Ashford v Police

[2012] NZHC 2758

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000357 [2012] NZHC 2758

BETWEEN  CHANELE HINEMOA ASHFORD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 and 11 October 2012

Appearances: N A Smith for Appellant

H W Y Yiu for Respondent

Judgment:      11 October 2012

ORALJUDGMENT OF DUFFY J [re Re-sentencing]

Solicitors:

Liberty Law Barristers, PO Box 76500 Manukau 2241 for Appellant

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140 for

Respondent

ASHFORD V NEW ZEALAND POLICE HC AK CRI-2011-404-000357 [11 October 2012]

[1]      Following the entry of guilty pleas, the appellant, Chanele Hinemoa Ashford, was convicted in the District Court at Manukau of the following offences:

(a)       Obtaining over $1,000 by deception; (b)           Threatening behaviour/language;

(c)       Five offences of failing to answer District Court bail; and

(d)      Breach of community work.

[2]      On 18 August 2011, Ms Ashford was sentenced to six months’ community detention on all charges, to be served concurrently.  The Judge cancelled the existing sentence of community work and imposed a new sentence of 400 hours’ community work.  He further ordered that Ms Ashford pay the sum of $9,838.56 in reparation at a rate of $40 per week.  Ms Ashford appealed against those sentences on the ground that they were manifestly excessive.

[3]      The appeal first came before this Court on 5 December 2011.  At that time, it was accepted by counsel that the Judge had erred in his sentencing approach.  I was invited to send the matter back to the District  Court for Ms Ashford  to be re- sentenced.  Later, having considered the matter further, I issued a minute requesting counsel to outline the legal basis for this Court sending a sentencing back to the District  Court.   The respondent  was  able  to  address  this  issue,  but  counsel  for Ms Ashford had difficulty, because Ms Ashford was funded by legal aid and the grant of aid was considered spent after the first appeal hearing in this Court.  It then became necessary for a fresh application for legal aid to be made.

[4]      As matters turned out, the time taken for the legal aid request to be processed and granted, as well as the availability of fixtures in this Court, meant that the matter could not be reconvened before me until 8 October 2012.  Whilst this appears to be an unacceptable delay, it has actually worked to Ms Ashford’s advantage.  Since the matter was last before me in December 2011, Ms Ashford has not re-offended.   I

consider that this is a relevant factor to be taken into account when it comes to considering the sentence to impose on her.   Everyone is now of the view that she should be re-sentenced in this Court; thus, there is no need to consider the legal question of whether this Court has authority to send a sentencing matter back to the District Court for re-sentencing.

[5]      At the hearing on 8 October 2012, I heard argument from counsel on the appropriate sentence to  impose.   However, Ms Ashford was not present at that hearing, as her counsel could not contact Ms Ashford to advise her of the hearing date.   I decided that in such circumstances, the better course was to adjourn until today, so that Ms Ashford could be present for the re-sentencing that is to occur.

[6]      In the District Court, the Judge reached the end sentences without working through the process set out in the Sentencing Act 2000 (the Act).  Thus, the reasons to support the end sentences are not apparent from the sentencing notes.  Section 31 of the Act imposes a requirement to provide reasons. Whilst the level of particularity will  vary according  to  the  circumstances  of  the  case,  I consider  that  where  an offender is to suffer a loss of liberty through the imposition of a sentence of community detention, the reasoning process that has led to the choice of the type of sentence and its term should be outlined in the sentencing notes.

[7]      Failure  to  follow  a  proper  sentencing  process  will  not  automatically invalidate a sentence; if the outcome is within the range of permissible sentences, then an appellate court will not interfere with the end sentence.  However, at times, failure to follow the appropriate sentencing process will result in an outcome where the sentence is manifestly excessive or in some other way offends the provisions in s

121 of the Summary Proceedings Act 1957.

[8]      In  the  present  case,  I  am  satisfied  that  when  an  appropriate  sentencing process is adopted, the result is an outcome that shows the sentence imposed in the District Court to be manifestly excessive.  I am also satisfied that there has been a change of circumstance in the present case that is relevant to the decision on an appropriate sentence.   These two factors lead me to conclude that the sentences imposed in  the District  Court  cannot  stand,  and  that  other sentences  should  be

imposed in their place.   It is first necessary to set out the facts relevant to the sentencing and the reasoning process.

[9]      On  7 August  2009,  Ms Ashford  called  the  Inland  Revenue  Department, pretending to be her male cousin, in order to get his tax rebate of $9,838.56 paid into her bank account.  This money was paid into her account on 10 August 2009, and a few days later she withdrew the complete amount.  This constitutes the offence of obtaining by deception.

[10]     On 4 March 2011, Ms Ashford was arguing at home with her mother and verbally threatened her mother.   Ms Ashford shoved her mother, leading another family member to separate the two.   Ms Ashford’s mother was concerned by this behaviour and attempted to call the Police on her mobile phone.  Ms Ashford then grabbed her mother’s phone and prevented her from finishing the call.  She refused to return the phone.

[11]     The  breach  of  community  work  related  to  a  sentence  of  200  hours’ community work imposed on a charge of burglary (under $500) on 3 February 2009, and a further 40 hours’ community work imposed on 3 February 2009 for common assault.  On 31 March 2010, Ms Ashford failed to report to probation.  At that time, she had only completed 18 hours of the sentence.

[12]     The charges of failing to answer District Court bail occurred on 13 April

2010, 29 April 2010, 11 November 2010, 15 March 2011 and 4 May 2011.   No summary of facts for these offences was available to me.

[13]     The first call for the obtaining by deception charge was 25 February 2010, and  the  first  call  for  the  threatening  behaviour  charge  was  5  March  2011. Ms Ashford pleaded guilty to the charges of obtaining by deception and breach of community work on 6 December 2010 and to the remaining charges on 14 July 2011.

[14]     Prior to sentencing, she had spent five weeks on remand in prison.

[15]     She is a single mother with two young children.   The pre-sentence report dated 17 August 2011 records that Ms Ashford expressed remorse for her offending. She offered no valid explanation for her breach of community work but said, in respect of two of the breach of bail charges, that she had gone to the court but had only stayed until 3.00 pm.

[16]     At  the  time,  Ms  Ashford  had  one  previous  conviction  for  breach  of community work and one for failing to answer Police bail.

[17]     The   pre-sentence   report   writer   assessed   Ms   Ashford   as   having   no rehabilitative needs in respect of drugs, alcohol or gambling, and as being at low risk of re-offending. A sentence of home detention was recommended.

Submissions

Appellant’s submissions

[18]     The  appeal  is  advanced  on  the  basis  that  the  sentence  was  manifestly excessive.   Her counsel particularly highlighted that the sentence imposed did not include an allowance for time that Ms Ashford had spent in custody, and that there was no basis for cancelling and substituting the sentence of community work with additional hours of community work.

Crown submissions

[19]     The respondent contends for the following starting points and aggravating factors:

(a)       Obtaining by deception:

It  is  submitted  this  was  aggravated  by  the  extent  of  the  loss (s 9(1)(d));  an  abuse  of  trust  by  reason  of  the  victim,  being Ms Ashford’s cousin (s 9(1)(f)); and premeditation (s 9(1)(i)).   The respondent suggests a starting point of between nine to 12 months’ imprisonment.

(b)      Threatening behaviour:

For the threatening behaviour offence, it is submitted this was aggravated by violence, and a two months’ starting point is suggested.

(c)       Failure to answer bail:

For the failure to answer bail, it is submitted this is aggravated by the fact  the  offence  was  committed  while  Ms  Ashford  was  on  bail (s 9(1)(c)); and involved a level of premeditation, as the breaches occurred five times.  One month’s imprisonment was submitted as an starting point.

(d)      Breach of community work:

And  for  the  breach  of  community work,  it  is  submitted  this  was aggravated by the fact that it occurred while Ms Ashford was still subject to a sentence.   One month’s imprisonment is submitted as a appropriate starting point.

[20]    The respondent submitted that these starting points ought to be adopted cumulatively, leading to a total starting point of between 13 and 16 months.   To reflect the totality of the offending, the respondent suggested that this be adjusted to between 12 and 15 months’ imprisonment.

