Houston v Police

[2013] NZHC 2266

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000014 [2013] NZHC 2266

ELIZABETH STEPHANIE HOUSTON

v

NEW ZEALAND POLICE

Hearing:	29 August 2013 and 2 September 2013 (by way of telephone conference)
Appearances:	A Stevens for the Intending Appellant R P Bates for the Intended Respondent
Judgment:	2 September 2013

JUDGMENT OF PANCKHURST J (RE LEAVE TO APPEAL)

Introduction

[1]      On 28 June 2013 I dismissed an appeal against a sentence of 25 and a half months imprisonment imposed in relation to four charges of dishonestly accessing a computer with intent to defraud (save for rounding the term down to 25 months).

[2]      An application for leave to appeal was argued on 29 August 2013.  Following submissions, and exchanges, Mrs Stevens sought a short time to take instructions and reformulate the proposed questions of law. The reformulated questions are:

(i)       Having found the District Court Judge’s sentencing was based

on a wrong principle did the Judge in the High Court err in not approaching the sentencing de novo.

HOUSTON v NEW ZEALAND POLICE [2013] NZHC 2266 [2 September 2013]

(ii)Having  decided  to  undertake  his  own  evaluation  of  the offending, did the Judge err in not following the appropriate sentencing steps by selecting a starting point and then making allowances for personal aggravating and mitigating factors?

(iii)Did the Judge err in failing to allow a discount for remorse when he had found remorse to be present?

On 2 September 2013 these questions were the subject of a brief telephone hearing.

The arguments

[3]      Mrs Stevens submitted that the three issues posed questions of law which were of general or public importance.   She said that question (i) was based on Austin Nichols and Co Inc. v Stichting Lodestar1  and whether a Judge hearing a general  appeal  was  required  to  conduct  a  de  novo  sentencing  exercise,  if  a conclusion was reached that the sentencing was based on a long principle.  On this basis Mrs Stevens maintained that the point raised was of general application, not

confined to this appellant.

[4]      In relation to question (ii) counsel relied upon R v Taueki,2 in asserting there was an error in not conducting a full sentencing exercise once a re-evaluation on appeal was embarked upon.   The third question is based upon s 9(2)(f) of the Sentencing Act 2002, and asserts a failure to tangibly recognise remorse when a basis to do so was found to exist.

[5]      Mr Bates did not accept that any of the questions were of general or public importance,  or  for  any  other  reason,  justified  a  second  appeal.    His  written submission was to the effect that although the District Court Judge erred in saying that remorse must be exceptional to warrant recognition, on appeal this mitigating factor received robust evaluation with the result that the appellant’s expressions of remorse, absent any substantial repayment of the money, did not justify recognition

over and above the allowance given for guilty pleas.

1      Austin Nichols and Co Inc. v Stichting Lodestar [2008] 2 NZLR 141 (SC).

2      R v Taueki [2005] 3 NZLR 372 (CA).

Evaluation

[6]      I am not persuaded that leave to appeal is appropriate.   Three grounds of appeal were raised before me.  The failure to tangibly recognise remorse as an available mitigating factor had some merit.  This, however, prompted a reassessment of the offending, and in the circumstances of this case I concluded that non-payment of meaningful reparation counted against any discount for remorse.

[7]      In my view there was no need to conduct the sentencing exercise afresh, as suggested in questions (i) and (ii).  A reassessment of the offending led me to the view that substantial sums were stolen in months prior to the appellant’s apprehension, yet nothing of moment was repaid to her employers and this counted against any discount for remorse.  Put another way, expressions of remorse were not matched by remorseful conduct.  Accordingly, qualifying remorse was absent.  I do not, therefore, regard question (iii) as  apt to  describe the reasoning process on appeal.

Solicitors:

A Stevens, Dunedin

R P Bates, Dunedin