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 be quite meaningful in light of the recovery mechanisms they will have in other Courts.

[29]     However, there are still substantial credits available to you.   I am prepared to give you a six month credit for the fact that you have no previous convictions and given the adversity that you have suffered in your younger life, that is completely justified.  In that light, it might be seen to be a little ungenerous,  but  I  am  also  prepared  to  grant  you  a  further  12  months’ discount for the adversity that you have suffered, both as a young person and ongoing.  So whether taken separately and added together or taken globally at 18 months, that is the discount.  There will be a further discount of four months, based on your current physical health situation, your pregnancy and the difficulties that will present for you.

[30]     So that take smatters then to 50 months.   From that I will give another  discount  of  12  months for  your  guilty pleas  and that  then  take smatters to 38 months.  The 12 months is not quite 25 percent but the other discounts are much greater and were never promised in the sentencing indication.  So that takes me in the end to a figure of 38 months, which is three years two months.  This offending is a substantial fraud.  Had it not been for the adversity, the mental health issues that you have, I would have unquestionably have imposed a minimum period of imprisonment greater than will otherwise apply under the Parole Act 2002.

[8]      The effective credit received by Ms Ponce-Calderon for mitigating factors was about 49 percent.   Unless serious issues involving the health of the appellant arose post-sentencing, it is difficult to see how a further credit could be justified.

Test on appeal

[9]      The appeal is brought under s 250 of the Criminal Procedure Act 2011.  That section requires this Court to determine whether there has been any error in the sentence imposed and a different sentence should have been imposed.   Only if satisfied  on  both  of  those  criteria  should  the  appeal  be  dismissed.    Generally

speaking, the appeal will be determined on whether the sentence was manifestly excessive, wrong in principle or inappropriate.2

Analysis

[10]     There is no dispute that Ms Ponce-Calderon is experiencing a complicated pregnancy that involves a number of significant health problems to her.   Out of respect for her privacy, I do not identify the specific problems on which I have been addressed.   It is enough to say that I am satisfied they are serious, and have the potential to cause difficulties with the health of both mother and child.

[11]     The point taken on appeal is whether, in her period of incarceration, Ms Ponce-Calderon has been denied access to basic medical care at crucial and distressing moments.   She has made allegations of what her counsel termed “a general disregard for her needs notwithstanding specialist intervention on multiple occasions at Middlemore Hospital”.

[12]     In addition, Mr Withers, for Ms Ponce-Calderon has drawn my attention to difficulties faced by her family in the care of three existing children.  Her mother is elderly  and  has  difficulty  in  fulfilling  the  role  that  her  daughter  should  be undertaking.  She too has had serious health concerns in the immediate past.  One of the children is autistic.

[13]     A particular  concern  was  levied  about  Ms  Ponce-Calderon’s  inability  to access (what she calls) the “mum’s and bub’s unit” at Auckland Regional Womens’ Correction Facility, at Wiri. That is something to which I return later.

[14]     In dealing with the appeal I accept that a sentencing Court will take account of unusual medical needs to reduce a sentence that would otherwise be imposed. This is done by using s 8(h) of the Sentencing Act 2000 which provides:

8        Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

…

2      Tutakangahau v R [2014] 3 NZLR 482 (CA).

(h)       must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that  would  otherwise  be  appropriate  would,  in  the  particular instance, be disproportionately severe; and

[15]    The general principles were identified by the Court of Appeal in R v Verschaffelt.3    In that case, the appellant had an unusual medical condition.  When exposed to the cold, he developed swelling of the body, both internal and external. As a result a credit was given on sentencing to allow for that. After receiving further information on appeal, that credit was increased by the Court of Appeal to one of 50 percent, to reflect both guilty pleas and those medical related factors.

[16]     Verschaffelt indicates that the overall credit available to Ms Ponce-Calderon could not be extended above 50 percent, in the absence of compelling circumstances.

[17]     When the appeal first came before me (on 8 August 2017) there was no evidence from the respondent as to the standard of care being offered to Ms Ponce- Calderon.  I adjourned the appeal until today for further evidence to be given.

[18]     I have received an affidavit from Ms Ranu Reddy, who is employed as a registered nurse with the prison at which Ms Ponce-Calderon is housed.  Ms Reddy is responsible for a team of 13 nurses, one team leader and two administrative assistants engaged in the provision of day-to-day management of medical care at the prison facility.

[19]     Ms Reddy is aware of the obligations cast upon prison authorities in relation to medical treatment of inmates.  Section 75 of the Corrections Act provides:

75 Medical treatment and standard of health care

(1) A prisoner is entitled to receive medical treatment that is reasonably necessary.

(2) The standard of health care that is available to prisoners in a prison must be  reasonably equivalent to  the  standard  of  health care  available to  the public.

3      R v Verschaffelt [2002] 3 NZLR 772 (CA), at paras [22]–[31].

[20]     The ability to refer an inmate for specialist medical care is governed by reg 77 of the Corrections Regulations 2005. That regulation states:

77Medical officer or health centre manager may refer prisoner to health service provider

(1) If satisfied that a prisoner detained in prison requires treatment by a health service provider, the following persons may refer the prisoner to a health service provider for treatment:

(a)      a medical officer:

(b)       a health centre manager, if the matter falls within the health centre manager's scope of practice.

(2) A health service provider must report to the medical officer a health centre manager after a consultation has been completed in respect of a prisoner.

(3) If a prisoner wishes to obtain treatment by a health service provider, but a medical officer or the health centre manager does not consider that a referral under subclause (1) is justified, the prisoner may obtain the treatment if—

(a)       the manager is satisfied that the treatment can be obtained in a manner that meets the security requirements of the prison for the prisoner; and

(b)       the prisoner pays for the cost of the treatment, and the cost of facilitating his or her attendance to obtain the treatment.

(4) A medicine prescribed for a prisoner by a health service provider may be administered at the prison only with the approval of the medical officer, or under the instruction of a medical practitioner.

(5) An accused prisoner who at the time of his or her reception to a prison is undergoing urgent treatment by a health service provider may be visited and treated by the provider if—

(a)      the chief executive or manager approves of the treatment;

and

(b)       the  accused  prisoner  pays  for  the  cost,  if  any,  of  the treatment.

(6) In this regulation, treatment includes assessment.

[21]     In short, Ms Reddy details that Ms Ponce-Calderon was assessed for her particular medical needs when she was received at the prison following sentence on

11 April 2017.  She deposes that there is a 24 hour service available for nurses to give advice for pregnant women in the prison.  Pregnant inmates who present with

concerns  requiring  secondary  level  care  or  specialist  assistance  are  referred  to

Middlemore Hospital following an assessment by a nurse on site.

[22]     I am satisfied from Ms Reddy’s affidavit that the care given to Ms Ponce- Calderon has been adequate in terms of the statutory responsibilities of the prison authorities.

[23]     I  am  also  told  by  Ms  Reddy  that  Ms  Ponce-Calderon’s  application  for admission to the Mothers’ and Babies Unit at the prison has been approved.   The application was made under s 81A of the Corrections Act.

[24]     Ms Reddy deposes that any prisoner who arrives at the Auckland Regional Women’s Correction Facility and has a baby under the age of two years, or who is expecting a child, can apply to have their baby with them in prison.  That request triggers an investigation process by a social worker who presents a case to the prison director for consideration.  That application is discussed at a multi disciplinary team meeting consisting of senior Corrections’ officers.   That process having now been completed, Ms Ponce-Calderon is able to move into that unit.

[25]     In the circumstances to which Ms Reddy deposes, I am satisfied that no further credit should be given to reflect the difficulties that Ms Ponce-Calderon has had in the time she has spent incarcerated in the prison facility.

Result

[26]     For those reasons, the appeal is dismissed.

[27]     I ask that Mr Ropati, for the respondent, provide a copy of this judgment to the prison authorities so that they are aware of the need for continuity of care and my

acceptance of the manner in which Ms Ponce-Calderon has been treated to date.

P R Heath J