Leef v Police
[2019] NZHC 3372
•18 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-490
[2019] NZHC 3372
BETWEEN EDWARD LEEF
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 December 2019 Appearances:
H Croucher for Appellant M Beattie for Respondent
Judgment:
18 December 2019
JUDGMENT OF WALKER J
This judgment was delivered by me on 18 December 2019 at 10.30 am Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
LEEF v NEW ZEALAND POLICE [2019] NZHC 3372 [18 December 2019]
Introduction
[1] Edward Leef pleaded guilty and was sentenced to 18 months' imprisonment for the following charges:1
(a)male assaults female;2
(b)assault with intent to injure;3
(c)unlawfully taking a motor vehicle;4 and
(d)theft (between $500 and $1,000).5
[2] The only issue on appeal is whether Judge Skellern in the Manukau District Court was wrong not to convert the sentence to one of home detention.
Facts
[3] The majority of the offending concerns violence by the appellant against his ex-partner of two-and-a-half years.
Male assaults female
[4] On 16 May 2018, the appellant and the victim were at home and got into a dispute. While she was holding their baby, the appellant held her tightly and bit her on the nose for about 20 seconds. The victim was not injured, but she had two small red marks at the top of her nose. The appellant initially denied the allegations and told Police the victim was suffering from a mental health episode. After this incident, the 19-month-old baby was removed from the care of the victim and the appellant.
1 Police v Leef [2019] NZDC 21723
2 Crimes Act 1961, s 194(b). Maximum penalty is two years' imprisonment.
3 Section 193. Maximum penalty is three years' imprisonment.
4 Section 226(1). Maximum penalty is seven years' imprisonment.
5 Section 219 and 223(c). Maximum penalty is one year imprisonment.
Assault with intent to injure
[5] On 2 June 2018, the appellant and the victim had been drinking and were again involved in an argument.
[6] The appellant snapped a mop he was holding and used the handle to hit the victim on the right-side of her head behind her ear. He continued to strike her repeatedly with the mop handle several times, connecting with her head, neck, back and shoulder. The appellant grabbed the victim's hair in one hand and forced her to the ground. He dragged her by her hair and punched, kicked and kneed her multiple times to the head and body. The victim was close to losing consciousness and suffered deep bruising.
Unlawfully taking a motor vehicle and theft from a car
[7] In June 2019, the appellant was employed at Delta Civil Limited. On 30 June, the appellant took a vehicle transport trailer and six batteries (worth $100 each) from a work site based at his home address.
District Court Decision
[8] The appellant was sentenced by Judge Skellern on 30 October 2019, taking the following approach:
(a)A starting point of 20 months' imprisonment.
(b)An uplift of six months for the other offending.
(c)A further three-month uplift for the appellant's previous convictions and one month for offending while on bail.
(d)A discount of 20 per cent for the appellant’s s 27 report.
(e)A discount of 25 per cent for plea.
[9]This left an end sentence of 18 months' imprisonment.
[10] The Judge noted that the appellant has 39 previous convictions, seven being breaches of protection orders and three being family violence assaults. She referred to the victim impact statement of the appellant’s ex-partner, in which the appellant was described wearing the victim down mentally and emotionally. She noted that in the pre-sentence reports, the appellant said he did not know the victim was bi-polar and had a lot of insecurities “until it was too late”. The Judge described the appellant’s attitude in the reports as showing “a real ambivalence as to who was at fault here”. The Judge noted the pre-sentence report recommended home detention. The Judge also discussed in detail the appellant’s s 27 report.
[11] On the issue of home detention, the Judge acknowledged the submission from the defence counsel it would enable the appellant to continue to work, and would sufficiently serve the purposes of deterrence and denunciation. One-on-one counselling was proposed to meet the appellant's "victim blaming" comments in the pre-sentence report.
[12] However, the Judge concluded that home detention would not satisfy the purposes and principles of sentencing. She described the assaults as “brutal, mean attacks” and stated:
You yourself have identified a particular vulnerability with your victim. There is no reason whatsoever that she should be blamed in this regard. The seriousness of the attack, the protracted nature of it, and the harm done to her, is not sufficiently addressed at all by an electronically-monitored sentence.
Approach to Appeal
[13] The Criminal Procedure Act 2011 sets out that a first appeal court must allow an appeal if satisfied that:6
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[14] This court must point to an error “of the requisite character” made by the District Court, either in the Judge’s reasoning or shown by additional material
6 Criminal Procedure Act 2011, s 250.
considered on appeal.7 The sentence does not have to be ‘manifestly excessive’, but this is a helpful concept when considering the seriousness of the error.8
[15] There is no presumption in the Sentencing Act for or against commutation of imprisonment to home detention, so the decision must be made on a case by case basis.9 As it can be difficult for sentencing judges to articulate reasons for preferring one approach to another, the margin of appreciation extended to judges is usually significant.10 A sentencing Judge may be in a better position than an appellate court to assess the seriousness of offending for the purposes of determining whether home detention is appropriate.11
Submissions
Appellant submissions
[16] Ms Croucher, for the appellant, submits that the District Court Judge’s error lies in placing too much weight on denunciation and deterrence, at the expense of rehabilitation and reintegration.12 Ms Croucher also emphasizes that home detention is not a light sentence, relying on the Court of Appeal in Fairbrother v R:13
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law…The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[17] Ms Croucher further submits that the deterrent effect of imprisonment is increasingly recognised as being limited, and refers specifically to the high
