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…

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.

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Details

Case: [2021] NZHC 910
Decision Date: 27 April 2021

CaseChat Overview and Summary

Rochelle Pangilinan appealed against her sentence of reparation following a guilty plea to charges of obtaining $54,000 by deception and theft of an iPhone. The court was required to determine whether the reparation order of $33,000, payable at $25 per week, was manifestly excessive, particularly considering Pangilinan's financial circumstances. The appeal centred on the argument that the reparation order was unrealistic and unreasonable, given her limited financial resources, which would have resulted in her paying reparation for over 25 years.

The court reviewed the sentencing decisions and found that the reparation order was excessive and likely of little value to the victim. The court noted that an order extending past five years should not be supported, and in this case, the order was not only unrealistic but also unreasonable. The court concluded that the maximum appropriate reparation in the circumstances was $6,500, equivalent to five years at $25 per week. The court also considered the proportionality of the home detention sentence in relation to the reparation order, ultimately deciding that increasing the home detention to nine months was necessary to adequately reflect the purposes and principles of sentencing.

The appeal was allowed, and the reparation order of $33,000 was quashed and replaced with an order for $6,500 to be paid at $25 per week. The sentence of home detention was also set aside and replaced with a sentence of nine months’ home detention, with both the reparation and the home detention to run from the date of the original sentence imposition.

Orders