Bowles v Police

[2014] NZHC 184

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-000037 [2014] NZHC 184

UNDER  The Criminal Procedure Act 2011

IN THE MATTER             of an appeal against sentence pursuant to

Section 244 of the Criminal Procedure Act

2011

BETWEEN  TERESA MARY BOWLES Appellant

ANDTHE NEW ZEALAND POLICE Respondent

Hearing:                   18 February 2014

Appearances:           JM Woodcock for Appellant

AWM Britton for Respondent

Judgment:                18 February 2014

ORAL JUDGMENT OF TOOGOOD J

BOWLES v NEW ZEALAND POLICE [2014] NZHC 184 [18 February 2014]

[1]      On 28 November 2013, the appellant, Teresa Mary Bowles, pleaded guilty to one charge of theft by a person in a special relationship and was sentenced by Judge Roberts to six months’ imprisonment.   Realistically, Ms Woodcock does not now dispute that the offending justified consideration of imprisonment for that period, but she submits on behalf of the appellant that the Judge erred in failing to substitute that sentence with one of home detention.  The appellant appeals on that basis and also argues that an order for payment of reparation of $21,825 was unrealistic and therefore excessive in all the circumstances.

Background

[2]      The appellant, a first offender aged 52 years, is the elderly complainant’s niece, and I acknowledge the presence of the complainant in Court this morning. The appellant was placed by her uncle in a position of trust to assist him to manage his financial affairs after he went into a rest home.  She was given a cash flow card in order to access her uncle’s bank account and, over a period of some nine months until the end of January 2013, she transferred varying amounts of money to her personal account, withdrew cash, and also transferred money to other family members.  It appears, however, to have been accepted that the complainant became aware  of  those  transactions;  he  said  in  a  victim  impact  statement  that  had  the appellant told him that she needed the money he may well have given it to her.  On

16 September 2012, however, the appellant transferred $24,900 into her personal account.    Once  her  uncle  was  made  aware  of  this  transaction  by  the  bank,  a complaint was made to the Police.  The appellant had no explanation for taking that money, but after the Police interview she repaid $3,075.

[3]      Although the Police originally charged the appellant on the basis of several transactions totalling $29,340, the prosecution case was reviewed and the Police subsequently relied solely on the single large transaction in September 2012. At that point, the appellant pleaded guilty and requested an opportunity to meet her uncle at a restorative justice conference.   Such a conference did not occur because the complainant was so upset by his niece’s conduct that he did not consider he should be required to attend and he is not to be criticised for that.

District Court Judge’s decision

[4]      In  sentencing  the  appellant,  Judge  Roberts  focussed  on  the  relationship between the appellant and the complainant, namely one of trust; he looked at premeditation; the impact on the complainant, and said that reinstatement was highly unlikely, all of those he considered to be the primary aggravating factors of the offending.  Judge Roberts took a starting point of 12 months’ imprisonment, which he discounted then by six months: four months to reflect the appellant’s lack of convictions and two months to reflect her guilty plea.

[5]      While Judge Roberts considered the recommendation of community work and reparation, he determined that nothing short of imprisonment would be sufficient to emphasise the principles of denunciation and deterrence, particularly where there has been a significant breach of trust, as there was here.

[6]      The final sentence imposed, therefore, was one of six months’ imprisonment and a reparation order of $21,825 was made notwithstanding the Judge’s earlier observations about the unlikelihood of reparation in fact being paid.

Submissions

[7]      Ms  Woodcock  accepts  responsibly  that  after  giving  due  credit  for  the mitigating factors of the partial repayment; the appellant’s genuine remorse and attempts  to  make  amends;  her  previous  good  character;  and  her  guilty  plea,  a sentence of six months’ imprisonment was well within the range available to the Judge.  She challenges, however, the Judge’s refusal to substitute a sentence of home detention on the basis of his view that there was no rehabilitative focus in this case and that for the appellant to be required to stay at home, in circumstances where she is unemployed in any event, would not adequately meet the necessary sentencing purposes of denunciation and deterrence.

[8]     Mr Britton on behalf of the Crown accepts that the appellant’s general circumstances  are  such  that  the  appellant  is  on  the  cusp  of  home  detention. However, he submits that while the sentencing Judge may be open to criticism for not expressing the weight he attributed to the appellant’s personal circumstances, he cannot  be criticised  for  refusing to  transpose the  end  sentence to  one  of home

detention.   In that, counsel points to the earlier case of Lynton v Police1  in which there were similar personal mitigating factors which resulted in this Court reducing a sentence of 12 months’ imprisonment to one of nine months’ imprisonment.  But as Ms Woodcock points out, that decision predated the much more nuanced regime of home detention which is now available to a sentencing court.

