ANDERSON v NEW ZEALAND POLICE [2021] NZHC 3480

ANDERSON v NEW ZEALAND POLICE [2021] NZHC 3480 [15 December 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2021-463-000145[2021] NZHC 3480BETWEEN ROSE JOY ANDERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2021Appearances: Seth Fraser for the AppellantDuncan McWilliam for the RespondentJudgment: 15 December 2021JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 15 December 2021 at 4:30 pm.Registrar / Deputy RegistrarDate:Introduction[1] Rose Anderson declined a sentence indication but nonetheless pleaded guiltyto one representative charge of theft (over $1000).1 Judge Ingram sentenced her to sixmonths' home detention and ordered her to pay reparation of $19,556.89 to the victim.2[2] Ms Anderson appeals her sentence on the grounds that there was an error insentence imposed because:3(a) the Judge was missing material related to the level of reparation whenhe sentenced Ms Anderson; and(b) the sentence is manifestly excessive.Summary of offending[3] At the time of the offending the victim was 93 years' old and had mild tomoderate dementia which was slowly deteriorating. Ms Anderson was not known tothe victim or his family.[4] On 9 June 2018, an unknown person acquired the victim's details and set upinternet banking on the victim's BNZ account.[5] Ms Anderson, having obtained the victim's internet banking details, transferreda total of $19,566.89 from the victim's BNZ bank account to other accounts, primarilyher own ASB account.[6] Between 9 June 2018 and 10 July 2018, she completed eleven separatetransactions. All but one involved direct payments from the victim's account into heraccount. One, on 14 June 2018, involved six transfers totalling $14,000 intoMs Anderson's account and the accounts of three others; The funds transferred to thethree other accounts were either withdrawn by the account holders and given to1 Crimes Act 1961, s 219 and 223(b); maximum penalty seven years' imprisonment.2 Police v Anderson [2021] NZDC 19920.3 Criminal Procedure Act 2011, s 250(2)(b).Ms Anderson or Ms Anderson obtained the account holders' bank cards and withdrewthe money herself.Personal circumstances of the defendant[7] Ms Anderson has a limited criminal history. In 2018, she was sentenced to40 hours' community work and ordered to pay a reparation of $78.36 in respect of onecharge of theft (under $500) and one charge of possession of an offensive weapon. In2019, she was sentenced to one year's supervision for possession ofmethamphetamine. She also has two historic driving related convictions and twoconvictions for breaches of community work.[8] According to the pre-sentence report, Ms Anderson has two children aged 10and 14 years. She is a qualified hairdresser but is currently on ACC due to a handinjury. She also receives the single mother's benefit. Ms Anderson informed thepre-sentence report writer that she wishes to return to her trade once her hand is fullyhealed in approximately one year's time.[9] In the pre-sentence report, Ms Anderson says she committed the offending withan associate who has not been charged and who she had only just met at the time. Thepre-sentence report records Ms Anderson as claiming she felt pressured andintimidated by the associate. Nevertheless, Ms Anderson accepts responsibility for heractions and is remorseful.Procedural history and sentencing[10] This matter has an unusual procedural background. On 28 January 2021, JudgeJ A R Johnston gave a sentence indication in the Porirua District Court.4 The Judge setout the aggravating factors of Ms Anderson's offending. These he listed as includingthe age and vulnerability of the victim, the number of transactions involved and thesignificant sum stolen. The Judge set a starting point of eight months' imprisonment.[11] He did not consider Ms Anderson's conviction history warranted an uplift. Heindicated that if Ms Anderson pleaded guilty following the indication, she would4 Police v Anderson DC Porirua CRI-2020-091-399, 28 January 2021 [Sentence Indication].receive a 25 per cent discount for guilty plea. This would result in a sentence of sixmonths' imprisonment, plus reparation. The Judge indicated that an electronicallymonitored, community-based sentence would be considered, subject to a suitableaddress and favourable pre-sentence report.[12] Ms Anderson did not accept the sentence indication. Instead she pleaded guiltyand sought a disputed-facts hearing. She claimed she wanted others cross-examinedas to their roles in the offending. In particular, she disputed the prosecution'sassessment of her culpability and the extent of her involvement. She asserted that shewas emotionally blackmailed into participating.