R v Leaf HC Napier CRI 2011-020-2954
[2011] NZHC 115
•8 February 2011
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2011-020-2954
THE QUEEN
v
JOY MOANA LEAF
Hearing: 7 and 8 February 2011
Appearances: N M Graham for the Crown
A J S Snell for the Prisoner
Judgment: 8 February 2011
SENTENCING NOTES OF WHITE J
Solicitors: Crown Solicitors, PO Box 609, Napier 4140
A J S Snell, PO Box 101, Hastings 4156
[1] Ms Leaf, you appear for sentence today so that I may enter a conviction on the charges you face and sentence you for those charges. You pleaded guilty to three counts at a callover in this Court on 23 November 2010. The offending took
place within the space of ten days and consisted of:
Offence
Date of offence
Section / Act
Maximum penalty
R V LEAF HC NAP CRI 2011-020-2954 8 February 2011
Conversion of vehicle 17 July 2010
s 226 Crimes Act 1961
7 years imprisonment
Theft (under $500)
19 July 2010
ss 219 & 223(d) Crimes Act 1961
3 months imprisonment
Aggravated wounding
27 July 2010
s 191(1) Crimes Act
1961
14 years imprisonment
Facts
[2] The events which are the subject of these charges are recorded in the summary of facts which you have admitted and to which you pleaded guilty. A brief summary of those events is necessary.
[3] You and the co-accused, your then partner, were living in Auckland and on
17 July last year went to the premises of Omega Car Rentals in Beach Road, Auckland. While you, Ms Leaf made inquiries at the desk to distract the employees, your male co-accused went into the car-yard and drove a Subaru Forrester vehicle from the premises without the staff noticing. You then abandoned your inquiries, left Omega rentals and met him at the vehicle.
[4] You drove down the North Island, and at Taupo, on 19 July you went to a BP petrol station from which you stole $70 of petrol for the vehicle. That is the second count on which you are charged.
[5] By 27 July, you arrived in Napier. An alert had been put out on the police radio for you and your vehicle.
[6] Senior Constable Daly, the Clive Community Constable, who was returning from Clive to Napier heard this alert and parked his vehicle on the road on the chance that you fled in his direction. This is what in fact happened and the officer followed your vehicle. Your co-accused who was driving at this point, turned the vehicle into a no exit cul-de-sac in Clive and without having engaged his lights or siren, the Senior Constable followed. Your co-accused then brought the vehicle to
a halt at the end of the street, Elizabeth Place. The officer pulled his vehicle in front of yours, left his vehicle and came to speak to your co-accused who was still sitting in the driver’s seat. Senior Constable Daly had advised police communications of his location and the stopping of the vehicle.
[7] The officer asked your co-accused to give him the keys which he did though the officer thought he detected some resistance. Your co-accused then got out of the vehicle. While he initially seemed calm and relaxed, he suddenly and without warning twice punched the policeman in the head. Senior Constable Daly grabbed your co-accused and they fell to the ground. As the constable was beginning to get the upper-hand in the struggle, you left the car and came round to where the two men were.
[8] As your co-accused was attempting to punch the officer in the head, you took his radio and threw it away smashing it in the process. With your co-accused now on top of him, the officer received further blows to the head while you went through the officer’s pockets, taking out various articles, including his cellphone which you likewise smashed. As your co-offender held him down, both of you were yelling at him to return the keys to the stolen vehicle.
[9] You were wearing Ugg type boots with a hard rubber heel and at this point you lifted up your foot and with the heel of your boot stomped Senior Constable Daly on his left eye with force. This caused him to lose vision from his eye immediately. You stomped on his face three or four more times. At one stage a neighbour saw you take a run-up and kick Senior Constable Daly in the face with force. It was described to the police that it was like a “rugby player kicking a rugby ball”.
[10] At the same time your co-accused dealt several more punches to Senior Constable Daly’s face. During the assault Senior Constable Daly ended up face first on the road unconscious and with your co-accused sitting on his hip area. At this point you smashed Senior Constable Daly’s face into the rough chip road three or four times.
[11] Your co-accused also dealt him several more blows to the head. A local resident then intervened and pulled your co-accused from the officer. The officer had been stunned to, or near to the point of unconsciousness by your joint attack and had no vision from his left eye. He did, however, manage to regain his feet and put you under arrest while the member of the public kept your co-accused at a distance until further police arrived. The officer was then taken to hospital in an ambulance.
