Leevey v The Queen - [2018] NZHC 3424

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leevey v The Queen

Details

AGLC: Leevey v The Queen [2018] NZHC 3424
Case: [2018] NZHC 3424
Decision Date: 19 December 2018

CaseChat Overview and Summary

Mr Leevey appeals against his sentence imposed by the District Court, arguing that it was manifestly excessive and that there was an unjustified disparity between the discounts he received and those given to his co-offender, Ms Hepi. The legal issues before the court were whether the disparity between the sentences was justified and whether the sentence imposed on Mr Leevey was appropriate. The court found that the disparity between the sentences was unjustified, as there was no reasonable basis for the differences in the discounts given to Mr Leevey and Ms Hepi for personal circumstances and youth. The court also found that the sentence imposed on Mr Leevey was manifestly excessive and substituted a sentence of three years' imprisonment on the two charges of aggravated robbery. The court upheld the remainder of the sentence imposed by the District Court.

Orders