Fomai v Police

[2014] NZHC 377

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-38 [2014] NZHC 377

BETWEEN  ATAMAMAO FOMAI Appellant

ANDNEW ZEALAND POLICE Appellant

Hearing:                   4 March 2014

Appearances:           A Ives for the Appellant

A Boberg for the Respondent

Judgment:                4 March 2014

Reasons:                  6 March 2014

REASONS FOR JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 6 March 2014 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Ms A Ives, Barrister, Auckland

Ms A Boberg, Meredith Connell, Office of the Crown Solicitor, Auckland

FOMAI v POLICE [2014] NZHC 377 [6 March 2014]

[1]      Mrs Fomai appealed against a sentence of 18 months imprisonment for three offences of accessing a computer system for a dishonest purpose and three of forgery with intent to obtain a pecuniary advantage.1   Shortly after the hearing I allowed the appeal  with  the  reasons  to  follow.2      The  appeal  was  allowed  by  quashing  the sentence of imprisonment, substituting a sentence of home detention for 10 months,

with special conditions, and ordering Mrs Fomai to pay reparation of $6,924. [2]     I now provide the reasons for that decision.

The offences

[3]      The six offences occurred between 3 November 2008 and 27 May 2010.  The offences can be considered in three groups related to periods of time.

(a)      Between  10  October  2008  and  20  March  2009  Mrs  Fomai  was employed by Viking Roofspec Ltd in the accounts payable section. On 3 November 2008, through the computer system, she entered a fictitious invoice for payment in a sum of $1,840, with the payment

going to a bank account held by her father.3   The second offence was

on 1 January 2009 when Mrs Fomai used the computer system to change details on three genuine invoices resulting in payment to a bank account in her name of a total of $4,611.

(b)      Mrs Fomai was again employed by Viking Roofspec Ltd between 30

April and 18 May 2010.  There were three charges of forging invoices over this period, with one of the charges relating to three separate invoices.   There was a payment of $4,387 into an account in Mrs Fomai’s name and a payment of $2,985 into an account in her husband’s name. The three forgeries dealt with in one charge were for sums totalling $13,200.   These were detected before payment was

transferred to Mrs Fomai.

1      Police v Fomai DC Manukau CRI-2013-092-010272, 11 February 2014.

2      Fomai v Police [2013] NZHC 367.

3      Round figures are used throughout this judgment for the sums involved.

(c)      Between 12 May and 2 June 2010 Mrs Fomai was working in the accounts payable department of Renaissance Ltd.  On 27 May 2010 she used a computer to alter particulars on two invoices, resulting in payment into a bank account in her name of a total of $7,979.

[4]      The total of the sums involved is just under $35,000.  Of this, $21,798 was transferred to bank accounts of Mrs Fomai or family members.  In June 2010 Mrs Fomai was spoken to by private investigators.  This resulted in a repayment by Mrs Fomai to Viking Roofspec Ltd of $6,900, relating to the two forgeries in the second group of offences where payment had gone through, and a repayment of $7,974 to Renaissance Ltd.  No further reparation was sought in respect of the offence against Renaissance Ltd.   The reparation sought in respect of the offences against Viking

Roofspec Ltd was $6,924.4

Previous offences

[5]      Mrs Fomai has three previous convictions for offences of dishonesty: (a)      On 14 December 1998 she was fined $350 for theft as a servant.

(b)In August 2006 she was sentenced to 75 hours community work and ordered to pay reparation of $2,886 for obtaining by deception in May

2006.

(c)      On  9 April  2008  Mrs  Fomai  was  sentenced  to  six  months  home detention and order to pay reparation of $57,192 for offences of accessing a computer for a dishonest purpose.   There were 18 transactions involving a total of $67,182.   Although the sentencing was  in April  2008,  the  offences  had  been  committed  between  15

August and 21 November 2005.

4      There is a minor difference in the figures relating to the payments to Mrs Fomai and the amount she  repaid.  Nothing turns  on  this.     The  precise  reparation sought  for  Roofspec Ltd  was

$6,923.92.

