BETWEEN ANDREA LEOTA Appellant AND NEW ZEALAND POLICE Respondent

[2023] NZHC 916

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2023-483-000003

[2023] NZHC 916

BETWEEN

ANDREA LEOTA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 April 2023
Appearances:	J H Waugh for the Appellant W J Harvey for the Crown
Judgment:	24 April 2023
Reissued:	8 August 2023

JUDGMENT OF GRICE J (APPEAL AGAINST SENTENCE)

Introduction

[1]    Ms Andrea Leota was convicted of assault with a weapon,1 driving whilst disqualified (third time or subsequent),2 and receiving stolen property (over $1,000).3 On those charges, Ms Leota was sentenced to 17 months’ imprisonment.4 She appeals this sentence now on the grounds that the Judge erred in:

(a)assessing that imprisonment was the least restrictive sentence that met the purposes and principles of sentencing; and

1      Crimes Act 1961, s 202C — maximum penalty five years’ imprisonment.

2      Land Transport Act 1998, ss 32(1)(c) and (4) — maximum penalty two years’ imprisonment or

$6,000 fine.

3      Crimes Act, ss 246 and 247(a) — maximum penalty seven years’ imprisonment.

4      Leota v Police [2023] NZDC 4210.

LEOTA v NEW ZEALAND POLICE [2023] NZHC 916 [24 April 2023]

(b)failing to consider whether home detention was an appropriate sentence.

[2]    Ms Leota is 33 years old and a single mother of two boys. The older is in her care. Ms Leota has been on bail pending the hearing of this appeal.

Background

[3]    I outline the events leading to the assault with a weapon charge first. Ms Leota and the victims are known to each other. At approximately 7 pm on 8 April 2022,  Ms Leota and her associates arrived at the victims’ address in Whanganui. Ms Leota and her associates pushed past a second victim in order to gain entry into the house. The first victim was in the kitchen with her children when Ms Leota confronted her about an incident that happened earlier at the address involving one of Ms Leota’s relatives.

[4]    The confrontation resulted in a fight. Ms Leota approached the first victim and punched her in the face with a knuckle duster. An associate then hit the first victim in the lower back with a bat. Ms Leota continued to confront the first victim, while an associate hit the second victim in the face, causing him to fall on the ground. Ms Leota and her associates then left the address.

[5]    The first victim sustained bruising to her face and head, as well as a lower back injury. The second victim had a cut on his right eyebrow.

[6]    The driving whilst disqualified and receiving charges were as a result of a separate incident. The most recent disqualification (prior to this offending) had occurred on 26 August 2022 at Whanganui when Ms Leota was stopped by Police and suspended from driving until 25 November 2022 for excess demerit points.

[7]    The victim of this charge parked his locked car outside his house in Whanganui sometime between 3 and 4 November 2022. It was subsequently stolen. At approximately 10.25 pm on the night of 22 November 2022, Ms Leota drove the victim’s car onto the forecourt of a petrol station in Whanganui. Police noticed that the front and rear of the car had two different plates attached and approached Ms Leota

to question her on this. She attempted to drive away from Police but following her being yelled at by name she stopped the car. Police queried the number plates and came to the realisation that the car was stolen. Ms Leota admitted she had a suspended licence.

District Court decision

[8]    Ms  Leota  entered  guilty  pleas  for  all  charges.  On  8   March   2023, Judge Marinovich considered all three charges and sentenced Ms Leota to 17 months’ imprisonment, as well as 12 months’ disqualification from driving.5

[9]    His Honour noted that Ms Leota had a number of drug-related charges, but only one conviction for violent offending (namely common assault) dating back to 2012. The bulk of the other offending in Ms Leota’s history related to breaches of sentences imposed upon her, which were mainly sentences of supervision.6

[10]   The Judge then acknowledged the victim impact statements. The victim who had his car stolen requested $400 in reparations. The second victim of the assault noted that he had not been affected by the incident. The first victim, however, said that she was still experiencing physical difficulties from the assault and had to move out of the address as she no longer felt safe.7

