HAEREROA v R [2020] NZCA 169

HAEREROA v R [2020] NZCA 169 [19 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA170/2019[2020] NZCA 169BETWEEN MELISSA MARY HAEREROAAppellantAND THE QUEENRespondentHearing: 21 April 2020Court: French, Dobson and Nation JJCounsel: M Starling and N R Wham for AppellantM G McClenaghan and B Hawes for RespondentJudgment: 19 May 2020 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] In August 2018, the appellant (Ms Haereroa) was sentenced inthe District Court at Christchurch to four and a half years' imprisonment onconvictions relating to four distinct sets of offending, predominately involvingdishonesty and theft.11 R v Haereroa [2018] NZDC 17387 [Sentencing Notes].[2] Ms Haereroa appealed that sentence to the High Court on the basis that it wasmanifestly excessive. On 1 March 2019, Gendall J accepted that the starting point forthe first group of charges, which was set at two and a half years' imprisonment, wasup to 18 months higher than appropriate. However, after reviewing all of the offendingand other circumstances, Gendall J held that the end sentence was not manifestlyexcessive and the first appeal was accordingly dismissed.2[3] Ms Haereroa sought leave to bring a second appeal against the sentence.The application for leave was considered separately, and on 30 August 2019 leave wasgranted to bring a second appeal against her sentence pursuant to s 253(3)(b) ofthe Criminal Procedure Act 2011.3[4] At the outset of the hearing, Mr Starling advised on behalf of Ms Haereroa thatshe had been released on parole the previous day. However, she still wished the appealto be pursued, given the potential impact of any reduction in sentence on the durationof the period she would be required to be on parole. Ms Haereroa's status as a paroleeis not relevant to the issues in the appeal as to whether the end sentence imposed wasmanifestly excessive, and the Court heard oral argument from counsel on that basis.The offending[5] The first set of offending resulted in three convictions for obtaining or causingloss by deception (the fraud offending). This related to Ms Haereroa's part in a schemeto defraud elderly victims in December 2016. It involved money being transferred outof the accounts of trusting victims into the account of a "mule", from which it waseither directly or indirectly removed, in material part by cash withdrawals fromthe mule's account, or by a second or third mule in the sequence.[6] Ms Haereroa was not alleged to have had anything to do with the design ofthis scheme, nor did the prosecution contend that she retained any of the proceeds.Rather, she facilitated cash withdrawals by others from various ATMs inthe Christchurch area.2 Haereroa v Police [2019] NZHC 318 [High Court appeal].3 Haereroa v Police [2019] NZCA 400.[7] The second set of offending involved breaches of the terms of previoussentences of community work. In September 2015, Ms Haereroa had been sentencedto 12 months' intensive supervision and 100 hours' community work on two chargesof theft of items under $500 and one charge of wilful trespass. Then inDecember 2015, she was sentenced to 40 hours' community work on a further chargeof theft of items under $500, to be served cumulatively on the previous sentence.By February 2017, she had completed approximately half of the community workhours, but had not reported since October 2016, resulting in the charge of breach ofthe community work sentence.[8] Then in September 2016, Ms Haereroa was sentenced to 12 months' intensivesupervision on two further charges of shoplifting (under $500) and two further chargesof wilful trespass. One of the conditions of her intensive supervision was not toassociate with a co-offender. In February 2017, Ms Haereroa breached thisnon-association order, leading to the charge of breach of intensive supervision.[9] The breaches resulted in Ms Haereroa being re-sentenced onthe two September 2016 convictions for theft and two of wilful trespass in breach oftrespass notices from retail premises from which she had been banned.[10] The third set of offending related to thefts committed between December 2016and August 2017. They comprised three counts of theft of items valued at more than$1,000, four of theft of items valued between $500 and $1,000 and four of theft ofitems valued at less than $500. Items stolen ranged from trolleys of groceries toelectronic equipment, clothing and perfume. Some of the thefts occurred at retailpremises from which Ms Haereroa had been trespassed, which led to her facingfive counts of wilful trespass. The most serious of these offences involvedMs Haereroa intervening for associates who were attempting to take clothing from aChristchurch department store. When the associates were challenged by a staffmember, Ms Haereroa approached the staff member with clenched fists and beganthreatening and abusing her. She pushed the staff member to allow her associates toleave the store with the clothing. This resulted in a charge of aggravated assault inaddition to a theft charge.[11] The fourth set of offending comprised two driving charges that arose inMarch 2017. At the time, Ms Haereroa was suspended from holding a driver's licence.She was stopped whilst driving in central Christchurch and refused to give a breathscreening test. An evidential breath test returned a positive result of 801 microgramsof alcohol per litre of breath. It was her third or subsequent excess breath alcoholprosecution and she was also charged with driving whilst disqualified (third orsubsequent).The District Court sentencing[12] Judge Farish adopted separate starting points for each set of offending.The Judge treated the fraud offending as the most serious and stated that thethree charges involved a total amount of $69,540. She acknowledged that the Crownproposed a starting point of two years and nine months' imprisonment for the fraudoffending and settled on a starting point of two and a half