MASON v NEW ZEALAND POLICE [2018] NZHC 3387

MASON v NEW ZEALAND POLICE [2018] NZHC 3387 [18 December 2018]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2018-454-000017[2018] NZHC 3387BETWEEN JAHNA MEREANA MASONAppellantAND NEW ZEALAND POLICERespondentHearing: 18 December 2018 (via AVL at Wellington)Counsel: S K Green for AppellantS P Poulton for RespondentJudgment: 18 December 2018JUDGMENT OF COLLINS JIntroduction[1] Ms Mason appeals an effective sentence of 11 months' imprisonment imposedby Judge Edwards in the District Court at Palmerston North on 18 October 2018.1That sentence was imposed after Ms Mason had pleaded guilty, after receiving asentencing indication, to the following charges:(1) two charges of dishonestly using a document;2(2) two charges of possessing a forged banknote;3(3) four charges of theft;4 and1 Police v Mason [2018] NZDC 21913.2 Crimes Act 1961, s 228(b); maximum penalty seven years' imprisonment.3 Section 263; maximum penalty seven years' imprisonment.4 Sections 219 and 223(d); maximum penalty three months' imprisonment.(4) one charge of breaching release conditions.5[2] Ms Mason appeals her sentence on the grounds that it was manifestlyexcessive.[3] This judgment explains why I am allowing the appeal. The sentence imposedis quashed and substituted with one of five months' imprisonment.Summary of offending[4] On 21 May 2018, Ms Mason entered a Farmers store in Palmerston North. Shetook a handbag valued at $249 and left the store without paying. She then returned tothe same store and stole a 100 ml bottle of perfume valued at $224. Ms Mason alsostole a jewellery box from a souvenir shop on the same day.[5] On 27 May 2018, Ms Mason entered a Warehouse store in Feilding. She wasintoxicated at the time. Ms Mason took a handbag valued at $22 from the shelf andattempted to leave the store without paying for it, but when the alarm system wasactivated she was confronted by staff.[6] On 1 June 2018, Ms Mason entered a Salvation Army store in Pahiatua. Shepaid for a sweatshirt valued at $6.50 with a counterfeit $50 note, receiving $43.50 inchange. A short time later, she entered a Tradesmart store situated nearby. She thenpaid for an item of clothing valued at $2 with another counterfeit $50 note, receiving$48 change.[7] That evening, Ms Mason attempted to use a third counterfeit $50 note at a hotelin Dannevirke. The owner of the hotel initially exchanged the counterfeit note forlegal tender, but quickly realised that it was counterfeit and re-claimed her money. MsMason was initially charged in relation to this incident, but those charges were notpursued.5 Sentencing Act 2002, s 96(1); maximum penalty one year's imprisonment.Personal circumstances[8] Ms Mason is 37 years old. She has 37 previous convictions, the majority ofwhich are for minor shoplifting. The remainder of her previous convictions are mostlyfor breach of court orders and sentencing conditions. Ms Mason has served severalprison sentences in relation to these offences, all less than two months duration. Theexception being a six-month prison sentence she received in 2017 in relation to adomestic violence charge. In May 2018, she was sentenced to two months'imprisonment for breaching her release conditions on three occasions in relation tothat sentence.[9] Ms Mason has four children, who reside with her father. She appears to havea violent relationship with her father.[10] The pre-sentence report assessed Ms Mason at a high-risk of re-offendingbecause of her recidivist record. It assessed her risk of harm to others as mediumbecause of her 2017 conviction for violent offending. The report recommended aperiod of imprisonment sufficient to complete a Department of Correctionsprogramme, which would finish in February 2019. This appears to have been aimedat addressing her drug and alcohol problems. She reported consumingmethamphetamine and drinking substantial quantities of alcohol on a daily basis. Shesaid that she funds her addiction by shoplifting.[11] The report also assessed that Ms Mason did not have the ability to comply witha community-based sentence because she had previously failed to report on a regularbasis, had failed to complete programmes to address her rehabilitative needs and hadcontinued to offend while on sentence. The report concluded that a sentence ofimprisonment long enough to complete a relevant programme was the only way toreduce Ms Mason's re-offending.District Court decisionSentencing indication[12] On 24 August 2018, Judge Edwards provided Ms Mason with a sentencingindication. The Judge adopted the dishonesty charges relating to the counterfeit $50notes as the lead offending. She noted that an aggravating feature of the offendingwas that it involved charity shops. She recognised that Ms Mason had provided policewith the name of the person who had given her the counterfeit notes, however, theJudge said that this did not mitigate Ms Mason's offending because she was the onlyone who attempted to use those notes as legal tender. The Judge comparedMs Mason's offending with Nanthasak v Police, where the High Court suggested arange of between five and seven months' imprisonment would be appropriate as astarting point for one offence of offering a forged bank note.6 The Judge reasonedthat, although the amount of money involved in that case was larger, Ms Mason hadcommitted two offences, so a starting point of six months' imprisonment waswarranted.