THE QUEEN v LI FAN [2001] NZCA 172 (24 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 59/01

THE QUEEN

V

LI FAN

Hearing:	23 May 2001
Coram:	Keith J Goddard J Chambers J
Appearances:	A G Speed for the Appellant K Raftery for the Crown
Judgment:	24 May 2001

judgment of the court DELIVERED BY GODDARD J

Introduction

[1] The appellant was convicted following trial in the District Court on seven counts, two of theft of a cheque book (s 227 Crimes Act 1961) and five of using cheques from those cheque books to obtain a pecuniary advantage (s 229A Crimes Act).He was sentenced by the trial Judge to 20 months' imprisonment.She declined however to suspend that sentence (s 21A Criminal Justice Act 1985) or to grant the appellant leave to apply for release to home detention (s 21D Criminal Justice Act).

[2] The appeal, which is against sentence only, was originally advanced on three grounds.First, that it was manifestly excessive in light of the appellant's personal circumstances, his lack of previous convictions and for the level of offending involved.Secondly, that the Judge had failed to give sufficient weight to his personal circumstances, lack of previous convictions, age and his mother's situation.Thirdly, that the Judge had erred by failing to grant him leave to apply for release to home detention.As argument progressed the focus narrowed to the issue of home detention, relying however on overlapping factors advanced in support of the first and second grounds of appeal.

The Facts

[3] The complainant, from whom the two cheque books were stolen whilst he was moving offices, was a friend of the appellant who had assisted him in the move. Each cheque book was on separate account at different banks.In early November 1999 three cheques were drawn on one of the cheque books to a total amount of $59,650 and deposited in an account held in the name of another person known to the appellant.A cheque was then drawn on the other cheque book in the sum of $52,000 and deposited into the same account.A Police handwriting expert identified the appellant as the author of all five cheques and a sequence of practised signatures in the name of the account holder was later found at the appellant's home.The money was then transferred by way of electronic phone transfers from the bank account into the account of another friend of the appellant, Mr Dinesh Kumar.Mr Kumar gave evidence of having been approached by the appellant and asked for his bank account details.The appellant told Mr Kumar that his father, who lives in China, wished to deposit money into a New Zealand account for him but the appellant's own account was not operable at the time.Mr Kumar agreed to give the appellant his account details and the transfers to his account were subsequently made.The appellant advised Mr Kumar when the funds were deposited, and drove him to the bank to make cash withdrawals.Mr Kumar became suspicious but accepted $3,000 from the appellant for his part in facilitating the transactions.

[4] Evidence at the trial established that cheques could be deposited without attracting the attention of security cameras and electronically transferred before standard clearance days.

[5] In her sentencing notes the Judge described the evidence as follows:

... The evidence against you was overwhelming.In October 1999 when you were assisting a friend of yours you stole some cheques from him. You then arranged by one means or another to deposit them into somebody else's cheque account. You then persuaded another friend of yours to have that money transferred to his bank account from which you withdrew it in two lots.When he questioned the withdrawal of the second lot you gave him $3,000 to keep him quiet.He was left with the massive debit in his bank account and he was the one who would have, and still may be, pursued by the bank for recovery of the money.

Two handwriting experts were called at the trial.The one for the Crown was definite that a large proportion of the handwriting on the documents was yours. Your own handwriting expert said that much of the handwriting was probably yours.Mr Kumah, the last person whose bank account the money was passed through, gave evidence as to your approach to him which you denied.You denied ever seeing him.His mother gave evidence as to your visits to the home and it was quite clear to me that when you gave evidence at the trial, your evidence was a tissue of lies.

...

These offences were particularly mean in that you took advantage of your friends, first, by stealing the cheque from one friend and then by using other friends to hide the offending.It appears that reparation is not possible, you have no gainful employment and it is clear from the evidence you gave at the trial that you have an involvement with the casino and with gambling.Of significance at the trial was the bank statement you produced in re-examination, when you could not be cross-examined on it, and that statement showed that the day of and the day after one of the withdrawals from the bank, you cleared your overdraft and you tried to convince the jury that you paid that off through a win at the casino.To expect anyone to believe that explanation shows just how out of touch with reality you are.

The Appellant

[6] The appellant who gave evidence at trial denied any involvement with the theft of the cheque books or subsequent use of any of the cheques to gain a pecuniary advantage.He also further denied transferring any money into Mr Kumar's account or knowing Mr Kumar at all.

