Tohaia v Police
[2012] NZHC 2030
•14 August 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-443-000029 [2012] NZHC 2030
BETWEEN RANGITAIKI TOHAIA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 14 August 2012
Counsel: P J Mooney for Appellant
A W M Britton for Respondent
Judgment: 14 August 2012
ORAL JUDGMENT OF COLLINS J
Introduction
[1] On 5 December 2011 Mr Tohaia pleaded guilty in the Hawera District Court to:
(1)one charge of dishonestly and without claim of right taking a bankcard for pecuniary advantage (s 228(a) of the Crimes Act 1961);
(2)one charge of dishonestly and without claim of right using a bankcard for pecuniary advantage (s 228(b) of the Crimes Act 1961).
[2] On 8 February 2012 Judge Roberts sentenced Mr Tohaia to two years’
imprisonment. He now seeks leave to appeal that sentence out of time and to appeal the sentence on the basis that it was manifestly excessive.
TOHAIA V NEW ZEALAND POLICE HC NWP CRI-2012-443-000029 [14 August 2012]
[3] The victim in this case is a 77 year old lady who lives alone. She suffers macular degeneration. As a consequence she has impaired eyesight. The victim is also a self-sufficient person. She has practiced as an accountant for over 37 years.
[4] Mr Tohaia has known his victim for approximately five to six years. He did fencing and maintenance work on her property. Mr Tohaia’s work for the victim led her to trust him. The victim could see positive qualities in Mr Tohaia. She provided Mr Tohaia and his partner with business advice.
[5] Mid-way through 2011 the victim allowed Mr Tohaia to move into her home as a short term measure. This coincided with Mr Tohaia having court appearances on other matters.
[6] After Mr Tohaia moved into the victim’s property she began to lend him money to pay off a vehicle and to set up a business. These loans totalled approximately $17,500.
[7] In her statement to the police, the victim explained that at this time “we were getting on generally well and I trusted him completely”.
[8] On 25 November 2011 the victim went to a pharmacy. She needed to pay for a prescription medicine. Her EFTPOS card was declined. The victim went to her bank where she learnt that a number of withdrawals had been made from her account using her EFTPOS card. The most recent withdrawal had occurred at the bank’s EFTPOS machine at 7.30am that morning. Closed circuit TV footage was able to be quickly examined. That footage revealed that it was Mr Tohaia who had used the victim’s EFTPOS card that morning without the victim’s consent.
[9] Further inquiries revealed that Mr Tohaia had taken the victim’s EFTPOS
card and used it for cash withdrawals on 14 occasions between 25 October 2011 and
18 November 2011. The total amount taken by Mr Tohaia on these occasions was
$9,440.
[10] Mr Tohaia has a list of convictions for a variety of offences such as wilful damage, cultivating cannabis, behaving in a threatening manner, driving with excess breath alcohol, driving while disqualified, assault, receiving stolen property and aggravated robbery. The District Court Judge noted that the only serious dishonesty offence concerned the receiving charges for which Mr Tohaia was convicted and sentenced to one month’s imprisonment in 1997.
Pre-sentence report
[11] Mr Tohaia did not attend a meeting arranged by the Community Probation Services for 18 January 2012 to enable a pre-sentence report to be prepared. Mr Tohaia did not attend another appointment that was arranged by the Community Probation Services. Mr Tohaia has explained that he was not aware of either appointment. In any event, no pre-sentence report is available.
Victim impact statement
[12] The victim impact statement was signed on 2 December 2011. In it the victim says:
After I discovered the money was gone from my account I was shattered.
He betrayed my trust and although I knew he had a cheque[re]d history I did not think he would do anything like that.
I saw the good in him and he betrayed me.
Financially it has made a hole in my bank account and [I] had to break a term deposit to get out of overdraft.
Emotionally it is just disbelief that he has done it, I just cannot believe it.
District Court sentencing decision
[13] The District Court Judge recorded that in his assessment, the aggravating
features of Mr Tohaia’s offending were:
(1) that the offending was pre-meditated;
(2) the extent of the loss suffered by the victim; (3) the breach of trust; and
(4) that Mr Tohaia was on bail at the time of this offending.
