Le-Noel v Police
[2015] NZHC 1850
•6 August 2015
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 RespondentJudgment:
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 were involved in taking other people’s property to the tune of more than $300,000 worth of goods. You must have known what was going on, you cannot possibly maintain, as apparently you have told the pre-sentence report writer, that you were poor. You had money to burn; you were busy selling things all the time to buy more things. I do not accept this notion that you had no idea what was going on.
[4] The Judge also referred to the impact of the burglaries and that Ms Le-Noel did not co-operate with the police and tried to hide some of the items from the police. The Judge further noted that the receiving charges basically related to 12 months’ worth of offending and that the guilty plea for this offending was late, that is in March before a trial scheduled for June.
[5] The Judge considered the sentencing notes for Mr Sturch. Mr Sturch was charged with six counts of burglary and six counts of receiving and the Judge started with a starting point of five years nine months’ imprisonment. Mr Sturch had a number of previous convictions.
[6] The Judge also referred to Mr Le-Noel, the appellant’s brother, noting that Mr Le-Noel was still young and in respect of 12 charges of receiving, two burglary charges and one obtaining by deception, the Judge adopted a starting point of three years’ imprisonment.
[7] The Judge described the appellant’s offending as gross dishonesty and adopted a starting point of three years together with an uplift for the obstruction of three months. The Judge then observed that on a totality basis the starting point was
39 months’ imprisonment.
[8] The Judge referred to Ms Le-Noel’s two previous convictions, but did not consider that they were relevant. The Judge referred to the appellant’s age and that she is trying to better herself through study. He acknowledged that the appellant has cut herself off from the bad influence of Mr Sturch and that she is trying to put the interests of her three children first. As to guilty plea, he concluded that the plea was not given at an early stage.
[9] Having regard to those matters, the Judge found that the least restrictive outcome that was available in the circumstances was an end term of 30 months’ imprisonment.
[10] There was also reference to a reparation offer, but he did not consider that was indicative of true remorse and that the sum in any event was paltry.
Jurisdiction
[11] This is an appeal against sentence. I may allow an appeal against sentence if for any reason there was an error in sentence imposed on conviction and a different sentence should be imposed.2 It is now well settled that the basis for allowing an appeal against sentence did not change on the introduction of s 250 of the Criminal Procedure Act 2011.3
Submissions on behalf Ms Le-Noel
[12] Mr Meyer submits that the sentence is manifestly excessive having regard to the following factors:
(a) A starting point of 30 months (not 39 months) for the offending would be more in keeping with comparable case law.
(b)Such a starting point would achieve parity with the co-defendant, Mr Le-Noel who had a starting point of 36 months for 12 charges of receiving, two of burglary and one of obtaining by deception.
(c) Discounts for personal factors were not applied.
(d)An uplift of three months for the obstruction charge was manifestly excessive, given that the charge carries a maximum sentence of three
months’ imprisonment.
2 Criminal Procedure Act 2011, s 250.
3 Tutakangahau v R [2014] 3 NZLR 482 (CA) at [26]-[27].
(e) The Judge failed to have regard to the offer of reparation – the vehicle had a value of $33,000 and the proceeds from its sale would not have been paltry as the Judge found.
[13] Mr Meyer also referred to a letter to the Court from the appellant’s mother outlining the nature of the relationship between the appellant and the principal offender Mr Sturch. Against that background, he says that it is inaccurate to describe the appellant as being a significant participant in the offending. He says that the appellant was in an abusive relationship and that the actions while criminal cannot be said to be at the level of either Mr Sturch or Mr Le-Noel. No account was given of the appellant’s previous good character.
Crown submissions
[14] Mr McMullan submits that:
(a) A starting point of 39 months, while stern, was within the available range.
(b)The sentencing Judge while not doing so in an orthodox way, adequately took into account mitigating factors personal to the appellant and her guilty pleas by reducing the starting point by 23 per cent.
(c) Disparity between Ms Le-Noel and her co-offender’s sentence is justified on the basis of disparate offending and personal circumstances.
(d) The sentence imposed represents the overall criminality of Ms Le-
Noel’s offending and her personal circumstances.
Assessment
Disparity?
[15] Mr Le-Noel’s offending is numerically worse than Ms Le-Noel’s offending. He faced 12 charges of receiving and two burglary charges. She faced five receiving charges and one theft charge. However, the value of the items received by Ms Le- Noel was substantially greater than the value of goods received by Mr Le-Noel. Her level of culpability was also similar or marginally higher given her proximity to Mr Sturch’s offending and the proceeds gained by her from it. Her culpability is also increased by the theft charge. This was distinct offending that could have itself justified a cumulative sentence. I do not consider therefore that a starting point of 36
months for both of them to be grossly disparate.4
Within range?
