Farina v The Queen
[2021] NZHC 811
•15 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-89
[2021] NZHC 811
BETWEEN BEGUM SAMUELS FARINA
Appellant
AND
THE QUEEN
Respondent
Hearing: 13 April 2021 Counsel:
J W Wall for appellant M D East for respondent
Judgment:
15 April 2021
RESERVED JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 15 April 2021 at 11.30am.
Registrar/Deputy Registrar Date:
Solicitors/Counsel: Justin Wall, Auckland
Crown Solicitor, Auckland
FARINA v R [2021] NZHC 811 [15 April 2021]
[1] The appellant, Begum Samuels Farina, accepted a sentence indication given by Judge Gibson on 11 September 2020. Ms Farina pleaded guilty to one charge of theft in a special relationship1 and one charge of obtaining by deception.2 On 29 January 2021, in the District Court at Auckland, the Judge sentenced her to 10 months’ home detention,3 100 hours of community work and ordered her to pay
$21,034.51 in reparation, being the total amount of loss attributed to the offending.
[2] Ms Farina now appeals that sentence on the grounds it is manifestly excessive. Ms Farina submits the starting point adopted by the District Court Judge was too high, and that the final sentence combined with the reparation order was excessive in the circumstances.
Facts
[3] Between June and November 2016 Ms Farina worked at Horizon Radiology, Parnell as an accounts clerk. Her role included accessing the company’s online banking with ANZ Bank to load client payments and refunds.
[4] On several occasions during the course of her employment, Ms Farina entered client refunds using her personal bank account number instead of the client’s. This resulted in the refund being processed into her own bank account on 20 separate occasions between 9 September and 7 November 2016.
[5] Ms Farina resigned from her position on 11 November 2016. A new accounts clerk was employed and on three occasions between 25 November 2016 and 27 January 2017 refund money was transferred to Ms Farina instead of to clients as Ms Farina’s personal bank account details had remained in the system.
[6]Ms Farina stole a total of $21,034.51 from Horizon Radiology in this way.
1 Crimes Act 1961, ss 220 and 223(a). Maximum penalty seven years’ imprisonment.
2 Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty seven years’ imprisonment.
3 R v Farina [2021] NZDC 2150.
District Court decision
[7] Judge Gibson considered Ms Farina’s previous convictions for dishonesty- based offending but noted the last conviction had been entered some time ago in 2008. He described her as a “fundamentally…dishonest person” and found that her apology ought to be taken “with a grain of salt”. 4 The Judge noted the lack of a tariff decision for this kind of offending. He considered the offending to be planned and deliberate, emphasising the effect Ms Farina’s offending had on her employer and co-workers.
[8] In those circumstances, Judge Gibson disagreed with the sentence of community detention and reparation recommended in the pre-sentence report.
[9] With an oblique reference to totality, and considering his sentencing indication, the Judge considered the appropriate starting point to be one of 23 months’ imprisonment. He added an uplift to take account of previous similar convictions, leading to a sentence of 26 months’ imprisonment. A 20 per cent discount for Ms Farina’s guilty plea was applied, reducing the sentence to 20 months. This was then converted to 10 months’ home detention on the terms of the pre-sentence report before him and 100 hours’ community work was also ordered. The reparation order was made.
Submissions
Appellant
[10] For Ms Farina, Mr Wall does not take issue with the uplift or discounts given for her past convictions and guilty plea respectively. He submits the District Court Judge erred by setting the starting point too high and that the final combination of sentences and reparation was manifestly excessive.
[11] Addressing the starting point first, Mr Wall submits the touchstone for determining the level of culpability for fraud offending is the Court of Appeal’s
4 R v Farina, above n 3, at [5].
decision in R v Varjan.5 There the Court set out the following factors to be assessed in determining culpability:
· the nature of the offending;
· its magnitude and sophistication;
· the number of victims;
· the general circumstances;
· the loss and amounts involved;
· the period of time over which the offending took place; and
· the seriousness of the breach of trust.6
[12] The Court went on to highlight the importance of comparison with other cases, finding that mitigating factors such as reparation, co-operation, plea, remorse and the offender’s circumstances must also be assessed.7 Mr Wall submits that while the District Court Judge considered the degree of planning and level of loss, he did not refer to previous decisions in fixing a starting point of 23 months. Mr Wall refers to three cases he says are comparable, submitting that the starting points and end sentences in such cases indicate the starting point used by the District Court Judge was too high.
[13] In Boatwright v Police the appellant pleaded guilty to a representative charge of obtaining by deception following the use of fake identities and documents to obtain loans from GE Finance totalling $41,821.57.8 The offending occurred over 18 months and the appellant had minimal criminal history. She was pressured to offend by her partner. In the District Court a starting point of 18 months was adopted, reduced by
5 R v Varjan CA97/03, 26 June 2003.
6 At [22].
7 At [23].
8 Boatwright v Police HC Auckland CRI-2010-404-505, 24 March 2011.
discounts to 12 months. On appeal, the sentence was reduced to six months’ home detention, 75 hours’ community work and $5,000 reparation.9
[14] In Appuhamilage v Police the appellant pleaded guilty to four charges including obtaining by deception and use of a forged document.10 The victim was the offender’s mother and a total of $59,000 was taken. The appellant was induced to offend by her partner. In the District Court a starting point of 24 months was reduced by eight months for youth, good character and lack of previous convictions. A further discount was given for her guilty plea resulting in a nominal sentence of 12 months’ imprisonment, which was commuted to six months’ home detention, 200 hours’ community work and $5,000 reparation. On appeal, the community work and reparation orders were quashed on account of being a departure from a sentence indication.
[15] In Tonks v Police the appellant pleaded guilty to three charges of theft in a special relationship and further charges of using forged documents.11 The offending was committed while on bail, in an employment context and the loss was $18,500. A starting point of 14 months’ imprisonment was taken for the thefts, while a cumulative sentence based on a 16-month starting point was imposed for use of the documents. The appeal was dismissed.
[16] Mr Wall submits that in comparison to such cases, a starting point of 23 months in the circumstances was too high. He points out that the loss in this case of
$21,034.51 is substantially less than that in Boatwright and Appuhamilage where starting points of 18 and 24 months respectively were adopted. He says the nature of the fraud in the current case is no more sophisticated than that in the cited cases. Mr Wall submits this matter is particularly similar to Tonks where the special relationship came from an employment context, and a similar amount of loss was suffered.
9 As pointed out by the Crown, this was on account of personal circumstances, not an adjustment to starting point.
10 Appuhamilage v Police [2015] NZHC 2355.
11 Tonks v Police [2017] NZHC 880.
[17] The appropriate starting point is submitted by counsel to be in the realm of 18 months. No issue is taken with the District Court Judge’s uplift or discount so a sentence of 17 months would result. Mr Wall suggests this would be commuted to a sentence of eight and a half months home detention. Such a change would make a material difference to Ms Farina’s sentence and would not amount to “tinkering”.
[18] On the final sentence combination, Mr Wall submits that while it was open to the Judge to impose community work, an assessment of totality was necessary. In Mr Wall’s submission, there does not seem to be any additional purpose that would be served through community work, beyond the significant restriction on freedom a sentence of home detention brings. Further, no assessment was made in the District Court of Ms Farina’s ability to meet the reparation order. Mr Wall highlights the suggestion in the pre-sentence report that a restrictive sentence would impede Ms Farina’s ability to work and thereby make periodic payments for reparation. Although Mr Wall accepts reparation is not a factor conventionally taken into account as part of an assessment of totality, he says some perspective must be maintained to ensure there is a “reasonable measure of confidence” the payments can be made.12 In combination with the sentence of home detention, these factors result in a manifestly excessive end sentence.
Respondent
[19] For the Crown, Mr East refers to other cases in support of his submission that the Judge did not err as to the starting point. In Churton v Police the appellant was convicted on one representative charge of theft.13 The offending occurred in an employment context and resulted in a loss of $23,310. A starting point of 21 months’ imprisonment was considered excessive on appeal with a starting point of 15 months being deemed more appropriate.
[20] In Ebdell v Police the appellant was convicted of two representative charges for theft in a special relationship and use of a document.14 The offending occurred in an employment context; the appellant was a postal delivery officer who had retained
12 R v Pender [2007] NZCA 465 at [15].
13 Churton v New Zealand Police HC Palmerston North CRI-2007-454-12, 16 May 2007.
14 Ebdell v Police HC Christchurch CRI-2009-409-4831, 30 July 2009.
undelivered mail. Loss of approximately $14,000 was suffered. The starting point of 15 months was upheld on appeal. Referring also to Boatwright and Appuhamilage, Mr East highlights that the starting points of 18 and 22 months respectively were upheld on appeal.
