Smith v Ministry of Social Development
[2024] NZHC 696
•27 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-649
[2024] NZHC 696
BETWEEN CASEY JOHN BURTT SMITH
Appellant
AND
MINISTRY OF SOCIAL DEVELOPMENT and NEW ZEALAND POLICE
Respondents
Hearing: 11 March 2024 Counsel:
YY Mortimer-Wang for Appellant
J Blythe and K Grant for Respondents
Judgment:
27 March 2024
JUDGMENTOF BECROFT J
[Appeal against sentence]
This judgment was delivered by me on 27 March 2024 at 4pm Registrar/Deputy Registrar
……………………………………
Solicitors/counsel:
YY Mortimer-Wang, Auckland Meredith Connell, Auckland
SMITH v MINISTRY OF SOCIAL DEVELOPMENT & ANOR [2024] NZHC 696 [27 March 2024]
This appeal
[1] Mr Casey John Smith appeals against a sentence of two years, three months and two weeks’ imprisonment imposed on him by Judge AM Wharepouri in the Manukau District Court on 4 December 2023.1
The charges
[2] The relevant charges, to which Mr Smith pleaded guilty, arise from two tranches of dishonesty offending.
[3] The first relates to fraudulently obtaining, or attempting to obtain, payments under various Ministry of Social Development (MSD) COVID-19 subsidy schemes.
[4] The second is what is colloquially known as “money laundering”—and in particular, fraudulently obtaining access to bank accounts and transferring funds out of them.
MSD charges
(a)two charges of using a forged document;2
(b)three charges of dishonestly using a document;3 and
(c)two representative charges of dishonestly using a document.4
[5] The relevant facts are best conveniently summarised now. Between 13 April 2020 and 21 April 2022, Mr Smith dishonestly submitted 43 applications to MSD for wage subsidies or leave support payments. Of these, 19 were in his own name and 24 were in the names of others who were unknown to him, using their real details and names, including Inland Revenue Department numbers.
1 Police v Smith [2023] NZDC 27246 [December 2023 Sentencing].
2 Crimes Act 1961, s 257(1)(a). Maximum penalty 10 years’ imprisonment.
3 Section 228(1)(b). Maximum penalty 10 years’ imprisonment.
4 Section 228(1)(b). Maximum penalty 7 years’ imprisonment.
[6] Five of those applications were successful. A total of $26,946.80 was paid into bank accounts controlled by Mr Smith. This accounts for the two charges of using a forged document and the three charges of dishonest use of a document.
[7] The two representative charges of dishonestly using a document relate to 15 offences where Mr Smith used his own name and 22 offences involving applications in the name of other individuals or companies. In total, there were 38 applications. None were accepted by MSD. If successful, Mr Smith would have obtained a further
$207,515.20 from these applications.
[8] Of the money Mr Smith received, $14,059.20 was paid into an account in the name of a specific individual. That individual’s wallet was stolen in early 2020, and the Westpac accounts in his name were opened on 26 April 2020. Mr Smith “doctored” the person’s driver’s license to include Mr Smith’s own photo in order to open these Westpac accounts. The other bank account in this individual’s name is solely captured by the charges relating to wage subsidy offending.
Police charges
(a)one representative charge of using a forged document;5 and
(b)one charge of money laundering.6
[9] On 13 January 2021, Mr Smith applied for a loan of $15,967.59 with Heartland Bank to purchase a BMW motor vehicle. He used a fraudulent driver’s license in the name of another person. He uploaded a selfie video using the Heartland Bank online portal to verify his identity. Heartland Bank contacted the person in whose name Mr Smith applied for the loan who confirmed that no loan had been applied for. The bank was able to stop Mr Smith drawing down any funds. However, the following day, Mr Smith used the same false driver’s license to successfully re-open a closed Westpac Bank account belonging to the same person.
