LAING v POLICE [2020] NZHC 1875

LAING v POLICE [2020] NZHC 1875 [30 July 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000013[2020] NZHC 1875BETWEEN KAREN ILYA LAINGAppellantAND NEW ZEALAND POLICERespondentHearing: 27 July 2020Appearances: J A Westgate for the AppellantC J Bernhardt for the RespondentJudgment: 30 July 2020JUDGMENT OF NATION JIntroduction[1] The appellant, Karen Laing, pleaded guilty to two charges of threatening to killand one charge of criminal harassment.1 Judge Phillips sentenced her to two years andthree months' imprisonment. Ms Laing appeals that sentence on the basis the startingpoints were excessive and the Judge gave insufficient credit for her Asperger'sSyndrome.Facts[2] The two victims in this case are the man who went on one date with Ms Laing(the victim) and his mother. Ms Laing met the victim through a dating app in 2016.1 Threatening to kill carries a maximum penalty of seven years' imprisonment (Crimes Act 1961, s306) and criminal harassment carries a maximum penalty of two years' imprisonment (HarassmentAct 1997, s 8).They went on one date together before the victim declined to see Ms Laing again. MsLaing began to harass and threaten the victim, and was convicted of relevant charges,most recently in 2018. At the time of the present offending she was subject to releaseconditions not to possess, control or use a device capable of accessing the internet, aswell as conditions not to contact the victims of her offending.[3] Between 2 December 2018 and 8 March 2019, Ms Laing sent 297 unsolicitedmessages to the victim's Facebook account, telephoned his workplace and leftthreatening and aggressive messages. Those communications form the basis of thecharge of criminal harassment.[4] Between 10 and 16 March 2019, Ms Laing sent 41 messages to the victim'sFacebook account, 21 of which included threats to murder him. An example of sucha message is: " my feelings are to murder you and I will enjoy it because I don'tlike you Im going to get you for what you've done".[5] On 10 April 2019, Ms Laing called the unlisted number for the victim'saddress. The victim's father answered. Ms Laing identified herself before stating shewas not a violent person but would hurt someone.[6] Between 4 February and 29 May 2019, Ms Laing posted friend requests andthreatening messages to the victim's mother's Facebook account. Those messagesincluded statements such as "I need to kill people" and " if I murder you stupidfamily Im not mad at all or bad people like you need to fucking die". On 29 May2019, Ms Laing also sent threatening messages to the victim's Facebook account,including: " a snap and you wanted all that I should give you a murder and then I'llfuck off".[7] Ms Laing was charged and bailed in regard to the above offences. While onbail, between 3 and 4 June 2019, she sent 13 messages to the mother's Facebookaccount that further threatened to murder the victims.District Court decision[8] Judge Phillips considered the ongoing impact this offending has had on thevictims and their family, and the lengths to which they have gone to try to evade MsLaing. He accepted the impact was significant given the "barrage of threatening,harassing and deliberate conduct" on behalf of Ms Laing, and was satisfied theoffending was premeditated.[9] The Judge then turned to consider the reports about Ms Laing's backgroundand medical condition. The report prepared under the Criminal Procedure (MentallyImpaired Persons) Act 2003 confirmed Ms Laing has Autism Spectrum Disorder, butshe was articulate and fully aware of the charges and their consequences. That report,along with the pre-sentence report, stated Ms Laing considered she had been wrongedby the victim and felt her punishment was excessive.[10] The Judge found the offending to be serious and of high gravity, towards thetop end of offending for both the harassment and threatening to kill charges. Heidentified the aggravating features as repeated threats of violence, offending whilst onbail and subject to sentence, the harm caused to the victims and premeditation. JudgePhillips adopted a starting point of one year and nine months' imprisonment on thethreatening to kill charge. He considered he could have set a starting point between18 months and two years for the harassment charges, noting they were representative,but uplifted the starting point by only one year for those charges. With regard tototality, as well as Ms Laing's letters to the Court and a prison report regarding her, hethen reduced the overall starting point to two and a half years.[11] For the fact of offending on bail, the Judge applied an uplift of two months,with a further two months for the fact of offending on sentence. His Honourconsidered Ms Laing's conviction history was "appalling" and he made a"conservative" uplift of three months for that factor.[12] The Judge accepted that Ms Laing has Autism Spectrum Disorder and has beendiagnosed with Asperger's Syndrome. He allowed a credit of 15 per cent for MsLaing's medical condition. He allowed a further 15 per cent for her late guilty plea.The end sentence was therefore two years and three months' imprisonment.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.2As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court'sdecision, a "court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles".3 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.4SubmissionsAppellant's submissions[14] For Ms Laing, Mr Westgate submitted Ms Laing's offending is similar to thatof repeated breaches of a protection order given the difficulty in fixing a starting pointwithout reference to her history. He noted it was essential to ensure her criminalhistory was not double-counted.