[14] The District Court Judge concluded that reparation had not been paid even though the victim had changed her views about Mr Tohaia since the time she had completed her victim impact statement. By the time of sentencing, the victim was of the view that the offending was “a private matter” and she was concerned that matters had escalated to the point they had.
[15] The District Court Judge adopted a starting point of two and a half years’ imprisonment. He deducted six months on account of Mr Tohaia’s guilty plea. He was not able to make any further deductions because of Mr Tohaia’s lack of co- operation. The District Court Judge did not believe that home detention was appropriate because of:
(1) the seriousness of the offending; and
(2) the risk that Mr Tohaia would not comply with home detention.
Submissions from Mr Tohaia
[16] In his submissions Mr Mooney, counsel for Mr Tohaia explains that the District Court Judge was wrong to reject the submission that Mr Tohaia had contributed towards repaying his victim. To support this submission Mr Mooney presented me with an affidavit in which the victim explains Mr Tohaia has given her a vehicle to settle his debt to her. The vehicle is thought to have a resale value of about $5,000. The victim has clearly said in her affidavit that she is content to accept the vehicle in full settlement of the debt.
Leave to appeal out of time
[17] An application for leave to appeal out of time is governed by s 123(1) of the
Summary Proceedings Act 1957. That section provides:
123 Powers of Judge of High Court as to extension of time
(1) Any Judge of the High Court may, on the application of the appellant or intending appellant, extend any time prescribed or allowed under this Part of this Act for the filing of any notice or the stating of any case or the doing of any other thing in respect of any appeal or proposed appeal to the High Court.
[18] In Ravelich v Police Allan J described the test to be applied when considering an application under s 123(1) of the Summary Proceedings Act 1957 in the following way:[1]
[1] Ravelich v Police HC Auckland CRI-2010-404-471, 21 July 2011 at [10]-[11].
The Court’s jurisdiction to extend the time for the giving of notice of appeal is unaccompanied by statutory guidelines for the exercise of the discretion. In that respect it is similar to s 388(2) of the Crimes Act 1961, which empowers the Court of Appeal to extend the time for giving notice of appeal.
The jurisdiction to extend time was extensively considered in R v Knight[2] and R v Lee.[3] In the latter case, the Court confirmed earlier observations in Knight to the effect that the over-arching consideration is the interests of justice, arrived at by balancing all relevant factors.[4]
Factors of relevance to the balancing test will include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.[5]
[2] R v Knight [1998] 1 NZLR 583 (CA).
[3] R v Lee [2006] 3 NZLR 42 (CA).
[4] At [96].
[5] At [99].
[19] In this case, Mr Tohaia has sworn an affidavit explaining that the reasons for the delay in filing his notice of appeal concerned a breakdown of communication between himself and his former lawyer, compounded by the fact that he has been transferred from New Plymouth Prison to Wanganui Prison, thereby making it more
difficult to communicate with his new lawyer.
[20] Although the explanation provided by Mr Tohaia for the delay in filing his notice of appeal is not totally persuasive, I believe that it is in the overall interests of justice to allow Mr Tohaia’s application for leave to appeal out of time, and to consider the merits of his appeal.
Principles applicable to an appeal
[21] This Court’s jurisdiction to hear and determine the appeal is derived from s 121 of the Summary Proceedings Act 1957. In the circumstances of this appeal, the Court may allow the appeal if it considers that the sentence imposed by the District Court was “clearly excessive or inadequate or inappropriate” (“manifestly excessive”).
[22] In R v Monkman, the Court of Appeal explained the term “manifestly excessive” in the following terms:[6]
Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).
[6] R v Monkman CA445/02, 3 March 2003 at [6].
[23] When considering if the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal recently observed in Ripia v R:[7]
[7] Ripia v R [2011] NZCA 101 at [15].
... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.
Analysis
Aggravating features
[24] In my assessment, the following five factors identified in s 9(1) of the
Sentencing Act 2012 constitute aggravating features in this case.
Section 9(1)(c) of the Sentencing Act 2002 – offences committed while offender on bail
[25] Mr Tohaia was on bail at the time he offended. He was on bail in relation to matters involving allegations of violence against his partner. The victim had allowed Mr Tohaia to live at her home because Mr Tohaia’s conditions of bail prevented him from residing at his usual place of residence.