[21]     The respondent submitted that a 20 per cent discount should be given for Ms Ashford’s  guilty  pleas,  leading  to  a  final  sentence  of  between  nine  and  12 months’ imprisonment.   The respondent argued that, given the five breaches of a court order, being the breach of bail offences, and the breach of the sentence of community work imposed for the earlier offending, a community-based sentence was not appropriate.

Sentencing approach

Obtaining a pecuniary advantage

[22]     First, I will deal with the offence of obtaining a pecuniary advantage.  There is no tariff case for offending of this kind.  The three cases identified by the Crown are apposite.

[23]     Rochford v Police HC Christchurch CRI-2007-409-5, 16 February 2007 was an appeal against sentence imposed in relation to nine charges of obtaining money by deception, one of obtaining accommodation by deception and three of theft.  The appellant gained access to the PIN number to an account held by his mother and step-father.  In the course of one day, he made repeated withdrawals, accumulating

$8,320, giving rise to the nine charges of obtaining money by deception.   The sentencing Judge adopted a starting point of 12 months’ imprisonment, which was reduced by a third for an early guilty plea.  Cumulative sentences of one month were imposed in respect of the obtaining accommodation by deception charge and two of the theft charges.   The appellant was convicted and discharged on the third theft charge.  This resulted in a total sentence of 12 months’ imprisonment.  An order for reparation was also made.   Home detention was refused by the sentencing Judge. This was overturned on appeal, with leave to apply for release to home detention granted.

[24]     Barber v Police HC Wellington CRI-2006-485-149, 14 February 2007 was an appeal against sentence imposed for five charges of obtaining goods over $1,000 by deception, one charge of obtaining goods valued between $500 and $1,000 and two charges of failing to answer bail.  The appellant had just moved out of a flat she had shared with another young woman, and she had found an envelope in her car, which contained the flatmate’s passport and student identification.  The appellant then used these documents to purchase appliances on hire purchase in the flatmate’s name, which she then sold on Trade Me.  The total sum of goods purchased was $15,000. The direct pecuniary loss to the flatmate was around $1,000.  In the District Court, concurrent  sentences  of  six  months’ imprisonment  were  imposed  on  the  fraud charges; it was not clear what recognition was given to personal mitigating factors.

Two further cumulative terms of one month were imposed on each of the failing to answer bail charges.  The appeal was allowed, and the sentence was reduced to five months’ imprisonment (with the failure to answer bail sentences concurrent on the new five month term).

[25]     Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009 was an appeal against a sentence of 18 months’ imprisonment imposed on one charge of causing loss by deception.  The appellant was also sentenced to concurrent terms of

12 months’ imprisonment for burglary and six months’ imprisonment for unlawfully taking a bicycle.  The causing loss by deception charge related to an EFTPOS card, which the appellant had found.  The EFTPOS card belonged to an elderly woman with  a poor memory and  she had  recorded  the PIN number on  the card.    The appellant and his partner then fraudulently used that card over five days to obtain

$10,200.   The appellant had five previous convictions for receiving, seven for obtaining a document, one for theft and one for forgery.   The sentencing Judge adopted a starting point of two  years’ imprisonment.   On appeal, Woodhouse J described the offending at [29] as “opportunistic”, and said at [27] that “the starting point for fraudulent use of an EFTPOS card, and similar offending, involving a sum of around $10,000, might be between six and 18 months’ imprisonment”.  The Judge stated  that  the appropriate starting point  would  have been  around  nine  months. Taking into account the personal aggravating and mitigating factors, a sentence of seven months was imposed.

[26]     In respect of the offence of threatening behaviour, the following cases are useful:

(a)       In Browne v Police HC Auckland CRI-2008-404-218, 22 September

2008, the offender yelled abuse at his ex-girlfriend in a supermarket.

A sentence of 50 hours’ community work was imposed.

(b)      In Hough v Police HC Hamilton CRI-2004-419-140, 22 November

2005,  the  offender  harassed  a  police  officer  by  banging  on  his bedroom  window  at  5.00  am  and  yelling  abuse;  and  also  left  a

threatening phone message. A sentence of 80 hours’ community work

was imposed.

