Pangilinan v Police

[2021] NZHC 910

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000552

[2021] NZHC 910

BETWEEN

ROCHELLE PANGILINAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 April 2021
Appearances:	A Millington for Appellant A Masters for Respondent
Judgment:	27 April 2021

ORAL JUDGMENT OF VENNING J

Solicitors:           Public Defence Service, North Shore

Meredith Connell, Auckland

PANGILINAN v NEW ZEALAND POLICE [2021] NZHC 910 [27 April 2021]

[1]                  Rochelle Pangilinan pleaded guilty to a charge of obtaining $54,000 by deception and without claim of right and to a charge theft of an iPhone. On 14 December 2020 Judge A C Roberts sentenced her to home detention for six months and confirmed an earlier direction that she pay reparation of $33,000 at $25.00 per week.1 Ms Pangilinan appeals against the sentence of reparation.

[2]                  The summary of facts records that in early December 2019 Ms Pangilinan had possession of the victim’s iPhone. She unlawfully accessed his ANZ GoMoney application from the phone. In total she completed seven unlawful transactions and transferred $54,000 into her bank account from the victim’s bank accounts.

[3]                  The bank was able to recover $20,807.12 leaving a balance of $33,192.88 outstanding.

Procedural background

[4]                  On 17 July 2020 Judge A C Roberts provided a sentence indication. The Judge took a starting point of 26 months’ imprisonment for the totality of the offending, indicated that a discount for the guilty plea would round the end sentence down to one year, nine months, leaving the possibility of home detention open. The Judge also indicated he would consider making a reparation order for a reduced amount once he had further details as to the circumstances.

[5]                  On 31 August Judge Roberts indicated that he would sentence Ms Pangilinan following her entry of guilty pleas.2 The sentence was six months’ home detention with reparation in the sum of $33,000 to be paid at $25.00 per week. The Judge however acknowledged that Ms Pangilinan was pregnant and deferred the start of the sentence until one month after the point where she had given birth.

[6]                  On 14 December 2020 the matter was back before the Court. At that time the Judge imposed the sentence of six months’ home detention on the lead charge of obtaining by deception and imposed a sentence of one month’s home detention concurrent on the theft of the iPhone. There was some discussion about the reparation

1      New Zealand Police v Pangilinan [2020] NZDC 26123.

2      New Zealand Police v Pangilinan [2020] NZDC 26736.

but the Judge noted that he had earlier fixed reparation of $33,000 to be paid at $25.00 per week. In confirming the reparation the Judge noted:

I am not prepared to go behind it. That was the indication that I provided you with. When I see how quickly some of this money was moved from an area where possibly it might have been recouped, someone else received the benefit of the victim’s monies. There is even today no indication that anything more attractive might be provided.

[7]                  Ms Pangilinan then lodged an appeal to this Court against the sentence of reparation on the grounds it was manifestly excessive as the Judge failed to give sufficient weight to her financial circumstances.

[8]                  The appeal was first considered by Katz J on 22 March 2021. On 24 March 2021 Katz J issued a minute adjourning the appeal. In that minute the Judge discussed the background to the imposition of the reparation order and made the following directions to advance the appeal:

(a)Judge Roberts’ sentencing decision of 31 August 2020 was to be transcribed and provided to the Court;

(b)the Registry was to attempt to obtain a copy of the reparation order ordered by Judge Roberts on 17 July 2020; and

(c)leave was granted for the appellant to file evidence as to what had happened to the balance of the $33,000 and what efforts she had made to retrieve it.

[9]Finally the Judge adjourned the appeal for hearing today, 27 April 2021.

[10]              Despite the directions unfortunately little progress has been able to be made. The Judge’s sentencing notes from 31 August 2020 are now available but apparently no copy of the reparation report has been obtained. Further, as counsel for the appellant has conceded, despite numerous efforts she has not been able to place any further evidence from Ms Pangilinan as to her circumstances or what happened to the money before the Court.

[11]              Despite that, Ms Millington maintained the appeal on the grounds the Judge had failed to give sufficient weight to Ms Pangilinan’s financial circumstances and the order for reparation was manifestly excessive. She referred to Ms Pangilinan’s statement of income and expenses and her instructions as to what had happened to the money.

[12]              The financial information before the District Court was set out in Ms Pangilinan’s statement of financial circumstances. That recorded her weekly take home income was $670.00, which after paying rent, food, electricity, gas and telephone and taking account of transport and other fines left her with a weekly surplus of only $5.00.

[13]              The position is unsatisfactory. On the basis of the limited information before the Court and with reparation payable as ordered at the rate of $25 a week, the appellant would have to pay reparation for over 25 years. A number of cases have confirmed that it is wrong in principle for defendants to be bonded debtors throughout their lives.3

[14]              It is also generally accepted that a reparation order extending past five years should not be supported. I consider the reparation order in the present case to be unrealistic and unreasonable. It is also likely to be of little value to the victim of the offending. At the time of the offending the victim was 76 years old. Reparation would not be completed until he was over 100 years old. I infer from the Judge’s sentencing notes that perhaps he considered Ms Pangilinan may still have had access to the balance of the funds or at least the ability to retrieve a substantial part of the money, but that was inconsistent with the direction that she was to pay the reparation at the rate of $25 per week. Nor does it appear to be the practical case in that Ms Pangilinan has not responded in that way.

[15]              While, as noted, the position is unsatisfactory and the appellant has failed to provide the Court with detailed information despite Ms Millington’s best efforts, on the information the Court does have, it must be accepted that the reparation order

3      Guinness v Police [2015] NZHC 883; Ebdale v Police [2015] NZHC 3154; Hilton v Police [2018] NZHC 1757; and Rihara v Department of Social Welfare (1991) 7 CRNZ 586..

imposed is unreasonable. The maximum appropriate reparation in the circumstances would be $6,500 being five years at $25.00 per week.

[16]              Under s 251 of the Criminal Procedure Act 2011 if the Court allows an appeal the Court may either set aside the sentence and impose another sentence, or it may vary the sentence or any part of the sentence.4 Ms Millington argues that if the Court was minded to allow the appeal and reduce the reparation order, the Court should nevertheless not change or increase Ms Pangilinan’s home detention sentence. I cannot accept that submission. I agree with Ms Master’s submission for the Police that a reduction in the reparation without an adjustment to the home detention would not adequately take into account the purposes and principles of sentencing, particularly the need to promote a sense of responsibility for and acknowledgment of the harm and provide for the interests of the victim. Ms Pangilinan seems to lack insight into her offending and the effect of it on the victim.

[17]                   The sentence of home detention was imposed on 14 December 2020. The appellant remains subject to it at present. As I read the Judge’s sentencing indication of 17 July 2020, before considering the issue of reparation the Judge’s indication was a sentence of one year, nine months’ imprisonment which would equate to 10½ months home detention. In fixing an ultimate sentence of six months’ home detention, combined with the reparation order of $33,000, the District Court Judge reduced the home detention sentence by four and a half months.

[18]              I consider the appropriate response to reducing the reparation order is to increase the existing sentence of home detention by three months to nine months’ home detention overall.

Result

[19]              The appeal is allowed. The order for reparation of $33,000 is quashed. It is replaced with an order that Ms Pangilinan is to pay reparation of $6,500 to be paid at

$25.00 per week. The sentence of home detention for six months is also set aside and replaced with a sentence of nine months’ home detention. The reparation and the home

4      Criminal Procedure Act 2011, s 251(2)(a) and (b)

detention are to run from the dates the sentence was imposed in the District Court, namely, 14 December 2020.

Venning J