Section 9(1)(d) of the Sentencing Act 2002 – extent of loss
[26] The sum of $9,440 is a significant sum. I am, however, willing to accept that Mr Tohaia has provided his victim with a car equivalent in value to approximately half the amount he stole from her, and that the victim regards the debt as settled.
Section 9(1)(f) of the Sentencing Act 2002 – abuse of position of trust
[27] This is a particularly aggravating feature of the case. The victim took pity on Mr Tohaia and allowed him to live in her home. The victim was particularly generous to Mr Tohaia. Unfortunately, her willingness to assist Mr Tohaia resulted in him offending against her.
Section 9(1)(g) of the Sentencing Act 2002 – vulnerability of victim
[28] The victim’s age, the fact that she lives alone, and the fact that she suffers from impaired vision all compound the seriousness of the offending. Notwithstanding the fact the victim is a self-sufficient professional person she was
nevertheless a vulnerable person. Mr Tohaia recognised his victim’s vulnerability
and took full advantage of it.
Section 9(1)(i) of the Sentencing Act 2002 – premeditation
[29] The offending in this case was very premeditated. Mr Tohaia obtained the victim’s bankcard details and made 14 withdrawals over a three week period. Mr Tohaia knew exactly what he was doing. He planned his offending in a methodical and meticulous way.
Mitigating features
[30] The mitigating feature set out in s 9(2) of the Sentencing Act 2002 is relevant to the present case. Mr Tohaia has pleaded guilty on the first occasion available to him. In addition, Mr Tohaia has effectively repaid his victim approximately half the sum he took from her. The victim now regards the debt as settled. Accordingly, the provisions of s 10 of the Sentencing Act 2002 are engaged in this case.
Principles and purposes of sentencing
[31] In assessing the appropriateness of the sentence imposed by the District Court Judge, I have evaluated the principles and purposes of sentencing set out in s 7 of the Sentencing Act 2002. Those principles and purposes require me to:
(1)To hold Mr Tohaia accountable for the harm done to the victim and the community by his offending;
(2)To promote in Mr Tohaia a sense of responsibility for and an acknowledgement of the harm that he has caused;
(3) To provide for the interests of the victim of the offence; (4) To provide for reparation for harm done by the offending;
(5) To denounce Mr Tohaia’s conduct;
(6)To deter Mr Tohaia and other persons from committing the same or similar offences; and
(7) To protect the community from Mr Tohaia.
[32] The factors identified in s 8 of the Sentencing Act 2002 which are applicable to the present case are:
(1) The gravity of the offending;
(2)The seriousness of the type of offence in comparison with other types of offences;
(3)The general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances;
(4)The need to take account of any information provided to the Court concerning the effect of the offending on the victim;
(5)The need to impose the least restrictive outcome that is appropriate in the circumstances;
(6)The need to avoid imposing a sentence which is disproportionately severe; and
(7)The need to take account of restorative justice processes that may have occurred or are likely to occur.
Comparable cases
[33] In appendix one of this judgment I set out a summary of five cases which I
have considered when assessing sentences delivered in comparable cases.
[34] Compared to the cases I have considered, the District Court Judge’s starting point of two and a half years was high even though the offending involved a large amount of money, a deliberate breach of trust, a vulnerable victim and a high level of premeditation.
[35] In setting my starting point I propose to take account of the fact that the victim appears to be satisfied that Mr Tohaia has effectively repaid her half the amount he stole, and that so far as she is concerned the debt is settled.
[36] In my assessment, in light of the authorities to which I have referred, an appropriate starting point in this case is 20 months. This starting point gives proper weight to Mr Tohaia’s apparent efforts to repay his victim.
[37] A discount of 20 per cent for the guilty plea is appropriate. A more generous discount could have been granted had Mr Tohaia been more co-operative.
[38] Accordingly, I will allow the appeal and substitute the prison sentence imposed by the District Court with a total prison sentence of 16 months. This is a 20 per cent variation from the end point reached by the District Court Judge. The sentence imposed by the District Court Judge was, in my assessment, “clearly excessive” and “inappropriate” (s 121 Summary Proceedings Act 1957).
