TANGITU v NEW ZEALAND POLICE [2016] NZHC 2484

TANGITU v NEW ZEALAND POLICE [2016] NZHC 2484 [18 October 2016]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2016-463-000037[2016] NZHC 2484BETWEEN MATEKITAWHITI TANGITUAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2016Appearances: C M Andersen for AppellantN T C Batts for RespondentJudgment: 18 October 2016JUDGMENT OF PALMER JCounsel/Solicitors:C M Andersen, Barrister, TaurangaB Hesketh, Barrister, TaurangaCrown Solicitor, TaurangaFacts[1] On 3 August 2016 Ms Tangitu, aged 66, pleaded guilty to and was convicted of three charges of causing loss by deception, under s 240 of the Crimes Act 1961,carrying a maximum penalty of up to seven years' imprisonment.[2] At the time of offending Ms Tangitu was serving a sentence of 12 months on home detention and also was under an obligation to make reparations of $6,500. That sentence was for four charges of misuse of a document to obtain a pecuniary advantage, and one charge of causing loss by deception. Those were her first convictions.[3] The first of the offences relevant to this appeal was committed on 23 December 2015. Ms Tangitu asked someone if they would be interested in doubling their money, in two days. After the victim initially declined, Ms Tangitu persisted explaining her nephew had come back from Africa with diamonds. Why that might make a difference is difficult to understand. However, she was given $1,000 and further inquiries about the money were ignored.[4] The second and third offences were committed on 15 February 2016. Ms Tangitu said an old woman had left $500,000 to the Catholic Church for the poor and needy, and she could get the second victim a large amount of money. Two weeks later the second victim gave her $1,500 on the basis of a promise of getting $15,000 back. Further inquiries yielded continuing promises but no payment.[5] On the same date, the third victim was told the same story about the Catholic Church, and deposited $4,000 into a bank account. Queries also resulted in further promises but no payment.District Court decision[6] Judge Rollo in the District Court at Whakatane sentenced Ms Tangitu to 12months' imprisonment.1 He used a starting point of 18 months on the basis of several aggravating factors including that Ms Tangitu had selected vulnerable1 Police v Tangitu [2016] NZDC 15947.victims and the offending was committed while on home detention for similar offences.[7] Judge Rollo gave Ms Tangitu a six month or 33 per cent discount to reflect her early guilty plea, her personal circumstances and good character references. He declined to commute imprisonment to home detention because the offending had been committed while Ms Tangitu was on home detention for similar offending. Judge Rollo had regard to the fact that Ms Tangitu had lied to the pre-sentence report writer about repaying the victims, as well as to the seriousness of the charges.Submissions[8] Ms Andersen, agent for Mr Hesketh who is counsel for Ms Tangitu, submits that the sentence was manifestly excessive because the starting point should have been 14 to 16 months rather than 18 months, referring to the lack of aggravating factors present as identified by the Court of Appeal in R v Varjan.2 She says excessive weight was placed on the belief Ms Tangitu targeted her victims, suggesting that the second instances of offending in particular were opportunistic and there were few charges in number.[9] Ms Andersen also says Judge Rollo erred in not granting leave to apply for home detention and she submits there should have been a discount for remorse, and a greater discount for personal circumstances and good character.[10] Mr Batts for the Crown submits that the starting point was within the available range and the discounts were appropriate if not generous, as was the failure to apply an uplift for the significant aggravating factor of previous relevant convictions. Mr Batts submits the Judge's decision not to exercise his discretion toimpose home detention should not be interfered with on appeal.2 R v Varjan CA97/03, 26 June 2003.Law[11] Under s 250 of the Criminal Procedure Act 2011 I am required to allow the appeal if I am satisfied for any reason there is an error in the sentence imposed, and a different sentence should be imposed. Otherwise I must dismiss the appeal. The High Court does not intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.[12] Here, the purposes of sentencing identified by s 7 of the Sentencing Act 2002 include, particularly:(a) holding Ms Tangitu accountable for the harm done to the victims and to the community by her offending;(b) promoting in her a sense of responsibility for, and acknowledgement of that harm;(c) providing for the interests of the victims and reparation for the harm done;(d) denouncing her conduct and deterring her and others from committing such offences;(e) protecting the community from Ms Tangitu, and also(f) assisting in her rehabilitation and reintegration into the community.