Brown v Police
[2020] NZHC 3361
•16 December 2020
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2020-416-15
[2020] NZHC 3361
BETWEEN KATRINA LOUISE BROWN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 December 2020 Counsel:
W R Hawkins for Appellant A V Bryant for Respondent
Judgment:
16 December 2020
JUDGMENT OF CHURCHMAN J
Introduction
[1] Ms Brown (the appellant) pleaded guilty to 14 charges of accessing a computer system for a dishonest purpose.1 In the Gisborne District Court, Judge Cathcart sentenced the appellant to 25 months’ imprisonment, concurrent on all charges, as well as imposing a reparation order in the sum of $62,976.61 and an emotional harm payment of $7000 to the victim.
[2]The appellant now appeals against this sentence on two grounds:
(a)that the Judge erred in adopting a starting point that was manifestly excessive; and
1 Crimes Act 1961, s 249(1)(a). This carries a maximum penalty of seven years’ imprisonment.
BROWN v NEW ZEALAND POLICE [2020] NZHC 3361 [16 December 2020]
(b)that the Judge erred by failing to give a proper discount for mitigating features.
[3] The respondent submits that the starting point and discounts applied by the Judge were entirely appropriate, but conceded that the end sentence ought to have been 24 months, rather than 25 months of imprisonment, because the Judge made a mathematical error in sentencing when applying the new methodology as articulated by the Court of Appeal in Moses v R.2 Nevertheless, the respondent’s position was that imprisonment of 24 months was still the appropriate sentence in this case, rather than home detention.
[4] Given that the Judge erred in applying the discounts and that the end sentence should in fact be 24 months’ imprisonment rather than 25 months, the real issue for this appeal is whether the least restrictive and most appropriate sentence in this case is home detention. A significant development requiring the Court’s consideration is the very recent payment by the appellant into her lawyer’s trust account of the sum of
$20,000 on account of outstanding reparation. That $20,000 has now been paid to the Ministry of Justice for forwarding to the victim.
Background
Factual background
[5] The appellant was employed by First Fresh (NZ) Ltd (First Fresh) in 2018 as the accounts payable clerk. Her role concerned the payment of invoices for the company’s vendors and creditors.
[6] During the period between 9 November 2018 and 20 September 2019, the appellant regularly made payments from the First Fresh’s account into her own account, as well as to a joint account between the appellant and her partner. The appellant also had two sons, both of whom had bank accounts to which money from First Fresh was transferred by her. Overall, the appellant stole a total of $147,390.87 from the company over the 10-month offending period.
2 Moses v R [2020] NZCA 296; (2020) 29 CRNZ 381.
[7] On 4 October 2019, First Fresh became aware of what had been occurring. The bank used by First Fresh identified a total of $28,550.77 transferred by the appellant into an account held by one of the appellant’s sons, and another payment totalling
$106,421.80 made to her other son. After the police were contacted, further analysis of the company’s bank accounts revealed more fraud. The pattern showed consistent and repetitive transfers from the company account into both of her sons’ accounts through to 20 September 2019.
[8] A total of 14 transactions were made from the company’s account into the two accounts belonging to the appellant’s sons. Additionally, the appellant transferred money daily from her sons’ accounts into her own personal account. $38,969.26 was able to be recovered from the sons’ accounts and returned to the company, leaving a sum of $108,421.61 owed.
[9] When the police spoke to the appellant, she admitted the offending. Following this, the appellant eventually made a payment of some $40,000 by way of bank cheque to First Fresh at an earlier hearing. However, up until yesterday, the appellant had been unable to arrange for payment of any more of the remaining sum, despite having transferred her equity in her property to her partner so as to facilitate raising a mortgage for the balance of the outstanding fraud money. The outstanding balance is an agreed figure of $62,976.61. Assuming that the sum of $20,000 held by the appellant’s solicitor is paid, that reduces the outstanding balance to $42,976.61.
District Court decision
[10] After setting out the relevant facts, the Judge detailed the effect of the appellant’s offending on the victim company, particularly the operating manager, who discussed the financial impact on First Fresh.
[11] The Judge then considered a number of analogous cases, including Prasad v Police,3 Price v Police4 and Campbell v Police5, as well as the aggravating factors of the offending, which included abuse of trust and premeditation, to reach a starting
3 Prasad v Police [2017] NZHC 2071.
4 Price v Police [2017] NZHC 2523.
5 Campbell v Police [2013] NZHC 838.
point of 38 months’ imprisonment. The Judge noted that had the appellant paid back all of money owed, as well as the $7000 emotional harm payment that she had offered to pay, then he would have deducted a period of eight months from the starting point.
