Leevey v The Queen
[2018] NZHC 3424
•19 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-242
[2018] NZHC 3424
BETWEEN CROSS TREACH LEEVEY
Appellant
AND
THE QUEEN
Respondent
Hearing: 8 October 2018 Appearances:
N J Manning for Appellant H G Max for Respondent
Judgment:
19 December 2018
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 19 December 2018 at 5.10 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Crown Law Office, Auckland Counsel: N J Manning, Auckland
LEEVEY v R [2018] NZHC 3424 [19 December 2018]
Introduction
[1] The appellant, Mr Leevey, appeals against sentence imposed by Judge Collins in the District Court at Auckland on 13 July 2018.1
[2] The gist of the appeal is that the sentence imposed was manifestly excessive and, in particular, that there is an unjustified and gross disparity between the discounts the Judge gave Mr Leevey and his co-offender of the same age, Rebecca Hepi, for personal circumstances and youth.2
[3] As the Court of Appeal has said, “sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another”, but, for reasons set out below, I am satisfied the disparity exists and was unwarranted.3
Background
[4] The Judge’s sentencing of Mr Leevey and Ms Hepi followed sentencing indications the Judge gave in March 2018, in which he fixed their starting points and the discount each would receive for guilty pleas, being 20 per cent. The Judge reserved all other matters for sentencing itself. The indications were accepted and guilty pleas entered.
[5] The most serious charge against Mr Leevey and Ms Hepi arose from their participation in the aggravated robbery of a service station in Royal Oak. Mr Leevey and Ms Hepi were both 18 at the time of the offending. Ms Hepi, Mr Leevey, another defendant, T, and five associates arrived at the service station in the early hours of 25 June 2017. One of the associates gained entry to the service station with a brick, terrifying the store attendant in the process, and then all concerned proceeded to steal cigarettes, cash and other items. The Judge took this as the lead offence in each case.
[6] This robbery was facilitated by the unlawful taking of two motor vehicles shortly before the robbery. Again, Mr Leevey and Ms Hepi (possibly as a passenger)
1 R v Leevey [2018] NZDC 14890.
2 R v Hepi [2018] NZDC 14299.
3 R v Lawson [1982] 2 NZLR 219 (CA).
were each involved, and they were for sentence on these charges also. They were also each for sentence on a charge of burglary, committed a few days earlier, on 21 June 2017.
[7] Aside from this joint offending, each faced some individual charges, Mr Leevey more than Ms Hepi.
[8] Mr Leevey was for sentence on a second charge of aggravated robbery, again of a service station, committed several days after the first and another two of unlawfully taking or getting into a motor vehicle, again used to facilitate the robbery. He was also for sentence on an assault in November 2016, a charge of male assaults female in April 2017, and for breach of bail.
[9] Ms Hepi was for sentence on two further charges of unlawfully taking or getting into a motor vehicle, for a failure to answer bail and for conspiring to defeat the course of justice.
[10] Reduced for totality, Mr Leevey’s starting point was seven years, six months’ imprisonment and Ms Hepi’s five years, six months’ imprisonment. No issue is taken on appeal with the starting points or the discount for guilty pleas.
[11] Although the Judge reserved all other matters for sentencing, he warned Ms Hepi that her Youth Court record was “far from impressive”; that the sentences imposed on her in the Youth Court were “very much at the upper end of what was available”; and she and her counsel should appreciate that this would cause Ms Hepi “some difficulty if she wants to argue for a substantial youth discount”.
Sentencing
[12] By the time of sentencing in July 2018, the Judge had Provision of Advice to Courts reports (“PAC report”) and cultural reports written by Ms Khylee Quince (“s 27 report”).4 Ms Manning, counsel for Mr Leevey, had also filed some additional
4 Sentencing Act 2002, s 27.
submissions, predominantly in support of a substantial discount for youth, and increasing to 25 per cent the discount for Mr Leevey’s guilty plea.
[13] At sentencing, the Judge reduced Mr Leevey’s sentence by 10 per cent for personal circumstances and 10 per cent for youth, and Ms Hepi’s by 20 per cent for personal circumstances and 30 per cent for youth.
[14] Accordingly, from a starting point of seven years, six months, and taking into account the 10, 10 and 20 per cent reductions, Mr Leevey’s end sentence was four years, six months’ imprisonment. Ms Hepi’s end sentence was two years, two months’ imprisonment. Mr Leevey’s end sentence would have been three years’ imprisonment had the Judge given the discounts allowed to Ms Hepi.
Appeal
[15] On appeal, Ms Manning submits that the differences between these discounts are unjustified and/or unexplained and that a reasonably minded observer would think something had gone wrong with the administration of justice. This latter submission is a reference to the Court of Appeal’s decision in R v Lawson to which I refer shortly.
[16] Ms Manning submitted that Ms Hepi had a much more extensive history before the Youth Court, which she does, but that Ms Hepi had the insight and maturity to respond appropriately to the report writers, in contrast to Mr Leevey.
