TONKS v NEW ZEALAND POLICE [2017] NZHC 880

TONKS v NEW ZEALAND POLICE [2017] NZHC 880 [4 May 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2017-425-2CRI-2017-425-3[2017] NZHC 880BETWEEN ANDREW CHARLTON TONKSAppellantAND NEW ZEALAND POLICERespondentHearing: 27 March 2017Counsel: L C Denton for AppellantM A Mika for RespondentJudgment: 4 May 2017JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[1] On 19 December 2016, the appellant Mr Tonks was sentenced to 22 months and two weeks imprisonment, with a reparation order of $18,800, following convictions on three counts of theft by a person in a special relationship pursuant to ss 220(1) and 223(a) of the Crimes Act 1961, and one count of using a forged document to obtain a pecuniary advantage, pursuant to s 257(1)(a) of the Crimes Act.[2] On appeal, the end sentence is submitted to be manifestly excessive. The starting point for the forgery is submitted too high, so that the overall starting point of two and a half years is too high. It is also submitted that there should have been an adjustment in considering the sentence in its totality, and that the Judge placed undue weight on offending while on bail and the motivation behind that offending when declining home detention. Home detention is submitted the least restrictive, and available outcome.Background[3] The three counts of theft by a person in a special relationship stem from theappellant's employment by Apex Rentals. He stole $12,000 from his employer simply by failing to deposit cash into its bank account. He also sold two of ApexRental's discontinued vehicles for $7,500 and kept the money. The reparation sought is $18,500.[4] While on bail on the three charges of theft, he attempted to defraud Turners Finance to access funds to meet his reparation order. He falsified a private sale agreement, payslip and bank statement, and managed to have Turners Finance lend him $23,850. Turners Finance found out and was able to recover that money.District Court[5] For theft by a person in a special relationship, the Judge adopted a starting point of 14 months imprisonment. He identified aggravating features in the significant breach of trust, premeditation, and manipulation of the employer'ssystem. For the forgery, he adopted a sentence of 16 months imprisonment cumulative with the theft charges. A particular aggravating factor was offending while on bail, and the attempt to dishonestly fund the Court ordered reparation. Altogether, the Judge adopted a starting point of 30 months imprisonment.[6] The Judge then applied a 25 per cent discount for the guilty pleas. This resulted in a sentence of 22 months and two weeks imprisonment. Home detention was not ordered given the aggravated nature of the offending, and particularly the forgery committed while on bail.Jurisdiction on appeal[7] Mr Tonks appeals as of right.1 Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence and a1 Criminal Procedure Act 2011, s 244.different sentence should be imposed, otherwise the appeal must be dismissed. The Court of Appeal in Tutakangahau v R held:2[30] The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its ownopinion for that of the original sentence. Rather it must be shown that there was an error "whether intrinsically, or as a result of additional materialsubmitted" on appeal. If there is an error of the requisite character, the courtwill then form its own view of the appropriate sentence.[8] The Court of Appeal has said that the appellate Court does not lightly disturb a sentence. In the absence of material error in the sentencing process or clearly excessive sentence, the appellate court will not intervene.3AnalysisWas the starting point too high?[9] Ms Denton submits that the starting point adopted for forgery was too high which flowed through to the overall starting point. In De La Hunt, the defendant forged a character reference from her employer to support her application to cancel an existing sentence of home detention.4 The Court analogised the offending with perverting the course of justice, and a starting point of twelve months imprisonment was adopted. In Mears v R, the defendant stole $380,000 over a six year period from a small business where she was employed as credit controller. While the theftcharges were under investigation, Ms Mears' bank froze one of her accounts. Sheforged a letter and signatures on Public Defence Service letterhead advising that the criminal matter had been resolved and that the frozen funds could be released. A cumulative term of three months imprisonment was adopted.5 Ms Denton submits that Mr Tonks' offending is similar to Mears and a more lenient sentence should have been imposed.[10] The attempt to defraud Turners Finance was much more serious than that in the authorities referred to. Here, significant loss could have been caused to Turners Finance which was not the case in De La Hunt and Mears. It was highly2 Tutakangahau v R [2014] NZCA 279 at [30].3 Te Aho v R [2013] NZCA 37 at [30].4 De la Hunt v R [2014] NZHC 1144.5 Mears v R [2014] NZCA 30.aggravating, as it was committed while on bail for other fraudulent offending. A starting point of 16 months imprisonment for the forgery was therefore well withinthe range of sentences available at the Judge's discretion and I consider it the lead offence.