But in a reserved decision issued this week, Justice Amokura Kawharu agreed with her District Court counterpart that prison “was well within [his] discretion”.
She dismissed the appeal.
Immigration swindle returns
Court documents show Smith returned to his old ways in 2022, zeroing in on a Middlemore Hospital kitchen worker while Smith was admitted as a patient.
The victim, who was having trouble with a partnership visa, agreed to pay Smith after he claimed to be an immigration officer with the power to clear her husband’s criminal record and greenlight the visa application.
Days after the first cash payments, Smith showed up at the woman’s home and convinced her to hand over her bank card and PIN, explaining that he needed it to file one last report. He promised to return with the card the next day.
Vincent Smith appears for sentencing in the Auckland District Court in 2017 after he posed as an immigration officer to scam a couple out of $100,000. Photo / Michael Craig
The woman cancelled her card when he still hadn’t returned three days later, but by that point her money had vanished.
“A few days later, the defendant returned to the victim’s address asking for her passport and Westpac account number, and he claimed the withdrawals of $12,800 were for paying bond to New Zealand Immigration, promising a refund once her husband arrives to New Zealand,” court documents state.
“The victim refused to give him any more money.”
Smith continued to message the woman seeking more money, but she “eventually realised she was being scammed”, according to the summary of facts Smith agreed to.
He also pleaded guilty to scamming multiple retail outlets throughout Auckland, often via schemes that involved refunds using forged receipts.
Just four years earlier, he had been sentenced to two years and four months’ imprisonment after swindling four others between 2016 and 2017. The judge didn’t find him to be remorseful and declined a discount for his health conditions.
Smith had scammed one student out of $27,000, going so far as to meet the victim outside the Manukau immigration office while collecting cash. He stole $98,000 from another student who wanted to attend nursing school in Australia, falsely claiming that some of the pilfered money had been paid to the Australian embassy as fees.
Another $98,000 was stolen from a British couple who said they needed help immigrating due to an earlier traffic-related conviction. He had called the couple, introducing himself as an immigration adviser, after seeing an ad they had placed about a rental car.
The couple called police after he didn’t return their passports.
He was sentenced to one year of supervision in 2023 after again admitting a fraud charge as well as money laundering.
‘Serial conman’
Smith had initially been set for sentencing regarding the most recent charges in November, but a warrant was issued for his arrest after he told his lawyer he couldn’t make it to court because he was again hospitalised.
“Your client is a serial conman, so I would not believe anything he said,” Judge McNaughton told Smith’s lawyer at the time, saying he would cancel the arrest warrant only if a doctor’s note was provided. It wasn’t.
Judge David McNaughton.
The defendant was later arrested in hospital, his lawyer told the High Court judge last month.
“It’s very obvious the judge had already made up his mind,” Qaisrani argued, suggesting that the arrest warrant was a sign of the judge’s bias.
But that arrest was not the first time Smith had seemingly pushed a judge’s patience to its limits.
During his February 2018 sentencing, Judge Russell Collins made special note of the defendant’s excuses and false promises throughout the case. He had failed to appear for one sentencing date after claiming a case of temporary blindness.
After resetting that hearing, Judge Collins had warned Smith’s then-lawyer that if the defendant failed to show up next time, the judge “would need to see a photograph of him with a neck-to-foot cast” to avoid being the subject of an arrest warrant.
Smith did show up to the next sentencing date but asked for it to be postponed again, explaining through his lawyer that he believed he was suffering from bowel cancer. In the absence of any medical evidence, the judge declined the request.
‘Tendency to exaggerate’
Smith faced up to seven years’ imprisonment in December after pleading guilty to failing to answer bail, impersonating an immigration officer and 14 counts of obtaining by deception.
The District Court judge set a three-year starting point for all of the charges combined, with a further three-month uplift for having offended while on electronically monitored bail.
He was allowed reductions of 20% for his guilty pleas, 10% in recognition of his elderly mother and 10% for his health issues and personal circumstances, including a prior assault in prison.
The judge expressed some scepticism of Smith’s assault claims, noting that he had once tried to bribe a prisoner with $10,000 to corroborate a past claim. But he allowed the discount anyway.
Because the end sentence was under two years, Judge McNaughton could have converted the sentence to home detention. He opted not to.
That was an error, Smith’s lawyer argued in the High Court last month, repeating many of the arguments that had been made in the District Court.
Judge McNaughton had declined during the sentencing hearing to hear directly from Smith’s physician about his medical needs. The judge did, however, allow a letter from Corrections outlining how those needs could be catered for while in custody.
Smith’s list of medical issues included depression, anxiety, post-traumatic stress disorder, inflammatory bowel disease with chronic colitis, bilateral avascular necrosis of femoral heads, asthma and psoriasis.
In a letter to the court, his doctor had suggested imprisonment could expose him to “substantial foreseeable and preventable medical harm”, according to court documents.
But prosecutor Sarah Jocelyn noted that courts have cited in the past Smith’s “tendency to exaggerate his own health issues”.
“Mr Smith presents a real risk to the public,” she said. “With that history taken into account, imprisonment really was the only available outcome for the sentencing judge.”
‘Vulnerable state’
Justice Kawharu ultimately agreed with the prosecution that the District Court judge had adequately considered Smith’s health.
She also agreed that the Manukau District Court judge did not need to allow a discount of over 10% for the health issues suffered by his mother, who is receiving hospice care.
Smith, the prosecution noted, was “not by any means the primary caregiver”. The defence described the opposition submission as “without any empathy”, noting that Smith and his mother also rely on each other for moral and emotional support.
Recently appointed High Court Justice Amokura Kawharu, photographed while president of the Law Commission, has denied serial conman Vincent Smith’s appeal. Photo / Supplied
But while Justice Kawharu said she had sympathy for Smith’s mother, the prosecution was ultimately right.
“The fact is she requires medical support from appropriately qualified people,” she said. “It is difficult to envisage Mr Smith, with his own serious health concerns, being able to provide the healthcare she needs.”
And emotional support, while important, isn’t a good enough reason to overturn a sentence, the judge added.
“I do appreciate that Mr Smith’s mother is in a vulnerable state,” she said. “It is very regrettable that her son’s offending has added to her already stressful circumstances.
“His absence, and limited ability to provide emotional support, is a consequence of that offending.”
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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