Le-Noel v R [2015] NZCA 556 (18 November 2015)

Last Updated: 26 November 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA482/2015 [2015] NZCA 556
BETWEEN	KRISTINA ROSELIE DIANNE LENOEL Applicant
AND	THE QUEEN Respondent

Hearing:	2 November 2015
Court:	Randerson, Lang and Clifford JJ
Counsel:	M W Ryan for Applicant Z R Johnston for Respondent
Judgment:	18 November 2015 at 3:30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] The applicant, Kristina Le-Noel, pleaded guilty to one charge of theft of a motor vehicle, five charges of receiving stolen property and one charge of obstruction. On 20 May 2015 Ms Le-Noel was sentenced by Judge Andrée Wiltens to 30 months’ imprisonment.^[1] On appeal, Whata J concluded that the combined starting point taken by the Judge was, by three months, too high and that the Judge’s discount for the mitigating factors of a guilty plea and other personal circumstances (23 per cent) was too low, and increased that to 30 per cent (15 per cent for her guilty plea and 15 per cent for other personal factors). On that basis, Whata J substituted a sentence of 26 months’ imprisonment.^[2]
[2] This is an application by Ms Le-Noel for leave to bring a second appeal against the sentence imposed on her.

Facts

[3] Ms Le-Noel was sentenced for two separate instances of offending.
[4] The first occurred in June 2012. That month, a Ms Rae Portman was reported missing. She was subsequently found to have been murdered. Shortly before she disappeared Ms Portman had left her car, a VW Passat, with a friend to be repaired. When that friend heard she was missing, he sent a public message through Facebook that he had Ms Portman’s VW and wanted to return the car to her family. Shortly after that, Ms Le-Noel made contact with the friend and, saying the car was hers, took it. She changed the registration of the vehicle into her own name and traded it in for $1,000. That was the basis for the charge of theft of a motor vehicle.
[5] Ms Le-Noel entered a guilty plea to that charge on 15 December 2014, the day on which her three-day trial had been scheduled to begin.
[6] The balance of the charges Ms Le-Noel faced related to a series of burglaries carried out by Ms Le-Noel’s partner and her brother. Ms Le-Noel and another woman, her brother’s partner, received proceeds of the burglaries and sold them. The money was then divided. More than $300,000 worth of goods was stolen, including heirloom jewellery that could not be replaced. When Ms Le-Noel was arrested and her house searched, she endeavoured to hide two cellphones. A charge of obstructing the police was laid. Ms Le-Noel entered guilty pleas to those charges on 17 March 2015.

Leave application

[7] Second appeals against sentencing decisions are now provided for by s 253 of the Criminal Procedure Act 2011. Subsection (3) provides:

(3) The High Court and the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[8] Ms Le-Noel does not say her appeal would involve a matter of general or public importance. Rather, she bases her application on the proposition that a miscarriage of justice may have occurred because:

(a) The District Court did not adjourn the proceeding under s 24A of the Sentencing Act 2002 for a restorative justice process.

(b) She was now in a position to offer $20,000 as reparation.

(c) If the possibility of restorative justice had been investigated, and if the Court had taken account of the offer of $20,000 reparation, Ms LeNoel may have been eligible for a sentence of home detention as the sentence of imprisonment that might otherwise have been imposed on her could have been less than 24 months.

Analysis

[9] We agree that no matter of general or public importance is involved.
[10] As for the possibility of a miscarriage of justice, the first matter Ms LeNoel raises relates to the requirement found in s 24A of the Sentencing Act for the District Court to consider the possibility of a restorative justice process. At the hearing of this application, Mr Ryan said it was not clear whether that requirement had been observed when Ms Le-Noel entered her guilty plea to the charge of theft of a motor vehicle. After the hearing, counsel for the respondent obtained a copy of the District Court trial record sheet for 15 December 2014. That clearly shows that when Ms Le-Noel entered that guilty plea, an order was made for restorative justice to be considered. Counsel has also advised us that Ms Portman’s mother declined to provide a victim impact statement and, it would appear, also declined to participate in the restorative justice conference. We note further that we are not persuaded that Ms Portman’s mother was — in any event — a victim of Ms Le-Noel’s offending in terms of the definition of victim found in s 4 of the Victims’ Rights Act 2002. We are therefore satisfied no possible miscarriage of justice has arisen or could arise with regard to this matter.
[11] Judge Andrée Wiltens considered the question of reparation.^[3] Ms LeNoel had indicated a willingness to pay reparation, but at that time was financially unable to do so. The Judge commented:^[4]

Your offer of reparation indicates the remorse you are showing because there is not any true remorse here. What you say is, one day I might be able to do something, well that is simply too late.

[12] Mr Ryan submitted that Ms Le-Noel has now borrowed $20,000, which was available to be paid as reparation. Mr Ryan has, since the hearing, confirmed that this is the first time that possibility has been raised. It was not considered by either the District Court, or the High Court on appeal. Whilst there are cases where offers to pay reparation made after sentence have been taken into account on appeal, we are satisfied that no question of a miscarriage will arise here if leave is not granted on the basis of the indication of reparation that may now be available. No evidence was provided to confirm any funds were available. Putting aside the very late stage at which the possibility of this payment has been raised, this was serious offending which, in our view, called for a prison sentence regardless of reparation. We are therefore also satisfied that a miscarriage of justice is not an issue here.
[13] We note, finally, that in his memorandum following the hearing Mr Ryan sought leave to raise a new ground of appeal, namely that the 15 per cent allowance for Ms Le-Noel’s guilty plea was insufficient. He wishes to raise the argument that Ms Le-Noel’s guilty plea on the receiving charges was not late, as she entered it once the summary of facts reflected the basis upon which she accepted responsibility. We decline that application. The question of the discount for Ms LeNoel’s guilty plea was considered by Whata J. The extent of the discount for mitigating factors is a matter for the discretion of the sentencing Judge. On occasions, as happened here, it may be adjusted on a first appeal. However, the issue was never raised as a ground before us on the application for leave for a second appeal and, in our view, it is too late to do so now. Overall, Ms Le-Noel’s sentence, after her High Court appeal, can be regarded as generous.

Result

[14] We are satisfied that no miscarriage of justice has occurred or may occur unless this appeal is heard. We decline Ms Le-Noel’s application for leave to bring a second appeal against sentence.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Le-Noel [2015] NZDC 8779.

^[2] Le-Noel v New Zealand Police [2015] NZHC 1850.

^[3] As required by s 10(1) of the Sentencing Act 2002.

^[4] R v Le-Noel, above n 1, at [15].