[16] Various cases helpfully cited to me suggest Andrews v R5 and R v Tua6 broadly provide “book ends”7 for the purpose of start points for moderately serious to serious receiving offending. The criminal activity in Andrews was described as “close to the worst of its kind”, involving 4 counts of receiving and one count of
burglary (which occurred while Mr Andrews was due to face trial on the receiving charges). A starting point of five years for the receiving offending was adopted and approved on appeal. By contrast a starting point of 18 months was adopted in Tua for one count of receiving cars valued at $50,000 (though the Judge noted that but for the Crown’s submissions, he would have adopted a two year starting point).
[17] In light of this broad frame, a starting point of three years is not obviously out of range, having regard also to the starting points adopted in other moderately
serious receiving offending cases.8 Furthermore, the value of the goods stolen (in
4 As to the requirement for gross disparity see: R v Rameka [1973] 2 NZLR 592 (CA); Singh v R
[2013] NZCA 245.
5 Andrews v R [2012] NZCA 61.
6 R v Tua [2014] NZHC 3049.
7 A description employed by Mr McMullin in reference however to Andrews v R, above n 4 and Edmonds v R [2011] NZCA 415. This latter case involved one count of receiving stolen property and one count of conspiring with a co-offender over a period of five months to receive stolen property. A starting point of two years and six months was adopted.
8 R v Sutton HC Hamilton CRI-2007-019-7228, 23 April 2009, involving a starting point of three and half years for six counts of receiving proceeds in the order of $50,000. Cribb v Police HC
excess of $300,000) and the lengthy duration of the offending (12 months) justify a starting point of three years.
[18] For completeness, I acknowledge Mr Meyer’s concern that the judge misdescribed the nature of Ms Le-Noel’s relationship with Mr Sturch. But even so, the scale of the offending justified a starting point in the order of three years.
Uplift?
[19] The uplift for the obstruction charge, being the maximum sentence, was manifestly excessive. The obstruction charge related only to attempting to hide two cell phones during a police search. A firm starting point of three years was sufficient to reflect the totality of the offending.
Discounts
[20] A discount of 23 per cent for a combination of guilty pleas and personal circumstances was, in my view, manifestly inadequate. For my part, relevant personal factors include:
(a) The presentencing report stated that Ms Le-Noel was assessed as having a low risk of re-offending and appeared genuinely remorseful
– I have no reason to dispute this;
(b) Ms Le-Noel is effectively a solo parent of three young children, aged
11, 2 and 1;
(c) The pre-sentence report recommended, if available, home detention, community work;
(d)Ms Le-Noel’s mother’s letter refers instances of abuse during Ms Le- Noel’s pregnancy, which coincided with the period of the receiving
offending. This might explain in part Ms Le-Noel’s behaviour. More
Hamilton CRI-2010-419-46, 8 July 2010, with a starting point of two and half years for seven charges of receiving stolen property valued at excess of $75,000.
relevantly, Ms Le-Noel’s relationship with Mr Sturch has ended, removing a major factor underlying the offending and enhancing the prospect of rehabilitation.
[21] Taken together, I am of the view that a lengthy sentence of imprisonment would have a disproportionately severe impact on Ms Le-Noel and her children.9
Conversely, Ms Le-Noel is a good candidate for rehabilitation and a low risk to the public. In these circumstances, and having particular regard to the need to deter and Ms Le-Noel’s rehabilitation, I consider that a discount of 15 per cent for personal factors is warranted.
[22] The Judge did not consider it was appropriate to discount the sentence to account for the offer to pay reparation. The Judge did not make a formal order for reparation, instead he made an order allowing the police to sell the seized car and pay the proceeds to the victims. This appears to have been made possible by the appellant disclaiming any interest in the car. Section 10 of the Sentencing Act makes offers to make amends mandatory considerations at sentencing. I consider that the apparent consent to the sale of the car amounts to an offer to make amends. But it is abundantly clear that the car was obtained from the proceeds of Ms Le-Noel’s criminal activity. I do not consider it is necessary to allow any further discount for this offer.
[23] This means that after adjusting for mitigating factors other than the guilty plea, I reach an adjusted starting point of 30.6 months.
[24] As to guilty plea, Mr Meyer advised that the explanation for the timing of the plea related to the negotiation in relation to the number of the charges. This provides some though not total justification for the delay. A further 15 per cent discount is warranted.
[25] In the result, based on my assessment of the relevant factors, a sentence of imprisonment 26 months is warranted, comprising a starting point of 36 months, less
9 As to the relevance of effects on the children see: R v Harlem (2001) 18 CRNZ 582.
a discount of 15 per cent for remorse and personal factors and a further 15 per cent for the guilty plea.
[26] As the end sentence exceeds 24 months, the appellant is not eligible for home detention. Regrettably the severity of the offending precluded that outcome.
Result
[27] The appeal is allowed. The sentence of 30 months’ imprisonment is set aside and a sentence of 26 months is imposed.
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