[11]   His Honour then moved to consider the pre-sentence report on Ms Leota and her personal circumstances. He noted that Ms Leota had acknowledged her struggle with impulse control and had also previously completed a Living Without Violence programme. The Judge noted she was also a single mother of two young boys, the youngest of whom lived with his paternal grandmother.8

[12]   His Honour recorded that although Ms Leota was currently unemployed, she intended to find employment as a mechanical engineer, and that she had appeared

5      Leota v Police, above n 4.

6 At [8].

7      At [9]–[11].

8      At [13]–[14].

regretful for her offending and made it known that she would like to engage in restorative justice processes.9

[13]   Turning to the sentence, the Judge noted both sides’ agreement that an 18-month starting point for the assault charge with a 12-month uplift for the other charges was appropriate, but a sentence of less than 24 months could be arrived at on the facts, opening up more options for Ms Leota.10

[14]   The Judge was particularly concerned with the assault charge. He noted that children were present at the time of the offending, and that there was an element of premeditation and home invasion. The use of the weapon was also concerning.11 In relation to the receiving charge, the Judge noted that receivers of stolen cars “play an important part in the car conversion underworld”.12

[15]   The Judge considered that two years was an appropriate starting point for the offending.13 No uplift was given for previous offending, given there was only one previous conviction for violent offending.14 The full discount of 25 per cent, or six months, was given for the early guilty plea.15 For the offer to participate in restorative discount the Judge reduced the sentence by a further month, bringing the sentence down to 17 months’ imprisonment.16

[16]   The Judge considered whether there were other options available in terms of the least restrictive sentence in the circumstances. However, he noted some previous convictions had resulted from breaches of community-based sentences and considered that the least restrictive sentence appropriate in these circumstances was a period of imprisonment.17

9      At [12]–[14].

10 At [15].

11     At [18]–[19].

12 At [20].

13 At [21].

14 At [22].

15 At [23].

16     At [24]–[25].

17 At [25].

Submissions

Appellant's submissions

[17]   Mr Waugh for Ms Leota submits the Judge erred in considering that imprisonment was the least restrictive sentence in this case. He notes the Judge did not provide reasons as to why home detention would not meet the purposes and principles of sentencing. Mr Waugh says that home detention, which itself is a significant sentence and can serve the purposes of denunciation and deterrence, would have been the most appropriate in this case, particularly given Ms Leota’s lack of previous violent offending and the supportive and rehabilitative aspects of a home detention sentence.

Respondent's submissions

[18]   The Police submit that the Judge was entitled to conclude that imprisonment was the most appropriate sentence, given the gravity of the offending, and that it occurred only four months after the completion of a previous rehabilitative sentence.

[19]   Mr Harvey submits that the discretion not to commute the sentence to home detention was a decision available to the Judge. He further points to Ms Leota’s history of failure to comply with supervisory conditions in this respect.18 The Police submit that the Judge adequately considered Ms Leota’s history, PAC report and personal circumstances, and that the end sentence was not manifestly excessive.

Approach on appeal

Sentence appeals

[20]   Sentence appeals are brought under s 250 of the Criminal Procedure Act 2011. An appeal against a sentence is considered as an appeal against the exercise of a discretion. For Ms Leota to be successful in this appeal, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different

18 These were five separate convictions on multiple charges from 2012–2020, including breach of intensive supervision conditions, failing to answer to District Court bail, breaching community work, breaching a separate sentence of supervision, and breach of community detention.

sentence should be imposed.19 If these factors are not satisfied, the Court must dismiss the appeal.20

[21]   The approach on appeal remains determining whether or not the end sentence is “manifestly excessive”.21 The Court’s focus is on the final sentence imposed rather than the method by which the  sentence  was  reached.22  In  Tutakangahau  the  Court of Appeal commented that the “claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts”.23

Relevant law

[22]   The Court must not impose a sentence of imprisonment unless it is satisfied, first,  that  the  sentence  is  being  imposed  for  a  purpose  contained  in  s  7  of   the Sentencing Act 2002, secondly, that the purposes cannot be achieved by a sentence other than imprisonment, and thirdly, that no other sentence would be consistent with an application of the principles contained in s 8 of the Sentencing Act.24

