KRONFELD v NEW ZEALAND POLICE [2018] NZHC 793

KRONFELD v NEW ZEALAND POLICE [2018] NZHC 793 [24 April 2018]ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYINGPARTICULARS OF COMPLAINANT/VICTIM.IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2017-412-28[2018] NZHC 793BETWEEN MARGARET DENISE KRONFELDAppellantAND NEW ZEALAND POLICERespondentHearing: 24 April 2018Counsel: A G Speed and E M Gresson for AppellantR P Bates for RespondentJudgment: 24 April 2018JUDGMENT OF NICHOLAS DAVIDSON JAppeal[1] Ms Kronfeld was sentenced by Judge Crosbie to 120 hours community workon one charge of criminal harassment, three charges of intentionally accessing acomputer system, one charge of sending fictitious messages and one charge of makinga telephone call without speech with the intention of causing offence.11 Police v Kronfeld [2017] NZDC 14371.[2] The sentencing followed a Judge alone trial in which Ms Kronfeld was foundguilty on the charges of criminal harassment and intentionally accessing a computersystem, having already pleaded guilty to the other charges.[3] An appeal was brought against conviction in respect of the charges that wentto trial, and against the sentence of community work. The conviction appeal washeard on 7 November 2017 and judgment issued on 7 February 2018.2 The appealwas allowed in part, setting aside the conviction for criminal harassment whileupholding the other charges.[4] The harassment conviction was set aside on what is, essentially, a technicality.This judgment reflects the partially successful appeal against conviction, and toaddress any other issues raised in Ms Kronfeld's appeal against sentence.The offending[5] Ms Kronfeld's offending was recorded in detail in the judgment of7 February 2018 and in Judge Crosbie's reserved judgment of 3 April 2017.3[6] For a period of about three years, Ms Kronfeld engaged in an affair with thecomplainant's husband (Mr X). When it came to an end, Ms Kronfeld commenced acampaign of harassment against the complainant, which the Judge characterised asa "premeditated, persistent, vile barrage and attack".[7] The Court has in evidence dozens of email messages sent by Ms Kronfeld tothe complainant under false names and email addresses over the course of about10 weeks, which she admitted.[8] The harassment charge (conviction now quashed) related to five of theseemails. The content of the emails was offensive and sinister, as were the other emailsthe subject of charges.2 Kronfeld v Police [2018] NZHC 66.3 Police v Kronfeld [2017] NZDC 6769.[9] The charges of accessing a computer system involved the complainant'sprivate email account accessed on two occasions, and on one occasion the parent portalof the school which her children attend, without authorisation. On one occasion, sheaccessed the account to retrieve the login details for the portal and on the other it wasto get information about the complainant later used to create false identities formessages sent.[10] For the four months following the end of the relationship, Ms Kronfeld alsomade a number of 'hang-up' nuisance calls, when she would call the complainant'slandline or cell-phone and hang up without saying anything. The summary of factsrecords that there were 148 nuisance calls and text messages over this period.Judge Crosbie's sentencing notes[11] The impact of the harassment charge on sentencing must be seen in context.[12] On the harassment charge, the Judge noted that while the five texts themselvesmay have constituted relatively low-level offending, "they did evidence an intentionto cause the complainant to fear for her safety". His Honour said he was "entitled totake into account the combined effect of all the offending as it has affected her".[13] For the charges of accessing a computer system, the Judge accepted that twoof the incidents were low level offending. However, he regarded accessing the emailaccount with a view to collecting information about the complainant for later use asmore serious.[14] The Judge said he would take into account the fact the offending occurred overa period of time and Ms Kronfeld was otherwise of good character. While theprobation report stated that Ms Kronfeld had shown remorse, the Judge said he "didnot detect any remorse during the hearing".[15] The Judge expressed his view that there were shortcomings with the policeapproach to the charges, and that Ms Kronfeld's conduct was more serious andinvasive than the charges suggest. Nevertheless, he said he was "confined to thecharges before [him]".[16] Of consequence on this appeal, the Judge said the harassment charge is "notnecessarily the lead charge", and the more serious computer system charge involvedpotentially a higher level of culpability. Rather than adopting a lead charge forsentencing and applying uplifts, the Judge decided to take into account "the widersurrounding circumstances" and the six charges together.[17] Relevant purposes and principles of sentencing included holding Ms Kronfeldto account and promoting in her an acceptance of responsibility, denunciation, anddeterrence. The duration of the offending, premeditation, and the effect on thecomplainant were aggravating factors. There were no mitigating factors of theoffending, but her previous good character required consideration. The Judge said thatthe late guilty pleas in relation to two of the charges "do not attract any real credit"because the complainant was still required to give evidence.[18] The Judge referred to Police v Buis, a case involving more serious conductattracting a criminal harassment charge as well as a charge of threatening to causegrievous bodily harm.4 A sentence of 200 hours community work was imposed. TheJudge accepted Ms Kronfeld's offending was less serious.