[13] At the disputed facts hearing, the police were not in a position to proceed.However, the prosecutor pointed to authorities which indicated that someone inMs Anderson's financial position should only be ordered reparation in the range of$2,500 to $5,000. The parties purported to agree that any reparation order would befixed at that amount. In exchange Ms Anderson would abandon the disputed factshearing. The agreement was apparently recorded in a police memorandum and in aMinute of Judge M Mika.5[14] The proceedings were then transferred to the Whakatane District Court forsentence. It appears that some material which should have been on the Court file wasmissing. This included the police memorandum recording the reparation agreement.[15] On 6 October 2021 Ms Anderson appeared before Judge Ingram for sentence.It seems that the Judge mistakenly believed that Ms Anderson had accepted the earlierindication. Having reviewed the file I can easily see how that misapprehension arose.Thus Ms Anderson's sentencing proceeded on the basis that the sentencing Judge waseither bound by the indication or if he intended to impose a materially differentsentence to that indicated, leave to withdraw the plea of guilty would need to be givenpursuant to 115(2)(b) of the Criminal Procedure Act 2011 ("the CPA").5 Police v Anderson DC Porirua CRI-2020-091-399, 14 June 2021 (Minute of Judge Mika).[16] The Judge observed that he was bound by the sentence indication andconcluded that "a significant sentence of home detention is appropriate."6 On this topiche said:"[8] In all the circumstances, I consider the sentence of home detention ofsix months is appropriate. For those who think that Judge Johnson identifieda sentence of six months' imprisonment that I should therefore cut that in halffor home detention, are sadly mistaken [sic]. The law is clear. A judge isentitled to impose home detention at any particular ratio in relation to apunitive sentence of imprisonment, and I consider that no less than six monthshome detention could ever be appropriate for such a heartless and callouscrime in the circumstances."[17] The Judge recorded that Ms Anderson would pay $20 per week by way ofreparation. He stated that that the reparation order would run in favour of the victim'sestate and that Ms Anderson would pay back the $19,566.89 in full or he would sendher to prison.7Approach to Appeal[18] Section 250 of the CPA applies. The Court must allow the appeal if it issatisfied that:(a) for any reason there was an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[19] In any other case, the Court must dismiss the appeal.8 Section 250 makes noexpress reference to allowing appeals where the end sentence is "manifestlyexcessive", but this principle is "well-engrained" in the Court's approach to sentenceappeals.9 An appellate Court will not intervene where the end sentence is within therange that can properly be justified by accepted sentencing principles. Whether a6 Police v Anderson, above n 2, at [5].7 At [7].8 Criminal Procedure Act 20111, s 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [33] and [35].sentence is manifestly excessive is to be examined in terms of the sentence given,rather than the process by which the sentence is reached.10Submissions[20] Mr Fraser, for Ms Anderson, submitted that there is an error in the sentenceimposed. This is because the sentencing Judge was missing the reparation informationwhen he sentenced Ms Anderson. As a result the sentence is erroneous and a differentsentence should be imposed.[21] Two broad issues are engaged on Ms Anderson's appeal:(a) the appeal against the reparation order; and(b) the appeal against the sentence of six months' home detention.[22] I summarise counsel's submissions on each issue.The reparation order[23] Mr Fraser submitted the Court should impose a reparation order of $20 perweek for five years, as was agreed in the police memorandum.[24] The question of what the appropriate quantum of reparation should be is amatter in the exclusive domain of the sentencing Judge. No consent memorandumrecording an agreement between the parties can bind the Judge. While such anagreement may often be useful and will often guide a sentencing Judge in terms ofwhat sentence is ultimately set, that is the extent of its value.