Mason v Police
[2018] NZHC 3387
•18 December 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2018-454-000017
[2018] NZHC 3387
BETWEEN JAHNA MEREANA MASON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 December 2018 (via AVL at Wellington) Counsel:
S K Green for Appellant
S P Poulton for Respondent
Judgment:
18 December 2018
JUDGMENT OF COLLINS J
Introduction
[1] Ms Mason appeals an effective sentence of 11 months’ imprisonment imposed by Judge Edwards in the District Court at Palmerston North on 18 October 2018.1 That sentence was imposed after Ms Mason had pleaded guilty, after receiving a sentencing indication, to the following charges:
(1)two charges of dishonestly using a document;2
(2)two charges of possessing a forged banknote;3
(3)four charges of theft;4 and
1 Police v Mason [2018] NZDC 21913.
2 Crimes Act 1961, s 228(b); maximum penalty seven years’ imprisonment.
3 Section 263; maximum penalty seven years’ imprisonment.
4 Sections 219 and 223(d); maximum penalty three months’ imprisonment.
MASON v NEW ZEALAND POLICE [2018] NZHC 3387 [18 December 2018]
(4)one charge of breaching release conditions.5
[2] Ms Mason appeals her sentence on the grounds that it was manifestly excessive.
[3] This judgment explains why I am allowing the appeal. The sentence imposed is quashed and substituted with one of five months’ imprisonment.
Summary of offending
[4] On 21 May 2018, Ms Mason entered a Farmers store in Palmerston North. She took a handbag valued at $249 and left the store without paying. She then returned to the same store and stole a 100 ml bottle of perfume valued at $224. Ms Mason also stole a jewellery box from a souvenir shop on the same day.
[5] On 27 May 2018, Ms Mason entered a Warehouse store in Feilding. She was intoxicated at the time. Ms Mason took a handbag valued at $22 from the shelf and attempted to leave the store without paying for it, but when the alarm system was activated she was confronted by staff.
[6] On 1 June 2018, Ms Mason entered a Salvation Army store in Pahiatua. She paid for a sweatshirt valued at $6.50 with a counterfeit $50 note, receiving $43.50 in change. A short time later, she entered a Tradesmart store situated nearby. She then paid for an item of clothing valued at $2 with another counterfeit $50 note, receiving
$48 change.
[7] That evening, Ms Mason attempted to use a third counterfeit $50 note at a hotel in Dannevirke. The owner of the hotel initially exchanged the counterfeit note for legal tender, but quickly realised that it was counterfeit and re-claimed her money. Ms Mason was initially charged in relation to this incident, but those charges were not pursued.
5 Sentencing Act 2002, s 96(1); maximum penalty one year’s imprisonment.
Personal circumstances
[8] Ms Mason is 37 years old. She has 37 previous convictions, the majority of which are for minor shoplifting. The remainder of her previous convictions are mostly for breach of court orders and sentencing conditions. Ms Mason has served several prison sentences in relation to these offences, all less than two months duration. The exception being a six-month prison sentence she received in 2017 in relation to a domestic violence charge. In May 2018, she was sentenced to two months’ imprisonment for breaching her release conditions on three occasions in relation to that sentence.
[9] Ms Mason has four children, who reside with her father. She appears to have a violent relationship with her father.
[10] The pre-sentence report assessed Ms Mason at a high-risk of re-offending because of her recidivist record. It assessed her risk of harm to others as medium because of her 2017 conviction for violent offending. The report recommended a period of imprisonment sufficient to complete a Department of Corrections programme, which would finish in February 2019. This appears to have been aimed at addressing her drug and alcohol problems. She reported consuming methamphetamine and drinking substantial quantities of alcohol on a daily basis. She said that she funds her addiction by shoplifting.
[11] The report also assessed that Ms Mason did not have the ability to comply with a community-based sentence because she had previously failed to report on a regular basis, had failed to complete programmes to address her rehabilitative needs and had continued to offend while on sentence. The report concluded that a sentence of imprisonment long enough to complete a relevant programme was the only way to reduce Ms Mason’s re-offending.
District Court decision
Sentencing indication
[12] On 24 August 2018, Judge Edwards provided Ms Mason with a sentencing indication. The Judge adopted the dishonesty charges relating to the counterfeit $50 notes as the lead offending. She noted that an aggravating feature of the offending was that it involved charity shops. She recognised that Ms Mason had provided police with the name of the person who had given her the counterfeit notes, however, the Judge said that this did not mitigate Ms Mason’s offending because she was the only one who attempted to use those notes as legal tender. The Judge compared Ms Mason’s offending with Nanthasak v Police, where the High Court suggested a range of between five and seven months’ imprisonment would be appropriate as a starting point for one offence of offering a forged bank note.6 The Judge reasoned that, although the amount of money involved in that case was larger, Ms Mason had committed two offences, so a starting point of six months’ imprisonment was warranted.
[13] The Judge then uplifted the starting point by three months to account for the two shoplifting offences at Farmers, because that offending involved high value items and targeted the same store on two occasions. The Judge further uplifted the starting point by one month to account for the other shoplifting offences.
[14] The Judge considered the breach of release conditions separately, adopting a starting point of three months’ imprisonment. She referred to this charge as “not one failure to report but rather a total refusal to comply with release conditions”. The Judge also noted that previous short-term prison sentences had not deterred Ms Mason from failing to comply with her release conditions.
[15] The Judge gave a two-month uplift for Ms Mason’s 20 previous dishonesty convictions. In doing so, the Judge recorded the need to keep proportionate any uplift for previous offending.
6 Nanthasak v Police HC Wellington CRI-2010-485-21, 30 March 2010.
[16] The Judge then indicated a 20 per cent discount would be available if Ms Mason pleaded guilty to the sentencing indication. This resulted in an indicated end sentence of 12 months’ imprisonment. The Judge considered whether a totality adjustment was necessary, but concluded that the end sentence was not disproportionate to the offending overall.
[17] The Judge addressed the possibility of home detention if a suitable address was available. She noted that Ms Mason was remanded in custody because no suitable bail address had been found.
Sentencing
[18] On 18 October 2018, Judge Edwards sentenced Ms Mason to a total of 11 months’ imprisonment. A further month was discounted for rehabilitative efforts that Ms Mason had undertaken while on remand. Those efforts included completing a Dynamics of Change course and receiving counselling. Ms Mason’s counsellor indicated that her desire to change was genuine and that she was looking towards receiving ACC counselling for issues in her past that had contributed to her addictions, which had fuelled her offending.
[19] The Judge also ordered that Ms Mason pay a total of $100 in reparations to the two charity stores involved in the counterfeit offending. The end sentence was broken down into the following cumulative sentences:
(1)six months’ imprisonment for the counterfeit charges;
(2)three months’ imprisonment for the shoplifting charges; and
(3)two months’ imprisonment for the breach of release conditions charge.
Approach on appeal
[20] Section 250 of the Criminal Procedure Act 2011 requires the Court to allow the appeal if:
(1)for any reason, there is an error in the sentence imposed on conviction; and
(2)a different sentence should be imposed.
[21] The Court of Appeal has explained that whether a sentence is “manifestly excessive” continues to be an important guide to finding an error.7 The Court of Appeal has also explained:8
The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.
[22] If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error when reaching that end sentence.
Grounds of appeal
[23] Ms Mason appeals against her sentence on the grounds that Judge Edwards erred by:
(1)adopting a starting point that was too high for property offending;
(2)failing to take into account Ms Mason’s personal circumstances, in particular that she had been abused;
(3)failing to give full credit for her guilty plea; and
(4)imposing reparations when she was unable to pay.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
8 At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].
First ground of appeal – starting point
Submissions
[24] Ms Green, counsel for Ms Mason, submitted that a sentence of imprisonment was not the least restrictive outcome reasonably available in the circumstances.9 She submitted that Ms Mason’s offending was non-violent and on the lower end of the scale, and as such it did not warrant a prison sentence. Ms Green emphasised that there was only a small amount of money involved and that Ms Mason’s involvement with the counterfeit money was limited to her handing it over to the stores. She submitted that Ms Mason could have been more appropriately dealt with by an order to come up for sentence if called upon.
[25] Ms Poulton, for the police, observed that there is little guidance for this sort of offending, particularly where the amount involved is relatively minor. He referred to R v Varjan, where the Court of Appeal described the principles as follows:10
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 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.
[26] Ms Poulton submitted that the six-month starting point for the dishonestly using a document charges was within range by reference to Te Au v Police, where an eight-month starting point was adopted for using seven forged cheques to dishonestly obtain $2,000;11 and Pentecost v Police, where a six-month starting point was adopted for $3,400 of cash obtained with a stolen credit card, with a further nine months imposed for further dishonesty offending involving $600 while on bail for the first set of offending.12
[27] Ms Poulton also referred to two similar theft cases to demonstrate that the uplifts were within range. In McKenzie v Police, a six-month starting point was
9 Sentencing Act 2002, s 8(g).
10 R v Varjan CA97/03, 26 June 2003 at [22].
11 Te Au v Police HC Nelson CRI-2007-442-19, 10 December 2007.
12 Pentecost v Police HC Christchurch A127/01, 8 February 2002.
adopted on appeal for four charges of theft under $500.13 A two-month uplift was given in that case for breaching conditions. In Police v McMurtrie, a six-month starting point was adopted on appeal for five charges of theft under $500 and one charge of theft between $500 and $1,000.14 A one-month uplift was given in that case for offending while on bail.
