De La Hunt v R [2014] NZHC 1144 (27 May 2014)

Last Updated: 4 June 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000022 [2014] NZHC 1144

BETWEEN	ANDREA VIRGINIA ROCHELLE DE LA HUNT Appellant
AND	THE QUEEN Respondent

CRI-2014-409-000023

BETWEEN ANDREA VIRGINIA ROCHELLE DE LA HUNT

Appellant

AND THE QUEEN Respondent

Hearing:	1 May 2014
Appearances:	A G James for Appellant K J Basire for Respondent
Judgment:	27 May 2014

_{JUDGMENT OF GENDALL J}

Introduction

[1] This is an appeal against two sentences imposed at different times by

His Honour Judge Garland in the District Court.

[2] The appellant was convicted and then sentenced on the two occasions in question as follows:

(a) On 26 September 2013 to an end sentence of two years, six months

_{(the first sentencing) on each of four charges of accessing a computer}

DE LA HUNT v R [2014] NZHC 1144 [27 May 2014]

system for a dishonest purpose (s 249(1)(a) Crimes Act 1961) and on one charge of breach of home detention (s 80S Sentencing Act 2002) to five months imprisonment, the sentences to be served concurrently.

(b) On 19 February 2014 to a sentence of imprisonment of 14 months (the second sentencing) on one charge of forgery (s 256(1) Crimes Act

1961) which sentence was cumulative on the first sentence.

[3] The appellant appeals in respect of both sentences as being manifestly excessive. With regard to the first sentencing she essentially advances the following reasons:

(a) The District Court Judge failed to treat her bipolar disorder as a mitigating factor in sentencing.

(b) The District Court Judge failed to apply a discount for the level of her compliance with the sentence of home detention.

(c) The District Court Judge failed to take account that she worked well, and to her credit was able to pay significant amounts towards reparation due and owing.

(d) The appellant’s lack of compliance with the sentence it is said was not assisted by lack of continuity with probation officers.

(e) That, despite deceiving the probation officers as to the true nature of her work, the appellant nonetheless did work from premises at

1/569 Cashel Street and the lawful occupiers of that address were aware of the nature of her work, the premises being operated as a brothel.

[4] In relation to the second sentencing the appellant contends that the term imposed to the extent that it was cumulative was excessive, particularly having regard to the totality principle.

Background facts

[5] Earlier on, 29 November 2011 the appellant was sentenced to a term of 12 months home detention (the home detention sentencing) relating to 20 charges of dishonesty. With this in mind it has been suggested by the Crown here that the appellant should be considered as a recidivist offender, she having amassed 72 other dishonesty convictions as well as convictions for attempted murder and arson.

[6] Whilst on the sentence of home detention the appellant committed further offending which was the subject of the first sentencing. This related to deceiving the Department of Corrections resulting in four charges of accessing a computer system for a dishonest purpose and the one charge of breaching home detention. This offending came to light in June 2012, seven months after the home detention sentence started.

[7] During this home detention, the appellant had been permitted to work as a beautician for a company called Transform Limited. This business was operating from 1/569 Cashel Street where it was said there was a beauty and health salon. In reality, these premises operated as a brothel, and the appellant worked as a prostitute. While the lawful occupier of the address claimed that the appellant lived and worked upstairs as a tarot card reader only, it would have been plain what type of activity was going on downstairs. There is no issue that the appellant was paying a rent for one room and was self-employed.

[8] During the course of this work at the 1/569 Cashel Street address, the appellant on four separate occasions during 2012, sent false emails from her alleged employer to Community Corrections comprising time sheets and other records to confirm her employment at the address. This led to the fraud charges of accessing a computer system for a dishonest purpose. Each charge carries a maximum term of seven years imprisonment.

[9] The Department of Corrections then applied to cancel the home detention sentence and charged the appellant with breaching a condition of her sentence. The appellant initially entered a not guilty plea to the breach of home detention and only changed her plea on the day allocated for the fixture, which was after the home

detention sentence was due to expire on 29 November 2012. Accordingly the application to cancel was unable to be dealt with by the Court prior to the sentence expiry date.