[19] His Honour concluded that a starting point of about six months imprisonmentwas appropriate, but that as imprisonment was not an option given other sentencingdecisions, he adopted "a starting point in the high 100s for community work". Heordered 120 hours community work on each of the charges, to be served concurrently,along with costs on each of the charges and $100 witness expenses.Jurisdiction and approach to appeal[20] As this is a sentence appeal, Ms Kronfeld appeals as of right.5 This Court willonly allow the appeal if satisfied that there is an error in the sentence imposed and thatan alternative sentence should be imposed.6 If the sentence under appeal can beproperly justified having regard to relevant sentencing principles, this Court will not4 Police v Buis [2017] NZDC 8394.5 Criminal Procedure Act 2011, s 244.6 Criminal Procedure Act 2011, s 250.substitute its own views for those of the sentencing Judge. The sentence must bemanifestly excessive or inappropriate.[21] It is not enough that the Judge made an error of reasoning: the focus is on thesentence imposed rather than the process by which the sentence was reached.7Submissions[22] Mr Speed for the appellant submits that in similar cases a fine or a dischargewithout conviction has been imposed.[23] He put a letter from Ms Kronfeld before the Court which he says shows shehas a "high degree of insight into her offending, what motivated it and the effect it hadon her victim". The letter is expressed in straightforward terms and Ms Kronfeld says"every morning when I wake up I mentally apologise to her along with my family andfriends, take a deep breath, and remind myself I made a huge error of judgement andthat I will never act in that way again towards a living soul". Ms Kronfeld also madewhat I consider was a heartfelt and compelling apology to the complainant in openCourt when this appeal was heard on 24 April 2018.[24] Mr Speed submits that counsel wrote to the prosecution prior to the trialpointing out difficulties with the way they had set out their case, particularly in relationto the five emails which made up the harassment charge, and three weeks before trialhis client offered to plead guilty to three of the charges – the two to which sheeventually did plead guilty and one of the charges of accessing a computer system.However, there was no "meaningful response" to that offer. I do not regard that asinfluential on appeal, as the prosecution was entitled to proceed and obtain convictionson all but the harassment charge, held on appeal to be misconceived on a technicallegal issue.[25] Given these matters, the time that has elapsed since the offending, theappellant's obvious remorse, and the fact she has now completed 27 hours of hercommunity sentence, Mr Speed submits a fine would be an appropriate sentence.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[26] Mr Bates for the respondent accepts there should be a reduction in the sentencefollowing Ms Kronfeld's successful appeal on the harassment charge. He sayshowever that a fine would not be appropriate as it would not adequately meet theprinciples and purposes of sentencing and have little impact on Ms Kronfeld. Giventhe way the Court viewed the seriousness of the other charges, he submits a reductionof about 20 hours community work is appropriate.Analysis[27] There is little case law to assist the Court in arriving at an appropriate sentencefor this kind of offending. R v Walker, cited by Mr Speed, is not of much assistance.The offender was discharged without conviction and ordered to pay reparation oncharges of accessing computer systems, and other related charges. The offendinginvolved infecting computers with a virus in order to control them remotely, and bearsvery little similarity to the case here. The discharge was founded on the prospect ofthe defendant's computer skills being put to good and lawful use rather than ill, andthis required a clean criminal record.[28] I am required now to assess sentence in the available range for the remainingconvictions.[29] The overall culpability of the offending remains largely unchanged.Ms Kronfeld admitted sending the emails on which the harassment charge was laid.That charge has gone but there are many more emails which deeply affected thecomplainant. These remain relevant as part of Ms Kronfeld's overall offending – inparticular they are relevant to the charge of accessing a computer when she gatheredinformation about the complainant in order to harass her and the emails she sent werea direct consequence of that offending.[30] A fine would not adequately meet the aims of sentencing. There is a need todenounce Ms Kronfeld's conduct. I accept from her letter, the pre-sentence report andher address to the Court at the appeal hearing, that she is now genuinely remorsefuland reflective, which the sentencing judge at sentencing doubted. The need to deterher has been reduced, but a more general deterrence is still needed. This was behaviourpunishing of an innocent woman which caused her grave and prolonged distress.[31] The offer before trial to plead guilty to some of the charges was tactical andwas not in my view an example of Ms Kronfeld taking responsibility for her actionsbefore trial. At no point, did she admit to all the offending on which she has ultimatelybeen convicted, despite an overwhelming case against her.[32] Nevertheless, justice requires the successful conviction appeal to be reflectedin a reduction in Ms Kronfeld's sentence and some allowance should be given for hernow obvious and genuine remorse. The sentencing judge was accurate in hisassessment of how pernicious this conduct was, and if anything, I would have adopteda sterner sentence given the devastating effect on the complainant and given the thenlack of remorse. This sort of offending is technologically easy to commit anddeterrence and denunciation are to the fore in the sentencing response.Conclusion[33] The appeal is allowed only as the result of the reduced charge range andMs Kronfeld's contrition and apology. The sentence of 120 hours community work isreplaced with one of 70 hours with costs and witness expenses. For the avoidance ofdoubt, that will mean the defendant will have 43 hours to complete.[34] The Appellant is to report to Community Probation within 72 hours afterdelivery of this Judgment..Nicholas Davidson JSolicitors:R P Bates, RPB Law, DunedinCopy to counsel:A G Speed, Barrister, AucklandE M Gresson, Barrister, Auckland