Annalingam v Police
[2017] NZHC 2803
•13 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2017-404-296 [2017] NZHC 2803
BETWEEN SRI RAJ ANNALINGAM
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 November 2017 Counsel:
J Wiles & Ms Rogers for Appellant
M Mortimer for RespondentJudgment:
13 November 2017
INTERIM JUDGMENT OF DUFFY J
Solicitors/Counsel:
Meredith Connell, Auckland
ANNALINGAM v NEW ZEALAND POLICE [2017] NZHC 2803 [13 November 2017]
J H Wiles, Barrister, Auckland
Introduction
[1] The appellant, Mr Sri Raj Annalingam, pleaded guilty to four charges of theft and two charges of dishonestly using a document. He was sentenced in the District Court to 25 months’ imprisonment and required to pay $14,000 in reparation. He now appeals 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 valued at $1,249 from the Stihl shop in Kumeu. He paid using a BNZ cheque, which staff then attempted to bank. They were unable to do so due to insufficient funds in
Mr Annalingam’s account. When contacted by staff, Mr Annalingam said he would arrange payment, but this never eventuated. Instead, he sold the water blaster to an associate.
[3] The second and third charges of theft relate to Mr Annalingam renting two vehicles from Direct Car and Truck Rentals Ltd in September 2015. He did not return the vehicles at the agreed time, but rather sold them to pawnbrokers. The vehicles were valued at $11,500 and $4,600 respectively.
[4] The final charge of theft relates to Mr Annalingam renting a vehicle from Matthew Rentals in December 2015. Once again he did not return the vehicle within the agreed time, but swapped it for another vehicle at a pawnbrokers. The vehicle was valued at $7,000.
[5] The two charges of dishonestly using a document relate to Mr Annalingam’s purchases on 25 November 2015 (a push mower for $750) and 23 December 2015 (a ride-on lawn mower for $4,500). On each occasion he presented cheques in payment for the goods when he knew not only that there were insufficient funds in the bank account 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 in New 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 accessing computer systems for dishonest purposes, 23 convictions for using a document for pecuniary advantage, four convictions for obtaining by deception and one conviction for receiving stolen property.
[7] The pre-sentence report provided to the District Court states that
Mr Annalingam lacks insight into his offending. Contributors to his offending include his sense of entitlement, lack of remorse, poor problem solving skills, poor self-control and impulsivity. He is assessed as presenting a high risk of re-offending. It is noted that he does not have stable employment, but receives a benefit.
[8] Mr Annalingam is married with five young children. His wife was diagnosed with thyroid cancer in late 2016, and has received treatment. In an affidavit provided to 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 children without her husband.
[9] The property where Mr Annalingam resides with his wife and children in Onehunga was assessed as suitable for the imposition of an electronically-monitored sentence. His wife has signed an occupant’s agreement.
Sentencing in the District Court
Sentence indication
[10] Mr Annalingam sought a sentence indication, which was given by Judge Powell on 13 February 2017. His counsel sought a community-based sentence to enable him to pay reparation, also citing his wife’s ill health. Judge Powell noted that he had strong reservations about imposing a community-based sentence due to Mr Annalingam’s criminal history and the consequent risk of re-offending. In his view
deterrence 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 with appendices, as well as provide a full reparation plan and details of Mr Annalingam’s wife’s medical condition and treatment. He indicated that there would be “the opportunity” 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 other information does not come up to scratch then you are looking at a sentence of imprisonment”.
Sentencing
[12] Mr Annalingam pleaded guilty and appeared for sentence before Judge Powell on 14 July 2017.1 After setting out the facts of the offending, the Judge observed that although most of the goods purchased had been recovered, a sum between $14,000 and $15,000 was still owed in reparation to the victims. In his view the aggravating factors of the offending were the significant loss and harm suffered by different victims; the abuse of trust by Mr Annalingam; the prolonged period over which the offending took place; and the additional element of dishonesty in promising to pay for the goods when questioned, while in fact disposing of them elsewhere. Additionally, there was the personal aggravating feature of Mr Annalingam’s previous convictions for dishonesty-related offending.
[13] There were few mitigating features: the Judge cited only the guilty pleas and the extent to which reparation payments that Mr Annalingam had already made diminished the total amount still outstanding. Although he had undergone restorative justice conferences with his victims, the conferences had not gone well and his victims were left feeling hurt and that he was still lying to them.
