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Ms Anderson’s account and the accounts of three others; The funds transferred to the three other accounts were either withdrawn by the account holders and given to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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 3480
Decision Date: 15 December 2021

CaseChat Overview and Summary

Rose Anderson appealed her sentence of six months’ home detention and reparation of $19,556.89 following her guilty plea to one representative charge of theft over $1000. Anderson argued the sentence was erroneous and manifestly excessive. The High Court considered the appeal against the reparation order and the appeal against the six months’ home detention. Regarding the reparation order, the Court found that the sentencing Judge was missing material information about the level of reparation when sentencing Anderson. The Court agreed with the submission that the reparation order should be replaced with an order of $20 per week for five years. As for the home detention sentence, the Court held that the sentence did not constitute an error as it was within the range justified by accepted sentencing principles. The appeal against the reparation order was allowed, but the appeal against the home detention sentence was dismissed. The reparation order was replaced with an order of $20 per week for five years.

Orders