The Queen v Suttie [2007] NZCA 201 (24 May 2007)

Last Updated: 14 June 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA60/07
[2007] NZCA 201

THE QUEEN



v



DOREEN DAISY GEOK TIN SUTTIE

Hearing: 21 May 2007

Court: William Young P, Baragwanath and Heath JJ

Counsel: J H M Eaton for the Appellant
M A Treleaven for the Crown

Judgment: 24 May 2007 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by William Young P)

Introduction

[1]	On 7 February this year, the appellant appeared for sentence before Judge MacAskill in the District Court at Christchurch on five charges of fraud and theft. She had earlier pleaded guilty. The Judge sentenced her to a total of two and a half years imprisonment and declined to make a final order suppressing publication of her name.
[2]	She now appeals to this Court challenging the length of the sentence and the refusal of the suppression order.

Factual background

[3]	The appellant is now 66. She comes from Singapore and has lived in New Zealand since 1972. She has six children and no previous convictions.
[4]	The appellant ran New Zealand Student Services Ltd which provided homestay and guardianship services for Japanese students in New Zealand. Her offending was in relation to two sisters, Hitomi and Yu and a third young person, Mutsumi.
[5]	Between 1997 and 2003, the family of Hitomi and Yu sent the appellant $662,969. This was to cover the expenses associated with study, living and accommodation for the girls and was paid on the basis that money not spent in this way was to be placed with a bank. The interest earned on the bank deposits came to $129,845. So the total received was $792,814. Of this money, the appellant misapplied (for the benefit of herself and others) approximately $503,000.
[6]	There was a broadly similar pattern of events in relation to Mutsumi. The appellant received $211,789.96 from her parents to meet education and living expenses. The appellant in effect stole all of this money. But she subsequently met expenses associated with Mutsumi to a point where Mutsumi’s family can fairly be regarded as out of pocket by only $67,000. Some of these expenses were funded by money which had been initially provided by and then stolen from the family of Hitomi and Yu, money which is included in the $503,000 to which we have already referred.
[7]	In order to deflect inquiries about the money from the two families, the appellant was required to engage in a pattern of lies and to some extent manipulation of bank accounts.
[8]	The consequences of the offending on the victims were significant. There has been and can be no reparation.
[9]	In the case of the money sent in respect of Hitomi and Yu, the appellant pleaded guilty to three counts: one of using documents fraudulently contrary to s 229A of the Crimes Act 1961 and two of theft by failing to account contrary to s 224 of the Crimes Act. In respect of the offending in relation to Mutsumi, the appellant pleaded guilty to one charge of using documents fraudulently (laid under s 229A of the Crimes Act) and one of theft, laid under s 224 of the Crimes Act.
[10]	The appellant has some physical ailments, particularly glaucoma, hypertension and Bells Palsy. More relevantly she has a history of anxiety and depression which goes back at least 20 years. On a number of occasions she has overdosed on drugs. The investigation into her offending and the subsequent prosecution were very stressful for the appellant and affected her functioning. She developed paranoia and suicidal ideation and exhibited some features indicative of psychosis. Psychiatric reports to the Court at the time of her sentencing indicated that she was at high risk of suicide if her name were published or she was imprisoned.
[11]	The appellant pleaded guilty to the charges after depositions and after she had secured the adjournment of her trial on one occasion for reasons associated with whether she was fit to stand trial. We will discuss the details of this shortly.

The challenge to the sentence of imprisonment

The approach of the Judge

[12]	In arriving at the sentence which he imposed, the Judge carefully reviewed the facts. He treated R v Staples CA215/04 6 May 2004 as the most comparable decision. He then went on:

[18] Approaching the matter on a totality basis and taking into account the aggravating factors, I take the starting point to be four years and four months imprisonment. I take into account the mitigating factors that I have recognised and I give particular weight to your guilty pleas after depositions, your previous good character, your remorse, your age and state of mental and physical health. I deduct 22 months. That also takes account of a decision I am about to announce concerning suppression of your name. Taking count 1 as the lead offence for the purposes of sentencing you are sentenced to imprisonment for two years and six months. On counts two, three, four and five you are sentenced to concurrent terms of 12 months imprisonment.

The basis of the appeal

[13]	For the appellant, Mr Eaton raised three issues:
(a)	The starting point;
(b)	The discount for mitigating factors; and
(c)	The Judge’s treatment of an offer of reparation.

We will discuss each in turn.

The starting point

[14]

Mr Eaton maintained that the starting point of four years and four months was too high.

[15]

We disagree. The case is very similar indeed to Staples, in terms of the amount stolen, the period of time over which the offending occurred, the elements of deception, the impact on victims and the level of premeditation. There a starting point of five years was seen as appropriate. In this case, given that the appellant was the guardian of the children who were the primary victims of her offending, her culpability was very high and it is impossible to regard the starting point selected by the Judge as too harsh. If anything, it was generous.