[12] Turning to the mitigating features, the Judge granted a 5.4-month discount for the appellant’s lack of previous convictions for offending of this nature, payment of part of the money owed, and the emotional harm payment offer of $7000. A 20 per cent discount was granted for the appellant’s guilty plea, with the Judge noting that the full 25 per cent could not be granted because of the appellant’s decision to first plead not guilty. A further discount of one month was granted for the appellant’s remorse and restorative justice efforts. This led to an end sentence of 25 months’ imprisonment (concurrent on all charges) alongside a reparation order in the sum of
$62,976.61 and an emotional harm payment of $7000 to the victim.
Provision of Advice to Courts (PAC) report
[13] The PAC report firstly noted that the appellant had very few previous charges, namely two minor charges of careless driving and never holding a driver licence, dating back to 1993. It noted that the appellant was in a poor frame of mind during the period of her offending, as a result of her whangai daughter moving to her grandparents, and her dying father asking her if she could clear the debt on the family farm before he passed away.
[14] The report considered the appellant’s likelihood of re-offending as low as a result of her lack of previous offending and her deep regret, while her risk of harm was assessed as medium based on the financial loss to the victim.
[15] The report noted that the appellant had undergone a restorative justice process, having attended a restorative justice conference where she apologised to the victims and agreed to pay a lump sum repayment before her sentencing.
[16] The appellant’s home environment and family circumstances were detailed, with the report indicating that she had a strong connection with her whānau and their support throughout the sentencing process. The appellant is employed by Oranga
Tamariki but is on full suspension as a result of the charges. She volunteers, and is enrolled as a full-time extra-mural student at Te Wananga o Raukawa.
[17] In terms of the appellant’s attitude, the report stated that the appellant’s offending could be characterised by “an elongated lapse of rational thinking, and was emotionally driven, brought on by the death of her niece, the separation from her whangai daughter and the request from her dying father to remedy the financial crisis that the family farm was in”. The appellant’s significant remorse for her actions was stressed.
[18] Ultimately the report recommended that the appellant receive a sentence of home detention, due to her intention to pay the repay the company back in full and her sincere remorse. The appellant’s home address was considered to be suitable, with the ordinary home detention conditions of travelling directly to and staying at the address, undertaking appropriate assessment, treatment and counselling, not possessing or consuming any drugs or alcohol and notifying a probation officer prior to commencing any employment.
Position of the parties
The appellant
[19] On the first ground of appeal, counsel for the appellant, Mr Hawkins, submitted that the starting point imposed by the Judge was manifestly excessive in that it should not have exceeded three years’ imprisonment. After setting out a range of authorities, counsel submitted that Fitzmaurice v Police6 was the most analogous to the current case, where a three-year six-month starting point was imposed for the same charge, but with over $40,000 more stolen. Counsel, referring to R v Varjan,7 referred to a number of factors that indicated the particular culpability of the appellant. These included:
(a)the nature of the offending;
6 Fitzmaurice v Police [2013] NZHC 494.
7 R v Varjan CA97-03, 23 June 2003 (CA).
(b)its magnitude and sophistication
(c)the circumstances and number of victims;
(d)motivation for the offending;
(e)amount involved;
(f)losses;
(g)the period over which the offending occurred;
(h)the seriousness of the breach of trust; and
(i)the impact on the victim.
[20] Counsel acknowledged that the impact on the victim was a particularly important factor in this case. According to counsel, these factors, taken at their highest, would have led to a starting point of no more than three years’ imprisonment.
[21] On the second ground of appeal, counsel submitted that the discounts for the appellant’s guilty plea and for her remorse and repayment were too low. In terms of the guilty plea discount, according to counsel, the appellant was “always willing to plead guilty” but wanted to know the final reparation figure and disclosure to that effect, meaning that the discount should have been greater that 20 per cent. In terms of the discount for remorse and repayment, counsel submitted that the appellant had undergone a significant rehabilitative process, and that this was not properly focused on – instead the Judge placed too much of an emphasis on the appellant’s promise to pay reparation in full. According to counsel, had proper allowance for the appellant’s other mitigating features, namely her rehabilitative efforts and prospects, then sentence imposed would not have exceeded 24 months’ imprisonment, and would have been in the range of 22-24 months, which then would have been appropriate to commute to home detention as the least restrictive outcome.
[22] On 14 December 2020, counsel for the appellant filed a memorandum in reply to the respondent’s submissions. Counsel acknowledged and accepted the respondent’s submission that the Judge had erred in applying the Moses methodology, and sought admission of de novo evidence in the form of 11 character references in support of the appellant’s good character and personal circumstances and two letters about issues that had been experienced by one of the appellant’s children.8 The respondent’s position opposing home detention was disputed, with counsel noting a recent cased heard in the Dunedin District Court by Judge Turner of 4 November 2020, where two offenders stole over $220,000 and were sentenced to 10 months’ home detention and 400 hours of community work after paying back $80,000 to the victim
– it was inferred that a similar sentence should be applied here.
[23] Finally, counsel confirmed that $20,000 of reparation money had been paid by the appellant’s whānau into their trust account. Counsel submitted that as a result, measured consideration should be given to reducing the amount of time to be served on home detention, if the sentence of imprisonment was commuted to that. According to counsel, allowing for this and the fact that the appellant has served over a month in prison, an end sentence of six to eight months would be the least restrictive outcome.
[24] During the course of the hearing I enquired of counsel whether he could assure the Court that he had instructions to pay the $20,000 in his firm’s trust account to the Ministry of Justice on account of reparation. He was unable to confirm unequivocal instructions to that effect.
The respondent
[25] Counsel for the respondent, Ms Bryant, submitted that the starting point and discounts were entirely appropriate and within range, but that it was unnecessary to determine these grounds, as the Judge made a mathematical error meaning that the end sentence ought to have been 24 months’ imprisonment, rather than 25 months. When applying the Moses methodology, the Judge erred when calculating the 20 per cent guilty plea discount from the already reduced starting point of 32.6 months (this was
8 In a minute Brown v New Zealand Police (Minute of Churchman J), 15 December 2020, following argument, I declined to grant leave for the filing of the character references but admitted the two letters about the appellant’s son.
the starting point of 38 months reduced by the 5.4 month discount for reparation), rather than the original starting point of 38 months. Therefore, the 20 percent discount ought to have equated to 8.6 months rather than 6.6. months.
[26] However, counsel opposed commuting the 24-month sentence of imprisonment to one of home detention. This was for several reasons. First, as noted by the Judge, the appellant’s sentencing had been adjourned twice already in order to allow her to pay the full amount of reparation. Second, the appellant’s offending was brazen and opportunistic, evidenced by the large amount of money, the duration of offending and abuse of trust. Third, while the Court should impose a sentence that assists the appellant’s rehabilitation and reintegration, it should also denounce and deter her conduct, having regard to the gravity and seriousness of the offending and its effect on the victim company.
[27] Counsel also noted that there was no evidence that appellant actually used the stolen funds to pay the debts owed on the family farm.
Approach on appeal
[28] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.9 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.10
9 Tutakangahau v R [2014] NZCA 279.
10 Ripia v R [2011] NZCA 101 at [15].
Relevant law and analysis
Approach to sentencing
[29] The first consideration to note is the two-step methodology in line with the new principles set out in Moses v R11 by the Court of Appeal earlier this year, replacing the Court’s methodology in Hessell. This is as follows:12
A two-step methodology should be used:
(a)the first step, following Taueki, calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;
(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.
[30] In fixing an appropriate sentence, the Court may consider the general purposes of sentencing contained within s 7 of the Sentencing Act 2002:
7 Purposes of sentencing or otherwise dealing with offenders
(1)The purposes for which a court may sentence or otherwise deal with an offender are—
(a)to hold the offender accountable for harm done to the victim and the community by the offending; or
(b)to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c)to provide for the interests of the victim of the offence; or
(d)to provide reparation for harm done by the offending; or
(e)to denounce the conduct in which the offender was involved; or
(f)to deter the offender or other persons from committing the same or a similar offence; or
(g)to protect the community from the offender; or
(h)to assist in the offender's rehabilitation and reintegration; or
(i)a combination of 2 or more of the purposes in paragraphs (a) to (h).
11 Moses v R, above n 2.
12 At [46].
(2)To avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.
[31] The Court must take into account the general principles of sentencing set out in s 8:
Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
(a)must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b)must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
(c)must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d)must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(e)must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
(f)must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g)must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and
(h)must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i)must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
(j)must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).
[32] The Court must also take into account the aggravating and mitigating factors in s 9 of the Sentencing Act.
The appropriate starting point
[33] As discussed above, the Judge referred to three cases in support of the imposed starting point of 38 months’ imprisonment. Firstly, Prasad v Police. That case also concerned 14 charges of accessing a computer and thereby obtaining property by deception and without claim of right.13 In similar circumstances to the current case, Mr Prasad also accessed his employer’s computer system and used it to transfer funds into his own bank account under the guise of paying invoices. Some $183,000 was stolen, of which $10,200 was recovered. Lang J upheld the District Court sentence of 32 months’ imprisonment, as well as the starting point of 45 months as being within the available range (albeit at the top of the range).14
[34] Secondly, Price v Police. The appellant was charged five charges of dishonestly using a document to obtain a pecuniary advantage and two charges of obtaining by deception after he and his two co-offenders defrauded Foodstuffs (where he was a general manager) of around $155,000.15 The sentencing Judge adopted a starting-point of three years six months, which was upheld on appeal by Venning J, who stated a starting-point in the range of three years three months to three years nine months was open to the Judge.16
[35] Finally, Campbell v Police. Similarly, to the current case, the appellant was employed as an accounts manager, and falsified and manipulated entries in the company’s accounting system to pay money into her own bank accounts. Overall, the appellant fraudulently obtained $261,205 from her employer.17 A starting point of three years nine months’ imprisonment was upheld on appeal.
[36] Campbell and Price involved offending that had greater premeditation and planning than the current case. This case is most analogous to Prasad in terms of
13 Prasad v Police, above n 3.
14 At [9].
15 Price v Police, above n 4.
16 At [21].
17 Campbell v Police, above n 5.
offending, although the starting point appeared to be at the upper end of the range. Consequently, I do not consider that the Judge erred in imposing a starting point of 38 months’ imprisonment, as this recognised that the circumstances were analogous to the three cases discussed above, but slightly less serious in terms of premeditation and planning, and amounts stolen. The recent Dunedin District Court case referred to by Mr Hawkins does not alter my conclusion. Theft cases have widely variable facts. On the facts of this case, the starting point adopted was within the available range.
Home detention
[37] If an offender is convicted of an offence punishable by imprisonment,18 and the end sentence reached is a short-term sentence (meaning a sentence of imprisonment of up to 24 months),19 home detention becomes available as a sentencing option. However, whether or not it is appropriate to impose this sentence, in the circumstances of a particular case, is a matter for the discretion of the sentencing Judge. There is no presumption in favour of home detention being imposed.20
[38] It follows that there are two steps involved in considering a sentence of home detention. In R v Vhavha, William Young J clarified how these are to be carried out:21
The two-step process required for a sentence of home detention requires the Judge first to decide that the sentence which is otherwise appropriate is a short-term sentence of imprisonment (‘stage one’) and then whether to commute that sentence to home detention (‘stage two’). Similar (at least broadly) two stage processes were associated with the power to suspend prison sentences and the power to give leave to apply for home detention — the precursors of the present discretion to sentence to home detention. Faithful adherence to such processes requires the judge at stage one to operate on the assumption that there is no stage two. The underlying legislative purpose is to avoid net-widening and, more particularly, to ensure that the more lenient sentences which can be imposed at stage two are reserved for those who would truly otherwise have been imprisoned.
[39] In R v Hill, rehabilitative considerations are expressly considered to be important in determining whether to sentence to home detention:22
18 Sentencing Act 2002, s 80A(1)(a).
19 Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).
20 R v Stacey [2008] NZCA 465 at [21].
21 R v Vhavha [2009] NZCA 588 at [31].
22 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[40] Section 15A of the Sentencing Act provides that a court may only impose a sentence of home detention if it is satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences and the Court would otherwise sentence the offender to a short-term sentence of imprisonment. The Courts have recognised that home detention carries a considerable measure of denunciation and deterrence, to the point at which it can supplant a short-term sentence of imprisonment.23
[41] In Metua v R, Hinton J (citing the Court of Appeal decision of Fairbrother v R), provided useful guidance on a court’s assessment of when home detention is appropriate:24
[12] Accordingly, as with any offence, where a proposed term of imprisonment is under two years the sentencing court is obliged to consider a term of home detention. Where appropriate, after considering the purposes of sentencing, home detention is to be imposed. The Court cannot impose a sentence of imprisonment unless satisfied that relevant sentencing purposes cannot be achieved by another sentence. The Court of Appeal in Fairbrother v R stressed that in choosing between the two options, “the choice must be intelligible”, which requires that the “factors that really count must be identified and weighed”. In that case…the Court provided useful guidance on when home detention should be substituted for imprisonment on appeal:
Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence. That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
23 R v Iosefa [2008] NZCA 453, at [41]; and Fairbrother v R [2013] NZCA 340 at [29].
24 Metua v R [2018] NZHC 246 at [12].
[42] Acknowledging the Judge’s error which meant that under the two-step methodology espoused in Moses, the Judge erred in applying the discounts and that the end sentence should in fact be 24 months’ imprisonment rather than 25 months, the critical question is whether the sentence should be commuted to one of home detention, or remain as a sentence of imprisonment.
[43] The greatest factor militating against a sentence of home detention is the appellant’s failure to repay the remaining $62,976.61 owed, despite her promise to do so in the restorative justice conference before sentencing, and two separate adjournments by the Judge to give the appellant more time to pay, with the Judge explicitly warning the appellant in the second adjournment:25
…if the money is paid that in principle must lower the starting point. And repayment of course achieves a measure of justice for the victim. Thus, Ms Brown realistically sits on the very edge of a term of imprisonment today and I am told that she is aware of that.
[44] This indicates that a sentence with an element of denunciation and deterrence is required, so as to denounce the appellant’s offending and her failure to repay the funds owed. A relevant factor to consider in this case is the decision of the Court of Appeal in Otufangavalu v R, which was described in Francis v R as authority for the proposition that the failure to pay reparation can be relevant to the availability of home detention if it shows an absence of remorse.26 In that case, the Court of Appeal observed:27
We reject Mr Hall's submission that significant weight must be attached to an offer of reparation although the offender might have taken steps to pay it earlier. Nor is it necessary to attach much weight to professed remorse where the offender might have demonstrated it in a tangible way, but did not. The appellant might have tipped the balance in favour of home detention had he taken advantage of the extended period on remand to do something to address the causes of his offending, or to pay reparation, or to name his co-offender, who remains at large, but he chose to do none of these things.
[45] However, a sentence of home detention can still carry a considerable measure of denunciation and deterrence, which will likely be the case in these circumstances given the appellant’s significant remorse, shame, and loss of standing in the
25 Police v Brown (Minute of Judge Cathcart) CRI-2020-016-561, 20 October 2020 at [6].
26 Francis v R [2011] NZCA 353 at [13].
27 Otufangavalu v R [2010] NZCA 585 at [12].
community from the offending, regardless of the sentencing outcome. There are three other factors which favour a sentence of home detention in this case.
[46] Firstly, the appellant’s rehabilitative prospects and actions. The appellant did commit to and undergo a restorative justice conference and had repaid some $40,000 to the victim company at the time of sentencing. While she is arguably in less need of rehabilitation than many offenders, she has made efforts to rehabilitate herself through these actions and would be well-placed in her own home environment to rehabilitate and put her offending behind her.
[47] Secondly, the PAC report indicates that the appellant has a strong support base within her whanau and in her home environment, where she would be better supported with her rehabilitation and reintegration into the community.
[48] Finally, the reparation order to pay the outstanding sum owed, as well as $7000 for emotional harm, can still be applied from the original sentence, meaning that the appellant will still be accountable for repaying that money.
[49] I also note that, at sentencing, the police did not oppose the imposition of home detention (which had been recommended in the PAC report) and they adopted that position knowing that the promised reparation had not been paid. Ms Bryant was not able to refer to any cogent reason justifying the prosecution’s change of position on this point on the appeal.
Analysis
[50] On the information available to the Judge at sentencing, his concern at the failure by the appellant to make the reparation payment that had been repeatedly promised is understandable. The actual receipt of reparation payments rather than mere promises is, as the Judge indicated, an important factor when approaching sentencing.
[51] However, the situation has now changed. It is accepted that the final sentence that the Judge should have arrived at was 24 months. When that threshold is reached, the Court is required to consider home detention.
[52] A sentence of home detention is capable of holding the appellant accountable and of denouncing even serious offending of the type the Court is dealing with here. The payment of a further sum of $20,000 by way of reparation further reduces the loss to the complainant. Counsel submits that, if granted home detention, the appellant has the prospect of employment from which she would be able to make further reparations. That would also be in the interests of the complainant.
[53] Finally, it appears that the appellant does have genuine rehabilitative prospects and is remorseful.
Outcome
[54] On the basis of the change of circumstances since sentencing, the appeal is allowed, and the sentence of imprisonment is quashed. As the appellant has completed some 40 days of imprisonment, she is entitled to a credit in what would otherwise be a starting point of 12 months home detention.
[55]I therefore impose a sentence (on all charges) of:
(a)11 months’ home detention to be served at the address specified in the PAC report dated 11 September 2020. It is subject to the standard terms and conditions;
(b)on the basis that the sum of $20,000 held by the appellant’s solicitors has now been paid to the Ministry of Justice on account of reparations there will be a reparation order of $42,976.61; and
(c)there is an emotional harm payment of $7,000 to be made to the victim.
Churchman J
Solicitors:
Bramwell Bate Lawyers, Hastings Elvidge & Partners, Gisborne
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