Moeau v Police

[2019] NZHC 2498

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2019-463-76

[2019] NZHC 2498

BETWEEN

SHAUNEY RAWINIA MOEAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 October 2019 (Heard at Rotorua)
Appearances:	S P Whitehead for the Appellant O M Salt for the Respondent
Judgment:	2 October 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 2 October 2019 at 3.30 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr S P Whitehead, Barrister, Tauranga

Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga

MOEAU v NEW ZEALAND POLICE [2019] NZHC 2498 [2 October 2019]

[1]    Ms Moeau appeals against her sentence in the Tauranga  District Court on   27 August 2019, having pleaded guilty to the following charges:

(a)obtains by deception x 6;1

(b)theft under $500 x 3; and theft $500-$1000 x 2;2

(c)using a document x 7;3 and

(d)breach of supervision.4

[2]    Judge  Connell  sentenced  Ms  Moeau  to  eight   months’  imprisonment. She appeals on the basis that the Judge made an arithmetical error of one month’s imprisonment when calculating the sentence and home detention should have been substituted for imprisonment.

[3]    The theft charges relate to stealing a security tag remover, then using it to shoplift from various establishments around Tauranga. I do not have a summary of facts for the obtaining by deception and using a document charges, but I gather from the Judge’s sentencing notes they broadly involved defrauding the Motor Trade Association by posing as an employee of the District Health Board and placing phone orders for booklets of vouchers. The charges of obtaining by deception relate to the acquisition of the vouchers, and the charges of using the documents relate to the use of those vouchers to acquire items and cash at petrol stations. On two occasions the vouchers were apparently used to purchase vehicles.

[4]The amount stolen by Ms Moeau was $32,455.

[5]    Following a previous sentence of  nine  months’  intensive  supervision  on 24 December 2018, Ms Moeau failed to report to her probation officer as directed, founding the breach of supervision charge.

1      Section 240 of the Crimes Act 1961, maximum penalty of 7 years’ imprisonment.

2      Section 219, maximum penalties of 3 months’ imprisonment and one year’s imprisonment.

3      Section 228, maximum penalty of 7 years’ imprisonment.

4      Section 70 of the Sentencing Act 2002, maximum sentence of 3 months’ imprisonment.

District Court decision

[6]    The Judge noted the amount of money involved, and that he was informed this was because of pressure put on Ms Moeau by other people. The Judge said he made allowance for this, but thought she had the opportunity to stop and did not.

[7]    The Judge then noted that she was apparently under extreme stress at the time, and was in a violent relationship, but the Judge did not accept that was a complete reason for the offending.

[8]    The Judge noted that Ms Moeau is a single mother, with four children. But the PAC report was not positive, noting that Ms Moeau has not engaged in the past with sentences of community detention and supervision. Nevertheless, the PAC report recommended intensive supervision or community detention.

[9]    The Judge was not convinced that Ms Moeau would comply with a sentence of intensive supervision. The Judge decided to impose a sentence of imprisonment. He took a starting point of 15 months (implicitly on the obtaining by deception or using a document charges as the other charges have a lower maximum penalty), reduced by five months because Ms Moeau was under such pressure to offend. The Judge then uplifted by two months because of her previous convictions and because she breached the sentence of supervision, bringing the sentence to twelve months. The Judge then said he was applying a discount of five months for personal mitigating features, including the guilty plea. The Judge calculated the resulting sentence as eight (rather than seven) months’ imprisonment.

[10]The Judge did not consider home detention in any detail, but said:

You did half an hour of a sentence of 40 hours’ community work and that community work has not finished so how can you expect me to trust you enough to say, you are someone who can be put on home detention or just on intensive supervision. There is in my view a requirement to show deterrence, to impose a sentence that will stop you behaving in this way in the future.

[11]   The Judge acknowledged it was a difficult decision before imposing a term of imprisonment.

Approach on appeal

[12]   To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5

[13]   The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.6 However, the appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.7

[14]   Besides the calculation error, correction of which the respondent does not oppose, the sole issue is whether home detention should be granted.

Discussion

[15]   Mr Whitehead, for Ms Moeau, submits it was an error for the Judge not to consider granting home detention. I consider it goes too far to say the Judge did not consider home detention.

[16]   Mr Whitehead submits home detention is an appropriate sentence for reasons including that Ms Moeau is a single mother, with two children in her care, one aged eight and one 18 months’ old and still being breast-fed. She is also pregnant. It is not clear whether all this information was available to the Judge. While there has been previous bad performance on sentences of community work and supervision, a sentence of home detention is different, as Ms Moeau will be confined to her home.

[17]   I agree. While the Judge was correct to consider whether home detention was adequate to demonstrate deterrence, I consider that in all the circumstances home detention is the appropriate sentence in this case and the Judge erred in considering imprisonment was the least restrictive sentence to achieve the purposes of sentencing.

5      Criminal Procedure Act 2001, ss 250(2) and (3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7     Ripia v R [2011] NZCA 101 at [15].

Taking into consideration all of the purposes of sentencing, home detention better qualifies as the least restrictive sentence to impose.8 As Mr Salt for the respondent acknowledged, the appellant is untested on an electronically monitored sentence. Inability to pay reparation of itself does not preclude home detention here.  Also,   Mr Whitehead challenged the Judge’s finding that Ms Moeau cannot meet reparation, referring to submissions in the District Court that reparation of approximately $13,000 may be realistic ($50 per week for five years). Ms Moeau offers that again and provided a statement of means confirming that she could manage at least that amount. Mr Whitehead referred to her payment of $40 per week towards court fines as indicative of her willingness to pay reparation.

[18]   The PAC report considered Ms Moeau’s address suitable for electronic monitoring. The house is a new one, in a residential development. Ms Moeau has consented to the conditions of an electronically monitored sentence. Both Police and Oranga Tamariki, however, expressed concerns about electronic monitoring at the address as there have been 92 previous family harm incidents at the address. Apparently, Ms Moeau and her ex-partner had a history of being aggressive towards neighbours who were witness to their family harm episodes. However, that address history is less relevant in her ex-partner’s absence. I was informed that those incidents were a consequence of that previous relationship. Ms Moeau now lives at the address only with her two children. I understand her ex-partner was sentenced to imprisonment. Even if he is not still in custody, he was not identified in the PAC report as an occupant,9 and I understand there is a non-association order in place between them. The PAC report did not identify any other occupants of the address.

[19]   In these circumstances, I am satisfied the District Court’s sentence is manifestly excessive.

Conclusion

[20]   I deduct one month from the sentence to bring it to seven months’ imprisonment. I then substitute this sentence for one of three and a half months’ home

8      Fairbrother v R [2013] NZCA 340 at [30].

9      It is a requirement of a pre-sentence report where home detention is being considered that information about the occupants is provided: Sentencing Act 2002, s 26A(2)(a).

detention, to be served at the address and on the conditions identified in the PAC report.

[21]   I order reparation of $13,000 as offered by the defendant, payable by instalments of $50 per week.

Gault J