[13] The Judge then uplifted the starting point by three months to account for thetwo shoplifting offences at Farmers, because that offending involved high value itemsand targeted the same store on two occasions. The Judge further uplifted the startingpoint by one month to account for the other shoplifting offences.[14] The Judge considered the breach of release conditions separately, adopting astarting point of three months' imprisonment. She referred to this charge as "not onefailure to report but rather a total refusal to comply with release conditions". TheJudge also noted that previous short-term prison sentences had not deterred Ms Masonfrom failing to comply with her release conditions.[15] The Judge gave a two-month uplift for Ms Mason's 20 previous dishonestyconvictions. In doing so, the Judge recorded the need to keep proportionate any upliftfor previous offending.6 Nanthasak v Police HC Wellington CRI-2010-485-21, 30 March 2010.[16] The Judge then indicated a 20 per cent discount would be available ifMs Mason pleaded guilty to the sentencing indication. This resulted in an indicatedend sentence of 12 months' imprisonment. The Judge considered whether a totalityadjustment was necessary, but concluded that the end sentence was notdisproportionate to the offending overall.[17] The Judge addressed the possibility of home detention if a suitable address wasavailable. She noted that Ms Mason was remanded in custody because no suitable bailaddress had been found.Sentencing[18] On 18 October 2018, Judge Edwards sentenced Ms Mason to a total of11 months' imprisonment. A further month was discounted for rehabilitative effortsthat Ms Mason had undertaken while on remand. Those efforts included completinga Dynamics of Change course and receiving counselling. Ms Mason's counsellorindicated that her desire to change was genuine and that she was looking towardsreceiving ACC counselling for issues in her past that had contributed to her addictions,which had fuelled her offending.[19] The Judge also ordered that Ms Mason pay a total of $100 in reparations to thetwo charity stores involved in the counterfeit offending. The end sentence was brokendown into the following cumulative sentences:(1) six months' imprisonment for the counterfeit charges;(2) three months' imprisonment for the shoplifting charges; and(3) two months' imprisonment for the breach of release conditions charge.Approach on appeal[20] Section 250 of the Criminal Procedure Act 2011 requires the Court to allow theappeal if:(1) for any reason, there is an error in the sentence imposed on conviction;and(2) a different sentence should be imposed.[21] The Court of Appeal has explained that whether a sentence is "manifestlyexcessive" continues to be an important guide to finding an error.7 The Court ofAppeal has also explained:8The discretion to vary [a] sentence [on appeal] is not unfettered; this Courtdoes not embark upon the sentencing afresh nor substitute its own opinion forthat of the original sentencer. There must be an error vitiating the exercise ofthe original sentencing discretion. In short, this Court must proceed on an"error principle".[22] If the end sentence is within range, then the appeal court will not change it,even if the lower court made an error when reaching that end sentence.Grounds of appeal[23] Ms Mason appeals against her sentence on the grounds that Judge Edwardserred by:(1) adopting a starting point that was too high for property offending;(2) failing to take into account Ms Mason's personal circumstances, inparticular that she had been abused;(3) failing to give full credit for her guilty plea; and(4) imposing reparations when she was unable to pay.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].8 At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].First ground of appeal – starting pointSubmissions[24] Ms Green, counsel for Ms Mason, submitted that a sentence of imprisonmentwas not the least restrictive outcome reasonably available in the circumstances.9 Shesubmitted that Ms Mason's offending was non-violent and on the lower end of thescale, and as such it did not warrant a prison sentence. Ms Green emphasised thatthere was only a small amount of money involved and that Ms Mason's involvementwith the counterfeit money was limited to her handing it over to the stores. Shesubmitted that Ms Mason could have been more appropriately dealt with by an orderto come up for sentence if called upon.[25] Ms Poulton, for the police, observed that there is little guidance for this sort ofoffending, particularly where the amount involved is relatively minor. He referred toR v Varjan, where the Court of Appeal described the principles as follows:10Culpability is to be assessed by reference to the circumstances and such factorsas the nature of the offending, its magnitude and sophistication; the type,circumstances and number of victims; the motivation for the offending; theamounts involved; the losses; the period over which the offending occurred;the seriousness of breaches of trust involved; and the impact on victims.