Leatherby v The King
[2024] NZHC 296
•23 February 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-002
[2024] NZHC 296
BETWEEN CURTIS TIEPI LEATHERBY
Appellant
AND
THE KING
Respondent
Hearing: 20 February 2024 (via VMR) Appearances:
J C Hannam for Appellant
J M Woodcock for Respondent
Judgment:
23 February 2024
JUDGMENT OF CHURCHMAN J
[1] On 22 December 2024, Judge Greig sentenced the appellant,1 to three years imprisonment on three charges of male assaults female,2 one charge of assault with intent to injure,3 and one charge of strangulation.4
[2] The offending involved domestic violence by the appellant against his then partner on three separate occasions between June 2018 and August 2019.
[3] The appellant appeals his sentence on the basis that it is manifestly excessive. It is submitted that the starting point was too high, and an insufficient reduction was given for the plea of guilty. The appellant submits that a starting point of three years to three years six months is appropriate, rather than four years, and that the Court can allow a 10 per cent reduction for the plea of guilty, amounting to a total discount of
1 R v Leatherby [2023] NZDC 29179 [Decision on appeal].
2 Crimes Act 1961, s 194(b) — maximum penalty of two years.
3 Section 193 — maximum penalty of three years.
4 Section 189A — maximum penalty of seven years.
LEATHERBY v R [2024] NZHC 296 [29623 February 2024]
29.5 per cent being available. The appellant contends that a final sentence in the range of 25 months to 29 months results is appropriate.
[4] The Crown opposes the appeal. It says the sentence imposed was within range and available to the Judge.
The offending
[5] The charges relate to three separate incidents. Prior to the first incident, the appellant and the victim had been in a relationship for around two years. The relationship started when the victim was 18 and the appellant was 29. Sometime between June and September 2018, following an argument, the appellant removed the victim from the shower by her hair and feet and took her to the lounge and punched her in the stomach. The victim ran from the address, but was followed by the appellant who told her to get in the car. After she complied, they drove to a remote location, where the victim was removed from the car, and the appellant stood over her as she cried, threatening to beat her and leave her there.
[6] The second incident occurred in December 2018. The victim was driving the appellant after he had been drinking. The appellant accused the victim of cheating on him and when she denied this, he punched her in the head. The victim pulled over, got out of the car and started walking home. The appellant then got into the drivers’ seat and drove alongside her, telling her to get back in the car. She complied, and the appellant drove the car a short distance before pulling over. He then began to punch her in the back of the head, jaw and ribs. The appellant pulled the victim by her hair into his lap, putting her head under the steering wheel and started strangling her, yelling at her as he did so. After a time, he ceased strangling and punched her a couple of times, before resuming the strangulation and then punching her again. This went on for 10 minutes before police arrived and knocked on the car window. The appellant was then arrested, but the victim was too scared to tell police what had happened.
[7] The third incident occurred in August 2019. After another argument started, the appellant rushed at the victim and kicked her hard in the calf muscle, causing her to limp.
Decision on appeal
[8] In sentencing the appellant, the Judge stated that although the appellant had some previous convictions, since they were modest they would not impact his sentence.5 The Judge noted that the appellant’s probation report found he had a medium risk of reoffending but a high risk of causing harm to others, with a propensity for violence and a tendency towards violent, unhealthy relationships.6 The report also indicated the probation officer considered the appellant genuinely regretted what he had done.7
[9] The Judge also noted that the appellant’s cultural report showed he grew up witnessing alcohol fuelled violence from his father towards his mother, and therefore that this was learned behaviour.8
[10] Additionally, the Judge found there were aggravating features of the strangulation, including premeditation.9 The victim was also vulnerable in both being a woman and looking up to the appellant due to their relationship and age difference.10
[11] The Judge held the charges of strangulation and assault with intent to injure for the offending in December 2018 resulted in a starting point of three years.11 Adding on the two charges of assaulting a female for the offending between June and September which had a starting point of 9 months, and the assault in August 2019 which had a starting point of 3 months, this amounted to a total starting point of four year’s imprisonment.12
[12] Due to the fact the appellant failed to appear for trial and absconded for some eight months, resulting in him being arrested and brought to court, the Judge reduced the credit given for the guilty plea.13 The Judge noted the guilty plea was entered two years and nine months after the charges were laid and that this substantial delay meant
