Leao v Police HC Wellington CRI-2011-485-34 [2011] NZHC 1560 (24 June 2011)

Last Updated: 19 November 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2011-485-34}

ANDREW LEAO

Appellant

v

THE NEW ZEALAND POLICE

Respondent

Hearing: 21 June 2011

Counsel: S J Connell and M Menzies for Appellant

J Ongley for Crown

Judgment: 24 June 2011

_{JUDGMENT OF WILLIAMS J}

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 24th June 2011.

Introduction

[1] The appellant Mr Leao is 28 years old. He was convicted in the District

_{Court of burglary and breach of an extended supervision order. He pleaded guilty to}

ANDREW LEAO V THE NEW ZEALAND POLICE HC WN CRI-2011-485-34 24 June 2011

both charges. He was sentenced to 12 months‟ imprisonment on each charge to be served cumulatively. The learned Judge deducted four months from the overall sentence of 24 months to take account of time served.

Facts

[2] On 11 May 2010 the District Court imposed an extended supervision order on Mr Leao. It was to last for seven years, expiring on 7 October 2017. It was a condition of the order that Mr Leao remain at his residential address unless he had obtained approval to leave from a probation officer.

[3] At 11.00am on 4 February 2011 Mr Leao left without approval. He climbed through a hole in a corrugated iron fence dividing his address from that of a 23 year old mother of two young children. He admits that he intended to spy on the mother and commit an indecent act. I presume the indecent act intended was masturbation as he has an extensive history of such behaviour but there is no detail on file of particulars of what he intended to do.

[4] Mr Leao was disturbed by the neighbour‟s dog, took fright and ran back to

his property where he was, apparently, found hiding by another neighbour.

Sentencing decision

[5] The learned Judge took account of relevant factors in s 7 of the Sentencing Act. Her Honour considered the nature of the offending, the circumstances of the victim, the premeditation of the “invasion of domestic space”, Mr Leao‟s extensive convictions for sexual offending and deviant behaviour, and imposed the sentence mentioned.

[6] The appellant argued that the Judge:

_{(a) failed to adopt the three-step approach required by Hessell v R;}[1]

(b) imposed sentences that were individually manifestly excessive and manifestly excessive in their totality as a result;

(c) made material errors of fact in her assessment; (d) failed to discount for early guilty pleas;

(e) failed to properly consider the totality of the offending.

[7] For the police, counsel accepted that Her Honour‟s methodology was flawed both in terms of failure to adopt the three-step Hessell approach and in deducting four months from the overall two year term of imprisonment for time already served.

[8] Nonetheless, counsel argued that in totality, the sentence was “well within range”.

Analysis

[9] The Judge obviously erred in not following the appropriate three-step process of identifying a starting point for the offending (including aggravating and mitigating factors relating to that offending), aggravating and mitigating factors personal to Mr Leao, and then finally an appropriate discount for his guilty pleas.

[10] It is true also that the Judge did not explicitly step back and consider the totality of the offending. Since no values have been attributed to these various factors, it is necessary for me to consider the sentencing afresh to determine whether the end point is permissible as within range.

[11] The offending itself was not at the serious end of the scale as the Judge accepts. The breach was only for a few minutes and the burglary offending did not involve home invasion, violence, threat, theft or any actual indecency. On the other hand, Mr Leao accepted that he breached in order to commit an indecency. In other words he breached in the very manner that the supervision order had been imposed to prevent. In addition the burglary was clearly premeditated – Mr Leao climbed

through a gap in the fence for the specific purpose of getting into the neighbouring property – and if he had not been disturbed by a dog, far more serious offending would have ensued. The significant issue here in terms of sentence is the threat to community safety that this offending represented.

[12] I do not think there is any substance in Ms Connell‟s argument that extended supervision was imposed for sexual offending against young victims and, since in this case, his intent related to an adult woman, it cannot be said the supervision order was designed to guard against this very offending. That would be to read shades of distinction into s 107B of the Parole Act 2002 that are inconsistent with its underlying purpose.

