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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Police

Details

AGLC: Smith v Police [2018] NZHC 1335
Case: [2018] NZHC 1335
Decision Date: 7 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, the case of Smith v Police involved an appeal by the appellant, Ann-Marie Katherine Smith, against her sentencing by the District Court at Christchurch. Smith had been sentenced to three years' imprisonment for four charges of obtaining by deception and one charge of using a document for pecuniary advantage. Smith's appeal was based on the argument that the sentence was manifestly excessive and failed to consider the principles of assisting her rehabilitation and imposing the least restrictive outcome. The central legal issues were whether the sentence was justified under the relevant sentencing principles and whether the court should intervene and substitute its own views on the matter.

The court found that the sentence was appropriate and did not constitute an error. The judge had assessed the culpability of the appellant based on the factors set out in R v Varjan, considering the number of charges, the circumstances of the offending, and the deliberate targeting of vulnerable victims. The court found that there was no error in setting the starting point at three and a half years, and the sentence was confirmed by reference to cases such as R v Simpson. Furthermore, given Smith's history of offending and her culpability in the current offending, the judge had little option but to impose a sentence of imprisonment. The appeal was dismissed, and the original sentence was upheld.

Orders