[17] The Crown submitted that the discount the Judge gave Ms Hepi for personal circumstances was explicable on the ground of her genuine remorse and prospects of rehabilitation, whereas Mr Leevey did not express regret or remorse nor demonstrate insight. I observe here that the writer of the PAC report did say Mr Leevey lacked insight, but added the important qualification, which appears to have been overlooked in the District Court, that this was not unusual for offenders of Mr Leevey’s age.
[18] On the subject of the youth discount, the Crown submitted the Judge was justified in giving a discount at the lower end of the available range because the grounds on which such a discount is usually given were not present.5
Disparity
[19] Given that the sole issue on appeal is disparity, it is unnecessary for me to address the circumstances in which the Court may allow a discount for personal circumstances and, if so, the range that appears to apply. Discounts for youth are addressed in Churchward v R, to which there is nothing I can usefully add.6
[20]In R v Lawson, the Court of Appeal said:7
The disparity argument is not infrequently raised in this Court. For that reason we reiterate that differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. public confidence in the
administration of justice is best preserved if justice appears to be administered evenhandedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate. But the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice. ... the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
...
Personal circumstances
[21]In relation to Ms Hepi’s personal circumstances, the Judge said:
5 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
6 Churchward v R.
7 R v Lawson, above n 3, at 223.
[12] I am not going to read into this a lot of the things that are in those reports. They are really quite personal to you, but in broad terms they show someone who has suffered from quite a bit of deprivation in life, and I do not say that to be critical of you. Dr Lance O’Sullivan talks about not only physical or financial deprivation. He talks about deprivation of spirit, deprivation of education and, importantly, deprivation of hope. What is clear from those reports (because people like Ms Quince, they are no wilting violets, and if you have managed to con her well then you have done an incredibly good job, because she is not a woman who would be easily fooled) is that you are truly remorseful. You have excellent prospects in my view of rehabilitation and you have come from a background of deprivation in all the ways that I have spoken about.
[13] So from that starting point of five years six months I am prepared to give you firstly a 20 percent, or 13 months, discount for the life that you have had, which is no fault of your own. I am not allowed to treat as a mitigating factor drug or alcohol use, but I have got no doubt that the difficulties that you have had both as a very young child and as a teenager, led to that drug use. And there is a direct causal connection between what you have had to contend with and that use. So from 66 months, 13 months off for that.
[22] It is apparent from this passage that the Judge was granting this discount on account of Ms Hepi’s deprived on-all-scores background, her expressed remorse and what the Judge considered her prospects of rehabilitation.
[23] The equivalent passages in the Judge’s sentencing note for Mr Leevey are as follows:
[19] I come to the additional matters where it is claimed you are entitled to further discount. The first is your personal circumstances. You have been presented with some challenges in that regard. I think we need to be careful before attributing factors which may be nothing more than coincidental with factors which are truly causal. There are families from which come valuable contributing members of society and also patched members of the Mongrel Mob. So it is a little bit difficult to say that family background per se is causative of the gang membership of the sibling who ended up in that regard. But, for the difficulties that you had, which I am not convinced warrant a significant discount, there will be some very moderate discount.
[24] I have read the reports that were before the Judge. There is little to distinguish between Ms Hepi’s and Mr Leevey’s upbringings, both of which were unsatisfactory. Mr Leevey appears to have been sent from place to place, from person to person and youth justice residence to youth justice residence. Each was subjected to violence, each had a father diagnosed as bi-polar, and each exhibited similar unhappiness and behavioural problems in their teenage years. Not surprisingly, the education of each suffered as a result.
[25] Mr Leevey’s PAC and s 27 reports refer to his association with the Mongrel Mob. On appeal, Ms Manning submitted that Mr Leevey was speaking out of youthful bravado. His statements certainly appear that way. If evidence of Mr Leevey’s immaturity were required, his comments regarding the Mongrel Mob provide it. In any event, the Judge expressed a very dim view of Mr Leevey’s apparent enthusiasm for the Mongrel Mob, and he said he considered it causative of the offending and that the association represented a “chilling prospect” for Mr Leevey’s rehabilitation.
[26] Why the Judge considered Mr Leevey’s reported association with the Mongrel Mob was linked to the offending is not apparent, and is inconsistent with, the information before me. The opening paragraph of the summary of facts in respect of the joint offending, to which Ms Hepi and Mr Leevey pleaded guilty, stated that at the time of the offending all were members of “W$H”. The modus operandi of W$H was or is to take motor vehicles to targeted locations, including service stations. On arrival, they would force entry, steal various items and then abandon the vehicles. On the face of the summary of facts any association with the Mongrel Mob was not causative of the offending.
[27] I accept that Ms Hepi’s expressed remorse might have warranted some additional modest discount, even though that is usually considered inherent in the discount for a guilty plea. Other than that, however, I am not able to distinguish between the personal circumstances of Mr Leevey and Ms Hepi, and I do not consider Mr Leevey’s association with the Mongrel Mob justified the discrepancy. Too much emphasis was placed on this at sentencing.
Youth
[28]I turn now to the discounts given for youth.
