HOUKAMAU v POLICE [2022] NZHC 152

HOUKAMAU v POLICE [2022] NZHC 152 [14 February 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-164[2022] NZHC 152BETWEEN ANTHEA HOUKAMAUAppellantAND NEW ZEALAND POLICERespondentHearing: 11 February 2022Appearances: M Jenkins for the AppellantA Maino for the RespondentJudgment: 14 February 2022JUDGMENT OF GAULT J(Appeal against sentence)This judgment was delivered by me on 14 February 2022 at 11:15 am.Registrar/Deputy RegistrarSolicitors / Counsel:Mr M Jenkins, Jenkins Law, RotoruaMs A Maino, Gordon Pilditch, Office of the Crown Solicitor, Rotorua[1] Ms Houkamau appeals against her sentence of 11 months' imprisonmentimposed by Judge RLB Spear in the Rotorua District Court on 16 December 2021,1after she pleaded guilty to one charge of obtaining by deception (over $1,000).2[2] She appeals on the grounds that the starting point adopted by the Judge wastoo high, the uplift applied for prior convictions and offending while on sentence wasdisproportionate, and insufficient discount was given for factors arising out of thecultural report.The offending[3] The victim is 82 years old. She suffers from memory loss and is in the earlystages of dementia. On the morning of 14 July 2021, she received a phone call fromMs Houkamau. Ms Houkamau told the victim that she owed money and her accountwould be closed if she did not pay the money by 8:30 am that day. The victim wasadamant that she did not owe any money. She states that she hung up and did not shareany bank details over the phone.[4] Between approximately 8:30 am and 8:45 am the same day, Ms Houkamaucalled Westpac Bank and created an online account in the victim's name. Using thevictim's identity, she transferred $2,100 from the victim's bank account to her ownFirst Credit Union account without the victim's knowledge or permission.[5] At approximately 10:00 am, Ms Houkamau went to a First Credit Union andwithdrew $2,100. The victim realised the money was missing when she received hermonthly bank statement.District Court decision[6] Judge Spear briefly summarised the facts of the offending. He stated that hewas "at a complete loss" to understand how Ms Houkamau could have set up an onlineaccount for the victim, suspecting she must have obtained her details, and consideredthe offending showed "a craftiness approaching a degree of sophistication".1 Police v Houkamau [2021] NZDC 25244.2 Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty seven years' imprisonment.He characterised the offending as involving the audacious targeting of a vulnerableperson, although noted that the amount Ms Houkamau transferred to her own accountwas relatively modest.[7] The Judge noted that at the time of the offending Ms Houkamau was onintensive supervision, which was imposed for causing loss by deception (over 1,000).So her offending had to be seen in a more serious light, especially considering hersignificant conviction history for dishonesty offending – the Judge counted 33 priorconvictions for dishonesty offending, of which 17 were in the fraud category.He acknowledged that she had difficulties, mentioning mental health issues, butcommented that this has not deterred her from offending and she must understand theconsequences of continuing to do so.[8] The Judge adopted a starting point of 12 months' imprisonment. This wasuplifted by 10 per cent to recognise that Ms Houkamau had offended while on sentenceand discounted by 10 per cent for her mental health difficulties and 25 per cent for herguilty plea. This brought the calculation to nine months, which was uplifted by twomonths for Ms Houkamau's previous convictions.[9] The Judge recorded that Ms Houkamau was 43 years old. She was assessed asbeing at high risk of reoffending due to her pattern of offending to get money forgambling and to buy methamphetamine and alcohol, which he observed "seems tohave complete[ly] dominated [her] life".[10] The Judge imposed a sentence of 11 months' imprisonment. He grantedMs Houkamau leave to apply for a sentence of home detention or communitydetention and intensive supervision but only if this was to a residential rehabilitationtreatment programme.3Approach on appeal[11] To succeed on an appeal against sentence, the appellant must satisfy the appealCourt that there has been an error in the imposition of the sentence and that a different3 At the request of probation, the Judge cancelled the sentences of intensive supervision imposedon Ms Houkamau on 12 March and 12 April 2021.sentence should be imposed.4 The Court will not, ordinarily, intervene when thesentence is within the range that can be properly justified by accepted sentencingprinciples. The Court will only intervene and substitute its own view if the sentenceis manifestly excessive or wrong in principle.5 The appeal Court's focus is on the finalsentence imposed rather than its component parts or how the ultimate sentence wasreached.6DiscussionStarting point[12] Mr Jenkins, for Ms Houkamau, submits that the starting point of 12 months'imprisonment was excessive in comparison with case law. He refers to McLaren vPolice, in which the defendant unlawfully used the victim's bank card at variousretailers, spending approximately $5,613.24 in fraudulent transactions through 68separate dealings.7 The District Court adopted a starting point of nine months'imprisonment which was not disturbed on appeal. Mr Jenkins submits thatMs Houkamau's offending is less serious than McLaren and accordingly a startingpoint of around eight months was appropriate.