HAEREROA v NEW ZEALAND POLICE [2019] NZHC 318

HAEREROA v NEW ZEALAND POLICE [2019] NZHC 318 [1 March 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000127[2019] NZHC 318BETWEEN MELISSA MARY HAEREROAAppellantAND NEW ZEALAND POLICERespondentHearing: 28 February 2019Appearances: N R Wham for AppellantK Courteney for RespondentJudgment: 1 March 2019JUDGMENT OF GENDALL JIntroduction[1] On 17 August 2018, the appellant, Melissa Haereroa, was sentenced to fourand a half years' imprisonment on a raft of charges. These included obtaining bydeception, theft, wilful trespass, aggravated assault, driving with excess blood alcohol,driving while disqualified and breaches of intensive supervision and community work.She appeals the sentence on the basis that it is manifestly excessive.Facts[2] There are four distinct sets of charges as follows:Set 1 • Obtains by deception x 3Set 2 • Breach of intensive supervision• Breach of community work• Theft (under $500) x 2 (resentence)• Wilful trespass x 2 (resentence)Set 3 • Aggravated assault• Theft (over $1000) x 3• Theft ($500-$1000) x 4• Theft (under $500) x 4• Wilful trespass x 5Set 4 • Driving with excess blood alcohol (third or subsequent)• Driving while disqualified (third or subsequent)Set 1[3] The three convictions for obtaining by deception arise from a complex systemof defrauding elderly people through bank accounts. Police referred to theinvestigation as Operation Eclipse.[4] The fraud involved money being transferred out of the account of a victim andinto the account of a "mule", from which it was withdrawn. Sometimes the moneywas transferred to a second or third "mule" before withdrawal. At least 20 victimswere identified, and a total of between $150,000 and $300,000 was taken. MsHaereroa was convicted in relation to withdrawal transactions relating to three victims.[5] In relation to one victim, Ms V, $11,540 was fraudulently transferred from heraccount to a "mule's" account on 3 December 2016. The mule and an associate metwith Ms Haereroa at The Palms shopping centre. The associate drove their car aroundChristchurch for the "mule" to withdraw funds, while Ms Haereroa drove in convoy.A total of $6,048.50 was withdrawn and handed to a passenger in Ms Haereroa's car.[6] Regarding a second victim, Ms M, $700 was fraudulently transferred from heraccount to a "mule's" account on 17 December 2016. That evening, Ms Haereroa senta number of texts to associates and to her son, containing the name and bank accountnumber of the "mule" in this matter. $700 was withdrawn from the "mule's" accountover seven transactions between 19 and 21 December 2016.[7] Regarding a third victim, Ms P, $22,000 was fraudulently transferred from heraccount to a "mule's" account on 28 December 2016. An associate textedMs Haereroa's son and another associate between 10am and 11am telling them theyneeded to "work asap" and to wake Ms Haereroa up. At 5.01pm that day, Ms Haereroawas seen driving several associates to Eastgate Shopping Centre. Between 5.15pmand 5.20pm, Ms Haereroa's son withdrew "$3,014.46" from the "mule's" account atCountdown Eastgate. Between 28 and 29 December 2016, a total of $11,993 waswithdrawn from the "mule's" account.[8] The summary of facts, to which Ms Haereroa pleaded guilty, recorded a totalof $34,240 taken from three victims, and $18,741.50 withdrawn from "mule"accounts. It is not alleged that Ms Haereroa received any of the money, nor that shewas involved in designing or establishing the fraud.Set 2[9] On 8 September 2015, Ms Haereroa was sentenced to 12 months' intensivesupervision and 100 hours' community work on two charges of theft (under $500) andone charge of wilful trespass. On 18 December 2015, she was sentenced to acumulative 40 hours' community work for committing a further theft (under $500).By 22 February 2017, she had completed 76 hours of community work, but had failedto report since 5 October 2016. She was thus charged with a breach of communitywork.[10] On 6 September 2016, Ms Haereroa was sentenced to twelve months' intensivesupervision on two charges of shoplifting (under $500) and two charges of wilfultrespass. One of the conditions of her intensive supervision was not to associate witha peer associate, Denise Greig. On 21 February 2017, Ms Haereroa contacted theChristchurch Central Police Station, requesting to speak to an officer. A voice in thebackground identified herself as Ms Greig, asking to meet with him as well. Theywere invited to the station to attend a meeting, and they arrived together. Ms Haereroawas arrested a short time later. She was thus charged with a breach of intensivesupervision. The four original charges are also to be resentenced.Set 3[11] The considerable number of offences involved in this set are described inchronological order.