[14] The Judge then referred to the sentence indication of between 22 and 25 months’ imprisonment, and the matters left open in that indication. He described the
1 Police v Annalingam [2017] NZDC 15517.
pre-sentence report as “appalling”. Although Mr Annalingam’s counsel questioned the accuracy of the report, the Judge considered that there was “really no other evidence of a positive character that is before the Court” and that it was difficult for him 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 reports provided to the Court indicated she had serious thyroid cancer, but had undergone a successful operation and at this stage her treatment looked successful.
Mr Annalingam’s children were aged between five and 14, so were all at school during the day. In the Judge’s view, neither his wife’s health nor his children’s circumstances provided a reason to reduce what would otherwise be an appropriate sentence for Mr Annalingam.
[16] The Judge took the theft of one of the vehicles as the lead charge and adopted a starting point of 22 months, uplifting that starting point by eight months to reflect the other offending. He applied a further uplift of seven months to reflect
Mr Annalingam’s significant criminal history, reaching 37 months. He discounted this figure by 10 per cent to allow for his wife’s health issues, the fact he had young children, the attempts he had made at reparation and his attendance at restorative justice. He applied a further 25 per cent discount for the guilty plea and reached an end sentence of 25 months.
[17] The Judge concluded that home detention was not available, given that the end sentence was over 24 months. Even if it had been under 24 months, he said he would not have imposed home detention, given Mr Annalingam’s lack of insight into his offending and the need to impose a deterrent penalty. A sentence of 25 months’ imprisonment would require Mr Annalingam to engage with the Parole Board and reflect on the harm his offending had caused. The Judge also noted the possibility of Mr Annalingam attending rehabilitative courses and programmes while in prison.
[18] Mr Annalingam was also ordered to pay $14,000 in reparation, with payments of $35 per week to commence one month after his release from prison.
Submissions
Appellant
[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 information being before the Court;
(b)the pre-sentence report was inadequate in its research and content and well below standard, but was very influential at sentencing; and
(c) the Judge did not consider the personal circumstances of the offender and 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 to provide clarity and certainty about the actual jeopardy a defendant faces if they plead guilty. He contends that Judge Powell should have declined to give a sentence indication on account of having insufficient information before him. He cites from Court of Appeal decisions that comment on the desirability of ensuring that all available materials are before the Court before a sentence indication his given.2 In particular, Mr Wiles says the Judge lacked proper information as to Mr Annalingam’s personal circumstances, such as his concerns for his wife and children. As a consequence, the Judge’s indication was uninformed and invited Mr Annalingam to believe that home detention was a possibility when in reality it was always highly likely that the end sentence would be imprisonment irrespective of any plea entered after the indication.
[21] On the second ground, Mr Wiles submits that the probation officer preparing the pre-sentence report is expected to make a careful inquiry, as the purpose of the
report is to ensure the Judge has adequate information about an offender. He says the
2 R v Edwards [2006] 3 NZLR 180 (CA) at [41], citing from the District Court Bench Book; and R
v McLiesh [2009] NZCA 308 at [24].
pre-sentence report is integral to the sentencing process, and in this case the report was flawed in three aspects:
(a) Mr Annalingam and his wife are not native English speakers, yet the pre-sentence report was prepared by a probation officer without the assistance of a translator;
(b)Mr Annalingam and his wife advise that the interview took no more than ten minutes; and
(c) Mr Annalingam advises that his wife had no input into the preparation of the report: the probation officer said she would be interviewed separately over the phone, but this call was never made.
[22] Mr Wiles accordingly submits that the report is indicative of a minimal and at most 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 from the local Tamil community because of the offending; or (c) Mr Annalingam’s gambling problems and rehabilitative needs in that regard. Mr Wiles also notes the Judge’s observation that the pre-sentence report was “appalling”. Mr Wiles submits that this report clearly had a significant effect on the District Court sentencing.
[23] The third ground of appeal is connected to the second. Mr Wiles submits that the flawed pre-sentence report led to the Judge giving insufficient consideration to Mr Annalingam’s personal circumstances and the need for rehabilitation. Mr Wiles submits there was an insufficient balance between denunciation and deterrence on the one 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 in consideration of home detention) would have been appropriate.
Respondent
[25] Mr Mortimer for the Crown submits that the appeal was filed out of time, and that no explanation has been provided for the delay. However, at the hearing no issue was 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 should not 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 proper remedy is allowing Mr Annalingam to vacate his guilty plea. In any event, Mr Mortimer submits that the Judge had sufficient information before him to give a sentence indication.
