LEAF v POLICE [2018] NZHC 3209

LEAF v POLICE [2018] NZHC 3209 [7 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000304[2018] NZHC 3209BETWEEN AWHINA MARY LEAFAppellantAND NEW ZEALAND POLICERespondentHearing: 3 December 2018Counsel: FJ Iggulden for AppellantGEW Montgomery for RespondentJudgment: 7 December 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 7 December 2018 at 1 pm.Registrar/Deputy RegistrarSolicitors/Counsel:FJ Iggulden, Auckland.Crown Solicitor, Auckland.The appeal[1] Judge R G Ronayne sentenced Ms Awhina Leaf to a term of four years and onemonth imprisonment after she committed a raft of offences between May 2016 andJanuary 2018, including burglary, theft, receiving stolen property, unlawfully takingcars, and escaping lawful custody.1 As will become apparent, Ms Leaf was somethingof a one-person crime wave. The Judge structured his sentence by adopting a sentenceindication of Judge J Jelas in relation to some of Ms Leaf's 2016 offences, to whichhe added time for the balance of Ms Leaf's offending in 2016, 2017 and 2018.[2] Ms Leaf acknowledges Judge Ronayne could have approached his task anynumber of ways, but contends her sentence is manifestly excessive, largely becausethe Judge adopted an excessive starting point on the charge of escaping lawful custody.A brief chronology[3] The chronology is important.[4] Judge Jelas gave her indication on 15 September 2016. Her Honour said shewould likely impose a term of two years and seven months' imprisonment if Ms Leafpleaded guilty to the charges: set I. Ms Leaf did so four days later. Sentencing wasscheduled for 5 December 2016. Ms Leaf was remanded in custody but bailed on11 November 2016.[5] On 20 November, Ms Leaf committed the first of two thefts in set II.Sentencing did not occur in December for reasons that remain unclear, but Ms Leafwas remanded in custody on 3 December. She was re-admitted to bail in March 2017.Ms Leaf committed the second set II theft in May 2017. She was remanded in custodysometime thereafter. Exactly when is unclear, but it must have been before Christmasday (2017), for, that is when Ms Leaf escaped.[6] Ms Leaf was apprehended on 11 January 2018. By then, she had committedthe remaining offences in set III.1 Police v Leaf [2018] NZDC 16037.[7] Judge Ronayne sentenced Ms Leaf on all charges on 1 August 2018.Offence sets[8] As foreshadowed, Ms Leaf's offending is best understood as three sets:2(a) Set I: the offences governed by Judge Jelas' indication.(b) Set II: the thefts committed while awaiting sentence for the set Ioffences.(c) Set III: the offences from 25 December 2017, when Ms Leaf escapedcustody.Set I[9] Between 3 May and 5 June 2016, Ms Leaf received a stolen Suzuki car worth$27,000.[10] On 16 May, Ms Leaf entered a Les Mills gym, went to the women's lockerroom and stole items worth $450. On 21 May, Ms Leaf went back to the gym andstole an iPhone, wallet, bank cards and keys. Ms Leaf used the keys to take a Holdencar worth $24,000.[11] On 30 May 2016, Ms Leaf went to Anytime Fitness and stole car keys. Sheused them to take an Audi car worth $17,500. That afternoon, Ms Leaf used one ofthe 16 May cards to buy $68 worth of cigarettes.[12] On 31 May and 5 June 2016, Ms Leaf went to two service stations using theSuzuki and Audi cars, and filled each with petrol—without paying.[13] On 8 June 2016, Ms Leaf entered the Salvation Army church and removed ahandbag. But, the victim's son retrieved it. The same day, Ms Leaf entered the WorldMission church. There, she stole a Samsung tablet worth $500.2 Counsel and the Judge analysed the offences as two sets: those in what I call set II being part ofset I (even though they came after the sentence indication), and my set III being their set II.[14] On 9 June 2016, Police recovered the Suzuki car.[15] Consequently, set I involved five burglaries, two thefts, two unlawful takings,and one offence each of receiving stolen property and using a document for pecuniaryadvantage.Set II[16] On 20 November 2016, Ms Leaf went into a shop and stole the owner's iPhoneworth $1,300.[17] On 13 May 2017, Ms Leaf stole a little over $84 worth of petrol from a petrolstation.[18] As observed earlier, Ms Leaf was remanded in custody some time betweenMay and December 2017. She was then pregnant.Set III[19] On Christmas day 2017, Ms Leaf complained of pregnancy-related pain. Shewas admitted to hospital. Ms Leaf was there guarded by two officers who, at somestage, left her handcuffed to the bed. Ms Leaf escaped somehow (the summary doesnot explain how she managed to remove the handcuffs).[20] On 8 January 2018, Ms Leaf removed car keys from an unattended bag at aWork and Income office, and used them to take a Holden car worth $12,000.[21] On 11 January 2018, Ms Leaf stole almost $93 worth of petrol for the Holdencar. That afternoon she caught the attention of Police. Ms Leaf failed to stop and drovedangerously. Police pursuit was abandoned because of risk. Later that day, Ms Leafunlawfully entered another car and gave Police false details when spoken to.