ANNALINGAM v NEW ZEALAND POLICE [2017] NZHC 2803

ANNALINGAM v NEW ZEALAND POLICE [2017] NZHC 2803 [13 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2017-404-296[2017] NZHC 2803BETWEEN SRI RAJ ANNALINGAMAppellantAND NEW ZEALAND POLICERespondentHearing: 13 November 2017Counsel: J Wiles & Ms Rogers for AppellantM Mortimer for RespondentJudgment: 13 November 2017INTERIM JUDGMENT OF DUFFY JSolicitors/Counsel:Meredith Connell, AucklandJ H Wiles, Barrister, AucklandIntroduction[1] The appellant, Mr Sri Raj Annalingam, pleaded guilty to four charges of theftand two charges of dishonestly using a document. He was sentenced in the DistrictCourt to 25 months' imprisonment and required to pay $14,000 in reparation. He nowappeals against the sentence of 25 months' imprisonment.The offending[2] The first charge of theft relates to events that occurred on 18 November 2014.Mr Annalingam purchased a water blaster valued at $2,499 and a lawnmower valuedat $1,249 from the Stihl shop in Kumeu. He paid using a BNZ cheque, which staffthen attempted to bank. They were unable to do so due to insufficient funds inMr Annalingam's account. When contacted by staff, Mr Annalingam said he wouldarrange payment, but this never eventuated. Instead, he sold the water blaster to anassociate.[3] The second and third charges of theft relate to Mr Annalingam renting twovehicles from Direct Car and Truck Rentals Ltd in September 2015. He did not returnthe vehicles at the agreed time, but rather sold them to pawnbrokers. The vehicleswere valued at $11,500 and $4,600 respectively.[4] The final charge of theft relates to Mr Annalingam renting a vehicle fromMatthew Rentals in December 2015. Once again he did not return the vehicle withinthe agreed time, but swapped it for another vehicle at a pawnbrokers. The vehicle wasvalued at $7,000.[5] The two charges of dishonestly using a document relate to Mr Annalingam'spurchases on 25 November 2015 (a push mower for $750) and 23 December 2015 (aride-on lawn mower for $4,500). On each occasion he presented cheques in paymentfor the goods when he knew not only that there were insufficient funds in the bankaccount to honour the cheque, but that the account had in fact been closed.Mr Annalingam's personal circumstances[6] Mr Annalingam is 46 years of age. He is of Sri Lankan descent and arrived inNew Zealand in 1999. He has since accumulated a long list of criminal convictions,the first of which occurred in 2003. His history includes 17 convictions for accessingcomputer systems for dishonest purposes, 23 convictions for using a document forpecuniary advantage, four convictions for obtaining by deception and one convictionfor receiving stolen property.[7] The pre-sentence report provided to the District Court states thatMr Annalingam lacks insight into his offending. Contributors to his offending includehis sense of entitlement, lack of remorse, poor problem solving skills, poor self-controland impulsivity. He is assessed as presenting a high risk of re-offending. It is notedthat he does not have stable employment, but receives a benefit.[8] Mr Annalingam is married with five young children. His wife was diagnosedwith thyroid cancer in late 2016, and has received treatment. In an affidavit providedto the District Court, she indicated that she feels tired and unwell much of the time,and would find it difficult to cope with the housework and looking after the childrenwithout her husband.[9] The property where Mr Annalingam resides with his wife and children inOnehunga was assessed as suitable for the imposition of an electronically-monitoredsentence. His wife has signed an occupant's agreement.Sentencing in the District CourtSentence indication[10] Mr Annalingam sought a sentence indication, which was given by JudgePowell on 13 February 2017. His counsel sought a community-based sentence toenable him to pay reparation, also citing his wife's ill health. Judge Powell noted thathe had strong reservations about imposing a community-based sentence due to MrAnnalingam's criminal history and the consequent risk of re-offending. In his viewdeterrence and denunciation were particularly necessary in the present case. However,he also took into account the poor health of Mr Annalingam's wife.[11] The Judge gave a sentence indication of between 22 and 25 months'imprisonment. Counsel were to prepare a full pre-sentence report together withappendices, as well as provide a full reparation plan and details of Mr Annalingam'swife's medical condition and treatment. He indicated that there would be "theopportunity" for home detention, depending on the outcome of the pre-sentence report.He warned however that "if there is a bad pre-sentence report and the otherinformation does not come up to scratch then you are looking at a sentence ofimprisonment".Sentencing[12] Mr Annalingam pleaded guilty and appeared for sentence before Judge Powellon 14 July 2017.1 After setting out the facts of the offending, the Judge observed thatalthough most of the goods purchased had been recovered, a sum between $14,000and $15,000 was still owed in reparation to the victims. In his view the aggravatingfactors of the offending were the significant loss and harm suffered by differentvictims; the abuse of trust by Mr Annalingam; the prolonged period over which theoffending took place; and the additional element of dishonesty in promising to pay forthe goods when questioned, while in fact disposing of them elsewhere. Additionally,there was the personal aggravating feature of Mr Annalingam's previous convictionsfor dishonesty-related offending.