Anderson v Police

[2021] NZHC 3480

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-000145

[2021] NZHC 3480

BETWEEN

ROSE JOY ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 December 2021

Appearances:

Seth Fraser for the Appellant

Duncan McWilliam for the Respondent

Judgment:

15 December 2021

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 15 December 2021 at 4:30 pm.

Registrar / Deputy Registrar Date:

ANDERSON v NEW ZEALAND POLICE [2021] NZHC 3480 [15 December 2021]

Introduction

[1]    Rose Anderson declined a sentence indication but nonetheless pleaded guilty to one representative charge of theft (over $1000).1 Judge Ingram sentenced her to six months’ 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 in sentence imposed because:3

(a)the Judge was missing material related to the level of reparation when he 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 to moderate dementia which was slowly deteriorating. Ms Anderson was not known to the victim or his family.

[4]    On 9 June 2018, an unknown person acquired the victim’s details and set up internet banking on the victim’s BNZ account.

[5]    Ms Anderson, having obtained the victim’s internet banking details, transferred a total of $19,566.89 from the victim’s BNZ bank account to other accounts, primarily her own ASB account.

[6]    Between 9 June 2018 and 10 July 2018, she completed eleven separate transactions. All but one involved direct payments from the victim’s account into her account. One, on  14  June  2018,  involved  six  transfers  totalling  $14,000  into  Ms Anderson’s account and the accounts of three others; The funds transferred to the three other accounts were either withdrawn by the account holders and given to

1      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 withdrew the money herself.

Personal circumstances of the defendant

[7]    Ms Anderson has a limited criminal history. In 2018, she was sentenced to  40 hours’ community work and ordered to pay a reparation of $78.36 in respect of one charge of theft (under $500) and one charge of possession of an offensive weapon. In 2019, she was sentenced to one year’s supervision for possession of methamphetamine. She also has two historic driving related convictions and two convictions for breaches of community work.

[8]    According to the pre-sentence report, Ms Anderson has two children aged 10 and 14 years. She is a qualified hairdresser but is currently on ACC due to a hand injury. She also receives the single mother’s benefit. Ms Anderson informed the pre-sentence report writer that she wishes to return to her trade once her hand is fully healed in approximately one year’s time.

[9]    In the pre-sentence report, Ms Anderson says she committed the offending with an associate who has not been charged and who she had only just met at the time. The pre-sentence report records Ms Anderson as claiming she felt pressured and intimidated by the associate. Nevertheless, Ms Anderson accepts responsibility for her actions and is remorseful.

Procedural history and sentencing

[10]   This matter has an unusual procedural background. On 28 January 2021, Judge J A R Johnston gave a sentence indication in the Porirua District Court.4 The Judge set out the aggravating factors of Ms Anderson’s offending. These he listed as including the age and vulnerability of the victim, the number of transactions involved and the significant 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. He indicated that if Ms Anderson pleaded guilty following the indication, she would

4      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 six months’ imprisonment, plus reparation. The Judge indicated that an electronically monitored, community-based sentence would be considered, subject to a suitable address and favourable pre-sentence report.

[12]   Ms Anderson did not accept the sentence indication. Instead she pleaded guilty and sought a disputed-facts hearing. She claimed she wanted others cross-examined as to their roles in the offending. In particular, she disputed the prosecution’s assessment of her culpability and the extent of her involvement. She asserted that she was 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 in     Ms 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 be fixed at that amount. In exchange Ms Anderson would abandon the disputed facts hearing. The agreement was apparently recorded in a police memorandum and in a Minute of Judge M Mika.5

[14]   The proceedings were then transferred to the Whakatane District Court for sentence. It appears that some material which should have been on the Court file was missing. 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 earlier indication. 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 was either bound by the indication or if he intended to impose a materially different sentence to that indicated, leave to withdraw the plea of guilty would need to be given pursuant 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 and concluded that “a significant sentence of home detention is appropriate.”6 On this topic he said:

“[8] In all the circumstances, I consider the sentence of home detention of six months is appropriate. For those who think that Judge Johnson identified a sentence of six months’ imprisonment that I should therefore cut that in half for home detention, are sadly mistaken [sic]. The law is clear. A judge is entitled to impose home detention at any particular ratio in relation to a punitive sentence of imprisonment, and I consider that no less than six months home detention could ever be appropriate for such a heartless and callous crime in the circumstances.”

