Blake v The Queen

[2021] NZHC 2408

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-077-000660

[2021] NZHC 2408

BETWEEN

MEEGAN BLAKE

Appellant

AND

THE QUEEN

Respondent

Hearing:	14 September 2021 (by VMR)
Appearances:	R Raukawa for Appellant S J Bird for Crown
Judgment:	14 September 2021

ORAL JUDGMENT OF VENNING J

Sentence appeal

Solicitors:           Tui Law Limited

Crown Solicitor, Rotorua

BLAKE v R [2021] NZHC 2408 [14 September 2021]

[1]    Meegan Blake pleaded guilty to one charge of driving while disqualified and four charges of obtaining by deception involving $7,800. On 5 August 2021 Judge  D J McDonald sentenced her to 18 months’ imprisonment with standard and special release conditions.1

[2]Ms Blake appeals on the basis the sentence is manifestly excessive.

[3]    On 11 September 2020 Ms Blake was stopped because the car she was driving had a damaged window. She admitted being a disqualified driver.

[4]    The four charges of fraud arose from Ms Blake listing a twin apartment in Tauranga for holiday home lets. Various emails were used but always one cell number, which was Ms Blake’s number, was provided as a contact. Ms Blake would then tell interested people she was no longer using the website and directed them to put the money into an account she provided. On 6 March 2021 she was contacted by the first victim. The figure of $1,800 was agreed. That money was paid into a bank account of an elderly male who Ms Blake knew.  She then went and withdrew the money less

$100. The same type of scam was used by Ms Blake on 7 March for $2,750, on 9 March for $1,550, and on 11 March for $1,700.  All the money except for the last

$1,700 was paid and was lost by the victims. In total $6,100 was lost, although the fraud involved $7,800.

[5]    The Judge considered the nature of the fraud was serious. He noted that more and more people relied on internet banking, internet shopping and booked their holidays on websites online. Ms Blake by her actions had shown how easy it was to defraud people although she was never going to get away with it because she had used the bank account of someone she knew who gave the Police her identity and of course she had used her own contact cell phone number.

[6]    In arriving at the end sentence of 18 months’ imprisonment the Judge took a starting point of 20 months for the fraud offending and considered an uplift of two months’ imprisonment to be appropriate for the separate offence of driving whilst disqualified. The Judge then imposed a two month uplift for Ms Blake’s previous

1      Police v Blake [2021] NZDC 16150.

similar offending. From that adjusted starting point of 24 months the Judge allowed a full credit of 25 per cent for Ms Blake’s guilty plea.

[7]    That led to the end sentence of 18 months which the Judge structured as 16 months’ imprisonment on the fraud offending with a cumulative sentence of two months for the driving whilst disqualified offending.

[8]    In support of the appeal Ms Raukawa submitted the overall starting point for the fraud offending was manifestly excessive. Counsel confirmed the appellant does not take issue with the various uplifts and discounts for the plea.

[9]    In Tutukangahau v R the Court of Appeal confirmed that while s 250(2) of the Criminal Procedure Act 2011 makes no express reference to the concept of manifestly excessive sentence, the concept is longstanding, is consistent with statutory language and should continue to be applied.2 Importantly, the focus on a sentence appeal remains on whether the sentence imposed is within range rather than the process by which the sentence is reached.

[10]   As counsel have identified there is no guideline judgment for fraud offending. However, in R v Varjan the Court of Appeal discussed the concept of culpability and noted:3

[22]      Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

[23]      It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.

[11]   The Court did go on in that case to observe that in cases of credit card fraud involving losses of $2,000 to $6,000 a starting point between 12 and 18 months had been applied.

2      Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

3      R v Varjan CA97/03, 26 June 2003.

[12]   Ms Raukawa also referred to the case of Whitaker v Police where the appellant had been involved in fraudulent trading transactions.4 Mr Whitaker had used false names and a false Trade Me account and obtained $2,902.33. Sixteen charges were involved. In that case the Judge took a starting point of 18 months’ imprisonment which was not disturbed on appeal. Ms Raukawa made the point that, while more money was involved in the present case, Ms Blake only faced four charges of dishonesty. She emphasised the Judge’s finding that the offending was not particularly sophisticated. She submitted there was no element of serious pre-meditation and argued for a starting point of 15 months’ imprisonment as more appropriate in this case given the relatively short period of time over which the offending had occurred and the limited number of instances of that offending.

[13]   Counsel also submitted that the Judge erred by failing to take account of Ms Blake’s offer of reparation.

[14]   I deal first with the issue of the offer of reparation. Counsel is referring to the sum of $1,400 which Ms Blake apparently expected to receive and did receive from wreckers for her car in mid-June 2021. By the time of the sentencing hearing on date of 5 August the Judge had a pre-sentence report of 30 July before him. In that report the writer noted Ms Blake had lost her accommodation because she was unable to pay rent and further, that her personal items had been sold by a family member. Ms Raukawa has confirmed she advised the sentencing Judge that the $1,400 was still potentially available to pay reparation at that time but Ms Blake could not access it as she was in custody. In the circumstances the Judge was entitled to take the view that Ms Blake was in no realistic position to pay reparation.

[15]   Further as Mr Bird has submitted it was not a matter which would affect the view of this Court on the appropriate starting point.

[16]   Returning to that issue of the starting point I assess Ms Blake’s culpability in this case, having regard to the circumstances, as moderate. While I accept that it was almost inevitable Ms Blake would be identified as the offender as the offending was

4      Whitaker v Police [2016] NZHC 232.

unsophisticated, I do not accept there was a lack of premeditation or planning on her behalf.

[17]   Ms Blake’s offending required and involved planning. She had contact with the victims, she dealt with the victims and she used another, elderly person’s bank account. The amount actually lost was $6,100 but the fraud itself involved $7,800. All victims were impacted by her fraud, particularly those who lost their money.

[18]   I note the maximum sentence is seven years. While Mr Bird conceded the 20 months the Judge started with in the present case was towards the higher end of the band available to him, I do consider it was available to him.

[19]   I note the appellant does not take issue with the uplifts. Again given Ms Blake’s history they were available to the Judge. It could also be observed that given the strong Police case the full 25 per cent for the guilty plea was perhaps generous.

Result

[20]The appeal against sentence is dismissed.

Venning J