S v Police HC Wellington CRI-2010-435-9
[2010] NZHC 1574
•10 September 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2010-435-9
S
v
NEW ZEALAND POLICE
Hearing: 10 September 2010
Appearances: Mr Blathwayt for the appellant
Mr Murray for the respondent
Judgment: 10 September 2010
JUDGMENT OF MALLON J
S V NEW ZEALAND POLICE HC WN CRI-2010-435-9 10 September 2010
Introduction
[1] Ms S took out loans from various finance companies forging her husband’s signature in the applications. She spent the money on household and personal items. By the time her forgeries were discovered the total amount outstanding was $177,463.96, although a good proportion of this is interest and other fees charged by the finance companies. She pleaded guilty to eight charges of obtaining a pecuniary advantage by deception (under ss 240(1)(b) and 241(a) of the Crimes Act) and is currently serving a sentence of 18 months’ imprisonment. She was declined name suppression but was given interim name suppression pending her appeal against sentence to this Court.
[2] The issues on this appeal are whether the District Court erred by imposing a sentence of imprisonment rather than one of home detention and by not granting name suppression.
Appeal against sentence
[3] The District Court Judge adopted a starting point of two years and 6 months imprisonment. She discounted this by 10% for previous good character, remorse and Ms S ’s mental state. She applied a further discount of 33% for Ms S ’s guilty plea at the earliest opportunity. This meant an end sentence of 18 months’ imprisonment. She ordered reparation of $25,000 to be paid at the rate of $100 per week.
[4] Counsel for Ms S submitted that the starting point was arguably excessive but did not pursue this point. I consider that counsel for Ms S was right not to pursue the point. As the Crown submits, it was a starting point that was open to the Judge. Counsel for Ms S submitted that a greater discount for remorse and Ms S ’s mental state should have been permitted. However, having reviewed the material before the District Court Judge, I would not have allowed any discount for these factors (the discount for the guilty plea covers the discount for remorse and I do not regard Ms S ’s mental state as of a nature which reduces her culpability). I do, however, regard these as relevant to
whether a sentence of home detention rather than imprisonment (discussed further below) should have been imposed. For her previous good character and her guilty plea, a total discount of 44% was appropriate and counsel for Ms S does not contend otherwise.
[5] The focus of the appeal was on the District Court Judge’s decision to reject a sentence of home detention rather than imprisonment. The Judge’s reasons were as follows:
First, in my view a sentence of home detention does not achieve the purposes of sentencing you today, especially deterrence and denunciation. Secondly, your offending took place in the home; the loans were fraudulently obtained and in part used to buy household items, which benefitted you and your family. Thirdly, in my view your offer to pay $100 reparation per week is inadequate, given your means, although I have taken that into account in assessing the amount of reparation I am going to order. Fourthly, from my survey of comparable cases, including Lee v Police (High Court Auckland 23 October 2009 – CRI-2009-404-000231), a term of imprisonment must be imposed to be comparable with other sentences, given the level of your offending, the time over which it occurred, and the deliberateness of your offending. Finally, with regard to your mental health, I am satisfied that prison is equipped to manage your mental health issues.
[6] I consider that the Judge erred in a number of respects. First, and as the Crown accepts, if the Judge viewed the offer of reparation as inadequate, that in and of itself was not an aggravating feature that would make home detention inappropriate, but was instead the absence of a mitigating factor.
[7] Secondly, and as the Crown accepts, it was not correct that parity with comparable cases meant that imprisonment, rather than home detention, had to be imposed. The case cited by the Judge was not a comparable case on the facts and in the appeal to the High Court there was no discussion as to whether home detention was appropriate (the appeal being concerned with the term of the sentence). The Crown accepts that in offending of this kind, a first offender ordinarily would have been sentenced to home detention.
[8] To these points I add the point made by Ms S ’s counsel that Ms S should be sentenced on her ability to pay and not her husband’s ability. It is not clear that Ms S (as opposed to her husband) had access to greater funds. Her husband is a surgeon (with a private and public practice). He did
make some efforts to repay the debts his wife had incurred. It appears that he made at least one attempt to borrow money from the bank to repay the debts, but I do not have any real detail about that or any supporting material. He reached a settlement with one of the lenders but was not successful in reaching a settlement with others (leaving the sum of about $155,000 as the amount sought by the other lenders as reparation). Overall, the information before the Court on the family’s financial position was sketchy, and I am left unclear as to whether the husband could have made greater efforts to repay the money borrowed by his wife in his name but declined to do so, or whether he was not in a financial position to have repaid more. But all of this aside, it is not clear whether Ms S had access to relationship property (the assets were held in a family trust) so that she could have offered more even without her husband’s consent.
[9] I also add that I do not regard it is relevant that the offending occurred in the home. That would count against home detention if it meant that Ms S was likely to re-offend from the home when on home detention. That seems unlikely here. The probation officer assess Ms S as at low risk of re-offending and her husband will no doubt be doing what he can to make sure that Ms S does not re-offend in this way again.
[10] In view of the points which the Crown has accepted were errors, it does not oppose the issue of home detention being considered afresh by me. As the Crown accepts, other dishonesty offending has resulted in sentences of home detention. An example is R v Isoefa [2008] NZCA 453 where the breach of trust was greater than here (the solicitor had misappropriated funds of a client who was an 87 year old widow). Indeed the Crown does not make submissions against home detention as the appropriate response on a reconsideration by me.
