Ioane v Police
[2023] NZHC 2819
•9 October 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-343
[2023] NZHC 2819
BETWEEN LUANA IOANE
Appellant
AND
NZ POLICE
Respondent
Hearing: 2 October 2023 Appearances:
C M Barkle and K T O’Halloran for Appellant R A van Boheemen for Respondent
Judgment:
9 October 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 9 October 2023 at 3.00 pm
………………………………
Registrar/Deputy Registrar
Solicitors:Public Defence Service, Auckland Meredith Connell, Auckland
IOANE v POLICE [2023] NZHC 2819 [9 October 2023]
Introduction
[1] Ms Luana Ioane pleaded guilty to three charges of theft in a special relationship, two of which were representative charges.1 She appeals her sentence of six months’ home detention. 2
[2] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be imposed.3 The overall questions on appeal are whether: the sentence was manifestly excessive, the sentence was wrong in principle, or there are exceptional circumstances.4
Grounds of appeal
[3] The appellant submits that the sentence was manifestly excessive. She refers to the following:
(a)The starting point adopted was too high.
(b)The Judge erred in not considering the circumstances surrounding the offending, specifically in terms of Ms Ioane being subject to a coercive and abusive relationship, when setting the starting point.
(c)Ms Ioane was provided insufficient credit for remorse and her prospects of rehabilitation were overlooked.
(d)The Judge erred in not imposing a community-based sentence.
The offending
[4] The offending admitted by Ms Ioane arose from the misuse of her former employer’s invoice book, fuel cards and a trade account. Ms Ioane was sent to work
1 Crimes Act 1961, ss 220 and 223(a); maximum penalty of seven years’ imprisonment.
2 She was also ordered to make full reparation. An appeal against the reparation order was not pursued.
3 Criminal Procedure Act 2011, s 250(2); and Tutakangahau v R [2014] NZCA 279, 3 NZLR 482.
4 At [30]–[35].
at the victim company by a recruitment agency, filling an administration role at the company’s headquarters.
[5] After six months with the company, Ms Ioane removed an invoice book and used it at Bunnings Warehouse on 11 occasions over the course of 11 weeks. Ms Ioane also modified two fuel cards to unlock their full purchasing power, which were subsequently used over the same 11 week period for 74 transactions at 15 different Z Energy fuel stations. At the end of that period, Ms Ioane used the trade account on one occasion to hire a vehicle. The total amount of unauthorised expenditure was
$7,282.98.
The District Court sentencing decision
Judge D A Bell constructed the sentence as follows:
(a)a starting point of 20 months’ imprisonment;
(b)a downward adjustment of 30 per cent, being 25 per cent for guilty plea and 5 per cent for remorse; and
(c)a conversion of the resultant 13-month sentence of imprisonment to six months’ home detention, plus reparation.
[7] There is an arithmetical error in the downward 30 per cent adjustment. This should have produced a 14-month, not 13-month, sentence.
[8]I address each ground of appeal.
Starting point excessive
[9] There is no tariff case available for dishonesty offending given the variety of circumstances in which it can occur. However, the Court of Appeal in R v Varjan set out the following factors to be assessed in determining culpability for dishonesty and fraudulent offending:5
5 R v Varjan CA97/03, 26 June 2022 at [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.
[10] In Varjan the Court noted that culpability is to be assessed in the light of comparison with previous cases.6
[11] Ms Barkle for Ms Ioane referred me to a number of cases for comparison on the starting point.7 She particularly emphasised the Ebdell, Hoffmann, Churton and Wright cases as particularly pertinent for comparison. In particular:
(a)Churton involved more sophistication (several steps involving the sale of six rare books) and a higher amount of money ($23,310). On appeal a 15-month starting point was considered appropriate.
(b)Hoffman involved a serious breach of trust against friends with the defendant taking $20,243 from the till over a course of a week working as a bartender. The starting point was 10–12 months (although the appeal in question was against the reparation sentence).
(c)She compared the lesser victim impact on the present facts to Ebdell where a postal delivery officer had retained undelivered mail with a large number of individuals affected. A starting point of 15 months was upheld on appeal.
(d)In Wright the defendant took a slightly lower amount ($5,926.43) during employment over 10 months. He was in a position of responsibility with the company with a significant impact on company reputation. The starting point was not a point on appeal. The Court
6 R v Varjan, above n 5, at [21], [23].
7 Appuhamilage v Police [2015] NZHC 2355; Tonks v Police [2017] NZHC 880; Churton v Police HC Palmerston North CRI-2007-454-12, 16 May 2007; Ebdell v Police HC Christchurch CRI- 2009-409-4831, 30 July 2009; Terrell v Police [2013] NZHC 734; Hoffman v R [2017] NZCA 151 as cited by Farina v R [2021] NZHC 811 at [23]; Wright v Police [2015] NZHC 3016; Bowles v Police [2014] NZHC 184; and Leighton v Police [2012] NZHC 1925.
accepted it would have been 12 months by reverse engineering but without scrutiny of the setting of this on appeal.
[12] Ms Barkle emphasises that Ms Ioane’s offending was relatively unsophisticated (for example it did not involve producing fake documents or an elaborate scheme); of relatively low magnitude (at $7,282.98); of relatively short duration (lasting just over two months); and had few affected victims.
[13] Ms Barkle accepted that the most aggravating factor of the offending in the present case was the serious breach of trust. Ms Ioane was placed in the victim company by a recruitment agency, hence damaging the recruitment agency’s reputation as well as a breach of trust to the victim and associated financial consequence. In supporting a lower starting point Ms Barkle emphasised Judge Bell’s assessment of the offending as more “opportunistic than sophisticated and premeditated”.
