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Melissa Mary Haereroa v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 170 of 2019

    Decided On, 19 May 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE DOBSON & THE HONOURABLE MR. JUSTICE NATION

    For the Appellant: M. Starling, N.R. Wham, Advocates. For the Respondent: M.G. McClenaghan, B. Hawes, Advocates.



Judgment Text


REASONS OF THE COURT

(Given by Dobson J)

[1] In August 2018, the appellant (Ms Haereroa) was sentenced in the District Court at Christchurch to four and a half years’ imprisonment on convictions relating to four distinct sets of offending, predominately involving dishonesty and theft.[1]

[2] Ms Haereroa appealed that sentence to the High Court on the basis that it was manifestly excessive. On 1 March 2019, Gendall J accepted that the starting point for the first group of charges, which was set at two and a half years’ imprisonment, was up to 18 months higher than appropriate. However, after reviewing all of the offending and other circumstances, Gendall J held that the end sentence was not manifestly excessive and the first appeal was accordingly dismissed.[2]

[3] Ms Haereroa sought leave to bring a second appeal against the sentence. The application for leave was considered separately, and on 30 August 2019 leave was granted to bring a second appeal against her sentence pursuant to s 253(3)(b) of the Criminal Procedure Act 2011.[3]

[4] At the outset of the hearing, Mr Starling advised on behalf of Ms Haereroa that she had been released on parole the previous day. However, she still wished the appeal to be pursued, given the potential impact of any reduction in sentence on the duration of the period she would be required to be on parole. Ms Haereroa’s status as a parolee is not relevant to the issues in the appeal as to whether the end sentence imposed was manifestly excessive, and the Court heard oral argument from counsel on that basis.

The offending

[5] The first set of offending resulted in three convictions for obtaining or causing loss by deception (the fraud offending). This related to Ms Haereroa’s part in a scheme to defraud elderly victims in December 2016. It involved money being transferred out of the accounts of trusting victims into the account of a “mule”, from which it was either directly or indirectly removed, in material part by cash withdrawals from the mule’s account, or by a second or third mule in the sequence.

[6] Ms Haereroa was not alleged to have had anything to do with the design of this scheme, nor did the prosecution contend that she retained any of the proceeds. Rather, she facilitated cash withdrawals by others from various ATMs in the Christchurch area.

[7] The second set of offending involved breaches of the terms of previous sentences of community work. In September 2015, Ms Haereroa had been sentenced to 12 months’ intensive supervision and 100 hours’ community work on two charges of theft of items under $500 and one charge of wilful trespass. Then in December 2015, she was sentenced to 40 hours’ community work on a further charge of theft of items under $500, to be served cumulatively on the previous sentence. By February 2017, she had completed approximately half of the community work hours, but had not reported since October 2016, resulting in the charge of breach of the community work sentence.

[8] Then in September 2016, Ms Haereroa was sentenced to 12 months’ intensive supervision on two further charges of shoplifting (under $500) and two further charges of wilful trespass. One of the conditions of her intensive supervision was not to associate with a co-offender. In February 2017, Ms Haereroa breached this non association order, leading to the charge of breach of intensive supervision.

[9] The breaches resulted in Ms Haereroa being re-sentenced on the two September 2016 convictions for theft and two of wilful trespass in breach of trespass notices from retail premises from which she had been banned.

[10] The third set of offending related to thefts committed between December 2016 and August 2017. They comprised three counts of theft of items valued at more than $1,000, four of theft of items valued between $500 and $1,000 and four of theft of items valued at less than $500. Items stolen ranged from trolleys of groceries to electronic equipment, clothing and perfume. Some of the thefts occurred at retail premises from which Ms Haereroa had been trespassed, which led to her facing five counts of wilful trespass. The most serious of these offences involved Ms Haereroa intervening for associates who were attempting to take clothing from a Christchurch department store. When the associates were challenged by a staff member, Ms Haereroa approached the staff member with clenched fists and began threatening and abusing her. She pushed the staff member to allow her associates to leave the store with the clothing. This resulted in a charge of aggravated assault in addition to a theft charge.

[11] The fourth set of offending comprised two driving charges that arose in March 2017. At the time, Ms Haereroa was suspended from holding a driver’s licence. She was stopped whilst driving in central Christchurch and refused to give a breath screening test. An evidential breath test returned a positive result of 801 micrograms of alcohol per litre of breath. It was her third or subsequent excess breath alcohol prosecution and she was also charged with driving whilst disqualified (third or subsequent).