[10] Both sentencing matters were then given a sentencing date of 26 April 2013 but this date was adjourned as counsel had sought to withdraw. On the final adjourned sentencing date, two letters were provided to the Court by the appellant in support of her sentencing. One was from a Dr Jeremy Baker of Settlers Heath Centre and the other purported to be from a Mr Carl Storm, said to be the appellant’s employer.

[11] The Crown had seen these letters earlier and therefore had been provided with an opportunity to enquire as to their bona fides. It was satisfied on this aspect with regard to the letter received from Dr Jeremy Baker. That letter said that the appellant had been treated by his health centre since February 2012, that she had a bipolar disorder and that during that time she had been compliant with her medication for this disorder and her condition was now stable.

[12] As to the letter from Mr Carl Storm, the appellant’s employer, the Crown discovered that this was a complete forgery. It seems the objective of this forgery perpetrated by the appellant was to support her application for a further community based sentence and to support a name suppression application she was to make. If the appellant had originally been sentenced on 26 April 2013 as envisaged, when this forged letter was initially provided, the forgery may well have gone undiscovered and the letter could have significantly influenced the sentencing process.

[13] The police accordingly in July 2013 laid a charge of forgery and the appellant was remanded in custody. The appellant entered a not guilty plea to the forgery charge. Initially she contended that Mr Storm had written the reference and said he was lying now to deny this, as he was upset with her not helping him out with potential employment contracts.

[14] The first sentencing was then set for 26 September 2013. On that date Judge Garland sentenced the appellant to two years, six months’ imprisonment as noted at [2](a) above.

[15] Then, on 11 November 2013 the appellant pleaded guilty to the forgery charge and as I have noted at [2](b) above, on 19 February 2014 she was sentenced by Judge Garland on the second sentencing to a further term of 14 months imprisonment, which sentence was cumulative on the first sentencing.

District Court decisions

[16] On the first sentencing, Judge Garland took a starting point for the charges of accessing a computer system for a dishonest purpose of two years’ imprisonment. He added six months for breaching home detention and to reflect the fact that for seven months, the appellant only partially completed her sentence of home detention. The Judge then uplifted the sentence by nine months for her past dishonesty offending. For her early guilty pleas to the dishonesty charges and the late plea to the charge of breaching the home detention sentence, the Judge allowed a reduction of nine months. He made no further reduction on account of her bipolar condition.

[17] Thus, the Judge sentenced the appellant first, to a term of two years and six months’ imprisonment on each charge of accessing a computer system for a dishonest purpose and secondly, to a term of five months’ imprisonment for breaching her sentence of home detention. All terms were to be served concurrently.

[18] At the outset, it will be apparent that Judge Garland has uplifted that part of the first sentencing on the dishonesty charges for the breach of home detention by six months and then he has gone on to impose a concurrent sentence of five months imprisonment for that breach of home detention charge. In my view the appropriateness of this may well be open to some question. It could be said that it is being punished twice for the same offence, even though with a concurrent sentence, it is not likely that it will actually be served. The six months uplift on the first sentencing arguably could therefore be removed, on the basis that the concurrent five months sentence for breach of the home detention remains.

[19] In relation to the second sentencing, the Judge saw the offence as analogous to attempting to pervert the course of justice. The start point was 12 months with four months additional for previous convictions, less two months for the later guilty plea, with a cumulative sentence of 14 months. Judge Garland did not see this end result as being inconsistent with the totality of the appellant’s offending.

Counsel’s arguments and my decision

[20] Generally, the appellant submits here that the overall result of imprisonment for a term of three years and eight months was manifestly excessive for the total offending. Apart from the guilty pleas, the appellant suggests no other mitigating factors either as to the offences or as to her the offender, were taken into account. Having regard to the overall circumstances, the appellant says the sentences were not the least restrictive outcome necessary.

[21] Leaving these specific matters to one side, I will now turn to consider the general arguments on appeal noted at [3] above and her further submissions which the appellant has advanced here. Broadly speaking, these are:

(a) As to the appellant’s bipolar disorder, counsel contend that whilst consideration was given to this in the home detention sentencing decision given in November 2011, it was not taken into account in the later sentencing at issue here. This mental health disorder it is said should have attracted some reduction in the overall sentencing imposed.