[14] She also cautioned against an approach which conflates the number of methods in the offending with the level of sophistication. Here, while Ms Ioane used three methods, the offending was relatively unsophisticated compared to the steps taken by the defendant to steal rare books in Churton, for example.
[15] Most significantly as to starting point, the appellant emphasised that Ms Ioane was subject to a coercive and abusive relationship at the time of the offending which played some part in what occurred.8 Judge Bell had referred to this in the preamble to the sentencing decision but had not expressly taken this into account when setting the starting point. It was submitted that assessment of culpability must take into account the motivation for the offending which in this case involved a coercive and abusive relationship and hence reducing Ms Ioane’s culpability and characterisation of the offending as purely for personal gain.
[16] The appellant submitted that taking all these factors into account a starting point of 12 months’ imprisonment was appropriate.
8 As referenced in the pre-sentence report.
[17] The Crown submitted that the available range of starting points for the offending here is between 17 and 21 months’ imprisonment, relying on Farina,
Churton, and Ebdell.9
[18] In Farina a starting point of 23 months was considered to be “stern” and at the top of, but within, the available range. The defendant has processed client refunds to her personal bank account on 20 occasions over two months with a further three payments after she left because her details remained on the system. The amount stolen was $21,034.51.
[19] I agree with the Crown that this case is most comparable to Ms Ioane’s offending. Although Ms Farina stole more money, I agree with the Crown’s submission that this is balanced here by the more significant number of occasions on which Ms Ioane offended and the fact that she employed three distinct methods to steal her employer’s funds.
[20] The volume of transactions and the number of methods used by Ms Ioane are aggravating features in this case. While I acknowledge that the abusive relationship has impact, in my view the Judge took this into account given her reference to the abuse at the outset of her notes. Moreover, I accept the Crown’s submission that Judge Bell’s characterisation of the offending as “opportunistic” is generous. That is, while some further mitigation based on the abusive relationship may have been appropriate, I accept the Crown’s submission that in overall terms the 20-month starting point is within an appropriate range. As well, there is the calculation error that fell in favour of the appellant. Hence the effective starting point was approximately
18.5 months.10
[21]In sum, I do not interfere with the Judge’s assessment of the starting point.
9 Farina v R [2021] NZHC 811; Churton v Police, above n 7; and Ebdell v Police, above n 7.
10 13 months plus 30 per cent.
Discounts from the starting point
[22] In addition to a full 25 per cent discount for guilty plea, Judge Bell applied an additional discount of 5 per cent for remorse. Ms Ioane submitted that a larger discount is appropriate in view of the remorse expressed in Ms Ioane’s pre-sentence report. This expressed a willingness to participate in a restorative justice process as well as recording that Ms Ioane “spoke about her regret when she thinks back to this time”.
[23] I accept the Crown’s submission that a 5 per cent discount for remorse is sufficient to acknowledge the remorse expressed in the pre-sentence report and is inherent in the willingness to engage in restorative justice. There were no further concrete expressions of remorse such as a letter of apology or evidence of reparation already paid to the victim company.
[24] I further accept the Crown’s submission that the Judge was correct not to apply any further discount for rehabilitation. While Ms Ioane demonstrates a good prospect of rehabilitation, in my view no additional discount is justified. As the Crown submitted, no concrete efforts at rehabilitation had been made at the time of sentencing and there was no information that would support such a discount.
[25] Ms Barkle also referred to Ms Ioane’s personal circumstances as justifying further discount to the sentence. Ms Ioane is married to a new partner who works as a long haul truck driver and is therefore away four to five days at a time. They have two young children (aged one and four). I was advised that Ms Ioane is also currently having some health challenges. I accept Ms van Boheemen’s submission for the Crown that these matters do not justify a further discount on the sentence. I consider the overall sentence is not manifestly excessive. That is particularly so, taking into account the arithmetical error and the nature of the offending.
Type of sentence
[26] Ms Barkle submitted that the end sentence of six months’ home detention was manifestly excessive and that the Judge erred in not considering a community-based sentence would be sufficient to mark the offending and to hold Ms Ioane accountable.
[27] In my view, Judge Bell was correct to consider the offending to be “serious” noting the breach of trust involved.
[28] A judge may impose a sentence of home detention only if the Court is satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences.11
[29] Judge Bell did not expressly identify the purposes of sentencing at play in the present case. However, I accept the Crown’s submissions that the special conditions the Court attached to the home detention sentence demonstrated that the Judge considered Ms Ioane to pose some risk of reoffending, such that specific rehabilitation was required.12
[30] I further accept that a home detention sentence is the least restrictive option having regard to the need for Ms Ioane to be accountable for the harm done to the victim and the community, to promote her sense of responsibility for, and acknowledgement of, that harm; to provide for the interests of the victim; to denounce the conduct and to deter similar offending. While I acknowledge Ms Ioane’s current personal circumstances, home detention will enable full engagement with her children, and indeed more so than some alternative forms of sentence. Ms Ioane’s new partner is back after every 4–5 days. I was not given any information as to how Ms Ioane’s stated health challenges would be impacted by home detention.
Result
[31] I conclude that the sentence imposed by Judge Bell is not manifestly excessive. I decline to interfere with the sentence of home detention that was imposed.
Anderson J
11 Sentencing Act 2002, s 15A(1)(a).
12 For instance: to attend the Short Motivational Programme, attend the Howard League Programme, engage with an employment training consultant, and notify her probation officer prior to commencing, terminating or varying any employment or voluntary work.
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