[29]As regards Ms Hepi, the Judge said:
[14] A significant discount for youth is also appropriate. It is quite different, and the reason for it is quite separate, to the discount which I have just indicated. Because that discount, as I say, is for the difficult life you have had, your genuine remorse and your prospects of rehabilitation. And there are plenty of cases, not just one, to interpret about youth discount; there are many others. And in fact for anyone’s benefit Brewer J recently in a case called
Whitcombe v Police has thoroughly reviewed all the appellate decisions in regarding discount for youth.
[15] So 30 percent, or 20 months, for that and that takes matters to 33 months. And then 20 percent discount for your plea, takes matters to 26 months, or two years two months. And two years two months’ imprisonment, Ms Hepi, will be the total outcome today. Given the time that you have been in custody you will be able to make application to the Parole Board for parole.
[30]In relation to Mr Leevey, the Judge said:
[20] There will be some discount for your youth but that will be very moderate. The rationale for youth discount is set out in a number of cases. Churchward v R is but one. Many of those authorities were helpfully reviewed and reviewed extensively by His Honour Brewer J recently in the case of Whitcombe v Police, the rationale being that young people do stuff that is stupid and they do stuff that is stupid because they are immature, their brains have not properly developed and they do it on impulse and it is spontaneous. Those things are not really present in your offending. Yes, it was dumb and it was stupid but it was planned, it was premeditated and you have committed a number of offences and offences involving violence over an extended period of time. In my view, your offending is far more reflective of a lifestyle that you wanted to adopt and chose to adopt as opposed to being the result of impulsive spur of the moment offending. If we had been here for one offence, and one offence only, Mr Leevey, then I could accept the impact of youth on that.
...
[23] In my view, Ms Quince’s observations about your lack of remorse, and that you remain a significant future risk and that your prospects of rehabilitation, in my view, are not encouraging, does not persuade me to give you anything other than an extremely moderate discount for youth.
[24] The discount for your personal circumstances will be one of 10 percent, as will be the discount for youth. That is in total 17 months. ...
[31] The Judge did not explain why he considered 30 per cent appropriate for Ms Hepi, nor discuss her record before the Youth Court, despite having referred to this when giving Ms Hepi’s sentence indication. Moreover, although the Judge said he considered Mr Leevey’s offending to be planned and premediated, on the summary of facts Ms Hepi was equally culpable as regards the most serious aggravated robbery, the taking of the motor vehicles and the burglary. Nothing in the facts suggested that Mr Leevey was the instigator of this offending.
[32] Two further matters regarding the Judge’s sentencing of Mr Leevey (although not Ms Hepi) require mention.
[33] The first is the Judge’s reference to passages from the guideline judgment for aggravated robbery, R v Mako, to the effect that an offender who accumulates a considerable list of convictions while still in his or her teens cannot expect leniency in sentencing for serious aggravated robbery offences.8
[34] I am not aware that Mr Leevey has amassed numerous convictions but, regardless, it has been said several times now that the Court is to apply Churchward in determining the appropriate discount for youth. For instance, in Tukaki v R, and apropos of the same passages in Mako, the Court of Appeal said:9
... Mako is to be read in light of this Court’s subsequent decision in Churchward. It should not be treated as justifying a different approach for aggravated robbery from other types of offending in relation the treatment of youthful offenders.
[35] The second point is that the Court of Appeal made it clear in Churchward that, in the usual course of events, a “young first offender should not be regarded as beyond help even after serious offending unless there is no escape from that conclusion”.10 It is thus premature to assess Mr Leevey’s prospects as “chilling” or “bleak”, as the Judge did.
Conclusion
[36] It follows from what I have said that this case falls within the category identified in Lawson, where the disparity in treatment is not consonant with the appearance of justice.
[37] As to remedy, I have considered whether I should give Mr Leevey the same discounts as Ms Hepi. I see no basis for withholding the 30 per cent for youth. There may be an argument that the 20 per cent discount for personal circumstances was overly generous. Ultimately, however, the only ground of distinction I can draw is Ms Hepi’s expressed remorse which at best might have warranted a modest discount of, say, up to five per cent. In the circumstances, I have decided the best course is to
8 R v Mako [2000] 2 NZLR 170 (CA) at [65].
9 Tukaki v R [2013] NZCA 411 at [19]; as followed in McWhirter v Police [2016] NZHC 2865 at [16].
10 Churchward v R, above n 5, at [88]–[90].
maintain the discounts, apply them equally to Mr Leevey, and encourage him to refrain from future offending.
[38] The Judge combined the discounts for personal circumstances and youth, reduced the starting points accordingly and then applied the reduction for the guilty pleas. Continuing that same methodology, Mr Leevey’s end sentence is reduced to three years’ imprisonment.
Result
[39]The appeal is allowed.
[40] I quash the sentences imposed by the Judge on the two charges of aggravated robbery and substitute:
(a)a sentence of three years’ imprisonment on the aggravated robbery of the service station at Royal Oak; and
(b)a sentence of two years’ imprisonment on the second charge of aggravated robbery, to be served concurrently with the sentence in (a) above.
[41]All other sentences imposed by the Judge, likewise concurrent, are unaffected.
Peters J
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