[26] Ms Poulton submitted that the six-month starting point for the dishonestlyusing a document charges was within range by reference to Te Au v Police, where aneight-month starting point was adopted for using seven forged cheques to dishonestlyobtain $2,000;11 and Pentecost v Police, where a six-month starting point was adoptedfor $3,400 of cash obtained with a stolen credit card, with a further nine monthsimposed for further dishonesty offending involving $600 while on bail for the first setof offending.12[27] Ms Poulton also referred to two similar theft cases to demonstrate that theuplifts were within range. In McKenzie v Police, a six-month starting point was9 Sentencing Act 2002, s 8(g).10 R v Varjan CA97/03, 26 June 2003 at [22].11 Te Au v Police HC Nelson CRI-2007-442-19, 10 December 2007.12 Pentecost v Police HC Christchurch A127/01, 8 February 2002.adopted on appeal for four charges of theft under $500.13 A two-month uplift wasgiven in that case for breaching conditions. In Police v McMurtrie, a six-monthstarting point was adopted on appeal for five charges of theft under $500 and onecharge of theft between $500 and $1,000.14 A one-month uplift was given in that casefor offending while on bail.Analysis[28] The Judge was correct to reject the submission that Ms Mason's involvementwas limited. While Ms Mason appears not to have been involved in producing thecounterfeit bank notes, that is not the offence she was charged with. Ms Masoncertainly was in possession of the counterfeit notes and she also used those notesdishonestly to obtain a pecuniary advantage.[29] An important aspect of Ms Mason's offending was that it involved the use ofcounterfeit bank notes. Parliament has clearly indicated, by creating an offencespecifically to deal with it, that offending of this nature is to be taken particularlyseriously. For this reason, a higher starting point may be appropriate for this sort ofoffending than for other dishonesty offending of a comparable magnitude. For thisreason, I have been assisted by the following cases involving counterfeit bank notes:(1) In Kahui v Police, the defendant was given 12 months' supervision anda $300 fine on appeal for possessing one forged $100 banknote, whichshe had (unsuccessfully) attempted to use to purchase groceries at asupermarket.15 The defendant had no previous convictions.(2) In Nanthasak v Police, a starting point of between five and sevenmonths' imprisonment was indicated as appropriate for possession of11 forged USD 100 bank notes.1613 McKenzie v Police [2015] NZHC 2742.14 Police v McMurtrie [2015] NZHC 1031.15 Kahui v Police HC Auckland AP6/97, 25 February 1997.16 Nanthasak v Police, above n 6, at [17].[30] Taking into account those cases, and the comparable cases involving dishonestuse of a document referred to by Ms Poulton, I am satisfied that the starting pointadopted by the Judge was excessive. I consider that an appropriate starting point wouldhave been, at most, two months' imprisonment. This takes into account the factorsreferred to by the Court of Appeal in R v Varjan¸ namely the very small amount ofmoney involved, the absence of sophistication and the fact the offending only occurredover the course of a single day, but also the fact the victims were charities and that theoffending involved counterfeit bank notes.[31] Unlike the sentencing Judge, I am not persuaded that the fact two charges wereinvolved significantly alters Ms Mason's culpability, especially when those chargesarose on the same day. Certainly, that factor is far from enough to off-set the muchlarger quantity of counterfeit money involved in Nanthasak v Police. This case is farmore analogous to Kahui v Police, and if Ms Mason were not a recidivist offender,then a non-custodial sentence would have been appropriate.[32] On a totality basis, I also consider the uplifts given by the sentencing Judge forthe shoplifting offences were too high. Those uplifts totalled four months. Themaximum penalty for theft under $500 is only three months' imprisonment. The valueof the jewellery box is not apparent, but the total value of the other goods stolen byMs Mason was only $495. While three charges were involved, the value of the stolengoods was small overall. Taking into account totality considerations, an uplift of nomore than two months was necessary for the shoplifting charges.[33] That would have given a total starting point of four months' imprisonment.[34] Because of the reduced starting point, it is also necessary to reduce the upliftfor previous offending from two months to one month, to avoid disproportionality.1717 See Tiplady-Koroheke v R [2012] NZCA 477 at [24]; and Taylor v R [2012] NZCA 332 at [46].Second ground of appeal – personal circumstancesSubmissions[35] Ms Green submitted that too little attention was given to the rehabilitation ofMs Mason and to her difficult personal circumstances. She highlighted the violenceMs Mason has faced at home and the fact she has previously been assessed as sufferingfrom PTSD in relation to this. She said a discount was appropriate to recognise thisconsideration.18[36] Ms Green also submitted that no account was taken of the fact Ms Mason hadco-operated with police regarding the supplier of the counterfeit notes. She also saida discrete discount was appropriate for remorse.