Bowles v Police - [2014] NZHC 184

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-000037 [2014] NZHC 184

UNDER The Criminal Procedure Act 2011

IN THE MATTER of an appeal against sentence pursuant to
Section 244 of the Criminal Procedure Act
2011

BETWEEN TERESA MARY BOWLES Appellant

ANDTHE NEW ZEALAND POLICE Respondent

Hearing: 18 February 2014

Appearances: JM Woodcock for Appellant
AWM Britton for Respondent

Judgment: 18 February 2014

ORAL JUDGMENT OF TOOGOOD J

BOWLES v NEW ZEALAND POLICE [2014] NZHC 184 [18 February 2014]

[1] On 28 November 2013, the appellant, Teresa Mary Bowles, pleaded guilty to one charge of theft by a person in a special relationship and was sentenced by Judge Roberts to six months’ imprisonment. Realistically, Ms Woodcock does not now dispute that the offending justified consideration of imprisonment for that period, but she submits on behalf of the appellant that the Judge erred in failing to substitute that sentence with one of home detention. The appellant appeals on that basis and also argues that an order for payment of reparation of $21,825 was unrealistic and therefore excessive in all the circumstances.

Background

[2] The appellant, a first offender aged 52 years, is the elderly complainant’s niece, and I acknowledge the presence of the complainant in Court this morning. The appellant was placed by her uncle in a position of trust to assist him to manage his financial affairs after he went into a rest home. She was given a cash flow card in order to access her uncle’s bank account and, over a period of some nine months until the end of January 2013, she transferred varying amounts of money to her personal account, withdrew cash, and also transferred money to other family members. It appears, however, to have been accepted that the complainant became aware of those transactions; he said in a victim impact statement that had the appellant told him that she needed the money he may well have given it to her. On
16 September 2012, however, the appellant transferred $24,900 into her personal account. Once her uncle was made aware of this transaction by the bank, a complaint was made to the Police. The appellant had no explanation for taking that money, but after the Police interview she repaid $3,075.

[3] Although the Police originally charged the appellant on the basis of several transactions totalling $29,340, the prosecution case was reviewed and the Police subsequently relied solely on the single large transaction in September 2012. At that point, the appellant pleaded guilty and requested an opportunity to meet her uncle at a restorative justice conference. Such a conference did not occur because the complainant was so upset by his niece’s conduct that he did not consider he should be required to attend and he is not to be criticised for that.

District Court Judge’s decision

[4] In sentencing the appellant, Judge Roberts focussed on the relationship between the appellant and the complainant, namely one of trust; he looked at premeditation; the impact on the complainant,…

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.

Continue reading Bowles v Police

Details

AGLC: Bowles v Police [2014] NZHC 184
Case: [2014] NZHC 184
Decision Date: 18 February 2014

CaseChat Overview and Summary

Teresa Mary Bowles appealed against her sentence of six months' imprisonment, imposed for theft by a person in a special relationship, and an order for reparation of $21,825. The High Court of New Zealand, New Plymouth Registry, reviewed the case and found that the District Court judge had erred in not substituting the sentence with one of home detention. The appellant's lawyer argued that the sentence should have taken into account the appellant's personal circumstances, including her mental health issues, genuine remorse, and willingness to meet the complainant in a restorative justice setting. The Court of Appeal has indicated that home detention provides a real alternative to imprisonment as it carries significant levels of denunciation and deterrence. The High Court judge considered that the District Court judge had placed excessive weight on deterrence and denunciation and failed to address the personal circumstances of the appellant adequately. The appellant's current mental health issues also tipped the balance in favour of a sentence of home detention as an appropriate response to the offending.

The High Court quashed the sentence of imprisonment and ordered the appellant to serve a sentence of three months' home detention. The Court also quashed the reparation order and ordered the appellant to pay the sum of $5,000 by way of reparation at a rate of $20 per week. The Court found that an order to repay the full balance of the amount misappropriated would be unrealistic, and the amount was reduced to $5,000.

Orders