[13] There is no breach of supervision order case that is directly on point. In McGreevy v Department of Corrections, the appellant breached an extended supervision order.[2] He had breached before a number of times. If there is a difference between that case and the present one, it is that there is no evidence that the breach was to facilitate further offending of the kind intended to be guarded against in the order. The appellant simply went AWOL and was found two hours later. On appeal Panckhurst J upheld the final sentence of six months‟ imprisonment.

[14] There is also the sentencing notes of Asher J in R v Burkett but that case related to breach by a serial sex offender who had repeatedly committed indecent acts on adolescent boys from 1978 until the date of sentencing in 2006.[3] While Mr Leao has an extensive background of indecent offending, it is not of the order reflected in Burkett. I do not, with respect, find that case of any assistance in this appeal.

[15] Thus a starting point of between 12 and 18 months on the breach charge is within range to account for the additional element of intent to commit further indecent acts, not present in McGreevy. There do not seem to be any personal mitigating features in relation to Mr Leao on this charge. He has little insight into

_{his offending and lacks remorse.}

[16] Potential aggravating features relate to his extensive history of offensive behaviour, indecent acts and indecent assaults from 2007 through to the current time. However, the charge is breach of a supervision order, and it is inherent in the charge that there will be an extensive history of previous sex offending. To uplift would therefore be to double count in my view. There is, in addition, no history of previous breaches of the supervision order.

[17] As to the burglary count, there is no tariff case. A sense of the range is given by the judgment of Wylie J in Taremoeroa v Police in which the appellant broke into a room at a motor camp stealing electronic equipment and cash valued at $925.00.[4]

A sentence of 12 months‟ imprisonment was upheld. The starting point in the District Court was nine months‟ imprisonment with a six month uplift for previous convictions, and a three month discount for an early guilty plea.

[18] In this case there is no actual taking, or contact with the occupants of the neighbouring home. While, it is possible to predict that if Mr Leao had seen any of the occupants, an indecent act could well have ensued, the fact is no contact was made and no further offending or aggravating features ensued. It would be wrong in principle, in my view, to treat the possibility of further offending on the property as an aggravating feature of the offending except to the extent inherent in the charge itself – that is except to the extent that he accepts he intended to commit an indecent act. Having said that, it is appropriate to take into account, as an aggravating feature personal to him, Mr Leao‟s extensive history of indecent offending. There is no evidence before me that his prior offending involved invading the „domestic space‟ (as the Judge put it) of others, but I do not think that matters. He entered the neighbouring property in this case to commit more of the sexual offences for which he had already been extensively punished, and that is clearly an aggravating feature of the burglary.

[19] Taken as a whole I would have adopted a starting point in respect of this offending of up to 12 months to reflect the threat to public safety that this burglary

_{represented with an uplift of three months for previous relevant offending.}

[20] On the lead offence of breach of extended supervision, I would have deducted four months from the upper end starting point of 18 months to account for Mr Leao‟s early plea. On the burglary charge I would also have deducted three months from the upper end of 15 months for the same reason.

[21] I do not think the sentences should have been treated as cumulative. In reality the extended supervision order is designed to prevent repeat offending of this kind and the burglary also relates to the intent to offend sexually. They are not sufficiently different in kind in terms of s 84 of the Sentencing Act 2002 and they are certainly connected in fact.

[22] Ms Ongley argued that the breach of supervision was committed as soon as the appellant crawled through the fence, so it is a very different crime with distinctive facts compared to the burglary charge. That is true, but it would be necessary then to remove the indecent purpose from the breach of supervision charge or risk counting it twice. The fact is, as I have said, it is the sexual aspect in his offending that is both the common element and the most significant factor in assessing penalty and it should be approached on a totality basis.

[23] The proper approach in my view is to provide for a modest uplift on the lead offence to reflect the combination of offending in this case. I would uplift the sentence for the lead offence by four months on a totality basis accordingly.

[24] The appeal is allowed therefore. The sentences are quashed and replaced with a term of 18 months on the count of breach of extended supervision and

_{12 months on the count of burglary, to be served concurrently.}

Williams J

---

[1] [2010] NZSC 135, [2011] 1 NZLR 607.
[2] _{HC Christchurch, CRI 2009-409-000207, 17 December 2009.}
[3] HC Auckland, CRI 2005-044-008162, 11 July 2006.

[4] HC Rotorua, CRI 2010-463-000053, 17 August 2010.