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High Court of New Zealand Decisions |
Last Updated: 11 March 2019
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
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CRI-2018-409-000127
[2019] NZHC 318 |
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BETWEEN
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MELISSA MARY HAEREROA
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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28 February 2019
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Appearances:
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N R Wham for Appellant
K Courteney for Respondent
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Judgment:
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1 March 2019
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JUDGMENT OF GENDALL J
[1] On 17 August 2018, the appellant, Melissa Haereroa, was sentenced to four and a half years’ imprisonment on a raft of charges. These included obtaining by deception, theft, wilful trespass, aggravated assault, driving with excess blood alcohol, driving while disqualified and breaches of intensive supervision and community work. She appeals the sentence on the basis that it is manifestly excessive.
Facts
[2] There are four distinct sets of charges as follows:
HAEREROA v NEW ZEALAND POLICE [2019] NZHC 318 [1 March 2019]
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Set 1
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Set 2
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Set 3
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Set 4
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[3] The three convictions for obtaining by deception arise from a complex system of defrauding elderly people through bank accounts. Police referred to the investigation as Operation Eclipse.
[4] The fraud involved money being transferred out of the account of a victim and into the account of a “mule”, from which it was withdrawn. Sometimes the money was transferred to a second or third “mule” before withdrawal. At least 20 victims were identified, and a total of between $150,000 and $300,000 was taken. Ms Haereroa was convicted in relation to withdrawal transactions relating to three victims.
[5] In relation to one victim, Ms V, $11,540 was fraudulently transferred from her account to a “mule’s” account on 3 December 2016. The mule and an associate met with Ms Haereroa at The Palms shopping centre. The associate drove their car around Christchurch for the “mule” to withdraw funds, while Ms Haereroa drove in convoy. A total of $6,048.50 was withdrawn and handed to a passenger in Ms Haereroa’s car.
[6] Regarding a second victim, Ms M, $700 was fraudulently transferred from her account to a “mule’s” account on 17 December 2016. That evening, Ms Haereroa sent
a number of texts to associates and to her son, containing the name and bank account number of the “mule” in this matter. $700 was withdrawn from the “mule’s” account over seven transactions between 19 and 21 December 2016.
[7] Regarding a third victim, Ms P, $22,000 was fraudulently transferred from her account to a “mule’s” account on 28 December 2016. An associate texted Ms Haereroa’s son and another associate between 10am and 11am telling them they needed to “work asap” and to wake Ms Haereroa up. At 5.01pm that day, Ms Haereroa was seen driving several associates to Eastgate Shopping Centre. Between 5.15pm and 5.20pm, Ms Haereroa’s son withdrew “$3,014.46” from the “mule’s” account at Countdown Eastgate. Between 28 and 29 December 2016, a total of $11,993 was withdrawn from the “mule’s” account.
[8] The summary of facts, to which Ms Haereroa pleaded guilty, recorded a total of $34,240 taken from three victims, and $18,741.50 withdrawn from “mule” accounts. It is not alleged that Ms Haereroa received any of the money, nor that she was involved in designing or establishing the fraud.
[9] On 8 September 2015, Ms Haereroa was sentenced to 12 months’ intensive supervision and 100 hours’ community work on two charges of theft (under $500) and one charge of wilful trespass. On 18 December 2015, she was sentenced to a cumulative 40 hours’ community work for committing a further theft (under $500). By 22 February 2017, she had completed 76 hours of community work, but had failed to report since 5 October 2016. She was thus charged with a breach of community work.
[10] On 6 September 2016, Ms Haereroa was sentenced to twelve months’ intensive supervision on two charges of shoplifting (under $500) and two charges of wilful trespass. One of the conditions of her intensive supervision was not to associate with a peer associate, Denise Greig. On 21 February 2017, Ms Haereroa contacted the Christchurch Central Police Station, requesting to speak to an officer. A voice in the background identified herself as Ms Greig, asking to meet with him as well. They were invited to the station to attend a meeting, and they arrived together. Ms Haereroa
was arrested a short time later. She was thus charged with a breach of intensive supervision. The four original charges are also to be resentenced.
[11] The considerable number of offences involved in this set are described in chronological order.
[12] On 11 December 2016, Ms Haereroa attempted to take several perfume items from the NZ Sale shop at Bush Inn shopping mall. She was convicted of theft (under
$500).
[13] Ms Haereroa had been trespassed from all Warehouse stores in Christchurch for two years from 18 November 2015. In spike of this, she entered the Warehouse in Hornby on 19 April and 29 April 2017, resulting in wilful trespass charges.
[14] On 18 May 2017, Ms Haereroa along with three associates (two of whom were youths) entered the Pak n Save in Hornby. Ms Haereroa walked around the store loading a shopping trolley with a large amount of groceries valued at $648.77, before leaving the full trolley in an aisle and making her way to the exit. Two of her associates then located the trolley and pushed it through the self-scan checkout, making no attempt to pay, before they were stopped. Ms Haereroa was convicted of theft ($500-
$1000). Another conviction for theft ($500-$1000) was also imposed on this date. Details of this charge are not clear from the material before this Court, however.
