IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000400 [2016] NZHC 168
BETWEEN RAFE CALLUM FANNIN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 February 2016 Appearances:
R B Keam for Appellant
H G Max and S L McColgan for RespondentJudgment:
15 February 2016
ORAL JUDGMENT OF HINTON J
Solicitors:
Public Defence Service, Auckland
Meredith Connell, Auckland
FANNIN v NEW ZEALAND POLICE [2016] NZHC 168 [15 February 2016]
Introduction
[1] Mr Fannin pleaded guilty in the District Court to six charges of obtaining by deception (value over $1,000),1 five charges of using a document for pecuniary advantage2 and two charges of obtaining by deception (value over $500).3 Judge David Harvey sentenced Mr Fannin on 19 November 2015 to nine months’ home detention and ordered him to pay reparation of $67,408 with $1,500 to be paid on the date of sentencing and the remainder to be paid at a rate of $20 per week.
[2] Mr Fannin appeals the reparation order pursuant to s 250 of the Criminal Procedure Act 2011 on the grounds that it is manifestly excessive, because at the rate of $20 per week, it will take more than 63 years to repay $67,408. Mr Fannin accepts and takes no issue with the sentence of home detention.
Factual background
[3] Broadly speaking, Mr Fannin has been convicted of a number of charges relating to three schemes of identity theft.
[4] One scheme related to the identity of Jamie Herdman, a missing person. Mr Fannin obtained Mr Herdman’s name and date of birth through Facebook and subsequently used this information to obtain a copy of Mr Herdman’s birth certificate. This information was used to obtain a New Zealand driver’s licence as well as three separate credit cards, all in Mr Herdman’s name.
[5] Mr Fannin also committed identity theft against two of his work colleagues, Douglas Newton and Peter Shore. In both cases, he took a driver’s licence from the man’s wallet and used those details to obtain a total of four credit cards, two bank accounts and four loans.
[6] At the time that the offending was discovered, the total sum owing across the various cards and loans was $67,408, being the reparation ordered.
1 Crimes Act 1961, ss 240(1)(a) and 241(a).
2 Crimes Act, s 228(b).
3 Crimes Act, ss 240(1)(a) and 241(b).
[7] Mr Fannin has paid the $1,500 lump sum and has apparently also been paying the $20 weekly amounts.
District Court judgment
[8] Judge Harvey described the offending as “sophisticated fraud and identity theft”. He dismissed the indication in the pre-sentence report that Mr Fannin’s offending was driven by a gambling problem, stating that Mr Fannin must have been “well aware that the house always wins”. Judge Harvey further noted that Mr Fannin had been in a position of responsibility as a teacher at Auckland Grammar School during the period of the offending and stated that Mr Fannin was “by no means a babe in the woods as far as intelligence is…
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CaseChat Overview and Summary
The High Court considered the principles governing reparation orders under the Sentencing Act 2002, noting that while future earning capacity could be taken into account, the court must also ensure that the order is realistic and can be fulfilled. The court acknowledged that periods of reparation extending significantly beyond five years are generally regarded as excessive. However, the court recognised that longer periods could be upheld in certain circumstances, as evidenced by previous cases.
In assessing Mr Fannin's ability to pay, the court took into account his current financial situation, his status as an undischarged bankrupt with no assets, and his potential future employment prospects. Given his previous employment as a school teacher, the court was confident that Mr Fannin would secure a well-paying job after his home detention period. The court concluded that Mr Fannin could afford to pay $100 per week for seven years following his home detention, without undue hardship.
The appeal was allowed, and the reparation order was replaced. Mr Fannin was required to continue paying $20 per week until the end of his home detention, followed by $100 per week for seven years. Payments were to be made to the Ministry of Justice for distribution to the creditors. This new order balanced the need for Mr Fannin to make meaningful reparations with his capacity to pay over a reasonable period.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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