(b) It should have been acknowledged that the gravity of the offences in this case relating to the type of dishonesty offending concerned was in reality reduced by the fact that there were no victims who incurred actual financial loss here.

(c) The appellant’s fabrications over the nature of her employment were not entirely complete ones. It is said she did in fact work from the address supplied and that she had used her income to support her family and also to pay reparation to some degree. Otherwise it is also

suggested that there was significant compliance on her part with her home detention sentence, but on this last point, her claim does seem rather far-fetched.

(d) Several decisions said to be comparable were noted. In the first, Hunter v New Zealand Police,¹ Collins J allowed an appeal relating to six forgery charges where the appellant had a troubling list of previous convictions. There, the Judge replaced community work and home detention with a sentence purely of community detention. No direct loss was involved in that case and the appellant’s mental health issues were also taken into account in imposing the final sentence.

(e) In the second decision, that of Wilson v New Zealand Police,²

Toogood J dismissed an appeal against a sentence of community work imposed on a forgery charge. The appellant had lodged a false lease document with the Disputes Tribunal and was convicted of the charge following a defended hearing. Although this attempt to mislead a judicial body was seen as serious offending, the community work sentence remained.

(f) Comparable to these sentences noted in Hunter and Wilson above, the appellant contends that the starting point of 12 months for the forgery charge here was high given the particularly cumulative effect of this.

(g) Next, the decision in Meares v R³ was referred to. The forgery in that case involved the appellant forging a letter in the name of the Public Defence Service authorising funds that had been frozen to be released. This occurred when the appellant was awaiting sentence on other charges. In the District Court a cumulative sentence of three months was imposed for this offence, on a sentence of four years imposed for

_{other theft charges where $380,000 was stolen.}

¹ _{Hunter v New Zealand Police [2012] NZHC 3249.}

² _{Wilson v New Zealand Police [2013] NZHC 2647.}

³ Meares v R [2014] NZCA 30.

(h) With respect to the first sentencing, the appellant contends that some allowance for mitigating factors should have been made in the region of six months while the addition of nine months for previous convictions is said to be excessive.

(i) Finally, with regard to the second sentence, the appellant says the cumulative sentence should have been only in the region of three months, having regard to the totality principal. A further four months for previous convictions was not appropriate on top of the earlier nine months imposed.

[22] At the outset I need to say that in my view the circumstances prevailing in the present case (and the appellant’s blatant offending here) are unique, and I take issue with any suggestion by the appellant that the cases outlined at [21](d), (e), (f) and (g) are comparable. Those cases were clearly determined on their own specific facts which all differed significantly from the appellant’s position in this case. But, I now turn to more specifically address those grounds advanced for the appeal noted at para [3] above, and the appellant’s general submissions outlined at [20] above.

Ground (a) Failure to treat the appellant’s bipolar disorder as a mitigating factor in sentencing.

[23] It is argued that a mental disorder, like the appellant’s bipolar condition here, may be capable of mitigating a sentence either because; if it is causative of the offending, it moderates the culpability, or it may alternatively or in addition render less appropriate or more subjectively punitive a sentence of imprisonment.

[24] The effect on sentencing of a mental disorder falling short of exculpating insanity was discussed at length by the Court of Appeal in E v R.⁴ There the Court recognised that the “moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.⁵ There are six ways in which impaired mental

functioning will be relevant to sentencing, as the Court in E v R explained⁶ is referring to R v Verdins:⁷

(a) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

(b) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

(c) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

(d) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

(e) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(f) When there is a serious risk of imprisonment having a significant

adverse effect on the offender’s mental health, this will be a factor

_{tending to mitigate punishment.}

⁶ At [70].

[25] The Sentencing Act 2002 allows aspects of mental health to be considered in sentencing. Section 9(2)(e) provides that an offender’s diminished intellectual capacity or understanding may be a mitigating factor under the subsection where there is a causative link between the lack of capacity or understanding of the offence. This subsection essentially provides for what may be referred to as diminished responsibility.

