Laing v Police
[2020] NZHC 1875
•30 July 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2020-412-000013
[2020] NZHC 1875
BETWEEN KAREN ILYA LAING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 July 2020 Appearances:
J A Westgate for the Appellant
C J Bernhardt for the Respondent
Judgment:
30 July 2020
JUDGMENT OF NATION J
Introduction
[1] The appellant, Karen Laing, pleaded guilty to two charges of threatening to kill and one charge of criminal harassment.1 Judge Phillips sentenced her to two years and three months’ imprisonment. Ms Laing appeals that sentence on the basis the starting points were excessive and the Judge gave insufficient credit for her Asperger’s Syndrome.
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, s
306) and criminal harassment carries a maximum penalty of two years’ imprisonment (Harassment Act 1997, s 8).
LAING v POLICE [2020] NZHC 1875 [30 July 2020]
They went on one date together before the victim declined to see Ms Laing again. Ms Laing 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 release conditions not to possess, control or use a device capable of accessing the internet, as well as conditions not to contact the victims of her offending.
[3] Between 2 December 2018 and 8 March 2019, Ms Laing sent 297 unsolicited messages to the victim’s Facebook account, telephoned his workplace and left threatening and aggressive messages. Those communications form the basis of the charge of criminal harassment.
[4] Between 10 and 16 March 2019, Ms Laing sent 41 messages to the victim’s Facebook account, 21 of which included threats to murder him. An example of such a message is: “… my feelings are to murder you and I will enjoy it because I don’t like 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’s address. The victim’s father answered. Ms Laing identified herself before stating she was not a violent person but would hurt someone.
[6] Between 4 February and 29 May 2019, Ms Laing posted friend requests and threatening messages to the victim’s mother’s Facebook account. Those messages included statements such as “I need to kill people” and “… if I murder you stupid family Im not mad at all or bad … people like you need to fucking die”. On 29 May 2019, 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’ll fuck off”.
[7] Ms Laing was charged and bailed in regard to the above offences. While on bail, between 3 and 4 June 2019, she sent 13 messages to the mother’s Facebook account that further threatened to murder the victims.
District Court decision
[8] Judge Phillips considered the ongoing impact this offending has had on the victims and their family, and the lengths to which they have gone to try to evade Ms Laing. He accepted the impact was significant given the “barrage of threatening, harassing and deliberate conduct” on behalf of Ms Laing, and was satisfied the offending was premeditated.
[9] The Judge then turned to consider the reports about Ms Laing’s background and medical condition. The report prepared under the Criminal Procedure (Mentally Impaired Persons) Act 2003 confirmed Ms Laing has Autism Spectrum Disorder, but she 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 wronged by the victim and felt her punishment was excessive.
[10] The Judge found the offending to be serious and of high gravity, towards the top end of offending for both the harassment and threatening to kill charges. He identified the aggravating features as repeated threats of violence, offending whilst on bail and subject to sentence, the harm caused to the victims and premeditation. Judge Phillips adopted a starting point of one year and nine months’ imprisonment on the threatening to kill charge. He considered he could have set a starting point between 18 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 to totality, as well as Ms Laing’s letters to the Court and a prison report regarding her, he then 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 Honour considered 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 been diagnosed with Asperger’s Syndrome. He allowed a credit of 15 per cent for Ms Laing’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 Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
Submissions
Appellant’s submissions
[14] For Ms Laing, Mr Westgate submitted Ms Laing’s offending is similar to that of repeated breaches of a protection order given the difficulty in fixing a starting point without reference to her history. He noted it was essential to ensure her criminal history was not double-counted.
[15] In regard to the starting point, Mr Westgate submitted the threatening to kill offending was not especially premeditated given the messages appeared to be a “flow of consciousness”. He argued there was no specificity to the threats, no evidence they were intended to be carried out, and they were not made in person. Mr Westgate referred 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, his former 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 starting point of nine months’ imprisonment.
(b) In O’Connor v Police, the appellant entered the victim’s house, threatened to take her to the river and hang her, and then assaulted her.6 Mr Westgate submitted the Court considered a sentence of 12 months’ imprisonment on the 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 he threatened to kill two family members and smashed items at the house.8 He 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 a starting point of 18 months on the charge of threatening to kill.
[16] Mr Westgate submitted an appropriate starting point for the two charges of threatening to kill in the present case would be 12 months.
[17] Mr Westgate argued it was artificial to consider the harassment charge separately, citing Warren v Police, in which the appellant was convicted of two charges of criminal harassment and one of threatening to kill.9 Gendall J commented that the different charges were “inextricably intertwined and there is no sensible basis to divorce the harassment and threatening to kill offending”.10
[18] Mr Westgate submitted the global starting point “ought to be in the region of 30 months imprisonment, rather than the 40 months which was adopted”. He referred to a number of cases to support his contention that a 40 month starting point was excessive.
[19] The second submission for Ms Laing is that the Judge gave insufficient credit for 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 a protection order, and that the 12 month figure was to be cumulative on the sentence for those charges.