[12] On 11 December 2016, Ms Haereroa attempted to take several perfume itemsfrom the NZ Sale shop at Bush Inn shopping mall. She was convicted of theft (under$500).[13] Ms Haereroa had been trespassed from all Warehouse stores in Christchurchfor two years from 18 November 2015. In spike of this, she entered the Warehouse inHornby on 19 April and 29 April 2017, resulting in wilful trespass charges.[14] On 18 May 2017, Ms Haereroa along with three associates (two of whom wereyouths) entered the Pak n Save in Hornby. Ms Haereroa walked around the storeloading a shopping trolley with a large amount of groceries valued at $648.77, beforeleaving the full trolley in an aisle and making her way to the exit. Two of her associatesthen located the trolley and pushed it through the self-scan checkout, making noattempt to pay, before they were stopped. Ms Haereroa was convicted of theft ($500-$1000). Another conviction for theft ($500-$1000) was also imposed on this date.Details of this charge are not clear from the material before this Court, however.[15] Between 12 June and 11 August 2017, Ms Haereroa, along with variousassociates, committed a number of thefts throughout Christchurch, using a similarmethod to the one described above. These included an attempt to take $664 worth ofgroceries from Pak n Save Rangiora; a theft of $1650 worth of electronics from theWarehouse, Ashburton; a theft of $200 worth of groceries from Countdown Hornby;an attempt to take a jacket from Macpac Riccarton worth $600; an attempt to takeelectronics worth $109 from Harvey Norman; a theft of perfumes worth $455 fromFarmers; and a theft of groceries worth $1500 from Countdown Rangiora.[16] Ms Haereroa was trespassed from Pak n Save Rangiora on 1 June 2017.Despite this, she entered Pak n Save Rangiora on 12 June 2017.[17] Ms Haereroa was also trespassed from the Palms shopping mall, Shirley, on31 October 2016. Again, despite this she entered the Palms on 17 July 2017 and 10August 2017.[18] On 25 July 2017, Ms Haereroa and four associates entered the Ballantynesdepartment store in Christchurch. Her associates attempted to take clothing from thestore without paying, and staff intervened. Ms Haereroa approached a staff memberwith clenched fists and began threatening and abusing her. She pushed the staffmember to allow her associate to exit the store with the clothing. The clothing takenwas worth $1070. Ms Haereroa was convicted of aggravated assault and theft (over$1000).Set 4[19] On 27 March 2017, Ms Haereroa was suspended from holding or obtaining adriver's licence for three months due to excess demerit points. On 28 May 2017, shewas stopped by police while driving on Manchester Street, Christchurch. After sherefused to give a breath screening test, an evidential breath test returned a positiveresult of 801 micrograms of alcohol per litre of breath.District Court decision[20] Ms Haereroa appeared before Judge Farish for sentencing on 17 August 2018.Judge Farish had given Ms Haereroa a sentence indication in October 2017, but sincethen there had been a number of adjustments to the charges. This warranted a freshconsideration of the sentencing to be imposed.[21] Regarding the Set 1 offending, involving obtaining by deception, the Judge seta starting point of two and a half years' imprisonment. She mentioned twice that thetotal money lost by the victims of the offending Ms Haereroa was connected with was$69,540. It is unclear where the Judge sourced that figure from, as on the summary offacts it is closer to $34,000. What is clear, however, is that the amounts involved weresubstantial. The Judge noted, too, that Ms Haereroa's involvement "was quitesignificant in terms of the amount of money that [she] participated in defrauding thosethree victims of", and that she was aware of the vulnerability of her victims.[22] As to the Set 2 offending, the breaches of community work and intensivesupervision and the resentencing of two theft convictions and two trespass convictions,the Judge took a starting point of nine months' imprisonment.[23] And, concerning the Set 3 offending, the thefts, trespasses and aggravatedassault, the Judge set a starting point of two and a half years' imprisonment,considering the persistence of Ms Haereroa's offending.[24] Lastly, as to the Set 4 driving offending, the Judge uplifted the sentence by sixmonths.[25] For offending whilst on bail, the Judge imposed an uplift of six months, and afurther six months to reflect Ms Haereroa's history.[26] Taken cumulatively, the starting point thus seems to be seven years and threemonths' imprisonment (erroneously stated by the Judge as seven years and fourmonths).