Appuhamilage v Police
[2015] NZHC 2355
•28 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000244 [2015] NZHC 2355
BETWEEN INOKA WEEGAMA APPUHAMILAGE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 September 2015 Appearances:
Luke Wilson for the Appellant
Nicole Copeland for the RespondentJudgment:
28 September 2015
JUDGMENT OF MOORE J [Appeal against sentence]
This judgment was delivered by me on 28 September 2015 at 3:15pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
APPUHAMILAGE v NEW ZEALAND POLICE [2015] NZHC 2355 [28 September 2015]
Introduction
[1] Ms Inoka Weedagama Appuhamilage pleaded guilty in the District Court at Auckland following a sentence indication to one charge of obtaining by deception,1 one charge of accessing a computer system for a dishonest purpose,2 and two charges of using forged documents.3
[2] She was sentenced to six months’ home detention and 200 hours’ community service. She was ordered to pay $5,000 in reparation.
[3] She appeals that sentence on the grounds the sentencing Judge erred in imposing a sentence of a different kind to the sentence indicated and, furthermore, that the Judge erred in failing to give counsel the opportunity to be heard on the issue of reparation.
[4] The Police accept that the sentence imposed was of a different type to the sentence indicated and that the appellant should have been given the opportunity to vacate her guilty pleas. However, the Police oppose the appeal on the grounds that Ms Appuhamilage takes no issue with her conviction and does not seek to vacate her guilty pleas. The Police say the sentence imposed was appropriate and should not be interfered with.
Factual background
[5] Ms Appuhamilage is a 20-year old female of Sri Lankan descent. At the time of the offending she was aged 18. She lived with her mother, the first victim in this matter.
[6] In August 2013 she obtained her mother’s online banking password. Over the next six months she made multiple withdrawals totalling over $29,000 from her mother’s bank account. Then, in February 2014, she applied for a personal loan from Avanti Finance Limited for $30,000. She submitted the loan application using
her mother’s name as the applicant. She also used her mother’s home as security.
1 Crimes Act 1961, s 240(1)(a); maximum penalty seven years’ imprisonment.
2 Crimes Act 1961, s 249(1); maximum penalty seven years’ imprisonment.
3 Crimes Act 1961, ss 257(1)(b) and (c); maximum penalty 10 years’ imprisonment.
Using her mother’s forged signature, and knowing it was false, Ms Appuhamilage presented her mother’s passport and the forged documentation to a Justice of the Peace who witnessed the signature. The $30,000 loan was approved and deposited into Ms Appuhamilage’s mother’s account. Ms Appuhamilage made multiple withdrawals from her mother’s account into her personal account.
[7] By way of explanation Ms Appuhamilage said she took the money from her mother’s account because her ex-partner had asked her for it. She did not get the benefit of it and most of the unlawful transactions and the forging of the loan application were undertaken by her ex-partner.
[8] It was accepted by the sentencing Judge that Ms Appuhamilage had been in an abusive relationship. Her ex-partner, a man in his 30s, was violent and had a gambling addiction. It was undisputed that the money was stolen at his insistence and as a result of the violence and pressure imposed by him on Ms Appuhamilage.
The sentence indication
[9] At the sentence indication hearing on 22 June 2015 the Judge adopted a starting point of two years’ imprisonment. He allowed an eight month discount in recognition of Ms Appuhamilage’s youth, her lack of previous convictions and otherwise previous good character. He also took into account the circumstances of the offending arising, as it did, from the abusive relationship Ms Appuhamilage had with her ex-partner.
[10] A further 25 per cent discount was given for guilty pleas in the event the
indication was accepted. This brought the end sentence to 12 months’ imprisonment.
[11] The Judge indicated he would impose home detention provided there was a positive pre-sentence report, a successful restorative justice outcome and willingness on Ms Appuhamilage’s part to pay reparation at a significant rate. No mention was made of community work. In concluding his Honour observed:
“[10] I must consider whether imprisonment is the least restrictive outcome or whether home detention is more appropriate. If there was a positive pre-sentence report, if there was a successful restorative justice
outcome, and given your willingness to pay a reparation at a significant rate,
I would impose home detention.”
Sentencing
[12] Ms Appuhamilage accepted the indication and appeared before the same Judge on 7 August 2015 for sentencing. Having regard to the reasonably full comments made at the sentencing indication, the sentencing notes are brief. His Honour noted that there was a positive pre-sentence report which recommended a sentence of community detention and community work.
[13] The Judge was not prepared to adopt the pre-sentence report recommendation. He was, however, satisfied that home detention, as opposed to imprisonment, was appropriate.