[27] Mr Mortimer also disputes that the sentence indication was misleading: here the Judge indicated a range (22 to 25 months), and stated that imprisonment was a strong possibility. The sentence ultimately given was within that range.
[28] As to the second ground of appeal, namely the inadequacy of the pre-sentence report, 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 properly considered all Mr Annalingam’s relevant personal circumstances. He mentioned the need 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 balanced all relevant considerations before concluding that 25 months’ imprisonment was appropriate.
Approach to appeal
[30] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow 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 established that the High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.4
Analysis
Sentencing indication
[32] I am satisfied there was no error in Judge Powell’s approach. I consider the Judge gave a sufficiently certain sentencing indication. At the time the indication was given the Judge did not have all the necessary information on Mr Annalingam’s personal circumstances. This is usual; pre-sentence reports and other material relevant to personal circumstances only become available after guilty pleas have been entered. The Judge could have indicated the starting point and guilty plea discount. Then any movement in the sentence indication would depend on the nature of the personal factors. As it was, the Judge outlined the parameters of the end sentence, indicating it would be between 22 and 25 months’ imprisonment with the possibility of home detention if the sentence came to 24 months’ imprisonment or less. However, the Judge made it clear that Mr Annalingam’s eligibility for a sentence of home detention turned 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 is to be departure from it the offender should be given the opportunity of withdrawing his or her guilty plea. In my view, had the sentence Judge Powell imposed constituted a material departure from the sentencing indication the appropriate approach would
then have been for me to treat the appeal as an appeal against conviction, set the
3 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 the position he was in before he accepted the sentence indication.
[34] Mr Wiles informed me that Mr Annalingam did not want to pursue vacating his guilty plea. There appears to be no dispute that he committed the offences for which he was charged.
Insufficient regard had to personal mitigating circumstances
[35] The second and third reasons Mr Wiles relies upon to advance the appeal overlap. Mr Wiles contends that the pre-sentence report was inadequate in terms of its research and content, but nevertheless it was very influential at sentencing, because it 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 investigation and 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 long list of convictions for dishonesty. The key factors the pre-sentence report writer identified as contributing to the offending were Mr Annalingam’s sense of entitlement, lack of remorse for victims, poor problem solving skills, poor self-control and impulsivity 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 with and aptly describe someone who has acquired an extensive criminal history for dishonesty offending.
[37] The report writer also noted that Mr Annalingam had not responded to previously imposed sentences. He had already received a sentence of imprisonment for dishonesty, but that has not deterred him from further dishonesty offending. A later sentence of home detention for the same type of offending has also seemingly failed to deter him from further such offending. The report writer described
Mr Annalingam’s conduct as presenting a continuum of his dishonest behaviour. The report writer saw Mr Annalingam as lacking remorse, and she assessed him as being highly likely to re-offend within a brief period of any custodial release. She opined
that if Mr Annalingam did not address his issues his reoffending would escalate. A
sentence 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, Judge Powell accepted the submission of the prosecuting sergeant that there was really no evidence of a positive character before the Court. Judge Powell concluded it was difficult 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 officer were reflected in the comments made by the victims in the reports on a restorative justice meeting. The Judge noted they did not go well from Mr Annalingam’s point of view, with the victims feeling hurt and forming the view that Mr Annalingam was still not being honest with them.
[39] My impression of Mr Annalingam, which is based upon a review of his criminal history, accords with that of the pre-sentence report writer. Earlier sentences of imprisonment and home detention for multiple dishonesty-related offences have done 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, even if the end sentence had come within the range that allowed a sentence of home detention to be imposed.
[40] One matter that was drawn to my attention at the appeal hearing was that there was no interpreter present for the preparation of the pre-sentence report whereas there was when the reparation report was prepared. Further, the writer of the restorative justice reports noted that both Mr Annalingam and his wife had accents which at times made their English difficult to understand.
[41] I accept the sparse character of the pre-sentence report may in part be attributed to the absence of an interpreter, and for this reason the pre-sentence report may not have noted anything favourable to Mr Annalingam. On the other hand, it is difficult to see how anything favourable could possibly outweigh the numerous strong factors that required a realistic expression of denunciation and deterrence. As Judge Powell recognised, here the facts here speak for themselves. There is no positive evidence to
suggest a different outcome for Mr Annalingam. Whatever inadequacies the pre- sentence report might disclose, I do not consider they had a material impact on the sentencing outcome such that it can be said to be manifestly excessive.