Home detention
[39] Mr Tohaia has not submitted that he should be considered for home detention. That is a realistic position for him to take in light of the facts that:
(1) Mr Tohaia’s offending was serious and justifies a sentence of
imprisonment;
(2)Mr Tohaia’s lack of compliance with the obligations that he had to attend the Community Probation Services does not indicate that he is a suitable candidate for home detention.
Result
[40] Mr Tohaia’s application for leave to appeal out of time is granted.
[41] Mr Tohaia’s appeal against sentence is allowed. The sentence imposed by the
District Court is quashed. A sentence of a total period of 16 months’ imprisonment is
imposed.
D B Collins J
Solicitors:
Mooney & Webb, New Plymouth for Appellant
Crown Solicitor, New Plymouth for Respondent
Appendix 1
R vBowden:8 Ms Bowden pleaded guilty to 32 counts of using documents and one count of obtaining credit by fraud. Ms Bowden put herself in a position of trust with a 77 year old woman to whom she was nurse/housekeeper. Ms Bowden stole money from her and also from the woman’s 44 year old intellectually handicapped daughter who also lived in the house. In addition, Ms Bowden cheated a number of moteliers and shopkeepers. She had a long list of previous convictions for dishonesty. Ms Bowden did not view imprisonment as a deterrent. Allowance was given for her plea of guilty, but apart from that, there was practically nothing to be said in Ms Bowden’s favour. Concurrent terms of four years’ imprisonment were imposed on each of the 32 counts.
Simpson v Police:9 Mr Simpson convinced an elderly widow to lend him a total of
$12,300 on the basis her roof needed to be fixed. He had a history of similar offending dating back 10 years, and was at the time on parole for a previous offence. The end loss to the victim was around $10,400. On appeal it was noted that a starting point of two and a half years would have been appropriate, and a three year sentence was not excessive given the hundreds of previous convictions.
Terry v Police:10 Mr Terry was convicted of two charges of theft and one of using a document with intent to obtain a pecuniary advantage dishonestly. Mr Terry befriended his fellow employees who were intellectually disabled and continued to meet them socially after his employment was terminated. They came to
trust him and considered him a friend. He then dishonestly
8 R v Bowden HC Auckland S119/91, 2 October 1991.
9 Simpson v Police HC Auckland CRI-2005-404-68, 12 August 2005.
10 Terry v Police HC Auckland CRI-2011-404-217, 7 September 2011.
made banking transfers, withdrawals and purchases from their bank accounts, amounting to $9,982, $770 and $1,800. The High Court said a starting point of two to two and a half years would have been appropriate.
Nathan v R:11 The victim suffered from Huntington’s disease, which caused her to become easily confused and meant her property and welfare were controlled by power of attorney. The victim had been drinking and the bar manager asked Ms Nathan to take care of her. The victim gave Ms Nathan her ATM card to buy drinks, but Ms Nathan did not return the card. Instead she used it over a period of a month to withdraw the victim’s savings of $11,835.80. Judge Wolff in the District Court said that the pattern of length and frequency of the offending would all usually point to a term of imprisonment in the range of nine months to 12 months but that the appellant’s age of 20 years and her absence of previous history warranted a discount. The District Court Judge discounted the sentence by three months for those reasons. He also said that the appellant was entitled to a discount of a further three months for an early plea of guilt. He accordingly sentenced the appellant to six months’ imprisonment and granted leave to apply for home detention and ordered payment of reparation of $11,835.80 at the rate of $20 per week. This was upheld on appeal, where it was said a starting point of 12 months’ imprisonment was not manifestly excessive.
Keenan v Police:12 The accused was charged with burglary and dishonestly using a document. The charges were related and arose out of the entering of the house of her former partner with a key, but with no authority to do so. She took from her former partner’s
bedroom: $100 in Australian currency, an American Express
11 Nathan v R HC Hamilton CRI-2005-419-97, 13 September 2005.
12 Keenan v Police HC Christchurch CRI-2007-409-97, 5 June 2007.
card and a Westpac EFTPOS card. She then later used the American Express card on 25 occasions taking $2,768.02 and at the same time used the Westpac cashflow card on six occasions to obtain cash totalling $1,990. The sentencing Judge adopted a starting point of 12 months.
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