[11] The Crown has helpfully provided a case by way of comparison which shows that home detention is an appropriate sentencing response here. That case is Bargh v New Zealand Police HC Wellington CRI-2007-485-134, 17 December 2007. It involved fraud of an amount that is not too different from the present case, but the money was defrauded from a Parents Centre of which the offender was the administrator. That offending involved a greater degree of breach of trust than here.
I say that because the offender was in a position of responsibility and the fraud impacted upon the Centre’s ability to fully provide its courses. Here it might be said that Ms S ’s breach of trust was more in relation to her husband, since the money was spent on the household and herself and she may have hoped and expected that her husband would repay the money.
[12] I consider that home detention is the appropriate sentencing response for the following reasons:
a) a home detention sentence is a deterrent sentence;
b) Ms S is a 45 year old woman with no previous convictions;
c) Ms S ’s conviction alone will have a serious effect on her family (particularly her three school age children) and that will be a burden she has to bear;
d)The medical evidence suggests that Ms S was suffering from depression at the time of the offending and that the convictions have exacerbated that; and
e) I accept that she is remorseful and the risk of re-offending is low.
[13] I therefore cancel the sentence of imprisonment and impose a sentence of 9 months’ home detention. In imposing a term of 9 months I am conscious that Ms S has already served eight days in prison. However, it is not a mathematical exercise to set the term of home detention in relation to a sentence of imprisonment (imprisonment can be a more harsh sentence than home detention when it involves removing a mother from her family). In this case I consider a term of 9 months is appropriate to the overall circumstances (including that she has already spent eight days in prison), particularly as I am not imposing a period of community work or supervision which Ms S ’s counsel suggested would be open to me.
[14] The sentence of home detention is subject to the standard conditions and the further conditions set out in the probation report of 2 September 2010.
Name suppression
[15] Counsel for Ms S accepts that in declining name suppression for Ms S the Judge made no error in principle. He accepts that I could only overturn the Judge’s decision if I viewed it as plainly wrong. He relies on the medical evidence as to Ms S ’s mental health and that “any reports in the media locally are unlikely to be tempered by any desire to avoid imperilling [Ms S ’s] mental and emotional state”. He showed me the headline that had already appeared about the case in the local media.
[16] The Judge dealt with the issue of name suppression as follows:
The grounds on which you make this application are, first, based on the letter from Dr Peter Cowley, consultant psychiatrist and therapist, dated 27 August
2010, who states that if there is a possibility of maintaining name suppression, this will remove one aspect that will help you cope with the stress of the Court case and lessen the risk of deterioration of your mental
state and risk of suicide. The letter states that Dr Cowley has urged you to start antidepressant treatment.
The second basis is contained in the letter from your husband dated 29
August 2010. In that letter, your husband says he is concerned about the impact of publication on your 13 year old daughter and that it would make
her social situation very difficult. Your husband also says that publication of
your name might make it impossible for him to continue practising as an orthopaedic surgeon in the Wairarapa. Your husband also says that he is
concerned about the effect on you if your name is published in the press. He
says that you are receiving help but there is significant potential for self- harm.
The starting point must always be the importance of freedom of speech and open judicial proceedings, as was held in R v Liddell [1995] 1 NZLR 538. The presumption of open reporting may be displaced by other considerations.
In this case the factors, in my view, that favour open reporting are, first, that you have been convicted of these offences; secondly, that these are serious offences; thirdly, that there is a real public interest in knowing your character, particularly as this is dishonesty offending; fourth, that in relation to your daughter and husband, in my view, it is usual for distress, embarrassment, and adverse personal and financial consequences to attend convictions for criminal proceedings, both for the offender and for their
families, and the position of your daughter and husband raises nothing out of the ordinary or disproportionate to the public interest in open justice.
The factor that does weigh against open reporting is the potential for adverse impact on your mental health and risk of self-harm. Although I have carefully considered the information before me in relation to those issues, I am satisfied that they are being adequately addressed and can be managed.
In weighing the factors I have referred to, I find the balance clearly comes down in favour of open reporting. In other words, the presumption of open reporting has not been displaced in your case. In coming to my decision, I have taken into account the fact that the same approach should be taken to all those who come before the Courts, and no preference should be given to those who are prominent in the community.
[17] I consider that the Judge was not plainly wrong to refuse name suppression. Further, I am in complete agreement with the balancing exercise she undertook. I add that Ms S ’s psychiatrist is expecting to see Ms S on a regular basis to review her treatment and this must minimise the risk of harm to Ms S from the refusal of name suppression.
[18] I have been told that all those who need to know of Ms S ’s convictions have been informed. There is therefore no need to extend interim name suppression for a further short period so that Ms S and her husband have the opportunity to inform those that they need to.
Result
[19] The appeal against sentence is allowed. The sentence of imprisonment is replaced with 9 months’ home detention. The reparation order remains. The appeal
against refusal of name suppression is dismissed.
Solicitors:
J Blathwayt, WCM Legal, Carterton, [email protected]
I Murray, Luke Cunningham & Clere, Wellington, email: [email protected]
Mallon J
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