Discussion

[9]      I acknowledge that it is open for a sentencing judge to consider that the particular circumstances of a case require more deterrence and denunciation than home detention provides.2   However, the Judge’s notes do not contain any discussion by him of other statutory sentencing principles and purposes.3

Home detentions as a realistic alternative to imprisonment

[10]     Further, the Court of Appeal has made it clear, on several occasions, that home detention provides a real alternative to imprisonment because it carries with it significant  levels  of  denunciation  and  deterrence.4    Parliament  has  expressly provided that a sentence of home detention may be subject to a condition permitting work-related leave,5 a feature of the sentence which recognises that home detention for periods outside working hours represents, in itself, a substantial deprivation of liberty.

[11]     I consider that the Judge erred in placing excessive weight on deterrence and denunciation, and in failing to address adequately the personal circumstances of the appellant by asking himself whether imprisonment was the least restrictive outcome that was appropriate in all the circumstances.6    It was relevant, in my view that the appellant at the age of 52 was a first-offender; and that she had expressed genuine remorse and a willingness to meet the complainant in a restorative justice setting.

Among other things, a pre-sentence report noted that the appellant suffered from suicidal thoughts and had been admitted to hospital for depression.   The report

outlined a troubled upbringing and a number of factors which contributed to the

1      Lynton v Police, HC Auckland CRI-2005-404-271, 3 October 2005.

2      For example, R v Edmonds [2009] NZCA 152, R v Taipei [2009] NZCA 120.

3      See Sentencing Act 2002, ss 7 and 8.

4      Including R v Iosefa [2008] NZCA 453 at [41] and Osman v R [2010] NZCA 199 at [25].

5      Sentencing Act 2002, s 80C(3)(c)(ii).

6      Ibid, s 8(g).

appellant having serious mental health issues.  All of those factors should have been expressly addressed by the Court on sentence.

Post-sentence factors now advanced

[12]     It is also highly relevant to the appeal, in my view, that after being sentenced to imprisonment the appellant harmed herself in the Police cells and that since being released on bail pending this appeal she has been diagnosed with clinical depression and bi-polar disorder.  I am prepared to infer without further evidence that a term of imprisonment   would   place   obvious   additional   stress   on   the   appellant   in circumstances where she is mentally unwell.  Even if I had concluded that the Judge had not erred  as discussed above,  I would have been entirely satisfied  that the additional  consideration  of  the  appellant’s  current  mental  health  issues  tips  the balance firmly in favour of a sentence of home detention as an appropriate response to this offending.

[13]     If the appellant was required to serve a period of six months’ imprisonment, she would be eligible for automatic parole after serving half her sentence.7   For that reason, a roughly equivalent sentence of home detention would be one of three months.

Reparation order

[14]     The appellant also appeals against the order that she should pay reparation of

$21,825, being the balance of the sum of $24,900 transferred by her after allowing for the repayment of $3,075.  It appears that the reparation order was made on the basis that the Judge anticipated that once the appellant’s financial circumstances and means to pay were fully investigated, an order might have been made reducing or remitting the reparation payment altogether.

[15]     At the time she was sentenced, the appellant had lost her job and she is now receiving a sickness benefit.  She has limited means but nevertheless she now offers

to make a reparation payment at a rate of $20 per week towards a reduced sum.

7      Parole Act 2002, s 86(1).

[16]     It  is appropriate that the appellant should be required to  make a further repayment in recognition of the hardship suffered by the complainant through her offending.  I agree with Ms Woodcock’s submission, however, that an order to repay the full balance of the amount misappropriated would be unrealistic; at the rate proposed, it would take the appellant some 20 years to pay off the debt.   In the circumstances, and without demur from Mr Britton for the respondent, the total amount of reparation will be reduced to $5,000.

Result

[17]     For these reasons, I allow the appeal.

[18]     The sentence of imprisonment imposed upon the appellant is quashed and in its place I order that the appellant shall serve a sentence of three months’ home detention, as follows:

(a)      The appellant is to travel directly following this hearing to the address of 6 Tumai Street, New Plymouth, and await the arrival of a probation officer and monitoring company representative.  She shall co-operate with the fitting and subsequent maintenance of a monitoring device.

(b)The appellant is to remain at the address of 6 Tumai Street, New Plymouth, for the duration of her home detention sentence, unless she is absent from time to time with the prior written approval of a probation officer.

[19]     The order for payment of reparation is quashed and in its place I order the appellant to pay the sum of $5,000 by way of reparation at a rate of $20 per week.

..........................................

Toogood J