Rogers v Police

[2025] NZHC 627

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2024-463-136

[2025] NZHC 627

BETWEEN

LARNDEE ROGERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 March 2025
Appearances:	A McManus (on behalf of L Robertson) for Appellant T T Taane for Respondent
Judgment:	24 March 2025

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 24 March 2025 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:

Pollett Legal, Tauranga

Lance Lawson Ltd, Rotorua

ROGERS v NEW ZEALAND POLICE [2025] NZHC 627 [24 March 2025]

[1]                 Ms Rogers pleaded guilty in the District Court to a charge of theft by a person in a special relationship.1 On 28 November 2024, Judge L M Bidois sentenced her to two years three months’ imprisonment.2

[2]                 Ms Rogers appeals against sentence on the basis that the sentence the Judge imposed was manifestly excessive and wrong in principle. She says the Judge ought to have provided her with a discount to reflect the fact that a sentence of imprisonment will impose severe hardship on her daughter.  Had the Judge taken that approach,  Ms Rogers contends she would have received a sentence of less than two years’ imprisonment. This would have enabled the sentence to be converted to one of home detention.

The offending

[3]                 Ms Rogers was employed in an administrative role by a charitable trust that carried out educational functions within the community. It had a very limited pool of funding. Over a lengthy period, Ms Rogers stole money from the trust on at least 111 occasions. It was estimated that the total amount of money stolen amounted to approximately $340,000. The offending had a devastating effect on Ms Rogers’ employer because it had no means of replacing the funds she had stolen from it.

The sentence

[4]                 The Judge noted that the offending displayed several aggravating factors. It was premeditated and occurred on numerous occasions over a lengthy period of time. It also resulted in a significant sum of money being stolen. The effect on the victim was very significant. IN addition, the offending involved a considerable breach of trust on the part of Ms Rogers because she abused her trusted position as an employee when she stole the money.3 These factors prompted the Judge to select a starting point of four years’ imprisonment.4

1      Crimes Act 1961, ss 220 and 223(a).

2      New Zealand Police v Rogers [2024] NZDC 29220.

3 At [15].

4 At [18].

[5]                 The Judge then applied a discount of 25 per cent to reflect Ms Rogers’ early guilty plea.5 The Judge also noted that Ms Rogers was remorseful and motivated to address the issues that prompted her to offend. These included the fact that she has a gambling addiction. In addition, Ms Rogers had offered to repay the sum of $1,500 immediately and was prepared to pay a total sum of $25,000 by way of reparation. The Judge applied a further global discount of 25 per cent to reflect these factors.6 Finally he added an uplift of three months to reflect the fact that Ms Rogers has a previous conviction for similar offending. This resulted in the end sentence of two years three months’ imprisonment.7

The appeal

[6]                 The sole ground of appeal is that the Judge failed to provide Ms Rogers with a discrete discount to reflect the fact that she has a 13-year-old daughter who will suffer severe hardship as a result of the sentence imposed on her mother. Ms Rogers’ daughter suffers from health issues that require considerable management and care. Throughout her life she has been reliant entirely on Ms Rogers for these protective functions.

[7]                 On Ms Rogers’ behalf, Ms Robertson relies on observations made in Campbell v R,8 Phillip v R9 and Sweeney v R.10 These cases all demonstrate that the Courts are required to take the welfare of children into account as part of the personal circumstances of the offender that are relevant to sentencing. These are mandatory considerations under ss 8(h) and (i) of the Sentencing Act 2002 (the Act) and are consistent with New Zealand’s treaty obligations under the United Nations Convention on the Rights of the Child.

[8]                 Ms Robertson contends that the discount of 25 per cent the Judge applied to reflect mitigating factors other than the guilty plea related only to the factors the Judge articulated. These included remorse, acknowledgement of wrongdoing and the offer

5 At [19].

6 At [19].

7 At [20].

8      Campbell v R [2020] NZCA 356.

9      Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.

10     Sweeney v R [2023] NZCA 417.

to pay reparation. It also reflected mitigating factors relating to Ms Rogers’ upbringing that were identified in a cultural report tendered under s 27 of the Act. Ms Robertson submits that the Judge’s sentencing remarks demonstrate that he did not give any discrete discount to reflect the issues relating to Ms Rogers’ daughter.

[9]                 Ms Robertson says  the  Judge  ought  to  have  applied  a  further  discount  of 10 per cent, or around five months, to reflect this factor. This would have reduced the sentence to one of less than two years’ imprisonment so that a sentence of home detention could be considered.

Analysis

[10]In fixing the discounts to be given for mitigating factors the Judge observed:

[19]      Mitigating factors, as I have indicated, are strong, there is a 25 per cent credit for your guilty plea. As to remorse you are genuinely remorseful but that remorse is tempered somewhat, you were sorry last time and you were remorseful last time and yet you have gone on to re-offend in a similar way. You are motivated to address issues and that is reflected in all the reports that I have got. You are getting help. I always ask myself why do people get help only when they have been caught not before when they know that what they are doing is wrong? As identified in the psychological report you had a rough upbringing, your mother has confirmed that to counsel and the impact that it has had on you and your other siblings, it is not surprising that it has led to addiction issues of some sort and that generally leads to offending.

