Heikell v Police HC Christchurch CRI 2010-409-139

[2010] NZHC 1490

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000139
CRI-2010-409-000140

CRI-2010-409-000141

UNA HEIKELL

Appellant

v

POLICE

Respondent

Hearing:         19 August 2010

Appearances: C E Bibbey for Appellant

A R MacGougan for Respondent

Judgment:      19 August 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against sentence.

[2]      Following pleas of guilty, the appellant appeared for sentence in the District

Court on the following charges:

i)ten   charges   of   using   a   document   to   obtain   pecuniary advantage;

HEIKELL V POLICE HC CHCH CRI-2010-409-000139  19 August 2010

ii)       one charge of theft under $500;

iii)      two charges of theft under $1000;

iv)      one charge of breach of supervision.

[3]      The appellant also appeared for re-sentencing in relation to earlier charges, namely two charges of dishonestly using a document, one of unlawfully taking a motor vehicle and one of obtaining by deception.

[4]      She was sentenced to a total effective term of imprisonment of two years and three months.

The facts of the offending

[5]      In October 2008 the appellant checked into a Hamilton motel under a false name.  She stayed there for five days without paying.  While in residence she took the owner’s car, stole his chequebook and cashed a cheque from the chequebook. She was sentenced in May 2009 in respect of those matters to 200 hours’ community work and 12 months’ intensive supervision.   She completed the sentence of community work and was making progress in addressing her gambling problem when the offending resumed in or about October 2009.  She failed to complete the supervision sentence, and appears to have embarked instead on an itinerant lifestyle and a series of crimes.

[6]      The  general  pattern  of  offending  was  that  the  appellant  would  befriend someone and, having obtained their confidence, would then steal cash as well as credit cards and cheques.  She would then use the credit cards and cheques to obtain money, goods and services for herself without permission.

[7]      There were seven victims in all, two of whom were elderly.   Three were overseas visitors and one was a former work colleague who tried to help her.   In some cases the appellant took advantage of her victim’s infirmity, and in all but one she breached their trust.  The one exception relates to use of a credit card stolen by

someone else from a handbag belonging to an overseas visitor who was not known to the appellant.

[8]      As the Judge noted, the victim impact reports speak of the victims’ hurt and anguish and the significant effect of the offending on them.

[9]      The two thefts of cash amount to approximately $1300.  The goods, services and money obtained from using the credit cards and chequebooks total $11,428.66.

[10]     The information before the sentencing Judge also included a pre-sentence report.  It told the Judge the appellant was 53 years of age with some 46 previous convictions for dishonesty between 2005 and 2008.   The report said the appellant presented as very remorseful, showing good insight into her offending and highly motivated to address it.

The sentence in the District Court

[11]     In sentencing the appellant, the Judge dealt first with the 2009/2010 charges of using a document for pecuniary advantage.

[12]     The Judge took as his starting point a term of imprisonment of two and a half years, having regard to the number of dishonest actions, the effect on the victims and the amount of money involved.  He then uplifted the starting point by a further nine months  on  account  of  what  he  describes  as  “a  number  of  serious  aggravating factors”: past offending, the fact the offending in 2009 and 2010 occurred while the appellant was subject to a sentence for similar offending, abuse of trust and the vulnerability of the victims.

[13]     Having arrived at a sentence of three years, three months, the Judge then turned to mitigating factors, saying:

[14]     In terms of mitigating factors, you have entered immediate guilty pleas in relation to all of this offending and I give you a full one-third reduction in sentence on account of those pleas.

[15]      You have also expressed remorse and made an offer to make amends but I feel I can only give those limited effect.  Your expression of remorse I

expect will be of little comfort to the victims whose trust has been betrayed and, as to your offer to make amends, you have no financial ability to make reparation at present.  I have considered whether it is even appropriate for me in terms of the statutory principles to make an order for reparation but I have decided that it is just possible for me to do so because I accept there is a reasonable prospect that upon your release you will be able to obtain work.  I note also that you have made payments in reduction of past sentences of reparation.   While that may possibly go some way towards financial recompense of your victims, it is impossible for you to make amends for the emotional harm that you have caused them.

[14]     The Judge reduced the sentence by 12 months on account of the mitigating factors, arriving at a sentence of two years, three months in respect of the 2009/2010 charges for obtaining a pecuniary advantage.

[15]     On the other charges he imposed concurrent terms of imprisonment on the following basis:

On the two charges of theft in excess of $500 ...... six months’ imprisonment On the theft charge under $500 .............................. two months’ imprisonment Charge of breach of intensive supervision ............. three months’ imprisonment

[16]     As regards the charges in respect of which the appellant appeared for re- sentencing, the Judge said he took account of the fact that the appellant had successfully completed a sentence of community work.   He imposed concurrent terms of imprisonment of one year on the charge of dishonestly using a document, one year on the charge of taking the motor vehicle, and three months on the charge of obtaining accommodation by deception, saying that these terms were somewhat less than half of the sentences that might have been imposed otherwise.

[17]     The Judge concluded:

[21]      In respect of all the sentences which are less than two years, leave to apply for substitution of sentence is denied and in respect of the sentences in excess of two years, there will be special release conditions until six months after the sentence expiry date as per the pre-sentence report.

[22]      In respect of all matters there will be an order for reparation as per the schedule provided today by the police.

[18]     I pause here to note that it is common ground that unfortunately the Judge did not have the jurisdiction under s 93 of the Sentencing Act 2002 to impose special release conditions.  It also appears that in giving a 12-month reduction on account of mitigating factors, the Judge has arithmetically not given the appellant the benefit of a full third discount as required by R v Hessell [2010] 2 NZLR 298.

Grounds of appeal

[19]     On  appeal,  no  dispute  is  taken  with  the  Judge’s  identification  of  the mitigating factors and aggravating factors and uplift on account of those.  However, counsel Ms Bibbey submits that the sentence was manifestly excessive because the starting point was too high and insufficient discount was allowed for the guilty plea and the offer to make amends.

[20]     In support of those submissions Ms Bibbey has referred me to the Court of Appeal decision of R v Singh CA336/02, 13 March 2003.   She contends that following Singh and the authorities discussed in Singh an appropriate starting point was in the vicinity of 19 months, with an uplift of nine months for the aggravating features, less one month for the offer of amends, together with a full third discount on account of the guilty plea.   Adopting that methodology would result in an end sentence of 18 months’ imprisonment.

Discussion

[21]     In addition to Singh and the authorities discussed in Singh, I have had regard to the following decisions: Te Au v Police HC Nelson CRI-2007-442-000019, 10

December 2007, Wild J; Keenan v Police HC Christchurch CRI-2007-409-000097, 5

June  2007,  Fogarty  J;  Barakat  v  Police  HC  Palmerston  North  CRI-2008-454-

000035,  14  August  2008,  MacKenzie  J;  Pentecost  v  Police  HC  Christchurch

A127/01, 8 February 2002, William Young J.

[22]     In  another  decision,  R  v  Varjan  CA97/03,  26  June  2003,  discussing sentencing for this type of offending, the Court of Appeal said:

[22]     Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

[23]     My review of the authorities suggests that the appropriate starting point in cases involving the use of stolen credit cards where there are relatively modest amounts, only one or two victims, no breach of trust and insignificant impact on victims is a period of 12 months’ imprisonment.  In this case, there are however the significant aggravating features of the number of victims, the breach of trust and the impact on the victims, plus the fact the offending occurred over a relatively long period – October 2009 to April/May 2010.

[24]     In my assessment, the offending in this case is worse than the offending in Singh.  My view is that an appropriate starting point would have been in the vicinity of two years, possibly more.  There would then have been an uplift in the order of nine months on account of the previous convictions and the fact the offending occurred while under sentence of supervision for the same type of offending.

[25]     Adopting that approach would result in a sentence of two years, nine months, from which a deduction in the vicinity of one month would be allowed on account of the offer of amends, followed by a further third discount on account of the guilty plea.  That would mean an end sentence of around 20 months’ imprisonment.

[26]     It follows I accept the submission that if the 2009/2010 dishonesty offending was viewed in isolation, the Judge appears to be out of range.

[27]     However, it is important not to overlook the other offending: namely the breach of the supervision order and the offences for which the appellant was being re-sentenced,  taking  into  account  the  fact  the  appellant  had  completed  the community work.

[28]     Ultimately, for an appellate Court, the focus must be on the appropriateness of the end sentence, and not simply on the way the Judge has arrived at that end sentence.

[29]     Having regard to the other set of offending for which the appellant was sentenced, the issue for me is whether that end sentence of two years, three months appropriately reflected the overall criminality of all the offending and this offender.

[30]     Having given that issue careful consideration, I have decided that it did, and that accordingly the end sentence was not manifestly excessive.

[31]     Appellate intervention is therefore not warranted, and the appeal is dismissed

– save, of course, the imposition of the special release conditions, which must be quashed for want of jurisdiction.

Solicitors:

C E Bibbey, Christchurch

Crown Solicitor’s Office, Christchurch