years' imprisonment.For the remainder of the dishonesty offending and the breaches of communitysentence, the Judge considered uplifts of two and a half years and nine monthsrespectively, bringing the total to five years and nine months' imprisonment, waswarranted. From there, separate uplifts were added for the driving offences(six months), for the fact that offending had occurred whilst Ms Haereroa was on bailand subject to earlier sentences (six months), and to reflect the extent of Ms Haereroa'sprevious offending (six months). These uplifts led to an overall total starting point ofseven years and four months' imprisonment.4[13] From that starting point, the Judge allowed a discount of 10 per cent forMs Haereroa's personal circumstances and the promising rehabilitative steps she hadtaken in custody, and a further 20 per cent discount for her relatively early guilty pleas.Applying those discounts sequentially resulted in an end sentence of five years andtwo months' imprisonment.5[14] The Judge then undertook a totality assessment, and reached the conclusionthat the total length of sentence would be manifestly excessive. The Judge accordingly4 Sentencing Notes, above n 1, at [12]–[17]. There were minor arithmetical errors in the Judge'scalculation, with the components in fact totalling seven years and three months' imprisonment.5 At [18]–[19].applied s 85 of the Sentencing Act 2002 to reduce the sentence to one of four and a halfyears' imprisonment.6 That was allocated as two and a half years for the fraudoffending, to be followed cumulatively by a two year sentence for the convictions forthefts over $1,000.7 The Judge imposed lesser, concurrent, sentences on all ofthe other convictions and rejected a prosecution application to impose a minimumperiod of imprisonment.8The High Court appeal[15] An appeal from those sentences was heard in the High Court in Christchurchon 28 February 2019, and Gendall J delivered his judgment dismissing the appeal on1 March 2019.[16] Justice Gendall acknowledged that Judge Farish was mistaken about two ofthe factual matters taken into account in ranking the seriousness of the fraud offending.First, the sentencing Judge had referred to the offending as involving fraud of $69,540when the correct figure was closer to $34,000. Secondly, the sentencing Judgeattributed awareness by Ms Haereroa of the circumstances of the victims of the fraudwhen there was nothing in the summary of facts to suggest that was the case.9[17] Gendall J considered that on the facts as clarified in argument before him,the starting point of two and a half years' imprisonment for the fraud offendingappeared to be at the "higher end of the available range".10 After comparing twodecisions cited to him, Gendall J accepted that a starting point closer to 12 months'imprisonment would be more appropriate. 11[18] Gendall J was not persuaded that the sentencing Judge had erred in applyinguplifts for a total of 12 months to reflect the offending having been whilst on bail andfor Ms Haereroa's previous offending.12 Nor did the Judge identify any error inthe other components of the combined starting point. His judgment continued:6 At [22]7 At [27].8 At [23]–[27].9 High Court appeal, above n 2, at [21] and [41].10 At [41].11 At [42]–[44] citing Anderton v Police [2018] NZHC 437; and Gobey v Police [2018] NZHC 1555.12 At [45].[46] If one follows the Judge's sentencing process but simply adjuststhe starting point for the Set 1 offending, an end sentence of around four yearsand two month's imprisonment is reached. This would be before anyadjustments to totality. It is unclear, however, whether any such adjustmentswould be warranted here. Allowing the appeal to the effect of reducingthe end sentence by a few months, in the circumstances, in my view, wouldamount to tinkering. It could not be said here that there has been a significanterror on the part of the Judge nor that the end sentence imposed byJudge Farish was manifestly excessive. For those reasons, this appeal is to bedismissed.Arguments on appeal[19] Mr Starling submitted that, having acknowledged an error in the starting pointon the fraud offending, Gendall J erred in not reflecting that in the total sentencesbefore applying the totality principle. Arguably, in doing so, Gendall J should haverecognised the need for a reduction. The extent of the reduction ought also to havereflected the need for proportionality between the starting point on the most seriousset of offending, and the uplift necessary for the fact that the offending occurred whilstMs Haereroa was on bail, and to account for the extent of her previous convictions.Mr Starling submitted that a combined uplift of six months for both aggravatingfeatures would have been appropriate.[20] Mr Starling also challenged Gendall J's reasoning in having recognised an endsentence of four years and two months' imprisonment, without applying any deductionfor application of the totality principle, but dismissing the appeal on the basis thatreducing the sentence by four months would be tinkering. Mr Starling submitted thatfor an offender serving her first sentence of imprisonment, a reduction of four monthswould have made a material difference.[21] Mr Starling raised a separate concern about the context in which theDistrict Court Judge referred to Ms Haereroa's whakapapa, which he contended hadbeen treated as an aggravating factor. He submitted that Ms Haereroa's attempts toidentify with her whakapapa were positively rehabilitative and should have been seenas a mitigating factor.