[27] Judge Farish noted, too, that since Ms Haereroa had been on remand, she had"done everything that you can possibly do in terms of programmes at the prison", andthat she had permanent employment in the kitchen. The Judge discussed howMs Haereroa had begun connecting with her whakapapa and rebuilding some of thedamage done by her offending. The Judge acknowledged Ms Haereroa'sembarrassment and shame in the fact she involved at least one of her children in heroffending. On the other hand, it could not be said the pre-sentence report was overlypositive. It recorded that she had little insight into her offending and was at a high riskof reoffending. However, given the various efforts Ms Haereroa had made to improveher situation, the Judge did give her a 10 per cent credit.[28] The Judge then awarded a 20 per cent credit for Ms Haereroa's relatively earlyguilty pleas, taking the sentence to one of five years and two months' imprisonment,before considering totality. As all the thefts were relatively low-level and generallynot commercial in nature, the Judge considered five years and two months to bemanifestly excessive. As such, she imposed a final sentence of four and a half years'imprisonment for all the offending. She declined to order reparation or to impose aminimum period of imprisonment, principally because it was Ms Haereroa's firstsentence of imprisonment.[29] In her sentencing, Judge Farish took particular note of Ms Haereroa's Māoriwhakapapa, and noted, too, the victims' statements that, being Māori and Pasifikathemselves, they were disappointed in young Māori living up to the stereotypes oftheir people. The Judge said that Ms Haereroa was "just beginning to realise thatmaybe within [her] own culture there are ways of living better and making betterchoices".Principles on appeal[30] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan be properly be justified by accepted sentencing principles".2 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.31 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[31] The appeal was filed out of time. Current counsel for the appellant was notcounsel at sentencing and was only assigned for the appeal. The respondent does notoppose leave being granted to appeal out of time. Leave is accordingly granted.[32] Ms Wham for the appellant submits that the starting point for Set 1, theobtaining by deception charges, was too high, and that the uplifts for previousoffending and offending on bail are excessive.[33] Ms Wham suggests that Ms Haereroa's involvement in the frauds wasrelatively minimal, only to the extent of her being present and having knowledge ofcash withdrawals. It is acknowledged that there is no suggestion that Ms Haereroaobtained any of the money. As such, Ms Wham submits that a starting point of twoyears and six months' imprisonment is manifestly excessive. She contends that thestarting point should have been approximately 12 months' imprisonment.[34] Ms Wham also submits that an uplift of twelve months for previous offendingand offending while on bail is proportionally excessive, particularly as Ms Haereroahad never been sentenced to imprisonment before. She suggests that an uplift of sixmonths for both factors would have been sufficient.[35] Counsel thus submits that the overall end sentence should be reduced to be inthe final region of three years and six months' imprisonment.Respondent's submissions[36] Ms Courteney for the police argues that the starting point for the Set 1offending was within range, and the uplifts applied were unremarkable. Given all theoffending, the respondent submits that the end sentence cannot be described asmanifestly excessive.[37] Ms Courteney acknowledges that the Judge appears to be mistaken in referringto the total loss from the Set 1 offending as being around $69,000, when the summaryof facts puts it closer to $34,000. However, she notes this is still a significant figure,and the Judge's observations about the vulnerability of the victims and thesophistication of the overall operation still stand. Ms Courteney does say, though, thatit is unclear what foundation the Judge's comment about Ms Haereroa knowing aboutthe vulnerability of the victims had.[38] Ms Courteney goes on to compare this case with R v Simpson, whereMr Simpson faced four charges of obtaining by deception.4 Mr Simpson would coldcall elderly people at their homes and offer in each case to repair the house roof, takinga deposit. Very few repairs were actually undertaken. The amounts fraudulentlyobtained totalled $19,200. The Court of Appeal noted that a starting point of five tofive and a half years' imprisonment would not have been excessive in thecircumstances, particularly given Mr Simpson's significant fraud history.Ms Courtney suggests that, with this case in mind, two and a half years' imprisonmentwas appropriate for an offender who, whilst more removed from the victims thanMr Simpson, involved herself in a sophisticated fraud operation resulting in significantlosses to vulnerable victims.