Kronfield v Police
[2018] NZHC 793
•24 April 2018
ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT/VICTIM. IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2017-412-28 [2018] NZHC 793
BETWEEN MARGARET DENISE KRONFELD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2018 Counsel:
A G Speed and E M Gresson for Appellant R P Bates for Respondent
Judgment:
24 April 2018
JUDGMENT OF NICHOLAS DAVIDSON J
Appeal
[1] Ms Kronfeld was sentenced by Judge Crosbie to 120 hours community work on one charge of criminal harassment, three charges of intentionally accessing a computer system, one charge of sending fictitious messages and one charge of making a telephone call without speech with the intention of causing offence.1
1 Police v Kronfeld [2017] NZDC 14371.
KRONFELD v NEW ZEALAND POLICE [2018] NZHC 793 [24 April 2018]
[2] The sentencing followed a Judge alone trial in which Ms Kronfeld was found guilty on the charges of criminal harassment and intentionally accessing a computer system, having already pleaded guilty to the other charges.
[3] An appeal was brought against conviction in respect of the charges that went to trial, and against the sentence of community work. The conviction appeal was heard on 7 November 2017 and judgment issued on 7 February 2018.2 The appeal was allowed in part, setting aside the conviction for criminal harassment while upholding the other charges.
[4] The harassment conviction was set aside on what is, essentially, a technicality. This judgment reflects the partially successful appeal against conviction, and to address any other issues raised in Ms Kronfeld’s appeal against sentence.
The offending
[5] Ms Kronfeld’s offending was recorded in detail in the judgment of 7 February 2018 and in Judge Crosbie’s reserved judgment of 3 April 2017.3
[6] For a period of about three years, Ms Kronfeld engaged in an affair with the complainant’s husband (Mr X). When it came to an end, Ms Kronfeld commenced a campaign of harassment against the complainant, which the Judge characterised as a “premeditated, persistent, vile barrage and attack”.
[7] The Court has in evidence dozens of email messages sent by Ms Kronfeld to the complainant under false names and email addresses over the course of about 10 weeks, which she admitted.
[8] The harassment charge (conviction now quashed) related to five of these emails. The content of the emails was offensive and sinister, as were the other emails the subject of charges.
2 Kronfeld v Police [2018] NZHC 66.
3 Police v Kronfeld [2017] NZDC 6769.
[9] The charges of accessing a computer system involved the complainant’s private email account accessed on two occasions, and on one occasion the parent portal of the school which her children attend, without authorisation. On one occasion, she accessed the account to retrieve the login details for the portal and on the other it was to get information about the complainant later used to create false identities for messages sent.
[10] For the four months following the end of the relationship, Ms Kronfeld also made a number of ‘hang-up’ nuisance calls, when she would call the complainant’s landline or cell-phone and hang up without saying anything. The summary of facts records that there were 148 nuisance calls and text messages over this period.
Judge Crosbie’s sentencing notes
[11]The impact of the harassment charge on sentencing must be seen in context.
[12] On the harassment charge, the Judge noted that while the five texts themselves may have constituted relatively low-level offending, “they did evidence an intention to cause the complainant to fear for her safety”. His Honour said he was “entitled to take into account the combined effect of all the offending as it has affected her”.
[13] For the charges of accessing a computer system, the Judge accepted that two of the incidents were low level offending. However, he regarded accessing the email account with a view to collecting information about the complainant for later use as more serious.
[14] The Judge said he would take into account the fact the offending occurred over a period of time and Ms Kronfeld was otherwise of good character. While the probation report stated that Ms Kronfeld had shown remorse, the Judge said he “did not detect any remorse during the hearing”.
[15] The Judge expressed his view that there were shortcomings with the police approach to the charges, and that Ms Kronfeld’s conduct was more serious and invasive than the charges suggest. Nevertheless, he said he was “confined to the charges before [him]”.
[16] Of consequence on this appeal, the Judge said the harassment charge is “not necessarily the lead charge”, and the more serious computer system charge involved potentially a higher level of culpability. Rather than adopting a lead charge for sentencing and applying uplifts, the Judge decided to take into account “the wider surrounding circumstances” and the six charges together.
[17] Relevant purposes and principles of sentencing included holding Ms Kronfeld to account and promoting in her an acceptance of responsibility, denunciation, and deterrence. The duration of the offending, premeditation, and the effect on the complainant were aggravating factors. There were no mitigating factors of the offending, but her previous good character required consideration. The Judge said that the late guilty pleas in relation to two of the charges “do not attract any real credit” because the complainant was still required to give evidence.
[18] The Judge referred to Police v Buis, a case involving more serious conduct attracting a criminal harassment charge as well as a charge of threatening to cause grievous bodily harm.4 A sentence of 200 hours community work was imposed. The Judge accepted Ms Kronfeld’s offending was less serious.
[19] His Honour concluded that a starting point of about six months imprisonment was appropriate, but that as imprisonment was not an option given other sentencing decisions, he adopted “a starting point in the high 100s for community work”. He ordered 120 hours community work on each of the charges, to be served concurrently, along with costs on each of the charges and $100 witness expenses.
Jurisdiction and approach to appeal
[20] As this is a sentence appeal, Ms Kronfeld appeals as of right.5 This Court will only allow the appeal if satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.6 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court will not
4 Police v Buis [2017] NZDC 8394.
5 Criminal Procedure Act 2011, s 244.
6 Criminal Procedure Act 2011, s 250.
substitute its own views for those of the sentencing Judge. The sentence must be manifestly excessive or inappropriate.
[21] It is not enough that the Judge made an error of reasoning: the focus is on the sentence imposed rather than the process by which the sentence was reached.7
Submissions
[22] Mr Speed for the appellant submits that in similar cases a fine or a discharge without conviction has been imposed.
[23] He put a letter from Ms Kronfeld before the Court which he says shows she has a “high degree of insight into her offending, what motivated it and the effect it had on her victim”. The letter is expressed in straightforward terms and Ms Kronfeld says “every morning when I wake up I mentally apologise to her along with my family and friends, take a deep breath, and remind myself I made a huge error of judgement and that I will never act in that way again towards a living soul”. Ms Kronfeld also made what I consider was a heartfelt and compelling apology to the complainant in open Court when this appeal was heard on 24 April 2018.
[24] Mr Speed submits that counsel wrote to the prosecution prior to the trial pointing out difficulties with the way they had set out their case, particularly in relation to the five emails which made up the harassment charge, and three weeks before trial his client offered to plead guilty to three of the charges – the two to which she eventually did plead guilty and one of the charges of accessing a computer system. However, there was no “meaningful response” to that offer. I do not regard that as influential on appeal, as the prosecution was entitled to proceed and obtain convictions on all but the harassment charge, held on appeal to be misconceived on a technical legal issue.
[25] Given these matters, the time that has elapsed since the offending, the appellant’s obvious remorse, and the fact she has now completed 27 hours of her community sentence, Mr Speed submits a fine would be an appropriate sentence.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[26] Mr Bates for the respondent accepts there should be a reduction in the sentence following Ms Kronfeld’s successful appeal on the harassment charge. He says however that a fine would not be appropriate as it would not adequately meet the principles and purposes of sentencing and have little impact on Ms Kronfeld. Given the way the Court viewed the seriousness of the other charges, he submits a reduction of about 20 hours community work is appropriate.
Analysis
[27] There is little case law to assist the Court in arriving at an appropriate sentence for this kind of offending. R v Walker, cited by Mr Speed, is not of much assistance. The offender was discharged without conviction and ordered to pay reparation on charges of accessing computer systems, and other related charges. The offending involved infecting computers with a virus in order to control them remotely, and bears very little similarity to the case here. The discharge was founded on the prospect of the defendant’s computer skills being put to good and lawful use rather than ill, and this required a clean criminal record.
[28] I am required now to assess sentence in the available range for the remaining convictions.
[29] The overall culpability of the offending remains largely unchanged. Ms Kronfeld admitted sending the emails on which the harassment charge was laid. That charge has gone but there are many more emails which deeply affected the complainant. These remain relevant as part of Ms Kronfeld’s overall offending – in particular they are relevant to the charge of accessing a computer when she gathered information about the complainant in order to harass her and the emails she sent were a direct consequence of that offending.
[30] A fine would not adequately meet the aims of sentencing. There is a need to denounce Ms Kronfeld’s conduct. I accept from her letter, the pre-sentence report and her address to the Court at the appeal hearing, that she is now genuinely remorseful and reflective, which the sentencing judge at sentencing doubted. The need to deter her has been reduced, but a more general deterrence is still needed. This was behaviour punishing of an innocent woman which caused her grave and prolonged distress.
[31] The offer before trial to plead guilty to some of the charges was tactical and was not in my view an example of Ms Kronfeld taking responsibility for her actions before trial. At no point, did she admit to all the offending on which she has ultimately been convicted, despite an overwhelming case against her.
[32] Nevertheless, justice requires the successful conviction appeal to be reflected in a reduction in Ms Kronfeld’s sentence and some allowance should be given for her now obvious and genuine remorse. The sentencing judge was accurate in his assessment of how pernicious this conduct was, and if anything, I would have adopted a sterner sentence given the devastating effect on the complainant and given the then lack of remorse. This sort of offending is technologically easy to commit and deterrence and denunciation are to the fore in the sentencing response.
Conclusion
[33] The appeal is allowed only as the result of the reduced charge range and Ms Kronfeld’s contrition and apology. The sentence of 120 hours community work is replaced with one of 70 hours with costs and witness expenses. For the avoidance of doubt, that will mean the defendant will have 43 hours to complete.
[34] The Appellant is to report to Community Probation within 72 hours after delivery of this Judgment.
……………………………………………….
Nicholas Davidson J
Solicitors:
R P Bates, RPB Law, Dunedin
Copy to counsel:
A G Speed, Barrister, Auckland
E M Gresson, Barrister, Auckland
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