[42] The third reason Mr Wiles submits the sentence is manifestly excessive is that the Judge did not consider Mr Annalingam’s personal circumstances, in particular his potential rehabilitation and his wife’s poor health. I do not agree.
[43] First, there is little to suggest there are good prospects for rehabilitation. Whilst rehabilitation is always relevant to sentence, as is the imposition of the least restrictive sentence, judges cannot ignore the facts before them. From the time he entered New Zealand in 1999, Mr Annalingam has built up a very extensive criminal history based upon dishonesty. Such conduct ultimately leads to outcomes with a focus on denunciation and deterrence. Clearly, for the reasons I have given in relation to the earlier submissions about the inadequacy of the pre-sentence report, in the face of the earlier 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 called for.
[44] Secondly, the information before the Judge included an affidavit from
Mr Annalingam and his wife which gave detailed information on her health condition. This material, which was provided by Ms Kennedy, sufficiently informed the Court of those circumstances. At [16] of the sentencing notes the Judge refers to the health of Mr Annalingam’s wife and the medical records provided to the Court, which show she had serious thyroid cancer, had a successful operation and on-going treatment looks to be successful. All of this led the Judge to conclude that neither Mrs Annalingam’s nor their children’s circumstances provided a reason to reduce what would otherwise be an appropriate sentence for Mr Annalingam.
[45] Standing back and looking at the matter overall I am satisfied that the sentence of 25 months’ imprisonment cannot be described as manifestly excessive. It is well within the range of sentences that Mr Annalingam’s conduct would generate.
Mr Wiles drew to my attention a recent communication from Auckland District Health Board, which shows that Mr Annalingam’s wife was due for an appointment at the Green Lane Clinical Centre where she was to have surgery carried out under local anaesthetic. However, she was unable to attend that appointment because with Mr Annalingam in prison there is no-one else to attend to the children. Given her past health problems it is not clear to me whether the surgery appointment demonstrates a deterioration in her health condition or not. If her health condition has deteriorated significantly, but she nonetheless is foregoing health treatment because she must be present for the children now that Mr Annalingam is in prison, this may constitute a material change of circumstance which might warrant a fresh look at Mr Annalingam’s sentence.
[47] The sentence of 25 months’ imprisonment is one month beyond a short sentence of imprisonment, which is one of the qualifying factors for home detention. At the time Mr Annalingam was sentenced, Judge Powell was satisfied
Mr Annalingam’s wife’s ill-health was behind her and that she would be able to cope if he were imprisoned. The Judge expressly stated he was satisfied neither
Mr Annalingam’s wife nor the children’s circumstances provided a reason to in any way 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 have adjusted the sentence downwards for this reason. A reduction which took the sentence to 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 would be more appropriate. I acknowledge Judge Powell’s comment that had Mr Annalingam been eligible to receive a sentence of home detention, the sentence would still have been one of imprisonment. However, that was said in in circumstances where Judge Powell was satisfied neither his wife’s health nor the children’s circumstances provided a reason to reduce the sentence. If matters have materially deteriorated since then, I am prepared to give Mr Annalingam the opportunity to put such information before the Court for its consideration. This is not to say that an appeal against sentence on such grounds would be successful, but simply that the Court would be prepared to entertain considering the matter.
was brought on the ground the sentence was manifestly excessive, I can indicate now that 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 of the submission there has been a material deterioration in his wife’s condition. The evidence should be in the form of affidavits annexing full medical reports by the relevant medical officer. I also consider that Mr Annalingam should provide a written waiver of medical confidentiality and privacy so that the police may make enquires if they have questions about the information provided in the medical reports. The privacy waiver should also include permission for police to investigate Mr Annalingam’s family circumstances, and Mr Annalingam will need to provide evidence of his family circumstances to substantiate that there is no-one other than his wife 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 December
2017 where the focus will solely be on whether there has been such material change to the health condition of Mr Annalingam’s wife and therefore the children’s circumstances since sentencing by Judge Powell that this Court should contemplate interfering 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 the appeal against sentence on that ground is unsuccessful.
[55] The appeal is adjourned part heard and Mr Annalingam is given time to file additional submissions on the ground there has been a material change of circumstance since he was sentenced by Judge Powell.
the hearing are set out in [49] to [52] herein.
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