[13] There were few mitigating features: the Judge cited only the guilty pleas andthe extent to which reparation payments that Mr Annalingam had already madediminished the total amount still outstanding. Although he had undergone restorativejustice conferences with his victims, the conferences had not gone well and his victimswere left feeling hurt and that he was still lying to them.[14] The Judge then referred to the sentence indication of between 22 and 25months' imprisonment, and the matters left open in that indication. He described the1 Police v Annalingam [2017] NZDC 15517.pre-sentence report as "appalling". Although Mr Annalingam's counsel questionedthe accuracy of the report, the Judge considered that there was "really no otherevidence of a positive character that is before the Court" and that it was difficult forhim to "go behind the conclusions reached by the probation officer" in the report.[15] The Judge then referred to Mr Annalingam's wife's health. Medical reportsprovided to the Court indicated she had serious thyroid cancer, but had undergone asuccessful operation and at this stage her treatment looked successful.Mr Annalingam's children were aged between five and 14, so were all at school duringthe day. In the Judge's view, neither his wife's health nor his children's circumstancesprovided a reason to reduce what would otherwise be an appropriate sentence for MrAnnalingam.[16] The Judge took the theft of one of the vehicles as the lead charge and adopteda starting point of 22 months, uplifting that starting point by eight months to reflectthe other offending. He applied a further uplift of seven months to reflectMr Annalingam's significant criminal history, reaching 37 months. He discounted thisfigure by 10 per cent to allow for his wife's health issues, the fact he had youngchildren, the attempts he had made at reparation and his attendance at restorativejustice. He applied a further 25 per cent discount for the guilty plea and reached anend sentence of 25 months.[17] The Judge concluded that home detention was not available, given that the endsentence was over 24 months. Even if it had been under 24 months, he said he wouldnot have imposed home detention, given Mr Annalingam's lack of insight into hisoffending and the need to impose a deterrent penalty. A sentence of 25 months'imprisonment would require Mr Annalingam to engage with the Parole Board andreflect on the harm his offending had caused. The Judge also noted the possibility ofMr Annalingam attending rehabilitative courses and programmes while in prison.[18] Mr Annalingam was also ordered to pay $14,000 in reparation, with paymentsof $35 per week to commence one month after his release from prison.SubmissionsAppellant[19] Mr Wiles for Mr Annalingam submits that the sentence of 25 months'imprisonment was manifestly excessive on the following grounds:(a) the sentence indication was provided without sufficient informationbeing before the Court;(b) the pre-sentence report was inadequate in its research and content andwell below standard, but was very influential at sentencing; and(c) the Judge did not consider the personal circumstances of the offenderand potential rehabilitation as he is required to do under ss 8(h) and 8(i)of the Sentencing Act.[20] On the first ground, Mr Wiles submits that a sentence indication is intended toprovide clarity and certainty about the actual jeopardy a defendant faces if they pleadguilty. He contends that Judge Powell should have declined to give a sentenceindication on account of having insufficient information before him. He cites fromCourt of Appeal decisions that comment on the desirability of ensuring that allavailable materials are before the Court before a sentence indication his given.2 Inparticular, Mr Wiles says the Judge lacked proper information as to Mr Annalingam'spersonal circumstances, such as his concerns for his wife and children. As aconsequence, the Judge's indication was uninformed and invited Mr Annalingam tobelieve that home detention was a possibility when in reality it was always highlylikely that the end sentence would be imprisonment irrespective of any plea enteredafter the indication.[21] On the second ground, Mr Wiles submits that the probation officer preparingthe pre-sentence report is expected to make a careful inquiry, as the purpose of thereport is to ensure the Judge has adequate information about an offender. He says the2 R v Edwards [2006] 3 NZLR 180 (CA) at [41], citing from the District Court Bench Book; and Rv McLiesh [2009] NZCA 308 at [24].pre-sentence report is integral to the sentencing process, and in this case the report wasflawed in three aspects:(a) Mr Annalingam and his wife are not native English speakers, yet thepre-sentence report was prepared by a probation officer without theassistance of a translator;(b) Mr Annalingam and his wife advise that the interview took no morethan ten minutes; and(c) Mr Annalingam advises that his wife had no input into the preparationof the report: the probation officer said she would be interviewedseparately over the phone, but this call was never made.