5 Section 257(1)(b). Maximum penalty 10 years’ imprisonment.
6 Section 253(2). Maximum penalty 7 years’ imprisonment.
[10] On 30 January 2021 Mr Smith entered a “2degrees” store and requested a replacement SIM card. He used, and subsequently gained control of, a mobile number belonging to another person. Mr Smith then attempted to gain access to that person’s Westpac Bank accounts. A temporary password was sent to the phone number which was controlled by Mr Smith. Mr Smith successfully accessed the other person’s account using the temporary password.
[11] On 1 February 2021, having gained control of both the individuals’ bank accounts separately, Mr Smith made a range of transfers between and out of the accounts. In doing so, he obtained $50,000.
June 2022 sentencing
[12] At this point, it is important to note that on 1 June 2022, Mr Smith was sentenced to 12 months’ home detention on a number of other dishonesty charges.7
[13] In respect of those offences—between December 2019 and March 2020— Mr Smith used stolen credit card and bank card details to make purchases and, in one case, purchased overseas currency and gift cards. He obtained property and cash to a value of $39,472.75. Later, in February 2021, he also used a fraudulent driver’s license to book a room in a motel.
He was sentenced in June 2022 by Judge JM Jelaš, who:
(a)Adopted a starting point of three years on the primary offending in December 2019 and March 2020, with an uplift of three months for the February 2021 offending. Her Honour noted that, “I need to bear in mind the totality principle so that uplift needs to be kept to a minimum”.8
(b)Indicated a 10 per cent discount for guilty pleas.
7 R v Smith [2022] NZDC 10414 [July 2022 Sentencing]. Mr Smith also faced one charge of possession of methamphetamine. It appears from the Judge’s analysis at [12]–[13] that the starting point was set almost exclusively with reference to Mr Smith’s dishonesty offending.
8 July 2022 Sentencing, above n 7, at [13].
(c)Indicated other discounts, which would not bring Mr Smith’s end sentence to a point where she could consider home detention and would result in a sentence “slightly higher than I consider these circumstances warrant”.9 On the basis that “sentencing is not purely a mathematical exercise”, she exercised her discretion to discount Mr Smith’s end sentence to one of 24 months’ imprisonment, and imposed a sentence of home detention.10
Appeal grounds
[15] Mr Smith appeals Judge Wharepouri’s later sentence on three grounds; specifically, that the Judge erred in:
(a)failing to ensure that the overall starting point properly reflected the totality of all Mr Smith’s offending, including the similar offending in 2020–2022, for which he had already been separately sentenced by Judge Jelaš and for which Mr Smith had completed his sentence;
(b)finding that Mr Smith’s offending was aggravated by an element of breach of trust in the context of the COVID-19 subsidy scheme; and
(c)failing to properly consider and give an adequate discount for the impact of a custodial sentence on Mr Smith’s young daughter.
Judge Wharepouri’s District Court decision
[16]Judge Wharepouri’s decision was careful and comprehensive.
[17] His Honour noted the charges brought by MSD related to the abuse of various COVID-19 support schemes—which included the wage subsidy scheme; the essential workers leave support scheme; and a short-term absence payment to help businesses and those self-employed to pay employees who could not work from home while they isolated for COVID-19 test results. He emphasised the various schemes operated
9 At [27].
10 At [27].
using a “high trust model”, and Mr Smith’s offending in this respect involved breaching that trust.
[18] His Honour, correctly in my view, noted the need to denounce Mr Smith’s conduct, hold him accountable for the harm done to the community and to deter others from committing similar offences. He observed that Mr Smith’s sentence needed to reflect the gravity of his offending, be consistent with sentences imposed for similar offending and adopt the least restrictive sentence warranted in the circumstances.
[19]His Honour noted the approach set out by the Court of Appeal in R v Varjan:11
[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.
[20] He also referred to another case of Downey v Ministry of Social Development.12 In that case, the defendant had obtained $196,076 and the total amount applied for was just under $263,000.
[21] Judge Wharepouri took the MSD offending as the lead charge and adopted a starting point of two years and 10 months’ imprisonment (34 months’ imprisonment).
[22] For the police charges, which in the Judge’s view could have attracted a starting point of two to three years’ imprisonment by themselves, he considered that an uplift of 18 months was all that was required in this instance after making an adjustment to reflect totality.