[13] Ms Maino, for the respondent, submits that the starting point was within rangetaking into account the aggravating factors of the offending – the victim'svulnerability; the serious impact of the offending on the victim; the significant levelof premeditation, evident in the targeting of a vulnerable person; and the amount ofmoney taken. She refers to Rako v R, in which the defendant befriended a tourist andused her debit card 11 times without her permission while she was asleep, obtaining$1,800. The Court found that a starting point of 18 months was necessary to recognisehis persistent and premeditated offending.8 In Walsh v Police, the defendant usedEFTPOS cards from people known to him on numerous occasions to obtain a total of$2,700; a 12-month starting point was adopted.9 Finally, in Turner v R, the defendant4 Criminal Procedure Act 2011, s 250(2).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].7 McLaren v Police [2021] NZHC 742.8 Rako v R [2015] NZCA 463.9 Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.and his associate pressured an unwell 72 year old man into providing his bank cardand used it to take a total of $5,000.10 The Court considered that a starting point of18 months' imprisonment was justified in light of the aggravating features of theoffending, especially the repeated targeting of a vulnerable victim. Ms Maino submitsthat 12 months was not an excessive starting point in this case on the basis thatMs Houkamau's offending is more serious than Walsh and most similar to Turner.[14] There is no guideline judgment for offending of this kind. Each case must beconsidered on its particular facts, and the appropriate starting point should be adoptedwith regard to the aggravating and/or mitigating features of the offending as well ascomparable cases. As the Court of Appeal has confirmed, culpability for dishonestyoffending is not measured solely or even primarily by the amount taken – otheraggravating factors are also relevant.11 Relevant aggravating factors include thesophistication of the offending; the type, circumstances and number of victims;the loss caused; and the impact on the victim or victims.12[15] The aggravating factors in this case are the premeditation involved in theoffending and the vulnerability of the victim. Ms Houkamau targeted an elderlywoman with dementia and memory issues. She used the anonymity she had over thephone to present herself as someone with authority to close customer bank accounts,telling the victim that she had to repay money she owed or her account would be closedthat morning. As the Judge noted, the fact that Ms Houkamau used the victim'sidentity to open an account despite the victim's insistence that she did not give her anypersonal details indicates there was some sophistication to this offending, though I donot consider it to be the most sophisticated of its type.[16] As Ms Maino submits, cases concerning offending under s 228 of the CrimesAct 1961 (dishonestly taking or using a document) are of assistance when determiningthe range of available starting points for obtaining by deception.13 Unlike this case,Walsh involved repeated offending with an element of breach of trust (as the defendant10 Turner v R [2014] NZCA 454.11 Rako v R [2015] NZCA 463 at [10].12 R v Varjan CA97/03, 26 June 2003.13 Both offences capture similar offending and carry a maximum penalty of seven years'imprisonment.had on several occasions used the bank card of his aunt whom he lived with).However, the total amount of money taken through the several small transactions iscomparable, as it was in Rako.[17] In Turner, the Court emphasised that the vulnerability of the victim increasedthe defendant's culpability markedly compared to other cases without a vulnerablevictim. The victim was an elderly man who lived alone and suffered from a braintumour. He gave his bank card to the defendant and his associates after they subjectedhim to bullying tactics through repeated visits to his home. Although Ms Houkamaudid not exploit the victim's vulnerability to the same extent, her targeting of avulnerable person is a significant feature of this offending.[18] After examining recent High Court authority, the Court of Appeal in Rakoconcluded that a starting point in the range of 12 to 18 months – in some cases higher– is appropriate where a defendant unlawfully uses credit or debit cards on multipleoccasions to cause losses of $2,000 to $6,000.14 Lang J had earlier found that a startingpoint of 12 to 18 months' imprisonment will be appropriate where the offending resultsin losses of around $2,000 to $3,000. This was again in the context of a defendantusing stolen credit cards or cheques on multiple occasions.15 The Court of Appeal hasconsidered 18 months to be an appropriate starting point in an older case where thedefendant applied for various credit cards in others' names using their personal detailsand used these to purchase items to a total value of $3,000.16 As Isac J said in McLarenv Police, the nine month starting point adopted by the District Court Judge in that casewas undoubtedly lenient.17[19] Taking into account the aggravating features of the offending andacknowledging the amount taken was $2,100 in a single transfer, I consider the12 month starting point adopted by the Judge was within range.14 Rako v R [2015] NZCA 463 at [9].15 Tiopira v Police [2012] NZHC 1720 at [12].16 R v Singh (2003) 20 CRNZ 158 (CA), cited recently in Bennett v Police [2015] NZHC 2592 at[26] and [45].17 McLaren v Police [2021] NZHC 742 at [20].Uplift for prior convictions[20] Mr Jenkins submits that the total uplift applied of 32 per cent – 10 per cent forthe fact that Ms Houkamau's offending occurred whilst on sentence and approximately22 per cent for her previous convictions – was excessive. He recognises that someuplift was required for her previous convictions but submits that the total uplift shouldnot have exceeded two months.[21] Ms Maino supports the uplift applied by the Judge. She submits a significantuplift was warranted for Ms Houkamau's 33 convictions for dishonesty relatedoffending and the present offending having occurred while she was on sentence.