BROWN v NEW ZEALAND POLICE [2020] NZHC 3361

BROWN v NEW ZEALAND POLICE [2020] NZHC 3361 [16 December 2020]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2020-416-15[2020] NZHC 3361BETWEEN KATRINA LOUISE BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2020Counsel: W R Hawkins for AppellantA V Bryant for RespondentJudgment: 16 December 2020JUDGMENT OF CHURCHMAN JIntroduction[1] Ms Brown (the appellant) pleaded guilty to 14 charges of accessing a computersystem for a dishonest purpose.1 In the Gisborne District Court, Judge Cathcartsentenced the appellant to 25 months' imprisonment, concurrent on all charges, as wellas imposing a reparation order in the sum of $62,976.61 and an emotional harmpayment of $7000 to the victim.[2] The appellant now appeals against this sentence on two grounds:(a) that the Judge erred in adopting a starting point that was manifestlyexcessive; and1 Crimes Act 1961, s 249(1)(a). This carries a maximum penalty of seven years' imprisonment.(b) that the Judge erred by failing to give a proper discount for mitigatingfeatures.[3] The respondent submits that the starting point and discounts applied by theJudge were entirely appropriate, but conceded that the end sentence ought to have been24 months, rather than 25 months of imprisonment, because the Judge made amathematical error in sentencing when applying the new methodology as articulatedby the Court of Appeal in Moses v R.2 Nevertheless, the respondent's position wasthat imprisonment of 24 months was still the appropriate sentence in this case, ratherthan home detention.[4] Given that the Judge erred in applying the discounts and that the end sentenceshould in fact be 24 months' imprisonment rather than 25 months, the real issue forthis appeal is whether the least restrictive and most appropriate sentence in this caseis home detention. A significant development requiring the Court's consideration isthe very recent payment by the appellant into her lawyer's trust account of the sum of$20,000 on account of outstanding reparation. That $20,000 has now been paid to theMinistry of Justice for forwarding to the victim.BackgroundFactual background[5] The appellant was employed by First Fresh (NZ) Ltd (First Fresh) in 2018 asthe accounts payable clerk. Her role concerned the payment of invoices for thecompany's vendors and creditors.[6] During the period between 9 November 2018 and 20 September 2019, theappellant regularly made payments from the First Fresh's account into her ownaccount, as well as to a joint account between the appellant and her partner. Theappellant also had two sons, both of whom had bank accounts to which money fromFirst Fresh was transferred by her. Overall, the appellant stole a total of $147,390.87from the company over the 10-month offending period.2 Moses v R [2020] NZCA 296; (2020) 29 CRNZ 381.[7] On 4 October 2019, First Fresh became aware of what had been occurring. Thebank used by First Fresh identified a total of $28,550.77 transferred by the appellantinto an account held by one of the appellant's sons, and another payment totalling$106,421.80 made to her other son. After the police were contacted, further analysisof the company's bank accounts revealed more fraud. The pattern showed consistentand repetitive transfers from the company account into both of her sons' accountsthrough to 20 September 2019.[8] A total of 14 transactions were made from the company's account into the twoaccounts belonging to the appellant's sons. Additionally, the appellant transferredmoney daily from her sons' accounts into her own personal account. $38,969.26 wasable to be recovered from the sons' accounts and returned to the company, leaving asum of $108,421.61 owed.[9] When the police spoke to the appellant, she admitted the offending. Followingthis, the appellant eventually made a payment of some $40,000 by way of bank chequeto First Fresh at an earlier hearing. However, up until yesterday, the appellant hadbeen unable to arrange for payment of any more of the remaining sum, despite havingtransferred her equity in her property to her partner so as to facilitate raising amortgage for the balance of the outstanding fraud money. The outstanding balance isan agreed figure of $62,976.61. Assuming that the sum of $20,000 held by theappellant's solicitor is paid, that reduces the outstanding balance to $42,976.61.District Court decision[10] After setting out the relevant facts, the Judge detailed the effect of theappellant's offending on the victim company, particularly the operating manager, whodiscussed the financial impact on First Fresh.[11] The Judge then considered a number of analogous cases, including Prasad vPolice,3 Price v Police4 and Campbell v Police5, as well as the aggravating factors ofthe offending, which included abuse of trust and premeditation, to reach a starting3 Prasad v Police [2017] NZHC 2071.4 Price v Police [2017] NZHC 2523.5 Campbell v Police [2013] NZHC 838.point of 38 months' imprisonment. The Judge noted that had the appellant paid backall of money owed, as well as the $7000 emotional harm payment that she had offeredto pay, then he would have deducted a period of eight months from the starting point.