Le-Noel v Police - [2015] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-155 [2015] NZHC 1850

BETWEEN
KRISTINA ROSELIE DIANNE

LE-NOEL Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2015

Appearances:

B Meyer for Appellant
S S McMullan for Respondent

Judgment:

6 August 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
6 August 2015 at 10.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Meredith Connell, Crown Solicitors, Auckland
Copy to:
B Meyer, Auckland

LE-NOEL v NEW ZEALAND POLICE [2015] NZHC 1850 [6 August 2015]

[1] The appellant, Kristina Rosalie Dianne Le-Noel, pleaded guilty to: (a) five charges of receiving (over $1,000);
(b) one charge of theft; and

(c) one charge of obstruction.

[2] The maximum sentence for the receiving and theft charges is seven years each. Ms Le-Noel was sentenced to an end sentence of 30 months’ imprisonment and now appeals that sentence as manifestly excessive.

Background

[3] Judge G A Andree Wiltens described the background offending in the following way:1

[1] Ms Le-Noel, there is two files in Court. One involves the theft of a motor vehicle. The owner of that motor vehicle was the subject of a murder, she being murdered…You said it was your vehicle which is completely untrue. You then took hold of that vehicle and you sold it and used the proceeds to purchase another vehicle. So you used that vehicle as if it was your own. …

[2] Following that, you became involved with your partner and your brother and another woman. It seems that your partner Mr Sturch, your brother Mr Le-Noel were burglars and that you and the other woman received the proceeds of their burglaries and sold them. The idea being then that the four of you would share in the proceeds and purchase things that you wanted. Mr Sturch it seems wanted methamphetamine. You were more interested in other things but as was pointed out in Mr Sturch’s sentencing, this was not simply a matter of his needs occasioning these burglaries, because from the proceeds of the burglaries two motor vehicles were purchased and you have agreed this morning that one of them, which the police have recovered, that is a Nissan GYZ708, may be sold by the police and used to defray their expenses and to then use the balance of that money to pay reparation. I do not know what that vehicle is worth, I do not know how much reparation there will be but that demonstrates to Judge Ronayne that Mr Sturch was not simply helping himself to other people’s property because of his dire need to consume more methamphetamine and there is no

1 R v Le-Noel [2015] NZDC 8779.

suggestion here that you were involved in that in any way. So your
involvement matches Mr Sturch’s in that it is sheer greed.

[3] You say that you had no idea what was really going on but the reality here is that the four of you…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 1850
Decision Date: 6 August 2015

CaseChat Overview and Summary

Kristina Le-Noel appeals against the sentence of 30 months’ imprisonment imposed on her by Judge Wiltens, after she pleaded guilty to receiving, theft, and obstruction. The Crown argues that the sentence is justified on the basis of the appellant's level of culpability and personal circumstances. Le-Noel argues that the sentence is manifestly excessive, due to the starting point being miscalculated, the uplift for the obstruction charge being excessive, and insufficient discount being applied for personal factors and her offer of reparation.

The court considered whether the starting point of 39 months was within range for the offending, whether the uplift for the obstruction charge was excessive, and whether there was inadequate discount for personal factors and the offer of reparation. The court found that a starting point of three years was appropriate for the offending, but the uplift of three months for the obstruction charge was excessive. The court also found that there was inadequate discount for personal factors and the offer of reparation, which would have resulted in a sentence of 26 months’ imprisonment.

The court allowed the appeal and set aside the sentence of 30 months’ imprisonment, imposing a sentence of 26 months’ imprisonment.

Orders