[12] As a result of your attack on Senior Constable Daly, he suffered the following injuries:
(a) multiple facial abrasions;
(b) severe swelling to his left eye; (c) blurred vision to his right eye; (d) a fractured eye socket;
(e) nerve damage on the right side of his face to his eye down through his teeth and jaw; and
(f) abrasions to his lips, hands and knees.
[13] As a result of the facture to his eye socket, Senior Constable Daly underwent surgery and a metal plate had to be inserted around his eye socket which he will have to retain for the rest of his life. Ongoing medical treatment is required for the eye socket with the possibility of further surgery.
Victim Impact Statements
[14] Three victim impact statements have been submitted to the Court, two from Senior Constable Daly and the other from his wife. Although I have read the first statement from Senior Constable Daly, I have, as requested by both counsel, put it to one side and relied solely on his second amended statement. Counsel are agreed
that this is the appropriate course and that I do not need to defer sentencing to another judge.
[15] The treatment and time for recovery that the Senior Constable required was extensive and he has not been able to address all of the harm caused by the offending. He took six months off work in order to recover from the effects of the offending. The most serious inadvertent result of the offending was that during the third operation on his eye socket an adverse reaction to anaesthesia led to him being put on life support.
[16] Also of particular moment are the officer’s reflections on the lasting effects of the offending. His eye is still damaged and has not recovered either its full function or its natural appearance. This has led to a significant change in his lifestyle and the activities in his life. The nerve damage to his face has also yet to recede, with alternating numbness to the side of the face and sharp pain. There are also permanent scars.
[17] It is clear that the officer’s confidence, approach to and enjoyment of his work, particularly as the sole police officer in the town of Clive, have been adversely affected. His wife has also noted lows in his confidence caused by the attack and found the thought of losing her husband due to the unsuccessful operation to be a terrible experience. They both also note that the incident has had effects on their three children. Both Senior Constable Daly and his wife have clearly been seriously affected by the incident.
Personal circumstances
[18] Ms Leaf, you are a 31 year old Maori woman, born and raised in Auckland. Your counsel and the pre-sentence report both make note of your childhood having been punctuated by incidents of domestic violence to which you were a witness. You have two children, 16 and six years old, but they live in Australia with their paternal grandparents. You have a partner, Mr Morrison, who was here in Court yesterday supporting you.
[19] You say that after returning from Australia following the breakdown of your relationship with a former partner you tried to re-establish yourself in Auckland but became caught up in the use of alcohol and methamphetamine which forms the background to the offending.
Prior Convictions
[20] Ms Leaf, you have a considerable list of previous convictions. In terms of the grievous bodily harm which I propose to treat as the lead offence, you have previous relevant convictions for common assault and for threatening. In regard to the theft of the vehicle and the simple theft charge you have a long list of similar convictions for shoplifting, burglary, using a document to obtain money or some other benefit, and for theft. These have all occurred in the space of the last three years, from the beginning of 2008 onwards and some have resulted in periods of imprisonment.
Pre-Sentence Report
[21] I have a pre-sentence report prepared by the Department of Corrections through a telephone interview which addresses your offending, your risk of re- offending and your motivation to change. While the report writer did not have the benefit of the Senior Constable’s victim impact statement, she did have access to the summary of facts which details the injuries sustained by the officer.
[22] The report’s author records your explanation for the principal offending, and the attack on the police officer. You say that you were “on the run” and terrified of going to prison. You also attribute it to a high level of use of alcohol and methamphetamine at the time of the offending.
[23] The report writer was somewhat impressed by your remorse for the offending which she attributed to the sobering effect of imprisonment while on remand over the last six months or more. She also believes that you demonstrate a degree of insight into your offending or at the very least the causes for it, which accords with the fact that the majority of your offending has been in the last three years.
[24] The Probation Officer believes that you are motivated to address the alcohol and methamphetamine issues as causes of your behaviour, but that you may be less aware of other traits in your personality that led to offending. Your willingness to address the factors leading to crime is assessed as moderate, though your willingness to address drug and alcohol dependency is seen as higher. The report writer cautiously suggests that if you complete rehabilitative programmes in prison and stay away from drugs and alcohol, your risk of reoffending is moderate, if not then she addresses it as much higher.
Your letter to the Court
[25] At the hearing yesterday I was provided with your letter of apology to the Court about your offending, your acceptance of the inevitable punishment necessary for your behaviour, your personal background, particularly your alcohol and drug addiction, your remorse and your hopes and plans for the future, both during your time in prison and afterwards. I am encouraged that you have been able to write this letter and hope that, with the support of your partner and family who were present in Court yesterday, you are able to achieve your aspirations.