[12] Turning to the mitigating features, the Judge granted a 5.4-month discount forthe appellant's lack of previous convictions for offending of this nature, payment ofpart of the money owed, and the emotional harm payment offer of $7000. A 20 percent discount was granted for the appellant's guilty plea, with the Judge noting thatthe full 25 per cent could not be granted because of the appellant's decision to firstplead not guilty. A further discount of one month was granted for the appellant'sremorse and restorative justice efforts. This led to an end sentence of 25 months'imprisonment (concurrent on all charges) alongside a reparation order in the sum of$62,976.61 and an emotional harm payment of $7000 to the victim.Provision of Advice to Courts (PAC) report[13] The PAC report firstly noted that the appellant had very few previous charges,namely two minor charges of careless driving and never holding a driver licence,dating back to 1993. It noted that the appellant was in a poor frame of mind duringthe period of her offending, as a result of her whangai daughter moving to hergrandparents, and her dying father asking her if she could clear the debt on the familyfarm before he passed away.[14] The report considered the appellant's likelihood of re-offending as low as aresult of her lack of previous offending and her deep regret, while her risk of harm wasassessed as medium based on the financial loss to the victim.[15] The report noted that the appellant had undergone a restorative justice process,having attended a restorative justice conference where she apologised to the victimsand agreed to pay a lump sum repayment before her sentencing.[16] The appellant's home environment and family circumstances were detailed,with the report indicating that she had a strong connection with her whānau and theirsupport throughout the sentencing process. The appellant is employed by OrangaTamariki but is on full suspension as a result of the charges. She volunteers, and isenrolled as a full-time extra-mural student at Te Wananga o Raukawa.[17] In terms of the appellant's attitude, the report stated that the appellant'soffending could be characterised by "an elongated lapse of rational thinking, and wasemotionally driven, brought on by the death of her niece, the separation from herwhangai daughter and the request from her dying father to remedy the financial crisisthat the family farm was in". The appellant's significant remorse for her actions wasstressed.[18] Ultimately the report recommended that the appellant receive a sentence ofhome detention, due to her intention to pay the repay the company back in full and hersincere remorse. The appellant's home address was considered to be suitable, with theordinary home detention conditions of travelling directly to and staying at the address,undertaking appropriate assessment, treatment and counselling, not possessing orconsuming any drugs or alcohol and notifying a probation officer prior to commencingany employment.Position of the partiesThe appellant[19] On the first ground of appeal, counsel for the appellant, Mr Hawkins, submittedthat the starting point imposed by the Judge was manifestly excessive in that it shouldnot have exceeded three years' imprisonment. After setting out a range of authorities,counsel submitted that Fitzmaurice v Police6 was the most analogous to the currentcase, where a three-year six-month starting point was imposed for the same charge,but with over $40,000 more stolen. Counsel, referring to R v Varjan,7 referred to anumber of factors that indicated the particular culpability of the appellant. Theseincluded:(a) the nature of the offending;6 Fitzmaurice v Police [2013] NZHC 494.7 R v Varjan CA97-03, 23 June 2003 (CA).(b) its magnitude and sophistication(c) the circumstances and number of victims;(d) motivation for the offending;(e) amount involved;(f) losses;(g) the period over which the offending occurred;(h) the seriousness of the breach of trust; and(i) the impact on the victim.[20] Counsel acknowledged that the impact on the victim was a particularlyimportant factor in this case. According to counsel, these factors, taken at theirhighest, would have led to a starting point of no more than three years' imprisonment.[21] On the second ground of appeal, counsel submitted that the discounts for theappellant's guilty plea and for her remorse and repayment were too low. In terms ofthe guilty plea discount, according to counsel, the appellant was "always willing toplead guilty" but wanted to know the final reparation figure and disclosure to thateffect, meaning that the discount should have been greater that 20 per cent. In termsof the discount for remorse and repayment, counsel submitted that the appellant hadundergone a significant rehabilitative process, and that this was not properly focusedon – instead the Judge placed too much of an emphasis on the appellant's promise topay reparation in full. According to counsel, had proper allowance for the appellant'sother mitigating features, namely her rehabilitative efforts and prospects, thensentence imposed would not have exceeded 24 months' imprisonment, and would havebeen in the range of 22-24 months, which then would have been appropriate tocommute to home detention as the least restrictive outcome.[22] On 14 December 2020, counsel for the appellant filed a memorandum in replyto the respondent's submissions. Counsel acknowledged and accepted therespondent's submission that the Judge had erred in applying the Moses methodology,and sought admission of de novo evidence in the form of 11 character references insupport of the appellant's good character and personal circumstances and two lettersabout issues that had been experienced by one of the appellant's children.8 Therespondent's position opposing home detention was disputed, with counsel noting arecent cased heard in the Dunedin District Court by Judge Turner of 4 November 2020,where two offenders stole over $220,000 and were sentenced to 10 months' homedetention and 400 hours of community work after paying back $80,000 to the victim– it was inferred that a similar sentence should be applied here.[23] Finally, counsel confirmed that $20,000 of reparation money had been paid bythe appellant's whānau into their trust account. Counsel submitted that as a result,measured consideration should be given to reducing the amount of time to be servedon home detention, if the sentence of imprisonment was commuted to that. Accordingto counsel, allowing for this and the fact that the appellant has served over a month inprison, an end sentence of six to eight months would be the least restrictive outcome.[24] During the course of the hearing I enquired of counsel whether he could assurethe Court that he had instructions to pay the $20,000 in his firm's trust account to theMinistry of Justice on account of reparation. He was unable to confirm unequivocalinstructions to that effect.The respondent[25] Counsel for the respondent, Ms Bryant, submitted that the starting point anddiscounts were entirely appropriate and within range, but that it was unnecessary todetermine these grounds, as the Judge made a mathematical error meaning that the endsentence ought to have been 24 months' imprisonment, rather than 25 months. Whenapplying the Moses methodology, the Judge erred when calculating the 20 per centguilty plea discount from the already reduced starting point of 32.6 months (this was8 In a minute Brown v New Zealand Police (Minute of Churchman J), 15 December 2020, followingargument, I declined to grant leave for the filing of the character references but admitted the twoletters about the appellant's son.the starting point of 38 months reduced by the 5.4 month discount for reparation),rather than the original starting point of 38 months. Therefore, the 20 percent discountought to have equated to 8.6 months rather than 6.6. months.[26] However, counsel opposed commuting the 24-month sentence ofimprisonment to one of home detention. This was for several reasons. First, as notedby the Judge, the appellant's sentencing had been adjourned twice already in order toallow her to pay the full amount of reparation. Second, the appellant's offending wasbrazen and opportunistic, evidenced by the large amount of money, the duration ofoffending and abuse of trust. Third, while the Court should impose a sentence thatassists the appellant's rehabilitation and reintegration, it should also denounce anddeter her conduct, having regard to the gravity and seriousness of the offending andits effect on the victim company.[27] Counsel also noted that there was no evidence that appellant actually used thestolen funds to pay the debts owed on the family farm.Approach on appeal[28] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Underthis provision, an appeal against sentence is an appeal against a discretion and mustonly be allowed if the Court is satisfied that, for any reason, there was an error in thesentence imposed and a different sentence should have been imposed.9 The focus ison the final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.109 Tutakangahau v R [2014] NZCA 279.10 Ripia v R [2011] NZCA 101 at [15].Relevant law and analysisApproach to sentencing[29] The first consideration to note is the two-step methodology in line with the newprinciples set out in Moses v R11 by the Court of Appeal earlier this year, replacing theCourt's methodology in Hessell. This is as follows:12A two-step methodology should be used:(a) the first step, following Taueki, calculates the adjusted starting point,incorporating aggravating and mitigating features of the offence;(b) the second step incorporates all aggravating and mitigating factorspersonal to the offender, together with any guilty plea discount, whichshould be calculated as a percentage of the adjusted starting point.[30] In fixing an appropriate sentence, the Court may consider the general purposesof sentencing contained within s 7 of the Sentencing Act 2002:7 Purposes of sentencing or otherwise dealing with offenders(1) The purposes for which a court may sentence or otherwise dealwith an offender are—(a) to hold the offender accountable for harm done to the victimand the community by the offending; or(b) to promote in the offender a sense of responsibility for, andan acknowledgment of, that harm; or(c) to provide for the interests of the victim of the offence; or(d) to provide reparation for harm done by the offending; or(e) to denounce the conduct in which the offender was involved;or(f) to deter the offender or other persons from committing thesame or a similar offence; or(g) to protect the community from the offender; or(h) to assist in the offender's rehabilitation and reintegration; or(i) a combination of 2 or more of the purposes in paragraphs (a)to (h).11 Moses v R, above n 2.12 At [46].(2) To avoid doubt, nothing about the order in which the purposes appearin this section implies that any purpose referred to must be givengreater weight than any other purpose referred to.[31] The Court must take into account the general principles of sentencing set outin s 8:8 Principles of sentencing or otherwise dealing with offendersIn sentencing or otherwise dealing with an offender the court—(a) must take into account the gravity of the offending in the particularcase, including the degree of culpability of the offender; and(b) must take into account the seriousness of the type of offence incomparison with other types of offences, as indicated by the maximumpenalties prescribed for the offences; and(c) must impose the maximum penalty prescribed for the offence ifthe offending is within the most serious of cases for which thatpenalty is prescribed, unless circumstances relating to the offendermake that inappropriate; and(d) must impose a penalty near to the maximum prescribed for the offenceif the offending is near to the most serious of cases for which thatpenalty is prescribed, unless circumstances relating to the offendermake that inappropriate; and(e) must take into account the general desirability of consistency withappropriate sentencing levels and other means of dealing withoffenders in respect of similar offenders committing similar offencesin similar circumstances; and(f) must take into account any information provided to the courtconcerning the effect of the offending on the victim; and(g) must impose the least restrictive outcome that is appropriate in thecircumstances, in accordance with the hierarchy of sentences andorders set out in section 10A; and(h) must take into account any particular circumstances of the offenderthat mean that a sentence or other means of dealing with the offenderthat would otherwise be appropriate would, in the particular instance,be disproportionately severe; and(i) must take into account the offender's personal, family, whanau,community, and cultural background in imposing a sentence or othermeans of dealing with the offender with a partly or whollyrehabilitative purpose; and(j) must take into account any outcomes of restorative justice processesthat have occurred, or that the court is satisfied are likely to occur, inrelation to the particular case (including, without limitation, anythingreferred to in section 10).[32] The Court must also take into account the aggravating and mitigating factorsin s 9 of the Sentencing Act.The appropriate starting point[33] As discussed above, the Judge referred to three cases in support of the imposedstarting point of 38 months' imprisonment. Firstly, Prasad v Police. That case alsoconcerned 14 charges of accessing a computer and thereby obtaining property bydeception and without claim of right.13 In similar circumstances to the current case,Mr Prasad also accessed his employer's computer system and used it to transfer fundsinto his own bank account under the guise of paying invoices. Some $183,000 wasstolen, of which $10,200 was recovered. Lang J upheld the District Court sentence of32 months' imprisonment, as well as the starting point of 45 months as being withinthe available range (albeit at the top of the range).14[34] Secondly, Price v Police. The appellant was charged five charges ofdishonestly using a document to obtain a pecuniary advantage and two charges ofobtaining by deception after he and his two co-offenders defrauded Foodstuffs (wherehe was a general manager) of around $155,000.15 The sentencing Judge adopted astarting-point of three years six months, which was upheld on appeal by Venning J,who stated a starting-point in the range of three years three months to three yearsnine months was open to the Judge.16[35] Finally, Campbell v Police. Similarly, to the current case, the appellant wasemployed as an accounts manager, and falsified and manipulated entries in thecompany's accounting system to pay money into her own bank accounts. Overall, theappellant fraudulently obtained $261,205 from her employer.17 A starting point ofthree years nine months' imprisonment was upheld on appeal.[36] Campbell and Price involved offending that had greater premeditation andplanning than the current case. This case is most analogous to Prasad in terms of13 Prasad v Police, above n 3.14 At [9].15 Price v Police, above n 4.16 At [21].17 Campbell v Police, above n 5.offending, although the starting point appeared to be at the upper end of the range.Consequently, I do not consider that the Judge erred in imposing a starting point of 38months' imprisonment, as this recognised that the circumstances were analogous tothe three cases discussed above, but slightly less serious in terms of premeditation andplanning, and amounts stolen. The recent Dunedin District Court case referred to byMr Hawkins does not alter my conclusion. Theft cases have widely variable facts. Onthe facts of this case, the starting point adopted was within the available range.Home detention[37] If an offender is convicted of an offence punishable by imprisonment,18 andthe end sentence reached is a short-term sentence (meaning a sentence ofimprisonment of up to 24 months),19 home detention becomes available as asentencing option. However, whether or not it is appropriate to impose this sentence,in the circumstances of a particular case, is a matter for the discretion of the sentencingJudge. There is no presumption in favour of home detention being imposed.20[38] It follows that there are two steps involved in considering a sentence of homedetention. In R v Vhavha, William Young J clarified how these are to be carried out:21The two-step process required for a sentence of home detention requires theJudge first to decide that the sentence which is otherwise appropriate is ashort-term sentence of imprisonment ('stage one') and then whether tocommute that sentence to home detention ('stage two'). Similar (at leastbroadly) two stage processes were associated with the power to suspend prisonsentences and the power to give leave to apply for home detention — theprecursors of the present discretion to sentence to home detention. Faithfuladherence to such processes requires the judge at stage one to operate on theassumption that there is no stage two. The underlying legislative purpose isto avoid net-widening and, more particularly, to ensure that the more lenientsentences which can be imposed at stage two are reserved for those who wouldtruly otherwise have been imprisoned.[39] In R v Hill, rehabilitative considerations are expressly considered to beimportant in determining whether to sentence to home detention:2218 Sentencing Act 2002, s 80A(1)(a).19 Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).20 R v Stacey [2008] NZCA 465 at [21].21 R v Vhavha [2009] NZCA 588 at [31].22 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].Where an offender is motivated to change, and where there is a realisticprospect that he or she will be able to change, there are obvious benefits in asentence of home detention, both from society's perspective and from that ofthe offender.[40] Section 15A of the Sentencing Act provides that a court may only impose asentence of home detention if it is satisfied that the purpose or purposes for which thesentence is being imposed cannot be achieved by any less restrictive sentence orcombination of sentences and the Court would otherwise sentence the offender to ashort-term sentence of imprisonment. The Courts have recognised that homedetention carries a considerable measure of denunciation and deterrence, to the pointat which it can supplant a short-term sentence of imprisonment.23[41] In Metua v R, Hinton J (citing the Court of Appeal decision of Fairbrother vR), provided useful guidance on a court's assessment of when home detention isappropriate:24[12] Accordingly, as with any offence, where a proposed term ofimprisonment is under two years the sentencing court is obliged to consider aterm of home detention. Where appropriate, after considering the purposes ofsentencing, home detention is to be imposed. The Court cannot impose asentence of imprisonment unless satisfied that relevant sentencing purposescannot be achieved by another sentence. The Court of Appeal in Fairbrotherv R stressed that in choosing between the two options, "the choice must beintelligible", which requires that the "factors that really count must beidentified and weighed". In that casethe Court provided useful guidance onwhen home detention should be substituted for imprisonment on appeal:Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing judgehas assumed that the offence category lies beyond a sentence of homedetention. The other is where the purpose of deterrence has beengiven complete priority without regard to any of the countervailingpurposes of sentence. That does not mean that a short-term period ofimprisonment must always be commuted to a sentence of homedetention. That equally would be an error of law. What it does meanis that the judge must make a considered and principled choicebetween the two forms of sentence, recognising that both serve theprinciples of denunciation and deterrence, and identifying which ofthem better qualifies as the least restrictive sentence to impose takinginto account all the purposes of sentencing.23 R v Iosefa [2008] NZCA 453, at [41]; and Fairbrother v R [2013] NZCA 340 at [29].24 Metua v R [2018] NZHC 246 at [12].[42] Acknowledging the Judge's error which meant that under the two-stepmethodology espoused in Moses, the Judge erred in applying the discounts and thatthe end sentence should in fact be 24 months' imprisonment rather than 25 months,the critical question is whether the sentence should be commuted to one of homedetention, or remain as a sentence of imprisonment.[43] The greatest factor militating against a sentence of home detention is theappellant's failure to repay the remaining $62,976.61 owed, despite her promise to doso in the restorative justice conference before sentencing, and two separateadjournments by the Judge to give the appellant more time to pay, with the Judgeexplicitly warning the appellant in the second adjournment:25if the money is paid that in principle must lower the starting point. Andrepayment of course achieves a measure of justice for the victim. Thus,Ms Brown realistically sits on the very edge of a term of imprisonment todayand I am told that she is aware of that.[44] This indicates that a sentence with an element of denunciation and deterrenceis required, so as to denounce the appellant's offending and her failure to repay thefunds owed. A relevant factor to consider in this case is the decision of the Court ofAppeal in Otufangavalu v R, which was described in Francis v R as authority for theproposition that the failure to pay reparation can be relevant to the availability of homedetention if it shows an absence of remorse.26 In that case, the Court of Appealobserved:27We reject Mr Hall's submission that significant weight must be attached to anoffer of reparation although the offender might have taken steps to pay itearlier. Nor is it necessary to attach much weight to professed remorse wherethe offender might have demonstrated it in a tangible way, but did not. Theappellant might have tipped the balance in favour of home detention had hetaken advantage of the extended period on remand to do something to addressthe causes of his offending, or to pay reparation, or to name his co-offender,who remains at large, but he chose to do none of these things.[45] However, a sentence of home detention can still carry a considerable measureof denunciation and deterrence, which will likely be the case in these circumstancesgiven the appellant's significant remorse, shame, and loss of standing in the25 Police v Brown (Minute of Judge Cathcart) CRI-2020-016-561, 20 October 2020 at [6].26 Francis v R [2011] NZCA 353 at [13].27 Otufangavalu v R [2010] NZCA 585 at [12].community from the offending, regardless of the sentencing outcome. There are threeother factors which favour a sentence of home detention in this case.[46] Firstly, the appellant's rehabilitative prospects and actions. The appellant didcommit to and undergo a restorative justice conference and had repaid some $40,000to the victim company at the time of sentencing. While she is arguably in less need ofrehabilitation than many offenders, she has made efforts to rehabilitate herself throughthese actions and would be well-placed in her own home environment to rehabilitateand put her offending behind her.[47] Secondly, the PAC report indicates that the appellant has a strong support basewithin her whanau and in her home environment, where she would be better supportedwith her rehabilitation and reintegration into the community.[48] Finally, the reparation order to pay the outstanding sum owed, as well as $7000for emotional harm, can still be applied from the original sentence, meaning that theappellant will still be accountable for repaying that money.[49] I also note that, at sentencing, the police did not oppose the imposition of homedetention (which had been recommended in the PAC report) and they adopted thatposition knowing that the promised reparation had not been paid. Ms Bryant was notable to refer to any cogent reason justifying the prosecution's change of position onthis point on the appeal.Analysis[50] On the information available to the Judge at sentencing, his concern at thefailure by the appellant to make the reparation payment that had been repeatedlypromised is understandable. The actual receipt of reparation payments rather thanmere promises is, as the Judge indicated, an important factor when approachingsentencing.[51] However, the situation has now changed. It is accepted that the final sentencethat the Judge should have arrived at was 24 months. When that threshold is reached,the Court is required to consider home detention.[52] A sentence of home detention is capable of holding the appellant accountableand of denouncing even serious offending of the type the Court is dealing with here.The payment of a further sum of $20,000 by way of reparation further reduces the lossto the complainant. Counsel submits that, if granted home detention, the appellant hasthe prospect of employment from which she would be able to make further reparations.That would also be in the interests of the complainant.[53] Finally, it appears that the appellant does have genuine rehabilitative prospectsand is remorseful.Outcome[54] On the basis of the change of circumstances since sentencing, the appeal isallowed, and the sentence of imprisonment is quashed. As the appellant has completedsome 40 days of imprisonment, she is entitled to a credit in what would otherwise bea starting point of 12 months home detention.[55] I therefore impose a sentence (on all charges) of:(a) 11 months' home detention to be served at the address specified in thePAC report dated 11 September 2020. It is subject to the standard termsand conditions;(b) on the basis that the sum of $20,000 held by the appellant's solicitorshas now been paid to the Ministry of Justice on account of reparationsthere will be a reparation order of $42,976.61; and(c) there is an emotional harm payment of $7,000 to be made to the victim.Churchman JSolicitors:Bramwell Bate Lawyers, HastingsElvidge & Partners, Gisborne