7 Tutakangahau v R [2014] NZCA 279 at [30].
8 At [35].
9 Twomey v R [2018] NZCA 206 at [12] (footnotes omitted).
10 At [13].
11 R v D [2008] NZCA 254 at [66].
12 McLean v Police [2018] NZHC 102 and Manikpersadh [2011] NZCA 452 at [8].
13 Fairbrother v R [2013] NZCA 340.
reimprisonment rates of Māori: after two years, 41.3 per cent of released Māori prisoners are re-imprisoned, while only 30.5 per cent of released non-Māori prisoners are re-imprisoned after two years. 14
[18] As for the importance of rehabilitation and reintegration, counsel refers to McLean v Police where the appellant was in his forties (like Mr Leef) and had over 100 convictions:15
… the Judge was in error in seeming to focus exclusively on the principle of deterrence and denunciation, in not acknowledging that a sentence of home detention can have that effect and in not having regard to the sustained rehabilitative efforts Mr McLean had made, his remorse and the prospect of his future rehabilitation.
[19] Ms Croucher also submits the Judge placed too much weight on Mr Leef’s attitude in the pre-sentence report, noting it was based on a brief telephone interview.
[20] Ms Croucher suggests it is more desirable to keep offenders in the community as far as practicable and consonant with public safety.16 Mr Leef was employed, and his employer hopes to have him back at work. Prior to going into custody, he was engaged in a stopping violence programme at Friendship House and alcohol and drug counselling through a previous employer. Before the dishonesty offending, his progress at this programme was being monitored in the Manukau Family Violence court. It came to light that he was having difficulty because of his inability to read and write. Ms Croucher submits that his literacy can be addressed in programmes on home detention. Lastly, Ms Croucher notes that both the pre-sentence report and the s 27 report support Mr Leef receiving community-based sentences.
Crown submissions
[21] Mr Beattie, for the Crown, submits that the Judge did not err in imposing imprisonment as opposed to home detention. He refers to Dennis v New Zealand Police, where Whata J noted that the requirement to deter applies to all persons engaged in repeated, serious domestic violence, although not every case of serious
14 Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending (Wai 2540, 2017) at 8; cited in Solicitor-General v Heta [2019] 2 NZLR 241 at [35].
15 McLean v Police [2018] NZHC 102.
16 Sentencing Act 2002, s 15.
domestic violence should attract a sentence of imprisonment.17 The respondent submits it is relevant that Mr Leef seemed to suggest in the pre-sentence report that the offending had something to do with him choosing "the wrong woman" to be with, or the fact that she suffered from bipolar disorder.
[22] Mr Leef has also received a number of sentences aimed at addressing his rehabilitative needs. He received a sentence of supervision in 2008 and 2003 for earlier family violence offending and he has previously received an electronically- monitored sentence of community detention.
[23] Home detention is only capable of meeting deterrence to a degree. Mr Beattie submits that it was open to the Judge to emphasise denunciation and deterrence, considering the seriousness of the offending, his criminal history and more recent history of breaching court orders, his continued offending while on bail, and his attitude in the pre-sentence report. He says that the Judge did not elevate these principles above all others but was also clearly mindful of the need to consider rehabilitative prospects. He advocates a restrained approach on appeal.
Discussion
[24] Mr Leef may well benefit from reintegration and steady employment. He has a supportive employer. He has progressed despite limited reading and writing skills. As written by his s 27 report writer, he “needs to continue working and feeling proud about what he is doing.” He has a suitable address. He wishes to be available to his daughter, who is sick, and to be with his whānau.
[25] The s 27 report also discloses that the appellant has a significant history of hardship, as well as discussing the broader marginalization of Māori in New Zealand, which has led to the overrepresentation of Māori in prisons. The report is compelling, and I readily acknowledge all these factors are weighty. They were considered in assessing the appropriate sentence discounts and play a part in the assessment of the least restrictive outcome.
17 Dennis v New Zealand Police [2018] NZHC 886 at [26]-[27].
[26] I do not accept however that Judge Skellern made denunciation and deterrence a complete priority to the other sentencing purposes. She said:
In respect of the purposes of sentencing, in my consideration, the matters I need to consider today particularly are accountability for you, denunciation and deterrence. I must impose the least restrictive outcome that is appropriate in the circumstances while taking account of the gravity of the offending, and the comparative seriousness of the type of offence.
[27] The Judge acknowledged that the report writers had concluded that home detention would offer oversight of Mr Leef’s rehabilitation and a deterrent to further offending. She also, rightly with respect, looked at the effect the offending had on the victim both physically and psychologically. She considered the pre-sentence report was evidence of Mr Leef’s dismissive attitude and unwillingness to take responsibility for his actions.
Result
[28] The Judge posed the question as whether the purposes and principles of the Sentencing Act 2002 would be satisfied short of a sentence of imprisonment and whether home detention would be appropriate when considering the gravity of the offending, the degree of culpability, the desirability of consistency in sentencing and the least restrictive outcome. While there was no express reference in this passage to rehabilitation, it would be unduly narrow to read this as a failure to consider rehabilitation prospects, particularly since this was part of her assessments of both the pre-sentence and s 27 reports. I am influenced by the necessary ‘margin of appreciation’ to be accorded to sentencing judges.
[29] Notwithstanding the full and helpful submissions made by Ms Croucher on behalf of the appellant, I have therefore concluded that the Judge’s reasoning does not disclose any error.
[30]Accordingly, the appeal is dismissed.
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Walker J
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