5 Decision on appeal, above n 1, at [9].
6 At [11].
7 At [16]–[17].
8 At [19].
9 At [24].
10 At [25].
11 At [26].
12 At [27]–[28].
13 At [29]–[30].
the victim had to prepare twice for trial. He concluded that, in these circumstances a discount of five per cent for the guilty pleas was all that was warranted.14 The Judge gave a further five per cent for remorse.15 Lastly, in factoring in the cultural report findings around the domestic violence the appellant witnessed as a child, the Judge gave a further sentence reduction of seven months.16
[13] The Judge consequently sentenced the appellant to three year’s imprisonment, alongside a protection order to prevent contact with the victim.17
Submissions
Appellant's submissions
[14] The appellant argues that the lead charge of strangulation falls within the moderate range set out in the guideline case of Shramka,18 and therefore a starting point of 30 months rather than 36 months is appropriate for the strangulation and assault with intent charges. He further submits that an uplift of six to eight months for the three s 194A assault charges is also inappropriate, as none of those offences individually are more serious than that in Shramka concerning the punch to the face requiring three stitches, which resulted in an uplift of four months. The appellant also refers to Miller v Police,19 where strangulation, injuring with intent, and assault with a weapon charges resulted in a moderate band starting point of two years five months.
[15] The appellant also states that the Judge’s criticism of how the defence withheld the guilty plea to retain negotiating power failed to appreciate that this is common practice, with the timing and entry of a guilty plea an important tool for the defence. He refers to Hessell v R20, where the Court held that even late guilty pleas will generate some systemic and social benefits, and that the timing of a guilty plea is only one of the circumstances to consider when deciding how much of a discount to give. The appellant argues that the Judge overlooked the fact that the plea saved the Court from
14 At [31]–[32].
15 At [33].
16 At [34].
17 At [35] and [37].
18 Shramka v R [2022] NZCA 299.
19 Miller v Police [2022] NZHC 2636.
20 Hessell v R [2010] NZSC 135; [2011]1 NZLR 607.
having to deal with a trial. He therefore submits the Judge can allow 10 per cent mitigation for the appellant’s guilty plea.
[16] The appellant submits that the reduction for the contents of the cultural report, at approximately 14.5 per cent, is appropriate and so he does not challenge it.
Respondent's submissions
[17] The respondent submits the sentence imposed was not manifestly excessive but was within range and available to the Judge. In terms of the starting point, the respondent refers to the guideline case of Shramka, and states the three-year starting point reflects both the impedes breathing and assault with intent to injure charges, as the appellant impeded the victim’s breathing on two distinct occasions, accompanied with punches to the head, jaw and ribs. This is then aggravated by the premeditation apparent where the appellant pursued the victim after she left the car, and the particular vulnerability due to the difference in age and size, as well as the restriction of the victim’s movement under the steering wheel of the car. Furthermore, there is the duration and extent of the offending with repeated blows to the victim’s head and body, and the overall physical and psychological harm to the victim. Alongside the three male assaults female charges, this results in an appropriate starting point of four years. This reflects the seriousness of the offending, the appellant’s culpability, and is consistent with sentencing authorities.
[18] In terms of the discount to be given for the guilty plea, the respondent submits that such discounts exist to acknowledge that a guilty plea creates a saving for the costs of prosecution and saves the victim from the emotional impact of the stress and uncertainty of court proceedings. By delaying the plea, for the length of time that the appellant did, these savings are materially diminished and consequently any benefit to the defendant must also diminish. The respondent points to the fact that the appellant only indicated he would plead guilty after he was remanded in custody after avoiding arrest for eight months, and that the victim had to prepare herself for trial three times. Counsel for the appellant had to prepare for trial twice, and Counsel for the respondent three times. The respondent submits the sentencing Judge properly accounted for these impacts on the finite resources of the criminal justice system. The respondent
also notes that the reduced discount for the guilty plea also accounted for the aggravating feature of the appellant’s failure to answer District Court bail.