The discount for mitigating factors

[16]	The Judge’s final sentence represented a discount of 42% against the starting point he identified. Mr Eaton complained that the Judge did not separately identify the discount for the guilty plea but his primary complaint is that the Judge’s approach necessarily meant that he had not allowed the appellant a one third discount for her pleas of guilty.
[17]	There was no requirement for the Judge to identify a separate and discrete discount for the guilty plea, see R v M (CA517/04) CA517/04 5 May 2005 at [14].
[18]	Given the general arithmetic and indeed the Judge’s comment that the pleas of guilty came after depositions, it seems to us reasonable to infer that the Judge did not give what might be regarded as a full (ie around one third) discount for the pleas. Mr Eaton maintained that this was unfair as the material before the Judge indicated that there had been genuine concerns throughout as to whether the appellant was fit to stand trial and that the delay in entering the pleas was associated with those concerns.
[19]	The appellant first appeared in March 2005. There was a preliminary hearing in September 2005 which was originally scheduled for two weeks and for which a Japanese interpreter was arranged. In the end the appellant consented to the evidence from the Japanese witnesses being given in written form and the hearing only involved three witnesses who gave oral evidence. The case was subsequently set down for trial to commence on 1 May 2006. This trial date however was abandoned on the basis that a disability hearing was or might be required. By this stage it was reasonably clear to the prosecution that the appellant would plead guilty if the disability issue was not resolved in her favour. In the event, the appellant did not pursue the disability argument and eventually she entered pleas of guilty on 19 December 2006.
[20]	The other mitigating factors identified by the Judge, the appellant’s good character, remorse, age and mental and physical health were undoubtedly of moment but not of decisive significance. Her remorse did not produce early guilty pleas and while her age and mental and physical condition at the time of sentencing are material to the impact on her of a prison sentence, there is no evidence to suggest that her offending was a function of her psychiatric difficulties.
[21]	When pleas of guilty have been entered after depositions, counsel for the defendant can usually point to what may seem (at least when viewed from the perspective of the defendant) to have been good reasons for the delay: the necessity to investigate the facts, evidential arguments and so on. This is very much the situation here. The appellant could not have been a particularly easy client for Mr Eaton to advise and it is understandable that her pleas of guilty were not particularly prompt. That said, the appellant must have known from the outset that she was guilty. Yet she did not plead guilty until more than 18 months after she was charged. In this context a discount for her pleas in the order of 20%–25% would not have been out of the way.
[22]	The appellant’s age and psychiatric difficulties and her high level of anxiety about imprisonment and publicity were material mitigating circumstances because they mean that the impact of the sentence will be greater on her than it would be for most offenders. On the other hand, commonsense and experience suggest that her anxiety and related symptoms are likely to be alleviated once the proceedings come to an end. In those circumstances, the overall 42% discount for mitigating circumstances which the Judge allowed was acceptable.

The Judge’s treatment of the offer of reparation

[23]	The Judge dealt with the issue of reparation in this way:

[16] The matter of reparation is problematic. Your statement of means discloses no assets apart from half interest in household effects. You have no interest in any matrimonial home, so it would appear. You offer as reparation the $630 per fortnight that you receive as superannuation on your own account. I am not prepared to accept that this is a realistic offer because you and your husband need to live on something. It is perhaps significant that none has been paid before now, although the proceedings have been pending since March 2005. You say that you receive $500 a month in support from your children, so it is hardly likely that you could live without your superannuation or indeed the additional income you receive from your children. Your joint monthly expenditure is shown as $2045 a month, including only $400 for food and household supplies. You say that your husband works casually as a tour bus drive and during the summer months earns about $400 per week or $1600 per month, on average. It seems to me that your offer of reparation, while no doubt genuinely made, is unrealistic. Your counsel accepts that assessment. I do not think that any such payment is likely to be sustained or that any order in that amount could be enforced. I note too that, even at the rate offered, it would take you, according to the Probation Officer’s calculations some 31 years to repay what you stole, regardless of interest.

[24]	Mr Eaton complained about this treatment saying that the offer nonetheless was required to be taken into account (see s 10 of the Sentencing Act 2002) and that the Judge ought not to have taken into account the fact that no money had been paid prior to sentencing.
[25]	We see nothing in these complaints. The victims are out of pocket by approximately $570,000 and there is no realistic prospect of any repayment. An unrealistic offer of reparation which has never been acted on is of very little, if any, practical significance in a case of this sort.

Conclusion

[26]

There was scope for a range of opinions on the key issues of appropriate starting point and discount. If anything the starting point was generous to the appellant. Given the slightly unusual nature of the case (and particularly the appellant’s psychiatric difficulties), a reasonably generous allowance for mitigating factors was appropriate. But the 42% discount was entirely adequate. Weighing all the factors in the case, we are not persuaded that the sentence imposed was outside the available range.

