Leaf v Police - [2018] NZHC 3209

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000304

[2018] NZHC 3209

BETWEEN
AWHINA MARY LEAF

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 December 2018

Counsel:

FJ Iggulden for Appellant

GEW Montgomery for Respondent

Judgment:

7 December 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 7 December 2018 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
FJ Iggulden, Auckland.
Crown Solicitor, Auckland.

LEAF v POLICE [2018] NZHC 3209 [7 December 2018]

The appeal

[1] Judge R G Ronayne sentenced Ms Awhina Leaf to a term of four years and one month imprisonment after she committed a raft of offences between May 2016 and January 2018, including burglary, theft, receiving stolen property, unlawfully taking cars, and escaping lawful custody.1 As will become apparent, Ms Leaf was something of a one-person crime wave. The Judge structured his sentence by adopting a sentence indication of Judge J Jelas in relation to some of Ms Leaf’s 2016 offences, to which he added time for the balance of Ms Leaf’s offending in 2016, 2017 and 2018.

[2] Ms Leaf acknowledges Judge Ronayne could have approached his task any number of ways, but contends her sentence is manifestly excessive, largely because the Judge adopted an excessive starting point on the charge of escaping lawful custody.

A brief chronology

[3]The chronology is important.

[4] Judge Jelas gave her indication on 15 September 2016. Her Honour said she would likely impose a term of two years and seven months’ imprisonment if Ms Leaf pleaded guilty to the charges: set I. Ms Leaf did so four days later. Sentencing was scheduled for 5 December 2016. Ms Leaf was remanded in custody but bailed on 11 November 2016.

[5] On 20 November, Ms Leaf committed the first of two thefts in set II. Sentencing did not occur in December for reasons that remain unclear, but Ms Leaf was remanded in custody on 3 December. She was re-admitted to bail in March 2017. Ms Leaf committed the second set II theft in May 2017. She was remanded in custody sometime thereafter. Exactly when is unclear, but it must have been before Christmas day (2017), for, that is when Ms Leaf escaped.

[6] Ms Leaf was apprehended on 11 January 2018. By then, she had committed the remaining offences in set III.

1 Police v Leaf [2018] NZDC 16037.

[7]Judge Ronayne sentenced Ms Leaf on all charges on 1 August 2018.

Offence sets

[8]As foreshadowed, Ms Leaf’s offending is best understood as three sets:2

(a)Set I: the offences governed by Judge Jelas’ indication.

(b)Set II: the thefts committed while awaiting sentence for the set I offences.

(c)Set III: the offences from 25 December 2017, when Ms Leaf escaped custody.

Set I

[9]Between 3 May and 5 June 2016, Ms Leaf received a stolen Suzuki car worth

$27,000.

[10] On 16 May, Ms Leaf entered a Les Mills gym, went to the women’s locker room and stole items worth…

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 Leaf v Police

Details

AGLC: Leaf v Police [2018] NZHC 3209
Case: [2018] NZHC 3209
Decision Date: 7 December 2018

CaseChat Overview and Summary

In Leaf v Police, the appellant, Ms Awhina Mary Leaf, challenged the excessiveness of her four-year and one-month imprisonment sentence, imposed for a series of offences including burglary, theft, receiving stolen property, unlawfully taking cars, and escaping lawful custody. The appeal arose from the sentencing decision made by Judge Ronayne, who structured the sentence by adopting a sentence indication provided by Judge Jelas for some of Ms Leaf’s 2016 offences and added time for the remaining offences committed in 2016, 2017, and 2018.

The central legal issues the court had to address were whether the sentence was manifestly excessive and if the starting point adopted for the offence of escaping lawful custody was appropriate. Additionally, the court needed to determine if the sentence adequately accounted for the totality principle and if there should have been a separate discount for remorse in relation to the set III offences.

The court found that while the starting point for the offence of escaping lawful custody was unsupported by authority and may have been too high, the global starting point for the set III offences was justified. The court noted that the most serious offence in set III, unlawful taking of a car, could attract a starting point of at least 18 months' imprisonment. Furthermore, the court concluded that the judge was entitled to be sceptical about Ms Leaf's genuine remorse given her extensive criminal history. The court also found that the judge's six-month reduction for totality was within an acceptable range and did not find any reversible error in the sentence.

In conclusion, the appeal was dismissed, and the sentence was upheld as appropriate given Ms Leaf's extensive and persistent criminal conduct.

Orders