[22] Mr Wiles accordingly submits that the report is indicative of a minimal and atmost a historical inquiry into the family's circumstances. It does not refer to: (a)Mrs Annalingam's views or health difficulties; (b) the family being ostracised fromthe local Tamil community because of the offending; or (c) Mr Annalingam's gamblingproblems and rehabilitative needs in that regard. Mr Wiles also notes the Judge'sobservation that the pre-sentence report was "appalling". Mr Wiles submits that thisreport clearly had a significant effect on the District Court sentencing.[23] The third ground of appeal is connected to the second. Mr Wiles submits thatthe flawed pre-sentence report led to the Judge giving insufficient consideration to MrAnnalingam's personal circumstances and the need for rehabilitation. Mr Wilessubmits there was an insufficient balance between denunciation and deterrence on theone hand and on the other the principles of ss 8(h) and 8(i) of the Sentencing Act.[24] For the above reasons, Mr Wiles submits that a sentence of 25 months'imprisonment was manifestly excessive and a sentence of 22 months (resulting inconsideration of home detention) would have been appropriate.Respondent[25] Mr Mortimer for the Crown submits that the appeal was filed out of time, andthat no explanation has been provided for the delay. However, at the hearing no issuewas taken with this delay. Accordingly, I propose to grant leave to appeal out of time.[26] As to the first ground of appeal, which is that the sentence indication shouldnot have been given, Mr Mortimer submits that this is not a ground of appeal. Rather,it alleges jurisdictional error in giving the sentence indication, for which the properremedy is allowing Mr Annalingam to vacate his guilty plea. In any event, MrMortimer submits that the Judge had sufficient information before him to give asentence indication.[27] Mr Mortimer also disputes that the sentence indication was misleading: herethe Judge indicated a range (22 to 25 months), and stated that imprisonment was astrong possibility. The sentence ultimately given was within that range.[28] As to the second ground of appeal, namely the inadequacy of the pre-sentencereport, Mr Mortimer disputes each of the factors relied on Mr Wiles' submissions.Among other things he notes that no affidavit from Mr Annalingam has been provided,and there is insufficient evidence for Mr Wiles' assertions.[29] On the third ground of appeal, Mr Mortimer says that the Judge properlyconsidered all Mr Annalingam's relevant personal circumstances. He mentioned theneed for rehabilitation, and cited his wife's health problems and his children's needs.He had other information before him besides the pre-sentence report, and he balancedall relevant considerations before concluding that 25 months' imprisonment wasappropriate.Approach to appeal[30] Section 250(2) of the Criminal Procedure Act 2011 states that the Court mustallow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[31] In any other case, the Court must dismiss the appeal.3 It is well establishedthat the High Court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles. Whether a sentence ismanifestly excessive is to be examined in terms of the sentence given, rather than theprocess by which the sentence is reached.4AnalysisSentencing indication[32] I am satisfied there was no error in Judge Powell's approach. I consider theJudge gave a sufficiently certain sentencing indication. At the time the indication wasgiven the Judge did not have all the necessary information on Mr Annalingam'spersonal circumstances. This is usual; pre-sentence reports and other material relevantto personal circumstances only become available after guilty pleas have been entered.The Judge could have indicated the starting point and guilty plea discount. Then anymovement in the sentence indication would depend on the nature of the personalfactors. As it was, the Judge outlined the parameters of the end sentence, indicating itwould be between 22 and 25 months' imprisonment with the possibility of homedetention if the sentence came to 24 months' imprisonment or less. However, theJudge made it clear that Mr Annalingam's eligibility for a sentence of home detentionturned on the extent to which allowance was made for personal mitigating factors.[33] There is a general principle that once a sentence indication is given, if there isto be departure from it the offender should be given the opportunity of withdrawinghis or her guilty plea. In my view, had the sentence Judge Powell imposed constituteda material departure from the sentencing indication the appropriate approach wouldthen have been for me to treat the appeal as an appeal against conviction, set the3 Criminal Procedure Act 2011, s 250(3).4 Ripia v R [2011] NZCA 101 at [15].conviction aside and vacate the guilty plea, which would return Mr Annalingam to theposition he was in before he accepted the sentence indication.[34] Mr Wiles informed me that Mr Annalingam did not want to pursue vacatinghis guilty plea. There appears to be no dispute that he committed the offences forwhich he was charged.Insufficient regard had to personal mitigating circumstances[35] The second and third reasons Mr Wiles relies upon to advance the appealoverlap. Mr Wiles contends that the pre-sentence report was inadequate in terms ofits research and content, but nevertheless it was very influential at sentencing, becauseit contributed to Judge Powell giving insufficient weight to personal mitigating factors.