Ashby v Police - [2015] NZHC 1900

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 Respondent

Judgment:

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.…

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: [2015] NZHC 1900
Decision Date: 11 August 2015

CaseChat Overview and Summary

Alix Ashby appeals against her sentence for accessing a computer system for dishonest purposes. The appellant was sentenced to 10 months home detention, 275 hours community work, and ordered to pay reparation of $14,610.60. The appeal is based on the grounds that the sentence was manifestly excessive and that the Judge failed to take into account mitigating factors such as remorse and good character. The Crown submits that there was no error and that the sentence was not manifestly excessive. The court found that the Judge's failure to consider remorse, reparation, and good character resulted in an end point of 14 and a half to 15 and a half months imprisonment, making the sentence of 10 months home detention manifestly excessive. The appeal is allowed, and the sentence of home detention is reduced to eight months. All other orders remain the same.

Orders