[19] The respondent further submits that even if the Court considers the starting point too high, it does not meet the threshold of manifestly excessive required for the sentence to be overturned.
Approach to appeal
[20] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.21 The Court must dismiss the appeal in any other case.22
[21] In an appeal against sentence, an appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.23 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.24 An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.25
Analysis
Starting point
[22] Firstly, the Judge correctly identified that Mr Leatherby’s offending falls within the medium band identified by the Court of Appeal in Shramka v R.26 It similarly engages four aggravating factors, premeditation, vulnerability, aggravated violence, and enduring harm to the victim. Consequently, the starting point of three years for the strangulation and assault with intent to injure charges was appropriate.
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
22 Criminal Procedure Act 2011, s 250(3).
23 Tutakangahau, above n 21, at [36].
24 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 21, at [36].
25 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 21, at [32].
26 Shramka, above n 18, at [50]–[53].
In Miller v Police,27 relied on by the appellant, all that the Court found was that the sentence of two years and five months’ imprisonment was within the available range, not that this was at the higher end or an upper limit. There are also some material differences in that Miller concerned two incidents whereas this case concerned three, and there were not the same aggravating factors, such as significant age difference. As a result, Miller is not determinative.
[23] The uplifts for the three male assaults female charges were also within the range available to the Judge. The appellant’s argument that there should have been an uplift of six to eight months rather than 12 months due to the fact they are individually lesser than the singular punch to the face in Shramka that resulted in three stitches is unconvincing. As noted by the sentencing Judge, the incident between June and September 2018 where the victim was dragged by her hair and feet from the shower, punched, pursued and talked back into the car, driven out to a remote area and then threatened would have been terrifying for the victim. There is also the accumulation effect of three such incidents as opposed to only one in Shramka. The uplift of nine months was justified. It would be artificial to consider these charges individually and compare them to the one male assaults female charge in Shramka, as proposed by the appellant. The further uplift of three months for the assault in August 2019 is similarly within range.
Discount for guilty plea
[24] The Judge did not err in granting only a 5 per cent discount for the guilty plea. In Hessell v R, the Supreme Court made clear that the purpose of giving discounts for guilty pleas is to give recognition for the savings made in avoiding the costs of conducting a trial, and the benefits for the witnesses and victims who need not give evidence in a criminal trial.28 In this case, the benefits were much reduced by the fact that the appellant did not plead guilty until two years and nine months after the charges were first laid. This meant the victim and the prosecution had to prepare themselves for trial. The substantial cost savings that guilty pleas are supposed to elicit therefore did not eventuate in this case.
27 Miller, above n 19, at [8]–[9].
28 Hessell, above n 20, at [45].
[25] Contrary to the submissions of counsel, the discount available for an early guilty plea is not provided so as to give counsel a “bargaining chip” with the prosecution to encourage the prosecution to drop or reduce charges in return for a guilty plea or other charges. It is there solely for the purposes identified by the Supreme Court in Hessell.
[26] Counsel for the appellant submitted that the appellant was effectively being punished for deficiencies in the court system. I do not accept that. The availability of a discount for any early guilty plea is an incentive offered to a defendant. The defendant was charged on 20 January 2021. He did not enter a plea of guilty until 19 October 2023. A large part of the delay resulted from the appellant’s failure to attend for his scheduled trial on 3 October 2022 and his absconding for the next eight months. That is not a deficiency in the court system.
[27] The policy reasons why a discount for a prompt guilty plea articulated in Hessell v R are not met on the facts of this case. The five per cent discount awarded by the judge appropriately reflected the modest extent to which the appellant’s actions achieved the objectives of the legislation.
Conclusion
[28] The appellant has failed to establish that the sentence he received was manifestly excessive. Instead, it is clear it was within the range available to the Judge. The appeal is dismissed.
Churchman J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
0
5
0