[23] He also imposed a further uplift of four months to reflect Mr Smith’s considerable previous convictions for dishonesty-related offences which began in March 2016.
11 R v Varjan CA97/03, 26 June 2003 at [22].
12 Downey v Ministry of Social Development [2023] NZHC 2589. An application for leave to bring a second appeal was recently declined in Downey v Ministry of Social Development [2024] NZCA 53.
[24] That resulted in what the Judge described as a “headline starting point” of four years and eight months’ imprisonment (or 56 months).
[25] The Judge then allowed a 25 per cent discount for a guilty plea, 15 per cent to appropriately reflect Mr Smith’s serious drug addiction issues, five per cent to reflect the impact a sentence of imprisonment would have on his growing relationship with his new-born child, and five per cent to reflect what the Judge described as genuine remorse and regret. These discounts amounted to “roughly 50 per cent” (or 28-and-a- half months). When deducted from the “headline starting point” of 56 months, this resulted in an end sentence of two years, three months and two weeks’ imprisonment (or 27-and-a-half months).
A note on the “mathematics” and the nomenclature used in the sentencing
[26] I note that had the District Court Judge followed the sentencing methodology explained in Moses v R, the approximate 50 per cent total reduction should have been applied to the 52 months figure (the adjusted starting point), before the four-month uplift was applied for prior convictions. That would result in an end sentence of 30 months imprisonment (or two years and six months).13
[27] Also, and for what it is worth, I think that for sentences over two years, they are best expressed in just years and months, without including weeks. I accept that is a matter of personal preference for the sentencing judge. In my view sentences, as here, expressed in weeks incorrectly suggest a degree of mathematical exactitude and certainty. Here, two years and three months would have been quite sufficient—albeit that the correct end sentence should have been approximately two years six months’ imprisonment (had the correct methodology been followed).
[28] The New Zealand sentencing methodology is important because it ensures transparency and promotes consistency in sentencing. However, some of the nomenclature that is being employed can cause misunderstanding. I observe the words “starting point” are apt to mislead the public. The words suggest that should be the
13 Following the approach directed in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, and Stuart v R [2021] NZCA 539. It is also the approach discussed in Mo’unga v R [2023] NZHC 1967 and Tangi v R [2023] NZHC 1997.
sentence that a defendant would otherwise receive. In fact, it is only the end of the first phase of the sentencing process. The Sentencing Act 2002 also requires consideration of personal mitigating factors and only when those are considered, is the sentencing process concluded.
[29] Use of the word “discounts” can also cheapen the process and perhaps suggests to the public something akin to discounts available at supermarkets with special deals on offer. This fails to reflect the importance of the statutory mitigating factors and the sentencing process of balancing and assessing the relevant aggravating and mitigating factors in the context of the purposes and principles of sentencing. The sentencing process is not complete until all those relevant factors have been considered. This second phase of the sentencing process (in which the phrase “discounts” is often used) is a legitimate and important part of sentencing.
Law on appeal
[30] Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[31]In any other case, the Court must dismiss the appeal.14
[32] As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:15
[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.
14 Criminal Procedure Act 2011, s 250(3).
15 Campbell v R [2022] NZCA 579 (footnotes omitted).
[33] The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau v R:16
It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.
[34] Generally, there will be an error if the sentence is manifestly excessive, involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.
[35] An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.17 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.18
Should the overall starting point have taken into account Mr Smith’s previous similar offending in 2020/2022 for which he had previously been sentenced?
[36] The first thing to say is that in a busy District Court list, I can well understand that the sentencing Judge focussed on the two tranches of offending that were before him. However, he was clearly well aware of Mr Smith’s dishonesty charges for which he was sentenced in June 2022 and understood that they occurred at roughly the same time.
[37] I also conclude that the four-month uplift was appropriate for previous convictions prior to the charges included in Judge Jelaš’s sentencing.
[38] The offending for which Judge Wharepouri sentenced Mr Smith first began in April 2020—no more than one month after most of the offending for which Judge Jelaš sentenced Mr Smith had finished. In this respect, the offending overall represented a virtual continuum. Mr Smith was charged by the police for the present
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
17 R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].
18 Polyanszky v R [2011] NZCA 4 at [17].
offending in June 2022. He was sentenced by Judge Jelaš for the previously described offending in that very month.
