Brown v Police - [2020] NZHC 3361

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2020-416-15

[2020] NZHC 3361

BETWEEN
KATRINA LOUISE BROWN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 December 2020

Counsel:

W R Hawkins for Appellant A V Bryant for Respondent

Judgment:

16 December 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1] Ms Brown (the appellant) pleaded guilty to 14 charges of accessing a computer system for a dishonest purpose.1 In the Gisborne District Court, Judge Cathcart sentenced the appellant to 25 months’ imprisonment, concurrent on all charges, as well as imposing a reparation order in the sum of $62,976.61 and an emotional harm payment of $7000 to the victim.

[2]The appellant now appeals against this sentence on two grounds:

(a)that the Judge erred in adopting a starting point that was manifestly excessive; and

1 Crimes Act 1961, s 249(1)(a). This carries a maximum penalty of seven years’ imprisonment.

BROWN v NEW ZEALAND POLICE [2020] NZHC 3361 [16 December 2020]

(b)that the Judge erred by failing to give a proper discount for mitigating features.

[3] The respondent submits that the starting point and discounts applied by the Judge were entirely appropriate, but conceded that the end sentence ought to have been 24 months, rather than 25 months of imprisonment, because the Judge made a mathematical error in sentencing when applying the new methodology as articulated by the Court of Appeal in Moses v R.2 Nevertheless, the respondent’s position was that imprisonment of 24 months was still the appropriate sentence in this case, rather than home detention.

[4] Given that the Judge erred in applying the discounts and that the end sentence should in fact be 24 months’ imprisonment rather than 25 months, the real issue for this appeal is whether the least restrictive and most appropriate sentence in this case is home detention. A significant development requiring the Court’s consideration is the very recent payment by the appellant into her lawyer’s trust account of the sum of
$20,000 on account of outstanding reparation. That $20,000 has now been paid to the Ministry of Justice for forwarding to the victim.

Background

Factual background

[5] The appellant was employed by First Fresh (NZ) Ltd (First Fresh) in 2018 as the accounts payable clerk. Her role concerned the payment of invoices for the company’s vendors and creditors.

[6] During the period between 9 November 2018 and 20 September 2019, the appellant regularly made payments from the First Fresh’s account into her own account, as well as to a joint account between the appellant and her partner. The appellant also had two sons, both of whom had bank accounts to which money from First Fresh was transferred by her. Overall, the appellant stole a total of $147,390.87 from the company over the 10-month offending period.

2 Moses v R [2020] NZCA 296; (2020) 29 CRNZ 381.

[7] On 4 October 2019, First Fresh became aware of what had been occurring. The bank used by First Fresh identified a…

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 Brown v Police

Details

AGLC: Brown v Police [2020] NZHC 3361
Case: [2020] NZHC 3361
Decision Date: 16 December 2020

CaseChat Overview and Summary

Katrina Louise Brown (the appellant) appeals against her sentence of 25 months’ imprisonment, concurrent on all charges, imposed by the Gisborne District Court. The appellant pleaded guilty to 14 charges of accessing a computer system for a dishonest purpose. The appeal is brought on two grounds: (a) that the Judge erred in adopting a starting point that was manifestly excessive; and (b) that the Judge erred by failing to give a proper discount for mitigating features. The respondent conceded that the end sentence should have been 24 months’ imprisonment, rather than 25 months, because the Judge made a mathematical error in sentencing when applying the new methodology as articulated by the Court of Appeal in Moses v R. However, the respondent’s position was that imprisonment of 24 months was still the appropriate sentence in this case, rather than home detention. The real issue for this appeal is whether the least restrictive and most appropriate sentence in this case is home detention. A significant development requiring the Court’s consideration is the very recent payment by the appellant into her lawyer’s trust account of the sum of $20,000 on account of outstanding reparation. That $20,000 has now been paid to the Ministry of Justice for forwarding to the victim.

Given that the Judge erred in applying the discounts and that the end sentence should in fact be 24 months’ imprisonment rather than 25 months, the critical question is whether the sentence should be commuted to one of home detention, or remain as a sentence of imprisonment. The greatest factor militating against a sentence of home detention is the appellant’s failure to repay the remaining $62,976.61 owed, despite her promise to do so in the restorative justice conference before sentencing, and two separate adjournments by the Judge to give the appellant more time to pay, with the Judge explicitly warning the appellant in the second adjournment that if the money is paid that in principle must lower the starting point. However, a sentence of home detention can still carry a considerable measure of denunciation and deterrence, which will likely be the case in these circumstances given the appellant’s significant remorse, shame, and loss of standing in the community from the offending, regardless of the sentencing outcome. There are three other factors which favour a sentence of home detention in this case: (1) the appellant’s rehabilitative prospects and actions; (2) the appellant has a strong support base within her whanau and in her home environment; and (3) the reparation order to pay the outstanding sum owed, as well as $7000 for emotional harm, can still be applied from the original sentence, meaning that the appellant will still be accountable for repaying that money. On the information available to the Judge at sentencing, his concern at the failure by the appellant to make the reparation payment that had been repeatedly promised is understandable. However, the situation has now changed. It is accepted that the final sentence that the Judge should have arrived at was 24 months. When that threshold is reached, the Court is required to consider home detention. A sentence of home detention is capable of holding the appellant accountable and of denouncing even serious offending of the type the Court is dealing with here. The payment of a further sum of $20,000 by way of reparation further reduces the loss to the complainant. Counsel submits that, if granted home detention, the appellant has the prospect of employment from which she would be able to make further reparations. That would also be in the interests of the complainant. Finally, it appears that the appellant does have genuine rehabilitative prospects and is remorseful.

On the basis of the change of circumstances since sentencing, the appeal is allowed, and the sentence of imprisonment is quashed. As the appellant has completed some 40 days of imprisonment, she is entitled to a credit in what would otherwise be a starting point of 12 months home detention. I therefore impose a sentence (on all charges) of: (a) 11 months’ home detention to be served at the address specified in the PAC report dated 11 September 2020. It is subject to the standard terms and conditions; (b) on the basis that the sum of $20,000 held by the appellant’s solicitors has now been paid to the Ministry of Justice on account of reparations there will be a reparation order of $42,976.61; and (c) there is an emotional harm payment of $7,000 to be made to the victim.

Orders