Appuhamilage v Police - [2015] NZHC 2355

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 Respondent

Judgment:

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…

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.

Continue reading Appuhamilage v Police

Details

AGLC: Appuhamilage v Police [2015] NZHC 2355
Case: [2015] NZHC 2355
Decision Date: 28 September 2015

CaseChat Overview and Summary

The appeal was heard in the High Court of New Zealand, Auckland Registry, by Moore J. The appellant, Inoka Weegamae Appuhamilage, appealed the sentence imposed by the District Court. She pleaded guilty to multiple charges, including obtaining by deception, accessing a computer system for a dishonest purpose, and using forged documents. The District Court sentenced her to six months’ home detention, 200 hours’ community service, and ordered her to pay $5,000 in reparation. Appuhamilage argued that the sentence was of a different kind to the sentence indicated and that she should have been given the opportunity to vacate her guilty pleas. The Police agreed that there was an error in the sentence imposed but argued that the sentence was appropriate and should not be interfered with.

The court had to determine whether the District Court Judge erred in imposing a sentence different from that indicated and whether Appuhamilage should have been given the opportunity to vacate her guilty pleas. The court also had to decide on the appropriate sentence considering the circumstances of the case. The court reviewed the principles of sentencing and the effect of sentence indications. The court noted that while the sentence indication is binding on the judicial officer who gave it, the appellate court is not bound by it. The court also noted that if a different sentence is imposed on appeal, the defendant is not entitled to withdraw their plea.

After reviewing the facts of the case and the submissions of both parties, the court concluded that the District Court Judge erred in imposing a sentence different from that indicated without giving Appuhamilage the opportunity to vacate her plea. The court noted that the losses totalled nearly $60,000, but the catalyst for the offending arose from the pressure exerted by Appuhamilage’s ex-partner. The court also considered the comments of Appuhamilage’s mother, who wanted the presiding Judge to show leniency towards her daughter when he considered sentencing. The court determined that a final sentence of six months’ home detention was appropriate and did not consider community work or reparation necessary.

The appeal was allowed, and the sentence was quashed and substituted with a sentence of six months’ home detention with specific conditions. Leave was reserved to either party to seek further orders or directions as necessary to give effect to the sentence.

Orders