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 $450. On 21 May, Ms Leaf went back to the gym and stole an iPhone, wallet, bank cards and keys. Ms Leaf used the keys to take a Holden car worth $24,000.

[11]   On 30 May 2016, Ms Leaf went to Anytime Fitness and stole car keys. She used them to take an Audi car worth $17,500. That afternoon, Ms Leaf used one of the 16 May cards to buy $68 worth of cigarettes.

[12]   On 31 May and 5 June 2016, Ms Leaf went to two service stations using the Suzuki and Audi cars, and filled each with petrol—without paying.

[13]   On 8 June 2016, Ms Leaf entered the Salvation Army church and removed a handbag. But, the victim’s son retrieved it. The same day, Ms Leaf entered the World Mission church. There, she stole a Samsung tablet worth $500.

2      Counsel and the Judge analysed the offences as two sets: those in what I call set II being part of set I (even though they came after the sentence indication), and my set III being their set II.

[14]On 9 June 2016, Police recovered the Suzuki car.

[15]   Consequently, set I involved five burglaries, two thefts, two unlawful takings, and one offence each of receiving stolen property and using a document for pecuniary advantage.

Set II

[16]   On 20 November 2016, Ms Leaf went into a shop and stole the owner’s iPhone worth $1,300.

[17]   On 13 May 2017, Ms Leaf stole a little over $84 worth of petrol from a petrol station.

[18]   As observed earlier, Ms Leaf was remanded in custody some time between May and December 2017. She was then pregnant.

Set III

[19]   On Christmas day 2017, Ms Leaf complained of pregnancy-related pain. She was admitted to hospital. Ms Leaf was there guarded by two officers who, at some stage, left her handcuffed to the bed. Ms Leaf escaped somehow (the summary does not explain how she managed to remove the handcuffs).

[20]   On 8 January 2018, Ms Leaf removed car keys from an unattended bag at a Work and Income office, and used them to take a Holden car worth $12,000.

[21]   On 11 January 2018, Ms Leaf stole almost $93 worth of petrol for the Holden car. That afternoon she caught the attention of Police. Ms Leaf failed to stop and drove dangerously. Police pursuit was abandoned because of risk. Later that day, Ms Leaf unlawfully entered another car and gave Police false details when spoken to.

[22]   In summary, Set III involved an escape from lawful custody, unlawful taking of a car, a failure to stop, dangerous driving, unlawfully getting into a car, theft of petrol, provision of false information to an enforcement officer and driving while forbidden.

Judge’s Ronayne’s approach

[23]   As observed, the Judge adopted Judge Jelas’ sentence indication. His Honour made no adjustment for the set II offences, with the result these had no effect on penalty.

[24]   The Judge adopted a global starting point of two years and 11 months for the set III offences. The Judge treated the lead offence in this mix as the escaping charge, for which he identified a starting point of two years’ imprisonment. The Judge ameliorated the global starting point by six months for totality, and then made two further discounts: five months for Ms Leaf’s personal circumstances, and 25 percent (six months) for Ms Leaf’s guilty pleas.

[25]   The Judge made the resulting sentence of 18 months’ imprisonment cumulative on the 27-month term foreshadowed by Judge Jelas; hence the end sentence of four years and one month imprisonment.

A minor point: discount for mitigating features in relation to set I

[26]   Judge Jelas discounted the anticipated sentence for this set by 20 percent on the assumption Ms Leaf would plead guilty. Her Honour left open the possibility of a discount for remorse. Ms Leaf contends Judge Ronayne should have revisited the question of remorse and ameliorated Judge Jelas’ indication because of her age.     Ms Leaf was 23 when sentenced, but 21 before Judge Jelas. Judge Jelas provided some allowance for Ms Leaf’s age by curtailing an uplift for previous convictions—

Ms Leaf already had an extensive record for dishonesty.3

[27]   There is an obvious difficulty with this argument. Ms Leaf’s further offending—sets II and III—vitiated any prospect of discount for remorse and age that might otherwise have been available for the set I offences.   As will be recalled,     Ms Leaf committed two thefts on bail while awaiting sentence in relation to set I, later escaped custody in relation to both sets, and then committed a further series of dishonesty offences, all while on the run.

3 See the discussion at [37].

Error in relation to set III?

[28]   Ms Leaf’s primary contention is this aspect of her sentence went awry. She submits a two-year starting point for an offence of escaping lawful custody appears to be without precedent. Ms Leaf also invites attention to diminished culpability in relation to this offence, an argument Ms Iggulden helpfully summarised this way in her written submission:

The appellant gave birth to a child in 2015 while she was incarcerated. That child was uplifted by Oranga Tamariki and placed with the appellant’s mother. The appellant had requested that the child not be placed with her mother due to her mother’s drug use. Subsequently the appellant’s mother was killed in a car accident while driving under the influence.

On 25 December 2017 the appellant was at Middlemore Hospital, heavily pregnant. During the night she was able to slip out of her hand cuffs and leave the hospital. The appellant was trying to run away and hide and have her baby in hiding. She was fearful that her baby would be placed with her whanau, those same people who failed to protect her from the sexual abuse when she was a child.

While she has been in custody the appellant received trauma counselling for the historical sexual abuse for the seven months prior to her sentencing.

When the appellant escaped custody she took the opportunity, which presented itself when she was unobserved, to do what she could to protect her unborn child. She was concerned that her child would be placed with her family, who had failed to protect her from sexual abuse over a five-year period when she was a child.