[6]      The sentence of six months home detention expired on 9 October 2008; that was a day before Mrs Fomai began employment with Viking Roofspec Ltd and less than a month before she committed the first offence against that company.

Personal circumstances

[7]      Mrs Fomai is aged 33.   She is married.  Mrs Fomai and her husband have three children, aged 5 years 9 months, 3 years 8 months and just under 1 year.  The eldest child is at school from 9:00 am to 3:00 pm.  The second child is in a private day care centre between 7:30 am to 4:00 pm five days a week, which is the period when Mr Fomai is at work.  The youngest child was recently put in his mother’s care at Auckland Women’s Prison.

[8]      Before the sentence was imposed Mrs Fomai was employed as a receptionist in a position she had apparently had for some six months.  Particulars of employment before that were not provided in the pre-sentence report.  The present charges were not laid until 4 October 2013 and Mrs Fomai pleaded guilty on 17 December 2013. There is no record of any offending, or other matters of concern, since the last of the current offences in May 2010.

[9]      Before she went to prison Mrs Fomai was the primary caregiver for the children.   Possible support from the extended family with Mrs Fomai in prison is limited.  Mrs Fomai’s parents live in Tokoroa.  She has a sister in Auckland, but she is in full time employment.  Mr Fomai’s family live in Samoa.

The sentence under appeal

[10]     Mrs Fomai was sentenced by Judge G A Andrée Wiltens.  The Judge briefly outlined the offences.5    He noted the repayments by Mrs Fomai, and recorded that

5      The Judge said the maximum penalty for forgery is 3 years imprisonment and the maximum penalty for accessing a computer system for dishonest purposes is 7 years imprisonment.  The maximum penalty for forgery is 10 years imprisonment.  However, the charging document for each of these charges recorded the maximum penalty as 3 years imprisonment and the charges recorded in this way are the ones Mrs Fomai pleaded guilty to.  Mrs Fomai would be entitled to the benefit of this error in the charging document and it is clear that she got it.

there was almost $7,000 still outstanding.6   The Judge said that he took into account the guilty pleas entered at “a relatively early stage”.  He then said:

[5]       I take into account also that you are 33, that you have a husband who is working, unable to be here today, although he has written a letter in your support,  a  sister  who  is gainfully employed  and  also  supportive  of  you according to her letter, but I cannot ignore the fact that you have previous convictions.

[11]     The Judge outlined the two previous convictions of significance, as recorded earlier in this judgment: obtaining by deception in 2006 and accessing a computer for a dishonest purpose in 2005.

[12]    The Judge referred to observations in the pre-sentence report, which he described as “not a good report”, and referred to the fact that the probation officer was of the opinion that the appropriate sentence was a term of imprisonment. Reference was also made to the report writer’s opinion that Mrs Fomai had not understood the reasons for her offending or the consequences of it.

[13]     The Judge then turned to the heart of his reasons for imposing a sentence of

18 months imprisonment. As his observations are reasonably brief, and because they are central to the reasons why the appeal was allowed, it is convenient to set them out in full:

[8]       This is dishonesty in a position of trust and it is not simply one instance, but two separate incidences [sic] in terms of the employers, and it has occurred over a period of time.   Significant amounts of money are involved.

[9]       The starting point has to be in the order of two to two and a half years’ imprisonment.  Ms Ives has suggested to me that I should look beyond the pre-sentence report and sentence you to a community-based sentence because of your support within the community, because of your family commitments,  because  of  the  fact  that  there  is  some  delay  in  the investigation of this matter before the matter was brought to Court and because of your pleas.  Lastly, she points to the possibility of continuing to pay reparation.  As I have said, there is some $7000 still outstanding in that regard.

