Bain v Police - [2015] NZHC 3219

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-109 [2015] NZHC 3219

BETWEEN
TIPENE BAIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2015

Appearances:

L Drummond for Appellant
C E Martyn for Respondent

Judgment:

15 December 2015

JUDGMENT OF MANDER J

[1] The appellant, Ms Tipene Bain, appeals a 12 month sentence of imprisonment imposed by Judge Couch on a charge of dishonestly using a document.

[2] Following the establishment of an apparent friendship with an elderly man in December 2014, Ms Bain took the man’s EFTPOS card, and over the course of two days utilised it some 43 times to obtain goods and cash worth a total amount of
$5,838.77. Ms Bain did not have permission to use the card, and as a result was charged with a representative count of dishonestly using a document.

[3] After pleading guilty to the charge on the morning of her trial in July 2015, a

12 month sentence of imprisonment was imposed cumulatively on an 18 month sentence imposed three months earlier in April.1 She appeals the 12 month sentence on the basis that it is manifestly excessive when combined cumulatively with her
existing 18 month sentence.

1 New Zealand Police v Bain [2015] NZDC 13684 [July Sentencing Offending].

The appeal

[4] The appeal against the 12 month sentence was sought to be advanced on a number of bases. These included that the sentencing Judge did not properly consider the totality principle and had fallen into error in examining the offending in isolation. It was further submitted that the uplift to account for previous convictions had resulted in a “double counting”.

[5] In order for Ms Bain to succeed, she will need to show there was an error in the sentence, and that a different sentence should have been imposed.2 In making the submission that the sentence imposed was manifestly excessive, Ms Bain will need to establish the sentence was outside the range reasonably available at first instance.3
Important, for present purposes, is the observation of Toogood J in Larkin v Ministry of Social Development:4

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.

[6] The appeal fundamentally reduces to the issue of whether an end sentence of

31 months imprisonment for the totality of Ms Bain’s offending contravenes the totality principle, and whether the overall sentence imposed is “wholly out of proportion to the gravity of the overall offending”.5 It is therefore necessary to review the other offending for which Ms Bain was sentenced to 18 months imprisonment in April.

[7] For completeness, it is to be noted that the appeal was filed out of time. However, the Crown takes no issue with that point, and leave is granted.

2 Criminal Procedure Act 2011, s 250(2).

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: [2015] NZHC 3219
Decision Date: 15 December 2015

CaseChat Overview and Summary

Tipene Bain appeals a 12-month sentence of imprisonment imposed by Judge Couch for dishonestly using a document, following a $5,838.77 theft spree using an elderly man's EFTPOS card. Bain argues the sentence is manifestly excessive when combined with an 18-month sentence imposed earlier for various other offences, including theft, possession of a syringe, and breaches of community work. The appeal hinges on whether the 31-month combined sentence contravenes the totality principle and is wholly disproportionate to the gravity of the offending.

The court must determine if the sentence was erroneous and if a different sentence should have been imposed. Bain argues that the sentencing judge did not properly consider the totality principle and erred by examining the offending in isolation, resulting in double counting for previous convictions. However, the court notes that while the 12-month sentence alone is not excessive, the combined sentence of 31 months must be assessed against the totality of Bain's offending. The court emphasises that the appropriate sentence should reflect the overall criminality of the multiple offences.

Ultimately, the court finds that the 31-month combined sentence, while stern, is not manifestly excessive. The sentence appropriately reflects the sustained and serious nature of Bain's offending, which includes multiple victims and direct losses to others. The court acknowledges that while another judge might have imposed a lesser sentence, the 12-month sentence falls within the range reasonably available to Judge Couch, considering the totality of Bain's offending history. The appeal is therefore dismissed.

Orders