Purposes and Principles of Sentencing
[26] I now turn to the purposes and principles of sentencing:
Relevant Purposes of Sentencing (s 7 Sentencing Act 2002)
Accountability for harm done to the victim and community (s 7(1)(a)) Responsibility for, and acknowledgement of, that harm (s 7(1)(b)) Provide for victims’ interests (s 7(1)(c))
Reparation for harm done (s 7(1)(d))
Denunciation (s 7(1)(e)) and deterrence (s 7(1)(f)) Protection the community (s 7(1)(g)) Rehabilitation and reintegration (s 7(1)(h))
Relevant Principles of Sentencing (s 8 Sentencing Act 2002)
Gravity of the offending, including the degree of culpability (s 8(a)) Seriousness of the type of offence (s 8(b))
Consistency with appropriate sentencing levels (s 8(e)) Effect of offending on the victim (s 8(f))
Offender’s personal, family, whanau, community, and cultural backgroundwhere rehabilitation is a purpose (s 8(i))
Outcomes of restorative justice (s 8(j))
Aggravating and Mitigating Factors (s 9 Sentencing Act 2002)
[27] I also recognise the relevant aggravating and mitigating factors:
Aggravating Factors of the Offending
Actual or threatened violence (s 9(1)(a))
Extent of any resulting loss, damage, or harm (s 9(1)(d))
Mitigating Factors of the Offending
Nil
Aggravating Factors relating to the Offender
Prior convictions (s 9(1)(j))
Mitigating Factors relating to the Offender
Guilty plea and remorse (s 9(2)(b))
Crown Submissions
[28] Ms Graham for the Crown relies on R v Taueki (which I will discuss in a moment) in her submissions. By reference to that judgment she identifies as particularly aggravating: the fact that the victim was a police officer in uniform and on duty at the time, a level of violence she characterises as extreme, the fact that the blows were not only directed at the head but exclusively so, which, as the Court
of Appeal said in Taueki[1] should be treated similarly to offending involving the use
of a weapon, the “vulnerability” of the officer when pushed to the ground and deprived of any means of communication and the extent of the injuries. Ms Graham placed the offending in the upper range of band two or the lower range of band three of Taueki and submits that a starting point of around nine years is appropriate.
[1] T v Taueki [2005] 2 NZLR 382 (CA)at [31][e].
[29] Ms Graham submitted that no uplift was required for your prior offending, but that a small uplift of six months was required to reflect the totality of your offending on this occasion. While reparation was formally sought, Ms Graham recognised that the amount involved was minimal ($35).
[30] Ms Graham submitted that your guilty plea was the only mitigating factor in your favour. While she accepted that the question of the discount for the guilty plea in this case should be determined in accordance with the decision of the Court of Appeal in R v Hessell[2](rather than the decision of the Supreme Court in
Hessell v R,[3] delivered a week before you entered your guilty plea), she does not
consider that it had come at the earliest possible opportunity and that a discount of no more than 20-25% would be appropriate.
[2] R v Hessell [2010] 2 NZLR 298.
[3] Hessell v R (2010) 24 CRNZ 966
[31] Finally, Ms Graham submitted that the element of remorse should be included in the discount of 20-25%.
[32] Mr Snell, your counsel, also made comprehensive written and oral submissions on your behalf. He too relies on R v Taueki, though he submits that your offending falls at the lower end of band two. He submits that the offending is to be viewed in light of the lack of premeditation, your exact role in the offending, that your culpability is limited to kicks to the head, that you committed the offending under the influence of methamphetamine and that you are extremely remorseful for your behaviour. Mr Snell stressed that your case should be distinguished from those involving extreme violence and lethal weapons resulting in life threatening injuries. The police officer was not a “vulnerable” person in the Taueki sense and there was no medical evidence before the Court relating to the lasting nature of his injuries. It was also important to avoid double counting the Taueki factors relating to the fact that a police constable was involved in apprehending you and your co-accused for other offending when that was an ingredient of the offence.
[33] Mr Snell submits that I should begin with a starting point of between six and seven years. He agreed with the Crown that a small uplift was required for the totality of your offending, but not as much as six months.
[34] Mr Snell also agreed that there were no mitigating factors relating to your offending. He submitted that the mitigating factors relating to you were your guilty plea at the first real opportunity and your genuine remorse. He submits that in accordance with the Court of Appeal decision in R v Hessell your early guilty plea and your remorse warrant a discount of 25-33%. In respect of your remorse he referred to the pre-sentence report and your unsolicited letter to the Court. He also opposed the imposition of a minimum period of imprisonment for your offending.