[26] But there must be a clear nexus between the limited intellectual capacity or understanding and the offending for a sentencing discount under s 9(2)(e) to be made. And in my view, given particularly the appellant’s offending history, there is no real suggestion here that this was the case. Another example of a lack of nexus is R v Sabuncuoglu⁸ similar as I see it to the present case. There the offender who suffered from PTSD had used documents with intent to defraud and the Court determined that the PTSD was not connected to the offending, did not diminish the moral culpability of the offending and therefore no discount for the disorder could be

given.

[27] Where, as here a mental impairment is not causally linked to the offending and therefore does not justify a discount under s 9(2)(e), it could however be taken into account under s 8(h) as a mitigating factor where a sentence will weigh more heavily on the defendant than on others because of her/his low intellectual function or mental impairment, or where the otherwise appropriate sentence will exacerbate the mental impairment. In R v P,⁹ where an intellectually handicapped offender had raped a mentally disabled woman, the Court considered that due to the offender’s disability, a sentence of imprisonment would be disproportionate and unsuitable. In

that case Williams J even considered that imprisonment could amount to cruel or disproportionately severe punishment, in breach of s 9 of the New Zealand Bill of Rights Act 1990. The offender was sentenced to six months’ residence in a mental health trust organisation and one year’s supervision.

[28] In R v Rusbatch¹⁰ the appellant who was bipolar successfully appealed his sentence of 12 months’ imprisonment for one count of assault and two counts of assault with a weapon. In the circumstances of that case, which in my view differ significantly from those prevailing in the present case, the Court reduced that sentence to nine months’ imprisonment with a cumulative sentence of 12 months’ supervision. The Court also recognised in Rusbatch that there was no wholly satisfactory resolution of the problems raised by that particular case, and the Court said it was not assisted by the statutory framework.

[29] In the case before me, in sentencing the appellant on 26 September 2013

Judge Garland in considering mitigating factors, declined to make any further reduction for the appellant’s bipolar disorder. He referred to his earlier judgment when he had sentenced her to home detention on 29 November 2011, noting that he had read a report by a Dr Gordon who agreed that the bipolar disorder “has had an influence on your offending although he makes the comment in the report that you know full well that if you stop taking your medication that you might be inclined to behave in this way”. At that sentencing His Honour gave some allowance for the appellant’s mental health.

[30] On 26 September 2013 His Honour had the benefit of the letter from the appellant’s doctor, Dr Jeremy Baker, who said that positive changes had occurred in the appellant’s health since February 2012 when she had been seen by the health centre, and that she had been compliant with her medications and engaged positively with staff during that time.

[31] It seems there was no evidence before the Court however that suggested the current offending was caused in any part by the appellant’s bipolar disorder. Nothing has been advanced to indicate the appellant’s condition was at all causative of the offending here. I am satisfied there was no nexus or causative link established here between any lack of capacity caused by the appellant’s suggested bipolar disorder or her general understanding of the offences she was committing. Nor has any

_{information been placed before the court that would indicate that imprisonment}

¹⁰ R v Rusbatch (1996) 13 CRNZ 476 (CA).

would be less appropriate or more punitive for the appellant here as a person allegedly suffering from such a disorder.

[32] What is clear to me in the present case is that, despite being compliant with her medication, the appellant whilst on home detention chose to offend. And, the forgery offending occurred in April 2013 at a time when by her own doctor’s account the appellant had been stable for a period of over a year. Under all these circumstances I am satisfied there was no requirement for Judge Garland to mitigate the appellant’s sentence for her bipolar disorder, and he did not err in choosing to take this approach.

Grounds (b) and (e) Failure to apply a discount for the level of compliance with the sentence of home detention; and, despite deceiving the probation officers as to the true nature of her work, the appellant nonetheless did work from the brothel premises at 1/569 Cashel Street, and the occupiers were aware of the nature of her work.

