Ledgerwood v R

[2017] NZHC 822

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000010 [2017] NZHC 822

BETWEEN

COREY PAUL LEDGERWOOD

Appellant

AND

THE QUEEN Respondent

Hearing:	26 April 2017
Appearances:	B P Kilkelly for Appellant F Biggs for Crown
Judgment:	28 April 2017

JUDGMENT OF DUNNINGHAM J

[1]      The  appellant  pleaded  guilty  to,  and  was  convicted  of,  one  charge  of attempting to pervert the course of justice,1  and two charges of breach of parole conditions.

[2]      The  appellant  was  sentenced  to  a  total   of  two   years  nine  months’

imprisonment on the three charges.

[3]      The appellant appeals that sentence on the grounds that it was manifestly excessive. The appeal is advanced on the grounds that:

(a)       the end sentence of two years nine months was manifestly excessive; (b)      the starting point was too high;

(c)       the uplifts, totalling nine months, were excessive.

1      Crimes Act 1961, s 117.

LEDGERWOOD v THE QUEEN [2017] NZHC 822 [28 April 2017]

The District Court decision

[4]      The appellant was sentenced by Judge Crosbie on 25 January 2017.2

[5]      The Judge outlined the facts of the offending, which involved the defendant communicating on Facebook with the complainant in an assault charge against the appellant’s brother.  The appellant communicated on Facebook with sent messages to the complainant describing him as a “snitch” and a “nark” and sending veiled threats if he gave evidence in Court.

[6]      The Judge noted the appellant’s explanation that he had sent the messages out of frustration.  However, he emphasised the seriousness of the lead charge which he said “strikes at the very heart of the criminal justice system and everything we do in this place”.3   The Judge also noted the appellant’s particular offending was not in the most serious of cases, but it was “moderately so”.4

[7]      The  Judge  emphasised  that,  in  light  of  the  principles  and  purposes  of sentencing:5

[t]oday  is  about  holding  you  to  account  and  promoting  in  you  some responsibility…

[t]oday is also about deterrence, sending a specific message to you because there is just too much of you coming back.

[8]      The Judge then referred to authority cited to him by counsel which satisfied him that a starting point of around three years was appropriate.  To that starting point of three years, the Judge uplifted by a total of nine months to reflect the appellant’s previous convictions, the fact he offended while on parole, and the separate charges of breach of parole conditions, which involved consuming alcohol, and associating with a victim of his offending.

[9]      An end sentence of two years nine months’ imprisonment was reached after affording the appellant a full 25 per cent credit for early guilty pleas.

2      R v Ledgerwood [2017] NZDC 1466.

3 At [5].

4 At [16].

5      At [8] and [10].

Principles on appeal

[10]     Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.6

[11]     If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly  excessive”  that  the  Court  should  interfere  with  the  exercise  of  the Judge’s discretion.

[12]     The focus on most appeals is thus on the end sentence. In Tutakangahau v R,7

the Court of Appeal held that:8

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

Analysis

Starting point on the lead charge

[13]     There is no tariff case for the offending of this kind, which can manifest in various ways, and some cases are more analogous than others.9    However, as the appellant acknowledges, in cases such as this where there is an attempt to dissuade a witness from giving evidence, the Courts have recognised that deterrence and denunciation will be the overriding sentencing principles.10  This reflects the fact that such actions strike at the heart of the justice system. As the Court of Appeal in

M (CA469/2013) v R said:11

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

8 At [36].

9      Miller v R [2014] NZCA 382.

10 At [11].

11     M (CA469/2013) v R [2013] NZCA 385 at [9].

…any attempt to disturb the process of the administration of justice is to be deplored and in all but the most exceptional of circumstances, to be met with a moderately lengthy term of imprisonment.

[14]     However, with particular reference to H v R,12  and Zurich v Police,13  where end sentences of one year six months were imposed, the appellant argues that a starting point in the range of two and a half years’ imprisonment would have been appropriate.  In sentencing, the Judge considered these two cases but distinguished both on the following grounds; the first because it involved threatening conduct within the Courtroom which was consequently under the control of the Court, and the second because the defendant and the victim were in a relationship and this was a large factor in the offending.  I also note that, in Zurich, the starting point was two and a half years’ imprisonment in any event.

[15]     The Judge considered, as do I, that the case of Miller v R was more analogous to this offending.14     It involved writing a letter to the former partner of the man awaiting trial, while the defendant was in prison, in order to dissuade her from giving evidence in Court.  While she ultimately gave evidence, she was then taken into a witness protection programme and had to begin a new life elsewhere under an assumed identity.  In that case a starting point of three and a half years was adopted

and was upheld on appeal.   I accept that the nature of the offending was similar. However, in this case there were several communications rather than a single communication, although I consider the threats in Miller were more direct and had more significant consequences.

