Pou v The Queen
[2020] NZHC 729
•8 April 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-3
[2020] NZHC 729
BETWEEN LULU AMBERLEE POU
Appellant
AND
THE QUEEN
Respondent
Hearing: 16 March 2020 Counsel:
M Hislop for Appellant
M B Smith for Respondent
Judgment:
8 April 2020
JUDGMENT OF BREWER J
This judgment was delivered by me on 8 April 2020 at 3:30 pm Registrar/Deputy Registrar
Solicitors:
Marsden Woods Inskip & Smith (Whangarei) for Respondent
POU v R [2020] NZHC 729 [8 April 2020]
Introduction
[1] Ms Pou pleaded guilty to 24 charges of accessing a computer system and thereby by deception and without claim of right, obtained a pecuniary advantage.1 The maximum penalty on each charge is seven years’ imprisonment.
[2] On 6 December 2019, Judge DJ McDonald sentenced Ms Pou to two years’ imprisonment.2 Ms Pou now appeals the sentence. She contends it is manifestly excessive.
[3] My task is to assess whether there is an error in the sentence such that a different sentence should be imposed.
Background
[4] Ms Pou set up fake Facebook profiles and then claimed to have tickets to attractive events such as concerts which she offered for sale. Buyers would contact Ms Pou through the fake Facebook profiles and Ms Pou would reach agreement for the sale of the touted tickets. Ms Pou would collect the sale price through electronic bank transfer. Of course, Ms Pou never actually had tickets to sell and so the purchaser was defrauded.
[5] The offending took place in the period 5 July 2018 to 21 March 2019. The total sum gained by Ms Pou as a result of her fraud was $6,474.
[6] Of relevance to her sentencing is that on 5 October 2018 Ms Pou was sentenced for exactly the same scam on 49 charges of obtaining by deception.3 This previous offending took place between 16 August 2017 and 22 June 2018. The total sum obtained was $16,870. Ms Pou was sentenced to four months’ home detention. Post- detention conditions applied for six months. Therefore, the offending on which Judge McDonald sentenced Ms Pou commenced while she was awaiting sentence on the previous offending. Charges in this category were for frauds committed on 5 July
1 Crimes Act 1961, s 249(1)(a).
2 R v Pou [2019] NZDC 24723.
3 R v Pou [2018] NZDC 21072.
2018, 11 July 2018, 13 July 2018, 27 July 2018 and 30 July 2018 (two charges). Further, there were other offences which took place while Ms Pou was subject to the sentence of home detention or while she was subject to post-detention conditions.
The District Court sentence
[7]Judge McDonald considered Ms Pou’s offending to be sophisticated:
[4] … You very cleverly used fictitious Facebook names, you very cleverly used other people’s bank accounts that the money was to be paid into…
[8] The Judge had regard to the victim impact statements and highlighted the significant effect the fraud had on a number of the victims:
[6] In one, the victim tells me, “Emotionally and financially, this really affected my son and I. This was the first show he was going to go to and the first time away since a major car accident and he is suffering brain injuries, so he found it extremely hard to cope. We have spent endless hours trying to get this sorted and had to borrow money for the tickets.”
[7] Another, “I saved for two months to be able to afford the tickets, and because of the situation,” that is being ripped off by you, “I was unable to attend. I was not only devastated, I was also very embarrassed. I have learnt my lesson and I will not be trusting anybody online again. I really hope that other people won’t be falling into the same trap that I did.”
[8] Further example, “I’m a solo mum, I had to save up money to attend the Homegrown concert. I’m very frustrated and angry to find out it was a scam. I have now completely lost my trust in online purchases.”
[9] The Judge considered the following factors to be significant in setting the starting point:
(a)The number of charges;
(b)Premeditation and sophistication;
(c)The period of the offending;
(d)The amount obtained.
[10] Judge McDonald fixed a starting point of two years’ imprisonment. The Judge imposed an uplift of six months for the previous offending.
[11] The only discount was 15 per cent for the entry of pleas of guilty. I note that the final sentence of two years’ imprisonment was the result of an arithmetical error in favour of Ms Pou. The Judge’s final starting point of two years six months’ imprisonment should have been reduced by the guilty plea discount of 15 per cent, which is 4.5 months. The end sentence should have been two years and 1.5 months.
The appeal
[12]The grounds for the appeal are:
(a)The starting point of two years was excessive;
(b)The six months uplift for previous convictions was excessive; and
(c)The discount for guilty pleas was insufficient.