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 added that this disorder may make imprisonment more difficult for Ms Laing, which was not considered by the Judge. Mr Westgate referred to several decisions where a 20-30 per cent discount was given in recognition of a defendant’s Asperger’s Syndrome, and submitted a 20 percent discount would be appropriate in this case.11
Respondent’s submissions
[20] Mr Bernhardt, for the respondent, accepted that Judge Phillips’ approach to sentencing was unconventional in that he seemed to adopt a starting point, lowered that due to some personal mitigating factors, raised it for aggravating factors and then again lowered it for further mitigating factors. However, Mr Bernhardt submitted the overall sentence was not manifestly excessive. He referred to a number of points in sentencing when the Judge took a “consciously benevolent approach”:
(a) the Judge adopted a global starting point for the two threatening to kill charges, despite their relating to discrete periods of offending and different victims;
(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 the maximum of two years’ imprisonment; and
(c) he reduced the starting point by three months on the basis of totality and personal matters detailed in letters filed with the Court.
[21] In response to the cases cited by Mr Westgate, Mr Bernhardt noted the majority involved one-off (or similar) threats, whereas the present case involved an extended and ongoing course of conduct. He contended the starting point Judge Phillips adopted was within range but at the higher end of the available range.
[22] In regard to the discount for Ms Laing’s medical condition, Mr Bernhardt submitted the 15 per cent discount combined with the three month reduction already allowed was more than sufficient. He did not accept that a further allowance should
11 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 will face in prison, saying that would have been clear to the Judge and was inherently built into the reduction.
Analysis
Starting point
[23] I consider Judge Phillips correctly identified the aggravating features of the offending and the fact Ms Laing’s conduct was very serious. I accept that none of the threats were made in person, an aspect which has heightened the gravity of such offending in other cases. However, it is significant that Ms Laing sent a very large number 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 where they 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 on them is significant.
[24] The sentencing approach carried out by the Judge was somewhat unusual. That does not, however, mean the sentence was out of range. This Court must now apply Moses v R on appeal, in which the Court of Appeal has established a new sentencing methodology; however, the question on appeal will always remain whether the end sentence imposed was manifestly excessive.12
[25] The Judge chose to determine an overall starting point by adopting a starting point for the two threatening to kill charges and uplifting it to account for the harassment charge. There is no error in that approach. Other approaches may also have been appropriate, for example looking at the offending as a whole,13 or grouping the offending based on the two different victims,14 but the approach taken by the Judge was 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 40 months. 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 40 months fails to take into account the totality discount and includes the uplifts for personal aggravating factors. I consider the Judge appropriately dealt with those separately.
[27] The Judge adopted a total starting point of two years and nine months before reducing that by three months to account for totality and some personal mitigating material. In addition to the cases already referred to, the case Green (aka Goldberg) v Police is helpful in determining whether this was within range.15 In that case, the appellant pretended to know the two victims, and contacted them by text messages and letters which became increasingly threatening. He also contacted family members of each victim. The messages continued for just over a week. The Court adopted a starting point of 17 months’ imprisonment on each charge, making a total starting point of 34 months.
[28] I do not accept the submission that Green concerned significantly more serious offending than the present case. There are similarly two primary victims of Ms Laing’s offending, her harassment of the victims took place over a longer time period and, most notably, included numerous threats of murder. Having considered Green as well as a number of other cases cited by counsel, I am satisfied Judge Phillips’ starting point was within range, even before it was lowered by three months for totality and mitigating material.
Personal aggravating and mitigating factors
[29] The Judge applied an uplift of seven months to account for Ms Laing having offended while on bail and subject to sentence, as well as her criminal history. This uplift was appropriate, and perhaps even generous, given Ms Laing’s substantial list of 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’s Asperger’s Syndrome and her offending.
[31] A detailed psychiatric report dated 1 October 2019 was obtained in the District Court.16 It explains Ms Laing acknowledged she is desperate to find someone who will love and cherish her. When that does not happen, she becomes very angry and behaves in a way that causes people distress. The report advises that she:
… continued to present with prominent emotional dysregulation which was accompanied by threats of violence and actual violence, and increasingly stalking-type behaviours resulting in contact with the Criminal Justice System.
[32] I am satisfied the 15 per cent discount was appropriate and not insufficient. Mr Westgate referred to Blackwood v R in support of his submission that 20 per cent would be justified; in that case, the appellant faced charges of blackmail, posting a harmful digital communication and intimidation.17 The Court of Appeal upheld a discount of 20 per cent for the appellant’s Asperger’s Syndrome and borderline personality disorder due to the connection between those conditions and his offending, as well as the resulting difficulties he may face in prison, and also to account for his youth. In comparison to the current case, 15 per cent was an appropriate discount.
[33] The three month discount Judge Phillips applied to the starting point was to account for totality as well as material in Ms Laing’s letters to the Court, and a report from the prison that she was progressing well in therapy. I believe that discount was generous given the clear indications from the health assessor’s report that Ms Laing is not remorseful, believes the victim is to blame and her actions were entirely justified. Some small allowance may have been made for her engagement in rehabilitative therapy, but it was not strictly necessary.
[34] Ms Laing’s positive engagement in therapy while subject to a sentence of imprisonment does indicate there is potential for the sentence of imprisonment to also be rehabilitative. The information in the psychiatric report indicates Ms Laing needs
16 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 between two years three months and two years six months, depending on whether a credit is given for engagement with rehabilitation. Given the sentence imposed was two years and 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 within range.
Conclusion
[37]The appeal is dismissed.
Solicitors:
J A Westgate, Barrister, Dunedin Crown Solicitor’s Office, Dunedin.
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