6      The Judge referred to receipts by Mrs Fomai of approximately $35,000 and a repayment of about $28,000, leaving the difference of $7,000.  The shortfall is just under $7,000 and the total sum involved is $35,000.  $35,000 is the most relevant sum in relation to the level of offending. However, as earlier recorded, the amount received by Mrs Fomai, or into bank accounts of other family members, was $21,790 not $35,000, and the repayments by Mrs Fomai totalled $14,874.

[10]      Unfortunately, I cannot accede to that request.   This is blatant re- offending [of] exactly the same nature as has occurred previously.   The explanation  that  you  provided  for  these  offences  were  that  you  were pregnant or had just given birth recently and that you had money problems. So, these are all examples of greed by you.

[11]      I accept that you have paid back a significant amount of reparation. I accept that these pleas were all entered at an early stage and I can give you credit for those two factors, but I am not at all satisfied that anything less than imprisonment is appropriate here.  That is because I need to hold you accountable for your conduct.  I need to make you realise that you cannot act in this fashion and I need to have regard to the two companies involved from whom you have taken this money, who have had the lack of that money for a number of years now and would still be expecting reparation to come their way of a significant amount after this time period has elapsed.

[12]      I also need to have in mind deterrence.  Theft as a servant is a crime that is frowned upon by the Courts for the very good reason that employers should be entitled to trust their employees and any undermining of that situation  is  an  aggravating  factor  in  terms  of  the  criminal  culpability involved.

[13]     The least restrictive outcome that is available in the circumstances here is a term of imprisonment.  I agree with the report-writer that that is the least restrictive available, appropriate outcome.   Community detention, community work are simply insufficient to meet the needs of the situation and to deal with the criminal culpability involved.

[14]     As  I  say,  the  starting  point  is  between  30  and  24  months’ imprisonment.   The end point that I impose is a term of 18 months’ imprisonment. I am imposing that on all these charges concurrently.

Submissions on appeal

[14]     Two primary grounds were advanced by Ms Ives for Mrs Fomai: the sentence imposed was manifestly excessive and the Judge was in error in declining to impose a sentence of home detention, “or any lesser combination of sentences”.   The submissions on the first ground were supported by reference to a number of cases.7   I will address Ms Ives’ submissions in relation to home detention in my discussion of that issue.

[15]     For the respondent Ms Boberg submitted that the sentence imposed by the

Judge was within range and that the Judge had carefully identified and brought into

7      R v Varjan CA97/03, 1 July 2013; Savage v Police HC Whangarei CRI-2008-488-1, 14 February

2008; R v Isofea [2008] NZCA 453; R v Phipps HC Christchurch CRI-2006-009-7912, 30
August 2007; Prewett v Police HC New Plymouth CRI-2007-443-6, 13 June 2007.

account relevant aggravating factors outlined by the Court of Appeal in R v Varjan.8

She submitted that undue emphasis had been placed by Ms Ives on the amount involved in Mrs Fomai’s offences, that there were other aggravating factors of reasonable significance, as had been identified by the Judge, and the total amount involved was not insignificant in any event.  Ms Boberg acknowledged that what the Judge described as the “starting point” of 2 to 2 ½ years obviously involved an uplift for the previous offending and that, in effect, that uplifted starting point was within range having regard to the aggravating features of the current offences, the nature of the previous  offences,  and  the timing of the current  offences  in  relation  to  the previous sentence.  On the question of home detention Ms Boberg submitted that the Judge had properly directed himself and turned his mind to the need to impose the least restrictive outcome that was available.   She also submitted that a sentencing Judge does not fall into error by failing to recite each factor under s 8 and referred to

a decision of this Court in McCullough.9    Ms Boberg submitted that the Judge had

turned his mind to home detention and then submitted that he had specifically turned his mind to considerations of accountability, general deterrence and specific deterrence.

Discussion

[16]     Because I am satisfied that the Judge was in error in his approach to the appropriate sentence, and that the proper sentence in all the circumstances of this case is home detention, it is unnecessary and inappropriate to consider the question whether a sentence of imprisonment of 18 months was manifestly excessive.  This is for two reasons.  The current sentence is one of 18 months and in terms of s 15A of the Sentencing Act a sentence of home detention can be imposed. And a sentence of home detention of 10 months does not depend on an alternative prison sentence of less than 18 months.