The refusal to order name suppression

The approach of the Judge

[27]	The Judge addressed the name suppression issue in this way:

[20] As to whether or not a final order should be made for the suppression of your name, the starting point is the principles of open justice; the right of the public to be informed and the right of the news media to report proceedings of the Court. It is especially important to recognise and give effect to those rights in the case of serious offending such as this. The publication of offenders’ names is an important factor in the general deterrence of crime and is an element of punishment.
[21] Medical and, more importantly, psychiatric reports show that you are at risk of suicide and it is feared that the publication of your name will aggravate that risk. I refer, in particular, to Dr Dubow’s report of the 19^th of April 2006 and to Dr Rae’s reports, especially those of the 26^th of October 2005, 22 November 2006 and 2 February 2007. It is unnecessary for me to quote from them. It seems to me clear that the worsening of your depression and anxiety symptoms is primarily as a result of your preoccupation with going to prison. No doubt this has been contributed to by the slowness of the process. It is also clear that on being admitted to prison your chronic risk of suicide will be raised. You will require constant supervision.
[22] Dr Rae continues to support the making of a suppression order upon the basis that the danger will be aggravated by the publication of your name and that you will be at high risk. I accept that this danger will be elevated that is a concern that can and will be made known to the prison management. I observe that suppression orders often do not have the effect of preventing the community from becoming aware of the offending in any event, especially where the offender received a prison sentence, as you have. The Court must be especially cautious in making suppression orders in the case of such serious offending. The Court must be alert to the offenders manipulating or influencing the Court process, whether calculatedly or not, in disclosing suicidal thoughts. Diagnosable psychiatric conditions are often present at sentencing and a high proportion of prisoners suffer from such conditions. Suicidal ideation is commonly present at sentencing. It may support a final suppression order but not necessarily. In your case, my assessment is that your thoughts of suicide primarily the product of depression and anxiety associated with the sentencing process. They will likely pass or be much reduced after sentencing now that the outcome is known. The prison management are accustomed to dealing with such problems. I direct that they be made aware of your risk of suicide and, in particular, that copies of the psychiatric reports be immediately provided to the prison management.
[23] I am not persuaded that your personal health problems outweigh the public interest in knowing that your are responsible for such serious offending. The fundamental principle of openness in judicial proceedings must prevail. A final order for suppression of your name, is, therefore, refused.
(Emphasis added)

The argument for the appellant

[28]	Mr Eaton maintained that the Judge’s refusal to order name suppression was plainly wrong as he failed to give due weight to the appellant’s very serious mental illness. He also challenged the comments made by the Judge at [22] which we have emphasised.

Evaluation

[29]	This was very much an issue of discretion and we were rather left with the impression that the attempts by Mr Eaton to find error with the approach taken by the Judge were a little forced.
[30]	When someone who might be a candidate for name suppression (ie is otherwise of good character) goes to prison, this is unlikely to pass unnoticed by those who know that person. We think that this is the point which the Judge was making in the first sentence of the passage which we have highlighted. We agree that the appellant’s concerns about publicity extend beyond its likely direct impact on her, for instance she considers that publicity about her offending will reflect on her children who bear her surname. But that does not mean that the Judge’s comment was misplaced or that he was materially in error.
[31]	The Judge was entitled to take into account the seriousness of the offending. As this Court indicated in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [42]:

... Where a person is convicted of a serious crime, it will only be in rare cases that name suppression will be ordered ... .

So we see no error in the second of the sentences which we have italicised.

[32]

Equally unexceptionable is the third of the italicised sentences. A risk of suicide is not uncommon when offenders appear for sentence. It is not the case that a psychiatrically identified risk of suicide is a determining consideration (cf R v McDonald CA84/98 24 August 1998 and R v J(CA345/00) CA345/00 7 December 2000). In this case, the risk must be reasonably controllable within the prison system and the probabilities are that it will be largely alleviated once the criminal justice process is at an end. We do not read what the Judge said as indicating that the appellant was seeking to manipulate the system. It is quite clear that he accepted that there was a "chronic risk of suicide". On the other hand, if there was a rule that a psychiatrically diagnosed risk of suicide entitled a defendant to suppression (or other favourable sentencing outcomes), attempts at such manipulation would be encouraged.

[33]

This was truly a hard case and we have a good deal of sympathy for the appellant. That said, Mr Eaton was not able to demonstrate an error in the way the Judge approached this aspect of the case.

Result

[34]	The appeal is dismissed.

Solicitors:
Saunders Robinson, Auckland for Appellant
Serious Fraud Office, Auckland for Crown