The District Court sentencing

[12] Judge Farish adopted separate starting points for each set of offending. The Judge treated the fraud offending as the most serious and stated that the three charges involved a total amount of $69,540. She acknowledged that the Crown proposed a starting point of two years and nine months’ imprisonment for the fraud offending and settled on a starting point of two and a half years’ imprisonment. For the remainder of the dishonesty offending and the breaches of community sentence, the Judge considered uplifts of two and a half years and nine months respectively, bringing the total to five years and nine months’ imprisonment, was warranted. From there, separate uplifts were added for the driving offences (six months), for the fact that offending had occurred whilst Ms Haereroa was on bail and subject to earlier sentences (six months), and to reflect the extent of Ms Haereroa’s previous offending (six months). These uplifts led to an overall total starting point of seven years and four months’ imprisonment.[4]

[13] From that starting point, the Judge allowed a discount of 10 per cent for Ms Haereroa’s personal circumstances and the promising rehabilitative steps she had taken in custody, and a further 20 per cent discount for her relatively early guilty pleas. Applying those discounts sequentially resulted in an end sentence of five years and two months’ imprisonment.[5]

[14] The Judge then undertook a totality assessment, and reached the conclusion that the total length of sentence would be manifestly excessive. The Judge accordingly applied s 85 of the Sentencing Act 2002 to reduce the sentence to one of four and a half years’ imprisonment.[6] That was allocated as two and a half years for the fraud offending, to be followed cumulatively by a two year sentence for the convictions for thefts over $1,000.[7] The Judge imposed lesser, concurrent, sentences on all of the other convictions and rejected a prosecution application to impose a minimum period of imprisonment.[8]

The High Court appeal

[15] An appeal from those sentences was heard in the High Court in Christchurch on 28 February 2019, and Gendall J delivered his judgment dismissing the appeal on 1 March 2019.

[16] Justice Gendall acknowledged that Judge Farish was mistaken about two of the factual matters taken into account in ranking the seriousness of the fraud offending. First, the sentencing Judge had referred to the offending as involving fraud of $69,540 when the correct figure was closer to $34,000. Secondly, the sentencing Judge attributed awareness by Ms Haereroa of the circumstances of the victims of the fraud when there was nothing in the summary of facts to suggest that was the case.[9]

[17] Gendall J considered that on the facts as clarified in argument before him, the starting point of two and a half years’ imprisonment for the fraud offending appeared to be at the “higher end of the available range”.[10] After comparing two decisions cited to him, Gendall J accepted that a starting point closer to 12 months’ imprisonment would be more appropriate. [11]

[18] Gendall J was not persuaded that the sentencing Judge had erred in applying uplifts for a total of 12 months to reflect the offending having been whilst on bail and for Ms Haereroa’s previous offending.[12] Nor did the Judge identify any error in the other components of the combined starting point. His judgment continued:

[46] If one follows the Judge’s sentencing process but simply adjusts the starting point for the Set 1 offending, an end sentence of around four years and two month’s imprisonment is reached. This would be before any adjustments to totality. It is unclear, however, whether any such adjustments would be warranted here. Allowing the appeal to the effect of reducing the end sentence by a few months, in the circumstances, in my view, would amount to tinkering. It could not be said here that there has been a significant error on the part of the Judge nor that the end sentence imposed by Judge Farish was manifestly excessive. For those reasons, this appeal is to be dismissed.

Arguments on appeal

[19] Mr Starling submitted that, having acknowledged an error in the starting point on the fraud offending, Gendall J erred in not reflecting that in the total sentences before applying the totality principle. Arguably, in doing so, Gendall J should have recognised the need for a reduction. The extent of the reduction ought also to have reflected the need for proportionality between the starting point on the most serious set of offending, and the uplift necessary for the fact that the offending occurred whilst Ms Haereroa was on bail, and to account for the extent of her previous convictions. Mr Starling submitted that a combined uplift of six months for both aggravating features would have been appropriate.

[20] Mr Starling also challenged Gendall J’s reasoning in having recognised an end sentence of four years and two months’ imprisonment, without applying any deduction for application of the totality principle, but dismissing the appeal on the basis that reducing the sentence by four months would be tinkering. Mr Starling submitted that for an offender serving her first sentence of imprisonment, a reduction of four months would have made a material difference.

[21] Mr Starling raised a separate concern about the context in which the District Court Judge referred to Ms Haereroa’s whakapapa, which he contended had been treated as an aggravating factor. He submitted that Ms Haereroa’s attempts to identify with her whakapapa were positively rehabilitative and should have been seen as a mitigating factor.

[22] For the Crown, Mr McClenaghan accepted that the sentencing Judge had erred in the starting point nominated for the fraud offending. He acknowledged that it had been an error in the prosecution submissions on sentencing that caused the Judge to rank the seriousness of that offending by reference to a larger amount than was justified. In oral argument, Mr McClenaghan accepted that a starting point of 12 months would have been adequate. However, the appeal was opposed on the ground that Ms Haereroa could not discharge the onus of establishing that a different end sentence ought to have been imposed. Mr McClenaghan submitted that, in constructing a sequence of cumulative sentences, an adjustment for totality was not automatic and, when the pattern of Ms Haereroa’s offending was assessed overall, the end sentence of four years and six months’ imprisonment was within the appropriate range.

