Houkamau v Police - [2022] NZHC 152

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-164

[2022] NZHC 152

BETWEEN
ANTHEA HOUKAMAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 February 2022

Appearances:

M Jenkins for the Appellant A Maino for the Respondent

Judgment:

14 February 2022

JUDGMENT OF GAULT J

(Appeal against sentence)

This judgment was delivered by me on 14 February 2022 at 11:15 am.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr M Jenkins, Jenkins Law, Rotorua
Ms A Maino, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

HOUKAMAU v POLICE [2022] NZHC 152 [14 February 2022]

[1] Ms Houkamau appeals against her sentence of 11 months’ imprisonment imposed by Judge RLB Spear in the Rotorua District Court on 16 December 2021,1 after she pleaded guilty to one charge of obtaining by deception (over $1,000).2

[2] She appeals on the grounds that the starting point adopted by the Judge was too high, the uplift applied for prior convictions and offending while on sentence was disproportionate, and insufficient discount was given for factors arising out of the cultural report.

The offending

[3] The victim is 82 years old. She suffers from memory loss and is in the early stages of dementia. On the morning of 14 July 2021, she received a phone call from Ms Houkamau. Ms Houkamau told the victim that she owed money and her account would be closed if she did not pay the money by 8:30 am that day. The victim was adamant that she did not owe any money. She states that she hung up and did not share any bank details over the phone.

[4] Between approximately 8:30 am and 8:45 am the same day, Ms Houkamau called Westpac Bank and created an online account in the victim’s name. Using the victim’s identity, she transferred $2,100 from the victim’s bank account to her own First Credit Union account without the victim’s knowledge or permission.

[5] At approximately 10:00 am, Ms Houkamau went to a First Credit Union and withdrew $2,100. The victim realised the money was missing when she received her monthly bank statement.

District Court decision

[6] Judge Spear briefly summarised the facts of the offending. He stated that he was “at a complete loss” to understand how Ms Houkamau could have set up an online account for the victim, suspecting she must have obtained her details, and considered the offending showed “a craftiness … approaching a degree of sophistication”.

1 Police v Houkamau [2021] NZDC 25244.
2 Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty seven years’ imprisonment.

He characterised the offending as involving the audacious targeting of a vulnerable person, although noted that the amount Ms Houkamau transferred to her own account was relatively modest.

[7] The Judge noted that at the time of the offending Ms Houkamau was on intensive supervision, which was imposed for causing loss by deception (over 1,000). So her offending had to be seen in a more serious light, especially considering…

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.

Keep reading for free

Create a free CaseChat account to read Houkamau v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 152
Decision Date: 14 February 2022

CaseChat Overview and Summary

Anthea Houkamau appeals against the 11-month sentence imposed on her by the Rotorua District Court for obtaining by deception over $1,000. She contends that the starting point adopted by the Judge was too high, the uplift applied for prior convictions and offending while on sentence was disproportionate, and insufficient discount was given for factors arising out of the cultural report. The appeal raises issues concerning the appropriate starting point, the uplift for prior convictions, and the discount for personal factors. The court found that the starting point of 12 months' imprisonment was within the appropriate range. While the 32 per cent uplift applied for Ms Houkamau’s prior convictions and offending while on sentence was at the high end, it was not excessive. However, the total discount applied of 35 per cent was too low. Taking into account the cultural report, a 20 per cent discount was appropriate given the combination of Ms Houkamau’s trauma in her upbringing and mental health issues. Overall, having regard to Ms Houkamau’s personal circumstances, the net discount should have been in the region of 20 per cent rather than eight per cent. Thus, the end sentence should be nine and a half months' imprisonment. The appeal is allowed, the sentence is set aside, and a new sentence of nine and a half months’ imprisonment is imposed.

The Hon Justice Gault

Orders