Tainsh v Police

[2023] NZHC 2768

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-59

[2023] NZHC 2768

BETWEEN

SUSAN ELIZABETH TAINSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 September 2023
Appearances:	A J Bailey for Appellant R P Bates for Respondent
Judgment:	3 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 October 2023 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TAINSH v NEW ZEALAND POLICE [2023] NZHC 2768 [3 October 2023]

Introduction

[1]                 On 22 June 2023, Susan  Tainsh  was  sentenced  in  the  District  Court  to  26 months’ imprisonment and ordered to pay $15,000 in reparations1 on a single charge of theft by failing to account.2

Background facts

[2]                 Mrs Tainsh met the 69-year-old male victim (who passed away in July 2021) through her work installing medical alarms. On 7 August 2019, the victim granted Mrs Tainsh an enduring power of attorney (EPOA) in relation to his property.3 That power was subject to conditions, including that Mrs Tainsh would not benefit herself from the victim’s monies or property, nor would she make charitable donations or celebratory gifts on his behalf.

[3]                 On 9 January 2021, a will was drafted in which the victim left his estate to his daughter and grandson. Mrs Tainsh witnessed the execution of that will. Soon after, on 14 January 2021, a psychiatrist assessed the victim as incapable of making decisions for himself, thus activating the ability to exercise the EPOA.

[4]                 Between January and July 2021, using the EPOA, Mrs Tainsh accessed the bank account of the victim and transferred $243,310 to herself. Mrs Tainsh accounted for $13,000 of this with receipts, the rest of the spending went on personal expenses, including $88,468 on gambling. Mrs Tainsh gave a false account to police when initially questioned, claiming the victim gifted her the money. The victim passed away on 12 July 2021.

District Court decision

[5]                 After outlining the facts of the offending the Judge referred to the victim impact statement given by Ms Nally, the victim’s daughter. He said her distress and emotion were tangible. The opportunity to provide her son with a solid foundation in the form of payment of tertiary study fees or a house deposit was lost by Mrs Tainsh’s actions.

1      Police v Tainsh [2023] NZDC 12933.

2      Crimes Act 1961, s 220 & 223(a); maximum penalty seven years’ imprisonment.

3      Protection of Personal and Property Rights Act 1988, s 94A.

The family will be left to forever wonder what might have been. The Judge noted the prospect of meaningful reparation to be “very slim” when considering that $230,310 was sought.

[6]                 As part of determining the appropriate sentence, the Judge considered a pre- sentence report as well as a s 27 cultural report, noting from these that Mrs Tainsh suffered from a gambling addiction and was raised in a dysfunctional, violent home. The Judge observed, however, that much of the report relied on Mrs Tainsh’s self-reporting. The Judge considered that Mrs Tainsh’s age (at the time, 56 years old) and the fact she had never offended before suggested she had, until this point, been able to navigate the obstacles her childhood raised, to avoid criminal offending.

[7]                 In setting the starting point, the Judge noted the Police sought a starting point of four years, citing Police v Morris where $125,000 was taken over an extended period and a starting point of three years four months was adopted.4 Mrs Tainsh’s counsel submitted the sentence in Morris to be at the upper end of what is available and suggested an end sentence of home detention.

[8]                 The Judge placed the principle of deterrence to the fore, noting the relevant offending is easy to commit by those in positions of trust and can be difficult to detect. The Judge then identified the aggravating features of the offending to include the fact the offending occurred over a sustained period of time involving 20 transactions, the fact the victim was vulnerable, the amount involved, the greed (as opposed to any specific need) which motivated the offending, the premeditation present and the breach of trust.

[9]                 By way of mitigating factors, the Judge noted Mrs Tainsh was a first-time offender. The Judge could not conclude that a gambling addiction was the sole motivator for the offending, noting only around $88,000 of the sum stolen was spent on gambling. The Judge recognised the guilty plea entered but stated this was a case where the plea was “inevitable”.5

4      Police v Morris [2016] NZDC 7208.

5      Police v Tainsh, above n 1, at [42].

[10]              Citing Harnett v Ministry of Social Development, the Judge took a starting point of four years’ imprisonment.6 A 20 per cent discount was granted for an early guilty plea. For previous good character and the personal mitigating factors identified in Mrs Tainsh’s s 27 report, she was granted a ten per cent  credit  on each count.  Mrs Tainsh was offered a further five per cent for her limited reparation offer. The end sentence was 26 months’ imprisonment.

Principles on appeal

[11]              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.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 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.9

Submissions

Appellant’s submissions

[12]              Mr Bailey, for Ms Tainsh, submits the sentence handed down in the District Court was manifestly excessive because the starting point was too high.

[13]              Mr Bailey notes the Judge correctly refers to R v Varjan and the relevant sentencing factors it identifies for the type of offending committed by Mrs Tainsh.10 Those factors are: the magnitude and sophistication of the offending; the type, circumstances and number of victims; the motivation; the amounts involved; the

6      Harnett v Ministry of Social Development [2018] NZHC 1160.

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

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

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

losses; the period of time over which the offending occurred; the seriousness of breaches of trust; and the victim impact.11

[14]              Mr Bailey goes on to compare the sentence in this case with the sentence in six Court of Appeal cases to argue that the starting point was too high.12 The cases cited present a range of starting points from three to five years’ imprisonment for offending involving amounts ranging from $53,000 to $473,000. Mr Bailey submits a starting point of no more than three and a half years’ imprisonment was appropriate when this case is compared with those cases. Mr Bailey additionally submits that the justified reductions do not operate to compensate for the excessively high starting point.

