Spooner v Police

[2015] NZHC 2872

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000040 [2015] NZHC 2872

BETWEEN

MICHELLE MARIA SPOONER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 November 2015
Appearances:	P Jensen for Appellant MJM Mitchell for Respondent
Judgment:	18 November 2015

ORAL JUDGMENT OF HINTON J

Counsel/Solicitor:

P J Jensen, Barrister, Napier

Elvidge & Partners, Napier

SPOONER v NEW ZEALAND POLICE [2015] NZHC 2872 [18 November 2015]

Summary

[1]      The appellant, Ms Spooner, was sentenced in the District Court to 12 months’ imprisonment for six charges of making a fictitious telecommunication,1  two of criminal harassment2 and one charge of making a false statement or declaration.3

[2]      She appeals against that sentence on the ground that the appropriate sentence should be one of home detention.

Factual background

[3]      In about March 2014 in Auckland, Ms Spooner befriended an 18 year old male (“A”).  They had sexual intercourse on one occasion and Ms Spooner became pregnant.  When A learnt of that fact, he left Auckland.  Ms Spooner was upset that he had left and began sending him abusive text messages.

[4]      In December 2014, she sent abusive and threatening text messages to A’s female friend (“B”), pretending to be A.   She also befriended B on Facebook by adopting a fictitious personality, calling herself “Sarah Jane”.  “Sarah Jane” told B that A had been seeing other women and smoking drugs.   She introduced B to “Lincoln Phillips”, a fictitious person.

[5]      In early 2015, Ms Spooner sent B text messages pretending to be “Lincoln”. Over a period of time and through hundreds of text messages, B and “Lincoln” formed a relationship though they had never met in person.  B believed “Lincoln” was  her  boyfriend.    Through  “Lincoln”,  Ms  Spooner  encouraged  B  to  get  a restraining order and protection order against A and his mother.   Ms Spooner then befriended B through text messaging and phone calls, representing herself as Lincoln’s sister, “Lynda”.

[6]      During this time, Ms Spooner also contacted A and his mother but pretending to be B and sent abusive and threatening text messages to them.  Pretending to be B,

1      Telecommunications Act 2001, s 112(2)(b) – maximum penalty of three months’ imprisonment

or a fine of $2,000.

2      Harassment Act 1997, s 8 – maximum penalty of two years’ imprisonment.

3      Crimes Act 1961, s 111 – maximum penalty of three years’ imprisonment.

Ms Spooner claimed that B was pregnant with A’s child and that she was going to the

police with allegations that A had assaulted B.

[7]      On 20 December 2014, Ms Spooner sent a series of text messages to A’s mother, advising her of the birth of her grandchild.  Several images were also sent. Ms Spooner was in fact still carrying her baby, which was not born until 12 January

2015.  She made up a story to explain the baby’s change in appearance.

[8]      The  charges  of  criminal  harassment  arose  from  events  that  took  place between February and April 2015.  Ms Spooner alleged to A and his mother that B had suspended the baby over a railing.  It was alleged that B had assaulted and was stalking Ms Spooner.  She then accessed B’s Facebook account and posted elaborate messages on B’s Facebook page showing that B was stalking Ms Spooner.  She then sent a series of text messages to A’s mother making out that she was afraid of B and had called the police.  Ms Spooner also sent hundreds of text messages to A’s mother, pretending to be B’s father and advising that B had done something similar in the past, resulting in someone being hospitalised.  A and his mother became extremely fearful for the baby’s safety.

[9]      On 8 April 2015, Ms Spooner made a statement at Tauranga South Police Station.  She represented herself as someone else and alleged that she had on-going problems with B that led to B suspending her baby over a railing.  Further, that she had been visited by B’s friend, a policeman, who told her not to make a complaint and threatened to take her children from her.   The police took these allegations seriously and suspended the policeman concerned.

District Court decision

[10]     In sentencing Ms Spooner, Judge P Whitehead referred to the summary of facts as convoluted, lengthy and complex.  He said that the abuse continued over a period of time to the point where all the people involved were emotionally scarred. He referred to the victim impact statements and said that the consequences for the people affected will be with them for the rest of their lives.

[11]     The Judge referred to Ms Spooner’s previous convictions and the fact that many of her convictions relate to fraud.  He noted the PAC report had recommended imprisonment and the comment therein that Ms Spooner had little insight into the impact of her offending.  She had stated to the interviewer “this crime was a little bit major, but not as bad as what I’ve done before”.

[12]     The   Judge   took   into   account   Ms   Spooner’s   mental   health   and   the psychologist’s  report  that  concluded  that  she  was  fit  to  stand  trial.    He  also considered the early guilty pleas, the seriousness of the offending and the length and complication of the deception.  Regarding rehabilitation, the Judge said:4

[14]     I accept that counselling is a factor and rehabilitation is a factor in respect of your sentencing, but I cannot accept, with respect to Mr Jensen, that it is the only factor and I am of the determination that imprisonment is the starting point and finish point in respect of sentence today.  …

[16]      In my determination I must take into account a sentence that will hold you accountable, responsible and deter you from further offending, which will be a punishment to you, but will also incorporate a degree of rehabilitation.

[13]     A starting point of 12 months’ imprisonment was adopted for the lead offence of making a false statement.  This was uplifted by three months for prior convictions and three months to reflect the totality of the offending.  The Judge then gave a one- third discount for guilty pleas, leaving an end sentence of 12 months’ imprisonment.

Approach to appeal

[14]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the 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.

[15]     In any other case, the Court must dismiss the appeal.5

4      Police v Spooner [2015] NZDC 17950 at [14], [16].

5      Criminal Procedure Act 2011, s 250(3).

[16]     It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending, having regard to the relevant ss 7 and 8 purposes and principles.6  Where an appellant argues that  home  detention  should  have  been  imposed,  the  approach  on  appeal  is  as follows:7

… the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below.

Appellant’s submissions

[17]     Mr Jensen submits that the Judge made a number of “fundamental mistakes”

which resulted in a sentence which is plainly wrong.  He says the Judge:

(a)      Was   overly   influenced   by   the   victim   impact   statements   and exaggerated when saying that the offending would affect the victims for the rest of their lives.

(b)Gave  little  consideration  to  the  psychologist’s  report  and misunderstood that the purpose of the report was not to assess fitness to plead; and

(c)      Failed to take into account the least restrictive outcome in determining that imprisonment was the finish point.

I think, in fact (c) is the point on which Mr Jensen places most emphasis.

[18]     Mr  Jensen  does  not  seem  to  dispute  the  starting  point.    He  argues  that Ms Spooner is a good candidate, or a suitable candidate for home detention and that if the least restrictive outcome principle is applied as a primary consideration,8  the

correct sentence ought to be home detention and supervision.

6      James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].

7      Manikpersadh v R [2011] NZCA 452 at [12].

8      Citing William Young P’s dissent in R v Vhavha [2009] NZCA 588.

[19]   The sole issue in this appeal is whether the Judge erred in imposing imprisonment as the end sentence, as opposed to home detention.

[20]     In my view, the Judge did not err in imposing a sentence of imprisonment. He was obliged to consider the impact of the offending on the victims under s 8(f) of the Sentencing Act 2002 and did not give excessive weight to those statements. After reading the statements for myself, I consider that the statements highlight the emotional and physical toll that the offending has caused to the victims.  Contrary to Mr Jensen’s submission, the Judge’s statement that the victims would be affected for the rest of their lives does not appear to be an exaggeration.  In any event, I accept that they have been seriously affected.

[21]     Regarding  the  psychologist’s  report  prepared  pursuant  to  the  Criminal Procedure (Mentally Impaired Persons) Act 2003, I accept that the purpose of that report was to assist the Court to determine the type and length of the sentence imposed, as opposed to an assessment of fitness to stand trial.  The report does not say Ms Spooner committed the current offending while mentally impaired.  Instead, it says “the index offences took place with Ms Spooner reporting that she carried them out because of her anger against one of the victims”.   Ultimately, the report concluded that:

There were no concerns raised in the current assessment that would suggest there would be any issues in relation to the nature, or length, of sentence imposed upon Ms Spooner in relation to the current charges.

[22]     In my view the Judge sufficiently considered the psychologist’s report and balanced its contents in the round with all other considerations.  There was nothing in  the  report  that  strongly  pointed  towards  home  detention  as  the  appropriate outcome as opposed to imprisonment.  In fact, the report left the matter alone.

[23]     The Judge did not explicitly refer to the least restrictive outcome principle in s 8(g) but he must have had it in mind when he considered rehabilitation as one of the relevant purposes of sentencing.

[25]     Further, I am of the view myself that Ms Spooner is not a good candidate for home detention.  Her offending was serious, well planned and drawn out over more than a year.  It has had serious effects on the victims.  She shows little remorse or insight into her offending.  I agree with Ms Mitchell that this is significant.  It goes against  the  likely  value  of  the  rehabilitative  programmes  on  which  Mr  Jensen focused.  Ms Spooner trivialises her offending by stating “I’ve done worse crimes than this” to the PAC report writer.   She is assessed as posing a medium risk of reoffending. That seems a fair assessment to me.

[26]     Significantly, as pointed out by Ms Mitchell, it is possible for this type of harassment offending to be carried out at the home detention address.  Overall, home detention would not be appropriate.

[27]     To  conclude,  s 8(g)  is  one  principle  that  must  be  balanced  against  the purposes of accountability, deterrence, denunciation, to provide for the interests of the victims and to protect the community.  The Judge took all relevant considerations into account and did not err in coming to the decision that imprisonment was the appropriate outcome.

Result

[28]     Ms Spooner’s appeal against sentence is dismissed.

Hinton J