[14] His Honour directed reparation to be made of $5,000 on the basis that Ms Appuhamilage was only capable of making modest payments over the next few years. His Honour imposed a sentence of six months’ home detention and 200 hours of community work.
[15] No prior indication had been given by the Judge that the additional sentence of community work would be imposed. Ms Appuhamilage was not given the opportunity to vacate her guilty pleas as is required by s 115(2)(b) of the Criminal Procedure Act 2011 (“the CPA”).
Appellant’s submissions
[16] Mr Wilson, for Ms Appuhamilage, submits that the sentence is different from that which the Judge had indicated and that the sentencing Judge was bound by his earlier indication. He thus submits this was an error and there was no principled or legal basis on which to impose a sentence of a different kind from that indicated. He notes that Ms Appuhamilage does not wish to vacate her plea. Instead, he submits the sentence should be adjusted to reflect that which was indicated.
[17] While accepting that a combination of home detention, community work and reparation is a permitted combination of sentences, Mr Wilson submits that in this
case home detention alone would properly reflect the totality of the offending. He does not submit that the sentence imposed is manifestly excessive. Instead, he submits that in terms of s 250 of the CPA there has been an error in the sentence imposed and a different sentence, namely that which was originally indicated, should be imposed.
[18] For the Police, Ms Copeland properly and responsibly accepts that the sentence imposed differs from that indicated and thus Ms Appuhamilage should have been permitted to vacate her plea. In that regard she accepts the Judge erred.
[19] Ms Copeland submits that a sentence of either nine months’ home detention with an order for reparation or a sentence of 12 months’ imprisonment is appropriate to properly reflect the offending. She submits that a bare sentence of six months’ home detention would fall outside the acceptable range.
Approach to appeal
[20] Section 250 of the CPA applies. Pursuant to that provision 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.
[21] In any other case the Court must dismiss the appeal.4 This section confirms the approach taken by the Courts under the Summary Proceedings Act 1957 where the Court said: 5
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
Sentence indications
[22] Sentence indications and the method by which they should be given are described in ss 60 to 65 of the CPA. The effect of a sentence indication is set out in s 116, which provides:
“116 Effect of sentence indication
(1) This section applies to a sentence indication given under section 61 if the defendant pleads guilty to the offence in respect of which it was given within the period that it has effect.
(2) The sentence indication is binding on the judicial officer that gave it unless—
(a) information becomes available to the court after the sentence indication was given but before sentencing; and
(b) the judicial officer is satisfied that the information materially affects the basis on which it was given.
(3) The sentence indication is not binding on a judicial officer other than the judicial officer who gave the indication.
[23] Section 115 is also relevant. This section provides:
“115 Plea of guilty may be withdrawn by leave of court
(1) A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
(2) The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—
(a) the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or
(b) the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.”
[24] In addition to not being binding on a different Judge at the same level, a sentence indication is also not binding on an appellate Court, nor is the defendant entitled to withdraw his or her plea if a different sentence is imposed on appeal.6
This is a departure from the law which applied prior to the enactment of the CPA.7
[25] The clear effect of these sections is that a Judge who gives a sentence indication must impose a sentence consistent with that indication unless there is a relevant change of circumstances. Further, where any Judge seeks to impose a sentence different from that indicated, that Judge must give the defendant an opportunity to withdraw his or her plea. In the case of an appellate Judge however, no such restriction exists and the Judge may impose a different sentence on appeal without the requirement to offer the defendant the opportunity to withdraw his or her plea.
[26] In the present circumstances there are several possible interpretations of what occurred. The first possibility is that there was a relevant change of circumstances and the Judge thus imposed a different sentence, albeit without allowing Ms Appuhamilage the opportunity to vacate her plea. The second possibility is that there was no change of circumstances and thus the Judge was bound to impose the sentence indicated. Finally, the Judge’s reference to reparation might be interpreted as a reference to Ms Appuhamilage’s stated willingness to pay reparation rather than any requirement on her part to pay significant reparation. Regardless of which approach is to be preferred it is clear in my view that the sentencing Judge erred, either in failing to give Ms Appuhamilage an opportunity to vacate her plea or in failing to impose the sentence which he had earlier indicated.
