Reihana v Police
[2019] NZHC 2078
•22 August 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-463-000066
[2019] NZHC 2078
BETWEEN RHIANNON PAIGE REIHANA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 August 2019 Appearances:
L L Owen for the Appellant
G Banuelos for the Respondent
Judgment:
22 August 2019
JUDGMENT OF WOOLFORD J
Solicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel: L Owen, Owen Law Limited, Rotorua
REIHANA v NZ POLICE [2019] NZHC 2078 [22 August 2019]
[1] On 4 June 2019 in the Tokoroa District Court, Judge Hollister-Jones sentenced Rhiannon Paige Reihana to two years and two months’ imprisonment on the following charges:
(a)Accessing computer system for dishonest purposes;1
(b)Three counts of obtaining by deception (over $1,000);2
(c)two counts of obtaining by deception ($500 - $1,000);3
(d)two counts of obtaining by deception (under $500);4
(e) Theft ($500-$1,000);5
(f)Theft (under $500);6
(g)Intimidation;7
(h)Failing to answer bail.8
[2] Ms Reihana now appeals against sentence on the ground that it is manifestly excessive.
Facts
[3] The appellant obtained the user name and password of her grandmother’s internet bank account and made a total of 30 transfers, totalling $11,892, to her own account. The appellant also approached associates and asked to use their bank
1 Crimes Act 1961, s 249(1)(a); maximum penalty seven years' imprisonment.
2 Crimes Act 1961, s 240(1)(a); maximum penalty seven years' imprisonment.
3 Crimes Act 1961, s 240(1)(a); maximum penalty one year imprisonment.
4 Crimes Act 1961, s 240(1)(a); maximum penalty three months’ imprisonment.
5 Crimes Act 1961, s 219 and 223(c); maximum penalty one year imprisonment.
6 Crimes Act 1961, s 219 and 223(d); maximum penalty three months’ imprisonment
7 Summary Offences Act 1981, s 21(1)(a); maximum penalty is three months’ imprisonment or
$2000 fine.
8 Bail Act 2000, s 38(a); maximum penalty is one year imprisonment or $2000 fine.
accounts and ATM cards in exchange for a small amount of money. She made a further 30 transfers from her grandmother’s account to their accounts, totalling $7,435.
[4] On 17 December, the appellant got into a dispute with her neighbour and spoke threateningly and threatened violence.
[5] Whilst on bail, the appellant stole her grandmother’s purse, containing $50 cash and debit cards. The appellant used the cards to spend $74.69 at a petrol station and later $280.44 at a tavern. The appellant also took her grandmother’s chequebook and cashed some cheques to the value of $400. She also used her grandmother’s driver’s licence to make online applications for finance and got $3,843 from that. When staying with a friend, the appellant used her ASB card and obtained $631 from it.
District Court decision
[6] The Judge set a starting point of two years nine months’ imprisonment for the lead dishonesty offence (transferring the money from her grandmother’s bank account), based on the following aggravating factors:
(a)The breach of trust;
(b)Premeditation (shown by the repetitive offending);
(c)The scale of the offending;
(d)The impact on the victims, especially the appellant’s grandmother who would not get the money back.
[7] This was uplifted by one month for the threatening charge and two months for the bail charge and offending on bail. The Judge recognised that the appellant was remorseful and allowed a discount of three months for her remorse, insight and prospects for rehabilitation. The Judge awarded a guilty plea discount of 21-22 per cent, because although the appellant’s plea was early, it came after she had earlier entered pleas of not guilty.
[8] The end sentence on the lead offence was two years and two months’ imprisonment, with reparation of $4,000 as the appellant could not afford full reparation.
Approach to appeal
[9] The Criminal Procedure Act 2011 sets out that a first appeal court must allow an appeal if satisfied that:9
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[10] This court must point to an error made by the District Court, either in the Judge’s reasoning or shown by additional material considered on appeal.10 The error must be adequately significant for the appeal to be allowed – although the Criminal Procedure Act 2011 does not require the sentence to be ‘manifestly excessive’, this is a helpful concept when considering the seriousness of the error.11
Submissions
Appellant submissions
[11] Counsel for the appellant submits that the discounts given by the Judge for personal mitigating factors and her guilty plea were inadequate. Counsel submits that a further discount of one month should have been given for her previous good character and limited criminal history, despite her adverse life experiences.