Analysis
[28] The Judge was correct to reject the submission that Ms Mason’s involvement was limited. While Ms Mason appears not to have been involved in producing the counterfeit bank notes, that is not the offence she was charged with. Ms Mason certainly was in possession of the counterfeit notes and she also used those notes dishonestly to obtain a pecuniary advantage.
[29] An important aspect of Ms Mason’s offending was that it involved the use of counterfeit bank notes. Parliament has clearly indicated, by creating an offence specifically to deal with it, that offending of this nature is to be taken particularly seriously. For this reason, a higher starting point may be appropriate for this sort of offending than for other dishonesty offending of a comparable magnitude. For this reason, I have been assisted by the following cases involving counterfeit bank notes:
(1)In Kahui v Police, the defendant was given 12 months’ supervision and a $300 fine on appeal for possessing one forged $100 banknote, which she had (unsuccessfully) attempted to use to purchase groceries at a supermarket.15 The defendant had no previous convictions.
(2)In Nanthasak v Police, a starting point of between five and seven months’ imprisonment was indicated as appropriate for possession of 11 forged USD 100 bank notes.16
13 McKenzie v Police [2015] NZHC 2742.
14 Police v McMurtrie [2015] NZHC 1031.
15 Kahui v Police HC Auckland AP6/97, 25 February 1997.
16 Nanthasak v Police, above n 6, at [17].
[30] Taking into account those cases, and the comparable cases involving dishonest use of a document referred to by Ms Poulton, I am satisfied that the starting point adopted by the Judge was excessive. I consider that an appropriate starting point would have been, at most, two months’ imprisonment. This takes into account the factors referred to by the Court of Appeal in R v Varjan¸ namely the very small amount of money involved, the absence of sophistication and the fact the offending only occurred over the course of a single day, but also the fact the victims were charities and that the offending involved counterfeit bank notes.
[31] Unlike the sentencing Judge, I am not persuaded that the fact two charges were involved significantly alters Ms Mason’s culpability, especially when those charges arose on the same day. Certainly, that factor is far from enough to off-set the much larger quantity of counterfeit money involved in Nanthasak v Police. This case is far more analogous to Kahui v Police, and if Ms Mason were not a recidivist offender, then a non-custodial sentence would have been appropriate.
[32] On a totality basis, I also consider the uplifts given by the sentencing Judge for the shoplifting offences were too high. Those uplifts totalled four months. The maximum penalty for theft under $500 is only three months’ imprisonment. The value of the jewellery box is not apparent, but the total value of the other goods stolen by Ms Mason was only $495. While three charges were involved, the value of the stolen goods was small overall. Taking into account totality considerations, an uplift of no more than two months was necessary for the shoplifting charges.
[33]That would have given a total starting point of four months’ imprisonment.
[34] Because of the reduced starting point, it is also necessary to reduce the uplift for previous offending from two months to one month, to avoid disproportionality.17
17 See Tiplady-Koroheke v R [2012] NZCA 477 at [24]; and Taylor v R [2012] NZCA 332 at [46].
Second ground of appeal – personal circumstances
Submissions
[35] Ms Green submitted that too little attention was given to the rehabilitation of Ms Mason and to her difficult personal circumstances. She highlighted the violence Ms Mason has faced at home and the fact she has previously been assessed as suffering from PTSD in relation to this. She said a discount was appropriate to recognise this consideration.18
[36] Ms Green also submitted that no account was taken of the fact Ms Mason had co-operated with police regarding the supplier of the counterfeit notes. She also said a discrete discount was appropriate for remorse.
[37] Ms Poulton submitted that the one-month (6.6 per cent) discount provided by the Judge was adequate to account for Ms Mason’s remorse, as demonstrated by her completion of rehabilitative courses and counselling. He submitted that a higher discount would not have been appropriate for a recidivist dishonesty offender such as Ms Mason.