[37] Ms Poulton submitted that the one-month (6.6 per cent) discount provided bythe Judge was adequate to account for Ms Mason's remorse, as demonstrated by hercompletion of rehabilitative courses and counselling. He submitted that a higherdiscount would not have been appropriate for a recidivist dishonesty offender such asMs Mason.[38] Ms Poulton submitted that a discount would only have been appropriate for MsMason's difficult personal circumstances if evidence had been presented thatdemonstrated it materially contributed to her offending.19 He pointed out that MsMason had not presented any evidence in relation to her claim that she suffers fromPTSD.[39] In relation to assisting police, Ms Poulton emphasised that it is not enough tosimply not be obstructive, and that Ms Mason would have to demonstrate that she wentabove and beyond to facilitate the disposition of the proceedings or reduce their cost.20He said that she had not done so.18 Sentencing Act 2002, s 8(i).19 Referring to R v Whiu [2007] NZCA 591 at [32].20 Referring to Sentencing Act 2002, s 9(2)(fa).Analysis[40] I accept that it was open to the Judge not to give a discrete discount forMs Mason's difficult personal circumstances. While the pre-sentence report suggestedthat Ms Mason was stealing to fuel her methamphetamine addiction, there was noevidence before the sentencing Judge, and there is also none on appeal, to show thather addiction is the result of the particular circumstances she refers to.[41] I also consider that the discount provided by the sentencing Judge was adequateto account for the rehabilitative efforts that Ms Mason has undertaken. That isespecially the case given the lower starting point that I have adopted.[42] While it might have been open to the Judge to give another discrete discountfor Ms Mason's co-operation with police concerning the identity of the counterfeiter,that was not required. Given the reductions I have made to the starting point on appeal,I am satisfied that such a discount is unnecessary.Third ground of appeal – guilty pleaSubmissions[43] Ms Green submitted that Ms Mason should have been entitled to the full 25 percent discount for her guilty plea. Ms Poulton submitted that the 20 per cent discountwas appropriate because Ms Mason did not plead guilty to all charges at the earliestpossible opportunity.Analysis[44] The Supreme Court has made clear that there is no entitlement to a full discountfor a guilty plea, rather it is a matter of evaluation for the sentencing Judge.21 The 20per cent discount given to Ms Mason was within the acceptable range.21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62]. See also Walker v Police [2018] NZHC1388 at [34].Fourth ground of appeal - reparationsSubmissions[45] Ms Green submitted that the $100 reparation order was inappropriate giventhat the Judge had recognised that Ms Mason was not in a position to pay it, especiallywhile in prison. Ms Poulton submitted that the reparations were appropriate. Inparticular, he pointed out that reparations had been sought in relation to the shopliftingcharges as well, and that the Judge took into account Ms Mason's impecuniosity bydeclining to order reparations in relation to those charges.Analysis[46] I do not consider that the reparation orders were disproportionate. Those ordersserve an important function in compensating the victims for their loss. Given that therelevant victims of Ms Mason's offending were charities, it is appropriate that thereparation orders stand.Conclusion[47] I am satisfied the Judge erred in her approach when sentencing Ms Mason andthat a different sentence should be imposed because the sentence of 11 months'imprisonment was manifestly excessive.[48] I adopt a starting point of four months' imprisonment for the dishonestyoffending. This is uplifted by one month to reflect Ms Mason's previous convictionsfor dishonesty offending. I adopt a three-month uplift for Ms Mason's breach ofrelease conditions, and one month discount for her efforts at rehabilitation. Thisresults in a preliminary end sentence of seven months' imprisonment. Applying thediscount of 20 per cent for Ms Mason's guilty plea produces an end sentence offive months' imprisonment.[49] This produces a sentence that satisfies the purposes and principles of theSentencing Act 2002. In particular, the sentence I am imposing will:(1) hold Ms Mason accountable for the harm done to the victims and thecommunity by her offending;22(2) promote in Ms Mason a sense of responsibility for anacknowledgement of that harm;23(3) provide for the interests of the victims of Ms Mason's offending;24(4) denounce the conduct that Ms Mason was involved in;25(5) deter others from committing the same or a similar offence;26(6) assist in Ms Mason's rehabilitation and reintegration;27 and(7) is the least restrictive outcome that is reasonably available in thecircumstances.28Result[50] The appeal against sentence is allowed. Ms Mason's sentences are quashedand substituted with concurrent sentences of five months' imprisonment on each ofthe four charges involving the counterfeit bank notes, which are to be servedconcurrent with sentences of two months' imprisonment on each of the other charges._______________________D B Collins JSolicitors:Crown Solicitor, Palmerston North for Respondent22 Sentencing Act 2002, s 7(1)(a).23 Section 7(1)(b).24 Section 7(1)(c).25 Sentencing Act 2002, s 7(1)(e).26 Section 7(1)(f).27 Section 7(1)(h).28 Section 8(g).