[17]     The Judge did not refer to the possibility of home detention at all.   He referred only to the submission that had been made to him that there should be a

8      R v Varjan, above n 7, at [22].

9      McCullough v Police [2013] NZHC 279 at [31].

community-based sentence.10    This was not a reference to a sentence of home detention.11

[18]     On  this  point,  as  on  other  relevant  points,  I  acknowledge  that  a  Judge sentencing in the District Court, and possibly in a busy list Court, cannot be expected to articulate every point that may be relevant.   However, giving that consideration proper weight, I do not consider it is possible to infer that the Judge gave consideration to home detention.   A sentencing Judge is bound to consider home detention, if it is technically available in terms of s 15A of the Sentencing Act, notwithstanding that there is no submission for a defendant that home detention should be imposed.   For this reason the question of home detention needs to be assessed by this Court.   It is not an assessment on appeal of the exercise of a discretion by the sentencing Judge, but an original exercise of discretion by this Court.

[19]     If a sentencing Judge has considered home detention and refused to grant it in exercise of the discretion, the approach on appeal is as outlined by the Court of Appeal in James v R as follows:12

[17]     We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and  denunciation, but to a  degree. We are satisfied,  in accordance  with earlier  authority  in  this  Court,  that  the  decision  about  whether  home detention  will  meet  those  objectives  in  a  particular  case  is  a  strictly evaluative exercise.13  It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

10     In the sentencing notes at [9]-[10] and [13] recorded above.

11     A  community-based  sentence  is  defined  in  s 44  of  the  Sentencing Act  as  a  sentence  of

community work, supervision, intensive supervision, or community detention.   Ms Ives’ submission to the Judge was that the appropriate sentence would be “community detention and/or community work together with, if considered appropriate, supervision”.

12     James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17]. Applied by the Court of Appeal in Manikpersadh v R [2011] NZCA 452 at [11] and Tiplady-Koroheke v R [2012] NZCA 477.

13     R v D [2008] NZCA 254 at [66].

[20]     If  this  appeal  is  approached  on  the  basis  that  there  was  exercise  of  the discretion in respect of home detention, I remain satisfied that there was error of the sort discussed by the Court of Appeal, for reasons that follow.

[21]     An authoritative statement of the proper approach to the question of home detention, and in particular when the alternative being considered is imprisonment, is that of William Young P in R v Vhavha.14   This was a dissenting judgment, but the statements of principle are of general application and have been followed by the Court of Appeal.15  The President said:

[29]     Eligibility for home detention depends upon the sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A of the Sentencing Act 2002. In effect, the Court is given a discretion to commute to home detention what would otherwise be a short- term sentence of imprisonment. There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.

(emphasis added)16

…

[45]      So, coming back to this case again, I do not see the requirements of holding the appellant to account, denunciation or deterrence as logically controlling the decision whether to commute the otherwise appropriate sentence  of  imprisonment  to  home  detention.  That  being  so,  and  the appellant being in all respects a good candidate for home detention, I see the least restrictive outcome principle (see s 8(g)) as the primary consideration, with the result that I would allow the appeal and sentence the appellant to nine months home detention.

[22]     The Judge referred to ss 7 and 8 of the Sentencing Act.  It is to be noted that s 7 of the Sentencing Act sets out purposes “for which a court may sentence or otherwise deal with an offender” (emphasis added).   These will have variable significance from case to case.  The same applies to s 9, dealing with aggravating

and  mitigating  factors.17      However,  and  as  the  Court  of Appeal  emphasised  in