[13] Section 8 of the Sentencing Act sets out the principles of sentencing I am required to apply. They include here particularly:(a) taking into account the gravity, culpability and seriousness of the offending;(b) the desirability of consistency with sentences for similar offenders committing similar offences in similar circumstances;(c) the least restrictive outcome appropriate in the circumstances, and(d) taking into account Ms Tangitu's personal family, whānau, communityand cultural background.Analysis[14] I have considered all of Ms Tangitu's and the Crown's submissions. The firstquestion I must consider is whether there was an error in the Judge's sentence.[15] As Mr Hesketh in the written submissions and Ms Andersen orally point out, there is no guideline judgment on the starting points for this kind of offending. That is because such offending can happen in so many different ways. In Varjan, as Ms Andersen submits, the Court of Appeal referred to certain circumstances and factors that should be considered.[16] In considering those, I agree that this was not particularly sophisticated offending nor is it of a remarkable magnitude, or comprised of very many charges. I agree there may have been an element of opportunism to some of the offending, as Ms Andersen submits. Though, as Mr Batt submits, it does rather highlight the vulnerability or trusting nature of the victims.[17] And it should not be taken to minimise the losses or effects on the victims who were vulnerable and put their trust in Ms Tangitu after some insistence by her that they do so. The number of character references for Ms Tangitu is positive for her but as the Department of Corrections report says, it is unclear whether some of them were aware of the offending. In addition, they also indicate the extent to which she has betrayed a position and reputation of trust through spinning considered stories to induce people to part with their money.[18] Contrary to Mr Hesketh's written submissions, I do not consider the lack ofmuch repetition of offending significantly mitigates Ms Tangitu's culpability. It wasrepeated three times while on home detention, after earlier offending.[19] I do not consider that the case of Turner cited by Mr Hesketh and Ms Andersen where an 18 month starting point was used, was significantly more serious or the culpability significantly higher than in this case.3 Indeed, the cases surveyed in that judgment and in the judgment of Collins J in Bennett v Police suggests the offending here was in line with a number of other cases using that starting point.4[20] I also consider that Ms Tangitu's offending is comparable with offending inthe case of Sardana v R.5 The offender there led victims to loan him $15,000 and fled the country. A 12 to 15 month starting point was considered appropriate. While the offending there was more serious in some respects, it was not committed while on home detention for the same sort of offending, an aggravating factor under s 9(1)(c) of the Sentencing Act.[21] As Mr Batts submits, it is comparable to Bennett v Police where charges of obtaining $3,091 by deception while on community detention. That attracted an 18 month starting point.[22] Overall, I do not consider Judge Rollo erred in setting the starting point at 18 months. It was within the range available to him.[23] Neither do I consider Judge Rollo erred in not providing a discount for remorse. Given the pattern of dishonesty here it is not easy to tell how genuine remorse would be distinguished from further lies. The report of remorse in the pre- sentence report comes together with the lie that she repaid her victims $5,000.[24] I also consider the full discount of 25 per cent for a guilty plea, rounded up to 33 per cent for personal circumstances was within the range available to Judge Rollo. That is particularly because Ms Tangitu's offending may have involvedtaking advantage of some of those involved in community projects in which she worked, according to the pre-sentence report that I have seen.3 Turner v R [2014] NZCA 454.4 Bennett v Police [2015] NZHC 2592.5 Sardana v R [2016] NZCA 138.[25] Finally, given that Ms Tangitu's offending was committed while she was on home detention, I do not consider home detention an option. By her own actions Ms Tangitu has demonstrated home detention is not likely to promote in her a sense of responsibility for, or acknowledgement of the harm she has done. Neither will it deter her from committing the same or similar offence, or protect the community from her, or facilitate her rehabilitation.Result[26] I do not consider Judge Rollo erred. I do not regard his sentence as manifestly excessive. I consider it was within the range available to him.[27] Accordingly, I dismiss the appeal.Palmer J