[13] Mr Hislop for Ms Pou submitted that the starting point should have been 20 months’ imprisonment, the uplift for previous convictions should have been no more than four months’ imprisonment, and the discount for guilty pleas should have been 20 per cent.
Discussion
[14] Mr Hislop referred me to a number of cases and relied particularly on Anderton v Police.4 The factual backgrounds of the cases are, unsurprisingly, different from this case. For example, Anderton was an appeal against a refusal to convert a prison sentence to home detention. Mr Anderton had pleaded guilty to 34 dishonesty related charges (of six different sorts, but including examples of Ms Pou’s charge). He had fraudulently obtained $48,405. Most of the charges involved Mr Anderton offering non-existent goods for sale using online trading platforms.
4 Anderton v Police [2018] NZHC 437. Mr Hislop referred me also to Reihana v Police [2019] NZHC 2078, Gobey v Police [2018] NZHC 1555, Haereroa v Police [2019] NZHC 318 and R v Hayes [2006] 23 CRNZ 547 (CA).
[15]Mr Hislop put emphasis on the District Court Judge’s starting point of
2.5 years’ imprisonment for all this offending. Mr Hislop submitted Mr Anderton’s offending was much worse than Ms Pou’s offending. I agree Mr Anderton faced more charges and obtained a much greater sum than Ms Pou. But Toogood J, in his judgment on Mr Anderton’s appeal, said:
[4] … Altogether, the Judge adopted a starting point of two-and-a-half years’ imprisonment. On behalf of Mr Anderton, Mr Prentice takes no issue with the starting point. That is not surprising, because it could have been longer.
[16]I respectfully agree with Toogood J. It could indeed have been longer.
[17] It is difficult to gain much assistance from other dishonesty cases which have different factual backgrounds to the case under examination. It is better to look at first principles.
[18] R v Hayes5 is a Court of Appeal decision which set out to offer some guidance for sentencing in computer-based dishonesty offending cases. It is relevant to this case for the following dicta:
[58] … there is a public interest in providing strong sanctions against reprehensible conduct which, if unchecked, is likely to inhibit the use of computer technology.
[59] For those reasons, sentencing for computer related offences is likely to require particular emphasis on the need to hold an offender accountable for harm done to both victims and the community by his or her offending, to denounce the conduct in which the offender was involved and to deter the offender or others from committing similar offences in the future…
[19] The Court of Appeal in R v Varjan provided the following succinct guidelines for assessing dishonesty offences:6
[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
5 R v Hayes [2006] 23 CRNZ 547 (CA).
6 R v Varjan, CA97/03, 26 June 2003.
[23] It is in the assessment of culpability that comparison with other cases is to be undertaken…
[20] The maximum sentence for each charge to which Ms Pou pleaded guilty was seven years’ imprisonment. The starting point adopted by the Judge for all 24 charges was approximately 29 per cent of the seven years maximum. Bearing in mind the aggravating factors identified by the Judge, and having broad regard to the cases to which I have been referred, I conclude that the two years starting point was within the range available to the Judge.
[21] As to the six months uplift for Ms Pou’s previous convictions, at the hearing before me Mr Hislop responsibly accepted he could not really maintain his challenge. That was wise. I will echo Toogood J by observing it could have been higher.
[22] Mr Hislop maintained his submission that the Judge should have given a discount on the starting point of 20 per cent to recognise the pleas of guilty. I do not agree. I accept Ms Pou entered pleas relatively early. At the time of the case review hearing further charges had been laid and Ms Pou wished to consider her position in respect of them. At the trial callover Ms Pou entered pleas to all of the charges. However, the timeliness of the entry of pleas of guilty is not the only factor to be taken into account in assessing the discount. Another factor is the strength of the evidence.7 Here it was strong. I see no error in the 15 per cent discount awarded by the Judge.
Decision
[23] An appeal against sentence on the basis it is manifestly excessive requires focus to be on the end sentence. If the end sentence, taking into account the totality of the offending, is not manifestly excessive then it does not really matter how the sentencing Judge constructed the sentence.
[24] Standing back and considering the case as a whole, my view is that the end sentence of two years’ imprisonment is well within the range available to the Judge. In my view, Ms Pou’s culpability is materially increased by her offending while awaiting sentence for her previous offending, continuing to offend while serving her
7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
sentence of home detention, and continuing to offend while subject to post-detention conditions. There needed to be a sentence which emphasised deterrence and denunciation.
[25] I note, in any event, Ms Pou received a small windfall arising from the Judge’s arithmetic.
[26] The sentence of two years’ imprisonment is not manifestly excessive. The appeal is dismissed.
Brewer J
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