[15] In regard to the starting point, Mr Westgate submitted the threatening to killoffending was not especially premeditated given the messages appeared to be a "flowof consciousness". He argued there was no specificity to the threats, no evidence theywere intended to be carried out, and they were not made in person. Mr Westgatereferred to a number of cases in arguing that a lower starting point should apply,including the following:(a) In Richmond v Police, the appellant sent three messages to the victim, hisformer partner, over the course of a week.5 They included phrases such as"CANT WAIT UNTIL YOU DIE", "you ganna get whats coming to you",2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Richmond v Police [2019] NZHC 2001."dead bitch walking" and "I coming for yah". The Court adopted a startingpoint of nine months' imprisonment.(b) In O'Connor v Police, the appellant entered the victim's house, threatenedto take her to the river and hang her, and then assaulted her.6 Mr Westgatesubmitted the Court considered a sentence of 12 months' imprisonment onthe threatening to kill and assault charges would be appropriate.7(c) In R v Sykes, the appellant was at a tangi with his family when hethreatened to kill two family members and smashed items at the house.8He pointed a pistol at the victim's head and said "I will fucking kill you"and "I'm going to kill you, I'm going to kill them". The Court adopted astarting point of 18 months on the charge of threatening to kill.[16] Mr Westgate submitted an appropriate starting point for the two charges ofthreatening to kill in the present case would be 12 months.[17] Mr Westgate argued it was artificial to consider the harassment chargeseparately, citing Warren v Police, in which the appellant was convicted of two chargesof criminal harassment and one of threatening to kill.9 Gendall J commented that thedifferent charges were "inextricably intertwined and there is no sensible basis todivorce the harassment and threatening to kill offending".10[18] Mr Westgate submitted the global starting point "ought to be in the region of30 months imprisonment, rather than the 40 months which was adopted". He referredto a number of cases to support his contention that a 40 month starting point wasexcessive.[19] The second submission for Ms Laing is that the Judge gave insufficient creditfor her medical condition. Mr Westgate argued that Ms Laing's obsessive behaviour,6 O'Connor v Police HC Wellington CRI-2008-485-13, 17 April 2008.7 At [30]. That submission neglects to mention there were also three lead charges of breaching aprotection order, and that the 12 month figure was to be cumulative on the sentence for thosecharges.8 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.9 Warren v Police [2015] NZHC 136.10 At [37].and therefore her offending, is clearly linked to her Asperger's Syndrome. He addedthat this disorder may make imprisonment more difficult for Ms Laing, which was notconsidered by the Judge. Mr Westgate referred to several decisions where a 20-30 percent discount was given in recognition of a defendant's Asperger's Syndrome, andsubmitted a 20 percent discount would be appropriate in this case.11Respondent's submissions[20] Mr Bernhardt, for the respondent, accepted that Judge Phillips' approach tosentencing was unconventional in that he seemed to adopt a starting point, loweredthat due to some personal mitigating factors, raised it for aggravating factors and thenagain lowered it for further mitigating factors. However, Mr Bernhardt submitted theoverall sentence was not manifestly excessive. He referred to a number of points insentencing when the Judge took a "consciously benevolent approach":(a) the Judge adopted a global starting point for the two threatening to killcharges, despite their relating to discrete periods of offending and differentvictims;(b) he uplifted the starting point by only 12 months for the harassment charge,despite finding it could have justified a starting point at or near themaximum of two years' imprisonment; and(c) he reduced the starting point by three months on the basis of totality andpersonal matters detailed in letters filed with the Court.[21] In response to the cases cited by Mr Westgate, Mr Bernhardt noted the majorityinvolved one-off (or similar) threats, whereas the present case involved an extendedand ongoing course of conduct. He contended the starting point Judge Phillips adoptedwas within range but at the higher end of the available range.[22] In regard to the discount for Ms Laing's medical condition, Mr Bernhardtsubmitted the 15 per cent discount combined with the three month reduction alreadyallowed was more than sufficient. He did not accept that a further allowance should11 Blackwood v R [2018] NZCA 215; Department of Internal Affairs v Wiremu [2017] NZHC 2415;and R v Waititi [2015] NZHC 1211.be made for the Judge not having explicitly referenced the difficulties Ms Laing willface in prison, saying that would have been clear to the Judge and was inherently builtinto the reduction.AnalysisStarting point[23] I consider Judge Phillips correctly identified the aggravating features of theoffending and the fact Ms Laing's conduct was very serious. I accept that none of thethreats were made in person, an aspect which has heightened the gravity of suchoffending in other cases. However, it is significant that Ms Laing sent a very largenumber of messages over an extended period of time; this was not a one-off threat.She called the parents' home address, making it clear to them that she knew wherethey lived. She made a great number of threats to kill both the victim and his mother.The victims have understandably felt very afraid and the effect of this offending onthem is significant.