[22] The rationale behind uplifting a sentence for prior convictions is that previousrelevant offending is an indicator of the defendant's character which impacts theirculpability and predicts their risk of further similar offending. The fact that the presentoffending occurred while the defendant was serving a sentence is an additionalaggravating factor and heightens the need for deterrence.[23] Following the Moses methodology,18 the aggravating and mitigating factorspersonal to the offender should be calculated as a percentage of the adjusted startingpoint and offset against each other. Calculated in that way by reference to the startingpoint of 12 months' imprisonment, the two month uplift for previous convictions isjust under 17 per cent, not 22 per cent as claimed, with the total uplift of 27 per cent.The total discounts were 35 per cent so the net discount is eight per cent, or one month,resulting in an end sentence of 11 months' imprisonment.[24] An uplift was appropriate for Ms Houkamau's criminal history. The presentoffending follows a sustained pattern. Her recent convictions include severalconvictions for obtaining by deception (over $1,000), causing loss by deception, theftand other dishonesty related offences. She has previously been sentenced toimprisonment for such offending, so an uplift was not disproportionate as in McLaren.That she committed the offending against the victim while on intensive supervisionfor offending of the same nature demonstrated the need for Ms Houkamau to18 Moses v R [2020] NZCA 296.understand the consequences of her actions. An uplift for that was also appropriate toseek to deter Ms Houkamau from further offending, including against vulnerablepeople. The combined three month uplift, however, for Ms Houkamau's priorconvictions and offending while on sentence was at the high end.Discount for personal factors[25] Mr Jenkins submits that the Judge should have applied a reduction in the regionof 25 per cent for considerations arising out of the cultural report. He submits a greaterdiscount was warranted for Ms Houkamau's history of deprivation and her personalstruggles beyond her struggles with mental health.[26] Ms Maino accepts that the contents of the cultural report illustrateMs Houkamau's background of trauma and deprivation which gave rise to her mentalhealth issues. However, she submits there is a logical gap in causation between thesedifficulties and Ms Houkamau's "persistent and exploitative course of offending"to justify any greater discount than the 10 per cent given by the Judge.[27] The Judge did not refer to the cultural report. It is necessary to make my ownassessment. The detailed report by Ms Wilkinson of H2R Research and Consultingrecords that Ms Houkamau suffered [redacted] abuse throughout her childhood andlife as a young adult. She is working through an ACC claim. As an adult, she was inan abusive relationship with a man who would lose money gambling and take her withhim to "scam people on the street" and "scam old people" to recover their losses.[28] As a result of her abuse as a young person, Ms Houkamau has been diagnosedwith [redacted]. She has spent time in mental health facilities and currently takesmedication to manage her [redacted]. The report writer recommends a neurologicalexamination to assess potential traumatic brain injuries and assessment by apsychologist.[29] The report paints a tragic picture of Ms Houkamau's traumatic upbringing andher complex mental health struggles. These are acknowledged by the respondent eventhough there is limited evidence beyond self-reporting, as is the link toMs Houkamau's mental health issues justifying a discount. Given that, I do not acceptthere is a logical gap in causation between Ms Houkamau's background and heroffending. There is a sufficient nexus. It would certainly have been open to the Judgeto conclude that Ms Houkamau's background of trauma and mental health issueswarranted a higher discount than 10 per cent. But the issue is whether the 10 per centdiscount was too low. I accept the persistent and exploitative course of offending isrelevant to the level of discount given the purposes and principles of sentencing.As the Judge described, her offending was audacious. Deterrence and protection ofthe community are relevant.[30] On the other hand, the report writer says that Ms Houkamau's abusiverelationship of 10 years has ended, and this may be her best chance to break free froma recidivist offending cycle. That is of course to be encouraged. I note the Judgegranted leave to apply for a sentence of home detention or community detention andintensive supervision to a residential rehabilitation treatment programme. However,Mr Jenkins pointed out that by the time Ms Houkamau could obtain any suchplacement she would be time served. Moreover, he submitted that she was not amethamphetamine user – she had been stealing to fund methamphetamine and alcoholfor her partner.[31] Having regard to Ms Houkamau's trauma in her upbringing and mental healthissues, but not addiction, I do not accept that the 25 per cent discount sought wasrequired. However, taking into account the cultural report, I consider a 20 per centdiscount is appropriate given the combination of Ms Houkamau's trauma in herupbringing and mental health issues. That would have increased the total discountsfrom 35 to 45 per cent.[32] In assessing whether the 11 month end sentence was manifestly excessive,I also keep in mind that the 27 per cent uplift was high. Overall, having regard toMs Houkamau's personal circumstances I consider the net discount should have beenin the region of 20 per cent rather than eight per cent. Thus, the end sentence shouldbe nine and a half months' imprisonment. The difference is more than tinkering.Result[33] The appeal is allowed.[34] I set aside the sentence and substitute a new sentence of nine and a half months'imprisonment.________________________________Gault J