[11] The appellant otherwise submits that the overall starting point of 30 months imprisonment was too high, and refers to R v James, Fomai v Police andAppuhamilage v Police. In R v James, the defendant was convicted on charges of carrying out business with intent to defraud creditors, two charges of fraudulently taking property from a company and one charge of forgery.6 The District Court adopted a starting point of two years imprisonment and uplifted three months for thedefendant's previous dishonest offending. A 10 per cent deduction for thedefendant's guilty plea reduced the sentence to two years imprisonment. The defendant was sentenced to home detention and ordered to pay reparation of $35,000.[12] In Fomai v Police, the defendant was convicted of three charges of accessing a computer for dishonest purpose and three charges of forgery with intent to obtain a pecuniary advantage. She worked in an accounts department and entered fictitious invoices with payment going to a bank account held by her father, in the total sum of $35,000.7 However, a significant proportion was repaid, and the reparation ordered was around $6,000. The starting point for Fomai was two to two and a half yearsimprisonment, taking into account the defendant's previous convictions. The sentencing approach in Fomai, especially for theft by a person in a special relationship, is referable to Mr Tonks' forgery. To mitigate his sentencing for his first set of offending, he greatly aggravated his overall offending by the forgery, to soften the sentence for the other offences. This is much more serious than that inFomai. It was brazen and contemptuous of the fact he was already before the Court for dishonesty.[13] Ms Denton refers to Appuhamilage v Police, where a starting point of two years imprisonment was adopted on one charge of obtaining by deception, one6 R v James DC Auckland CRI-2010-004-01883, 28 August 2004.7 Fomai v Police [2013] NZHC 367.charge of accessing a computer for a dishonest purpose, and two charges of using forged documents.8 The offending involved a 20 year old accessing her mother'sbank account and withdrawing $29,000. She applied for a personal loan from Avantifinance under her mother's name. After taking into account her youth, remorse and other relevant factors, a sentence of six months home detention and 200 hours community work was imposed. On appeal, the 200 hours community work was quashed. The sentence imposed was specific to its particular circumstances. Moore J observed:[34] The facts of this case are most unusual. Although the losses total nearly $60,000 and involved a significant breach of trust, it is common ground that the catalyst for the offending arose from the pressure exerted byMs Appuhamilage's ex-partner. That pressure continued to be exerted throughout the course of the offending. The notes of the restorative justicemeeting reflect Ms Appuhamilage's sincere remorse. Significantly in myview are the comments of Ms Appuhamilage's mother's whose concludingcomments were that she wanted the presiding Judge to show leniency towards her daughter when he considered sentencing. Tellingly she also stated:"It's not the money; it's the daughter I want".[14] The merciful and just approach in Appuhamilage was based on a very different factual setting.[15] Mr Mika for the Crown refers to Court of Appeal guidance to assess culpability in fraud related cases:9[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type of circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.[23] It is in the assessment of culpability with other cases is to be undertaken... The Crown submits that the offending was not here"unsophisticated and opportunistic". The appellant manipulated his employer over time. In defrauding Turners Finance, forgery and further manipulation was undertaken. The amount involved and the losses caused and potentially caused were significant. The theft cost his employer $18,800 and spanned three months, and were significant breaches of trust, which created general distrust throughout the company.8 Appuhamilage v Police [2015] NZHC 2355.9 R v Varjan CA97/03, 26 June 2003.[16] Mr Mika contends that Wright v Police and Costello v R are analogous to these facts. Wright v Police involved one charge of theft in a special a relationship and one charge of obtaining by deception. The first charge was representative, relating to a 10 month period during which the appellant took just under $6,000. The second charge involved lodging a fake bond with the Ministry of Housing BuildingInnovation and Employment with his employer's money. A starting point of 12 months was adopted.[17] In Costello v R, the defendant was charged with obtaining by deception. He provided false information about his income to a finance company in order to purchase a second hand car. The appellant then used the car to commit further offences. The Court of Appeal held that a starting point of 18 months imprisonment was appropriate. The Crown submits that the authorities demonstrate that Judge Callaghan was within range in his starting point, and end starting point.[18] The aggravating factors here mean a starting point of 30 months imprisonment, made up of 14 months for the charge of theft by a person in a special relationship and 16 months for forgery, was well within the range available to the Court. I would treat the forgery as the lead offence, to reach the same result.Totality[19] The appellant submits that the Judge should have made an adjustment to reflect the totality of the offending and a starting point of two years imprisonment was more appropriate.