Anderson v Police - [2023] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-16

[2023] NZHC 2644

BETWEEN
MELANIE TYRELLE ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 September 2023 (By way of AVL)

Appearances:

S N McKenzie for Appellant J A T Ross for Respondent

Judgment:

21 September 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 21 September 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

ANDERSON v NEW ZEALAND POLICE [2023] NZHC 2644 [21 September 2023]

Introduction

[1] On 16 June 2023, the appellant, Ms Anderson, was sentenced to nine months’ home detention on five charges of theft by a person in a special relationship.1

[2] She appeals her sentence on the single ground that there was insufficient credit allowed to recognise her efforts in paying reparation in full and her remorse.

Facts of the offending

[3] The offending arose in the context of Ms Anderson’s employment with two Invercargill-based companies. In both roles, she was involved in the administration of accounts and had the ability to pay accounts owed and wages. She embezzled funds from both companies in order to pay for personal expenses.

[4] In respect of the first company, Ms Anderson was involved in payroll, data entry, accounts receivable and payable, debit reconciliation, and other general administration. Between 2016 and 2019, she created fraudulent creditor payments to businesses that traded with the company and paid $19,245.40 directly into her personal account. She overpaid herself in the amount of $6,278.33. That offending came to light in 2020, and a forensic account was engaged and fees of $6,614.63 were incurred.

[5] Ms Anderson was employed at the second company from around August 2016. She took over a more substantial role in this company following an owner becoming seriously ill. She had extensive access to account information, and trust was reposed in her. On several occasions, Ms Anderson paid herself more than she was entitled to for annual leave and sick leave. This totalled to $12,744.50. Ms Anderson also paid herself $24,138.78 after creating more than 40 false invoices ostensibly from businesses which traded with the company. In mid-2019, the company started to notice unexplained cash flow issues and had to sell assets to keep the business afloat. Ms Anderson confided to the company’s accountant in 2020 that she had been taking money from the business. The company incurred accounting fees totalling $7,139.38

1 R v Anderson [2023] NZDC 12119.

investigating the payments. In November 2020, Ms Anderson paid back $7,000. In December she paid $20,000.

[6] Reparation of $32,138.36 was sought on behalf of the first company, reflecting the amounts wrongfully paid to Ms Anderson and accounting fees. Reparation of
$17,022.66 was sought by the second company, reflecting the theft and the accounting fees but minus the amounts already repaid.

Principles on appeal

[7] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 2644
Decision Date: 21 September 2023

CaseChat Overview and Summary

The appeal in Anderson v Police concerns the sentence imposed on Ms Anderson, who was found guilty of multiple charges of theft by a person in a special relationship. She appealed her sentence of nine months' home detention, arguing that insufficient credit was given for her efforts to repay the full amount stolen and her expressed remorse. The court was required to determine whether the discount for reparation and remorse was appropriate and whether the sentence was manifestly excessive.

The court found that the District Court had erred in the level of discount it afforded for the repayment of full reparation. The court noted that the voluntary repayment of over $70,000, made in advance of sentencing and at significant personal cost to Ms Anderson, should have been reflected in a higher discount. The court considered authorities which showed that discounts of up to 50 per cent have been afforded in cases where full reparation was paid. The court concluded that a 25 per cent discount was appropriate in this case. However, the court found no basis to afford any additional discount for remorse, as the victims had indicated that Ms Anderson's remorse was belated. The court upheld the discounts for the guilty plea and good character, which resulted in a sentence of seven months' home detention.

The appeal was allowed, and the sentence of nine months' home detention was quashed. In its place, the court imposed a sentence of seven months' home detention. In all other respects, the sentence in the District Court was confirmed.

Orders