[16]     The appellant submits it is relevant that, in the meantime, his brother had pleaded guilty following a sentence indication, and no trial will eventuate.  I accept this means the impact on the victim is less than in Miller, but given the primary purpose of sentencing is denunciation and deterrence, I consider this fact has little

bearing on sentencing.

12     H v R [2016] NZCA 101.

13     Zurich v Police CRI-2010-483-18, HC Wanganui, 30 March 2010, Millar J.

14     Miller v R, above n 9.

[17]     In my view, this was a moderately serious example of such offending, and so a starting point of a little under half the maximum sentence of seven years, was open to the Judge and cannot be said to be excessive.

The various uplifts

[18]     The Judge then applied three uplifts of three months each.

Uplift for previous conviction

[19]     The  first  was  for  previous  convictions  which  included  drink  driving, aggravated robbery and other violence, false pretences and non-compliance with sentences.   I consider these convictions have relevance to the current charge, both because they gave some credibility to the threats made to the victim, and because the non-compliance offences were relevant to the offending involving breaches of parole conditions.

[20]    No real objection was raised to the uplift of three months for previous convictions, although the Crown suggested a higher uplift was open to the Judge.

Uplift for offending while on parole

[21]     The Judge also applied an uplift of three months for offending while on parole.   Counsel for the appellant disagrees with the Judge’s statement that it was accepted that an uplift of three months was required, as he disputes making that concession.  However, whether or not the Judge was under a misapprehension on this count, the Judge was entitled to take into account this aggravating factor, with or without a concession from counsel.

[22]     The  respondent  says  that  a  discrete  uplift  for  offending  on  parole  was necessary  and,  whether  it  could  have  been  slightly  less  (as  the  appellant’s submissions implicitly suggest) is of no moment, given the Court’s obligation to focus on the end sentence and because the uplift for previous convictions could justifiably have been higher.

[23]     I accept that an uplift was warranted for the fact the offending occurred while on parole.   The three month uplift was not out of range, in and of itself, though subject to the overall assessment of the totality of the sentence imposed.

Uplift for breach of parole charges

[24]     The appellant recognises that the Judge was entitled to uplift the starting point on the lead charge for the breach of parole condition charges which reflected separate offending.  However, he contends that in the circumstances, three months was excessive, and that an uplift of only one month should have been applied.  These were the appellant’s first convictions of their kind, and were relatively minor and, on their own, might not have attracted custodial sentences.

[25]     However, as the respondent reiterates, the appellant has a significant previous criminal history, including non-compliance with Court orders and conditions.  It does not follow that he would be treated as a “first time” offender merely because the charges are unique.  The maximum sentence for such a charge is one year and there are two charges here.   As the respondent pointed out, in Maaka v R, the Court imposed a two month sentence for a single breach of a parole condition.15   However, in that case, I note that the breach was of a condition imposed for the express purpose of protecting the victim from further violence at Mr Maaka’s hands and the

charges he faced were for assaulting her in direct contravention of that condition.  It is  also  not  clear  how  that  was  reflected  in  an  uplift,  given  that  he  received  a combined uplift of four months to reflect both his criminal history and the fact the offending was in breach of his bail and release conditions.

[26]     In my view, though, there is some disparity between the three month uplift imposed on the sentence for the breach of parole conditions, with the one month concurrent sentences imposed on each of those charges.   While I accept that, understandably, less thought is given to the sentence imposed on charges which are to be served concurrently with a lead offence, and which therefore will not alter the total time served, I consider it is not rational to uplift a sentence to reflect those

charges by more than the sentence length imposed for those charges.  In my view, in

15     Maaka v R [2014] NZHC 2035 at [6].

light of the one month concurrent sentence imposed for the breach of parole conditions, the uplift to the lead sentence should have been no more than that.

Totality

[27]     While I have taken issue with one minor aspect of the sentencing process, that is not the ultimate focus of the Court on appeal.  The question is whether the end sentence is manifestly excessive.  Here, there is an effective three year nine month sentence which, with a 25 per cent discount for guilty plea, is reduced to two years and nine months’ imprisonment, (although on my calculation, a 25 per cent discount would have been closer to two years and 10 months’ imprisonment).  If, as I have suggested, the starting point was reduced to three years and seven months to reflect the smaller uplift for the breach of parole condition charges, the end sentence, with a

25 per cent discount, would have been two years eight months and one week.  I am satisfied  that  the difference between  that  sentence and  the sentence  imposed  of two years nine months is modest and to allow the appeal would be merely tinkering.

Result

[28]     Accordingly, the sentence of two years and nine months, looked at in totality, is not manifestly excessive.   Rather, it was within range and fairly reflected the totality of the offending.

[29]     The appeal is therefore dismissed.

Solicitors:

Brian Kilkelly, Barrister, Dunedin

Crown Law, Wellington