[33] After being sentenced to the 12 months home detention on 29 November

2011, it is clear the appellant immediately began offending. On 30 November 2011 she was granted leave to work as a beautician at Transform Limited. The appellant in fact worked as a prostitute/escort and then went to some lengths to hide her offending sending weekly emails and payslips to the Department of Corrections purportedly from her employer, and avoiding visits by Corrections officers to the premises.

[34] Judge Garland in his 26 September 2013 sentencing notes properly in my view held at [22] to [25] that aggravating features were the planning and pre- meditation involved in the sending of the emails, the time periods the appellant was not subject to restrictions during the week (8:30 a.m. to 7 p.m. daily) and her continuous offending over a lengthy period. His Honour assessed that the offending rendered the home detention sentence “largely ineffectual”. I agree. There is nothing in these grounds of appeal advanced by the appellant here and they are dismissed.

Ground (c) Failure to take account that she worked well and to her credit was able to pay significant amounts towards reparation due and owing.

[35] It does not appear that there is any direct evidence before the Court in regard to the reparation paid by the appellant. This does not seem to have been a mitigating feature raised at sentencing.

[36] On 29 November 2011 the Court ordered the appellant to pay a lump sum of

$5000. This would indicate the appellant on the day of sentencing had access to

$5000 to pay this. She was then ordered to pay $75 per week. And, in any event, compliance with the reparation portion of the sentence does not as I see it mitigate non-compliance with the home detention portion of the sentence. The notion too that she “worked well” must be called into question here, given the fact that immediately she was granted leave to work as a beautician, she embarked upon her no doubt previously planned activity as an escort/prostitute. This ground also does not assist the appellant here.

Ground (d) Lack of compliance with the sentence was not assisted by a lack of continuity with probation officers.

[37] Given the offending began the day after the appellant was sentenced to home detention, it could not realistically be said that the lack of continuity with probation officers had any bearing on the offending. I reject this argument.

Ground (f) (Para [4] above) In relation to the second sentence, the term imposed, to the extent that it was cumulative, was excessive particularly having regard to the totality principle.

[38] In terms of the second sentencing decision on 19 February 2014, Judge Garland held the offending was analogous to a charge of attempting to pervert the course of justice, a charge which carries a 7 year imprisonment maximum penalty. And, the appellant pleaded guilty to what was a more serious charge of forgery, which carries a maximum sentence of 10 years imprisonment.

[39] Authorities were referred to indicating that sentences of 18 months to three years were in range for this type of offending. Judge Garland took into account that the forgery was discovered prior to the sentencing and the need to consider

totality. I am satisfied therefore that the adopted start point of 12 months was appropriate being in fact below the general range accepted by these authorities.

[40] In my view, it could not be said therefore that the start point was excessive nor that the decision to impose a cumulative term was not appropriate. As the appellant had herself taken steps in an endeavour to ensure that all matters were not before the sentencing Judge on 26 September 2012, the sentence was required to be cumulative to have any effect.

[41] Nor in my judgment could it be realistically suggested that a total of three years eight months imprisonment for the totality of the offending here was excessive (effectively an overall start point including uplift for prior offending of four years seven months imprisonment).

[42] And, despite my comments at [18] above, it could not be said that the total end sentence was inappropriate given the nature of the offending here. The initial offending in effect over a sustained period of some considerable time was aimed to defeat the course of justice and was followed by a further attempt to defeat the course of justice upon sentencing for that very offending. All this reflects the appellant’s sheer disregard for the Court and justice processes and her attempts in

effect to pervert the course of justice. And, as the Court of Appeal noted in M v R:¹¹

...any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.

[43] And, there is no doubt in my mind that the circumstances of the present case are clearly not exceptional.

Conclusion

[44] For all the reasons I have outlined above, I find that Judge Garland in the District Court made no error in sentencing the appellant either on 26 September 2013 or 19 February 2014. Moreover if any error might be possibly identified, the end

_{sentences are within range and not manifestly excessive.}

¹¹ M v R [2013] NZCA 385 at [9].

[45] The present appeals are therefore dismissed.

...................................................

Gendall J

Solicitors:

Alister James, Christchurch

Raymond Donnelly & Co