[21] In Terrell v Police, the convictions were for obtaining by deception and theft of a person in a special relationship.15 The offending caused loss of $40,300, although full reparation was made to the victims before sentencing. On appeal, the High Court commented that but for reparation a starting point of between 12 and 18 months would have been appropriate. In Costello v R, the Court of Appeal imposed starting points of 18 and 12 months for two brothers convicted of obtaining by deception charges, the difference reflecting the roles in the offending.16
[22] In Luoni v Police, the offending took place in an employment context, with a total loss of $51,005.82 being suffered.17 The appellant had pleaded guilty to several charges, the lead being obtaining by deception. On appeal, a three-year starting point was considered stern but not excessive.
[23] Hoffman v R involved one charge of theft of a person in a special relationship in an employment context.18 The amount of money was stolen over a short period of time, and Mr Hoffman was friends with his employer, resulting in a betrayal of friendship beyond that of employee-employer. The starting point of between 10 and 12 months and final sentence of three months’ home detention, 150 hours’ community service and $20,143 reparation was upheld on appeal. In Lata v Police, the appellant faced 14 dishonesty charges involving serious breaches of trust in an employment context with vulnerable victims.19 The starting point of 28 months was not contested on appeal.
15 Terrell v New Zealand Police [2013] NZHC 734.
16 Costello v R [2015] NZCA 512.
17 Luoni v Police [2016] NZHC 695.
18 Hoffman v R [2017] NZCA 151.
19 Lata v Police [2020] NZHC 413.
[24] Having regard to these authorities, Mr East submits the starting point was towards the higher end of the range available to the Judge given the large number of aggravating factors relevant to the offending. These included:
(a)the breach of trust between employee and employer;
(b)the amount stolen was not insignificant, and has not been recovered;
(c)the offending was persistent considering the number of transactions Ms Farina altered;
(d)Ms Farina personally benefitted from the offending;
(e)Ms Farina avoided detection for some time after the offending, and the effect of Ms Farina’s manipulation of the system remained after her resignation;
(f)there was a significant degree of premeditation and planning – it was not unsophisticated in that it involved manipulation of accounts; and
(g)the offending caused distress to several people within the business.
[25] On whether the combination of sentence, community work and reparation was excessive, the Crown submits there is no jurisdictional bar to such an order.20 Referring to Hoffman,21 Mr East submits that community work was considered necessary in that case alongside a three-month home detention sentence and reparation order to ensure the defendant gave back to the community. It therefore served a different purpose to the home detention sentence.
[26] The Crown points out that Ms Farina has not adduced any evidence to suggest that the reparation order would result in undue hardship, and notes that in the pre-sentence report she was willing to pay reparation in full. The Judge, therefore, was required by s 12(1) of the Sentencing Act to order reparation.
20 Sentencing Act 2002, s 19(8).
21 Hoffman v R, above n 18.
Approach
[27] I must allow Ms Farina’s appeal if I am satisfied there is an error in the sentence and a different sentence should have been imposed. In any other case, I must dismiss the appeal against sentence.22 The approach previously taken by courts on sentencing appeals continues to apply,23 so the measure of error is that the sentence is “manifestly excessive”, a principle “well-engrained” in this Court’s approach to sentence appeals.24 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is “manifestly excessive” is to be assessed in terms of the sentence given, rather than the process by which it is reached.25
Discussion
The starting point
[28] Was the starting point of 23 months’ imprisonment too high such that it led to a sentence that was manifestly excessive? In making that assessment, I remind myself that appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.26 I am required to come to my own view, however, particularly on matters calling for judicial assessment. 27
[29] In McGregor v R, the Court of Appeal observed that “there is no tariff case for fraud-related offending”,28 but the Court endorsed the Varjan criteria canvassed above at [11].29 Applying this framework, Ms Farina’s offending was serious. It was calculated, occurring on 23 occasions over two months initially and, then over three months after Ms Farina’s departure. Even after Ms Farina’s resignation, therefore, the reimbursement system that she had manipulated continued to channel funds to her account. Ms Farina was a relatively well-paid individual, her 14 previous convictions show her propensity for dishonesty-based offending, and this appears to be an
22 Criminal Procedure Act 2011, s 250(2) and (3).
23 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
24 At [33] and [35].
25 Ripia v R [2011] NZCA 101 at [15].
26 Maihi v R [2013] NZCA 69 at [21].
27 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
28 McGregor v R [2015] NZCA 565 at [13].
29 R v Varjan, above n 5, at [22] and [23].
enduring trend for her. The amount involved was not insignificant. While some of the individual transactions were under $200, the total number of fraudulent transactions (and some for several thousand dollars) is a moderately significant sum of $21,034.51. Ms Farina was an employee, charged with accessing Horizon’s financial accounts and reimbursing clients; she was in a position of trust. She breached this trust in a serious way for significant personal gain. I agree with Judge Gibson that Ms Farina’s use of a false name when obtaining work at Horizon betrays her dishonest intentions. Ms Farina’s dishonesty distressed her colleagues and let down her employer.