[23]   Pursuant to s 15A of the Sentencing Act, the Court can impose a period of home detention where it is satisfied that the purposes for which the sentence is being imposed cannot be achieved by a less restrictive sentence, and the Court would otherwise sentence the offender to a short-term sentence of imprisonment, being two years or less. Ms Leota is therefore eligible for home detention. The maximum period of home detention that can be imposed is 12 months.25

[24]   In Fairbrother v R, the Court of Appeal suggested there are two reasons where a sentence of imprisonment should be quashed and substituted by a period of home detention:26

19     Criminal Procedure Act 2011, s 250(2).

20     Criminal Procedure Act, s 250(3).

21     Tutakangahau v R [2014] NZCA 279 at [33].

22 At [33].

23     At [38]–[39].

24     Sentencing Act 2002, s 16.

25     Sentencing Act, s 80A(3).

26     Fairbrother v R [2013] NZCA 340 at [29].

(a)where the sentencing Judge has incorrectly assumed that the offence category lies beyond a sentence of home detention; and

(b)where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.

[25]   However, the Court of Appeal went on to say that this does not mean that a short-term period of imprisonment should always be commuted to one of home detention.27 Rather, the sentencing Judge must make a “considered and principled choice” between the two forms of sentence and identify which is the least restrictive taking into account all the purposes of sentencing.28

[26]   For instance, in Waru v Police, Baragwanath J—in sentencing Mr Waru  to  21 months’ imprisonment for assaulting the victim in with a glass bottle as a weapon— stressed that the case was not appropriate for home detention, despite Mr Waru’s expressed remorse and participation in  a  restorative  justice  process,  because  of Mr Waru’s sustained history of violent offending.29 By contrast, in Kihi v Police, Whata J considered the sentencing Judge in that case erred in failing to consider the possibility of home detention when sentencing Mr Kihi to 18 months’ imprisonment for charges of breach of protection order, assault of a child, wilful damage, male assaults female and assault with a weapon.30

Discussion

[27]   There is no issue taken with the starting point adopted, nor the uplifts or discounts provided. I am satisfied these were appropriately applied. The Judge made no error in that respect

[28]   The Judge in his careful analysis noted that methamphetamine had been an issue for Ms Leota throughout the years. However, he pointed out that she did not have many convictions for violence. He noted that in 2012 there was a common

27 At [30].

28     At [30]–[31].

29     Waru v Police HC Tāmaki Makaurau | Auckland CRI-2006-404-393, 6 Tīhema | December 2006 at [19].

30     Kihi v Police [2017] NZHC 2883.

assault. The rest had been a mixture of methamphetamine-related offending, breaches and the sentences imposed were mainly supervision.  That was a sentence which   Ms Leota had received on the number of occasions.

[29]   The Judge noted that between 2016 and 2019 Ms Leota had remained offence free. The report states that the criminal history had been considered, but as Mr Harvey pointed out, Ms Leota had been imprisoned from December 2016 serving a sentence of three years imprisonment. I was unable to ascertain from the records before me when she was released. However the next offending recorded was in January 2020 which related to careless driving.

[30]   As noted in Ms Leota’s PAC report, she has two children, the younger one aged seven years resides with his paternal grandparent. Ms Leota reports having difficulties with her 12-year-old son who lives with her, noting that he is beginning to become subject to gang influences and engaging in criminal behaviour. At the time the PAC report was prepared, Ms Leota did not know where her son was, and was in the process of locating him.

[31]   I agree with the Judge’s decision not to impose a community-based sentence and in particular, in the  form of a sentence of supervision.  The reason  for that is  Ms Leota’s history of non-compliance with such sentences. The Judge was rightly concerned about whether a sentence of supervision would be effective or appropriate in those circumstances.