[39] I also note there was an overlap in that Judge Jelaš’s sentencing included a later February 2021 charge, relating to Mr Smith use of a fraudulent driver’s license to book a room at a motel—by which time this offending had clearly begun.
[40] On the issue of “totality”, Ms Blythe, for the Crown, responsibly accepted Ms Mortimer-Wang’s persuasive submission that Judge Wharepouri should have directed his mind to what would have been the situation had Mr Smith been sentenced at the same time, by a hypothetical Judge, for all the charges dealt with by both Judge Jelaš and then Judge Wharepouri. In other words, the nuances of the totality principle apply.19 I accept that the Judge should have done this.
[41] In support of her submission, Ms Mortimer-Wang relied in particular on Opetaia v R.20 Ms Opetaia pleaded guilty in the High Court to a range of charges including aggravated robbery, burglary and theft. On 2 November 2010, Courtney J sentenced her to nine years’ imprisonment on those charges. This comprised two cumulative sentences of four years and five years’ imprisonment respectively. A minimum period of imprisonment was also imposed.
[42] Ms Opetaia was subsequently found guilty in the District Court on a charge of aggravated robbery and assault with intent to rob which occurred slightly before the charges which were the subject of the sentencing by Courtney J. On 3 April 2012, she was sentenced to an effective term of six years’ imprisonment. That sentence was imposed cumulatively on the existing sentence she was already serving. Consequently, Ms Opetaia was required to serve a single notional sentence of 15 years’ imprisonment.
19 See Sentencing Act 2002, s 85. The principle of totality not only applies to active matters before the Court for sentencing but may also apply in circumstances, as here, where there has been previous sentencing for connected or largely similar and proximate offending. The principle has also been applied in cases where the earlier sentence(s) had been completed at the time of sentencing. See, for instance, R v Graham [2021] NZHC 3326.
20 Opetaia v R [2013] NZCA 434.
[43] On appeal, Ms Opetaia contended that the cumulative sentence imposed led to an end sentence that was wholly out of proportion to the gravity of her overall offending. The District Court Judge had not considered that issue and did not stand back and consider whether an effective end sentence of 15 years’ imprisonment was appropriate or disproportionate to the gravity of Ms Opetaia’s overall offending. That step was necessary given that the Judge was imposing sentences that were to be cumulative on those already imposed by Courtney J.
[44] The Court of Appeal considered the matter afresh. The District Court sentence was reduced by three years to reflect that an effective end sentence of no more than 12 years’ imprisonment was appropriate in respect of all the offending.
[45] So, the issue for me is, in applying the totality principle afresh, in respect of all of Mr Smith’s offending, should Judge Wharepouri have imposed a different, and as Ms Mortimer-Wang contended, a lower sentence?
[46] In the Crown’s view, this issue is easily resolved. The Crown adopts the process in Opetaia and says that had Judge Wharepouri sentenced Mr Smith on all his charges, it would have been well open to him to impose a starting point of at least six years. This would have comprised of three years on the MSD charges, an 18-month uplift for the police charges he dealt with, plus another 18 months in respect of the charges before Judge Jelaš. It would also have been open to him to apply a four-month uplift for previous convictions. That would have produced a figure of 76 months. The application of the same roughly 50 per cent reduction adopted by Judge Wharepouri, would result in a sentence of three years four months’ imprisonment, approximately a year higher than a sentence imposed by Judge Wharepouri.
[47] The Crown submits that the eventual package of sentences which Mr Smith received—12 months’ home detention, and then a sentence of two years and three- and-a-half months’ imprisonment—is less restrictive than what Mr Smith could have been sentenced to, had all the matters been dealt with in one sentencing.
