MCMAHON v NZ POLICE [2017] NZHC 78

MCMAHON v NZ POLICE [2017] NZHC 78 [3 February 2017]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2017-412-000003[2017] NZHC 78BETWEEN JUDITH GAIL MCMAHONAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2017Appearances: S A Saunderson-Warner for AppellantR P Bates for RespondentJudgment: 3 February 2017ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant, Ms McMahon, pleaded guilty to three charges of theft. These offences were committed against members of her family it seems in order to fuel a gambling addiction. She was sentenced on 26 January 2017 in the District Court to two years' imprisonment.[2] She appeals against the sentence on the basis that it is manifestly excessive, that the starting point adopted was too high and that the sentence of imprisonment should have been commuted to impose home detention.Background[3] Turning to the background facts in this matter, the appellant, to a degree, provided care for her elderly father and her intellectually disabled brother. Her role included looking after their financial affairs and handling their day to day living expenses.[4] Between September 2007 and June 2011, the appellant took $13,250 from her brother's NZ Mortgage Income Trust fund for her own use.[5] Between January 2013 and July 2015 the appellant took $29,300 of herfather's money from his account for her own personal use.[6] Between January 2013 and July 2015, the appellant took $22,560 from herbrother's account, again for her own personal use.[7] In each case none of the withdrawal and use of these funds were authorised or proper. The total theft amounted to $65,110.District Court Sentencing[8] In giving his decision in the District Court Judge Crosbie was guided by theCourt of Appeal's decision in R v Varjan, which identified the aggravating factors relating to fraud and dishonesty convictions.1 These factors include the circumstances of the offending, its magnitude, the type and number of victims, the motivation, the amounts and period involved, the seriousness of any breach of trust, and the impact on the victims. Judge Crosbie held that the most relevant aggravating factors in the current circumstance were the amounts, the length of time involved, the type and number of victims, the breach of trust, and premeditation.[9] In referring to a number of authorities, including Wilton v Police,2 R v Jones,3Moule v Police,4 Police v Duke5 and McCreath v R,6 Judge Crosbie arrived at astarting point of three years' imprisonment.[10] Credits were then applied for the appellant's guilty plea, her attempts at rehabilitation, personal health issues and a "limited offer" to make amends, reducingthe sentence by a third to 24 months' imprisonment.1 R v Varjan CA97/03, 26 June 2003.2 Wilton v Police [2015] NZHC 427.3 R v Jones [2016] NZHC 1660.4 Moule v Police HC Whangarei CIV-2008-488-35, 8 July 2008.5 Police v Duke DC Nelson CRI-2009-042-000824, 12 May 2009.6 McCreath v R [2013] NZCA 142.[11] The District Court then considered whether to convert the sentence to home detention and ultimately Judge Crosbie decided that a sentence of imprisonment was required.Jurisdiction[12] Turning to jurisdiction issues, Ms McMahon here appeals as of right.7Pursuant 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 imposed and a different sentence should be imposed. If either element is not satisfied, the appeal court must dismiss the appeal.[13] With regard to appeals against a failure to grant home detention, the Court of Appeal has held that in terms of appellate review of such sentencing decisions the Court must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision. In Manikpersadh v R, the Court held:8[The] proper approach of an appellate court in cases such as this is that thechoice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion with appellate review focusing as in other sentencing appeals to this Court on the identification of error, if any, in the court below.AnalysisWas the starting point too high?[14] I turn now to the question, was the starting point too high? As I have already noted, the District Court identified the factors relevant to the seriousness of the offending here to be the amounts involved, the period of offending, the two victims, the breach of trust and premeditation. The District Court also reviewed several cases before setting a starting point of three years' imprisonment. Judge Crosbie paid particular attention to R v Jones and held that the offending in the present case was more serious and therefore required a higher starting point.7 Criminal Procedure Act 2011, s 244.8 Manikpersadh v R [2011] NZCA 452.[15] In R v Jones, the High Court adopted a starting point of two years and sixmonths' imprisonment for theft of $5962.80 over a two year period. The defendant was a caregiver for an intellectually disabled couple.[16] In another decision considered, Moule v Police, a 21 month starting point was adopted for theft of a commercial digger valued at $86,000. While the digger was hired, the breach of trust was of a different type and therefore this decision, in my view, is of limited assistance to the current case. Similarly, McCreath related to a theft of $70,000 in another employment context. A three year starting point there was adopted.[17] Before me counsel for the appellant, Ms Saunderson-Warner, suggested the most similar decision to the current fact scenario is Wilton v Police.9 This case involved a daughter with a gambling addition stealing $91,000 from her elderly father who suffered from the Parkinson's disease. The offending was over a period of 14 months. A starting point of two years nine months' was adopted.