LEACH v NEW ZEALAND POLICE [2016] NZHC 1565

LEACH v NEW ZEALAND POLICE [2016] NZHC 1565 [11 July 2016]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYCRI-2016-416-11[2016] NZHC 1565BETWEEN KEAU JAN LEACHAppellantAND NEW ZEALAND POLICERespondentHearing: 7 July 2016Counsel: A W Clarke for AppellantF E Cleary for RespondentJudgment: 11 July 2016JUDGMENT OF CLARK JIntroduction[1] Mr Leach was sentenced on 23 March 20161 on three charges of burglary,2one 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 on1 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).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 alaptop 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. Afurther 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 Clarkeaccepted that the appellant's offending history justified some uplift the extra year ofimprisonment 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 ofhis 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-countingthat 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 andappropriate (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 andsix 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 inerror 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 featuresof the appellant's past offending and his current offending whilesubject 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 subject5 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 threeyears 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.11The case law in this area is intensely fact specific. A discount may radically affect the sentence. At other times the discount may be minimal:12What 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 aborderline "spree". I tend to agree. This is a generous concession to7 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 thiscase by the appellant's explanation for his offending: that having absconded fromhis 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 havetheir 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 thecommunity from the appellant's penchant for theft but there is a proper basis for notyet 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 AppellantCrown Solicitor, Gisborne for Respondent14 Sentencing Act 2000, s 8(h).15 Section 8(i).16 Section 8(g).