Rapana v The Queen

[2018] NZHC 1829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-183

[2018] NZHC 1829

BETWEEN

ISAAC RAPANA

Appellant

AND

THE QUEEN

Respondent

Hearing:	23 July 2018
Appearances:	C Oxnam and G Vear for Appellant R Gibbs for Respondent
Judgment:	23 July 2018

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal against sentence]

RAPANA v R [2018] NZHC 1829 [23 July 2018]

[1]    Mr Rapana pleaded guilty in the District Court to two charges of fraudulently using a document for a pecuniary advantage, six charges of obtaining a pecuniary benefit by deception, one charge of misusing a telephone and one charge of accessing a computer system for a dishonest purpose. On 16 March 2018, Judge McNaughton sentenced Mr Rapana to three years four months imprisonment on all charges other than that of misusing a telephone and accessing a computer system for a dishonest purpose.1 He imposed concurrent sentences of one month’s imprisonment, and two years imprisonment respectively in relation to those charges. The Judge also ordered Mr Rapana to pay reparation in the sum of $15,000.

[2]    Mr Rapana appeals against sentence on the basis that the Judge adopted a starting point that was too high. He is also said to have adopted an uplift in relation to the telephone and computer charges that was too high, and applied an uplift for previous convictions that was too high. These errors led to the Judge imposing a sentence that was manifestly excessive.

The facts

[3]    The facts setting out the details of the offending were contained in a caption summary that Mr Rapana accepted for sentencing purposes.

[4]    The two charges of fraudulently using a document to obtain a pecuniary advantage were laid as a result of acts undertaken by Mr Rapana whilst he was in the employment of a company that  designed  and  manufactured  portable  buildings.  Mr Rapana had access to a company credit card that was only to be used to purchase items associated with the company’s business. Between 16 February and 12 March 2016 Mr Rapana used his credit card to top up his personal account with the Totalisator Agency Board. During this period he used the credit card on 36 separate occasions to provide himself with a total benefit of $7,243.

[5]    The second charge related to the use of company cheques between 20 January 2016 and 4 March 2016. During this period Mr Rapana’s employer provided him with nine company cheques that were intended to be used to pay Council consent fees on

1      R v Rapana [2018] NZDC 5168.

behalf of customers. Mr Rapana requested that the cheques be made out to cash so that he could pay for the consent fees using his credit card and thereby obtain air points. He would then reimburse himself by means of the cheques. In all but one case, Mr Rapana cashed the cheques to their full value and retained the funds for his own purposes. He obtained the sum of $20,588.59 in this way. He only made one payment to the Council in the sum of $2,425. When Mr Rapana’s employer discovered the offending in March 2016, Mr Rapana repaid a total sum of $12,000.

[6]    Mr Rapana was dismissed by his employer on 4 April 2016. Prior to that date he had engaged in discussions with six different customers about the purchase of products made by the company. After he had been dismissed Mr Rapana continued to represent himself to these customers as still being employed by the company. He asked the customers to make payments into his personal bank account rather than into the company account. He did so by dishonestly representing that he remained a partner in the business, and that it was standard practice for the company to use his personal account for company payments. These representations resulted in six customers of the company making payments into Mr Rapana’s bank account. These were for the sums of $10,600, $3,400, $20,000, $25,000, $10,000 and $20,000. In total, Mr Rapana obtained just over $100,000 by means of his fraudulent conduct towards his employer and the customers of his employer’s business.

[7]    The charge of misusing a telephone was laid after Mr Rapana had been dismissed on 4 April 2016. On 7 April 2016, he telephoned the Spark New Zealand Call Centre impersonating his employer. He instructed the call centre to change his former employer’s landline number to a new number. This meant that anyone who called his former employer could not get through. As a result, his employer did not receive any telephone calls from customers for a period of approximately ten days.

[8]    The charge of dishonestly accessing a computer system occurred some time later, on 10 February 2017. On that date Mr Rapana contacted the internet service provider of his former employer. He instructed the service provider to change his former employer’s internet password to another password supplied by him. He then made a second call to the internet centre after he established that the first password change had been done incorrectly. He again instructed the service provider to change

the password, and on this occasion the password was successfully changed. This provided Mr Rapana with access to his former employer’s computer system and emails. It also resulted in his former employer being locked out of its internet account for a period of approximately four days. This meant his former employer was unable to access any emails during that period.

[9]    When the police spoke to Mr Rapana about his offending, he frankly acknowledged he had used his company credit card to obtain personal benefits when he did not have authority to do so. He also acknowledged cashing his employer’s cheques for his own benefit, but claimed he had repaid this money to his employer as part of an “employment settlement”. Mr Rapana acknowledged receiving funds from the company’s customers, and he also accepted he had contacted some customers after he was no longer employed by his former employer. He said that in doing so he was attempting to “trade out” of deals.

[10]   Mr Rapana acknowledged he had impersonated his former employer when he had changed the telephone number. He said he did this out of spite as he was angry with his former employer.