[18] Ms Saunderson-Warner submitted therefore that a starting point of two yearssix months' to two years nine months' was more appropriate in the current case. It is submitted that the starting point should be no higher than that considered in Winton, noting that the amount stolen by the appellant here was approximately a third less.[19] However, while I accept that Judge Crosbie's decision may well be considered to be at the higher range of his discretion, I do not accept that there was an error in sentencing and that a different sentence should be imposed. While the amount stolen in Wilton was more than in the current case, other aggravating factors here, including the length of time during which the thefts occurred, the type and number of victims and the significant and repeated breaches of trust make this case, as I see it, more serious. Furthermore, there are secondary victims to the appellant'soffending here. The appellant's theft against her late father depleted the estate which clearly deprived other beneficiaries of entitlements.9 Wilton v Police, above n 2.[20] I also find the appellant's criminal history to be relevant and an aggravatingfactor to the current offending. While the appellant's seven convictions for using documents for a pecuniary advantage were entered more than a decade ago, being July 2006, I note that her current offending started in 2007, less than a year after her previous fraud and dishonesty convictions. It seems that her previous sentence to community work was insufficient to denounce and deter her from further dishonest offending.[21] I therefore consider the starting point of three years' imprisonment to bewithin the available range of sentences at the Judge's discretion. And I note here that no issue was taken on this appeal with the one third discount given by Judge Crosbie for the early guilty plea and other personal mitigating factorsWhether Judge Crosbie erred in refusing to impose home detention?[22] I turn now to whether Judge Crosbie erred in refusing to impose home detention. In relation to home detention issue, Judge Crosbie held:[53] In my view, because of your previous convictions and the significant breach of trust the need for denunciation and deterrence is high. Given the previous history, given that the amount stolen was a large sum, given that you have an effective inability to pay that back, and that given you are not of the age that was the defendant's age in Cole v Police, I am of the view that a sentence of imprisonment is required to signal denunciation and deterrence and that any other sentence would be inadequate deterrent and denunciative sentence.[23] On this aspect the appellant referred me to R v Fairbrother, where the Court of Appeal noted that the most common errors of law in failing to impose home detention occurred where a sentencing judge assumed that the offence category lay beyond a sentence of home detention; and when the purposes of deterrence had been given complete priority without regard to any of the countervailing purposes of sentencing.10 Furthermore, in Kumar v R, the High Court held:11Most importantly there is here such absence demonstrable, let alone verifiable, remorse as to make home detention an unlikely outcome. Home detention is generally suitable only for those whose remorse is patent, such that three things can be said. First, that they deserve a less restrictive10 R v Fairbrother [2013] NZCA 340.11 Kumar v R [2014] NZHC 146 at [19].sentence. Secondly, that it is, therefore, unnecessary to imprison in order to denounce and deter a recalcitrant. Thirdly, that they may confidently be expected to convert that less restrictive sentence into a meaningful rehabilitative response. Demonstrable and verifiable remorse is a tangible indicator of likely rehabilitation through a community based sentence. It is also a basis for the community to have confidence that its trust will not be abused by reoffending. Logic and experience demonstrate that the remorseful are far more likely to correct a diversion into criminal conduct than those who are not.[24] The appellant refers also here to s 16 of the Sentencing Act 2002, which states that imprisonment should be avoided as far as that is practicable.[25] After considering these submissions advanced on behalf of the appellant and submissions I have received advanced on behalf of the respondent, I am not convinced that Judge Crosbie erred in law by refusing to impose home detention here. As I have already noted, refusal to impose home detention is an exercise of discretion. The appellant must demonstrate that Judge Crosbie considered something irrelevant, failed to consider something relevant, or that the decision was plainly wrong. None of these grounds exist, in my view, in Judge Crosbie's decision.Judge Crosbie, as I see it, in this case properly considered the issue of homedetention and properly concluded that in particular because of the appellant'sprevious convictions, the significant breach of trust, the overall effect on the victims and the entire family of this offending and the need for denunciation and deterrence, that a sentence other than imprisonment would be inadequate to meet the proper purposes of sentencing in this case. The culpability of the appellant, in my view, was of such an extent that particularly it must attract a high level of denunciation and deterrence. Refusing to impose home detention was therefore available at Judge Crosbie's discretion and I am satisfied it was appropriate here.Result[26] For all these reasons this appeal is dismissed....................................................Gendall JSolicitors:Sarah Saunderson-Warner, DunedinRPB Law, Dunedin