REIHANA v NZ POLICE [2019] NZHC 2078

REIHANA v NZ POLICE [2019] NZHC 2078 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-000066[2019] NZHC 2078BETWEEN RHIANNON PAIGE REIHANAAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2019Appearances: L L Owen for the AppellantG Banuelos for the RespondentJudgment: 22 August 2019JUDGMENT OF WOOLFORD JSolicitors: Gordon Pilditch (Office of the Crown Solicitor), RotoruaCounsel: L Owen, Owen Law Limited, Rotorua[1] On 4 June 2019 in the Tokoroa District Court, Judge Hollister-Jones sentencedRhiannon Paige Reihana to two years and two months' imprisonment on the followingcharges:(a) Accessing computer system for dishonest purposes;1(b) Three counts of obtaining by deception (over $1,000);2(c) two counts of obtaining by deception ($500 - $1,000);3(d) two counts of obtaining by deception (under $500);4(e) Theft ($500-$1,000);5(f) Theft (under $500);6(g) Intimidation;7(h) Failing to answer bail.8[2] Ms Reihana now appeals against sentence on the ground that it is manifestlyexcessive.Facts[3] The appellant obtained the user name and password of her grandmother'sinternet bank account and made a total of 30 transfers, totalling $11,892, to her ownaccount. The appellant also approached associates and asked to use their bank1 Crimes Act 1961, s 249(1)(a); maximum penalty seven years' imprisonment.2 Crimes Act 1961, s 240(1)(a); maximum penalty seven years' imprisonment.3 Crimes Act 1961, s 240(1)(a); maximum penalty one year imprisonment.4 Crimes Act 1961, s 240(1)(a); maximum penalty three months' imprisonment.5 Crimes Act 1961, s 219 and 223(c); maximum penalty one year imprisonment.6 Crimes Act 1961, s 219 and 223(d); maximum penalty three months' imprisonment7 Summary Offences Act 1981, s 21(1)(a); maximum penalty is three months' imprisonment or$2000 fine.8 Bail Act 2000, s 38(a); maximum penalty is one year imprisonment or $2000 fine.accounts and ATM cards in exchange for a small amount of money. She made a further30 transfers from her grandmother's account to their accounts, totalling $7,435.[4] On 17 December, the appellant got into a dispute with her neighbour and spokethreateningly and threatened violence.[5] Whilst on bail, the appellant stole her grandmother's purse, containing $50cash and debit cards. The appellant used the cards to spend $74.69 at a petrol stationand later $280.44 at a tavern. The appellant also took her grandmother's chequebookand cashed some cheques to the value of $400. She also used her grandmother'sdriver's licence to make online applications for finance and got $3,843 from that.When staying with a friend, the appellant used her ASB card and obtained $631 fromit.District Court decision[6] The Judge set a starting point of two years nine months' imprisonment for thelead dishonesty offence (transferring the money from her grandmother's bankaccount), based on the following aggravating factors:(a) The breach of trust;(b) Premeditation (shown by the repetitive offending);(c) The scale of the offending;(d) The impact on the victims, especially the appellant's grandmother whowould not get the money back.[7] This was uplifted by one month for the threatening charge and two months forthe bail charge and offending on bail. The Judge recognised that the appellant wasremorseful and allowed a discount of three months for her remorse, insight andprospects for rehabilitation. The Judge awarded a guilty plea discount of 21-22 percent, because although the appellant's plea was early, it came after she had earlierentered pleas of not guilty.[8] The end sentence on the lead offence was two years and two months'imprisonment, with reparation of $4,000 as the appellant could not afford fullreparation.Approach to appeal[9] The Criminal Procedure Act 2011 sets out that a first appeal court must allowan appeal if satisfied that:9(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[10] This court must point to an error made by the District Court, either in theJudge's reasoning or shown by additional material considered on appeal.10 The errormust be adequately significant for the appeal to be allowed – although the CriminalProcedure Act 2011 does not require the sentence to be 'manifestly excessive', this isa helpful concept when considering the seriousness of the error.11SubmissionsAppellant submissions[11] Counsel for the appellant submits that the discounts given by the Judge forpersonal mitigating factors and her guilty plea were inadequate. Counsel submits thata further discount of one month should have been given for her previous goodcharacter and limited criminal history, despite her adverse life experiences.[12] Counsel submits that the District Court's sentence was manifestly excessiveand should have been two years or less. As a result, home detention could have beenconsidered. The appellant can be granted home detention to her mother's home inMangakino. Counsel submits that staying with her mother will help the appellant to9 Criminal Procedure Act 2011, s 250.10 Tutakangahau v R [2014] NZCA 279 at [30].11 At [35].properly address her addiction issues, which were the driving force behind heroffending. Counsel also suggests home detention conditions that would be suitable.