[36] I accept the pre-sentence report is sparse. There is not the level of investigationand detail that was once revealed in pre-sentence reports. On the other hand, the pre-sentence report writer was faced with a difficult situation. Mr Annalingam has a longlist of convictions for dishonesty. The key factors the pre-sentence report writeridentified as contributing to the offending were Mr Annalingam's sense of entitlement,lack of remorse for victims, poor problem solving skills, poor self-control andimpulsivity and not being able to problem-solve to reduce his risk of further offending.He was also said to lack insight into his offending. Those remarks are consistent withand aptly describe someone who has acquired an extensive criminal history fordishonesty offending.[37] The report writer also noted that Mr Annalingam had not responded topreviously imposed sentences. He had already received a sentence of imprisonmentfor dishonesty, but that has not deterred him from further dishonesty offending. A latersentence of home detention for the same type of offending has also seemingly failedto deter him from further such offending. The report writer describedMr Annalingam's conduct as presenting a continuum of his dishonest behaviour. Thereport writer saw Mr Annalingam as lacking remorse, and she assessed him as beinghighly likely to re-offend within a brief period of any custodial release. She opinedthat if Mr Annalingam did not address his issues his reoffending would escalate. Asentence of imprisonment was recommended.[38] At the sentencing before Judge Powell, Mr Annalingam's then counsel,Ms Kennedy, questioned the accuracy of the sentencing report. However, JudgePowell accepted the submission of the prosecuting sergeant that there was really noevidence of a positive character before the Court. Judge Powell concluded it wasdifficult for him to go behind the conclusions reached by the probation officer in pre-sentence report. He went on to say that the comments made by the probation officerwere reflected in the comments made by the victims in the reports on a restorativejustice meeting. The Judge noted they did not go well from Mr Annalingam's point ofview, with the victims feeling hurt and forming the view that Mr Annalingam was stillnot being honest with them.[39] My impression of Mr Annalingam, which is based upon a review of hiscriminal history, accords with that of the pre-sentence report writer. Earlier sentencesof imprisonment and home detention for multiple dishonesty-related offences havedone little, if anything, to deter him from continuing to act in this way. Accordingly,it is easy to see why Judge Powell considered imprisonment was the only option, evenif the end sentence had come within the range that allowed a sentence of homedetention to be imposed.[40] One matter that was drawn to my attention at the appeal hearing was that therewas no interpreter present for the preparation of the pre-sentence report whereas therewas when the reparation report was prepared. Further, the writer of the restorativejustice reports noted that both Mr Annalingam and his wife had accents which at timesmade their English difficult to understand.[41] I accept the sparse character of the pre-sentence report may in part be attributedto the absence of an interpreter, and for this reason the pre-sentence report may nothave noted anything favourable to Mr Annalingam. On the other hand, it is difficultto see how anything favourable could possibly outweigh the numerous strong factorsthat required a realistic expression of denunciation and deterrence. As Judge Powellrecognised, here the facts here speak for themselves. There is no positive evidence tosuggest a different outcome for Mr Annalingam. Whatever inadequacies the pre-sentence report might disclose, I do not consider they had a material impact on thesentencing outcome such that it can be said to be manifestly excessive.[42] The third reason Mr Wiles submits the sentence is manifestly excessive is thatthe Judge did not consider Mr Annalingam's personal circumstances, in particular hispotential rehabilitation and his wife's poor health. I do not agree.[43] First, there is little to suggest there are good prospects for rehabilitation. Whilstrehabilitation is always relevant to sentence, as is the imposition of the least restrictivesentence, judges cannot ignore the facts before them. From the time he entered NewZealand in 1999, Mr Annalingam has built up a very extensive criminal history basedupon dishonesty. Such conduct ultimately leads to outcomes with a focus ondenunciation and deterrence. Clearly, for the reasons I have given in relation to theearlier submissions about the inadequacy of the pre-sentence report, in the face of theearlier sentences failing to deter Mr Annalingam and the present extensive offending,the Court had no option to do anything other than it did. A stern sentence was calledfor.