Although there were alternative ways for the appellant to protect her unborn child, her actions need to be viewed in the context of a scared, vulnerable young woman. They also need to be viewed against the appellant’s history with Oranga Tamariki and their placement of one of her children with a family member that she thought was inappropriate. She was ill-equipped to respond appropriately.

[29]   For the Police, Ms Montgomery contends this aspect of the sentence was “stern, but available”. Ms Montgomery emphasises the ultimate question is not how the sentence was constructed, but whether it was too long.

[30]   The offence of escaping lawful custody has attracted little appellate attention, most likely because it is often accompanied by more serious offending; for example, with a related assault upon a prison guard or Police officer, or a later one on a former partner when the offender is on the run.

[31]   In Awatere v Police,4 the defendant escaped twice in quick succession: once from the courthouse, and a second time from hospital while in custody at Rimutaka Prison. Each attracted a cumulative term of imprisonment of six months. Both were upheld on appeal.

[32]   In Police v Tawhai,5 the defendant was arrested during a bail check—he was on bail. The defendant asked to say goodbye to his girlfriend. He then fled. A starting point of nine months’ imprisonment was upheld.

[33]   The Judge’s selection of a two-year starting point is not far removed from half of the available maximum penalty (of five years’ imprisonment), and unsupported by authority.6 Ms Leaf’s submission of diminished culpability vis-à-vis idiosyncratic circumstance is also sound. So, the Judge’s starting point in relation to this offence was too high, perhaps by as much as a year. However, it does not follow set III’s  global starting point was too high.

[34]   The most serious offence in this set was the unlawful taking of the Holden car, an offence punishable by a maximum penalty of seven years’ imprisonment.7 No guideline judgment exists in relation to unlawful takings, but High Court authority is plentiful. I analysed some in Wood v Police, and concluded:8

All this suggests a single unlawful taking charge can give rise to a starting point of at least 18 months’ imprisonment, if the offence has a significant aggravating feature or features; see Gurnick. If a defendant unlawfully takes a car and attempts to evade Police in a chase, typical global starting points range between 18 and 20 months’ imprisonment; see O’Sullivan, Ratahi and Edwards. But, an especially bad constellation can attract more; see Bell. If a defendant unlawfully takes several cars, or takes one and engages in other similar dishonesty, a starting point of two and a half years’ imprisonment or more may follow; see Gibbon, Taki and Singh.

[35]   Ms Leaf evaded Police in a chase (three days after taking the car). She also committed other acts of dishonesty (getting into another car with a view to taking it, and theft of petrol for the Holden), all after having escaped custody. Ms Leaf also

4      Awatere v Police [2015] NZHC 1374.

5      Police v Tawhai HC Wellington CRI-2011-485-47, 27 July 2011.

6      Crimes Act 1961, s 120.

7      Crimes Act, s 226(1).

8      Wood v Police [2018] NZHC 1629 at [24].

drove while forbidden, misled an enforcement officer and committed the two thefts comprising set II. This constellation is consistent with the higher starting point identified in Wood, and justified the global starting point adopted by the Judge, albeit for reasons other than those given by his Honour.

Separate discount for remorse?

[36]   Ms Leaf’s remaining submission is the Judge ought to have afforded separate discount for remorse in relation to set III. Ms Leaf participated in a restorative justice conference, wrote a letter of apology to the petrol station owner, and offered to pay reparation from funds received on her mother’s death. Ms Iggulden submits Ms Leaf has turned a corner: she now acknowledges an addiction to methamphetamine, and related harmful behaviours.

[37]   The Judge gave Ms Leaf full credit for her guilty pleas, but was sceptical her remorse was genuine. Even before these offences, Ms Leaf had an extensive record. As at April 2016, Ms Leaf had seven convictions for theft; three for unlawfully taking a car; two for burglary; five for shoplifting; two for failing to answer bail; two for dangerous driving, as well as one conviction for each of: using a document; causing loss by deception; giving false details; obstructing Police; driving while disqualified; driving without a licence; failing to stop; breaching release conditions; breaching community work; breaching supervision; refusing to give a blood specimen; and assault. It follows sets I, II and III were but more of the same.

[38]   Given all this, the Judge was entitled to be sceptical about remorse, and make no discrete allowance for it.

Sufficient deduction for totality?

[39]   Ms Leaf did not ask this question, but I have given the Judge’s obligation to provide for totality.   As observed, the Judge did so by six months, a reduction of    17 percent from the starting point.  Greater allowance can be imagined, say,  up to  25 percent, or almost nine months. But, there is no prescription in this area; a nine- month discount would have had little effect on the sentence because of the other discounts (for Ms Leaf’s personal circumstances and guilty pleas); and set III involved

a distinct suite of offences committed after an escape from custody. So, there was an obvious need for denunciation. The totality principle does not operate to confer immunity on a defendant for recidivist offending.

Conclusion

[40]   Judge Ronayne did not commit reversible error when sentencing Ms Leaf. The global starting point for set III was available, albeit by different methodology than that employed. Ms Leaf’s two other complaints are without substance. In reaching this conclusion, I acknowledge the sentence is significant, particularly for a young female defendant with distressing personal circumstances, who, one hopes, may yet reform. However, I end as I began: Ms Leaf has been something of a one-person crime wave.

[41]The appeal is dismissed.

……………………………..

Downs J