[22] In summary, Set III involved an escape from lawful custody, unlawful takingof a car, a failure to stop, dangerous driving, unlawfully getting into a car, theft ofpetrol, provision of false information to an enforcement officer and driving whileforbidden.Judge's Ronayne's approach[23] As observed, the Judge adopted Judge Jelas' sentence indication. His Honourmade no adjustment for the set II offences, with the result these had no effect onpenalty.[24] The Judge adopted a global starting point of two years and 11 months for theset III offences. The Judge treated the lead offence in this mix as the escaping charge,for which he identified a starting point of two years' imprisonment. The Judgeameliorated the global starting point by six months for totality, and then made twofurther discounts: five months for Ms Leaf's personal circumstances, and 25 percent(six months) for Ms Leaf's guilty pleas.[25] The Judge made the resulting sentence of 18 months' imprisonment cumulativeon the 27-month term foreshadowed by Judge Jelas; hence the end sentence of fouryears and one month imprisonment.A minor point: discount for mitigating features in relation to set I[26] Judge Jelas discounted the anticipated sentence for this set by 20 percent onthe assumption Ms Leaf would plead guilty. Her Honour left open the possibility of adiscount for remorse. Ms Leaf contends Judge Ronayne should have revisited thequestion of remorse and ameliorated Judge Jelas' indication because of her age.Ms Leaf was 23 when sentenced, but 21 before Judge Jelas. Judge Jelas providedsome allowance for Ms Leaf's age by curtailing an uplift for previous convictions—Ms Leaf already had an extensive record for dishonesty.3[27] There is an obvious difficulty with this argument. Ms Leaf's furtheroffending—sets II and III—vitiated any prospect of discount for remorse and age thatmight otherwise have been available for the set I offences. As will be recalled,Ms Leaf committed two thefts on bail while awaiting sentence in relation to set I, laterescaped custody in relation to both sets, and then committed a further series ofdishonesty offences, all while on the run.3 See the discussion at [37].Error in relation to set III?[28] Ms Leaf's primary contention is this aspect of her sentence went awry. Shesubmits a two-year starting point for an offence of escaping lawful custody appears tobe without precedent. Ms Leaf also invites attention to diminished culpability inrelation to this offence, an argument Ms Iggulden helpfully summarised this way inher written submission:The appellant gave birth to a child in 2015 while she was incarcerated. Thatchild was uplifted by Oranga Tamariki and placed with the appellant's mother.The appellant had requested that the child not be placed with her mother dueto her mother's drug use. Subsequently the appellant's mother was killed in acar accident while driving under the influence.On 25 December 2017 the appellant was at Middlemore Hospital, heavilypregnant. During the night she was able to slip out of her hand cuffs and leavethe hospital. The appellant was trying to run away and hide and have her babyin hiding. She was fearful that her baby would be placed with her whanau,those same people who failed to protect her from the sexual abuse when shewas a child.While she has been in custody the appellant received trauma counselling forthe historical sexual abuse for the seven months prior to her sentencing.When the appellant escaped custody she took the opportunity, which presenteditself when she was unobserved, to do what she could to protect her unbornchild. She was concerned that her child would be placed with her family, whohad failed to protect her from sexual abuse over a five-year period when shewas a child.Although there were alternative ways for the appellant to protect her unbornchild, her actions need to be viewed in the context of a scared, vulnerableyoung woman. They also need to be viewed against the appellant's historywith Oranga Tamariki and their placement of one of her children with a familymember that she thought was inappropriate. She was ill-equipped to respondappropriately.[29] For the Police, Ms Montgomery contends this aspect of the sentence was"stern, but available". Ms Montgomery emphasises the ultimate question is not howthe sentence was constructed, but whether it was too long.[30] The offence of escaping lawful custody has attracted little appellate attention,most likely because it is often accompanied by more serious offending; for example,with a related assault upon a prison guard or Police officer, or a later one on a formerpartner when the offender is on the run.[31] In Awatere v Police,4 the defendant escaped twice in quick succession: oncefrom the courthouse, and a second time from hospital while in custody at RimutakaPrison. Each attracted a cumulative term of imprisonment of six months. Both wereupheld on appeal.