Sentencing approach
[35] The only sentence that can seriously be considered in your case, having regard to the seriousness of the offending, is one of imprisonment.
[36] As both counsel submitted, while the guideline judgment in R v Taueki[4] is directed specifically at offences under s 188(1) of the Crimes Act 1961 (wounding with intent to cause grievous bodily harm), the Court of Appeal noted that the guidelines could be applied for analogous forms of violent offending such as s
[4] R v Taueki [2005] 3 NZLR 372 (CA).
191.[5] The Court of Appeal set out three bands for GBH offending under s
[5] Ibid, at [9].
188(1)(whose maximum penalty is 14 years imprisonment): (a) Band one: 3-6 years:
(i)where no aggravating features are present, a starting point at bottom of this band is appropriate. Where one or more is present, a higher starting point is required.
(b) Band two: 5-10 years:
(i)this is appropriate for GBH offending featuring two or three aggravating features.
(c) Band three: 9-14 years:
(i)this encompasses serious offending with three or more aggravating features, where the combination of aggravating features is particularly grave.
[37] The offending in your case under s 191(1) is of a very similar nature and attracts the same penalty. The Court of Appeal’s judgment in R v Taueki therefore
serves as a guideline in my task of sentencing.
[38] In R v Taueki the Court identified various factors going to the seriousness of the offending. I mention those that apply in your case:[6]
[6] Ibid.
(a) Extreme violence, ss 9(1)(a) & (e) Sentencing Act 2002:
(i)the extent of the violence and its duration as well as any unprovoked or gratuitous quality to it, is relevant.
(b) Serious injury, s 9(1)(d) Sentencing Act 2002:
(i)more serious injuries to victims will attract more serious penalties though care should be taken not to over-aggregate both the seriousness of the violence and the seriousness of the harm.
(c) Attacking the head:
(i)blows to the head generally involve a chance of serious harm that may be considered.
(d) Multiple attackers:
(i)the presence of multiple attackers and the disparity between the number of attackers and the number of victims is an aggravating factor.
(e) Public official:
(i)where the victim is a law enforcement officer or other official going about their duties then a violent attack on them must be
regarded as aggravated offending.
[39] None of the factors that the Court identified as mitigating the seriousness of the offending is present in your case.[7]
[7] Ibid, at [32].
[40] I now turn to consider cases with a comparable level of offending where the Court of Appeal’s guidelines have been applied. I look in this respect not only at cases under s 191(1) but also under s 188(1).
Relevant Cases
[41] Pritchard v R:[8]
[8] Pritchard v R [2010] NZCA 403, per O'Regan P, Arnold and Randerson JJ.
(a) Offences: Wounding with intent to cause grievous bodily harm
(b) Victim: Innocent partygoer unknown to offenders.
(c) Facts: Offenders Pritchard and Edmonds grievously assaulted an intoxicated partygoer at an event they were attending. Many kicks to the head and body were delivered by the two offenders in an unprovoked attack. The victim suffered serious bleeding to the lungs and was placed in intensive care, with a long period of recovery.
(d) Plea: Not guilty
(e) Aggravating factors: Unprovoked random attack, serious harm to victim, multiple attackers, previous convictions.
(f) Mitigating factors: Nil.
(g) Previous convictions: Both offenders had previous convictions for
violent offending, though Edmonds’ were more serious.
(h) Starting point: N/A
(i) Sentence: Edmonds: preventive detention. Pritchard: nine years, MPI:
nine years. [42] R v Wi:[9]
[9] R v Wi [2009] NZCA 81, per Arnold, Ronald Young and Venning JJ.
(a) Offences: 1 x wounding with intent to cause grievous bodily harm and
1 x assault with intent to injure
(b) Victim: Two police officers.
(c) Facts: The two constables went to investigate an incident involving a family outside a restaurant, the prisoner had been drinking. One constable was hit six to ten times in the head with a beer handle by the offender while the other had his face gouged by the offender. Pepper spray was used and the offender was subdued and arrested. Constables feared for their lives and there were ongoing psychological effects.
(d) Plea: Not guilty
(e) Aggravating factors: Use of a weapon, the attack to the head, the fact that the victims were on duty police officers, ongoing effects of the injuries.
(f) Mitigating factors: Previous good character. (g) Previous convictions: Nil.
