Houkamau v Police
[2022] NZHC 152
•14 February 2022
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 her significant conviction history for dishonesty offending – the Judge counted 33 prior convictions for dishonesty offending, of which 17 were in the fraud category. He acknowledged that she had difficulties, mentioning mental health issues, but commented that this has not deterred her from offending and she must understand the consequences of continuing to do so.
[8] The Judge adopted a starting point of 12 months’ imprisonment. This was uplifted by 10 per cent to recognise that Ms Houkamau had offended while on sentence and discounted by 10 per cent for her mental health difficulties and 25 per cent for her guilty plea. This brought the calculation to nine months, which was uplifted by two months for Ms Houkamau’s previous convictions.
[9] The Judge recorded that Ms Houkamau was 43 years old. She was assessed as being at high risk of reoffending due to her pattern of offending to get money for gambling and to buy methamphetamine and alcohol, which he observed “seems to have complete[ly] dominated [her] life”.
[10] The Judge imposed a sentence of 11 months’ imprisonment. He granted Ms Houkamau leave to apply for a sentence of home detention or community detention and intensive supervision but only if this was to a residential rehabilitation treatment programme.3
Approach on appeal
[11] To succeed on an appeal against sentence, the appellant must satisfy the appeal Court that there has been an error in the imposition of the sentence and that a different
3 At the request of probation, the Judge cancelled the sentences of intensive supervision imposed on Ms Houkamau on 12 March and 12 April 2021.
sentence should be imposed.4 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.5 The appeal Court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.6
Discussion
Starting point
[12] Mr Jenkins, for Ms Houkamau, submits that the starting point of 12 months’ imprisonment was excessive in comparison with case law. He refers to McLaren v Police, in which the defendant unlawfully used the victim’s bank card at various retailers, spending approximately $5,613.24 in fraudulent transactions through 68 separate dealings.7 The District Court adopted a starting point of nine months’ imprisonment which was not disturbed on appeal. Mr Jenkins submits that Ms Houkamau’s offending is less serious than McLaren and accordingly a starting point of around eight months was appropriate.
[13] Ms Maino, for the respondent, submits that the starting point was within range taking into account the aggravating factors of the offending – the victim’s vulnerability; the serious impact of the offending on the victim; the significant level of premeditation, evident in the targeting of a vulnerable person; and the amount of money taken. She refers to Rako v R, in which the defendant befriended a tourist and used her debit card 11 times without her permission while she was asleep, obtaining
$1,800. The Court found that a starting point of 18 months was necessary to recognise his persistent and premeditated offending.8 In Walsh v Police, the defendant used EFTPOS cards from people known to him on numerous occasions to obtain a total of
$2,700; a 12-month starting point was adopted.9 Finally, in Turner v R, the defendant
4 Criminal Procedure Act 2011, s 250(2).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
7 McLaren v Police [2021] NZHC 742.
8 Rako v R [2015] NZCA 463.
9 Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.
and his associate pressured an unwell 72 year old man into providing his bank card and used it to take a total of $5,000.10 The Court considered that a starting point of 18 months’ imprisonment was justified in light of the aggravating features of the offending, especially the repeated targeting of a vulnerable victim. Ms Maino submits that 12 months was not an excessive starting point in this case on the basis that Ms Houkamau’s offending is more serious than Walsh and most similar to Turner.
[14] There is no guideline judgment for offending of this kind. Each case must be considered on its particular facts, and the appropriate starting point should be adopted with regard to the aggravating and/or mitigating features of the offending as well as comparable cases. As the Court of Appeal has confirmed, culpability for dishonesty offending is not measured solely or even primarily by the amount taken – other aggravating factors are also relevant.11 Relevant aggravating factors include the sophistication of the offending; the type, circumstances and number of victims; the loss caused; and the impact on the victim or victims.12
[15] The aggravating factors in this case are the premeditation involved in the offending and the vulnerability of the victim. Ms Houkamau targeted an elderly woman with dementia and memory issues. She used the anonymity she had over the phone to present herself as someone with authority to close customer bank accounts, telling the victim that she had to repay money she owed or her account would be closed that morning. As the Judge noted, the fact that Ms Houkamau used the victim’s identity to open an account despite the victim’s insistence that she did not give her any personal details indicates there was some sophistication to this offending, though I do not consider it to be the most sophisticated of its type.
