MOEAU v NEW ZEALAND POLICE [2019] NZHC 2498

MOEAU v NEW ZEALAND POLICE [2019] NZHC 2498 [2 October 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2019-463-76[2019] NZHC 2498BETWEEN SHAUNEY RAWINIA MOEAUAppellantAND NEW ZEALAND POLICERespondentHearing: 1 October 2019(Heard at Rotorua)Appearances: S P Whitehead for the AppellantO M Salt for the RespondentJudgment: 2 October 2019JUDGMENT OF GAULT JThis judgment was delivered by me on 2 October 2019 at 3.30 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Mr S P Whitehead, Barrister, TaurangaPollett Legal Ltd, Office of the Crown Solicitor, Tauranga[1] Ms Moeau appeals against her sentence in the Tauranga District Court on27 August 2019, having pleaded guilty to the following charges:(a) obtains by deception x 6;1(b) theft under $500 x 3; and theft $500-$1000 x 2;2(c) using a document x 7;3 and(d) breach of supervision.4[2] Judge Connell sentenced Ms Moeau to eight months' imprisonment.She appeals on the basis that the Judge made an arithmetical error of one month'simprisonment when calculating the sentence and home detention should have beensubstituted for imprisonment.[3] The theft charges relate to stealing a security tag remover, then using it toshoplift from various establishments around Tauranga. I do not have a summary offacts for the obtaining by deception and using a document charges, but I gather fromthe Judge's sentencing notes they broadly involved defrauding the Motor TradeAssociation by posing as an employee of the District Health Board and placing phoneorders for booklets of vouchers. The charges of obtaining by deception relate to theacquisition of the vouchers, and the charges of using the documents relate to the useof those vouchers to acquire items and cash at petrol stations. On two occasions thevouchers were apparently used to purchase vehicles.[4] The amount stolen by Ms Moeau was $32,455.[5] Following a previous sentence of nine months' intensive supervision on24 December 2018, Ms Moeau failed to report to her probation officer as directed,founding the breach of supervision charge.1 Section 240 of the Crimes Act 1961, maximum penalty of 7 years' imprisonment.2 Section 219, maximum penalties of 3 months' imprisonment and one year's imprisonment.3 Section 228, maximum penalty of 7 years' imprisonment.4 Section 70 of the Sentencing Act 2002, maximum sentence of 3 months' imprisonment.District Court decision[6] The Judge noted the amount of money involved, and that he was informed thiswas because of pressure put on Ms Moeau by other people. The Judge said he madeallowance for this, but thought she had the opportunity to stop and did not.[7] The Judge then noted that she was apparently under extreme stress at the time,and was in a violent relationship, but the Judge did not accept that was a completereason for the offending.[8] The Judge noted that Ms Moeau is a single mother, with four children. But thePAC report was not positive, noting that Ms Moeau has not engaged in the past withsentences of community detention and supervision. Nevertheless, the PAC reportrecommended intensive supervision or community detention.[9] The Judge was not convinced that Ms Moeau would comply with a sentenceof intensive supervision. The Judge decided to impose a sentence of imprisonment.He took a starting point of 15 months (implicitly on the obtaining by deception orusing a document charges as the other charges have a lower maximum penalty),reduced by five months because Ms Moeau was under such pressure to offend. TheJudge then uplifted by two months because of her previous convictions and becauseshe breached the sentence of supervision, bringing the sentence to twelve months. TheJudge then said he was applying a discount of five months for personal mitigatingfeatures, including the guilty plea. The Judge calculated the resulting sentence as eight(rather than seven) months' imprisonment.[10] The Judge did not consider home detention in any detail, but said:You did half an hour of a sentence of 40 hours' community work and thatcommunity work has not finished so how can you expect me to trust youenough to say, you are someone who can be put on home detention or just onintensive supervision. There is in my view a requirement to show deterrence,to impose a sentence that will stop you behaving in this way in the future.[11] The Judge acknowledged it was a difficult decision before imposing a term ofimprisonment.Approach on appeal[12] To succeed on an appeal against sentence, the appellant must satisfy the appealcourt that there has been an error in the imposition of the sentence and that a differentsentence should be imposed.5[13] The Court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles. The Court will onlyintervene and substitute its own view if the sentence is manifestly excessive or wrongin principle.6 However, the appeal court's focus is on the final sentence imposed ratherthan its component parts or how the ultimate sentence was reached.7[14] Besides the calculation error, correction of which the respondent does notoppose, the sole issue is whether home detention should be granted.Discussion[15] Mr Whitehead, for Ms Moeau, submits it was an error for the Judge not toconsider granting home detention. I consider it goes too far to say the Judge did notconsider home detention.[16] Mr Whitehead submits home detention is an appropriate sentence for reasonsincluding that Ms Moeau is a single mother, with two children in her care, one agedeight and one 18 months' old and still being breast-fed. She is also pregnant. It is notclear whether all this information was available to the Judge. While there has beenprevious bad performance on sentences of community work and supervision, asentence of home detention is different, as Ms Moeau will be confined to her home.[17] I agree. While the Judge was correct to consider whether home detention wasadequate to demonstrate deterrence, I consider that in all the circumstances homedetention is the appropriate sentence in this case and the Judge erred in consideringimprisonment was the least restrictive sentence to achieve the purposes of sentencing.5 Criminal Procedure Act 2001, ss 250(2) and (3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].Taking into consideration all of the purposes of sentencing, home detention betterqualifies as the least restrictive sentence to impose.8 As Mr Salt for the respondentacknowledged, the appellant is untested on an electronically monitored sentence.Inability to pay reparation of itself does not preclude home detention here. Also,Mr Whitehead challenged the Judge's finding that Ms Moeau cannot meet reparation,referring to submissions in the District Court that reparation of approximately $13,000may be realistic ($50 per week for five years). Ms Moeau offers that again andprovided a statement of means confirming that she could manage at least that amount.Mr Whitehead referred to her payment of $40 per week towards court fines asindicative of her willingness to pay reparation.[18] The PAC report considered Ms Moeau's address suitable for electronicmonitoring. The house is a new one, in a residential development. Ms Moeau hasconsented to the conditions of an electronically monitored sentence. Both Police andOranga Tamariki, however, expressed concerns about electronic monitoring at theaddress as there have been 92 previous family harm incidents at the address.Apparently, Ms Moeau and her ex-partner had a history of being aggressive towardsneighbours who were witness to their family harm episodes. However, that addresshistory is less relevant in her ex-partner's absence. I was informed that those incidentswere a consequence of that previous relationship. Ms Moeau now lives at the addressonly with her two children. I understand her ex-partner was sentenced toimprisonment. Even if he is not still in custody, he was not identified in the PAC reportas an occupant,9 and I understand there is a non-association order in place betweenthem. The PAC report did not identify any other occupants of the address.[19] In these circumstances, I am satisfied the District Court's sentence ismanifestly excessive.Conclusion[20] I deduct one month from the sentence to bring it to seven months'imprisonment. I then substitute this sentence for one of three and a half months' home8 Fairbrother v R [2013] NZCA 340 at [30].9 It is a requirement of a pre-sentence report where home detention is being considered thatinformation about the occupants is provided: Sentencing Act 2002, s 26A(2)(a).detention, to be served at the address and on the conditions identified in the PACreport.[21] I order reparation of $13,000 as offered by the defendant, payable byinstalments of $50 per week.________________________________Gault J