Smith v Police

[2018] NZHC 1335

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000037

[2018] NZHC 1335

BETWEEN

ANN-MARIE KATHERINE SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 June 2018
Appearances:	C D Eason for the Appellant S L Dayal for the Respondent
Judgment:	7 June 2018

JUDGMENT OF DUNNINGHAM J

[1]                   On 29 March 2018, the appellant, Anne-Marie Katherine Smith, was sentenced in the District Court at Christchurch on four charges of obtains by deception (over

$1000) and one charge of using a document for pecuniary advantage.1 Judge Neave

sentenced the appellant to three years’ imprisonment.

[2]                   The appellant appeals sentence on the basis that the sentence was manifestly excessive and failed to have due regard to the purpose of assisting the offender’s rehabilitation2 and the principle of imposing the least restrictive outcome that is appropriate in the circumstances.3

1      New Zealand Police v Ann-Marie Katherine Smith [2018] NZDC 6429.

2      Sentencing Act 2002, s 7(1)(h).

3      Section 8(9).

SMITH v NEW ZEALAND POLICE [2018] NZHC 1335 [7 June 2018]

Background

[3]                   The charges related to the following offending, which occurred between January 2017 and December 2017:

(a)From January to March 2017, the appellant unlawfully charged 30 taxi rides to the acute demand account of the Canterbury District Health Board.4 The total amount incurred was $819.50 and was not recovered.

(b)On 1 March 2017 the appellant called the 72 year old victim, falsely claiming to be a lawyer from the Community Law Centre who was acting for the victim's daughter. In a sequence of calls over the next few days she asked for money to secure a place for the daughter in a rehabilitation clinic. The appellant received $4800, which was not repaid.

(c)On 17 April 2017 the appellant, having recently met the 49 year old victim, asked him to take out a loan to buy items for his niece who was expecting a baby. The appellant told the victim that it was a surprise for his niece. The victim took out of loan for $12,000 and transferred

$10,000 into the appellant's account. The appellant then asked for a further $1600 to pay for lawyers' fees which she also received. Neither amount was recovered.

(d)On 14 December 2017 the appellant contacted the 57 year old victim and claimed to be from Children, Young Persons and their Families. The appellant told the victim that the victim's daughter, who was in prison, had been beaten up, that there were more serious charges pending for her daughter,  and  that she  could be  looking at  up  to  12 years. The appellant said that the victim would have to pay $1400 for an appeal to the High Court. The appellant received the sum. The

4      Acute Demand taxis are booked for the purpose of transporting patients to and from urgent health appointments. The appellant was not nor has been a patient at the hospital.

victim is a beneficiary and legally blind. The appellant was not known to the victim. The amount was not recovered.

(e)On 21 December 2017 the appellant called the elderly victims and claimed to be their daughter's case manager from Work and Income New Zealand. The appellant claimed the victim's daughter was severely in debt and risked being evicted. She asked $4147.72 be paid, but settled for $1680. The victim's daughter suffers from chronic depression and the appellant was a previous caregiver. $1680 was paid to the appellant by the victims and was not recovered.

District Court decision

[4]                   The Judge described the offending as serious, cynical, manipulative and cruel. The appellant took advantage of victims who were in vulnerable positions. The offending itself led to significant emotional impact on the victims. In addition, significant amounts were taken and the offending was calculated and repetitive. Given the gravity of the offending, Judge Neave set a starting point of three and a half years’ imprisonment.

[5]                   The Judge then considered the appellant's previous nine convictions which related to dishonesty offending. For those, he gave a small uplift of three months. The judge noted the offending was committed whilst on bail. For that he added a further period of three months, making a total of four years.

[6]                   Judge Neave then considered mitigating factors. The judge noted that the pre-sentence report indicated a level of remorse and an intention on the appellant’s part to deal with her drug addiction. The judge was cynical as to the truthfulness of such statements given the nature of the offending but, nonetheless, gave a credit of three months. A further credit of nine months was given for the appellant entering a guilty plea. That brought the final sentence to three years imprisonment.

Principles on appeal

[7]                   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6

Submissions

Appellant’s submissions

[8]                   Mr Eason, for the appellant, submits that a term of three years of imprisonment was wrong in that it was manifestly excessive. The maximum sentence is seven years imprisonment for obtaining by deception, and he notes that the starting point adopted is half of the maximum sentence. He says it appears to have been justified by a reference to the way the money was obtained as opposed to the value.

[9]                   Mr Eason further submits that the sentence imposed does not adopt the least restrictive outcome appropriate in the circumstances. Particular emphasis was placed on the pre-sentence report where the Department of Corrections favoured a sentence that focused on rehabilitation. It recommended a sentence of imprisonment with leave to apply for home detention noting that her drug addiction was a significant driver towards her offending and she had indicated that she was “highly motivated towards residential treatment”.

[10]               Mr Eason noted, that although there were four charges of obtaining by deception, the total amount obtained was only $17,000 and, in the circumstances, it would have been more appropriate to impose a sentence of imprisonment for two years or less with leave to apply for home detention, as that would have satisfied the purposes and principles in the Sentencing Act, and in particular, the requirement to

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Ripia v R [2011] NZCA 101 at [15].

assist in the offender’s rehabilitation and reintegration and to impose the least restrictive outcome that is appropriate in the circumstances.

Respondent’s submissions

[11]               Ms Dayal, for the respondent submits that the sentence imposed was not manifestly excessive.

[12]               In response to the appellant’s assertion that it is the amount taken which is relevant to sentencing, she points to the Court of Appeal decision in R v Varjan which held that the seriousness of the offence of obtaining by deception was to be assessed having regard to a wide range of factors saying:7

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. Further, the amount of money lost or dealt with is not determinative of the seriousness of the offence.

It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, remorse and personal circumstances necessarily must be assessed in each particular case.

[13]The respondent also pointed to the Court of Appeal’s comments in R v Hapuku

that:8

There is little to be gained from comparing and contrasting fraudulently obtained sums or the duration of the offending in cases of this type, those are but two of the many relevant factors a sentencing court must weigh. Other aggravating features and the personal circumstances of the offender must be considered. What is required of a sentencing court is a carefully exercised discretion, bringing into play the provisions of the Sentencing Act 2002 relevant to the circumstances before it.

[14]               The respondent then submits that an analogous case is the Court of Appeal’s decision in R v Simpson, where a starting point of five to five and a half years imprisonment in respect of four charges of obtaining pecuniary advantage by

7      R v Varjan CA97/03, 26 June 2003.

8      R v Hapuku [2007] NZCA 463 at [13].

deception was upheld.9 Over a duration of seven months, the appellant made "cold calls" to elderly victims aged between 70 and 88 years and who lived alone. The appellant introduced himself as a roofer offering to carry out repair work and persuaded the victims to pay deposits for the work. In some cases, he returned and obtained further payments on account. A total of $19,200 was fraudulently obtained.

[15]               The respondent submits that the offending in this case is similar to Simpson, although acknowledges that the Court in Simpson took into account the appellant's significant number of relevant previous convictions when setting the starting point. In particular, the court noted that Mr Simpson had previously been sentenced for cheating an elderly woman out of $13,300. He was sentenced to three years for that offence, and the sentencing judge had regard to the need to impose a harsher sentence.

[16]               The respondent submits that the appellant's culpability is high and warrants a starting point of three and a half years when assessed against the culpability factors referred to in Varjan. The offending was sophisticated, occurred over a short duration (one year), and appears to have been motivated by greed as opposed to need. Further, the appellant deliberately targeted victims who were in vulnerable positions. The victims have been significantly impacted by the offending and have suffered a significant breach of trust.

[17]               The appellant had received non-custodial sentences in the past for charges of obtaining by deception. She had also had a short term of imprisonment for such charges imposed in 2017 but this, too, had not deterred her. In those circumstances, it was reasonable to conclude that the least restrictive sentence that was appropriate in the circumstances was term of imprisonment.

Discussion

[18]               While the Judge did not refer to comparable cases in sentencing, it is clear that he undertook a full assessment of culpability with reference to the factors set out in  R v Varjan. Given the number of charges and the circumstances of the offending, where she deliberately targeted victims who were in vulnerable positions, I can see no

9      R v Simpson [2008] NZCA 467.

error in setting the starting point at three and a half years. The criticism that the Judge placed too little emphasis on the amount obtained and too much on the way she obtained simply does not stand scrutiny. Furthermore, the appropriateness of the starting point is confirmed by reference to cases such as Simpson.

[19]               In the circumstances, the Judge had little option but to impose a sentence of imprisonment. There was no other less restrictive option reasonably available having regard to her history of offending, and her culpability in the current offending.

[20]               In short, I concur with the sentencing judge’s decision. There was no error in sentencing and the appeal is dismissed.

Solicitors:

Colin Eason, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch