FANNIN v NEW ZEALAND POLICE [2016] NZHC 168

FANNIN v NEW ZEALAND POLICE [2016] NZHC 168 [15 February 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2015-404-000400[2016] NZHC 168BETWEEN RAFE CALLUM FANNINAppellantAND NEW ZEALAND POLICERespondentHearing: 15 February 2016Appearances: R B Keam for AppellantH G Max and S L McColgan for RespondentJudgment: 15 February 2016ORAL JUDGMENT OF HINTON JSolicitors:Public Defence Service, AucklandMeredith Connell, AucklandIntroduction[1] Mr Fannin pleaded guilty in the District Court to six charges of obtaining by deception (value over $1,000),1 five charges of using a document for pecuniary advantage2 and two charges of obtaining by deception (value over $500).3 Judge David Harvey sentenced Mr Fannin on 19 November 2015 to nine months' homedetention and ordered him to pay reparation of $67,408 with $1,500 to be paid on the date of sentencing and the remainder to be paid at a rate of $20 per week.[2] Mr Fannin appeals the reparation order pursuant to s 250 of the Criminal Procedure Act 2011 on the grounds that it is manifestly excessive, because at the rate of $20 per week, it will take more than 63 years to repay $67,408. Mr Fannin accepts and takes no issue with the sentence of home detention.Factual background[3] Broadly speaking, Mr Fannin has been convicted of a number of charges relating to three schemes of identity theft.[4] One scheme related to the identity of Jamie Herdman, a missing person. Mr Fannin obtained Mr Herdman's name and date of birth through Facebook and subsequently used this information to obtain a copy of Mr Herdman's birthcertificate. This information was used to obtain a New Zealand driver's licence aswell as three separate credit cards, all in Mr Herdman's name.[5] Mr Fannin also committed identity theft against two of his work colleagues, Douglas Newton and Peter Shore. In both cases, he took a driver's licence from the man's wallet and used those details to obtain a total of four credit cards, two bankaccounts and four loans.[6] At the time that the offending was discovered, the total sum owing across the various cards and loans was $67,408, being the reparation ordered.1 Crimes Act 1961, ss 240(1)(a) and 241(a).2 Crimes Act, s 228(b).3 Crimes Act, ss 240(1)(a) and 241(b).[7] Mr Fannin has paid the $1,500 lump sum and has apparently also been paying the $20 weekly amounts.District Court judgment[8] Judge Harvey described the offending as "sophisticated fraud and identity theft". He dismissed the indication in the pre-sentence report that Mr Fannin'soffending was driven by a gambling problem, stating that Mr Fannin must have been"well aware that the house always wins". Judge Harvey further noted that Mr Fannin had been in a position of responsibility as a teacher at Auckland GrammarSchool during the period of the offending and stated that Mr Fannin was "by no means a babe in the woods as far as intelligence is concerned." He said the offending involved, as it undoubtedly did, a significant breach of trust. He referred also to the high level of premeditation involved.[9] Judge Harvey determined that the starting point for sentencing should be 15 months' imprisonment due to the significant breach of trust, the high level of premeditation, the repetitious and ongoing nature of the offending and the significant loss that resulted. He allowed a discount of four months' imprisonment to reflectMr Fannin's previous good conduct and his guilty plea. This resulted in a final sentence of 11 months' imprisonment. Judge Harvey was willing to convert that sentence to one of home detention. He imposed a final sentence of nine months'home detention to reflect the seriousness of the offending and to hold Mr Fannin appropriately accountable. The Judge ordered Mr Fannin to attend counselling and treatment in relation to his gambling addiction.[10] In also ordering reparation, Judge Harvey referred to a reparation report but did not give any reasons for the quantum of reparation or the rate of repayment.Appellant's submissions[11] Mr Keam, counsel for Mr Fannin, describes the appellant as a 36 year old man, previously a secondary school teacher but now unemployed. He is currently an undischarged bankrupt with no assets. Mr Keam submits it is unlikely Mr Fanninwill be able to obtain employment in any position of responsibility at the conclusion of his home detention sentence, including as a school teacher.[12] Mr Keam submits that the purpose of the reparation provisions in the Sentencing Act 2002 is not to bond people for a long period of time; and furthermore, that small payments over a long period of time do not provide any significant benefit to the victims. He notes in particular that reparation orders requiring payment for more than five years have previously been regarded as excessive, although he acknowledges that in some cases longer periods of reparation have been upheld.[13] Mr Keam essentially submits that the $20 weekly payments should continue for only five years or thereabouts.Respondent's submissions[14] The respondent accepts that the 63-year timeframe of the reparation order made by Judge Harvey was excessive and submits that a new reparation order should be made over a reasonable timeframe.[15] The respondent does not proffer a specific weekly payment, nor does the respondent suggest a reasonable timeframe. The respondent submits that the court is entitled to take future earning capacity into account in determining whether an order of reparation is appropriate.4 The respondent also submits that the appellant is likely to gain employment in the future which would enable him to make repayments at a significantly higher rate than $20 per week.Approach on appeal[16] Appeals against sentence to the High Court are governed by ss 244 and 250 of the Criminal Procedure Act 2011. The Court of Appeal has recently confirmed that s 250(2) was not intended to change the "manifestly excessive" standard applied4 R v Brown CA267/92, 26 November 1992 at 5; Taua v Police HC New Plymouth CRI-2009- 043-22, 22 September 2009 at [7].to sentence appeals under s 121(3) of the Summary Proceedings Act 1957.5 Section 250(2) requires the Court to allow a sentence appeal if:(a) for any reason there is an error in the sentence imposed on conviction; and(b) a different sentence should have been imposed.[17] In any other case the Court must dismiss the appeal.6[18] An appeal will be successful only if the appellant can point to an error, eitherintrinsic to the Judge's reasoning or as a result of additional material submitted onthe appeal, which vitiates the sentencing decision of the court below.7Reparation orders[19] If a court is lawfully entitled to impose a sentence or order of reparation, it must be imposed unless the court is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.8[20] If an offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make:9(a) reparation for an amount that is less than the value of the loss, damage, or harm; or(b) payment by instalments of the loss, damage, or harm; or(c) both (a) and (b).5 Tutakangahau v R [2014] NZCA 279.6 Criminal Procedure Act 2011, s 250(3).7 R v Shipton [2007] 2 NZLR 218 (CA).8 Sentencing Act 2002, s 12(1).9 Sentencing Act 2002, s 35(1).[21] A sentencing Judge should have "a realistic measure of confidence" in thefact that the payment of reparation is able to be made.10[22] However, future earning capacity can be taken into account by the Judge in determining whether an order of reparation is appropriate.11[23] The Sentencing Act does not specify any period or maximum period during which a reparation order must be fulfilled. However, the courts have made clear that orders to pay large sums over a long period are unsuitable.12 The respondent accepts that periods of repayments that fall significantly over five years are generally regarded by the courts as excessive.13 I note though, and Mr Keam accepts, that longer periods have been upheld, for example in R v Vallily14 and R v Creek,15 which involved payments over eight years and nine and a half years respectively.Discussion[24] The respondent accepts, and I agree, that a reparation order that lasts for 63 years is manifestly excessive.[25] The question is what order should replace it.[26] I do not have the reparation report. However, it seems to me I have such information as is reasonably available in any event and counsel did not really contend otherwise.[27] The appellant is an undischarged bankrupt who is unemployed and has no assets. He is married and has three children.[28] I have to make an order which I have a "realistic measure of confidence" will be able to be met.10 R v Pender [2007] NZCA 465 at [15].11 R v Brown, above n 4, at 5, Taua v Police, above at [7].12 Taua v Police, at [7], citing R v Rollo [1981] 2 NZLR 667, R v Belmont CA345/96, 20 February 1997.13 For example R v Bailey CA306/03, 10 May 2004.14 R v Vallily CA251/04, 10 November 2004 at [75].15 R v Creek CA199/06, 7 August 2006 at [11].[29] I take it the appellant also presently has no income.[30] However, he is a school teacher who had nine years experience. He taught at Auckland Grammar so he was obviously highly regarded and well qualified. I can take account of his future earning capacity. I accept he is unlikely to work as a teacher, at least in the New Zealand public school sector, but I consider he will be able to obtain a well-paying job once his period of home detention concludes, and there would be no reason not to have such a job lined up beforehand. I consider he can pay $100 per week for seven years following home detention, without suffering undue hardship in terms of s 12.Result[31] The appeal is therefore allowed. The reparation order made by the Judge is replaced from today with an order for reparation as follows:(a) In addition to the sums he has paid to date, which would total between $1,500 and $2,000, the appellant is to pay $20 per week until the conclusion of his home detention sentence; and thereafter(b) He is to pay $36,400 by payments of $100 per week for a period of seven years.(c) Payments are to be made to the Ministry of Justice for payment pro rata to the creditors.___________________________Hinton J