Gavin aka Capper v R [2018] NZHC 2193 (24 August 2018)

Last Updated: 4 September 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-69 CRI-2018-463-70 [2018] NZHC 2193

BETWEEN	RAEWYN ANNE GAVIN (AKA CAPPER) Appellant
AND	THE QUEEN Respondent

Hearing:	23 August 2018
Appearances:	F Wood for Appellant M Jenkins for Respondent
Judgment:	24 August 2018

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 24 August 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

GAVIN v R [2018] NZHC 2193 [24 August 2018]

[1] Ms Gavin, (also known as Capper) and her daughter pleaded guilty in the District Court to charges of maiming with intent to injure. Ms Gavin also pleaded guilty to a charge of intimidation. On 20 July 2018, Judge Bidois sentenced Ms Gavin to two years imprisonment on both charges.¹ He sentenced Ms Gavin’s daughter to 10 months home detention and 140 hours community work.

[2] Ms Gavin appeals against the sentence on the ground that the Judge erred in principle in several respects, and this produced an end sentence that is manifestly excessive.

The facts

[3] The factual basis on which the Judge sentenced Ms Gavin was contained in a summary of facts that Ms Gavin did not accept in all respects. In a minute issued prior to sentencing, however, another Judge ruled that the disputed portions of the summary were not sufficiently material to affect the likely sentence. For that reason there was no need for the Court to conduct a disputed facts hearing.

[4] Ms Gavin and her daughter were originally charged with maiming with intent to cause grievous bodily harm. That charge was reduced to a charge of maiming with intent to injure prior to a sentence indication hearing. Ms Gavin and her daughter rejected the sentence indication but promptly entered guilty pleas in any event. Judge Bidois, who did not give the sentence indication, ultimately sentenced both Ms Gavin and her daughter.

[5] The maiming charges were laid as a result of an incident that occurred on the morning of 25 June 2017. On that date Ms Gavin and her daughter went to the workplace of Ms Gavin’s husband. When they arrived, they found the complainant present. The complainant had been in an “on again off again” relationship with Ms Gavin’s husband for some considerable time, and this had been the source of significant friction between Ms Gavin and her husband.

¹ R v Capper [2018] NZDC 14961.

[6] Ms Gavin’s daughter then attacked the complainant from behind, punching her about the head and causing her to fall to the ground. The summary records that both defendants then punched and kicked the complainant numerous times to the face and head whilst she lay on the ground. Throughout this incident, the complainant was crying and telling the defendants to leave her alone. The defendants were abusing the complainant, calling her a “bitch” and threatening her in the event that she ever saw Ms Gavin’s husband again.

[7] The summary records that Ms Gavin stabbed the complainant in the forehead with a corkscrew. This caused a significant wound to the complainant’s eye. The complainant was also bleeding from a wound to her lip.

[8] Ms Gavin then went to the complainant’s car and removed the complainant’s cellphone from it. Ms Gavin and her daughter told the complainant she needed to leave town, and that they would follow her to make sure she did so. The defendants then followed the complainant as she drove to a service station in Tokoroa where she obtained petrol for her vehicle. Ms Gavin entered the store to pay for the petrol as she did not want anyone in the store to see the complainant’s injuries. The defendants then followed the complainant as far as Tirau. At that point the complainant said she would travel on to Auckland. Ms Gavin and her daughter then returned to Tokoroa.

[9] Throughout the incident Ms Gavin’s daughter sent numerous text messages to an unknown associate in which she described what she and her mother had done to the complainant.

[10] The incident left the complainant with a significant injury to her left eye. This has resulted in permanent loss of sight in that eye. She will require further treatment to the eye, including possible surgery to remove the eye and replace it with a prosthetic. The complainant also received a cut to the right side of her forehead and an injury to the left side of her forehead.

[11] One complicating factor is that the complainant suffered from a pre-existing condition to her eye. She did not seek medical attention for some time after the incident, and this fact may have contributed to her loss of eyesight. It is common
ground, however, that the complainant would not have lost her eyesight if she had not been injured by Ms Gavin.

[12] Ms Gavin was charged with intimidation as a result of an incident that occurred whilst she was on bail on the maiming charge. On 4 April 2018, Ms Gavin went to a bar in Rotorua. There she saw the complainant, who was sitting at a machine in the gaming lounge with her back to the door. The summary of facts prepared in relation to this charge states that Ms Gavin approached the victim and said “Bastard – you’re bloody lucky I don’t do the other eye”. Ms Gavin then left the gaming area. She returned a few minutes later and again spoke to the complainant. The exchange was recorded on CCTV cameras. The complainant was left shocked and scared as a result of this incident.