[20] Section 85(1) of the Sentencing Act 2000 requires the Court, when imposing two or more sentences of imprisonment, to ensure that each individual sentence reflects the seriousness of each offence. Concurrent sentences of imprisonment were imposed for the forgery and theft in a special relationship. However, s 85(1) is subject to subs (4) of the Act which stipulates that when concurrent sentences are imposed, the lead offence must receive the penalty that is appropriate for the totality of the offending. The appellant says that the principle of totality was not taken into account. However the Judge said:[25] I have to, by law, look at the totality of the situation and ask myselfif 30 months' imprisonment is too high a starting point. When I step backand look at the fact you were on bail for those other offences when you committed the fraud on Turner Finance, I am not convinced 30 months'imprisonment is too high a starting point. I therefore reach that as the starting point for the offences on a totality basis.[21] The Judge expressly turned his mind to the principle of totality. The starting point adopted was within the range available.Should home detention have been ordered?[22] The appellant submits that too much weight was placed on the motive behind the forgery, and offending while on electronic bail as a reason to reject home detention. He objects to the Judge's reference to his gambling addiction.[23] Whether a sentence of short term imprisonment should be commuted to home detention conventionally involves a two step process, first that the sentence is two years imprisonment or less, satisfied in the present case. The Judge must then exercise a discretion whether to commute that sentence to home detention. There is no presumption that imprisonment or home detention is to be preferred. An evaluative exercise is one of the principles and purposes of the Sentencing Act under ss 7 and 8. The Court of Appeal has held:10That 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.[24] I adjourned the final determination of this appeal and requested counsel to provide further information as to home detention, rehabilitative programmes and Mr Tonks' immigration status. In further submissions by counsel, I found out that Mr Tonks proposes to reside with his close friend to be able to seek treatment at the Oasis Centre at the Salvation Army or the Community Alcohol and Drug Services Centre. Ms Denton submits that the appellant is unlikely to receive the treatment he10 Fairbrother v R [2013] NZCA 340 at [30].needs while in prison because his sentence would not be long enough to see him startthe programme. Counsel advises that while deportation is likely, "there is no clear answer and it would be case dependent".[25] After considering counsel's further submission, I find that the Judge did noterr in refusing to order home detention, given the need for denunciation and deterrence of this offending. The Judge was rightly troubled that the forgery occurred whilst on bail, and through the use of computers when the appellant was at home. He was not remorseful of his first offending, and was dishonest again to help his sentencing outcome.Whether the appellant has the means to pay reparation[26] The appellant submits that he cannot work if in prison. There is a risk of deportation, so an order to pay reparation is submitted nugatory.[27] Under the Act, a court must order reparation unless it would result in undue hardship, or would be inappropriate for special circumstances.11 If an offender cannot pay the total value of the loss, the court may impose reparation on terms, including a reduced sum.12 "Undue hardship" is something more than mere "hardship". It requires the hardship to be objectively assessed as to whether it is more than the circumstances warrant.13 The reparation should be realistic given the financial resources of the offender,14 and the judge should have a "realistic measure of confidence" that payment is able to be made.15 Future earning capacity can be taken into account as part of this determination.16[28] There is a burden of proof on the offender to establish hardship and an evidential onus to address evidence of financial capacity. Without that the Court cannot be satisfied that the sentence of reparation would result in undue hardship.1711 Sentencing Act 2002, s 12(1).12 Section 35(1).13 Hunt v Police HC Wellington AP 232/99, 29th September 1999.14 R v Bailey CA306/03, 10 May 2004 at [25].15 R v Pender [2007] NZCA 465 at [15].16 R v Brown CA 267/92, 26 November 1992 at 5; Taua v Police HC New Plymouth CRI-2009-043-22, 22 September 2009 at [7].17 R v Thompson CA 404/04, 19 October 2005.The appellant has not provided such evidence. The Judge was required by law toimpose reparation for the losses incurred by the appellant's previous employers.In conclusion[29] Ms Denton has carefully advanced every point possible on appeal. This is very serious dishonesty. The sentence is within range and may well have been sterner.Disposition[30] The appeal is dismissed..Nicholas Davidson JSolicitors:Macalister Todd Phillips, QueenstownPreston Russell Law, Invercargill