Leach v Police - [2016] NZHC 1565

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-11 [2016] NZHC 1565

BETWEEN
KEAU JAN LEACH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 July 2016

Counsel:

A W Clarke for Appellant
F E Cleary for Respondent

Judgment:

11 July 2016

JUDGMENT OF CLARK J

Introduction

[1] Mr Leach was sentenced on 23 March 20161 on three charges of burglary,2 one charge of breaching the conditions of home detention,3 and one charge of taking a motor vehicle.4

[2] Mr Leach appeals his sentence of two and a half years imprisonment as being manifestly excessive.

Facts

[3] Mr Leach went to the address of a private property in Gisborne and gained access through a window. He took car keys and the Hyundai vehicle parked in the driveway. He drove the Hyundai to another Gisborne address, hitting a vehicle on

1      Police v Leach [2016] NZDC 5039.
2      Crimes Act 1961, s 231(1) (maximum penalty 10 years imprisonment).
3      Sentencing Act 2002, s 80S (maximum penalty 1 years imprisonment).
4      Crimes Act 1961, s 226(1) (maximum penalty 7 years imprisonment).

LEACH v NEW ZEALAND POLICE [2016] NZHC 1565 [11 July 2016]

the way, and then abandoned the stolen vehicle. He entered that address and stole further items: an Xbox, a PlayStation, cellphones and keys.

[4] At yet a further address Mr Leach jumped a fence. He walked into the house through an insecure door. A 15 year old girl was home alone. He rummaged through doors and cupboards. The young girl called the Police. Mr Leach grabbed a laptop from the lounge. The girl’s father returned after receiving a call from his daughter. Mr Leach was disturbed and jumped the fence. The laptop was recovered and he was subsequently apprehended.

District Court decision

[5] The Judge adopted a starting point of two and a half years imprisonment recognising as aggravating features of the offending:

(a) premeditation;

(b)a focus on private dwellings which inevitably involves the possibility of encounter and did, with the 15 year old (although not face to face);

(c) the consequential loss — a vehicle had been taken and damaged.

[6] The Judge uplifted his starting point by six months because the offences were committed while Mr Leach was serving a sentence of home detention imposed for acts of burglary. A further uplift of six months was in recognition of ten prior convictions for burglary and a history of dishonesty.

[7] Two months was deducted for Mr Leach’s youth. He is 18 years old. A further deduction of 10 months imprisonment for his guilty plea resulted in an end sentence of two and a half years imprisonment.

Grounds of appeal

[8] The appeal is brought on the basis that the sentence is manifestly excessive because:

(a) insufficient credit was given for the appellant’s youth; and

(b) the uplifts were excessive.

Submissions

[9] With regard to the uplifts Mr Clarke submitted that imposing a significant uplift for previous convictions and then uplifting again because the offending occurred while the appellant…

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.

Continue reading Leach v Police

Details

AGLC: Leach v Police [2016] NZHC 1565
Case: [2016] NZHC 1565
Decision Date: 11 July 2016

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Keau Jan Leach against his sentence of two and a half years imprisonment for multiple charges including burglary and breaching the conditions of home detention. Leach argued that his sentence was manifestly excessive, particularly in light of his age and the minimal discount applied to his sentence for being a youth offender. The court was required to decide whether the District Court's decision to uplift the sentence based on previous convictions and the fact that the offenses were committed while Leach was serving a sentence of home detention was justified, and if the discount for his youth was adequate.

The High Court held that while the starting point of two years and six months imprisonment was appropriate, the additional uplifts applied were justified under the Sentencing Act. The court acknowledged that the cumulative effect of the uplifts resulted in a significant increase to the sentence but found that this was permissible under the legislation. However, the court found that the discount for Leach's youth was insufficient. The court considered that although Leach was not a first-time offender, his age and potential for rehabilitation warranted a greater discount. The court concluded that a six-month discount for youth was appropriate and substituted a sentence of two years imprisonment.

The final orders of the court were to allow the appeal, quash the original sentence, and substitute a sentence of two years imprisonment.

Orders