[48] The Crown notes that Judge Jelaš exercised substantial leniency in imposing home detention in her sentence in June 2022. In particular, she declined an uplift for previous convictions, even though it was available; and she awarded a discount for personal circumstances which she did not consider was numerically available. In the Crown’s view, Mr Smith was fortunate that Judge Jelaš only imposed a sentence of home detention. Judge Jelaš conceded she was taking a very lenient approach. Leniency in the first sentence tells against any further requirement for Judge Wharepouri to make any additional totality adjustment in 2023.
[49] In the Crown’s view a second back-to-back sentence of home detention, as sought by Ms Mortimer-Wang, would be inappropriate and would not sufficiently recognise the gravity of Mr Smith’s offending consisting of repeated and sophisticated fraud over a period of two years. In the Crown’s view, the least restrictive sentence available to Judge Wharepouri was imprisonment.
[50] At this point, Ms Mortimer-Wang’s argument was that the one-year sentence of home detention should be equated with a two-year imprisonment sentence,21 which means, when it is added to Judge Wharepouri’s sentence, a cumulative sentence of over four years’ imprisonment results. She submits that four years is disproportionate to the offending as a whole, and therefore Judge Wharepouri should have reduced his sentence. I am not necessarily convinced that four years imprisonment would be disproportionate. But in any case, the submission overlooks the fact that Mr Smith’s end sentence in June 2022 was 12 months of home detention. While I acknowledge that sentence is premised on a short term of imprisonment of two years, it is artificial not to consider the practical effect and reality of the sentence actually imposed. I consider that the sentence of home detention followed by Judge Wharepouri’s sentence, was not disproportionate to the offending as a whole.
[51] It can be put another way: two back-to-back sentences of home detention simply would not have adequately reflected the gravity of Mr Smith’s overall offending both as to the nature and number of offences and the amounts involved.
21 This is because the length of the home detention sentence is usually the result of approximately halving the prison sentence (given that sentences under two years imprisonment must result in automatic release from prison on parole conditions when half the sentence has been served).
[52] Ms Mortimer-Wang also provided a number of alternative mathematical formulations when assessing both Judge Jelaš’s sentence and Judge Wharepouri’s sentence to demonstrate how a totality approach may have resulted in mathematically different prison sentences. Given the conclusions I have reached, with respect, there is little point in me repeating those suggestions in any detail, because my end conclusion remains the same.
[53] In light of those calculations and in the circumstances of prolonged dishonesty- related offending by a defendant with a history of similar offending, I do not consider Judge Jelaš’s sentence of 12 months’ home detention followed by Judge Wharepouri’s sentence, when added together, are wholly disproportionate to Mr Smith’s offending as a whole.
Did the Judge err in concluding Mr Smith’s offending was aggravated by a breach of trust?
[54] Ms Mortimer-Wang’s argument on this ground of appeal might, with respect, be called “overly sophisticated”. As I understand it, her submission is that the statutory reference to “breach of trust” as an aggravating feature specifically refers to an offender “abusing a position of trust or authority in relation to the victim”.22 In her view, that aggravating feature is to be understood narrowly as a breach by someone in a position of trust (such as an employee, a parent or step-parent) or authority (such as a priest or schoolteacher). Ms Mortimer-Wang’s submission is that there was no such position of trust or authority here, as conventionally understood. It is said that Judge Wharepouri overstated the aggravating factor in these circumstances as constituting a breach of trust.
[55] In Ms Mortimer-Wang’s view this is an instance of what she calls “equivocation fallacy” where the phrase “breach of trust” has been transplanted across from a different context that does not carry the same normative meaning.
22 See s 9(1)(f) of the Sentencing Act.
[56] My view is that the method adopted by MSD in making assistance available to qualifying applicants during a national pandemic, when there was a crisis faced by employers and employees, and relying simply on a written application that was hard to verify, was indeed a “high trust model”. Any deliberate fraud in that situation was quintessentially a breach of trust.
[57] As I indicated during argument, even if I was wrong on that point, then s 9(4) of the Sentencing Act, which makes clear that nothing prevents a court from taking into account any other aggravating factors that the court thinks fit, surely puts the point beyond any doubt. If Mr Smith’s offending is not a breach of trust in the specific sense defined in s 9(1)(f), it is certainly within the ambit of s 9(4).
