McLeod v The Queen

[2010] NZCA 420

IN THE COURT OF APPEAL OF NEW ZEALAND

CA8/2010
[2010] NZCA 420

BETWEENDARRELL SHAUN MCLEOD

Appellant

ANDTHE QUEEN

Respondent

Hearing:6 September 2010

Court:O'Regan  P, Stevens and Simon France JJ

Counsel:S D Patel for Appellant

M E Ball for Respondent

Judgment:15 September 2010 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1]        Mr McLeod pleaded guilty to one count of sexual violation by rape and was sentenced by Judge Tompkins to a term of imprisonment of nine years, with a minimum period of imprisonment of four years.  He originally appealed against conviction and sentence but abandoned his conviction appeal.  We formally dismiss it.  His appeal against sentence is advanced on the basis that the sentence was manifestly excessive and that a minimum period of imprisonment should not have been imposed.

Facts

[2]        The Judge described the factual background as follows:

[2]         The offending involved Mr McLeod, who knew the victim over a period of time, creating in her mind a climate of fear by he telling her repeatedly and in a variety of ways, that the Mongrel Mob were engaged in watching her and her daughters and if certain steps were not taken, then considerable harm would be done to them by that criminal gang.  Understandably, that caused a significant degree of fear on the part of the victim.  So much so that she had to move house, including her young children, and was not able to properly focus on her work and the like.  Eventually Mr McLeod, in what can only be termed an exercise in cynical manipulation, engineered circumstances where she believed that the only out of the situation he had created was, despite her lack of consent, for her to agree to have sexual intercourse with him in the back of a truck.  After that happened and without any means of transport, the prisoner in effect left her on the side of the road.

[3]        The summary of facts gives greater detail about the extent of the harm that the appellant told the complainant would be done to her or her family.  She was told that the Mongrel Mob was watching her address because a number of people had made statements with her name on them, which had resulted in search warrants being executed by the police at numerous Mongrel Mob addresses throughout New Zealand.  She was told that the Mongrel Mob would take her daughters and that the daughters would be raped.  Eventually she was told she had three options and had to make a choice.  The first was to pay $30,000.  She advised she did not have the means to do this.  The second was that her two daughters would be raped.  The third was that she would become a prostitute for the Mongrel Mob and pay off the debt that way. 

[4]        The appellant then said there may be another option and that they should discuss this in his truck while he travelled north.  She went with him in the truck and he told her that he had paid some money to the Mongrel Mob and would be willing to clear the debt if she slept with him.  She declined.  He then pretended to make phone calls and pretended to speak to someone who had one of the complainant’s daughters with him and commented that “tying her up was a bit harsh”.  He then pretended to make a telephone call transferring money to an account and told the complainant that “she had just been sold”.  He then told her that he needed to take photographs of her naked to prove that she was with him.  Eventually she submitted to this.  It was after this that the sexual violation took place.

District Court sentencing

[5]        The sentencing Judge took a starting point of eight years, based on the then current guideline judgment, R v A.[1]  The Judge commented that the eight year starting point required a considerable uplift to take into account premeditation, stalking of the victim and the creation of a climate of fear, the circumstances in which he photographed the victim prior to the offending and his complete absence of remorse or insight.  Another factor was his long list of previous convictions.  These were mostly convictions for fraud and other offences of dishonesty, but included some offences of violence.  The uplift for these factors was two years.  The Judge then applied a discount of one year to the 10 year uplifted starting point to reflect the guilty plea entered by the appellant, which was entered at the eleventh hour, but still avoided the trauma which would have been inflicted on the complainant if she had had to give evidence.  The Judge noted however that the appellant had indicated that he intended to appeal the conviction, on the basis that his guilty plea had been entered without appropriate advice.

[1]      R v A [1994] 2 NZLR 129 (CA).

[6]        The end sentence was, therefore, nine years imprisonment.

Was the uplift too high?

[7]        On behalf of the appellant, Mr Patel accepted that the eight year starting point, based on R v A, was appropriate.  But he argued that the Judge was wrong to apply an uplift of two years.  He argued that an uplift of that magnitude was justified only where the case involved abduction or violence additional to that inherent in the offence itself, or involved multiple sexual acts.  He cited a number of authorities in support of that proposition.  Mr Patel accepted that some uplift was required given the aggravating features referred to earlier and the appellant’s criminal history, but argued that it should have been limited to somewhere between six months and one year.  He also argued that a bigger discount should have been applied, given that the police saved the complainant from the distress of giving evidence.  In his submission a sentence of eight years imprisonment ought to have been imposed.

[8]        Crown counsel, Ms Ball, submitted that the two year uplift was appropriate given the aggravating factors referred to earlier.  She highlighted the degree of premeditation, the climate of fear created by the appellant to intimidate and terrorise the complainant, the complainant’s vulnerability, the degree of callousness involved in leaving the appellant by the side of the road after the violation and the significant impact of the offending on the victim, as highlighted in her victim impact statement.  She also noted the appellant’s lack of remorse and the fact that the guilty plea came at the last minute. 

[9]        We see the Judge’s approach as an orthodox application of sentencing principles.  The aggravating features identified by the Judge illustrate the appalling nature of the appellant’s offending which went well beyond the sexual violation itself.  The deceitful conduct of the appellant designed to intimidate the complainant had precisely that effect and led to extreme fear and distress.  The uplift applied by the Judge for those factors was appropriate and the discount made for the guilty plea at the last minute was orthodox.  We do not see anything in the authorities on which Mr Patel relied as requiring a different outcome.  In short, we see no reason to interfere with any aspect of the sentence.

Minimum period of imprisonment

[10]       The minimum period of imprisonment of four years represents about 45 per cent of the total nominal sentence.  Mr Patel argued that no minimum period was required, though he correctly acknowledged that the likelihood was that the imposition of the minimum period will not affect the appellant’s release date, given the nature of his offending and his appalling record.

[11]       The Judge saw the factor which justified the imposition of a minimum period of imprisonment as being that specified in s 86(2)(d) of the Sentencing Act 2002, namely the need to protect the community.  He referred to the pre-sentence report, in which it was noted that the appellant had deep-seated emotional and psychological needs as a result of a dysfunctional background, and that those needs had been addressed only at a cursory level.  The pre-sentence report also assessed the appellant’s likelihood of re-offending as high.  The Judge considered that in those circumstances considerable rehabilitative intervention should occur in prison before parole was considered.  We agree with the Judge that, in view of the risk of re-offending and the consequent need to protect the community, a minimum period of imprisonment was appropriate.

Result

[12]       We therefore dismiss the appeal.

Solicitors:

Crown Law Office, Wellington for Respondent