[39] Ms Courteney contends that while there is no limit to the available size of anuplift for previous convictions, the quantum of the uplift should be proportionate tothe sentence imposed for the previous offence,5 as well as to the starting point adoptedfor the current offending.6 She submits that two uplifts of six months on a globalstarting point of around seven years and three months were entirely appropriate andunremarkable.[40] With all this in mind, Ms Courteney concludes that the end sentence of fourand a half years' imprisonment was available to the sentencing Judge and cannot bedescribed as manifestly excessive.4 R v Simpson [2008] NZCA 467.5 See Julian v R [2012] NZCA 453 at [17] where the Court commented an uplift that is one and ahalf times the original served sentence cannot be supported.6 See Taylor v R [2012] NZCA 332 at [46] where the Court stated the total uplift of three years,equalling 75 per cent of the starting point, was excessive. A total increase of around 40 per cent ofthe base starting point was appropriate.Analysis[41] It is common ground that Judge Farish made an error regarding the total lossresulting from the frauds with which Ms Haereroa is connected. It appears this stemsfrom the Crown submissions at sentencing, which referenced the $69,000 figure.Judge Farish also commented that Ms Haereroa knew about the vulnerability of hervictims. It is unclear, however, what the Judge based this comment on. In the summaryof facts to which Ms Haereroa pleaded guilty, she appeared to have minimalinvolvement in the wider fraud operation and received none of the proceeds. On thosefacts, a starting point of two and a half years' imprisonment does appear at the higherend of the available range.[42] In Anderton v Police, Mr Anderton pleaded guilty to 34 dishonesty-relatedcharges involving TradeMe listings, through which he fraudulently obtained over$48,000.7 The District Court Judge adopted a starting point of two and a half years'imprisonment, which the High Court commented "could have been longer".8[43] In Gobey v Police, Mr Gobey committed a number of dishonesty-relatedoffences, causing an overall loss of approximately $41,000 to a number of victims.9The District Court Judge adopted a starting point of two years nine months'imprisonment (although there was some confusion about what elements were countedin that starting point). The High Court held "while the starting point was at the higherend, it cannot be said to be out of range", where there was "repeated offending over aperiod of some six months, involving several different modes of offending with at leasta moderate degree of premeditation, planning and sophistication".10[44] In both Anderton and Gobey, the offenders worked alone, constructing andplanning the fraud themselves and personally taking the proceeds. This is different toMs Haereroa's relatively minor participation in a scheme that it seems proved to bemuch larger than herself, and from which she received no obvious benefit. The startingpoint adopted by the Judge does seem to be at the higher end when compared to other7 Anderton v Police [2018] NZHC 437.8 At [4].9 Gobey v Police [2018] NZHC 1555.10 At [18].such cases. A starting point closer to that suggested by Ms Wham of 12 months wouldappear more appropriate.[45] However, Ms Wham's submissions about the uplifts for offending while onbail and for Ms Haereroa's previous offending are less convincing. A combined upliftof 12 months is by no means excessive.[46] If one follows the Judge's sentencing process but simply adjusts the startingpoint for the Set 1 offending, an end sentence of around four years and two month'simprisonment is reached. This would be before any adjustments to totality. It isunclear, however, whether any such adjustments would be warranted here. Allowingthe appeal to the effect of reducing the end sentence by a few months, in thecircumstances, in my view, would amount to tinkering. It could not be said here thatthere has been a significant error on the part of the Judge nor that the end sentenceimposed by Judge Farish was manifestly excessive. For those reasons, this appeal isto be dismissed.Conclusion[47] While the starting point for the obtaining by deception charges might be seenas at the high end of the scale, the end sentence here could not be said to be manifestlyexcessive.[48] The appeal is dismissed....................................................Gendall JSolicitors:Michael Starling, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch