Smith v Police

[2019] NZCA 219

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA575/2018
 [2019] NZCA 219

BETWEEN	ANNE-MARIE KATHERINE SMITH Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney, Lang and Whata JJ
Counsel:	K J Basire for Applicant K L Kensington for Respondent
Judgment: (On the papers)	13 June 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

1. Ann-Marie Smith was sentenced by Judge Neave in the District Court to three years’ imprisonment for five charges of obtaining by deception involving the loss of about $20,000.[1]  This comprised a starting point of three years and six months, and an uplift of six months for offending while on bail (twice) and for nine prior dishonesty convictions.[2]  Dunningham J dismissed an appeal against this sentence.[3]  Leave is now sought to bring a second appeal.[4]

   [1]Police v Smith [2018] NZDC 6429 at [19].

   [2]At [14]–[15].

   [3]Smith v Police [2018] NZHC 1335 at [20].

   [4]Criminal Procedure Act 2011, s 253.

2. Ms Smith also applies to extend the time to file, which is unopposed.[5]  The extension is granted accordingly.

   [5]Court of Appeal (Criminal) Rules 2001, r 11.

3. The primary submission in support of leave is that the starting point was too high and the uplift for offending while on bail and for prior convictions was excessive because, among other things, Ms Smith offended while on bail only once, not twice, as the District Court Judge assumed.

4. To qualify for leave, the intended appellant must identify a matter of general or public importance or show that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[6]  Ms Smith claims miscarriage based on a material error and the fact the end sentence was manifestly excessive.

Background

[6]Criminal Procedure Act, s 253(3).  See also McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37]–[45].

1. Ms Smith obtained:

   (a)30 taxi rides totalling $819.50 that she charged to the Acute Demand account of the Canterbury District Health Board;

   (b)$4,800 from a woman by claiming to be a lawyer acting for the woman’s daughter and telling her that she needed the money to place the daughter into a rehabilitation clinic;

   (c)$11,600 from a recent acquaintance on the premise of needing money to buy things for his niece who was having a baby and to pay for lawyer’s fees because his niece was being hassled;

   (d)While on bail for the above offending, $1,400 from a woman by claiming to be from Children, Young Persons and their Families and stating the woman’s daughter had been beaten up in prison and was on suicide watch; and

   (e)$1,680 from a couple after she contacted them claiming to be a case manager from Work and Income New Zealand for their daughter who she said was going to be evicted for non-payment of rent.

Analysis

1. The appeal does not identify any point of general or public importance and it is not evident to us that there has been a miscarriage of justice.  As noted by the applicant, the District Court incorrectly assumed that Ms Smith twice offended on bail rather than once.  But we do not accept the sentence was thereby wrong or manifestly excessive.  A starting point for the offending of three and half years, while high, was available.[7]  There were multiple aggravating factors, including five victims, some of whom were vulnerable persons, a breach of trust in three cases (by falsely claiming to be in a position of responsibility for the victims’ children), a high degree of impact on some of them, and a material degree of planning and sophistication.  The uplift of six months was also justified for the nine previous dishonesty convictions and for a single incident of offending while on bail.

   [7]See Blackmore v R [2014] NZCA 109 at [9]–[10].

2. Ms Basire also refers to Ms Smith’s personal circumstances.  Ms Smith is 32 years old and the mother of two teenage children.  She has had only one previous sentence of imprisonment for eight months with no opportunity to attend treatment programmes in prison.  Ms Basire submits this should have mitigated the extent of any uplift.  It does not appear that these personal factors were raised with or considered by Judge Neave or by Dunningham J.  Even so, we are not satisfied a miscarriage of justice may occur if an appeal is not permitted to address their apparent omission.  The modest, if any, impact on sentence that might be expected for these factors is not sufficient to raise a concern about miscarriage.

3. Overall, it is evident to us that Ms Smith is seeking to relitigate the substantive merits of her sentence for a third time.  We are satisfied, however, that the first two evaluations were available to the Judges in the District Court and the High Court.  Moreover, a further appeal is not necessary to avoid a miscarriage of justice.

Result

1. The application for an extension of time to appeal is granted.

2. The application for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent