Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 22 July 2016
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2016-416-11 [2016] NZHC 1565
BETWEEN
|
KEAU JAN LEACH
Appellant
|
AND
|
NEW ZEALAND POLICE Respondent
|
Hearing:
|
7 July 2016
|
Counsel:
|
A W Clarke for Appellant
F E Cleary for Respondent
|
Judgment:
|
11 July 2016
|
JUDGMENT OF CLARK J
Introduction
[1] Mr Leach was sentenced on 23 March 20161 on three
charges of burglary,2 one charge of breaching the conditions of home
detention,3 and one charge of taking a motor
vehicle.4
[2] Mr Leach appeals his sentence of two and a half years imprisonment
as being manifestly excessive.
Facts
[3] Mr Leach went to the address of a private property in Gisborne and
gained access through a window. He took car keys and
the Hyundai vehicle parked
in the driveway. He drove the Hyundai to another Gisborne address, hitting a
vehicle on
1 Police v Leach [2016] NZDC 5039.
2 Crimes Act 1961, s 231(1) (maximum penalty 10 years imprisonment).
3 Sentencing Act 2002, s 80S (maximum penalty 1 years imprisonment).
4 Crimes Act 1961, s 226(1) (maximum penalty 7 years
imprisonment).
LEACH v NEW ZEALAND POLICE [2016] NZHC 1565 [11 July 2016]
the way, and then abandoned the stolen vehicle. He entered that address and
stole further items: an Xbox, a PlayStation, cellphones
and keys.
[4] At yet a further address Mr Leach jumped a fence. He walked into
the house through an insecure door. A 15 year old girl
was home alone. He
rummaged through doors and cupboards. The young girl called the Police. Mr
Leach grabbed a laptop from the
lounge. The girl’s father returned after
receiving a call from his daughter. Mr Leach was disturbed and jumped the
fence.
The laptop was recovered and he was subsequently
apprehended.
District Court decision
[5] The Judge adopted a starting point of two and a half years
imprisonment recognising as aggravating features of the offending:
(a) premeditation;
(b) a focus on private dwellings which inevitably involves the possibility of
encounter and did, with the 15 year old (although not
face to face);
(c) the consequential loss — a vehicle had been taken and
damaged.
[6] The Judge uplifted his starting point by six months because the
offences were committed while Mr Leach was serving a sentence
of home detention
imposed for acts of burglary. A further uplift of six months was in
recognition of ten prior convictions for
burglary and a history of
dishonesty.
[7] Two months was deducted for Mr Leach’s youth. He is 18
years old. A further deduction of 10 months imprisonment
for his guilty plea
resulted in an end sentence of two and a half years imprisonment.
Grounds of appeal
[8] The appeal is brought on the basis that the sentence is manifestly excessive because:
(a) insufficient credit was given for the appellant’s youth;
and
(b) the uplifts were excessive.
Submissions
[9] With regard to the uplifts Mr Clarke submitted that imposing a
significant uplift for previous convictions and then uplifting
again because the
offending occurred while the appellant was subject to a sentence of home
detention resulted in an excessive increase
in the end sentence based on past
behaviour. While Mr Clarke accepted that the appellant’s offending
history justified some
uplift the extra year of imprisonment amounted to a
40 per cent uplift from the starting point. That approach, Mr Clarke
submitted, effectively repunishes the appellant for his past offending. Mr
Clarke submitted a single uplift of around six months
imprisonment would be
sufficient to reflect the aggravating features the Judge took into
account.
[10] Further, the insufficient recognition of the appellant’s youth
on the basis of his previous convictions had the
effect of
double-counting his criminal history. Mr Clarke submitted
... any substantial reduction in the credit to be given for youth on the
basis of the appellant’s previous convictions creates
the risk of
double-counting that as an aggravating factor ... if an uplift is
applied to reflect the appellant’s
previous convictions as a discrete
aggravating factor, the discount given for the appellant’s youth should
not be limited by
the fact of previous convictions.
[11] Ms Cleary, on behalf of the respondent, submitted that the starting point adopted by the Judge was lenient. While it was not accepted that the uplifts or discounts imposed were wrong, Ms Cleary submitted even if they were in error the low starting point had the effect that the end sentence was within range and appropriate (although “stern”).
Decision
[12] I must allow the appeal if I am satisfied that there is an error in
the sentence and that a different sentence should be
imposed.5 The
sentence must be manifestly excessive or wrong in principle before the Court
will interfere.6
[13] Counsel took no issue with the Judge’s starting point
of two years and six months. Therefore the appeal
falls to be determined by
principles applicable to the uplifts and discounts which the Judge gave and
whether the end sentence was
manifestly excessive.
The uplifts
[14] For the following reasons I am satisfied there was no error in the
uplift of six months for the ten prior convictions for
burglary and the further
uplift which was due to the fact the offences were committed while the appellant
was serving a sentence.
(a) Mr Clarke’s complaint is not that one or other of the uplifts
was in error for being excessive but that only one or
the other should have been
applied. A single uplift of around six months imprisonment, he submitted, would
be sufficient to reflect
the twin aggravating features of the appellant’s
past offending and his current offending while subject to sentence. But
approaching
the sentence in this way ignores the fact that s 9 of the Sentencing
Act 2002 has codified and made transparent the main aggravating
and mitigating
factors that the Court is required to look at when sentencing and which, when
they are, may work cumulatively to increase
(or decrease) the sentence. That
is permissible.
(b) The Sentencing Act expressly requires the Court to take into account as a potentially aggravating feature the fact that offences were
committed while the offender was on bail, or parole or while
subject
5 Criminal Procedure Act 2011, s 250.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31–33].
to a sentence.7 Similarly but distinctly, the Sentencing Act
directs the Court to take into account the number, seriousness, relevance and
nature
of previous convictions.8
(c) Although having uplifted his provisional sentence because of
previous convictions the Judge was justified in further uplifting
the sentence
because the appellant had offended while serving a sentence of home detention.
The question becomes whether the end
sentence is manifestly excessive. That is
addressed at the end of the judgment.
Discount for youth
[15] The Judge recognised Mr Leach was 18 years old.9 The
Judge’s concession to the appellant’s youth was to deduct two months
from the end sentence of three years and six
months which he had otherwise
reached.10 That amounted to less than a five per cent reduction.
The question is whether that was a sufficient discount.
[16] Youth may be a mitigating factor to be taken into account when
sentencing.11
The case law in this area is intensely fact specific. A discount may
radically affect the sentence. At other times the discount may
be
minimal:12
What sentence is proper in type and length is not constrained by
any percentage. It will depend on the case.
[17] The circumstances that I consider to be most relevant are
these:
(a) The appellant was not a first-time offender. That fact was
calculated into the additional six-months by which the sentence
was increased to
reflect his previous offending.
(b) The 10 previous convictions were characterised by Ms Cleary as a
borderline “spree”. I tend to agree. This is a generous
concession to
7 Sentencing Act 2002, s 9(1)(c).
8 Section 9(1)(j).
9 At [7].
10 At [18].
11 Sentencing Act 2002 s 9(2)(a).
12 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].
the appellant in light of the fact that his offending spanned two
months.
(c) Although only 18 years old the appellant is approaching
recidivism.
His offending is aggravated by the fact it has occurred in a district that is
beset with burglaries. The High Court has acknowledged
the special
need for deterrence because of the extent of the burglary problem in the Eastern
Police District.13 The appellant has, unfortunately, crossed the
line so that he can not expect sympathetic treatment from the Courts as he
devotes himself
to this pattern of offending. That is why the sentence of
imprisonment was imposed and justifiably so.
[18] That said, I do not think he is at the stage where he has rendered
himself ineligible for the full discount available to
offenders of his age whose
offending, it is recognised, is frequently driven by neurological immaturity.
That is borne out in this
case by the appellant’s explanation for his
offending: that having absconded from his home detention address he panicked
and
committed these burglaries because “he just wanted some money to get
out of town”.
[19] The PAC report writer assessed the appellant as being at
high risk of reoffending and appearing to be inured
to the seriousness of his
offending. But it also recorded that the appellant:
(a) acknowledged his poor decision-making explaining that he felt
“shattered”, had let everyone down and had completed
nine months of
his home detention “for nothing”;
(b) seemed to understand the effects of his offending on the victims
explaining they would be “horrified, scared and not
happy” to have
their property taken;
(c) felt angry at himself for terrifying another
person;
13 Matenga v Police HC Gisborne CRI-2011-416-24, 7 October 2011 at [13].
(d) thought talking to a psychologist frequently would help him especially to
deal with financial stress; and
(e) had a degree of insight into his offending.
[20] Taking these matters into account I consider a sentence of two years
and six months is disproportionately severe;14 does not factor in
the potential for rehabilitation of the appellant at his still relatively young
age;15 and the sentence is not the least restrictive outcome
appropriate in the circumstances.16
[21] A discount of six months is appropriate recognition of the
appellant’s youth. This may be regarded as a marginal call
considering the
need to protect the community from the appellant’s penchant for theft but
there is a proper basis for not yet
sentencing him as an adult recidivist
offender when he is now displaying a degree of insight into his offending and is
likely to
benefit, as will the community, from participation in targeted
rehabilitative and education programmes thereby reducing his risk
of future
offending.
Result
[22] The appeal is allowed. The sentence is quashed and a sentence of
two years imprisonment is substituted.
Solicitors:
Elvidge & Partners, Napier for Appellant
Crown Solicitor, Gisborne for
Respondent
14 Sentencing Act 2000, s 8(h).
15 Section 8(i).
16 Section 8(g).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2016/1565.html