Haereroa v R - [2020] NZCA 169

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA170/2019
[2020] NZCA 169

BETWEEN	MELISSA MARY HAEREROA Appellant
AND	THE QUEEN Respondent

Hearing:	21 April 2020
Court:	French, Dobson and Nation JJ
Counsel:	M Starling and N R Wham for Appellant M G McClenaghan and B Hawes for Respondent
Judgment:	19 May 2020 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

In August 2018, the appellant (Ms Haereroa) was sentenced in the District Court at Christchurch to four and a half years’ imprisonment on convictions relating to four distinct sets of offending, predominately involving dishonesty and theft.[1]
[1]R v Haereroa [2018] NZDC 17387 [Sentencing Notes].
Ms Haereroa appealed that sentence to the High Court on the basis that it was manifestly excessive. On 1 March 2019, Gendall J accepted that the starting point for the first group of charges, which was set at two and a half years’ imprisonment, was up to 18 months higher than appropriate. However, after reviewing all of the offending and other circumstances, Gendall J held that the end sentence was not manifestly excessive and the first appeal was accordingly dismissed.[2]
[2]Haereroa v Police [2019] NZHC 318 [High Court appeal].
Ms Haereroa sought leave to bring a second appeal against the sentence. The application for leave was considered separately, and on 30 August 2019 leave was granted to bring a second appeal against her sentence pursuant to s 253(3)(b) of the Criminal Procedure Act 2011.[3]
[3]Haereroa v Police [2019] NZCA 400.
At the outset of the hearing, Mr Starling advised on behalf of Ms Haereroa that she had been released on parole the previous day. However, she still wished the appeal to be pursued, given the potential impact of any reduction in sentence on the duration of the period she would be required to be on parole. Ms Haereroa’s status as a parolee is not relevant to the issues in the appeal as to whether the end sentence imposed was manifestly excessive, and the Court heard oral argument from counsel on that basis.

The offending

The first set of offending resulted in three convictions for obtaining or causing loss by deception (the fraud offending). This related to Ms Haereroa’s part in a scheme to defraud elderly victims in December 2016. It involved money being transferred out of the accounts of trusting victims into the account of a “mule”, from which it was either directly or indirectly removed, in material part by cash withdrawals from the mule’s account, or by a second or third mule in the sequence.
Ms Haereroa was not alleged to have had anything to do with the design of this scheme, nor did the prosecution contend that she retained any of the proceeds. Rather, she facilitated cash withdrawals by others from various ATMs in the Christchurch area.
The second set of offending involved breaches of the terms of previous sentences of community…

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 Haereroa v R

Details

AGLC: Haereroa v R [2020] NZCA 169
Case: [2020] NZCA 169
Decision Date: 19 May 2020 at 10 am

CaseChat Overview and Summary

Melissa Mary Haereroa was sentenced in the Christchurch District Court to four and a half years' imprisonment, with parole eligibility after two and a half years. She was convicted on charges relating to four distinct sets of offending, involving dishonesty, theft, and breaches of community work sentences. Haereroa appealed the sentence, arguing it was manifestly excessive. The appeal was dismissed by Gendall J in the High Court, who found the sentence was not manifestly excessive. Haereroa sought leave to bring a second appeal, which was granted. The appeal was heard by the Court of Appeal, where Haereroa's counsel argued that the starting point for the fraud offending was too high, and that a reduction in the end sentence was necessary. The Crown opposed the appeal, arguing that the end sentence was within the appropriate range. The Court of Appeal found that the starting point for the fraud offending was indeed too high, but that a reduction of 18 months was too great. The Court considered a starting point of 16 months for the fraud offending to be appropriate. The Court found that there was no error in the other components of the sentencing Judge's starting points, or in treating the sentences for the different sets of offending cumulatively. The Court found that the end sentence of four years and six months' imprisonment was not manifestly excessive and dismissed the appeal.

The Court of Appeal's decision highlights the importance of accurately determining the starting point for sentencing and the need to consider the totality principle in assessing the proportionality of a sentence. The Court found that although the starting point for the fraud offending was too high, a reduction of 18 months was too great a reduction. The Court found that a starting point of 16 months for the fraud offending was appropriate, but that the end sentence of four years and six months' imprisonment was not manifestly excessive. The Court found that the sentence was within the appropriate range, and dismissed the appeal. The Court's decision demonstrates the importance of a balanced approach to sentencing, taking into account both the seriousness of the offending and the need for proportionality in the sentence imposed.

Orders