SMITH v NEW ZEALAND POLICE [2019] NZCA 219

SMITH v NEW ZEALAND POLICE [2019] NZCA 219 [13 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA575/2018[2019] NZCA 219BETWEEN ANNE-MARIE KATHERINE SMITHApplicantAND NEW ZEALAND POLICERespondentCourt: Courtney, Lang and Whata JJCounsel: K J Basire for ApplicantK L Kensington for RespondentJudgment:(On the papers)13 June 2019 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Ann-Marie Smith was sentenced by Judge Neave in the District Court tothree years' imprisonment for five charges of obtaining by deception involving the lossof about $20,000.1 This comprised a starting point of three years and six months,and an uplift of six months for offending while on bail (twice) and for nine prior1 Police v Smith [2018] NZDC 6429 at [19].dishonesty convictions.2 Dunningham J dismissed an appeal against this sentence.3Leave is now sought to bring a second appeal.4[2] Ms Smith also applies to extend the time to file, which is unopposed.5The extension is granted accordingly.[3] The primary submission in support of leave is that the starting point was toohigh and the uplift for offending while on bail and for prior convictions was excessivebecause, among other things, Ms Smith offended while on bail only once, not twice,as the District Court Judge assumed.[4] To qualify for leave, the intended appellant must identify a matter of generalor public importance or show that a miscarriage of justice may have occurred or mayoccur unless the appeal is heard.6 Ms Smith claims miscarriage based on a materialerror and the fact the end sentence was manifestly excessive.Background[5] Ms Smith obtained:(a) 30 taxi rides totalling $819.50 that she charged to the Acute Demandaccount of the Canterbury District Health Board;(b) $4,800 from a woman by claiming to be a lawyer acting forthe woman's daughter and telling her that she needed the money toplace the daughter into a rehabilitation clinic;(c) $11,600 from a recent acquaintance on the premise of needing moneyto buy things for his niece who was having a baby and to pay forlawyer's fees because his niece was being hassled;2 At [14]–[15].3 Smith v Police [2018] NZHC 1335 at [20].4 Criminal Procedure Act 2011, s 253.5 Court of Appeal (Criminal) Rules 2001, r 11.6 Criminal Procedure Act, s 253(3). See also McAllister v R [2014] NZCA 175, [2014] 2 NZLR764 at [37]–[45].(d) While on bail for the above offending, $1,400 from a woman byclaiming to be from Children, Young Persons and their Families andstating the woman's daughter had been beaten up in prison and was onsuicide watch; and(e) $1,680 from a couple after she contacted them claiming to be a casemanager from Work and Income New Zealand for their daughter whoshe said was going to be evicted for non-payment of rent.Analysis[6] The appeal does not identify any point of general or public importance and itis not evident to us that there has been a miscarriage of justice. As noted bythe applicant, the District Court incorrectly assumed that Ms Smith twice offended onbail rather than once. But we do not accept the sentence was thereby wrong ormanifestly excessive. A starting point for the offending of three and half years,while high, was available.7 There were multiple aggravating factors, includingfive victims, some of whom were vulnerable persons, a breach of trust in three cases(by falsely claiming to be in a position of responsibility for the victims' children),a high degree of impact on some of them, and a material degree of planning andsophistication. The uplift of six months was also justified for the nine previousdishonesty convictions and for a single incident of offending while on bail.[7] Ms Basire also refers to Ms Smith's personal circumstances. Ms Smith is32 years old and the mother of two teenage children. She has had only one previoussentence of imprisonment for eight months with no opportunity to attend treatmentprogrammes in prison. Ms Basire submits this should have mitigated the extent of anyuplift. It does not appear that these personal factors were raised with or considered byJudge Neave or by Dunningham J. Even so, we are not satisfied a miscarriage ofjustice may occur if an appeal is not permitted to address their apparent omission.The modest, if any, impact on sentence that might be expected for these factors is notsufficient to raise a concern about miscarriage.7 See Blackmore v R [2014] NZCA 109 at [9]–[10].[8] Overall, it is evident to us that Ms Smith is seeking to relitigate the substantivemerits of her sentence for a third time. We are satisfied, however, that the first twoevaluations were available to the Judges in the District Court and the High Court.Moreover, a further appeal is not necessary to avoid a miscarriage of justice.Result[9] The application for an extension of time to appeal is granted.[10] The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent