Ashby v Police
[2015] NZHC 1900
•11 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000138 [2015] NZHC 1900
BETWEEN ALIX ASHBY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 August 2015 Appearances:
M Ryan for Appellant
M Hammer for RespondentJudgment:
11 August 2015
JUDGMENT OF WOOLFORD J
Solicitors:
Crown Solicitor, Auckland
Counsel:
M Ryan, Auckland
ASHBY v POLICE [2015] NZHC 1900 [11 August 2015]
Introduction
[1] The appellant, Ms Alix Ashby,1 pleaded guilty to one charge of accessing a computer system for dishonest purposes contrary to s 249(1)(b) Crimes Act 1961.2
She was convicted and sentenced to a term of 10 months home detention and
275 hours community work.3 She was also ordered to pay reparation of $14,610.60.
[2] She now appeals against sentence on the grounds that the sentence was manifestly excessive and that the Judge failed to take account of remorse and other mitigating factors.
[3] In summary, the appeal is allowed and the term of home detention is reduced to one of eight months. All other orders remain the same.
Factual background
[4] Ms Ashby was employed by the complainant, Brand Spanking Ltd (“BSL”), as a talent booker between May 2011 and July 2012. In her role she was responsible for organising payments on behalf of BSL to other employees and contractors using BSL’s “Filemaker” computer system.
[5] Between June 2011 and July 2012 Ms Ashby used the Filemaker system to make 55 false payments. She used 12 different names for these transactions and all payments were made into two of her personal accounts. Together the fraudulent payments totalled $24,610.60.
[6] Ms Ashby was charged on 2 September 2014 and pleaded guilty on
30 September 2014. There was some delay before her sentencing on 20 May 2015. Ms Ashby applied for a discharge without conviction under s 106, but this was not proceeded with. The Crown notes that another application to vacate her guilty plea was also made and abandoned during this period. Finally, there was a further
adjournment to enable reparation to be paid.
1 Ms Ashby also goes by Ms Torrance, which is the name that appears on her pre-sentence report.
2 Section 249(1)(b) carries a maximum penalty of seven years imprisonment.
3 Police v Ashby [2015] NZDC 8825.
[7] By the time of sentencing $10,000 reparation had been paid. I understand the
sum to have been provided by Ms Ashby’s stepfather.
District Court Decision
[8] In the District Court Judge Harvey adopted a starting point of two years imprisonment. He rightly identified the breach of trust and the elaborate, sophisticated use of a computer system as aggravating features of the offending.
[9] Judge Harvey noted that reparation of $10,000 had been paid. He expressed disappointment, however, at the delay in payment and the fact that it was not the full amount. He made a reparation order for the balance of $14,610.60, to be paid within three months.
[10] In terms of mitigating factors, the Judge noted that Ms Ashby was a first time offender and had pleaded guilty. He reduced the starting point by 25 per cent to give a sentence of 18 months imprisonment. After considering the requirement that he impose the least restrictive outcome appropriate, Judge Harvey ordered this to be served as 10 months home detention. The Judge also imposed a sentence of
275 hours community work as a punitive element of the sentencing in addition to the reparation order.
Grounds of Appeal
[11] Ms Ashby appeals on the following grounds:
(a) that the Judge erred in calculating the period of time for the sentence of home detention to be 10 months;
(b) that the Judge erred in failing to take into account the appellant’s
remorse, reparation payments, and previous good character; and
(c) that the sentence was manifestly excessive.
Appellant’s submissions
Error in calculating home detention
[12] As noted, Judge Harvey imposed 10 months home detention in substitution for an 18 month sentence of imprisonment. Counsel submits that there “appears to be an error in calculation as it is accepted that if home detention is the appropriate sentence then it equates to 50 per cent of the term of imprisonment that is imposed”.
Failure to consider mitigating factors
[13] Counsel also refers to the mitigating factors in s 9(2) Sentencing Act 2002, which the Court must take into account to the extent that they are applicable. These include “any remorse shown by the offender” (s 9(2)(f)) and “any evidence of the offender’s previous good character” (s 9(2)(g)).
[14] Additionally, counsel refers to Rana v R,4 and McArthur v R.5 In Rana the Court of Appeal allowed an appeal on the basis that the sentencing Judge had failed to give any discount for the appellant’s previous good character as evidenced by his lack of previous convictions. Similarly, in McArthur, the Court of Appeal held that the failure to take account of the offender’s remorse and a reparation payment of
$10,000 resulted in an inadequate reduction of sentence. Hessell v R is also cited to confirm that where genuine remorse has been demonstrated a sentencing credit should be given in addition to that for the guilty plea.6
[15] Counsel submits that Ms Ashby’s remorse is genuine and evidenced by her early guilty plea and her voluntary reparation payment of $10,000. Accordingly, counsel submits that the Judge erred in not discussing remorse or considering any discount on that basis. While the Judge noted that this was Ms Ashby’s first offence, he did not consider any separate discount for prior good character. Again, counsel
submits that this was in error.
4 Rana v R [2014] NZCA 468.
5 McArthur v R [2013] NZCA 600.
6 Hessell v R [2010] NZSC 135.
Respondent’s submissions
[16] The Crown submits that there was no error and that the sentence is not manifestly excessive.
No error in calculating home detention
[17] The Crown acknowledges that a two year prison sentence will, in general terms, be roughly equivalent to 12 months home detention: Savage v Police.7 The Crown submits, however, that the exact duration turns on the relevant facts of the offending and the circumstances of the offender, as well as the particular features of the proposed residence. The Court may recognise home detention as a less severe option, and the automatic halving of the final sentence of imprisonment will not always be appropriate. 8 It submits therefore that the Judge was not required to automatically halve the sentence, and that he did not err in failing to do so.
Discounts for previous good character
[18] The Crown accepts that lack of prior convictions may itself evidence previous good character, but submits that any discount should be limited in the absence of other evidence of positive contributions.9 It further submits that previous good character is a discretionary matter for the sentencing Judge and that, in this case, no discount was appropriate given the repetitive nature of the offending and the breach of trust involved.
Discount for remorse and reparation
[19] The Crown notes that the Judge gave the full 25 per cent discount for
Ms Ashby’s guilty plea. It submits that it was open to the Judge to decline any further discount for remorse or reparation. The Supreme Court in Hessell v R noted
7 Savage v Police HC Whangarei CRI-2008-488-1, 14 February 2008 at [27].
8 R v Young HC Hamilton CRI-2006-072-577, 18 April 2008; Golding v Police HC Whangarei
CRI-2008-488-3, 14 February 2008; R v Sew Hoy HC Dunedin CRI-2007-012-6139, 19
November.
9 Rana v R, above n 6, at [16]-[17].
that sentencing Judges may properly be sceptical about unsubstantiated claims of remorse and that a robust evaluation is required.10
[20] The Crown seeks to distinguish McArthur, referred to by counsel for the appellant, on the basis that McArthur involved sexual offending in respect of which reparation was extraneous, whereas Ms Ashby benefited financially at the expense of the complainant.
Not clearly excessive
[21] Finally the Crown submits that, even if the Judge erred in principle,
10 months home detention and 275 hours community work is not clearly excessive. In support, the Crown refers to a number of the cases which are discussed below.11
Approach to appeal (CPA)
[22] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[23] In any other case, the Court must dismiss the appeal.12
[24] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by courts under the
Summary Proceedings Act 1957.13 Further, despite s 250 making no express
10 Hessell v R, above n 8, at [8].
11 R v Varjan CA97/03, 26 June 2003; Cole v Police [2001] 2 NZLR 139 (HC); R v Hayes CA197/06, 24 November 2006; Whangapirita v Police [2012] NZHC 308; Francis v R [2011] NZCA 353; Singh v Police HC Christchurch CRI-2007-409-185, 27 September 2007.
12 Criminal Procedure Act 2011, s 250(3).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s
approach to sentence appeals.14
[25] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:15
(a) There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.16
Was there an error in calculating period of home detention?
[27] There is a general practice of calculating the term of home detention by halving the end sentence of imprisonment.17 This reflects the fact that a sentence of home detention must be served in full. The Judge’s sentencing notes do not comment on his departure from this general practice. Read as a whole, however, the sentencing notes indicate that Judge Harvey intended to take a strict approach. It is not apparent that the imposition of 10 months home detention was the result of an error in calculation, and I proceed on the basis that it was the sentence the Judge
intended to impose.
14 At [33], [35].
15 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
16 Ripia v R [2011] NZCA 101 at [15].
17 R v Bisschop [2008] NZCA 229 at [17].
[28] The Crown is correct in submitting that “halving” the end point is not required as a matter of law. I note in particular the statement of the Court of Appeal in R v Bisschop that:18
[18] … We do not accept that any mathematical process should be adopted. The proper approach, consistent with R v Tamou [2008] NZCA 88, is an evaluative assessment of all the circumstances. While the maximum period of home detention that can be imposed (12 months) equates with the maximum period an offender sentenced to a short-term sentence of imprisonment can be required to serve, it does not automatically follow that the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case.
[29] Given this position, I do not consider that imposing 10 months home detention on the basis of an 18 month end point is of itself an error. It will, however, need to be considered in determining whether the final sentence was manifestly excessive.
Was the sentence manifestly excessive?
Principles in dishonesty and computer related offending
[30] There is no tariff case as such for dishonesty offending. However, some guidance was provided by the Court of Appeal in R v Varjan stating that:19
[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[23] It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.
[31] Further, the Court of Appeal addressed the issue of computer based offending in R v Hayes.20 In doing so it highlighted the public interest in encouraging the use
18 R v Bisschop, above n 19, at [18]
19 R v Varjan, above n 13, at [22]-[23].
20 R v Hayes, above n 13.
of computers for business activity, and emphasised the resulting need for computer related sentencing to provide adequate denunciation and deterrence.21
The starting point
[32] As noted, the focus of the parties’ submissions is on the discount for mitigating factors. The starting point was not directly challenged. I will nevertheless set out the following cases for reference:
(a) In Fomai v Police,22 the appellant had dishonestly obtained a total of
$21,798 from two separate employers over an 18 month period. The starting point of two to two and a half years imprisonment was upheld. However this appears to have included an uplift to reflect the appellant’s previous dishonesty convictions.
(b)In Singh v Police,23 the appellant was involved in a scheme to defraud his employer (in that case the IRD). The total loss caused was
$76,493. The appellant’s benefit was only $16,500. A starting point of two and a half years imprisonment was adopted.
(c) In Francis v R24 the offender, an accounts manager, used a relatively unsophisticated scheme to steal money from her employer, resulting in a total loss of or about $63,000 over a one year period. The starting point of two and a half years imprisonment was upheld on appeal.
(d)In Prewett v Police,25 Ms Prewett stole money from her employers totalling $83,100 over an 18 month period. Her employers had looked on the appellant as a trusted employee, but also as a friend. Taking into account the duration of the offending, the amounts involved and the breach of trust, the Court adopted a starting point of two and a half
years imprisonment.
21 R v Hayes, above n 13, at [58]-[59].
22 Fomai v Police [2014] NZHC 377.
23 Singh v Police, above n 13.
24 Francis v R, above n 13.
25 Prewett v Police HC New Plymouth CM-2007-443-6, 13 June 2007.
(e) In Whangapirita v Police,26 the appellant had been employed as an accounts manager by the complainant company for 14 years. Using the company’s internet banking account she made 65 fraudulent payments to herself totalling some $97,300 over a 3 year period. The sentencing judge adopted a starting point of three years imprisonment.
[33] Most of these cases involve significantly greater sums of money than the amount taken by Ms Ashby. The most similar cases in terms of culpability are Singh and Fomai. I note that Singh involved a greater loss to the complainant than that caused by Ms Ashby - although the offender’s personal benefit was less. In Fomai the quantum was similar. However, the offending there was against two complainants, and the starting point of two to two and a half years imprisonment appears to take account of the offender’s previous dishonesty convictions. Accordingly, I would place Ms Ashby’s culpability at a slightly lower level.
[34] On this analysis I consider the starting point of two years imprisonment adopted by Judge Harvey to be within range, if at the higher end of the appropriate range.
Discounts for remorse, reparation and prior good character
[35] The Judge’s sentencing notes make no mention of remorse. As highlighted by counsel for Ms Ashby, remorse on the part of the offender is a compulsory consideration under s 9(2)(f) Sentencing Act 2002. The pre-sentence report notes Ms Ashby’s “ability to acknowledge her wrongdoing and willingness to engage in any intervention as and if required”. Although the Judge expressed disappointment at the delay, Ms Ashby also made a voluntary payment of $10,000 reparation prior to sentencing.
[36] In McArthur the Court of Appeal held that the appellant was entitled to a discount for remorse and the payment of $10,000 reparation separate from the discount for his guilty plea.27 I cannot see much merit in the Crown’s submission
that McArthur should be distinguished as a case about sexual offending which did
26 Whangapirita v Police [2012] NZHC 308.
27 McArthur v R, above n 7, the Court of Appeal applied a discount of 5 per cent.
not involve financial loss. R v Varjan makes clear that the payment of reparation is a mitigating factor routinely considered in offending involving financial dishonesty.28
Significant credit for reparation payments was also given in a number of the cases I have referred to. I consider that a discount in the region of five – ten per cent should have been applied.
[37] The Judge did note that Ms Ashby had no previous convictions. He did not, however, apply any discount for this independently of the 25 per cent discount for Ms Ashby’s guilty plea.
[38] Evidence of the offender’s previous good character is also a mandatory consideration under s 9(2)(g) Sentencing Act 2002. Rana v R stands for the proposition that lack of previous convictions is evidence of prior good character and should be taken into account.29 In Rana the Court of Appeal noted that it had, in Quinlan v R, approved a discount of up to 15 per cent for previous good character.30
It acknowledged, however, that the discount will be less where the appellant relies on lack of prior convictions alone, as in that case.31 Ultimately the Court allowed what it described as a modest reduction of seven and a half to eight per cent.
[39] I note again the Crown’s submission that the ongoing nature of the offending makes a previous good character discount inappropriate. I doubt, however, that this should result in there being no reduction at all. I suggest that at least a modest reduction similar to that in Rana should have been applied.
[40] These discounts, following a 25 per cent guilty plea discount, result in an end point of 14 and a half to 15 and a half months imprisonment.
[41] Given this end point I consider that the sentence of 10 months home detention is manifestly excessive. This is particularly so considering the additional
sentence of 275 hours community work and the reparation order of $14,610.61.32
28 R v Varjan, above n 13, at [23].
29 Rana v R, above n 6, at [16].
30 At [13].
31 At [16]-[17].
32 Neither the community service nor the order for reparation are challenged in the appellant’s
submissions.
Looking at these in combination I am of the view that a sentence of eight months home detention would be appropriate while representing the least interference possible with the sentence imposed in the District Court.
Result
[42] The appeal is accordingly allowed and the sentence of home detention is reduced to one of eight months home detention. All other orders remain the same.
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Woolford J
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