(c)      In Brokenshire v Police HC Timaru CRI-2010-476-5, 29 March 2010, the offender went to the complainant’s home and demanded the return of a debt or “else I will get reinforcements”.   A sentence of two months’ imprisonment was imposed.

(d)In Tang v Police HC Auckland CRI-2011-404-142, 7 July 2011, the offender threatened to injure his 12 year-old daughter.  A sentence of

12 months’ supervision was imposed.

[27]     For the failure to answer bail and breach of community work offences, the following cases are useful:

(a)       Wright v Police [2012] NZHC 493:

One charge of breaching community work; two charges of breaching release conditions.   There were previous convictions for breaching community work, but these dated back six years.   On appeal, concurrent sentences of three months  were imposed for breach of release conditions, and two months for breach of community work.

(b)      Norman v Police HC Tauranga CRI-2011-470-20, 8 August 2011:

One  charge  of  breaching  community  work  and  one  of  failing  to answer bail.   There were three previous convictions for breaching community work and one for failing to answer bail.   Two months’ imprisonment was imposed on each charge (this was cumulative on other offending in that case).

(c)       Te Whata v Police HC Auckland CRI-2011-404-135, 1 August 2011:

One charge of breaching community work, and two charges of failing to answer bail. The result was two months’ imprisonment imposed for

breaching community work and for each charge of failing to answer bail.

[28]     Where a sentence of imprisonment is imposed, but quashed and replaced with a lesser sentence (such as home detention or community detention), that sentence must take into account time served: see R v George [2009] NZCA 392 at [10]; Payne v Police  HC  Palmerston  North  CRI-2011-454-42,  12  December 2011  at  [9].    I consider this is comparable to here where Ms Ashford was remanded in custody. Some allowance must be made for the five weeks that Ms Ashford spent remanded in custody.

Analysis

Starting points

[29]     In terms of setting a starting point, in respect of the obtaining by deception charge,  I  consider  this  offending  to  be  comparable  to  that  in  Rochford  and  in Palmer.   Like Ms Ashford’s offending, Rochford involved an abuse of trust; and, whilst a slightly lesser amount of money was taken in Rochford, that case might otherwise be regarded as slightly more serious than this offending, as it involved nine instances of obtaining money by deception (though those occurred over the course of one day).  Palmer also involved a comparable sum of money though there may  have  been  a  greater  degree  of  premeditation  involved  in  Ms  Ashford’s offending, and there was no abuse of trust in Palmer.   Barber is less useful, as neither the sentencing nor the appellate Judge identified a starting point, and the ultimate sentence imposed reflected a number of personal mitigating factors not present in this case.

[30]     I consider that the Crown is correct to suggest a starting point of between nine and 12 months for this offence.  I propose to adopt a starting point of just under

10 and a half months’ imprisonment.   I have done so because I am treating this offence as the lead offence.   I intend to subtract the five weeks Ms Ashford was remanded in custody from the starting point for this offence.

[31]     Turning to consider the threatening behaviour charge, I note that a wide range of sentences have been imposed for this sort of offending.  As the threat occurred at home, was accompanied by a shove and attempts to prevent the victim calling the Police, I consider that this was a fairly serious example of intimidation that warrants a starting point of one month’s imprisonment.

[32]     In  respect  of  the  failure  to  answer  bail  charges,  starting  points  of  three months’ imprisonment are appropriate.  I do not accept the Crown’s submission that the fact of these charges occurring while the appellant was subject to bail is an aggravating factor, as that is inherent in the offence. A starting point of three months reflects the number of charges involved.

[33]     In respect of the breach of community work, a starting point of two months’ imprisonment is warranted.  This takes account of the fact that very few hours have been completed, without any explanation.

Discount factors

[34]     I consider that the following adjustments need to be made, so as to take into account the appropriate discounts available to Ms Ashford.  There are no uplifts for aggravating factors.

[35]     As stated earlier, I propose to discount the leading charge of obtaining by deception to recognise the time spent on remand.  This reduction brings the starting point down to nine months’ imprisonment.

[36]     Secondly,  I  consider  that  a  small  discount  can  be  applied  to  recognise Ms Ashford’s remorse and family responsibilities.  I shall allow a discount of five per cent.