[23] As to Mr Starling’s criticism of the sentencing Judge’s comments on Ms Haereroa’s whakapapa, Mr McClenaghan submitted that this reflected a misconstruction of the Judge’s comments. Read correctly in the context of references to victim impact statements, the Judge’s observations were to be seen as encouraging Ms Haereroa with the rehabilitative steps she had taken. He submitted this had been reflected in the 10 per cent discount for personal factors which related to her post-offending conduct.

Our view

[24] Turning first to Judge Farish’s references to Ms Haereroa’s whakapapa, we agree with the Crown submission that it did not rate as an aggravating feature, and that rather the sentencing Judge’s comments are to be construed as encouraging Ms Haereroa to draw on whakapapa links to improve her pro-social attitudes.

[25] As regards the starting point for the fraud offending, we accept it was too high. In the argument before us, the Crown dropped the starting point for the fraud offending from the two years and nine months’ imprisonment it had submitted in the District Court to 12 months’ imprisonment. That lower starting point was recognised as within range by Gendall J. We consider however that although the starting point in the District Court was too high, a reduction of 18 months was too great a reduction to reflect the mistaken circumstances relied on at sentencing. We say that because despite it being accepted that Ms Haereroa had not obtained benefits from the three frauds that she was involved in, she nonetheless played a significant role as a conduit, and in procuring the participation of others who effected withdrawals at ATMs. We consider a starting point for the fraud offending ought to have been 16 months’ imprisonment.

[26] We agree with Gendall J that there was no error in the other components of the sentencing Judge’s starting points, or in treating the sentences for the different sets of offending cumulatively.

[27] Nor do we find any error in the 10 per cent reduction for personal circumstances and the 20 per cent reduction for Ms Haereroa’s guilty pleas.

[28] Undertaking the analysis of the combined starting points after reducing the starting point for the fraud offending, the process would start with the theft and aggravated assault charges, which attracted a starting point of two and a half years. The other convictions would require the following uplifts:

* fraud offending — 16 months;

* shoplifting, trespass and non-compliance — nine months; and

* driving offences — six months.

[29] These starting points result in a term of imprisonment of five years and one month, to which is to be added a further 12 month uplift to reflect the extent of Ms Haereroa’s previous criminal convictions and the fact that some of the current offending occurred either whilst she was on bail or subject to existing sentences (or both).

[30] From a combined cumulative sentence of six years and one month’s imprisonment, separate discounts of 10 per cent for personal factors and 20 per cent for guilty pleas would arrive at the end sentence of four years and a fraction less than five months’ imprisonment.

[31] The next issue is whether cumulative sentences of that length are out of all proportion to the gravity of all the offending for which Ms Haereroa was being sentenced. That requires an evaluative assessment of the relative gravity of all of the offending involved. A discount because the full extent of cumulative sentences would be out of proportion to the gravity of the offending is not automatic.[13]

[32] Accepting that it was the first sentence of imprisonment imposed on Ms Haereroa, this involved persistent offending undertaken with complete disregard for the law, irrespective of the sanctions previously imposed. The pattern of offending was also insidious in that Ms Haereroa involved younger accomplices, including her son, so that her offending contributed to others being led astray. Her assault on a shop assistant to facilitate the escape of an accomplice who had been shoplifting in the premises is an instance of troubling criminality. The circumstances of her driving offending, which included a third or subsequent drink driving incident, reflects the same attitude of determined disregard for the law, as does her breach of intensive supervision and community work sentences. We are satisfied it is a case in which no adjustment is required for totality.

[33] The remaining issue is whether an adjustment of betw

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een one and two months on a sentence of four years and six months’ imprisonment is sufficient to require intervention. We are satisfied that intervention is not warranted. The end sentence is not one that can be characterised as being manifestly excessive. We are, however, not to be taken to endorse the approach Gendall J adopted in concluding that the larger difference of four months, which he identified on the analysis of all components of the sentence, would similarly not have justified an alteration to Ms Haereroa’s end sentence. There can be no inflexible rule, but had we agreed with Gendall J on the extent to which the starting point for the fraud offending should have been reduced, we doubt that we would have dismissed the prospect of a reduction in the end sentence of four months on the basis that that would be tinkering. Result [34] In the event, that extent of difference is not made out. The appeal is dismissed. ----------------------------------------------------------------------- [1] R v Haereroa [2018] NZDC 17387 [Sentencing Notes]. [2] Haereroa v Police [2019] NZHC 318 [High Court appeal]. [3] Haereroa v Police [2019] NZCA 400. [4] Sentencing Notes, above n 1, at [12]–[17]. There were minor arithmetical errors in the Judge’s calculation, with the components in fact totalling seven years and three months’ imprisonment. [5] At [18]–[19]. [6] At [22] [7] At [27]. [8] At [23]–[27]. [9] High Court appeal, above n 2, at [21] and [41]. [10] At [41]. [11] At [42]–[44] citing Anderton v Police [2018] NZHC 437; and Gobey v Police [2018] NZHC 1555. [12] At [45]. [13] Ashcroft v R [2014] NZCA 551 at [32]; and Sentencing Act 2002, s 85(2).
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