[15] Between 12 June and 11 August 2017, Ms Haereroa, along with various associates, committed a number of thefts throughout Christchurch, using a similar method to the one described above. These included an attempt to take $664 worth of groceries from Pak n Save Rangiora; a theft of $1650 worth of electronics from the Warehouse, Ashburton; a theft of $200 worth of groceries from Countdown Hornby; an attempt to take a jacket from Macpac Riccarton worth $600; an attempt to take electronics worth $109 from Harvey Norman; a theft of perfumes worth $455 from Farmers; and a theft of groceries worth $1500 from Countdown Rangiora.
[16] Ms Haereroa was trespassed from Pak n Save Rangiora on 1 June 2017. Despite this, she entered Pak n Save Rangiora on 12 June 2017.
[17] Ms Haereroa was also trespassed from the Palms shopping mall, Shirley, on 31 October 2016. Again, despite this she entered the Palms on 17 July 2017 and 10 August 2017.
[18] On 25 July 2017, Ms Haereroa and four associates entered the Ballantynes department store in Christchurch. Her associates attempted to take clothing from the store without paying, and staff intervened. Ms Haereroa approached a staff member with clenched fists and began threatening and abusing her. She pushed the staff member to allow her associate to exit the store with the clothing. The clothing taken was worth $1070. Ms Haereroa was convicted of aggravated assault and theft (over
$1000).
[19] On 27 March 2017, Ms Haereroa was suspended from holding or obtaining a driver’s licence for three months due to excess demerit points. On 28 May 2017, she was stopped by police while driving on Manchester Street, Christchurch. After she refused to give a breath screening test, an evidential breath test returned a positive result of 801 micrograms of alcohol per litre of breath.
District Court decision
[20] Ms Haereroa appeared before Judge Farish for sentencing on 17 August 2018. Judge Farish had given Ms Haereroa a sentence indication in October 2017, but since then there had been a number of adjustments to the charges. This warranted a fresh consideration of the sentencing to be imposed.
[21] Regarding the Set 1 offending, involving obtaining by deception, the Judge set a starting point of two and a half years’ imprisonment. She mentioned twice that the total money lost by the victims of the offending Ms Haereroa was connected with was
$69,540. It is unclear where the Judge sourced that figure from, as on the summary of facts it is closer to $34,000. What is clear, however, is that the amounts involved were
substantial. The Judge noted, too, that Ms Haereroa’s involvement “was quite significant in terms of the amount of money that [she] participated in defrauding those three victims of”, and that she was aware of the vulnerability of her victims.
[22] As to the Set 2 offending, the breaches of community work and intensive supervision and the resentencing of two theft convictions and two trespass convictions, the Judge took a starting point of nine months’ imprisonment.
[23] And, concerning the Set 3 offending, the thefts, trespasses and aggravated assault, the Judge set a starting point of two and a half years’ imprisonment, considering the persistence of Ms Haereroa’s offending.
[24] Lastly, as to the Set 4 driving offending, the Judge uplifted the sentence by six months.
[25] For offending whilst on bail, the Judge imposed an uplift of six months, and a further six months to reflect Ms Haereroa’s history.
[26] Taken cumulatively, the starting point thus seems to be seven years and three months’ imprisonment (erroneously stated by the Judge as seven years and four months).
[27] Judge Farish noted, too, that since Ms Haereroa had been on remand, she had “done everything that you can possibly do in terms of programmes at the prison”, and that she had permanent employment in the kitchen. The Judge discussed how Ms Haereroa had begun connecting with her whakapapa and rebuilding some of the damage done by her offending. The Judge acknowledged Ms Haereroa’s embarrassment and shame in the fact she involved at least one of her children in her offending. On the other hand, it could not be said the pre-sentence report was overly positive. It recorded that she had little insight into her offending and was at a high risk of reoffending. However, given the various efforts Ms Haereroa had made to improve her situation, the Judge did give her a 10 per cent credit.
[28] The Judge then awarded a 20 per cent credit for Ms Haereroa’s relatively early guilty pleas, taking the sentence to one of five years and two months’ imprisonment, before considering totality. As all the thefts were relatively low-level and generally not commercial in nature, the Judge considered five years and two months to be manifestly excessive. As such, she imposed a final sentence of four and a half years’ imprisonment for all the offending. She declined to order reparation or to impose a minimum period of imprisonment, principally because it was Ms Haereroa’s first sentence of imprisonment.
[29] In her sentencing, Judge Farish took particular note of Ms Haereroa’s Māori whakapapa, and noted, too, the victims’ statements that, being Māori and Pasifika themselves, they were disappointed in young Māori living up to the stereotypes of their people. The Judge said that Ms Haereroa was “just beginning to realise that maybe within [her] own culture there are ways of living better and making better choices”.
Principles on appeal
[30] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
Submissions
[31] The appeal was filed out of time. Current counsel for the appellant was not counsel at sentencing and was only assigned for the appeal. The respondent does not oppose leave being granted to appeal out of time. Leave is accordingly granted.
[32] Ms Wham for the appellant submits that the starting point for Set 1, the obtaining by deception charges, was too high, and that the uplifts for previous offending and offending on bail are excessive.
[33] Ms Wham suggests that Ms Haereroa’s involvement in the frauds was relatively minimal, only to the extent of her being present and having knowledge of cash withdrawals. It is acknowledged that there is no suggestion that Ms Haereroa obtained any of the money. As such, Ms Wham submits that a starting point of two years and six months’ imprisonment is manifestly excessive. She contends that the starting point should have been approximately 12 months’ imprisonment.
[34] Ms Wham also submits that an uplift of twelve months for previous offending and offending while on bail is proportionally excessive, particularly as Ms Haereroa had never been sentenced to imprisonment before. She suggests that an uplift of six months for both factors would have been sufficient.
[35] Counsel thus submits that the overall end sentence should be reduced to be in the final region of three years and six months’ imprisonment.
[36] Ms Courteney for the police argues that the starting point for the Set 1 offending was within range, and the uplifts applied were unremarkable. Given all the offending, the respondent submits that the end sentence cannot be described as manifestly excessive.
[37] Ms Courteney acknowledges that the Judge appears to be mistaken in referring to the total loss from the Set 1 offending as being around $69,000, when the summary
of facts puts it closer to $34,000. However, she notes this is still a significant figure, and the Judge’s observations about the vulnerability of the victims and the sophistication of the overall operation still stand. Ms Courteney does say, though, that it is unclear what foundation the Judge’s comment about Ms Haereroa knowing about the vulnerability of the victims had.
[38] Ms Courteney goes on to compare this case with R v Simpson, where Mr Simpson faced four charges of obtaining by deception.4 Mr Simpson would cold call elderly people at their homes and offer in each case to repair the house roof, taking a deposit. Very few repairs were actually undertaken. The amounts fraudulently obtained totalled $19,200. The Court of Appeal noted that a starting point of five to five and a half years’ imprisonment would not have been excessive in the circumstances, particularly given Mr Simpson’s significant fraud history. Ms Courtney suggests that, with this case in mind, two and a half years’ imprisonment was appropriate for an offender who, whilst more removed from the victims than Mr Simpson, involved herself in a sophisticated fraud operation resulting in significant losses to vulnerable victims.
[39] Ms Courteney contends that while there is no limit to the available size of an uplift for previous convictions, the quantum of the uplift should be proportionate to the sentence imposed for the previous offence,5 as well as to the starting point adopted for the current offending.6 She submits that two uplifts of six months on a global starting point of around seven years and three months were entirely appropriate and unremarkable.
[40] With all this in mind, Ms Courteney concludes that the end sentence of four and a half years’ imprisonment was available to the sentencing Judge and cannot be described as manifestly excessive.
4 R v Simpson [2008] NZCA 467.
Analysis
[41] It is common ground that Judge Farish made an error regarding the total loss resulting from the frauds with which Ms Haereroa is connected. It appears this stems from the Crown submissions at sentencing, which referenced the $69,000 figure. Judge Farish also commented that Ms Haereroa knew about the vulnerability of her victims. It is unclear, however, what the Judge based this comment on. In the summary of facts to which Ms Haereroa pleaded guilty, she appeared to have minimal involvement in the wider fraud operation and received none of the proceeds. On those facts, a starting point of two and a half years’ imprisonment does appear at the higher end of the available range.
[42] In Anderton v Police, Mr Anderton pleaded guilty to 34 dishonesty-related charges involving TradeMe listings, through which he fraudulently obtained over
$48,000.7 The District Court Judge adopted a starting point of two and a half years’
imprisonment, which the High Court commented “could have been longer”.8
[43] In Gobey v Police, Mr Gobey committed a number of dishonesty-related offences, causing an overall loss of approximately $41,000 to a number of victims.9 The District Court Judge adopted a starting point of two years nine months’ imprisonment (although there was some confusion about what elements were counted in that starting point). The High Court held “while the starting point was at the higher end, it cannot be said to be out of range”, where there was “repeated offending over a period of some six months, involving several different modes of offending with at least a moderate degree of premeditation, planning and sophistication”.10
[44] In both Anderton and Gobey, the offenders worked alone, constructing and planning the fraud themselves and personally taking the proceeds. This is different to Ms Haereroa’s relatively minor participation in a scheme that it seems proved to be much larger than herself, and from which she received no obvious benefit. The starting point adopted by the Judge does seem to be at the higher end when compared to other
7 Anderton v Police [2018] NZHC 437.
8 At [4].
9 Gobey v Police [2018] NZHC 1555.
10 At [18].
such cases. A starting point closer to that suggested by Ms Wham of 12 months would appear more appropriate.
[45] However, Ms Wham’s submissions about the uplifts for offending while on bail and for Ms Haereroa’s previous offending are less convincing. A combined uplift of 12 months is by no means excessive.
[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.
Conclusion
[47] While the starting point for the obtaining by deception charges might be seen as at the high end of the scale, the end sentence here could not be said to be manifestly excessive.
[48] The appeal is dismissed.
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Gendall J
Michael Starling, Barrister, Christchurch Raymond Donnelly & Co, Christchurch
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