[58] As it happened, by the most remarkable of coincidences, while submissions were being made on this point, counsel advised that the Court of Appeal had just issued a judgment at 2.30 pm that day, which decides the issue.23 The Court identified breach of trust, as an aggravating feature for very similar offending:24
… the gross breach of trust that went beyond simply defrauding the taxpayer but involved the exploitation of a fund established at a time of national crisis that depended on the honesty of those who sought to utilise the financial support it offered.
[59] The Court went on to observe that, “We do not consider the identification of this last significant aggravating feature illegitimately elevated wage subsidy fraud to a species of offending where imprisonment was the only available outcome.”25 As Harvey J had recognised in the High Court, the Court of Appeal noted:26
The theft of public funds does fall into a special category of its own. However, it is an aspect of the fraud which renders the offending particularly serious and, as a result, plainly engages the purposes of deterrence and denunciation which were required to achieved by the sentence imposed.
(Footnote omitted)
[60]As I understand it, counsel no longer advances this ground of appeal.
23 Downey v Ministry of Social Development, above n 12.
24 At [15].
25 At [16].
26 At [16].
Was there adequate “discount” for the impact of a prison sentence on the appellant’s young daughter?
[61] Ms Mortimer-Wang’s argument is that the Judge should have given a higher “discount” for the impact of a custodial sentence on Mr Smith’s baby daughter. At least a 10 per cent deduction should have been made. Indeed, this is what defence counsel in the District Court sentencing advocated for.
[62]In sentencing, his Honour noted:27
I have been referred to a case called Philip v R which talks about adjustment in a sentence for the negative impact on an offender’s child or children by imprisonment. Mr Budler submits that in your circumstances an adjustment of 10 per cent is appropriate. While this is a mitigating circumstance that can be taken into account, my view is that it should be tempered by the fact that your partner is the primary caregiver of your three-month-old child and that the role that you play at this stage in its life is not as great or involved as it would be where the child might have been older. It is also important to note that your partner also has wrap-around support from your family in New Zealand and a network of friends that you have built through your participation in BJJ. Accordingly, my view is that a downward adjustment for this feature should be no more than five per cent or three months.
(Footnote omitted)
[63] Sentencing the parent of a new-born child is always difficult. Judges are not immune to the effects of incarceration on children. Indeed, the Convention on the Rights of the Child, to which New Zealand is a signatory, makes clear the importance of a child’s connection with both their parents.28 There is growing research and concern in New Zealand about the consequences for children of imprisoned parents.29
27 December 2023 Sentencing, above n 1, at [30].
28 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), arts 7 and 18. The application of this convention was also discussed recently in the bail context, R v Martin [2023] NZHC 1312.
29 For instance, a charitable trust active in this field in New Zealand is Pillars Ka Pou Whakahou. Pillars estimates there 17,000 children in New Zealand with a parent in prison. Research by Pillars suggests that children who have had a parent in prison are 9.5 times more likely to be imprisoned themselves. It is said that “[c]hildren of people in prison are in a situation they did not choose, yet they face a sentence of their own. They are frequently invisible victims of crime and may become socially and economically isolated. It is not their crime, but it is still their sentence.” There is also work recently carried out by the former Chief High Court Judge, Thomas J, that details the impact of parental incarceration on children, see Susan Thomas, Fiona Kidd and Stacy Shortall Impact of Parental Incarceration on Children (NZLS CLE, October 2023).
[64] I was happy to receive, with the Crown’s consent, further letters from Mr Smith and his partner, Ms Gomes. This material referred to the positive impact that his daughter, has had on Mr Smith’s rehabilitation and how much he is determined to change his life for her.
[65] In her affidavit Ms Gomes describes the critical role that Mr Smith plays as a carer and provider. She describes a shared division of childcare prior to Mr Smith being taken into custody. She deposes that if Mr Smith is able to remain in the community or on home detention and is thus able to look after the child, this would enable her to return to work from maternity leave earlier, and her income would be restored to the normal level. Mr Smith would be considered the primary caregiver in that scenario.
