R v Donaldson [2016] NZHC 1718 (27 July 2016)

Last Updated: 23 May 2018

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-012-000582 [2016] NZHC 1718

THE QUEEN

v

_{LEANNE FAY DONALDSON}

Hearing:	27 July 2016
Appearances:	R D Smith for Crown A More for Defendant
Judgment:	27 July 2016

_{SENTENCING NOTES OF DUNNINGHAM J}

[1] Ms Donaldson, you are here for sentencing today, having pleaded guilty to one charge of injuring with intent to injure.¹

[2] As you know, I gave you a sentencing indication on 18 May 2016, where I indicated that a sentence of 21 months’ imprisonment was likely, but with the possibility of home detention if that was supported by the pre-sentence report that was

_{subsequently prepared.}

¹ Under s 189(2) and s 66 of the Crimes Act 1961.

[3] Since that date, a pre-sentence report has been prepared and provided to me. It assesses your risk of harm and your likelihood of reoffending as low. It also assesses that you are able to comply with a recommended sentence of home detention. In terms of that home detention recommendation, it is proposed that it is served at your residence in Dunedin.² It is also recommended that one of the special conditions that should be imposed is that you complete an appropriate woman’s short rehabilitative programme to the satisfaction of a probation officer. So I take those matters into account as I proceed through the process.

Background

[4] The events which led to this charge, as you know, occurred very early on the morning of 7 February 2016, when the victim whom you lived with was stabbed

14 times by your ex-husband.

[5] Your involvement began with communications by telephone with your ex-husband, which included after he tapped on the window that morning, shortly before 5.40 am. You texted your ex-husband, asking if it was him at the door. Apparently a telephone conversation ensued where you were told that the victim was “going to get a fucking lesson that she would never forget. That no-one fucks with his family and that no-one lies to him”. You then said you woke the victim up to answer the door as had been arranged over the phone. When your ex-husband found his way in, he grabbed the victim by the throat and pushed her against the wall. You say that at some stage you retreated to the bedroom while the attack took place.

[6] As you have heard there has been some discussion today that in the pre-sentence report you suggest that you were unaware that the person at the front door was your ex-husband. I am, of course, sentencing on the basis of the summary of facts and it is clear from that and from the statement that has been read out by Mr Smith that you certainly assumed it was your husband at the door, even if you were not 100 per cent sure, so clearly there was a risk if you let the victim go to the door and answer

_{it in those circumstances.}

² References to the actual address have been omitted from these notes.

Effect on victim

[7] The effect on the victim was that she was hospitalised for seven days and the medical staff say that it was a miracle she survived. Her victim impact statement, unsurprisingly, says this has had a dramatic effect on her life. It has taken months of recovery to get over the physical injuries. She has had to move north away from here, to get away from the circumstances that led to this. She says her life has not been the same since and, she expresses surprise that someone like you, that she trusted, facilitated this attack on her.

Defendant’s circumstances

[8] In terms of your own background, you are 44 years old now. You have no previous convictions. In the earlier hearing, your lawyer then explained that you yourself were assaulted by the other defendant in this case during your marriage to him and that you remain frightened of him. I have also heard extensive evidence of the serious health issues that you suffer from.

Basis of sentencing

[9] As I said when giving the sentence indication, I am sentencing you on the basis that you assisted your ex-husband to injure with intent to injure, but that you could not have been said to have assisted him with attempted murder, nor could you have appreciated that attempted murder was a probable consequence of whatever unlawful act you knew your ex-husband was going to carry out. However, you could be said, from the text exchange, to know that the victim was likely to be beaten, severely enough that she was going to be injured and this was in retribution for some grievance he had against her, although I accept that you still do not know what that was. You assisted by confirming the victim was in the house and letting the victim answer the door when you suspected it was your ex-husband there.

[10] I have already explained, when I gave the sentencing indication, how I have arrived at the starting point for sentencing. In doing this, I was assisted by the case of

_Nuku.³ _{From that I determined that the aggravating features of the offending in this}

³ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

case were that there was some form of home invasion, there was a modest level of pre- meditation, and there was some extreme violence. I put less weight on the claims that this was a form of vigilante action and that the victim was especially vulnerable. I therefore found that the starting point for the offending was somewhere at the top of band 2 or early in band 3, and it justified a starting point of three years’ imprisonment.

[11] I made a deduction of three months for your previous good character, your lack of offending history and to reflect some element of remorse. I signalled in the sentencing indication exercise that if more tangible evidence of your remorse came to light by the time of sentencing, for example, participation in a successful restorative justice process, that would increase the discount. I accept that the sentencing report has confirmed that you are very remorseful. I also note that you have offered to attend a restorative justice meeting, but it seems that the co-ordinator considers it is not appropriate to engage in that process at that stage, but that may be revisited after all the legal proceedings are concluded. In the circumstances, I consider a slight increase in the adjustment for remorse should be given and the indicated three month deduction I now increase to five months.

[12] I also afforded you a modest level of discount for the proposed co-operation with the Crown case. As I said in the sentencing indication as a matter of policy, I consider that people should get a discount for that form of assistance, even when the evidence they are able to give may not necessarily be critical to the case. In the sentencing indication, I said I would add a further five months’ discount, and I confirm that discount today. Now that takes me to a sentence of 26 months’ imprisonment.

[13] You are then entitled to a full discount for your guilty plea. As I have already acknowledged, there is no reason not to give you a full 25 per cent discount and that takes the sentence down to a sentence of 20 months two weeks’ imprisonment.

[14] I accept, as your lawyer has said today, that a sentence of home detention is appropriate in this case. It does serve the principles of deterrence and denunciation,

but it also meets that principle of imposing the least restrictive outcome on you that is appropriate in the circumstances.

[15] I have looked at the pre-sentence report, and I am satisfied that you are an appropriate candidate for home detention.

[16] Ms Donaldson, would you now please stand.

[17] On the charge of injuring with intent to injure, you are hereby sentenced to a term of 10 months’ home detention. That sentence is to be served at your resident address in Dunedin City. The following special conditions are imposed:

(a) you are to attend and complete an appropriate women’s short rehabilitative programme to the satisfaction of a probation officer. The specific details of the appropriate programme are to be determined by the probation officer;

(b) you are not to associate with or contact the victim without the prior written approval of the probation officer.

[18] No post-detention conditions are imposed.

[19] Ms Donaldson, you may now stand down.

Solicitors:

RPB Law, Dunedin

Public Defence Service, Dunedin