[27] The effect of s 252 of the CPA is that I am not bound by the indication given on this appeal. The question then arises as to how this Court should resolve the
difficulties caused by the Judge’s approach to sentencing. Similar situations have arisen in previous cases. In Te Tau v Police, MacKenzie J considered a case where the defendant appealed on the basis that the District Court Judge had not given the full credit for his guilty plea as stated in the sentence indication. In allowing the appeal, MacKenzie J observed:8
“[13] In the circumstances, I consider that the Judge ought not to have departed from the indicated discount without giving a prior indication of her intention to do so. In those circumstances, I consider that, whether or not the end sentence was within the available range, the sentence needs to be adjusted on this appeal to conform with the indication.”
[28] Similarly, in Te Namu v Police, Courtney J allowed an appeal against a sentence which included community work, where a different Judge had given an indication of a sentence not including community work, but had not allowed Mr Te Namu the opportunity to vacate his plea. In those circumstances, her Honour
observed:9
“[10] In the usual course an appeal such as this would be dealt with by quashing the conviction and remitting the matter to the District Court. However, Mr Griffiths indicated that Mr Te Namu did not wish to vacate his guilty plea. He merely wanted to be sentenced in a way that did not include community work. Mr Griffiths proposed that a further two months of community detention cumulative upon the existing community detention sentence would be appropriate and Mr Hamlin agreed with that.”
[29] By contrast, in Wilson v R, Wylie J dismissed an appeal where the District Court Judge imposed a sentence of imprisonment having indicated community detention. This was on the basis no suitable address was available. While accepting that the Judge erred in failing to allow Mr Wilson to vacate his plea, Wylie J noted that Mr Wilson had not indicated on appeal that he wished to vacate his plea. His
Honour went on to observe:10
“[37] If I am to allow the appeal, I must also be satisfied that a different sentence should have been imposed. I must consider afresh what sentence was appropriate.”
[30] After a review of the sentence, the Judge determined that the sentence under appeal was within the available range and dismissed the appeal.
8 Te Tau v Police [2015] NZHC 1716 at [13].
9 Te Namu v Police [2013] NZHC 3443 at [10].
[31] These cases make it clear that where the Judge has failed to allow the defendant to vacate his or her plea, the conviction should generally be quashed to allow the defendant to exercise that right. However, where, as here, the defendant does not wish to vacate the plea, the situation is different.
[32] In both Te Tau and Te Namu the Court gave effect to the sentence indication. However, I prefer the approach adopted by Wylie J namely that before altering the sentence the appellate Court must be persuaded that the sentence under appeal is wrong and a different sentence should be imposed. This approach is consistent with s 250 of the CPA. It is also consistent with s 252 of the CPA as the appellate Court is not bound by the sentence indication. Ultimately the issue for the appellate Court is whether the sentence is correct, not whether it is consistent with the indication.
What is the appropriate sentence?
[33] Counsel are agreed on a starting point of around two years. In the course of argument both counsel agreed that a discount of 15 per cent was appropriate to reflect Ms Appuhamilage’s youth and good character. They also agreed that Ms Appuhamilage should be entitled to the maximum discount of 25 per cent for her
early plea of guilty.11 This results in a final sentence in the region of 12 months’
imprisonment. The dispute between the parties is what sentence should then be imposed. Mr Wilson submits a sentence of six months’ home detention would adequately reflect the principles of accountability, deterrence and denunciation. Ms Copeland submits the appropriate sentence should be nine months’ home detention with an order for reparation or 12 months’ imprisonment.
[34] The facts of this case are most unusual. Although the losses total nearly
$60,000 and involve a significant breach of trust, it is common ground that the catalyst for the offending arose from the pressure exerted by Ms Appuhamilage’s ex- partner. That pressure continued to be exerted throughout the course of the offending. The notes of the restorative justice meeting reflect Ms Appuhamilage’s sincere remorse. Significantly in my view are the comments of Ms Appuhamilage’s mother’s whose concluding comments were that she wanted the presiding Judge to
show leniency towards her daughter when he considered sentencing. Tellingly she also stated:
“It’s not the money; it’s my daughter I want.”
[35] In all the circumstances I am satisfied that a final sentence of six months’ home detention is appropriate and neither community work nor reparation is necessary. Home detention is a real alternative for imprisonment and meets the principles of the Sentencing Act 2002 of denunciation and deterrence.12
Result
[36] The appeal is allowed.
[37] The sentence is quashed and a sentence of six months’ home detention is
substituted with the following conditions:
(a) that Ms Appuhamilage serve the sentence at the address named in the pre-sentence report;
(b)she is not to leave or move from that address without the prior written consent of Community Probation.
[38] Leave is reserved to either party to seek such further or other orders or directions as may be necessary to give effect to this sentence.
Moore J
Solicitors:
Mr Wilson, Auckland
Crown Solicitor, Auckland
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