[20]      You offer amends, you have $1,500 to pay today and you are prepared to accept an amount of around $25,000. So for all those factors, on a global basis, I give you a 25 per cent discount. From a starting point of four years I reduce it by 50 per cent to two years. I then am required to add on the three months for your previous conviction. To me deterrence is important. That leaves an end sentence of two years three months.

[11]              As can be seen, the Judge did not expressly refer to the issues relating  to   Ms Rogers’ daughter at this stage of the sentencing process. However, he was plainly aware of these because he had referred to them earlier in his sentencing remarks. He then concluded his remarks with the following observations:

[21]   I have to think about your daughter and the impact that this is going   to have on her, it is going to be huge. Is the least restrictive sentence one of a community-based sentence of home detention and community work? I have to have regard to deterrence, you did not learn your lesson last time, you have gone on to offend in the same way but on a much bigger scale which has had a significant impact so I conclude at the end of the day that the appropriate sentence is one of two years three months. That will commence immediately.

[12]              I accept Ms Robertson’s submission that, based on the Judge’s remarks, he did not provide any discrete discount to reflect the issues that will be faced by Ms Rogers’ daughter even though he was obviously aware of them. It appears that he only considered those issues where he considered whether a sentence of home detention and community work was more appropriate than a sentence of imprisonment. I infer that he would have provided a further discount if he had reached the view that a sentence of home detention and community work was appropriate.

[13]              However, the Judge should have applied a discount to reflect the issues relating to Ms Rogers’ daughter even if he did not consider it appropriate to convert the resulting sentence to one of home detention. The approach he adopted effectively deprived Ms Rogers of a discount she should have received. I accept that a discount of five months, or approximately ten per cent, would have been appropriate to reflect those issues. This would have reduced the sentence to one year ten months’ imprisonment.

Is a sentence of home detention appropriate?

[14]              The Judge obviously considered a sentence of home detention was not appropriate for the reasons he gave in the passage set out above.11 In considering whether he was in error I need to bear in mind the principle that the choice of sentence in this context is a matter of judicial discretion. That discretion is fettered by the purposes and principles of sentencing contained in the Act.12

[15]              In the present case the Judge reached his decision based on those principles and purposes. He clearly considered that principles of deterrence were to the forefront given the nature of the offending and the fact that Ms Rogers has offended in a similar way in the past. The weight that a sentencing Judge attaches to a particular factor does not ordinarily provide a basis to a challenge of the exercise of the discretion unless it produces a sentence that is plainly wrong.13 That is not the case here. Ordinarily I would not have been prepared to convert the sentence to one of home detention.

11 At [11].

12     Fraser v R [2013] NZCA 250 at [20].

13     McConnel v R [2013] NZCA 303 at [15].

[16]              However, I now have additional information about issues that have arisen since Ms Rogers was sentenced. Ms Rogers was aware prior to sentencing that she was likely to receive a sentence of imprisonment. As the pre-sentence report notes, she arranged for her mother to assume the care of her daughter if that should occur. This involved her mother becoming familiar with her granddaughter’s health issues and the daily treatment it required.

[17]              Unfortunately, however, Ms Rogers’ mother has now been diagnosed with serious health issues herself. This meant she could no longer care for her granddaughter. She passed her care to another relative who, not surprisingly, was unfamiliar with the level of oversight Ms Rogers’ daughter would require. The new caregiver has done her very best to provide the appropriate level of care but this has proved extremely difficult for a variety of reasons. As a result, Ms Rogers’ daughter has suffered a major decline in her health. This is likely to continue until Ms Rogers is released from prison and can resume caring for her. In those circumstances I am satisfied the appropriate sentence is now one of home detention.

[18]              The pre-sentence report assesses Ms Rogers as being suitable for a community-based sentence and confirms that she has an address at which she can serve a sentence of home detention. This has been assessed as technically suitable for such a sentence and the occupants of that address have been assessed as suitable sponsors.

[19]              Had a sentence of home detention been imposed in November 2024, the sentence of 22 months’ imprisonment would have been converted to eleven months’ home detention. This reflects the fact that, unlike a short-term of imprisonment, an offender must serve the whole of a sentence of home detention.

[20]              I need to take into account the fact that Ms Rogers has now spent four months in prison. This is equivalent to a sentence of eight months’ imprisonment because offenders serving a sentence of less than two years’ imprisonment are automatically released after serving one-half their sentence.14 Unless an adjustment is made at this stage Ms Rogers will get no credit for the period spent in prison if the sentence is now converted to home detention. I would therefore subtract the eight months (equivalent)

14     Parole Act, s 86(1).

from the sentence of 22 months’ imprisonment to reflect the time Ms Rogers has already spent in prison and then convert the resulting sentence to one of seven months’ home detention.

Result

[21]              The appeal is allowed. The sentence of two years three months’ imprisonment is set aside. In its place I impose a sentence of seven months’ home detention to be served at the address nominated in the pre-sentence report dated 11 October 2024. That sentence is to take effect from Wednesday 26 March 2025.

[22]              Ms Rogers is to serve the sentence subject to the special conditions set out in pre-sentence report 11 October 2024.

Lang J