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  concerned.”    He  said  the offending involved, as it undoubtedly did, a significant breach of trust.  He referred also to the high level of premeditation involved.

[9]      Judge Harvey determined that the starting point for sentencing should be

15 months’ imprisonment due to the significant breach of trust, the high level of premeditation, the repetitious and ongoing nature of the offending and the significant loss that resulted.   He allowed a discount of four months’ imprisonment to reflect Mr Fannin’s previous good conduct and his guilty plea.   This resulted in a final sentence of 11 months’ imprisonment.   Judge Harvey was willing to convert that sentence to one of home detention.   He imposed a final sentence of nine months’ home detention to reflect the seriousness of the offending and to hold Mr Fannin appropriately accountable.  The Judge ordered Mr Fannin to attend counselling and treatment in relation to his gambling addiction.

[10]     In also ordering reparation, Judge Harvey referred to a reparation report but did not give any reasons for the quantum of reparation or the rate of repayment.

Appellant’s submissions

[11]     Mr Keam, counsel for Mr Fannin, describes the appellant as a 36 year old man, previously a secondary school teacher but now unemployed.  He is currently an undischarged bankrupt with no assets.   Mr Keam submits it is unlikely Mr Fannin

will be able to obtain employment in any position of responsibility at the conclusion of his home detention sentence, including as a school teacher.

[12]     Mr  Keam  submits  that  the  purpose  of  the  reparation  provisions  in  the Sentencing  Act  2002  is  not  to  bond  people  for  a  long  period  of  time;  and furthermore, that small payments over a long period of time do not provide any significant  benefit  to  the victims.    He notes  in  particular  that  reparation  orders requiring payment for more than five years have previously been regarded as excessive, although he acknowledges that in some cases longer periods of reparation have been upheld.

[13]     Mr Keam essentially submits that the $20 weekly payments should continue for only five years or thereabouts.

Respondent’s submissions

[14]     The respondent accepts that the 63-year timeframe of the reparation order made by Judge Harvey was excessive and submits that a new reparation order should be made over a reasonable timeframe.

[15]     The respondent does not proffer a specific weekly payment, nor does the respondent suggest a reasonable timeframe.  The respondent submits that the court is entitled to take future earning capacity into account in determining whether an order of reparation is appropriate.4   The respondent also submits that the appellant is likely to gain employment in the future which would enable him to make repayments at a significantly higher rate than $20 per week.

Approach on appeal

[16]     Appeals against sentence to the High Court are governed by ss 244 and 250 of the Criminal Procedure Act 2011.  The Court of Appeal has recently confirmed

that s 250(2) was not intended to change the “manifestly excessive” standard applied

4      R v Brown CA267/92, 26 November 1992 at 5; Taua v Police HC New Plymouth CRI-2009-

043-22, 22 September 2009 at [7].

to sentence appeals under s 121(3) of the Summary Proceedings Act 1957.5   Section

250(2) requires the Court to allow a sentence appeal if:

(a)       for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should have been imposed. [17]    In any other case the Court must dismiss the appeal.6

[18]     An appeal will be successful only if the appellant can point to an error, either

intrinsic to the Judge’s reasoning or as a result of additional material submitted on

the appeal, which vitiates the sentencing decision of the court below.7

Reparation orders

[19]     If a court is lawfully entitled to impose a sentence or order of reparation, it must be imposed unless the court is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.8

[20]     If  an  offender has  insufficient  means  to  pay the total  value  of  the loss, damage, or harm, the court may sentence the offender to make:9

(a)       reparation for an amount that is less than the value of the loss, damage, or harm; or

(b)      payment by instalments of the loss, damage, or harm; or

(c)       both (a) and (b).

5      Tutakangahau v R [2014] NZCA 279.

6      Criminal Procedure Act 2011, s 250(3).

7      R v Shipton [2007] 2 NZLR 218 (CA).

8      Sentencing Act 2002, s 12(1).

9      Sentencing Act 2002, s 35(1).

[21]     A sentencing Judge should have “a realistic measure of confidence” in the

fact that the payment of reparation is able to be made.10

[22]     However, future earning capacity can be taken into account by the Judge in determining whether an order of reparation is appropriate.11

[23]     The Sentencing Act does not specify any period or maximum period during which a reparation order must be fulfilled.  However, the courts have made clear that orders to pay large sums over a long period are unsuitable.12   The respondent accepts that  periods  of  repayments  that  fall  significantly  over  five  years  are  generally regarded by the courts as excessive.13    I note though, and Mr Keam accepts, that longer periods have been upheld, for example in R v Vallily14 and R v Creek,15 which involved payments over eight years and nine and a half years respectively.

Discussion

[24]     The respondent accepts, and I agree, that a reparation order that lasts for 63 years is manifestly excessive.

[25]     The question is what order should replace it.

[26]     I do not have the reparation report.   However, it seems to me I have such information  as  is  reasonably  available  in  any  event  and  counsel  did  not  really contend otherwise.

[27]     The appellant is an undischarged bankrupt who is unemployed and has no assets.  He is married and has three children.

[28]     I have to make an order which I have a “realistic measure of confidence” will be able to be met.

10     R v Pender [2007] NZCA 465 at [15].

11     R v Brown, above n 4, at 5, Taua v Police, above at [7].

12     Taua v Police, at [7], citing R v Rollo [1981] 2 NZLR 667, R v Belmont  CA345/96, 20 February

1997.

13     For example R v Bailey CA306/03, 10 May 2004.

14     R v Vallily CA251/04, 10 November 2004 at [75].

15     R v Creek CA199/06, 7 August 2006 at [11].

[29]     I take it the appellant also presently has no income.

[30]     However, he is a school teacher who had nine years experience.  He taught at Auckland Grammar so he was obviously highly regarded and well qualified.  I can take account of his future earning capacity.   I accept he is unlikely to work as a teacher, at least in the New Zealand public school sector, but I consider he will be able to obtain a well-paying job once his period of home detention concludes, and there would be no reason not to have such a job lined up beforehand.  I consider he can pay $100 per week for seven years following home detention, without suffering undue hardship in terms of s 12.

Result

[31]     The appeal is therefore allowed.  The reparation order made by the Judge is replaced from today with an order for reparation as follows:

(a)       In addition to the sums he has paid to date, which would total between

$1,500 and $2,000, the appellant is to pay $20 per week until the conclusion of his home detention sentence; and thereafter

(b)He is to pay $36,400 by payments of $100 per week for a period of seven years.

(c)       Payments are to be made to the Ministry of Justice for payment pro rata to the creditors.

Hinton J