[30] Deliberate, premeditated theft by calculated means, committed by a person in a position of trust over a period of months, ranks near the upper end of culpability as assessed by the Varjan criteria, notwithstanding the modest sums stolen.
[31] The second stage of the Varjan inquiry is an assessment of the culpability in comparison with other cases. Bearing in mind the cases discussed above, Judge Gibson’s 23-month starting point was stern, notwithstanding that the potential ceiling of imprisonment in Ms Farina’s case is seven years. It is possible to distinguish Hoffman on the basis that Ms Farina’s offending occurred on 19 occasions over two months, unlike the one weekend in Hoffman.30 Whilst the amounts involved are similar, the aggravating factors in Ms Farina’s case were the number of dishonest transactions and the length of time over which the offending occurred, showing the calculated and premeditated nature of her offending, unlike the more opportunistic offending that occurred in Hoffman. Ms Farina’s behavior is more serious than that of the Costello brothers, whose offending attracted starting points of 18 months’ and 12 months’ imprisonment respectively for one charge of obtaining by deception. 31
[32] While the sentence was based on a starting point set at the top of the available range, I am not persuaded that it resulted in a period of home detention that was manifestly excessive.
30 Hoffman v R, above n 18.
31 Costello v R [2015] NZCA 512.
The order for 100 hours’ community work
[33] Judge Gibson reached the sentence of 10 months’ home detention by applying a conventional approach to equating 20 months’ imprisonment (for which release on parole would have been automatic after 10 months’ imprisonment had been served) to 10 months’ home detention. But, without explanation, he added to the sentence a further punitive measure requiring Ms Farina to undertake 100 hours’ community work. I am unable to infer any principled basis upon which the Judge could reasonably increase the sentence in that way.
[34] A combination of sentences including home detention and an order to undertake community work is not inconsistent with the statutory sentencing regime,32 but it would usually be appropriate only where the Court makes an order for home detention of a period shorter than that which might usually be imposed to reflect an otherwise appropriate sentence of imprisonment. In Hoffman, for example, the final sentence of three months’ home detention that had been imposed in the District Court was accompanied by a sentence of 150 hours’ community work because the District Court Judge considered that a shorter term of detention would be appropriate in combination with a sentence that required Mr Hoffman to give something back to the community; he had committed an offence that had a detrimental effect on the student community of Dunedin.33
[35] In this case, if Judge Gibson had determined that some contribution to the community was required as part of Ms Farina’s sentence, he ought to have said so and reduced the period of home detention by a proportionate amount.
[36] For those reasons, I consider that the sentence that Ms Farina should undertake a period of community work cannot stand.34 That will mean there will be no impediment to legitimate attempts by Ms Farina to obtain employment. For that, of course, she would require work release from detention.
32 Sentencing Act 2002, s 19(8) provides that a sentence of home detention may be combined with a sentence of reparation, a fine or community work.
33 R v Hoffman [2016] NZDC 19419.
34 Counsel made enquiries following the hearing and confirmed that Ms Farina has not yet started the community work sentence.
The reparation order
[37] Ms Farina’s second ground of appeal is that the reparation order in concert with the sentence renders the sentence overall manifestly excessive. Pursuant to ss 12 and 32 of the Sentencing Act, Judge Gibson was required to make an order for reparation. The Sentencing Act provides that the Court “must” impose an order of reparation unless the order “would result in undue hardship for the offender or the dependants of the offender” (or any other special circumstances would render such an order inappropriate).35 There was no evidence before the District Court to indicate that hardship. I also note Ms Farina’s pre-sentence report which recorded that she was willing to pay reparation in full. Notwithstanding the submission that the sentence of home detention prevents Ms Farina from working (and making periodic reparation payments), that is a natural consequence of her offending. As I have said, she is entitled to apply for work release if that is appropriate in the circumstances. The imposition of the reparation order by Judge Gibson in concert with the sentence imposed was entirely orthodox.
Result
[38] The appeal is allowed in part. I quash the order for 100 hours’ community work, but the sentence of 10 months’ home detention and the order for payment of reparation remain undisturbed.
Toogood J
35 Sentencing Act 2002, s 12(1).
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