Fannin v Police - [2016] NZHC 168

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 Respondent

Judgment:

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…

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.

Continue reading Fannin v Police

Details

AGLC: Fannin v Police [2016] NZHC 168
Case: [2016] NZHC 168
Decision Date: 15 February 2016

CaseChat Overview and Summary

The case of Fannin v Police involved an appeal by Rafe Callum Fannin against the reparation order imposed by Judge David Harvey in the District Court. The appeal centred around the reparation order, which required Mr Fannin to repay $67,408 at a rate of $20 per week, a timeline that would take over 63 years to complete. The reparation was based on the losses incurred from Mr Fannin's identity theft schemes, which included obtaining credit cards and loans under false identities. The High Court was required to determine if the reparation order was manifestly excessive and, if so, to replace it with a more appropriate order.

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