[15]              If the total discounts of 45 per cent were deducted from a three-and-a-half-year sentence of imprisonment that would produce a sentence of just over 23 months’ imprisonment. Mr Bailey submits that this 13 per cent reduction from the original sentence would not equate to tinkering, particularly when it would permit consideration of a sentence of home detention. Mr Bailey points out that home detention was recommended in the PAC report, noting the positive steps Mrs Tainsh has made toward rehabilitation, such as counselling.

[16]              Finally, Mr Bailey submits ss 8(g) and 16 of the Sentencing Act, and the decisions in Fairbrother v R13 and R v Rawiri14 support the sentence being converted from imprisonment to home detention, noting Ms Tainsh would already have spent three months in prison by the time this appeal is heard.

Respondent’s submissions

[17]              Mr Bates, for the Crown, submits the starting point was not excessive and neither was the end sentence, especially when one notes the generous discounts.

11 At [22].

12  R v Davis [2009] NZCA 26; Garnett v R [2010] NZCA 173; Nisbet v R [2011] NZCA 285, [2011] 3 NZLR 4; Lester v R [2012] NZCA 47; McGregor v R [2015] NZCA 565; McHugh v R [2020] NZCA 456.

13     Fairbrother v R [2013] NZCA 340 at [30].

14     R v Rawiri [2011] NZCA 244 at [18].

[18]              Mr Bates points out that the Judge had regard to a number of comparable authorities. Mr Bates places particular weight on R v Davis, where a starting point of four years was considered “plainly not out of the available range” where the appellant had taken $292,287, repaying $87,991.15 That case involved an employment relationship, with Mr Bates submitting that offending when holding an EPOA should be treated more seriously. There is at least the possibility of oversight in an employment relationship, which is not the case when an EPOA is abused.

[19]              Mr Bates also cites McGregor v R as a useful case where a starting point of five years’ imprisonment was upheld by the Court of Appeal for an appellant who had dishonestly obtained $472,917 by various means, including misusing an enduring power of attorney.16 The appellant had responsibility for a number of estates, trusts and client personal affairs, with the majority of those dealt with being elderly or mentally incapable of managing their own affairs. Mr Bates also cites Mears v R, a case in which a starting point of four and a half years was upheld by the Court of Appeal where the appellant had obtained $380,000 as a credit controller in a small business by hundreds of transactions over a six-year period.17

[20]              Mr Bates also submits the discounts provided were generous, especially when one considers the weak causative connection between the appellant’s background and her offending.

[21]              Finally, he submits the offending is of a serious enough nature that, should the sentence be altered in length, the result should remain imprisonment.

Analysis

[22]              The key question here is whether the starting point imposed by the Judge was excessive. The Judge’s assessment of the Varjan factors was central to this analysis. There were 20 transactions, a highly vulnerable victim, offending largely motivated by greed, a loss of approximately $230,000 with no prospect of substantial or even

15     R v Davis [2009] NZCA 26 at [16].

16     McGregor v R [2015] NZCA 565.

17     Mears v R [2014] NZCA 30.

moderate reparation, a six-month offending period and a significant breach of trust in the abuse of an EPOA. This was serious offending.

[23]              Mrs Tainsh abused a position which is recognised by the law as one of the utmost trust and confidence. The very purpose of an EPOA is to ensure an individual’s property is managed properly because they are no longer capable of looking after their own interests. I consider the abuse of an EPOA must be treated more seriously than theft in an employee/employer relationship, recognising the complete vulnerability of victims in EPOA cases.

[24]              In Davis a four-year starting point was “plainly not out of the available range” where $292,287 was stolen in circumstances that involved less predatory behaviour because it was an employer/employee relationship. The appellant also paid back

$87,991, so the net loss was just a little over $200,000. While case comparisons are not the final word on sentencing decisions, Davis reinforces the point that a four-year starting point is not inappropriate in this case. I also note that only one of the cases relied on by the appellant involved the misuse of an EPOA, which I consider is a seriously aggravating feature of this case. The starting point adopted by the Judge was clearly within range.

[25]In terms of discounts there is no challenge, nor could there be.

[26]              The s 27 report considered Mrs Tainsh’s dysfunctional upbringing, involving sexual abuse and attachment and abandonment issues, were likely the drivers of her gambling problem and mild drinking problem. However, the facts suggested the causative links between that background and the offending were not strong. Most of the funds were used for personal expenditure, not gambling,  and  for more  than three decades she had lived an offence-free life. In those circumstances, the Judge’s 10 per cent credit for her background was clearly sufficient to recognise the contribution of any past trauma.

[27]              The same can be said for the other discounts granted. Five per cent in recognition  of  Mrs  Tainsh’s  reparation  offer  and  remorse  ($5000  promptly  and

$15,000 over time) could also be viewed as generous when one considers that this

comprises only a fraction of the money stolen. The 10 per cent given for good character was at the upper end of what was available. The 25 per cent discount for her guilty plea was appropriate. The evidence was strong and the acceptance of responsibility appears to have come late given that even in the pre-sentence report, Mrs Tainsh maintained the victim wanted her to have the remainder of his money.

Conclusion

[28]              No aspect of sentencing was shown to be in error. Accordingly, the appeal is dismissed.

Solicitors:
Crown Law, Dunedin

Copy to:
A J Bailey, Barrister, Christchurch