TAINSH v NEW ZEALAND POLICE [2023] NZHC 2768

TAINSH v NEW ZEALAND POLICE [2023] NZHC 2768 [3 October 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2023-412-59[2023] NZHC 2768BETWEEN SUSAN ELIZABETH TAINSHAppellantAND NEW ZEALAND POLICERespondentHearing: 28 September 2023Appearances: A J Bailey for AppellantR P Bates for RespondentJudgment: 3 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 3 October 2023 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 22 June 2023, Susan Tainsh was sentenced in the District Court to26 months' imprisonment and ordered to pay $15,000 in reparations1 on a singlecharge of theft by failing to account.2Background facts[2] Mrs Tainsh met the 69-year-old male victim (who passed away in July 2021)through her work installing medical alarms. On 7 August 2019, the victim grantedMrs Tainsh an enduring power of attorney (EPOA) in relation to his property.3 Thatpower was subject to conditions, including that Mrs Tainsh would not benefit herselffrom the victim's monies or property, nor would she make charitable donations orcelebratory gifts on his behalf.[3] On 9 January 2021, a will was drafted in which the victim left his estate to hisdaughter and grandson. Mrs Tainsh witnessed the execution of that will. Soon after,on 14 January 2021, a psychiatrist assessed the victim as incapable of makingdecisions for himself, thus activating the ability to exercise the EPOA.[4] Between January and July 2021, using the EPOA, Mrs Tainsh accessed thebank account of the victim and transferred $243,310 to herself. Mrs Tainsh accountedfor $13,000 of this with receipts, the rest of the spending went on personal expenses,including $88,468 on gambling. Mrs Tainsh gave a false account to police wheninitially questioned, claiming the victim gifted her the money. The victim passed awayon 12 July 2021.District Court decision[5] After outlining the facts of the offending the Judge referred to the victim impactstatement given by Ms Nally, the victim's daughter. He said her distress and emotionwere tangible. The opportunity to provide her son with a solid foundation in the formof payment of tertiary study fees or a house deposit was lost by Mrs Tainsh's actions.1 Police v Tainsh [2023] NZDC 12933.2 Crimes Act 1961, s 220 & 223(a); maximum penalty seven years' imprisonment.3 Protection of Personal and Property Rights Act 1988, s 94A.The family will be left to forever wonder what might have been. The Judge noted theprospect of meaningful reparation to be "very slim" when considering that $230,310was sought.[6] As part of determining the appropriate sentence, the Judge considered a pre-sentence report as well as a s 27 cultural report, noting from these that Mrs Tainshsuffered from a gambling addiction and was raised in a dysfunctional, violent home.The Judge observed, however, that much of the report relied on Mrs Tainsh'sself-reporting. The Judge considered that Mrs Tainsh's age (at the time, 56 years old)and the fact she had never offended before suggested she had, until this point, beenable to navigate the obstacles her childhood raised, to avoid criminal offending.[7] In setting the starting point, the Judge noted the Police sought a starting pointof four years, citing Police v Morris where $125,000 was taken over an extendedperiod and a starting point of three years four months was adopted.4 Mrs Tainsh'scounsel submitted the sentence in Morris to be at the upper end of what is availableand suggested an end sentence of home detention.[8] The Judge placed the principle of deterrence to the fore, noting the relevantoffending is easy to commit by those in positions of trust and can be difficult to detect.The Judge then identified the aggravating features of the offending to include the factthe offending occurred over a sustained period of time involving 20 transactions, thefact the victim was vulnerable, the amount involved, the greed (as opposed to anyspecific need) which motivated the offending, the premeditation present and thebreach of trust.[9] By way of mitigating factors, the Judge noted Mrs Tainsh was a first-timeoffender. The Judge could not conclude that a gambling addiction was the solemotivator for the offending, noting only around $88,000 of the sum stolen was spenton gambling. The Judge recognised the guilty plea entered but stated this was a casewhere the plea was "inevitable".54 Police v Morris [2016] NZDC 7208.5 Police v Tainsh, above n 1, at [42].[10] Citing Harnett v Ministry of Social Development, the Judge took a startingpoint of four years' imprisonment.6 A 20 per cent discount was granted for an earlyguilty plea. For previous good character and the personal mitigating factors identifiedin Mrs Tainsh's s 27 report, she was granted a ten per cent credit on each count.Mrs Tainsh was offered a further five per cent for her limited reparation offer. Theend sentence was 26 months' imprisonment.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".8 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.9SubmissionsAppellant's submissions[12] Mr Bailey, for Ms Tainsh, submits the sentence handed down in the DistrictCourt was manifestly excessive because the starting point was too high.[13] Mr Bailey notes the Judge correctly refers to R v Varjan and the relevantsentencing factors it identifies for the type of offending committed by Mrs Tainsh.10Those factors are: the magnitude and sophistication of the offending; the type,circumstances and number of victims; the motivation; the amounts involved; the6 Harnett v Ministry of Social Development [2018] NZHC 1160.7 Criminal Procedure Act 2011, ss 250(2) and 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].10 R v Varjan CA97/03, 26 June 2003.losses; the period of time over which the offending occurred; the seriousness ofbreaches of trust; and the victim impact.11[14] Mr Bailey goes on to compare the sentence in this case with the sentence insix Court of Appeal cases to argue that the starting point was too high.12 The casescited present a range of starting points from three to five years' imprisonment foroffending involving amounts ranging from $53,000 to $473,000. Mr Bailey submitsa starting point of no more than three and a half years' imprisonment was appropriatewhen this case is compared with those cases. Mr Bailey additionally submits that thejustified reductions do not operate to compensate for the excessively high startingpoint.