[22] For the Crown, Mr McClenaghan accepted that the sentencing Judge had erredin the starting point nominated for the fraud offending. He acknowledged that it hadbeen an error in the prosecution submissions on sentencing that caused the Judge torank the seriousness of that offending by reference to a larger amount than wasjustified. In oral argument, Mr McClenaghan accepted that a starting point of12 months would have been adequate. However, the appeal was opposed onthe ground that Ms Haereroa could not discharge the onus of establishing thata different end sentence ought to have been imposed. Mr McClenaghan submittedthat, in constructing a sequence of cumulative sentences, an adjustment for totalitywas not automatic and, when the pattern of Ms Haereroa's offending was assessedoverall, the end sentence of four years and six months' imprisonment was withinthe appropriate range.[23] As to Mr Starling's criticism of the sentencing Judge's comments onMs Haereroa's whakapapa, Mr McClenaghan submitted that this reflecteda misconstruction of the Judge's comments. Read correctly in the context ofreferences to victim impact statements, the Judge's observations were to be seen asencouraging Ms Haereroa with the rehabilitative steps she had taken. He submittedthis had been reflected in the 10 per cent discount for personal factors which relatedto her post-offending conduct.Our view[24] Turning first to Judge Farish's references to Ms Haereroa's whakapapa, weagree with the Crown submission that it did not rate as an aggravating feature, and thatrather the sentencing Judge's comments are to be construed as encouragingMs Haereroa to draw on whakapapa links to improve her pro-social attitudes.[25] As regards the starting point for the fraud offending, we accept it was too high.In the argument before us, the Crown dropped the starting point for the fraud offendingfrom the two years and nine months' imprisonment it had submitted inthe District Court to 12 months' imprisonment. That lower starting point wasrecognised as within range by Gendall J. We consider however that although thestarting point in the District Court was too high, a reduction of 18 months was toogreat a reduction to reflect the mistaken circumstances relied on at sentencing. We saythat because despite it being accepted that Ms Haereroa had not obtained benefits fromthe three frauds that she was involved in, she nonetheless played a significant role asa conduit, and in procuring the participation of others who effected withdrawals atATMs. We consider a starting point for the fraud offending ought to have been 16months' imprisonment.[26] We agree with Gendall J that there was no error in the other components ofthe sentencing Judge's starting points, or in treating the sentences for the different setsof offending cumulatively.[27] Nor do we find any error in the 10 per cent reduction for personalcircumstances and the 20 per cent reduction for Ms Haereroa's guilty pleas.[28] Undertaking the analysis of the combined starting points after reducingthe starting point for the fraud offending, the process would start with the theft andaggravated assault charges, which attracted a starting point of two and a half years.The other convictions would require the following uplifts:• fraud offending — 16 months;• shoplifting, trespass and non-compliance — nine months; and• driving offences — six months.[29] These starting points result in a term of imprisonment of five years and onemonth, to which is to be added a further 12 month uplift to reflect the extent ofMs Haereroa's previous criminal convictions and the fact that some of the currentoffending occurred either whilst she was on bail or subject to existing sentences (orboth).[30] From a combined cumulative sentence of six years and one month'simprisonment, separate discounts of 10 per cent for personal factors and 20 per centfor guilty pleas would arrive at the end sentence of four years and a fraction less thanfive months' imprisonment.[31] The next issue is whether cumulative sentences of that length are out of allproportion to the gravity of all the offending for which Ms Haereroa was beingsentenced. That requires an evaluative assessment of the relative gravity of all ofthe offending involved. A discount because the full extent of cumulative sentenceswould be out of proportion to the gravity of the offending is not automatic.13[32] Accepting that it was the first sentence of imprisonment imposed onMs Haereroa, this involved persistent offending undertaken with complete disregardfor the law, irrespective of the sanctions previously imposed. The pattern of offendingwas also insidious in that Ms Haereroa involved younger accomplices, including herson, so that her offending contributed to others being led astray. Her assault on a shopassistant to facilitate the escape of an accomplice who had been shoplifting inthe premises is an instance of troubling criminality. The circumstances of her drivingoffending, which included a third or subsequent drink driving incident, reflectsthe same attitude of determined disregard for the law, as does her breach of intensivesupervision and community work sentences. We are satisfied it is a case in which noadjustment is required for totality.[33] The remaining issue is whether an adjustment of between one and two monthson a sentence of four years and six months' imprisonment is sufficient to requireintervention. We are satisfied that intervention is not warranted. The end sentence isnot one that can be characterised as being manifestly excessive. We are, however, notto be taken to endorse the approach Gendall J adopted in concluding that the largerdifference of four months, which he identified on the analysis of all components ofthe sentence, would similarly not have justified an alteration to Ms Haereroa's endsentence. There can be no inflexible rule, but had we agreed with Gendall J onthe extent to which the starting point for the fraud offending should have been reduced,we doubt that we would have dismissed the prospect of a reduction in the end sentenceof four months on the basis that that would be tinkering.Result[34] In the event, that extent of difference is not made out. The appeal is dismissed.13 Ashcroft v R [2014] NZCA 551 at [32]; and Sentencing Act 2002, s 85(2).Solicitors:Crown Law office, Wellington for Respondent