HEREMAIA v NEW ZEALAND POLICE [2017] NZHC 535

HEREMAIA v NEW ZEALAND POLICE [2017] NZHC 535 [23 March 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI-2016-419-000052[2017] NZHC 535BETWEEN KYLIE KATHERYN HEREMAIAAppellantAND NEW ZEALAND POLICERespondentHearing: 23 March 2017Appearances: No appearance by AppellantT A Needham for RespondentJudgment: 23 March 2017(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Ms Heremaia pleaded guilty in the District Court to a charge of stealing the sum of $3,408.20 from her former employer. Her employer was a disabled stroke victim for whom Ms Heremaia was providing paid care. On 12 August 2016, Judge D M Wilson QC sentenced Ms Heremaia to three months community detention and ordered her to pay reparation in the sum of $5,670.59 at the rate of $30 per week.1[2] Ms Heremaia has filed a notice of appeal in which she states that the Judge erred in imposing the sentence of reparation in the sum of $5,670.59. She points out that she was only charged with stealing the sum of $3,408.20. As a result, she contends that the Judge imposed an overall sentence that was manifestly excessive.[3] Counsel who appeared for Ms Heremaia in the District Court has confirmed to the Registry that he does not have any instructions in relation to the appeal. For that reason Ms Heremaia must now be taken to be acting on her own behalf. On 15 March 2017, the Registrar sent a letter to Ms Heremaia advising her that the appeal would be called today and that she would need to attend in order to argue her case or seek an adjournment. When the appeal was called today, however, there was no appearance by Ms Heremaia or on her behalf.[4] I propose to deal with the appeal today because the Crown concedes that it must be allowed in at least one respect. The Crown accepts that the Judge erred in imposing an order for reparation in the sum of $5,670.59. The Judge apparently took this figure from a victim impact statement that the victim had provided. It was not open, however, to the Judge to adopt a figure higher than that contained in the charging document. As a result, the Judge could not impose a sentence of reparation beyond the sum of $3,408.20.[5] I therefore allow the appeal to the extent that it relates to the order for reparation. I vary the sentence of reparation under s 251(2)(b) of the Criminal Procedure Act 2011 by imposing an order for reparation in the sum of $3,408.20. That sum is to be paid at the rate of $30 per week, with the first payment to be made on 22 April 2017.1 New Zealand Police v Heremaia [2016] NZDC 18358.[6] There is no basis upon which I could properly disturb the sentence of community detention that the Judge imposed. Ms Heremaia has a reasonably lengthy list of previous offending involving offences of dishonesty. She can perhaps consider herself fortunate that she received a sentence of just three months community detention on this occasion, particularly given the fact that her victim was a vulnerable person and the offending extended over some time. Her previous convictions also militate against a sentence of community work or a shorter sentence of community detention.[7] I am conscious that I have determined the appeal without the benefit ofsubmissions from Ms Heremaia. For that reason I allow her 21 days from today'sdate to make written submissions should she consider the outcome of the appeal notto be satisfactory. If I consider any of the points that she makes have validity, Ireserve the right to recall my judgment and reissue it an amended form.Lang JSolicitors:Crown Solicitor, Hamilton