(h) Starting point: 9 years.
(i) Sentence: 8 years, MPI: 4 years. [43] R v Whakataka:[10]
[10] R v Whakataka HC Hamilton CRI 2007-019-3859, 23 September 2008, per Stevens J.
(a) Offences: 1 x wounding with intent to cause grievous bodily harm and
1 x breach of protection order. (b) Victim: Police officer
(c) Facts: Offender went to his de facto partner’s residence in breach of a protection order. She called police from a neighbouring house and three police officers arrived. The offender retreated towards the house but was grabbed by a Sergeant. During the struggle, the offender picked up one of two knives that had been placed by the door and stabbed the officer with it four times. Officer was hospitalised for several days but fortunately suffered no long term harm.
(d) Plea: Guilty
(e) Aggravating factors: Use of a weapon, the fact that the victim was on duty police officer, serious injury, previous convictions.
(f) Mitigating factors: Onset of schizophrenia, guilty plea.
(g) Previous convictions: History of violent and dishonesty offending. (h) Starting point: 8 years, 6 months.
(i) Sentence: 6 years imprisonment.
Analysis
Setting a Starting Point
[44] Ms Leaf, your offending has several of the characteristics that the Court of
Appeal identified in Taueki as aggravating the nature of the offending. It
corresponds closely to one of the examples that the Court considered as fitting within band two when it said:[11]
[11] Ibid, at [39]
Assault on a police officer: A GBH offence involving an attack on a police officer in the course of their duty by a single attacker with the use of a weapon, where the attack is designed to avoid apprehension for other offending, but the injuries are not life-threatening or lasting, would require a starting point at the lower end of band two. Where the attack involves multiple attackers or the use of lethal weapons, a starting point at the higher end of band two would be required.
[45] Your attack on Senior Constable Daly was unprovoked, mindless and violent. He was acting in the course of his duties and proposing to apprehend you and your co-accused for your other offending. You did not have a weapon in the conventional sense, but your attacks to his head with your boots were not dissimilar. The incident involved two attackers and the injuries caused have been lasting. With three or four more aggravating features your offending is at least at the top of band two or at the bottom of band three (9-10 years in both cases). I therefore broadly agree with the Crown as to the appropriate starting point. I do not accept the submissions from your counsel as to a lower starting point as they fail to reflect accurately the bands identified in Taueki and the seriousness of the offence on that scale.
[46] Assessing your case by comparison with the other cases I have mentioned and particularly those involving attacks on police officers, but taking care to avoid double counting as Mr Snell submitted, I am confirmed in my view. While R v Wi involved the use of a weapon, the attack was of a shorter duration and the police officer was at least aided by a fellow constable, as was not the case here. Your actions are of at least equivalent seriousness. R v Whakataka again involved the use of a weapon, but the attack was again shorter, the officer quickly assisted by other police and the injuries in that case, fortunately not of lasting seriousness. The degree to which the Constable’s life was endangered is less serious than that in Pritchard v R, but the circumstances of the case were otherwise quite similar
though there the victim was not a member of the police.
[47] For these reasons I consider that a starting point of eight years and six months is appropriate in your case.
Adjusting the Starting Point
Related Offences - Conversion of a vehicle and theft
[48] I also have to sentence you for the conversion of the vehicle. There is no particular tariff for such offending and I will mention a few examples of such cases in brief:
[49] R v Werahiko:[12] In this case the Court of Appeal accepted a cumulative sentence of three months in addition to the principal offending, for Mr Werahiko’s taking of his current partner’s car to go to assault a previous partner. The offender was on bail and had previous convictions.
[12] R v Werahiko [2008] NZCA 24.
[50] R v Stoves:[13] The offender drunkenly took a vehicle and drove it for some distance before being stopped by police. Mr Stoves had previous drink driving convictions. A sentence of nine months was imposed for the conversion charge, cumulative on the drink driving charge.
[13] R v Stoves CA264/06, 24 October 2006.
[51] R v Gurnick:[14] The offenders were sentenced to 18 months imprisonment for the conversion of the complainant’s car. The Court of Appeal observed that the sentence was appropriate for a crime with overtones of drug-offending and enforcement and their previous convictions.
[14] R v Gurnick CA286/05, 29 November 2005
[52] Given these cases I propose to impose a sentence of six months for the taking of the vehicle. The theft from the petrol station, as another dishonesty offence, I propose to make concurrent with a penalty of two months.
[53] While reparation has been formally sought for the theft from the petrol station, the amount involved is minimal and in the circumstances no order is made.