[25] However, in this particular case, counsel for the Police, Mr McWilliam, byreference to authority, responsibly accepts that the level of reparation imposed by thesentencing Judge was too high. He accepts that the appeal should be allowed on thisground, with the reparation order adjusted to a total of $5,200 to be paid at $20 a week.Mr Fraser accepts this level of reparation is appropriate. I agree. Well-settled authority10 Ripia v R [2011] NZCA 101, at [15].mandates that the quantum of reparation should be within the offender's means andinstalment periods should rarely exceed five years.11[26] The reparation order is quashed and replaced by an order that Ms Andersonpay the victim (or his estate) $20 per week for five years. If that rate of payment is notmaintained, then the consequences for Ms Anderson will be those directed by theJudge. Prison is likely to follow.Six months' home detention[27] Mr Fraser submitted that the sentence of six months' home detention wasmanifestly excessive and the sentencing Judge failed to consider the effect of thesentence on Ms Anderson's children. He submitted the sentence should be quashedand replaced with a sentence of six months' community work and 18 months' intensivesupervision. Mr McWilliam argued that the sentence was well within the availablerange justified by accepted sentencing principles.Discussion[28] In submitting the home detention component of the sentence was manifestlyexcessive, Mr Fraser referred to Hunter v R where the offender was sentenced to sixmonths' community work after pleading guilty to one charge of causing loss bydeception where the loss was approximately $37,000.12 Mr Fraser also pointed toLinsell v Ministry of Social Development where the offender received a sentence ofsix months and two weeks' imprisonment.13 The Court in the latter case declined toconsider home detention due to the offender's history.14 Mr Fraser submitted this canbe distinguished from the present by reason of Ms Anderson's short conviction historyand family situation. These features combine in favour of a community-basedsentence.11 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA); Clancy v IRD [2017] NZHC2029, at [15] and [30]; Guinness v Police [2015] NZHC 883, at [16].12 Hunter v R [2020] NZHC 3209.13 Linsell v Ministry of Social Development HC New Plymouth CRI-2009-443-29, 18 December2009.14 At [29].[29] Mr McWilliam submitted there was no error in the sentence of six months'home detention. He said that the sentence is not manifestly excessive and is justifiedby accepted sentencing principles. He submitted that the aggravating factors of theoffending, identified by both the Judge who gave the sentence indication and thesentencing Judge elevate the offending to a level where anything less than a sentenceof home detention would be insufficient to meet the purposes and principles ofsentencing.[30] I agree with Mr McWilliam. The sentence imposed strikes me as fallingsquarely and comfortably within the range of sentences available to the Judge,particularly having regard to the victim's age, vulnerability and the significant amountof money stolen. Indeed, I consider six months' home detention to represent a lenientsentence in all the circumstances, especially when the reduction of the reparation orderis considered. As the Judge rightly observed, the cynical targeting and exploiting ofthe vulnerable elderly calls for deterrence. There is no error in the sentence.[31] In coming to that conclusion, it is implicit that I also reject Mr Fraser'ssubmission that the Judge erred by not expressly considering the effect of homedetention on Ms Anderson's children. I accept that the well-being of an offender'schildren is a relevant consideration when assessing their personal circumstances.15 MsAnderson is apparently the sole caregiver of her children. It was submitted that homedetention limits her ability to care for and spend time with her children.[32] There is no evidence of the effect of the sentence on Ms Anderson's children.In any event the children are 10 and 14 years' old. How home detention prevents orlimits Ms Anderson's ability to care for and spend time with them eludes me. Indeed,one might have thought the sentence would increase contact. In oral submissions MrFraser said Ms Anderson would like to accompany her children on excursions such asattending a local berry farm. The sentence of home detention is intended, by its verynature, to restrict an offender's movements. It is punitive because sentencingprinciples such as deterrence and denunciation must be observed. It is, after all, analternative to imprisonment. Furthermore, it is not at all uncommon that serving a15 R v Harlen (2001) 18 CRNZ 582, at [22].sentence will negatively impact others, including family and whānau. I do not doubtthat Ms Anderson's children would prefer to be able to spend time with their motherbeyond the boundaries of the family home, but that is not something I am prepared togive much weight to especially given the advice that other close members of MsAnderson's family, including her parents, live locally.[33] Relatedly, Mr Fraser raised the possibility of converting the remaining fourmonths of Ms Anderson's home detention sentence to six months' community workand 18 months' supervision. For the reasons set out above I am not persuaded this iseither appropriate or necessary.Result[34] The appeal in respect of the reparation is allowed in terms of [26] above.[35] The appeal is otherwise dismissed.Moore JSolicitors:Mr Fraser, WellingtonCrown Solicitor, Tauranga