The Judge’s decision

[11]   In setting a starting point for the offending other than the misuse of the telephone and computer system, the Judge discussed the authorities cited by counsel. He then set a starting point of three years six months for the charges relating to defrauding the company and its customers. He added an uplift of six months to reflect the charge of misusing a telephone and dishonestly accessing his former employer’s computer system. To the end starting point of four years imprisonment, the Judge added an uplift of six months to reflect previous convictions. He then applied a discount of six months to reflect mitigating factors other than the guilty pleas. These included rehabilitative efforts and acceptance of responsibility for the offending. The Judge then applied a discount of 15 per cent to reflect guilty pleas entered approximately a year after the charges had been laid. This resulted in the end sentence of three years four months imprisonment.

Decision

The starting point

[12]   On Mr Rapana’s behalf Ms Oxnam submits that an overall starting point of no more than three years imprisonment was warranted to reflect all aspects of Mr Rapana’s offending. She has referred me to authorities in which courts have set starting points of around two years nine months to three years three months to reflect offending that she says is similar to that engaged in by Mr Rapana.2

[13]   This submission must be assessed against the fact that Mr Rapana engaged in repeated offending against both his employer and his employer’s customers. The offending against the employer involved breach of trust in the use of the credit card and company cheques. It also involved blatantly fraudulent behaviour that has caused significant loss to six other complainants. The victim impact statements from these persons reveal that the offending has had very serious effects for them. Mr Rapana’s employer has also now gone out of business, although that is not wholly attributed to Mr Rapana’s offending.

[14]   Viewed overall, I consider that the repetitive nature of the offending, together with the other aggravating factors, easily justify a starting point of three years six months imprisonment. Indeed, it could be argued that a higher starting point could be justified.

Uplift for other charges

[15]   I accept that an uplift of six months in relation to the remaining two charges may have been towards the upper end, if not slightly out of range, given the limited period over which the offending occurred and the apparent absence of financial or other loss for the employer. The principal effect for the former employer was the inconvenience of using the use of the landline for a period of ten days, together with inability to access the internet over a lesser period.

2      R v Hayes CA197/06, 24 November 2006; Visser v Police [2015] NZHC 3275; Wilton v Police

[2015] NZHC 427.

[16]   That factor needs to be weighed against the fact that Mr Rapana was on bail on other charges at the time this offending occurred. The other charges related to conduct towards a former employer having similar features to that in the present case. This is a significantly aggravating factor and, in my view, should be added to the mix. For that reason I do not consider the uplift of six months for the remaining two charges can be criticised.

Uplift for previous convictions

[17]   Ms Oxnam points out that Mr Rapana had not been sentenced on several of the earlier dishonesty charges that the Judge took into account when setting the uplift of six months for previous convictions. Those charges related to offending that occurred between November 2014 and February 2015. Mr Rapana was not sentenced on those charges until 30 June 2016. That date post-dated the offending covered by all but one of the present charges. As a result it cannot realistically be said that Mr Rapana had failed to learn his lesson from previous sentences imposed by the Court.

[18]   I agree with this submission as far as it goes, but Mr Rapana has two other previous convictions for obtaining by deception. These were entered in April 2012 and November 2014. He also has other dishonesty convictions, including one for burgling a former employer’s property. That charge was laid after Mr Rapana retained a key belonging to his employer after his employment ceased. He then used the key to enter his employer’s premises to steal items inside. I consider those three convictions were clearly relevant in the present case and demonstrated Mr Rapana had not learned his lesson from previous sentences. The overall uplift was just over ten per cent. I do not consider that to be outside the available range. I therefore do not consider the Judge fell into error in applying an uplift of six months to reflect previous convictions.

[19]   Any concern I had in that regard evaporates when I consider the discount the Judge applied to reflect rehabilitative efforts and acceptance of responsibility. The Judge explained this in the following paragraph from his decision:3

3      R v Rapana, above n 1.

[47] As to matters of mitigation, there does appear now finally to be a full- breasted acceptance of responsibility for the damage that you have caused, and some attempt to address your underlying issues, which go back many years, as evident in the psychiatrist report, and some attempt to deal with your alcohol issues through CADS and gambling counselling. Those have not been followed through in any full-blooded way, and I guess that is going to have to wait until you have completed the sentence, but to the extent that you do recognise your issues and have started to take steps to deal with them, and do accept responsibility, I would discount the sentence by six months to recognise that factor.

[20]   I consider this discount to have been generous to Mr Rapana given the qualifying factors referred to in the passage set out above. It removes any concern I may have had regarding the level of uplift applied in relation to the telephone and computer charges and for previous convictions.

[21]   Ms Oxnam does not take issue with the level of discount applied to reflect Mr Rapana’s guilty pleas. That being the case, I cannot say the end sentence is manifestly excessive.

Result

[22]The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau Public Defence Service, Auckland