[54] S 84 of the Sentencing Act 2002 provides guidance on how I should deal with sentencing when multiple offences are considered at the same time. While your taking of the rental car was the beginning of this period of offending, it was also a very different type of offending from the attack on the officer which I have
treated as the principal or leading offence: s 84(1) Sentencing Act.[15]
[15] R v Field HC Auckland CRI-2007-092-18132, 6 October 2009, per Rodney Hansen J
[55] I make the sentence of six months imprisonment concurrent with the aggravated wounding charge, but I also propose to adjust the sentence to reflect the totality of the offending as I am required to do under s 85 of the Sentencing Act. I consider that nine years would be out of proportion to the gravity of the offending, particularly where the offences though different in kind, are closely interconnected
or dependant and part of the same series of events.[16] I propose to add three months
[16] Ibid, at [87]
to the charge of aggravated wounding, making a total of eight years nine months for the totality of your offending.
Previous Convictions
[56] Although you have prior convictions that are relevant both to the violent offending, common assault, and to the dishonesty offences, as well as numerous charges of minor theft and burglary, the Crown has not sought an increase in your sentence to reflect these. I am prepared to accept the Crown’s approach. I do not propose to take your previous convictions into account, first for the dishonesty offences because I have already determined that a minor increase will account for the totality of the offending; and second for the minor assaults I consider them to be of such a different level of seriousness as to not be relevant to the wounding charge for which you have been convicted. I do not propose therefore to make any
adjustment to the sentence for previous convictions.
[57] After hearing from both counsel and after further consideration, I agree that your guilty plea in this case is to be determined in accordance with the guidance provided by the Court of Appeal in R v Hessell.[17] This is because that was the decision that applied during the period when you were considering your plea.
[17] R v Hessell [2010] 2 NZLR 298.
[58] The Court of Appeal in that case set out the range of discounts available to defendants who plead guilty. As a general guideline the Court proposed that discounts range between 33 per cent for pleas entered at a very early stage or the first reasonable opportunity within a proceeding. Conversely, a plea only weeks before a full trial was scheduled to commence might attract only a 10 per cent reduction. These percentages, however, were to be regarded as guidelines and a certain amount of rounding was recognised to achieve figures that were not
artificial.[18]
[18] Ibid, at [15]-[16].
[59] On that basis I propose to apply the sliding scale articulated by the Court of Appeal in that case. Your pleas came at something of a midpoint, in that you pleaded guilty at your second callover, after arraignment for trial in this Court but still sometime before your trial and with commensurate savings in expenditure, time and the feelings of victims and witnesses. While remorse is not to be counted separately,[19] I acknowledge that you appear to have demonstrated a degree of remorse.
[19] Ibid, [24]-[28].
[60] Given the fact that the indictment was only presented at the second callover at which time you pleaded guilty, and consistent with the Crown’s submissions, I propose to give a discount of around 25% of your sentence to reflect your plea and
remorse. This gives a final sentence of six years and seven months imprisonment.
[61] Ms Leaf, you are eligible under s 86 of the Sentencing Act to receive a minimum period of imprisonment. This would cancel your eligibility for parole for a greater period than would normally be the case. The Court ought to impose this where, in the terms of the Act:[20]
[20] s 86(2) Sentencing Act 2002
(a) it is satisfied that that period is insufficient for all or any of the following purposes:
(i)holding the offender accountable for the harm done to the victim and the community by the offending;
(ii) denouncing the conduct in which the offender was involved;
(iii)deterring the offender or other persons from committing the same or a similar offence;
(iv) protecting the community from the offender.
[62] With regard to the cases of Pritchard v R and R v Wi there is an arguable case for the imposition of a minimum period of imprisonment. However, given that the Crown has not sought one, and taking into account the prospects of rehabilitation you present, the length of your sentence and the effect of the new “three strikes” law, I do not intend to impose a minimum period of imprisonment.
“Three Strikes”
[63] Ms Leaf, your conviction for aggravated wounding means that you are now subject to the “three strikes” law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the “serious violent
offences”:
(a) If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release;
(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.
[64] You will also receive a written notice of these consequences from the Court staff.
Conclusion
[65] Ms Leaf, the final sentence that I am going to impose on you for these offences is one of six years and seven months imprisonment. This recognises the harm you have done and the need for members of the police to be protected in the course of their duties. As you have said in your letter to the Court, you now have the opportunity to address the issues that have been identified with the aid of
programmes within prison and on your eventual release.
D J White J
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