[32] In Police v Tawhai,5 the defendant was arrested during a bail check—he wason bail. The defendant asked to say goodbye to his girlfriend. He then fled. A startingpoint of nine months' imprisonment was upheld.[33] The Judge's selection of a two-year starting point is not far removed from halfof the available maximum penalty (of five years' imprisonment), and unsupported byauthority.6 Ms Leaf's submission of diminished culpability vis-à-vis idiosyncraticcircumstance is also sound. So, the Judge's starting point in relation to this offencewas too high, perhaps by as much as a year. However, it does not follow set III'sglobal starting point was too high.[34] The most serious offence in this set was the unlawful taking of the Holden car,an offence punishable by a maximum penalty of seven years' imprisonment.7 Noguideline judgment exists in relation to unlawful takings, but High Court authority isplentiful. I analysed some in Wood v Police, and concluded:8All this suggests a single unlawful taking charge can give rise to a startingpoint of at least 18 months' imprisonment, if the offence has a significantaggravating feature or features; see Gurnick. If a defendant unlawfully takesa car and attempts to evade Police in a chase, typical global starting pointsrange between 18 and 20 months' imprisonment; see O'Sullivan, Ratahi andEdwards. But, an especially bad constellation can attract more; see Bell. If adefendant unlawfully takes several cars, or takes one and engages in othersimilar dishonesty, a starting point of two and a half years' imprisonment ormore may follow; see Gibbon, Taki and Singh.[35] Ms Leaf evaded Police in a chase (three days after taking the car). She alsocommitted other acts of dishonesty (getting into another car with a view to taking it,and theft of petrol for the Holden), all after having escaped custody. Ms Leaf also4 Awatere v Police [2015] NZHC 1374.5 Police v Tawhai HC Wellington CRI-2011-485-47, 27 July 2011.6 Crimes Act 1961, s 120.7 Crimes Act, s 226(1).8 Wood v Police [2018] NZHC 1629 at [24].drove while forbidden, misled an enforcement officer and committed the two theftscomprising set II. This constellation is consistent with the higher starting pointidentified in Wood, and justified the global starting point adopted by the Judge, albeitfor reasons other than those given by his Honour.Separate discount for remorse?[36] Ms Leaf's remaining submission is the Judge ought to have afforded separatediscount for remorse in relation to set III. Ms Leaf participated in a restorative justiceconference, wrote a letter of apology to the petrol station owner, and offered to payreparation from funds received on her mother's death. Ms Iggulden submits Ms Leafhas turned a corner: she now acknowledges an addiction to methamphetamine, andrelated harmful behaviours.[37] The Judge gave Ms Leaf full credit for her guilty pleas, but was sceptical herremorse was genuine. Even before these offences, Ms Leaf had an extensive record.As at April 2016, Ms Leaf had seven convictions for theft; three for unlawfully takinga car; two for burglary; five for shoplifting; two for failing to answer bail; two fordangerous driving, as well as one conviction for each of: using a document; causingloss by deception; giving false details; obstructing Police; driving while disqualified;driving without a licence; failing to stop; breaching release conditions; breachingcommunity work; breaching supervision; refusing to give a blood specimen; andassault. It follows sets I, II and III were but more of the same.[38] Given all this, the Judge was entitled to be sceptical about remorse, and makeno discrete allowance for it.Sufficient deduction for totality?[39] Ms Leaf did not ask this question, but I have given the Judge's obligation toprovide for totality. As observed, the Judge did so by six months, a reduction of17 percent from the starting point. Greater allowance can be imagined, say, up to25 percent, or almost nine months. But, there is no prescription in this area; a nine-month discount would have had little effect on the sentence because of the otherdiscounts (for Ms Leaf's personal circumstances and guilty pleas); and set III involveda distinct suite of offences committed after an escape from custody. So, there was anobvious need for denunciation. The totality principle does not operate to conferimmunity on a defendant for recidivist offending.Conclusion[40] Judge Ronayne did not commit reversible error when sentencing Ms Leaf. Theglobal starting point for set III was available, albeit by different methodology than thatemployed. Ms Leaf's two other complaints are without substance. In reaching thisconclusion, I acknowledge the sentence is significant, particularly for a young femaledefendant with distressing personal circumstances, who, one hopes, may yet reform.However, I end as I began: Ms Leaf has been something of a one-person crime wave.[41] The appeal is dismissed...Downs J