[12] Counsel submits that the District Court’s sentence was manifestly excessive and should have been two years or less. As a result, home detention could have been considered. The appellant can be granted home detention to her mother’s home in Mangakino. Counsel submits that staying with her mother will help the appellant to
9 Criminal Procedure Act 2011, s 250.
10 Tutakangahau v R [2014] NZCA 279 at [30].
11 At [35].
properly address her addiction issues, which were the driving force behind her offending. Counsel also suggests home detention conditions that would be suitable.
[13] Counsel has also provided the Court with a letter from the appellant. She states that she has taken full responsibility for her actions and says she is willing to address her addiction issues and take any necessary steps for rehabilitation.
Crown submissions
[14] The Crown submits that the appropriate reductions were made for the appellant’s mitigating factors and guilty plea.
[15] The Crown notes that a sentence should not be artificially tailored to fall below two years so that the offender is eligible for home detention.12 The Crown is neutral as to whether home detention should be granted if the sentence on appeal falls below two years’ imprisonment.
Analysis
[16]The Court of Appeal has provided guidelines for dishonesty offences:13
[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.
[23]It is in the assessment of culpability that comparison with other cases is to be undertaken.
[17] Although counsel for the appellant has not directly disputed the District Court Judge’s starting point of two years and nine months’ imprisonment for the lead offence, it should be compared to other dishonesty cases:
(a)In Gobey v Police, Mr Gobey committed dishonesty-related offences causing an overall loss of approximately $41,000 to a number of
12 R v Honan [2015] NZCA 94 at [34].
13 R v Varjan CA 97/03, 26 June 2003.
victims.14 His offending was described as arrogant and it was noted that he preyed on people who were vulnerable to manipulation.15 The High Court considered that the starting point of two years nine months' imprisonment was at the higher end, but not out of range for repeated offending over six months, involving different modes of offending and premeditation, planning and sophistication (including impersonating a police officer).16
(b)In Haereroa v Police, Ms Haereroa’s participation in a complex system of defrauding about 20 elderly people attracted a starting point of two and a half years' imprisonment.17 On appeal, that starting point was held to be at the higher end of the available range. The total amount obtained by Ms Haereroa was about $34,000.
(c)In Brown v Ministry of Social Development, Ms Brown was charged with a variety of dishonesty offences for benefit fraud committed over a period of 15 years.18 The total amount obtained by Ms Brown was
$255,177.83. On appeal, it was held that an appropriate starting point would have been three years’ imprisonment.
[18] By comparison, it can be seen that the starting point imposed in the District Court in this case was too high. The appellant’s offending was egregious and has severely affected her grandmother, but it was less sophisticated and involved fewer victims and less money than the above cases. She has acknowledged that she was motivated by addiction, but this is less serious than comparable cases where defendants are willing to defraud people because of their arrogance and greed. A starting point of 23 months’ imprisonment is all that can be justified for the lead offence. As to the other dishonesty offences, the concurrent sentences imposed by the District Court Judge are appropriate.
14 Gobey v Police [2018] NZHC 1555.
15 At [16].
16 At [18].
17 Haereroa v Police [2019] NZHC 318.
18 Brown v Ministry of Social Development [2018] NZHC 3131.
[19] I do not accept counsel’s submission that the discounts are insufficient. The three-month discount reflected the mitigating factors and a plea discount of 21-22 per cent was fair in the circumstances. Nevertheless, because the starting point was too high the end sentence was manifestly excessive. The total sentence imposed was not within range.
[20] I am satisfied that from a starting point of 23 months’ imprisonment, uplifted by one month for the threatening charge and two months for the bail charge and offending on bail, with a three-month discount for mitigating factors and guilty plea discount between 21-22 per cent, an end sentence of 18 months’ imprisonment is appropriate. This is less than 24 months, so a sentence of home detention is available for consideration.
[21] In my view, home detention is the least restrictive sentence available, taking into account all the purposes of sentencing. Prison is not the best place for the appellant to address her addiction issues. Home detention will allow her to take responsibility for her offending and will also serve the principles of denunciation and deterrence.
[22] I have not received any information outlining the suitability of the address the appellant has proposed for home detention, so I am not able to substitute a sentence of home detention today. I am able to either grant leave to the appellant to apply for the substitution of a sentence of home detention under s 80I of the Sentencing Act 2002 or adjourn the matter.19 However, I will grant an adjournment for two weeks because the appellant has organised an address, but it has not been checked.
[23] Accordingly, I direct that the appeal be called in front of me by way of a telephone conference on Thursday, 5 September 2019 at 9.00 am.
Woolford J
19 Larkin v Ministry of Social Development [2015] NZHC 680 at [29].
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