[37]     I accept the Crown’s submission that a 20 per cent discount is appropriate to recognise Ms Ashford’s guilty pleas.

[38]     Applying all discounts, the end sentences are:

(i)       Obtaining     by     deception:     six     months,     three     weeks’

imprisonment;

(ii)      Threatening behaviour: three weeks’ imprisonment;

(iii)Failing to answer bail: two months, one week’s imprisonment on each charge; and

(iv)     Breach   of   community   work:    one   and   a    half   months’

imprisonment

[39]     The sentences for failing to answer bail and breach of community work can be grouped together and imposed concurrently in recognition of the fact those offences are similar in kind.  The end sentence for that group, and the sentences for obtaining by deception and threatening behaviour ought to be imposed cumulatively. This gives a total effective sentence of nine and a half months’ imprisonment.  This is within the same range of end sentences of imprisonment as those suggested by the Crown.

[40]     The  short  term  of  imprisonment  means  that  Ms Ashford  is  eligible  for sentences of home detention and community detention.   Home detention was the sentence suggested by the probation officer.  Ms Ashford was assessed as being at low risk of re-offending and not posing a danger to the community.  In the lapse of time between 11 December 2011 when the appeal was first called and now, she has not re-offended.   Her recent conduct confirms the pre-sentence report writer’s assessment of the likelihood of re-offending.   In such circumstances, a term of imprisonment  is  not  appropriate.     I  am  mindful  of  the  requirement  in  the Sentencing Act to impose the least restrictive sentence available.  Given the lapse of time between the offending and Ms Ashford’s recent good conduct, it would make no sense whatsoever to impose a sentence of imprisonment on her.

[41]     The next question is whether the sentence should be one of home detention or community detention.

[42]     Section 15A of the Sentencing Act provides:

15A     Sentence of home detention

(1)       If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—

(a)       the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)       the court would otherwise sentence the offender to a short- term sentence of imprisonment.

[43]     I  am  satisfied  here  that  the  purpose  for  which  the  sentences  are  being imposed  on  Ms  Ashford  can  be  achieved  by  the  less  restrictive  sentence  of community detention.  Accordingly, I consider that an appropriate sentence here is a term of community detention, with a curfew from 7.00 pm to 7.00 am.  Ordinarily, I would have considered that the period of community detention should be approximately half of the length of the end sentence of imprisonment that I had arrived at, which would result in a term of four and a half months’ community detention.  However, in this case, there is the fact that the District Court as part of the sentencing had cancelled the earlier sentence of community work that was imposed on  3  February 2009  and  imposed a new sentence of community work  with  an increase in the hours required.

[44]     I consider that, given the improvement in Ms Ashford’s conduct and her responsibilities as a young solo parent of two children, the better approach is not to impose a combination of sentences such as community detention and community work, but rather to impose a single sentence of community detention of a duration that reflects the totality of her offending.   However, in setting the term of that sentence, some regard needs to be paid to the fact she will no longer be required to perform any community work, either in relation to the sentence of community work that is now under appeal, or the original sentence of community work that was imposed  in  2009.    I  propose,  therefore,  to  quash  the  sentences  of  community detention  and  community work  that  were imposed  in  the  District  Court  and  to replace them with a sentence of community detention, with a curfew of 7.00 pm to

7.00 am, seven days a week, for a period of five and a half months.  I consider that the sentence of reparation of $9,838.56, to be paid at $40 per week, was appropriate and should remain in place.

Result

[45]     It follows that the sentences of community detention and community work imposed in the District Court are quashed.

[46]     Ms Ashford, would you please stand.

[47]     In  their place,  you  are  sentenced  to  five and  a half months’ community detention.  The conditions are that you are to report at 62-64 Lovegrove Crescent, Otara, the Community Probation Services office at Otara, within 24 hours of today. You are to remain at the address of 36 Cobham Crescent, Otara, between the hours of

7.00 pm at night and 7.00 am in the morning, seven days a week.  That curfew will commence today.

[48]     I confirm the sentence of $9,838.56 reparation, to be paid at $40 per week. [49]       Please stand down.

Duffy J