[44] Secondly, the information before the Judge included an affidavit fromMr Annalingam and his wife which gave detailed information on her health condition.This material, which was provided by Ms Kennedy, sufficiently informed the Court ofthose circumstances. At [16] of the sentencing notes the Judge refers to the health ofMr Annalingam's wife and the medical records provided to the Court, which show shehad serious thyroid cancer, had a successful operation and on-going treatment looksto be successful. All of this led the Judge to conclude that neither Mrs Annalingam'snor their children's circumstances provided a reason to reduce what would otherwisebe an appropriate sentence for Mr Annalingam.[45] Standing back and looking at the matter overall I am satisfied that the sentenceof 25 months' imprisonment cannot be described as manifestly excessive. It is wellwithin the range of sentences that Mr Annalingam's conduct would generate.[46] Ordinarily this would have been enough to dispose of the appeal. However,Mr Wiles drew to my attention a recent communication from Auckland District HealthBoard, which shows that Mr Annalingam's wife was due for an appointment at theGreen Lane Clinical Centre where she was to have surgery carried out under localanaesthetic. However, she was unable to attend that appointment because with MrAnnalingam in prison there is no-one else to attend to the children. Given her pasthealth problems it is not clear to me whether the surgery appointment demonstrates adeterioration in her health condition or not. If her health condition has deterioratedsignificantly, but she nonetheless is foregoing health treatment because she must bepresent for the children now that Mr Annalingam is in prison, this may constitute amaterial change of circumstance which might warrant a fresh look at Mr Annalingam'ssentence.[47] The sentence of 25 months' imprisonment is one month beyond a shortsentence of imprisonment, which is one of the qualifying factors for home detention.At the time Mr Annalingam was sentenced, Judge Powell was satisfiedMr Annalingam's wife's ill-health was behind her and that she would be able to copeif he were imprisoned. The Judge expressly stated he was satisfied neitherMr Annalingam's wife nor the children's circumstances provided a reason to in anyway reduce what would otherwise be an appropriate sentence for Mr Annalingam.This suggests to me that had the facts been otherwise, the Judge may well haveadjusted the sentence downwards for this reason. A reduction which took the sentenceto one of 24 months would have necessarily engaged s 16(2) of the Sentencing Act.This provision requires the Court to consider whether a non-custodial sentence wouldbe more appropriate. I acknowledge Judge Powell's comment that had MrAnnalingam been eligible to receive a sentence of home detention, the sentence wouldstill have been one of imprisonment. However, that was said in in circumstanceswhere Judge Powell was satisfied neither his wife's health nor the children'scircumstances provided a reason to reduce the sentence. If matters have materiallydeteriorated since then, I am prepared to give Mr Annalingam the opportunity to putsuch information before the Court for its consideration. This is not to say that anappeal against sentence on such grounds would be successful, but simply that theCourt would be prepared to entertain considering the matter.[48] Accordingly, I propose to adjourn this appeal part heard. Insofar as the appealwas brought on the ground the sentence was manifestly excessive, I can indicate nowthat this ground is unsuccessful, and would not result in the appeal being allowed.[49] Mr Annalingam has until 22 November 2017 to provide evidence in support ofthe submission there has been a material deterioration in his wife's condition. Theevidence should be in the form of affidavits annexing full medical reports by therelevant medical officer. I also consider that Mr Annalingam should provide a writtenwaiver of medical confidentiality and privacy so that the police may make enquires ifthey have questions about the information provided in the medical reports. Theprivacy waiver should also include permission for police to investigate MrAnnalingam's family circumstances, and Mr Annalingam will need to provideevidence of his family circumstances to substantiate that there is no-one other than hiswife who can attend to the children whilst he is in prison.[50] The Crown has until 30 November 2017 to file any evidence in response.[51] Mr Annalingam is to have until 5 December 2017 to file any evidence in reply.[52] The appeal is to come back on for hearing before me at 10 am on 7 December2017 where the focus will solely be on whether there has been such material changeto the health condition of Mr Annalingam's wife and therefore the children'scircumstances since sentencing by Judge Powell that this Court should contemplateinterfering with the sentence on appeal.Result[53] Leave to appeal out of time granted.[54] The sentence imposed on Mr Annalingam is not manifestly excessive and theappeal against sentence on that ground is unsuccessful.[55] The appeal is adjourned part heard and Mr Annalingam is given time to fileadditional submissions on the ground there has been a material change of circumstancesince he was sentenced by Judge Powell.[56] Time table directions for filing additional submissions and the resumption ofthe hearing are set out in [49] to [52] herein.