Le-Noel v The Queen - [2015] NZCA 556

IN THE COURT OF APPEAL OF NEW ZEALAND

CA482/2015
[2015] NZCA 556

BETWEEN	KRISTINA ROSELIE DIANNE LE‑NOEL Applicant
AND	THE QUEEN Respondent

Hearing:	2 November 2015
Court:	Randerson, Lang and Clifford JJ
Counsel:	M W Ryan for Applicant Z R Johnston for Respondent
Judgment:	18 November 2015 at 3:30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The applicant, Kristina Le-Noel, pleaded guilty to one charge of theft of a motor vehicle, five charges of receiving stolen property and one charge of obstruction. On 20 May 2015 Ms Le-Noel was sentenced by Judge Andrée Wiltens to 30 months’ imprisonment.[1] On appeal, Whata J concluded that the combined starting point taken by the Judge was, by three months, too high and that the Judge’s discount for the mitigating factors of a guilty plea and other personal circumstances (23 per cent) was too low, and increased that to 30 per cent (15 per cent for her guilty plea and 15 per cent for other personal factors). On that basis, Whata J substituted a sentence of 26 months’ imprisonment.[2]
[1]R v Le-Noel [2015] NZDC 8779.
[2]Le-Noel v New Zealand Police [2015] NZHC 1850.
This is an application by Ms Le-Noel for leave to bring a second appeal against the sentence imposed on her.

Facts

Ms Le-Noel was sentenced for two separate instances of offending.
The first occurred in June 2012. That month, a Ms Rae Portman was reported missing. She was subsequently found to have been murdered. Shortly before she disappeared Ms Portman had left her car, a VW Passat, with a friend to be repaired. When that friend heard she was missing, he sent a public message through Facebook that he had Ms Portman’s VW and wanted to return the car to her family. Shortly after that, Ms Le-Noel made contact with the friend and, saying the car was hers, took it. She changed the registration of the vehicle into her own name and traded it in for $1,000. That was the basis for the charge of theft of a motor vehicle.
Ms Le-Noel entered a guilty plea to that charge on 15 December 2014, the day on which her three-day trial had been scheduled to begin.
The balance of the charges Ms Le-Noel faced related to a series of burglaries carried out by Ms Le-Noel’s partner and her brother. Ms Le-Noel and another woman, her brother’s partner, received proceeds of the burglaries and sold them. The money was then divided. More than $300,000 worth of goods was stolen, including heirloom jewellery that could not be replaced. When Ms Le-Noel was arrested and her house searched, she endeavoured to hide two cellphones. A charge of obstructing the police was laid. Ms Le-Noel entered guilty pleas to those charges on 17 March 2015.

Leave application

Second appeals against sentencing decisions are now provided for by s 253 of the Criminal…

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] NZCA 556
Decision Date: 18 November 2015 at 3:30 pm

CaseChat Overview and Summary

Kristina Roselie Dianne Le-Noel sought leave to bring a second appeal against her sentence for theft of a motor vehicle, receiving stolen property, and obstruction. Le-Noel was initially sentenced to 30 months' imprisonment by Judge Andrée Wiltens. The High Court of New Zealand reduced the sentence to 26 months on appeal, finding that the starting point was too high and the discount for mitigating factors was too low. The Court of Appeal was asked to grant leave for a second appeal based on the proposition that a miscarriage of justice may have occurred because the District Court did not consider a restorative justice process and Le-Noel could now offer $20,000 as reparation.

The Court of Appeal considered whether the appeal involved a matter of general or public importance or whether a miscarriage of justice may have occurred. The Court noted that the District Court had ordered restorative justice to be considered when Le-Noel entered her guilty plea, and the victim's mother declined to participate. The Court was not persuaded that a miscarriage of justice had occurred in this regard. The Court also considered Le-Noel's offer of reparation. While there were cases where offers to pay reparation made after sentence had been taken into account on appeal, the Court was satisfied that no question of a miscarriage would arise if leave was not granted based on the indication of reparation that may now be available. The Court also declined leave to raise a new ground of appeal regarding the discount for Le-Noel's guilty plea.

The Court of Appeal was satisfied that no miscarriage of justice had occurred or may occur unless this appeal was heard. Therefore, Le-Noel's application for leave to bring a second appeal against her sentence was declined.

Orders