14     R v Vhavha [2009] NZCA 588.

15     See, for example: Osman v R [2010] NZCA 199 and Manikpersadh v R, above n 12, at [10].

16     The same emphasis was given to this sentence by the Court of Appeal in Manikpersadh v R, above n 12, at [10].

17     See R v Hessell [2010] NZSC 135 at [37], [2011] 1 NZLR 607, (2010) 24 CRNZ 966.

Manikpersadh, s 7 purposes include assistance to an offender’s rehabilitation and

reintegration as well as such matters as deterrence, denunciation and accountability.18

[23]     The principles of sentencing specified in s 8 are ones that the Court must take into account.  Of particular significance in this case are the statutory directions that the Court:

(g)       must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and

(h)       must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that  would  otherwise  be  appropriate  would,  in  the  particular instance, be disproportionately severe; and

(i)      must take into account the offender's personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose;

[24]     Statements of principle by the Court of Appeal in R v Isofea are relevant.19

The Court said:

[35]      Home   detention   provides   a   sentencing   Court   with   a   further sentencing option, which is particularly relevant in light of s 16(1) of the Sentencing Act which requires the Court to have regard to the desirability of keeping  offenders  in  the  community  as  far  as  that  is  practicable  and consonant with the safety of the community; and of s 16(2) which provides that the Court must not impose a sentence of imprisonment unless it is being imposed for the purposes in s 7 and those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the principles of sentencing in s 8.

[36]     As this Court observed in R v D [2008] NZCA 254 at [34], the changes in the 2007 amendment were made “… in an unashamed endeavour to reduce the prison muster”. The Court referred at [35] to a passage from the Explanatory Note to the Criminal Justice Reform Bill, no. 93/1:

The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years … The Bill, which includes some measures that will have an immediate effect and others that will take longer for their impact to be felt, is intended to contribute to a reduction in the imprisonment rate over time.

18     Manikpersadh v R, above n 12, at [15].

19     R v Isofea, above n 7.

[37]     At [36] of the judgment in R v D the Court contrasted the former regime  where  the  role  of  the  sentencing  Judge  was  as  “a  gatekeeper”, deciding whether in the circumstances of the particular case, leave to apply for home detention should be given, with the new regime which adds home detention to the sentencing options available to a sentencing Judge.

[38]      At [60] the Court referred to the judgment in R v Hill [2008] 2

NZLR  381  where  the  Court  said  that  creation  of  a  sentence  of  home

detention “reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment”, and observed:

In other words, home detention should be treated as a real alternative to imprisonment.

[25]     Also relevant are observations of the Court of Appeal in R v Rawiri.20   In that case the Solicitor-General applied for leave to appeal against a community-based sentence imposed for offences against s 12A of the Misuse of Drugs Act 1975 of possessing precursor substances, material and equipment.  Although the offences are quite different from Mrs Fomai’s offences the Court’s observations are relevant on matters of principle.  This is particularly so as the broad sentencing options under consideration were community-based sentences and prison. The Court said:

[18]      As Mr Down [counsel for one of the respondent offenders] observes, this  Court  has  recognised  that  a  sentence  of  community  service  has  a punitive aspect. It is intended by Parliament to be and is a very real and effective alternative to imprisonment which should not be regarded by the public as a minor or insignificant reaction.21 A sentence of community work is designed to achieve the principles of accountability, deterrence and denunciation traditionally associated with imprisonment while avoiding the default option inherent in that sentence – which Ms Ball [counsel for the Crown]  says should apply here  – and promoting a sense of community participation and awareness. The statutory hierarchy of sentencing options is a blunt affirmation that prison is a measure of last resort.

(emphasis added) [19] Parliament had already identified the sentencing purpose of assisting

in an offender’s rehabilitation and reintegration;22 and the principle – expressed as an obligation – of imposing the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentencing

imposed after 1 October 2007.23 Also:

(a)       When considering the imposition of a sentence of imprisonment for any particular offence, the Court must have regard to the desirability

20     R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254.

21     R v Burton [1982] 1 NZLR 602 (CA); R v Minto [1982] 1 NZLR 606 (CA).

22     Sentencing Act 2002, s 7(h).

23     Sentencing Act 2002, s 8(g).

of keeping an offender in the community as far as that is practicable

and consonant with the community’s safety.24

(b)       It is often overlooked that a Court cannot impose a sentence of imprisonment unless it is satisfied that the sentence is being imposed for a statutory purpose or purposes; that those purposes cannot be achieved by a sentence other than imprisonment; and that no other sentence would be consistent with the statutory principles as applied to  the  particular  case.25   That  obligation  is  subject  only  to  any statutory presumption in favour of a sentence of imprisonment for the offence or requirement to impose a sentence of imprisonment.

