was not truly a premeditated event as Mr Bates has said, the sustained period of your driving while you followed the victim with your car, repeatedly attempting to hit him, and then finally succeeding must be reflected in your culpability. Furthermore, once you reached the car park you repeatedly hit the victim with your vehicle and only left the car park when others intervened.

[33] You are more culpable than Mr Clarke who was seriously provoked by his partner and he only ran her over once in an immediate response to her kicking and punching his car. Your conduct is similar to the offending in Goyen but more serious because you pursued the victim for an extended period of time. This offending is similar in culpability to Heremaia although in my assessment it is slightly more serious because, even though there was some premeditation in that case, there was also provocation. Here you were not provoked and, while I agree with Mr Bates that this was not truly a premeditated event in the sense of being planned in advance, nevertheless having embarked upon the course that you did, you doggedly pursued the victim. I therefore impose a provisional starting point of seven years imprisonment. That is less than the eight years suggested by the Crown but somewhat more than that advocated by Mr Bates.

Discounts

[34] You have expressed very sincere and genuine remorse for your actions on

17 November and the effect that that had on the victim. For this remorse I consider a five per cent discount from the seven year starting point as appropriate which would result in a sentence of six years and eight months imprisonment.

[35] Despite a difficult upbringing you have not previously appeared before the Court. You have worked in a number of areas including being a teacher aide and supporting people with mental health issues. You have been involved with a number of different volunteer jobs and assisted others with difficulties. I have received and considered the letter this morning which emphasises the contribution you have made and I have also noted the progress that you have made in the programmes which you have undertaken, the material which Mr Bates provided to me this morning. I

consider that it is appropriate to apply a 10 per cent discount for your good character and record to date.

[36] That leads me to what both counsel recognise as the difficult area of the impact of your mental illness. The Court of Appeal authority on the discount to be applied to offenders suffering mental illness is E(CA689/2010) v R.⁵ At [71] the Court of Appeal state that discounts when mental illness has contributed to the offending have ranged from 12 per cent to 30 per cent. In R v Whiu the appellant entered guilty pleas for one count of motor vehicle manslaughter and one count of causing injury while driving with excess blood alcohol. On the basis of a clinical psychologist’s report, the Court accepted that there was some causal relationship

between the offending and the appellant’s post-traumatic stress disorder in the sense that the appellant’s decisions had been affected by her disorder. In terms of the discount to be applied to the starting point, the Court was of the opinion that the appellant’s condition at the time justified a discount of 20 to 25 per cent.⁶ A 13 per cent discount was applied in Dalley v R when his offending was largely caused by a hypermanic episode.⁷

[37] I consider the case of R v Edwards to also be useful.⁸ Mr Edwards suffered from schizophrenia but was able to function successfully in the community whilst on medication. He raped his flatmate when he was not on his medication. Miller J gave a 12 per cent discount for his mental illness. On appeal, the Court of Appeal noted that it would have given a discount of 15 to 20 per cent if it was not for the fact that it was satisfied with the overall sentence because it believed Miller J started with too low a starting point.⁹

[38] I consider that your borderline personality disorder and the depressive state you were in on the day of your offending did significantly contribute to your actions

_{which were out of character for you. I consider that a 20 per cent discount is}

⁵ _{E(CA689/2010) v R [2010] NZCA 13; (2011) 25 CRNZ 411 (CA).}

⁶ _{R v Whiu [2007] NZCA 591 at [44].}

⁷ _{Dalley v R [2010] NZCA 290.}

⁸ _{R v Edwards [2007] NZCA 382.}

⁹ At [26].

justified. That would bring your sentence down to one of four years and nine months.

[39] Finally I turn to the implications of your guilty plea. The Supreme Court in Hessell v R¹⁰ ruled that a reduction for a guilty plea, while appropriate, must not exceed 25 per cent. Whether a defendant pleads guilty at the first reasonable opportunity is always relevant. In your case, in addition to the discounts which I have already allowed, I subtract a further 15 per cent to reflect your guilty plea, albeit belated on the day of the scheduled trial date, which saved the expense of a

trial and witnesses from testifying.

[40] Rounding down slightly, this results in an end sentence of four years imprisonment. I accept the Crown’s submission that it is not necessary in this case to impose a minimum period of imprisonment.

Result

[41] So Ms Wallis would you please stand. On the count of wounding with intent to cause grievous bodily harm you are sentenced to four years imprisonment.

_{[42] Please stand down.}

_{Brown J}

¹⁰ Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.