[13] When questioned by the police, Ms Gavin said she had approached the complainant because the complainant was with her husband. She said she had said to the complainant words to the effect “You’re lucky someone doesn’t press your other eye in”.

The sentence

[14] The Judge noted that the aggravating factors of the offending included multiple assailants, blows to the head and blows struck whilst the complainant was vulnerable because she was lying on the ground. In addition, the defendants had acted callously by making the complainant leave town. The offending has also caused the complainant significant and lasting harm. These factors prompted the Judge to select a starting point of three years imprisonment for both defendants. No issue is taken with the starting point on appeal.

[15] From that starting point, the Judge applied a reduction of three months for both defendants to reflect what he considered to be perceived provocation by the complainant from the standpoint of the defendants. This arose out of the fact that the complainant had been present at Ms Gavin’s husband’s workplace notwithstanding the fact that her husband and the complainant had earlier told Ms Gavin their relationship was over.
[16] The Judge then gave Ms Gavin a discount of one-third, which he calculated as being nine months, to reflect mitigating factors including guilty pleas and limited remorse. This reduced the sentence to one of 24 months imprisonment. The Judge declined to impose a sentence of home detention, and therefore imposed a sentence of 24 months imprisonment on the maiming charge. He imposed a concurrent sentence of one month imprisonment on the intimidation charge.

[17] The Judge applied a discount of 40 per cent to reflect mitigating factors in relation to Ms Gavin’s daughter. These included not only the guilty pleas but also the fact that this was the first occasion on which she had appeared before the courts. In addition, Ms Gavin’s daughter had expressed sincere remorse from the outset. Given those factors the Judge converted the resulting sentence of 20 months imprisonment to ten months home detention.

Grounds of appeal

[18] Mr Wood advances the appeal on Ms Gavin’s behalf on three grounds:

(a) The Judge made a mathematical error when calculating the level of discount for mitigating factors.

(b) Issues of disparity arise because Ms Gavin has received a substantially different end sentence from that imposed on her daughter.

(c) The Judge erred in principle in declining to impose a sentence of home detention.

Mathematical error

[19] There is no dispute regarding this issue. The Judge said he would give Ms Gavin a discount of one-third to reflect mitigating factors. One-third of 33 months is 11 months. The reduction of nine months was therefore two months less than the Judge obviously intended to apply.

Disparity

[20] Mr Wood submits that the sentence imposed on Ms Gavin was significantly less severe than that imposed on her daughter. He therefore contends issues relating to disparity arise, and that the sentence calls into question the administration of justice.

[21] The desirability of consistency between sentences imposed on co-offenders who have committed similar offences rests on the proposition that any marked departure in sentencing levels without adequate reason “can result in injustice to an accused person and may raise doubts about the even-handed administration of justice”.² The test is sometimes described as being whether an independent and objective observer would consider the disparity between sentences imposed on co- offenders calls into question the administration of justice.³

[22] In the present case I do not consider any issue of disparity arises because the Judge selected the same starting point in relation to both defendants. He therefore treated their culpability as being the same. The difference between the two end sentences results from differences in their personal circumstances. I will return to these later in the judgment. For present purposes, however, it is sufficient to observe that an independent and objective observer would well understand why the defendants were treated differently given their different personal circumstances.

Error of principle in refusing to impose a sentence of home detention

[23] Mr Wood submits that the Judge’s decision not to impose a sentence of home detention on Ms Gavin was driven by the fact that she had offended again against the same complainant whilst on bail. I accept this submission given the following passage in the sentencing remarks:⁴

• [44] In April of this year you are called to a local bar by your husband to pick him up. You go in and you see the victim there playing the pokies. She was not expecting you, you were not expecting her but of course your anger was still rich. You are alleged to have said to the victim. “Bastard, (that may be a reference to your husband) you’re bloody lucky I don’t do the other eye.”

² R v Morris [1991] 3 NZLR 641 (CA) at 645.

³ Singh v R [2013] NZCA 245 at [35].

⁴ R v Capper, above n 1.

[45] This is challenged by your counsel. The summary goes on to say that you told police, “You’re lucky someone doesn’t press your other eye in,” which is pretty close. Words were obviously spoken and you have pleaded guilty. It seems to me that is offending whilst on bail and involving the same victim. It is for that reason it is going to have a huge impact on you, Ms Gavin, but the reality is that you should not have “lost your rag” again.

