Falwasser v Police

[2022] NZHC 584

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000030

[2022] NZHC 584

BETWEEN

LEAH ANNE FALWASSER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 March 2022

Counsel:

BJ Hall for Appellant

AR Masters for Respondent

Judgment:

29 March 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 29 March 2022 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. BJ Hall, Auckland.

FALWASSER v POLICE [2022] NZHC 584 [29 March 2022]

The appeal

[1]    Leah Falwasser received a 25-month prison sentence for a raft of offences, most for dishonesty.1 Ms Falwasser appeals. She contends the sentence is too severe. The primary issue concerns the 28-month starting point for the dishonesty offending.

Principle

[2]    An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.2

Background

[3]Ms Falwasser’s offending is best understood as four sets.

Set one

[4]    Between 13 December 2018 and 10 January 2019, Ms Falwasser repeatedly breached a sentence of community work by failing to attend. She was required to serve 100 hours. She served three.

[5]    On 29 January 2019, Ms Falwasser failed to report to her probation officer, in turn breaching an 18-month sentence of intensive supervision.

Set two

[6]    On 28 February 2019, Ms Falwasser’s driving attracted Police attention. She was stopped and asked to show her licence. Ms Falwasser presented an altered licence. She also had a second altered licence. Ms Falwasser was not supposed to be driving; she had been forbidden back in 2014.

[7]Ms Falwasser committed these offences while on bail for the set one offences.

1      Police v Falwasser [2022] NZDC 1045.

2      Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.

Set three

[8]    On 25 June 2019, Ms Falwasser breached another sentence of intensive supervision.

[9]    On 27 June 2019, Ms Falwasser hired a trailer using an altered driver’s licence. She failed to return it two days later in circumstances amounting to theft. The owner lost $5,082.47.

[10]   On 28 and 29 June 2019, Ms Falwasser repeatedly used a credit card fraudulently. She obtained goods worth $4,542.65. Some transactions were reversed. The total loss was $3,238.18.

[11]   Ms Falwasser was on bail for both earlier sets when she committed the offences in this set.

Set four

[12]On 12 July 2019, Ms Falwasser failed to answer District Court bail.

[13]   On 15 July 2019, Ms Falwasser used an altered driver’s licence to open a TAB account. The next day, she ordered $8,341 worth of goods from Noel Leeming and attempted to collect them using an altered driver’s licence. She was unable to.

[14]   I cannot determine  whether  the  offences  in  set  three  were  laid  before  Ms Falwasser committed this set (because the record is incomplete). However, it is clear Ms Falwasser committed this set while on bail for sets one and two.

Sentencing

[15]Ms Falwasser pleaded guilty to 21 charges:

(a)Two of breaching intensive supervision.

(b)One of breaching community work.

(c)One of altering a document with intent to defraud.

(d)Three of using an altered document with intent to deceive.

(e)Four of obtaining by deception (less than $500).

(f)One of obtaining by deception ($500 to $1,000).

(g)Four of obtaining by deception (over $1,000).

(h)One of theft (over $1,000).

(i)Two of dishonestly using a document.

(j)One of failing to answer District Court bail.

(k)Driving while forbidden.

[16]   Judge A M Skellern adopted a starting point of 28 months’ imprisonment for the dishonesty offending. The Judge added a total of six months for: (a) the breaches of community work and intensive supervision; (b) presenting the altered driver’s licence to Police; and (c) Ms Falwasser’s extensive criminal history.

[17]   The Judge deducted 20 percent for Ms Falwasser’s guilty pleas and a further five percent for rehabilitation. As observed, this left a 25-month term of imprisonment.

A précis of Ms Falwasser’s case

[18]   On behalf of Ms Falwasser, Mr Hall contends the starting point for the dishonesty offences was beyond the range available to the Judge. Mr Hall also contends the Judge should have afforded some discount for Ms Falwasser’s 40 days on electronically monitored bail and greater discount for rehabilitation. Ms Falwasser was admitted to Wings Trust, a rehabilitation centre.

[19]The result, Mr Hall argues, is a manifestly excessive sentence.

Analysis

[20]   Dishonesty offending is without a guideline judgment. So, starting points for offending of this nature are typically calculated by assessing relative seriousness, that is, determining offence seriousness by comparison to similar cases. Several are relevant, as helpfully identified by Ms Masters on behalf of the respondent.

[21]   Abraham Rako fraudulently used a debit card 11 times over nine days to obtain approximately $1,800. The Court of Appeal upheld an 18-month starting point though this was “at the top of the acceptable range”.3

[22]   Richard Edwards fraudulently presented 10 cheques over three and a half weeks. He obtained approximately $6,200. Mr Edwards’ sentence appeal was dismissed as Heath J concluded the starting point “could easily have been pitched at a level of 18 months”.4

[23]   James Tiopira committed 33 instances of fraud over two weeks. He used four stolen credit or debit cards to obtain approximately $11,600. Lang J upheld a starting point of 30 months’ imprisonment, albeit describing it as potentially “at the top of the available range”.5

[24]   In the same case, Lang J considered several others involving stolen credit cards or cheques. He concluded that, “as a general proposition, a starting point of around 12 to 18 months’ will be appropriate where the offending results in losses of around

$2,000 to $3,000”.6

[25]   This leaves the final case. Hayden Gobey committed more serious fraud over six months. There were multiple victims. Loss totalled approximately $41,000. Thomas J upheld a starting point of three years’ imprisonment.7

3      Rako v R [2015] NZCA 463 at [11]. The offending involved a significant breach of trust as the victim was a tourist staying with Mr Rako.

4      Edwards v Police [2012] NZHC 737 at [11]

5      Tiopira v Police [2012] NZHC 1720 at [14].

6 At [12].

7      Gobey v Police [2018] NZHC 1555.

[26]   Ms Falwasser’s dishonesty offending spanned three weeks and multiple victims. It encompassed approximately $18,000 and loss of $8,321. Ms Falwasser committed all dishonesty offences while on bail. This is a significant aggravating feature.8

[27]   This constellation reveals Ms Falwasser’s offending as more serious than that of Mr Rako and Mr Edwards; less serious than Mr Gobey’s; and about as serious as Mr Tiopira’s.9 His starting point was 30 months’ imprisonment; Ms Falwasser’s was 28 months’ imprisonment. It follows the starting point is (comfortably) within range.

[28]   Time on electronically monitored bail can mitigate a sentence.10 Here, the period was not long—40 days. Moreover, Ms Falwasser cut off her bracelet and absconded. She breached bail on at least two other occasions. A discount in these circumstances would bring the law into disrepute.

[29]   Mr Hall’s contention Ms Falwasser deserved a greater discount for rehabilitation attracts a similar difficulty. While Ms Falwasser entered Wings Trust 21 September 2020; she absconded 14 December 2020.

[30]All this means the sentence is without error.

Result

[31]The appeal is dismissed.

……………………………..

Downs J

8      Sentencing Act 2002, s 9(1)(c).

9      Mr Tiopira committed more offences for less money. Offending on bail does not appear to have been a feature of his offending.

10     Sentencing Act, s 9(2)(h).