[32]   However Mr Waugh for Ms Leota urges on me that there was inadequate consideration as to whether the principles and purposes of sentencing could be adequately served by a period of home detention. He says there was inadequate consideration of the countervailing purposes of sentencing, in the terms outlined in Fairbrother.31

[33]   I agree in that respect that there was not adequate attention paid as to whether the sentence of home detention would meet the purposes under the Sentencing Act, including deterrence and denunciation.

31     Fairbrother v R, above n 26, at [29].

[34]   In this case one important factor was the effect of a period of imprisonment on Ms Leota’s children. While this will particularly affect the child in her care it will likely have significant effects on the child living with his grandparent as well.

[35]   The provisions of the United Nations Convention on the Rights of the Child have been seen as imposing “mandatory relevant considerations in sentencing [the defendant]” of the negative impacts of a parent’s imprisonment on a child.32

[36]   A recent Supreme Court decision has reiterated that the Sentencing Act provides support for the consideration of children under the sentencing framework, and the Convention affirms this.33 In Philip v R, in which the defendant had a close relationship with his young child, the Supreme Court unanimously agreed with the High Court that a discrete discount was available given that the defendant was an important presence in his young child’s life.34 The Court rejected the Crown’s submission that such discounts should be rare. Rather, what was required was a consideration of all the relevant circumstances, including the child’s best interests.35 The Chief High Court Judge has also recently spoken extra judicially about the need to take into account the interests of children in sentencing, especially when sentencing women.36

[37]   The situation for women is that they are likely to serve their sentences some distance from home. In addition the research suggests that women are less likely to have whānau visit them than men prisoners are. Where an offender is on the cusp between imprisonment and home detention the interests of the children are a particularly important consideration.37

[38]   Home detention is not an “easy” option. In the present case it presents an alternative and less restrictive option which promotes rehabilitation and is in the interests of the children, while also serving the sentencing purposes of denunciation

32     Honeybun v Police [2022] NZHC 3445 at [10].

33     Philip v R [2022] NZSC 149 at [52].

34 At [53].

35 At [56].

36     Hon Justice Susan Thomas (Chief High Court Judge) “Women in Prison” (address to District Court Triennial Conference, Rotorua, 2 March 2023).

37     R v Maru [2023] NZHC 790 at [82]–[84].

and deterring the offending. It will have the effect of ensuring that Ms Leota is in a position to be near her children and take steps to parent them.

[39]   Commuting a sentence of imprisonment with a sentence of home detention is not a mathematical exercise. Home detention can only be imposed for a maximum period of 12 months. The sentence of home detention must nevertheless meet the purposes and principles of sentencing. In the circumstances, considering the sentence of  17  months’  imprisonment  currently  imposed,  a  sentence  of  10  months’ home detention adequately balances the need to impose the least restrictive sentence possible against the purposes and principles of sentencing.

Result

[40]   Ms Leota currently resides at an address in Whanganui. The PAC report indicated that the address is suitable to support an electronically monitored sentence. It indicated that at the time the report writer had not heard from Oranga Tamariki as to any concerns but it would update the court in a memorandum if there were any concerns. None have been raised.

[41]   I believe that it is in the best interests of Ms Leota and her whānau if she can serve her sentence within her community, where she can support her son.38 The appeal is allowed and Ms Leota’s sentence of 17 months’ imprisonment is substituted with a sentence of 10 months’ home detention (electronically monitored). This sentence adequately serves the sentencing purposes of denouncing and deterring the offending while allowing Ms Leota to remain present for her children.

[42]The order disqualifying Ms Leota from driving for 12 months stands.

[43]Special conditions:

(a)To attend an assessment for a non-violence programme as directed by a Probation Officer. To attend and complete any counselling, treatment

38     In line with s 8(h) and (i) of the Sentencing Act.

or programme as recommended by the assessment as directed by and to the satisfaction of the Probation Officer.

(b)To attend an assessment for a Departmental programme as direction by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(c)To attend an assessment for any other treatment, counselling or programme as directed by a Probation Office. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

Grice J

Solicitors:

Crowley Waugh Barristers and Solicitors, Whanganui