[16] As Ms Maino submits, cases concerning offending under s 228 of the Crimes Act 1961 (dishonestly taking or using a document) are of assistance when determining the range of available starting points for obtaining by deception.13 Unlike this case, Walsh involved repeated offending with an element of breach of trust (as the defendant
10 Turner v R [2014] NZCA 454.
11 Rako v R [2015] NZCA 463 at [10].
12 R v Varjan CA97/03, 26 June 2003.
13 Both offences capture similar offending and carry a maximum penalty of seven years’ imprisonment.
had on several occasions used the bank card of his aunt whom he lived with). However, the total amount of money taken through the several small transactions is comparable, as it was in Rako.
[17] In Turner, the Court emphasised that the vulnerability of the victim increased the defendant’s culpability markedly compared to other cases without a vulnerable victim. The victim was an elderly man who lived alone and suffered from a brain tumour. He gave his bank card to the defendant and his associates after they subjected him to bullying tactics through repeated visits to his home. Although Ms Houkamau did not exploit the victim’s vulnerability to the same extent, her targeting of a vulnerable person is a significant feature of this offending.
[18]After examining recent High Court authority, the Court of Appeal in Rako
concluded that a starting point in the range of 12 to 18 months – in some cases higher
– is appropriate where a defendant unlawfully uses credit or debit cards on multiple occasions to cause losses of $2,000 to $6,000.14 Lang J had earlier found that a starting point of 12 to 18 months’ imprisonment will be appropriate where the offending results in losses of around $2,000 to $3,000. This was again in the context of a defendant using stolen credit cards or cheques on multiple occasions.15 The Court of Appeal has considered 18 months to be an appropriate starting point in an older case where the defendant applied for various credit cards in others’ names using their personal details and used these to purchase items to a total value of $3,000.16 As Isac J said in McLaren v Police, the nine month starting point adopted by the District Court Judge in that case was undoubtedly lenient.17
[19] Taking into account the aggravating features of the offending and acknowledging the amount taken was $2,100 in a single transfer, I consider the 12 month starting point adopted by the Judge was within range.
14 Rako v R [2015] NZCA 463 at [9].
15 Tiopira v Police [2012] NZHC 1720 at [12].
16 R v Singh (2003) 20 CRNZ 158 (CA), cited recently in Bennett v Police [2015] NZHC 2592 at
[26] and [45].
17 McLaren v Police [2021] NZHC 742 at [20].
Uplift for prior convictions
[20] Mr Jenkins submits that the total uplift applied of 32 per cent – 10 per cent for the fact that Ms Houkamau’s offending occurred whilst on sentence and approximately 22 per cent for her previous convictions – was excessive. He recognises that some uplift was required for her previous convictions but submits that the total uplift should not have exceeded two months.
[21] Ms Maino supports the uplift applied by the Judge. She submits a significant uplift was warranted for Ms Houkamau’s 33 convictions for dishonesty related offending and the present offending having occurred while she was on sentence.
[22] The rationale behind uplifting a sentence for prior convictions is that previous relevant offending is an indicator of the defendant’s character which impacts their culpability and predicts their risk of further similar offending. The fact that the present offending occurred while the defendant was serving a sentence is an additional aggravating factor and heightens the need for deterrence.
[23] Following the Moses methodology,18 the aggravating and mitigating factors personal to the offender should be calculated as a percentage of the adjusted starting point and offset against each other. Calculated in that way by reference to the starting point of 12 months’ imprisonment, the two month uplift for previous convictions is just under 17 per cent, not 22 per cent as claimed, with the total uplift of 27 per cent. The total discounts were 35 per cent so the net discount is eight per cent, or one month, resulting in an end sentence of 11 months’ imprisonment.