[66] Ms Mortimer-Wang argued that it was wrong for the Judge to assume that in the absence of evidence, and potentially based on outdated stereotypes, that Mr Smith’s role as a father was not as essential as the mother or that his role in the child’s life would not be “as great or involved as it would be where the child might have been older”. In fairness, Ms Mortimer-Wang overstates the assumption. At no stage did the Judge suggest Mr Smith’s parenting role was non-essential. Also, in fairness to the Judge, Ms Gomes was on paid parental leave at the time, in respect of which both counsel agreed it was a precondition that the qualifying parent was the “primary caregiver”.
[67] That said, there is something in the submission that even if Mr Smith’s role was to be considered secondary to that of Ms Gomes (which is not accepted by Mr Smith on the facts) his Honour appears to have treated the 10 per cent discount proposed by defence counsel at sentencing, as the “high water mark” for primary caregivers. And that a lower allowance should be accorded to “secondary caregivers”.
[68] The Crown accepted that a “discount” was available for the impact of the sentence on the child. The Crown also accepted the significant role that fathers can play in the care of their children.
[69] In Phillip v R the Supreme Court addressed the relevance of the impact of incarceration on children in sentencing.30 Reference to sentencing allowances which have been awarded since that decision are helpful:
(a)The Court of Appeal in Milne v R awarded a six per cent discount to recognise the interests of Mr Milne’s children to have him in their lives as soon as possible.31 Mr Milne was also regarded as a father figure by a number of people in his community.
(b)A 10 per cent discount was awarded to R v Maru, where Ms Maru had a young baby (16 months) and two other dependent children.32 She had been caring for the children until the day of sentencing with her partner. The children would be separated and sent to family members if she was imprisoned, and there would be severe repercussions on the children.
(c)A 10 per cent discount was also awarded in Sweeney v R.33 Mr Sweeney, who faced a charge of assault with intent to injure, was the solo caregiver to his two children, who had been relocated to live with grandparents.
(d)A 10 per cent discount was awarded in Phillip. But, in that case there was expert evidence from a clinical psychologist opining on the effect his children might have on Mr Phillip’s rehabilitation.34 Not only is there no evidence of this sort here, Mr Smith’s rehabilitative prospects are also in part captured by the 15 per cent discount to recognise his addiction issues.35
[70] I accept, as does Ms Blythe for the Crown, there will be difficulties for Mr Smith’s partner and child if his imprisonment is upheld. Those consequences are plainly less severe that than the consequences in Maru and Sweeney where the children had to go into the care of extended family as a consequence of a sentence of imprisonment.
30 Phillip v R [2022] NZSC 149, [2022] 1 NZLR 571.
31 Milne v R [2023] NZCA 491.
32 R v Maru [2023] NZHC 790.
33 Sweeney v R [2023] NZCA 417.
34 Phillip v R, above n 30, at [48] and [54].
35 December 2023 Sentencing, above n 1, at [31].
[71] I conclude that a five per cent discount, closer to that awarded in Milne, was within the range. The Judge grappled with the issue carefully. The fact that other judges may have allowed a greater reduction, but probably no more than 10 per cent in this case, does not mean that Judge Wharepouri was in error. It simply indicates that sentencing judges will have legitimately different views of where the mitigating factor of a particular parent’s relationship with their young child falls within the appropriate range.
[72]Ms Mortimer-Wang’s argument in this respect, while well made, fails.
Result
[73] The end sentence imposed by Judge Wharepouri, following the correct methodology, should have been approximately two years six months’ imprisonment. However, I do not propose to increase the sentence on appeal to correct a mathematical error which would disadvantage Mr Smith.
[74] There is no breach of the totality principle and no disproportionality in this sentence.
[75] There is no error in the way the Judge approached “breach of trust” as an aggravating feature.
[76] The Judge was not in error in allowing only a five per cent reduction for parenting considerations and the effect of imprisonment on Mr Smith’s new-born daughter. His five per cent reduction was within range.
[77]The end result is that Judge Wharepouri’s sentence stands.
[78]The appeal must be and is dismissed.
Becroft J
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