[17]   The Judge recorded that Ms Anderson would pay $20 per week by way of reparation. He stated that that the reparation order would run in favour of the victim’s estate and that Ms Anderson would pay back the $19,566.89 in full or he would send her to prison.7

Approach to Appeal

[18]   Section 250 of the CPA applies. The Court must allow the appeal if it is satisfied 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 no express reference to allowing appeals where the end sentence is “manifestly excessive”, but this principle is “well-engrained” in the Court’s approach to sentence appeals.9 An appellate Court will not intervene where the end sentence is within the range that can properly be justified by accepted sentencing principles. Whether a

6      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.10

Submissions

[20]   Mr Fraser, for Ms Anderson, submitted that there is an error in the sentence imposed. This is because the sentencing Judge was missing the reparation information when he sentenced Ms Anderson. As a result the sentence is erroneous and a different sentence 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 per week for five years, as was agreed in the police memorandum.

[24]   The question of what the appropriate quantum of reparation should be is a matter in the exclusive domain of the sentencing Judge. No consent memorandum recording an agreement between the parties can bind the Judge. While such an agreement may often be useful and will often guide a sentencing Judge in terms of what sentence is ultimately set, that is the extent of its value.

[25]   However, in this particular case, counsel for the Police, Mr McWilliam, by reference to authority, responsibly accepts that the level of reparation imposed by the sentencing Judge was too high. He accepts that the appeal should be allowed on this ground, 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 authority

10     Ripia v R [2011] NZCA 101, at [15].

mandates that the quantum of reparation should be within the offender’s means and instalment periods should rarely exceed five years.11

[26]   The reparation order is quashed and replaced by an order that Ms Anderson pay the victim (or his estate) $20 per week for five years. If that rate of payment is not maintained, then the consequences for Ms Anderson will be those directed by the Judge. Prison is likely to follow.

Six months’ home detention

[27]   Mr Fraser submitted that the sentence of six months’ home detention was manifestly excessive and the sentencing Judge failed to consider the effect of the sentence on Ms Anderson’s children. He submitted the sentence should be quashed and replaced with a sentence of six months’ community work and 18 months’ intensive supervision. Mr McWilliam argued that the sentence was well within the available range justified by accepted sentencing principles.

Discussion

[28]   In submitting the home detention component of the sentence was manifestly excessive, Mr Fraser referred to Hunter v R where the offender was sentenced to six months’ community work after pleading guilty to one charge of causing loss by deception where the loss was approximately $37,000.12 Mr Fraser also pointed to Linsell v Ministry of Social Development where the offender received a sentence of six months and two weeks’ imprisonment.13 The Court in the latter case declined to consider home detention due to the offender’s history.14 Mr Fraser submitted this can be distinguished from the present by reason of Ms Anderson’s short conviction history and family situation. These features combine in favour of a community-based sentence.

11     Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA); Clancy v IRD [2017] NZHC 2029, 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 December 2009.

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 justified by accepted sentencing principles. He submitted that the aggravating factors of the offending, identified by both the Judge who gave the sentence indication and the sentencing Judge elevate the offending to a level where anything less than a sentence of home detention would be insufficient to meet the purposes and principles of sentencing.

[30]   I agree with Mr McWilliam. The sentence imposed strikes me as falling squarely and comfortably within the range of sentences available to the Judge, particularly having regard to the victim’s age, vulnerability and the significant amount of money stolen. Indeed, I consider six months’ home detention to represent a lenient sentence in all the circumstances, especially when the reduction of the reparation order is considered. As the Judge rightly observed, the cynical targeting and exploiting of the 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’s submission that the Judge erred by not expressly considering the effect of home detention on Ms Anderson’s children. I accept that the well-being of an offender’s children is a relevant consideration when assessing their personal circumstances.15 Ms Anderson is apparently the sole caregiver of her children. It was submitted that home detention 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 or limits 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 Mr Fraser said Ms Anderson would like to accompany her children on excursions such as attending a local berry farm. The sentence of home detention is intended, by its very nature, to restrict an offender’s movements. It is punitive because sentencing principles such as deterrence and denunciation must be observed. It is, after all, an alternative to imprisonment. Furthermore, it is not at all uncommon that serving a

15     R v Harlen (2001) 18 CRNZ 582, at [22].

sentence will negatively impact others, including family and whānau. I do not doubt that Ms Anderson’s children would prefer to be able to spend time with their mother beyond the boundaries of the family home, but that is not something I am prepared to give much weight to especially given the advice that other close members of Ms Anderson’s family, including her parents, live locally.

[33]   Relatedly, Mr Fraser raised the possibility of converting the remaining four months of Ms Anderson’s home detention sentence to six months’ community work and 18 months’ supervision. For the reasons set out above I am not persuaded this is either 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 J

Solicitors:

Mr Fraser, Wellington Crown Solicitor, Tauranga