[7] The Probation Officer who wrote the pre-sentence report noted that the appellant did not accept any responsibility for his offending and impressed as being "self-confident and independent although somewhat unrealistic in his aspirations".The Probation Officer did not regard supervision as of any likely benefit to the appellant and assessed his risk of reoffending as low. He noted however the likelihood of a custodial sentence and made no other recommendation as to outcome.

[8] The appellant, who has no relevant previous convictions, is 23 years of age.His parents separated after the family emigrated to New Zealand when he was about 16 years old.His mother, with whom he lives, suffers from ill health and is quite isolated as a result of language difficulties.Evidence was placed before this Court of a deterioration in her health since the appellant's imprisonment.The evidence is in the form of a letter from Mrs Yu's doctor, who advises the Court that she is very depressed and has lost a great deal of weight.The doctor describes her as totally isolated and suffering a mental decline precipitated by the appellant's absence in prison. The doctor expresses the view that once the appellant returns home "things will quickly look up" and refers to the possibility of home detention.

[9] The Judge also referred to the appellant's lack of remorse, which she considered put him at a much higher risk of offending than the Probation Officer's assessment suggested.Given the appellant's attitude she thought his chance of rehabilitation low, thus precluding suspension of the inevitable sentence of imprisonment.In considering whether to grant leave to apply for home detention the Judge likewise concluded that the appellant's attitude, together with the other relevant factors, rendered it inappropriate to grant him leave to apply for home detention.She said:

... Had you been prepared to accept your offending and to show some remorse it may have been a different matter, but you have persisted in the face of all the evidence to deny the offending.Consequently, I do not consider that this is an appropriate case for home detention and leave is refused.

[10] Before this Court the appellant continued to protest his innocence although acknowledging that he has been convicted by a jury.

The Appeal

[11] On appeal, Mr Speed accepted that a sentence of 20 months' imprisonment falls within the available range for this offending, particularly when regard is had to the comparable authorities, as collected in Boyens v Police (High Court, Auckland, AP 112/99, 29 July 1999); and Cleland v Police (High Court, Auckland, AP 25/00, 10 March 2000).

[12] Mr Speed did not press the issue of suspension of the sentence either.As noted, the focus of the appeal centred on the issue of home detention.The essential submission was that the appellant's mother's illness and isolation rendered it appropriate to grant him leave to apply for home detention.Mr Speed further submitted that the appellant's offending was not of a type which gave rise to any concern that he would reoffend during any period of home detention.In regard to this consideration, Mr Speed submitted that the Judge had erred by categorising the appellant's offending as unsophisticated and therefore of a type that could be carried on in the home environment.Further, that she had erred in not accepting the probation officer's assessment of the appellant as low risk in terms of reoffending.Mr Speed pointed to two factors.First, the offending was entirely facilitated through use of the banking system, not by use of a computer system.Secondly, the evidence supported the view that the offending was sophisticated and required inside knowledge of banking procedures.This invited the inference that the appellant had not been the only offender.It can however be shortly stated that no evidence emerged of any third party involvement.

[13] Turning to the issue of home detention, s 21D Criminal Justice Act confers a wide discretion on the sentencing Judge, who is required to consider the nature and seriousness of the offence and any relevant matters in a victim impact statement in considering whether to grant leave to apply for home detention, but is not confined to consideration of those matters only.Other factors which may be relevant to the exercise of the judicial discretion are described in R v Barton (2000) 17 CRNZ 402 (endorsing Ramsden v Police 17 CRNZ 44) and R v Husband (CA 262/00, CA 263/00, 9 October 200)

[14] In the present case, the Judge gave clear consideration to the serious nature of the appellant's offending, to the comparative ease with which he could continue to offend if released to home detention, and to his unwillingness to acknowledge any wrongdoing.The Judge had already acknowledged and expressly taken account of the illness suffered by the appellant's mother and his previous clean record in considering the appropriate length of sentence and whether that sentence should be suspended.It is impossible to say that the Judge erred in exercising her discretion or failed to exercise it in any material way.She was in the best position to assess whether the relevant factors rendered home detention inappropriate.The report of the doctor who attends the appellant's mother, updating her sad situation, is the only new factor which might have necessitated a reconsideration of the discretion already exercised.The Judge was, however, alive to the mother's sad situation and to the impact that the appellant's imprisonment would have on her.This was recognised in the length of sentence ultimately imposed.As this Court noted in R v Kingston (CA 477/00, 24 May 2001), delivered on the same date as this judgment:

It is an almost inevitable consequence of offending of this type that close members of the offenders family will be affected.That cannot, however, stand in the way of an appropriate sentence being imposed.

Judgment

[15] The appeal is dismissed.

Solicitors:

Meredith Connell, Auckland, for the Crown