Pou v The Queen - [2020] NZHC 729

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…

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.

Continue reading Pou v The Queen

Details

AGLC: Pou v The Queen [2020] NZHC 729
Case: [2020] NZHC 729
Decision Date: 8 April 2020

CaseChat Overview and Summary

Lulu Amberlee Pou, the appellant, appeals against her sentence of two years' imprisonment for 24 charges of obtaining a pecuniary advantage by deception, without claim of right, by accessing a computer system. The appellant had previously been sentenced to four months' home detention for similar offending. The legal issues for determination are whether the starting point for sentencing was excessive, the uplift for previous offending was excessive, and the discount for pleas of guilty was insufficient. The court considered the number of charges, premeditation and sophistication, the period of the offending, and the amount obtained. The court concluded that the starting point of two years was within the range available to the Judge. The uplift for previous convictions could have been higher, but the court considered it appropriate in this case. The discount for pleas of guilty was not insufficient as the strength of the evidence against the appellant was strong. The appeal was dismissed as the sentence of two years' imprisonment was not manifestly excessive.

The court found that the appellant's culpability was materially increased by her offending while awaiting sentence for her previous offending, continuing to offend while serving her sentence of home detention, and continuing to offend while subject to post-detention conditions. The court held that there needed to be a sentence which emphasised deterrence and denunciation. The court noted that the appellant received a small windfall arising from the Judge's arithmetic, as the final sentence should have been two years and 1.5 months. However, this did not affect the court's determination that the sentence was not manifestly excessive. The appeal was dismissed, and the sentence of two years' imprisonment was upheld.

Orders