[26]     One further point of principle that may be drawn from these authoritative statements is that the fact that the person being sentenced has already served a sentence of home detention for similar offending, does not of itself justify a sentence of imprisonment, let alone give rise to a requirement of imprisonment.

[27]     I have had regard to other cases on home detention cited by counsel.26   One of these cases, Savage v Police, is also relevant in relation to a prominent matter of fact in this case – Mrs Fomai’s personal family circumstances and, in particular, the impact of this sentence on her children.  Rodney Hansen J said:

[22]      However, in my view, the personal and family circumstances of Mrs Savage involved a further consideration which the Judge appears not to have given weight to. That is the implications of sentence for her family. Although the family of an offender will often be the innocent victims of the offending and that must be accepted as “a sad but inevitable consequence” (see R v Prescott (CA360/00 1 November 2000)), it is established that the effect of sentence on children, in particular, may mitigate sentence. As the Full Court said in Hogan v Ministry of Social Development HC NAP CRI 2005-441-24

8 July 2005 at [40] subpara 9, the effect on children may mitigate against the length of a custodial term or, by granting leave to apply for home detention,

ameliorate against the severity of short terms of imprisonment.

[28]     Against this survey of relevant principles, I come to the specific reasons why I concluded that home detention of 10 months, with special conditions, and an order for reparation, is the proper sentence in this case.

[29]     I agree with the Judge’s effective conclusion that this is a case in which

accountability  and  general  and  personal  deterrence  are  purposes  of  sentencing

24     Sentencing Act 2002, s 16(1).

25     Sentencing Act 2002, s 16(1).

26     Byrne v R [2014] NZCA32; Fitzgerald v Police [2013] NZHC 2527; Savage v Police, above n 7;

Prewett v Police, above n 7.

requiring some emphasis.   This arises from the relative gravity of Mrs Fomai’s current offending, coupled with the relative gravity of the earlier offending and the resumption of similar offending soon after the home detention sentence ended.   If there had been no other circumstances of consequence, either in relation to the offending or the offender, and given that there had been an earlier sentence of home detention, a sentence of imprisonment imposed by the Judge, if he had properly weighed home detention as an alternative, would probably not have been open to review on appeal.   But there are other circumstances of significance.   Some the Judge did not consider at all.  Others were noted only in passing and in part.  The Judge focussed only on accountability and deterrence.   This approach was in fact

identified in Ms Boberg’s submissions for the respondent.27

[30]     The other circumstances of significance are the following:

(a)      Mrs Fomai has three young children.  All of them need her.  This is given emphasis by the fact that the Department of Corrections has accepted that the youngest child should now be with her in prison. This is not a situation that should be tolerated by a civilised society unless there is no possible alternative having regard to all relevant competing  interests  of  society.    The  obvious  alternative,  and  one which is consistent with the relevant purposes and principles of sentencing, is home detention for Mrs Fomai.

(b)These offences ended in May 2010.  There has been no evidence of any inappropriate conduct by Mrs Fomai, let alone further offending by her, in the intervening 3 ½ years.  It is apparent that she has been in employment for at least part of that period, and perhaps most of it.

(c)      There are indications in letters from Mrs Fomai’s husband and her sister that the offending may have been influenced, at least to an extent, by pressure from others, or other adverse circumstances, in the

accommodation in which Mrs Fomai and her husband and eldest child

27     Another case with undue focus of this nature, earlier noted, is Manikpersadh v R, above n 12.

Compare the sentencing Judge’s observations in that case, recorded at [5], where there is in fact
mention of home detention, and the Court of Appeal’s observations at [17]-[18].

were living when these offences occurred.   Both Mr Fomai and the sister indicate that the move by the family to their present address has been beneficial.