[13] Counsel has also provided the Court with a letter from the appellant. She statesthat she has taken full responsibility for her actions and says she is willing to addressher addiction issues and take any necessary steps for rehabilitation.Crown submissions[14] The Crown submits that the appropriate reductions were made for theappellant's mitigating factors and guilty plea.[15] The Crown notes that a sentence should not be artificially tailored to fall belowtwo years so that the offender is eligible for home detention.12 The Crown is neutralas to whether home detention should be granted if the sentence on appeal falls belowtwo years' imprisonment.Analysis[16] The Court of Appeal has provided guidelines for dishonesty offences:13[22] Culpability is to be assessed by reference to the circumstances andsuch factors as the nature of the offending, its magnitude andsophistication; the type, circumstances and number of the victims; themotivation for the offending; the amounts involved; the losses; theperiod over which the offending occurred; the seriousness of breachesof trust involved; and the impact on victims.[23] It is in the assessment of culpability that comparison with other casesis to be undertaken.[17] Although counsel for the appellant has not directly disputed the District CourtJudge's starting point of two years and nine months' imprisonment for the leadoffence, it should be compared to other dishonesty cases:(a) In Gobey v Police, Mr Gobey committed dishonesty-related offencescausing an overall loss of approximately $41,000 to a number of12 R v Honan [2015] NZCA 94 at [34].13 R v Varjan CA 97/03, 26 June 2003.victims.14 His offending was described as arrogant and it was notedthat he preyed on people who were vulnerable to manipulation.15 TheHigh Court considered that the starting point of two years nine months'imprisonment was at the higher end, but not out of range for repeatedoffending over six months, involving different modes of offending andpremeditation, planning and sophistication (including impersonating apolice officer).16(b) In Haereroa v Police, Ms Haereroa's participation in a complex systemof defrauding about 20 elderly people attracted a starting point of twoand a half years' imprisonment.17 On appeal, that starting point washeld to be at the higher end of the available range. The total amountobtained by Ms Haereroa was about $34,000.(c) In Brown v Ministry of Social Development, Ms Brown was chargedwith a variety of dishonesty offences for benefit fraud committed overa period of 15 years.18 The total amount obtained by Ms Brown was$255,177.83. On appeal, it was held that an appropriate starting pointwould have been three years' imprisonment.[18] By comparison, it can be seen that the starting point imposed in the DistrictCourt in this case was too high. The appellant's offending was egregious and hasseverely affected her grandmother, but it was less sophisticated and involved fewervictims and less money than the above cases. She has acknowledged that she wasmotivated by addiction, but this is less serious than comparable cases wheredefendants are willing to defraud people because of their arrogance and greed. Astarting point of 23 months' imprisonment is all that can be justified for the leadoffence. As to the other dishonesty offences, the concurrent sentences imposed by theDistrict Court Judge are appropriate.14 Gobey v Police [2018] NZHC 1555.15 At [16].16 At [18].17 Haereroa v Police [2019] NZHC 318.18 Brown v Ministry of Social Development [2018] NZHC 3131.[19] I do not accept counsel's submission that the discounts are insufficient. Thethree-month discount reflected the mitigating factors and a plea discount of 21-22 percent was fair in the circumstances. Nevertheless, because the starting point was toohigh the end sentence was manifestly excessive. The total sentence imposed was notwithin range.[20] I am satisfied that from a starting point of 23 months' imprisonment, upliftedby one month for the threatening charge and two months for the bail charge andoffending on bail, with a three-month discount for mitigating factors and guilty pleadiscount between 21-22 per cent, an end sentence of 18 months' imprisonment isappropriate. This is less than 24 months, so a sentence of home detention is availablefor consideration.[21] In my view, home detention is the least restrictive sentence available, takinginto account all the purposes of sentencing. Prison is not the best place for theappellant to address her addiction issues. Home detention will allow her to takeresponsibility for her offending and will also serve the principles of denunciation anddeterrence.[22] I have not received any information outlining the suitability of the address theappellant has proposed for home detention, so I am not able to substitute a sentence ofhome detention today. I am able to either grant leave to the appellant to apply for thesubstitution of a sentence of home detention under s 80I of the Sentencing Act 2002or adjourn the matter.19 However, I will grant an adjournment for two weeks becausethe appellant has organised an address, but it has not been checked.[23] Accordingly, I direct that the appeal be called in front of me by way of atelephone conference on Thursday, 5 September 2019 at 9.00 am.________________________________Woolford J19 Larkin v Ministry of Social Development [2015] NZHC 680 at [29].