[38] Ms Poulton submitted that a discount would only have been appropriate for Ms Mason’s difficult personal circumstances if evidence had been presented that demonstrated it materially contributed to her offending.19 He pointed out that Ms Mason had not presented any evidence in relation to her claim that she suffers from PTSD.
[39] In relation to assisting police, Ms Poulton emphasised that it is not enough to simply not be obstructive, and that Ms Mason would have to demonstrate that she went above and beyond to facilitate the disposition of the proceedings or reduce their cost.20 He said that she had not done so.
18 Sentencing Act 2002, s 8(i).
19 Referring to R v Whiu [2007] NZCA 591 at [32].
20 Referring to Sentencing Act 2002, s 9(2)(fa).
Analysis
[40] I accept that it was open to the Judge not to give a discrete discount for Ms Mason’s difficult personal circumstances. While the pre-sentence report suggested that Ms Mason was stealing to fuel her methamphetamine addiction, there was no evidence before the sentencing Judge, and there is also none on appeal, to show that her addiction is the result of the particular circumstances she refers to.
[41] I also consider that the discount provided by the sentencing Judge was adequate to account for the rehabilitative efforts that Ms Mason has undertaken. That is especially the case given the lower starting point that I have adopted.
[42] While it might have been open to the Judge to give another discrete discount for Ms Mason’s co-operation with police concerning the identity of the counterfeiter, that was not required. Given the reductions I have made to the starting point on appeal, I am satisfied that such a discount is unnecessary.
Third ground of appeal – guilty plea
Submissions
[43] Ms Green submitted that Ms Mason should have been entitled to the full 25 per cent discount for her guilty plea. Ms Poulton submitted that the 20 per cent discount was appropriate because Ms Mason did not plead guilty to all charges at the earliest possible opportunity.
Analysis
[44] The Supreme Court has made clear that there is no entitlement to a full discount for a guilty plea, rather it is a matter of evaluation for the sentencing Judge.21 The 20 per cent discount given to Ms Mason was within the acceptable range.
21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62]. See also Walker v Police [2018] NZHC 1388 at [34].
Fourth ground of appeal - reparations
Submissions
[45] Ms Green submitted that the $100 reparation order was inappropriate given that the Judge had recognised that Ms Mason was not in a position to pay it, especially while in prison. Ms Poulton submitted that the reparations were appropriate. In particular, he pointed out that reparations had been sought in relation to the shoplifting charges as well, and that the Judge took into account Ms Mason’s impecuniosity by declining to order reparations in relation to those charges.
Analysis
[46] I do not consider that the reparation orders were disproportionate. Those orders serve an important function in compensating the victims for their loss. Given that the relevant victims of Ms Mason’s offending were charities, it is appropriate that the reparation orders stand.
Conclusion
[47] I am satisfied the Judge erred in her approach when sentencing Ms Mason and that a different sentence should be imposed because the sentence of 11 months’ imprisonment was manifestly excessive.
[48] I adopt a starting point of four months’ imprisonment for the dishonesty offending. This is uplifted by one month to reflect Ms Mason’s previous convictions for dishonesty offending. I adopt a three-month uplift for Ms Mason’s breach of release conditions, and one month discount for her efforts at rehabilitation. This results in a preliminary end sentence of seven months’ imprisonment. Applying the discount of 20 per cent for Ms Mason’s guilty plea produces an end sentence of five months’ imprisonment.
[49] This produces a sentence that satisfies the purposes and principles of the Sentencing Act 2002. In particular, the sentence I am imposing will:
(1)hold Ms Mason accountable for the harm done to the victims and the community by her offending;22
(2)promote in Ms Mason a sense of responsibility for an acknowledgement of that harm;23
(3)provide for the interests of the victims of Ms Mason’s offending;24
(4)denounce the conduct that Ms Mason was involved in;25
(5)deter others from committing the same or a similar offence;26
(6)assist in Ms Mason’s rehabilitation and reintegration;27 and
(7)is the least restrictive outcome that is reasonably available in the circumstances.28
Result
[50] The appeal against sentence is allowed. Ms Mason’s sentences are quashed and substituted with concurrent sentences of five months’ imprisonment on each of the four charges involving the counterfeit bank notes, which are to be served concurrent with sentences of two months’ imprisonment on each of the other charges.
D B Collins J
Solicitors:
Crown Solicitor, Palmerston North for Respondent
22 Sentencing Act 2002, s 7(1)(a).
23 Section 7(1)(b).
24 Section 7(1)(c).
25 Sentencing Act 2002, s 7(1)(e).
26 Section 7(1)(f).
27 Section 7(1)(h).
28 Section 8(g).
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