[24] An uplift was appropriate for Ms Houkamau’s criminal history. The present offending follows a sustained pattern. Her recent convictions include several convictions for obtaining by deception (over $1,000), causing loss by deception, theft and other dishonesty related offences. She has previously been sentenced to imprisonment for such offending, so an uplift was not disproportionate as in McLaren. That she committed the offending against the victim while on intensive supervision for offending of the same nature demonstrated the need for Ms Houkamau to
18 Moses v R [2020] NZCA 296.
understand the consequences of her actions. An uplift for that was also appropriate to seek to deter Ms Houkamau from further offending, including against vulnerable people. The combined three month uplift, however, for Ms Houkamau’s prior convictions and offending while on sentence was at the high end.
Discount for personal factors
[25] Mr Jenkins submits that the Judge should have applied a reduction in the region of 25 per cent for considerations arising out of the cultural report. He submits a greater discount was warranted for Ms Houkamau’s history of deprivation and her personal struggles beyond her struggles with mental health.
[26] Ms Maino accepts that the contents of the cultural report illustrate Ms Houkamau’s background of trauma and deprivation which gave rise to her mental health issues. However, she submits there is a logical gap in causation between these difficulties and Ms Houkamau’s “persistent and exploitative course of offending” to justify any greater discount than the 10 per cent given by the Judge.
[27] The Judge did not refer to the cultural report. It is necessary to make my own assessment. The detailed report by Ms Wilkinson of H2R Research and Consulting records that Ms Houkamau suffered [redacted] abuse throughout her childhood and life as a young adult. She is working through an ACC claim. As an adult, she was in an abusive relationship with a man who would lose money gambling and take her with him to “scam people on the street” and “scam old people” to recover their losses.
[28] As a result of her abuse as a young person, Ms Houkamau has been diagnosed with [redacted]. She has spent time in mental health facilities and currently takes medication to manage her [redacted]. The report writer recommends a neurological examination to assess potential traumatic brain injuries and assessment by a psychologist.
[29] The report paints a tragic picture of Ms Houkamau’s traumatic upbringing and her complex mental health struggles. These are acknowledged by the respondent even though there is limited evidence beyond self-reporting, as is the link to Ms Houkamau’s mental health issues justifying a discount. Given that, I do not accept
there is a logical gap in causation between Ms Houkamau’s background and her offending. There is a sufficient nexus. It would certainly have been open to the Judge to conclude that Ms Houkamau’s background of trauma and mental health issues warranted a higher discount than 10 per cent. But the issue is whether the 10 per cent discount was too low. I accept the persistent and exploitative course of offending is relevant to the level of discount given the purposes and principles of sentencing. As the Judge described, her offending was audacious. Deterrence and protection of the community are relevant.
[30] On the other hand, the report writer says that Ms Houkamau’s abusive relationship of 10 years has ended, and this may be her best chance to break free from a recidivist offending cycle. That is of course to be encouraged. I note the Judge granted leave to apply for a sentence of home detention or community detention and intensive supervision to a residential rehabilitation treatment programme. However, Mr Jenkins pointed out that by the time Ms Houkamau could obtain any such placement she would be time served. Moreover, he submitted that she was not a methamphetamine user – she had been stealing to fund methamphetamine and alcohol for her partner.
[31] Having regard to Ms Houkamau’s trauma in her upbringing and mental health issues, but not addiction, I do not accept that the 25 per cent discount sought was required. However, taking into account the cultural report, I consider a 20 per cent discount is appropriate given the combination of Ms Houkamau’s trauma in her upbringing and mental health issues. That would have increased the total discounts from 35 to 45 per cent.
[32] In assessing whether the 11 month end sentence was manifestly excessive, I also keep in mind that the 27 per cent uplift was high. Overall, having regard to Ms Houkamau’s personal circumstances I consider 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 difference is more than tinkering.
Result
[33]The appeal is allowed.
[34] I set aside the sentence and substitute a new sentence of nine and a half months’ imprisonment.
Gault J
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