Ioane v Police - [2023] NZHC 2819

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]…

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.

Continue reading Ioane v Police

Details

AGLC: Ioane v Police [2023] NZHC 2819
Case: [2023] NZHC 2819
Decision Date: 9 October 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Ms Luana Ioane, who had pleaded guilty to three charges of theft in a special relationship, and was sentenced to six months’ home detention. The appeal challenged the sentence's appropriateness, claiming it was excessively high, and that the District Court had not adequately considered mitigating factors. The High Court was required to determine whether the sentence was manifestly excessive, wrong in principle, or if exceptional circumstances warranted a different sentence.

The Court addressed the appellant's argument that the starting point for sentencing was too high, noting the factors relevant to assessing culpability, as outlined in the Court of Appeal's decision in Varjan. The Court considered the nature, magnitude, and duration of the offending, the breach of trust, and the number of victims. The appellant submitted that the starting point should have been 12 months, considering the unsophisticated nature of the theft, the relatively low amount stolen, and the short duration of the offending. However, the Crown argued that the starting point was appropriate, considering the number of transactions and methods used by Ms Ioane. The Court found that the starting point of 20 months was within an appropriate range, taking into account the arithmetical error that favoured the appellant.

The appellant also argued that the sentence did not adequately consider her remorse, prospects for rehabilitation, and personal circumstances. The Court accepted that the 5% discount for remorse was sufficient, as was the absence of a further discount for rehabilitation, given the lack of concrete evidence of Ms Ioane's efforts towards rehabilitation. The Court concluded that the appellant's personal circumstances did not warrant a further discount on the sentence.

Finally, the Court addressed the appellant's argument that the sentence of home detention was manifestly excessive and that a community-based sentence would have been sufficient. The Court found that Judge Bell had considered the purposes of sentencing, including accountability, deterrence, and denunciation, and that home detention was the least restrictive option to achieve these purposes. The Court concluded that the sentence was not manifestly excessive and declined to interfere with the sentence of home detention that was imposed.

Orders