[24] The sentencing approach carried out by the Judge was somewhat unusual. Thatdoes not, however, mean the sentence was out of range. This Court must now applyMoses v R on appeal, in which the Court of Appeal has established a new sentencingmethodology; however, the question on appeal will always remain whether the endsentence imposed was manifestly excessive.12[25] The Judge chose to determine an overall starting point by adopting a startingpoint for the two threatening to kill charges and uplifting it to account for theharassment charge. There is no error in that approach. Other approaches may alsohave been appropriate, for example looking at the offending as a whole,13 or groupingthe offending based on the two different victims,14 but the approach taken by the Judgewas equally suitable.12 Moses v R [2020] NZCA 296.13 See Warren v Police, above n 9.14 See Green (aka Goldberg) v Police [2012] NZHC 3228.[26] Mr Westgate submitted the Judge had erred in adopting a starting point of 40months. I note that Judge Phillips in fact adopted an overall starting point of 30 months(two and a half years), albeit in an unorthodox manner. Mr Westgate's figure of 40months fails to take into account the totality discount and includes the uplifts forpersonal aggravating factors. I consider the Judge appropriately dealt with thoseseparately.[27] The Judge adopted a total starting point of two years and nine months beforereducing that by three months to account for totality and some personal mitigatingmaterial. In addition to the cases already referred to, the case Green (aka Goldberg) vPolice is helpful in determining whether this was within range.15 In that case, theappellant pretended to know the two victims, and contacted them by text messagesand letters which became increasingly threatening. He also contacted family membersof each victim. The messages continued for just over a week. The Court adopted astarting point of 17 months' imprisonment on each charge, making a total starting pointof 34 months.[28] I do not accept the submission that Green concerned significantly more seriousoffending than the present case. There are similarly two primary victims of MsLaing's offending, her harassment of the victims took place over a longer time periodand, most notably, included numerous threats of murder. Having considered Green aswell as a number of other cases cited by counsel, I am satisfied Judge Phillips' startingpoint was within range, even before it was lowered by three months for totality andmitigating material.Personal aggravating and mitigating factors[29] The Judge applied an uplift of seven months to account for Ms Laing havingoffended while on bail and subject to sentence, as well as her criminal history. Thisuplift was appropriate, and perhaps even generous, given Ms Laing's substantial listof convictions for threatening, harassing and abusive behaviour.15 Green (aka Goldberg) v Police, above n 14.[30] As recognised by the Judge, there is a clear connection between Ms Laing'sAsperger's Syndrome and her offending.[31] A detailed psychiatric report dated 1 October 2019 was obtained in the DistrictCourt.16 It explains Ms Laing acknowledged she is desperate to find someone whowill love and cherish her. When that does not happen, she becomes very angry andbehaves in a way that causes people distress. The report advises that she: continued to present with prominent emotional dysregulation which wasaccompanied by threats of violence and actual violence, and increasinglystalking-type behaviours resulting in contact with the Criminal JusticeSystem.[32] I am satisfied the 15 per cent discount was appropriate and not insufficient. MrWestgate referred to Blackwood v R in support of his submission that 20 per cent wouldbe justified; in that case, the appellant faced charges of blackmail, posting a harmfuldigital communication and intimidation.17 The Court of Appeal upheld a discount of20 per cent for the appellant's Asperger's Syndrome and borderline personalitydisorder due to the connection between those conditions and his offending, as well asthe resulting difficulties he may face in prison, and also to account for his youth. Incomparison to the current case, 15 per cent was an appropriate discount.[33] The three month discount Judge Phillips applied to the starting point was toaccount for totality as well as material in Ms Laing's letters to the Court, and a reportfrom the prison that she was progressing well in therapy. I believe that discount wasgenerous given the clear indications from the health assessor's report that Ms Laing isnot remorseful, believes the victim is to blame and her actions were entirely justified.Some small allowance may have been made for her engagement in rehabilitativetherapy, but it was not strictly necessary.[34] Ms Laing's positive engagement in therapy while subject to a sentence ofimprisonment does indicate there is potential for the sentence of imprisonment to alsobe rehabilitative. The information in the psychiatric report indicates Ms Laing needs16 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.17 Blackwood v R, above n 11.to recognise the harm and distress she causes, accept she is responsible for her actions,and not blame others or the justice system for the situation she is now in.[35] No issue is taken with the guilty plea discount. I agree it was appropriate.End sentence[36] Applying the new methodology in Moses, the end sentence I reach is betweentwo years three months and two years six months, depending on whether a credit isgiven for engagement with rehabilitation. Given the sentence imposed was two yearsand three months, it therefore cannot be said that sentence was manifestly excessive.Standing back and considering the offending as a whole, I am satisfied it was withinrange.Conclusion[37] The appeal is dismissed.Solicitors:J A Westgate, Barrister, DunedinCrown Solicitor's Office, Dunedin.