Ponce-Calderon v Police - [2017] NZHC 1919

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-225 [2017] NZHC 1919

BETWEEN
MARY-ROSE PONCE-CALDERON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 and 11 August 2017

Counsel:

S Withers for Appellant
M K Ropati for Respondent

Judgment:

11 August 2017

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, Auckland
Counsel:
S Withers, Auckland

PONCE-CALDERON v NEW ZEALAND POLICE [2017] NZHC 1919 [11 August 2017]

The appeal

[1] Ms Mary-Rose Ponce-Calderon appeals against a sentence imposed by Judge Collins, in the District Court at Auckland, on 11 April 2017.1 She was sentenced to a term of imprisonment of three years and two months on fraud related charges.

[2] The appeal is based on mitigating factors of a medical nature which arise post-sentencing. There is no challenge to the sentence imposed by the Judge, on the basis of the information before him at the time of sentencing.

The charges

[3] By way of background, the charges brought against Ms Ponce-Calderon were: one of obtaining money by deception, one of forgery, one of making a false statement of death, one of money laundering, and two representative charges of using forged documents.

[4] The offences were committed in the course of insurance frauds, which involved the creation of false documents regarding the death of a fictional person to obtain money from life insurance policies. The most serious of the offences was one in which a fraud was perpetrated on Asteron Life Insurance, from which a payment of $800,000 was received. By the time the offending was detected, only $300,000 remained unspent.

Sentencing in the District Court

[5] Ms Ponce-Calderon sought a sentence indication in the District Court. One was given on 20 December 2016. Her pleas of guilty to all six charges were entered on 31 January 2017. After mental health and pre-sentence reports had been obtained, she was sentenced on 11 April 2017.

[6] The sentencing Judge took a starting point of four years and six months imprisonment on the Asteron fraud. He added an uplift of 18 months to reflect the
other five offences. That left a starting point of six years imprisonment.

1 New Zealand Police v Ponce-Calderon [2017] NZDC 7647.

[7] In dealing with questions of mitigation, Judge Collins said:

[28] Mr Withers, on your behalf, has filed helpful submissions, he has filed an affidavit on your behalf and he has pointed to other documents. He claims that there is extraordinary remorse. On the question of remorse I need to record that there will be no additional credit for that. I am just simply not persuaded that you are remorseful for what you have done. I have no doubt that you are overwhelmingly remorseful for the situation in which you find yourself. And secondly, there can be no credit, in my view, for any offers to make amends. The reality here is, that the victims will pursue you for every dollar that they can recover in the civil jurisdiction and any orders that I make would…

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: [2017] NZHC 1919
Decision Date: 11 August 2017

CaseChat Overview and Summary

Mary-Rose Ponce-Calderon appeals against her sentence of three years and two months imprisonment imposed by Judge Collins in the Auckland District Court on fraud-related charges. The appeal is based on mitigating factors of a medical nature that arose post-sentencing, but there is no challenge to the sentence based on the information available at the time of sentencing. The offences involved insurance frauds with the creation of false documents regarding the death of a fictional person to obtain money from life insurance policies. The sentencing Judge took a starting point of four years and six months imprisonment, adding an uplift of 18 months for the other five offences, resulting in a starting point of six years imprisonment. After considering mitigating factors, the Judge imposed a sentence of three years and two months.

The appeal was brought under section 250 of the Criminal Procedure Act 2011, which requires the Court to determine whether there has been any error in the sentence imposed and if a different sentence should have been imposed. The appeal court considered whether Ms Ponce-Calderon had been denied access to basic medical care during her incarceration, and if her health issues justified a further credit on her sentence. The Court accepted that a sentencing Court will take into account unusual medical needs to reduce a sentence that would otherwise be imposed.

After considering an affidavit from a registered nurse at the prison, the Court was satisfied that the care provided to Ms Ponce-Calderon had been adequate in terms of statutory responsibilities of the prison authorities. The Court also noted that Ms Ponce-Calderon's application for admission to the Mothers' and Babies Unit at the prison had been approved. In the circumstances, the Court was satisfied that no further credit should be given to reflect the difficulties Ms Ponce-Calderon had experienced while incarcerated.

Final orders:
The appeal is dismissed.

Orders