(d)It appears that no rehabilitation assistance was provided to Mrs Fomai during the earlier sentence of home detention.  This was noted in the pre-sentence report.   The probation officer said that the sentence completion report indicated that Mrs Fomai did not meet the threshold required for the Department of Corrections Medium Intensity Rehabilitation Program which had been a special condition of the earlier sentence.  The probation officer said that this implied that Mrs Fomai did not receive any intervention in relation to her identified offending behaviour.

(e)      The Judge did take account of the repayments that had been made by Mrs Fomai in June 2010, but considered that an aggravating factor was that the two companies involved had suffered because of the delay in repayment of the balance.   There was in fact only one company still owed money and there is no indication that anybody sought repayment of the balance owed to this company until these proceedings were issued some 3 ½ years after the offences were discovered.  In any event, the fact that all of the money sought to be repaid at the time was repaid within a month or so of the offending being discovered warrants a reasonable amount of credit as a mitigating factor.   In addition, a substantial part of the reparation ordered to be paid for the offences in 2005 has been paid.

(f)       Mrs  Fomai  applied  for  bail  pending  determination  of  this  appeal.

That application was declined by the Judge and his decision was not appealed.  As a result Mrs Fomai had been in prison for three weeks when the appeal was allowed.  It appears from Mrs Fomai’s affidavit in support of her application for bail, made after she had been in prison for approximately 36 hours, that even that short period had had a salutary effect on her.   I expect that the three weeks she has now

spent in prison, and the real, as opposed to imagined, consequences of this for her children, will have gone a considerable way to meet the purposes of accountability and deterrence.  To the extent that more is required, I am satisfied that the remaining requirements of a punitive nature are fully met by the substituted sentence I have imposed.

(g)The Judge did not order reparation.  He did not indicate why, although it is a required consideration under the Sentencing Act.28     The substituted sentence includes an order for reparation.  This, therefore, meets the purpose of sentencing specified in s 7(1)(c) of providing for the  interests  of  the  victim  of  the  offence.    A  sentence  of  home detention  will  enable  Mrs  Fomai  to  undertake  employment  if approved by the probation officer.29   And Mrs Fomai’s availability to care for her younger children during the day will reduce the financial burden on the family as a whole with the second child presently in private day care all day.

[31]     It is for all of these reasons that the appeal was allowed and the alternative sentence was imposed. This is as follows:

(a)      The sentence of 18 months imprisonment for each of the offences is quashed.

(b)For each of the offences there is a sentence of home detention for 10 months, being concurrent sentences.

(c)      The following special home detention conditions apply pursuant to s 80D of the Sentencing Act 2002:

The appellant is to live at [the address specified in the formal order] and is not to move to any new residential address without

the prior written approval of a probation officer.

28     Sentencing Act 2002, ss 12 and 32. And see s 7(1)(d).

29     This will also require variation of the current orders for reparation.

The appellant is to undertake and complete a budgeting program as may be directed by, and to the satisfaction of, the supervising

probation officer.

The appellant is to be assessed and, if found suitable, to undertake and  complete  to  the  satisfaction  of  the  supervising  probation officer a Department of Corrections Medium Intensity Rehabilitation Program or, if such is not available, such other rehabilitative  program  as  may  be  directed  by,   and  to  the

satisfaction of, the supervising probation officer.

The  standard  post-detention  conditions  under  s 80O  of  the Sentencing Act 2002 shall apply for six months other than the condition prescribed by s 80O(f), relating to employment, which

condition shall apply for 12 months.

(d)There is an order that the appellant pay reparation of $6,924, to be paid at $100 per week with payments to commence upon completion

of payments of reparation ordered on 9 April 2008.

Woodhouse J