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…

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: [2022] NZHC 584
Decision Date: 29 March 2022

CaseChat Overview and Summary

In Falwasser v Police, Leah Anne Falwasser appealed her 25-month prison sentence for multiple offences, primarily for dishonesty, arguing that it was excessively severe. The primary issue in the appeal was the appropriateness of the 28-month starting point for the sentencing of her dishonesty offences. The appeal required the court to decide whether the sentence imposed by the sentencing judge was erroneous and whether a different sentence should be imposed.

The court considered that an appeal from a sentence would only succeed if there was an error in the sentence and a different sentence should be imposed. The court assessed the starting point for the dishonesty offences by comparing Ms Falwasser's case with other cases involving similar dishonesty offences. Ms Falwasser's offending spanned three weeks and involved multiple victims, resulting in approximately $18,000 in fraudulent transactions and a loss of $8,321. The court concluded that Ms Falwasser's starting point of 28 months was comfortably within the range of similar cases. Additionally, the court found that Ms Falwasser's brief period on electronically monitored bail and her subsequent absconding did not warrant a significant discount, nor did her brief stay at a rehabilitation centre.

Ultimately, the court dismissed the appeal, finding that the sentence was not erroneous. The 25-month prison sentence, which resulted from the starting point of 28 months and various discounts, was upheld as appropriate. The court found no basis to interfere with the sentencing judge's decision.

Orders