[46] For you I am not going to give you home detention. You will be sentenced to 24 months’ imprisonment. Leave for substitution of sentence is refused. There is going to be six months’ standard and special release conditions. Those will be set out in the order.

(Emphasis added)

[24] Mr Wood submits it was wrong in principle for the Judge to refuse to impose a sentence of home detention solely on the basis of the intimidation charge. He submits the Judge needed to take into account a wide range of factors when considering that issue.

[25] The intimidation charge obviously has aggravating features because Ms Gavin committed the offence whilst on bail for offending against the same complainant. Her bail conditions also prohibited her from having any contact with the complainant whilst on bail. Having said that, the Judge did not apply any uplift to the end sentence to reflect the charge. He obviously considered Ms Gavin’s overall culpability was adequately addressed by the starting point he had selected in relation to the maiming charge. I therefore accept that, standing alone, the offending leading to the intimidation charge was arguably insufficient to justify the Judge refusing to impose a sentence of home detention. Other factors also needed to be taken into account because a decision as to whether to impose a sentence of home detention is an evaluative exercise taking into account the purposes and principles contained in ss 7 and 8 of the Sentencing Act 2002.⁵

[26] Mr Wood’s submission that this Court should quash the sentence of imprisonment and impose a sentence of home detention proceeds on the basis that such a sentence was appropriate having regard to the circumstances of both the offending and the offender. The Judge clearly considered that to be the case in relation to Ms Gavin’s daughter, because he imposed a sentence of home detention on her. Standing back and viewing the matter afresh, however, I consider the aggravating

⁵ James v R [2010] NZCA 206.

factors of the offending were such that Ms Gavin’s daughter was extremely fortunate to receive a sentence of home detention. The Judge was no doubt influenced significantly in his decision by the fact that Ms Gavin’s daughter was a first offender and had expressed sincere remorse from the outset. Even so, it is arguable that the serious nature of the offending, including the lasting injuries to the complainant, meant these factors were insufficient to justify a sentence less than imprisonment. Principles of deterrence, denunciation and the need to hold the offenders accountable for their actions were to the fore in the present case.

[27] In order to avoid a sentence of imprisonment Ms Gavin needed to point to mitigating factors sufficient to justify a sentence of home detention. Unfortunately for her, those factors are not present. She has several previous convictions, although I accept that most of these were entered some time ago. She has also served a sentence of 12 months imprisonment imposed on 27 February 2007 on a charge of being in possession of drugs for supply. She has several other drug-related convictions. Furthermore, Ms Gavin has the added hurdle that she offended against the same complainant in the present case whilst on bail. In addition, she has expressed very limited remorse. Taken together, I consider these factors prevent Ms Gavin from being a candidate for home detention in relation to the present offending.

Should the sentence be reduced?

[28] There remains the fact that the Judge erred in calculating the amount by which the sentence should be reduced to reflect mitigating factors. Ordinarily the appeal would be allowed to restore the position to that which the Judge clearly intended.

[29] Mr Jenkins for the Crown opposes the Court reducing Ms Gavin’s sentence to correct this error. He contends that an overall discount of one-third to reflect mitigating factors was too great in Ms Gavin’s case given the limited nature of her remorse. He also contends the discount of three months to reflect perceived provocation cannot realistically be justified because the complainant did nothing to provoke the defendants other than being present at Ms Gavin’s husband’s work place. He also points out that the Judge did not add any uplift to reflect the intimidation
charge. For all these reasons Mr Jenkins submits the end sentence cannot be regarded as manifestly excessive.

[30] These arguments clearly have merit. Mr Wood acknowledges the one-third overall discount for mitigating factors was extremely generous, and I consider the argument in favour of any discount for perceived provocation to be weak. I consider it would be unfair, however, to allow Ms Gavin’s daughter to receive the benefit of the latter and deny the same to Ms Gavin. Furthermore, although the discount for mitigating factors was generous, it was not outside the available range. I also consider the starting point adopted on the maiming charge was sufficient to include the culpability in relation to the intimidation charge.

[31] It follows that I do not consider the factors to which the Crown points should prevent the Court from placing Ms Gavin in the position the Judge plainly intended her to be.

Result

[32] The appeal against sentence is allowed to the extent that the sentence of 24 months imprisonment is reduced to one of 22 months imprisonment.




Lang J

Solicitors:

Tompkins Wake, Rotorua Crown Solicitor, Rotorua