[15] If the total discounts of 45 per cent were deducted from a three-and-a-half-yearsentence of imprisonment that would produce a sentence of just over 23 months'imprisonment. Mr Bailey submits that this 13 per cent reduction from the originalsentence would not equate to tinkering, particularly when it would permitconsideration of a sentence of home detention. Mr Bailey points out that homedetention was recommended in the PAC report, noting the positive steps Mrs Tainshhas made toward rehabilitation, such as counselling.[16] Finally, Mr Bailey submits ss 8(g) and 16 of the Sentencing Act, and thedecisions in Fairbrother v R13 and R v Rawiri14 support the sentence being convertedfrom imprisonment to home detention, noting Ms Tainsh would already have spentthree months in prison by the time this appeal is heard.Respondent's submissions[17] Mr Bates, for the Crown, submits the starting point was not excessive andneither was the end sentence, especially when one notes the generous discounts.11 At [22].12 R v Davis [2009] NZCA 26; Garnett v R [2010] NZCA 173; Nisbet v R [2011] NZCA 285, [2011]3 NZLR 4; Lester v R [2012] NZCA 47; McGregor v R [2015] NZCA 565; McHugh v R [2020]NZCA 456.13 Fairbrother v R [2013] NZCA 340 at [30].14 R v Rawiri [2011] NZCA 244 at [18].[18] Mr Bates points out that the Judge had regard to a number of comparableauthorities. Mr Bates places particular weight on R v Davis, where a starting point offour years was considered "plainly not out of the available range" where the appellanthad taken $292,287, repaying $87,991.15 That case involved an employmentrelationship, with Mr Bates submitting that offending when holding an EPOA shouldbe treated more seriously. There is at least the possibility of oversight in anemployment relationship, which is not the case when an EPOA is abused.[19] Mr Bates also cites McGregor v R as a useful case where a starting point offive years' imprisonment was upheld by the Court of Appeal for an appellant who haddishonestly obtained $472,917 by various means, including misusing an enduringpower of attorney.16 The appellant had responsibility for a number of estates, trustsand client personal affairs, with the majority of those dealt with being elderly ormentally incapable of managing their own affairs. Mr Bates also cites Mears v R, acase in which a starting point of four and a half years was upheld by the Court ofAppeal where the appellant had obtained $380,000 as a credit controller in a smallbusiness by hundreds of transactions over a six-year period.17[20] Mr Bates also submits the discounts provided were generous, especially whenone considers the weak causative connection between the appellant's background andher offending.[21] Finally, he submits the offending is of a serious enough nature that, should thesentence be altered in length, the result should remain imprisonment.Analysis[22] The key question here is whether the starting point imposed by the Judge wasexcessive. The Judge's assessment of the Varjan factors was central to this analysis.There were 20 transactions, a highly vulnerable victim, offending largely motivatedby greed, a loss of approximately $230,000 with no prospect of substantial or even15 R v Davis [2009] NZCA 26 at [16].16 McGregor v R [2015] NZCA 565.17 Mears v R [2014] NZCA 30.moderate reparation, a six-month offending period and a significant breach of trust inthe abuse of an EPOA. This was serious offending.[23] Mrs Tainsh abused a position which is recognised by the law as one of theutmost trust and confidence. The very purpose of an EPOA is to ensure an individual'sproperty is managed properly because they are no longer capable of looking after theirown interests. I consider the abuse of an EPOA must be treated more seriously thantheft in an employee/employer relationship, recognising the complete vulnerability ofvictims in EPOA cases.[24] In Davis a four-year starting point was "plainly not out of the available range"where $292,287 was stolen in circumstances that involved less predatory behaviourbecause it was an employer/employee relationship. The appellant also paid back$87,991, so the net loss was just a little over $200,000. While case comparisons arenot the final word on sentencing decisions, Davis reinforces the point that a four-yearstarting point is not inappropriate in this case. I also note that only one of the casesrelied on by the appellant involved the misuse of an EPOA, which I consider is aseriously aggravating feature of this case. The starting point adopted by the Judge wasclearly within range.[25] In terms of discounts there is no challenge, nor could there be.[26] The s 27 report considered Mrs Tainsh's dysfunctional upbringing, involvingsexual abuse and attachment and abandonment issues, were likely the drivers of hergambling problem and mild drinking problem. However, the facts suggested thecausative links between that background and the offending were not strong. Most ofthe funds were used for personal expenditure, not gambling, and for more thanthree decades she had lived an offence-free life. In those circumstances, the Judge's10 per cent credit for her background was clearly sufficient to recognise thecontribution of any past trauma.[27] The same can be said for the other discounts granted. Five per cent inrecognition of Mrs Tainsh's reparation offer and remorse ($5000 promptly and$15,000 over time) could also be viewed as generous when one considers that thiscomprises only a fraction of the money stolen. The 10 per cent given for goodcharacter was at the upper end of what was available. The 25 per cent discount for herguilty plea was appropriate. The evidence was strong and the acceptance ofresponsibility appears to have come late given that even in the pre-sentence report,Mrs Tainsh maintained the victim wanted her to have the remainder of his money.Conclusion[28] No aspect of sentencing was shown to be in error. Accordingly, the appeal isdismissed.Solicitors:Crown Law, DunedinCopy to:A J Bailey, Barrister, Christchurch