Crosland v Police - [2012] NZHC 1929

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-61 [2012] NZHC 1929

NARISSA BERYL CROSLAND
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 31 July 2012

Counsel: M Robinson for Appellant
A Ewing for Respondent

Judgment: 2 August 2012

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] The offending ..................................................................................................................................... [3] The reparation order ........................................................................................................................ [7] My assessment ................................................................................................................................... [8]
Result ................................................................................................................................................ [15]

CROSLAND v NEW ZEALAND POLICE HC WN CRI 2012-485-61 [2 August 2012]

Introduction

[1] Ms Crosland appeals against an order that she pay reparation of $48,772.18 on the grounds that it is manifestly excessive in light of her financial circumstances.

[2] The reparation was ordered by the District Court when Ms Crosland was sentenced on two charges of using a document for pecuniary advantage and one charge of using a bank card for pecuniary advantage.[1] Ms Crosland entered guilty pleas to those charges and was sentenced to four months’ community detention, 200 hours community work and ordered to pay reparation. The appeal is in respect of the reparation order only.

The offending

[1] Section 228 of the Crimes Act 1961.

[3] Ms Crosland was employed as an accounts manager for her employer. As part of her role, she was responsible for sending invoices to clients and ordering products for clients’ projects. The business had a Social Club, which had a bank account. Ms Crosland had signatory rights to that bank account and was also entrusted with the bank card to the account.

[4] Between 13 August 2009 and 8 August 2011 Ms Crosland made unauthorised withdrawals from the Social Club bank account on 244 separate occasions. The total value of these withdrawals was $46,372.18. She also wrote out two cheques, for a total amount of $2,400, using the Social Club cheque book.

[5] During the same period, Ms Crosland also made a number of deposits into the Social Club account. She billed a client and put the incorrect number on the invoice, or she would have the cheques sent directly to her and she would take those cheques to the bank and deposit them in the account. She made 19 deposits in total
which amounted to $50,715.95.

[6] When spoken to the police about her offending, Ms Crosland said that she was living outside her means. She said that she had incurred debts and needed money to pay these back.

The reparation order

[7] The sentencing notes of the District Court Judge in relation to reparation was in these terms:

Also as a result of what you did in fact the ANZ National Bank, because it repaid – if I could use that word – the monies is now owed reparation of
$46,276.77 and there is now apparently $2495.17 owed to your former
employer.

I am not sure, in fact, that that is the total amount but that seems to be the amount that perhaps people apart from those with whom you worked are satisfied with.

I understand that presently you are on a benefit. I…

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: [2012] NZHC 1929
Decision Date: 2 August 2012

CaseChat Overview and Summary

Narissa Beryl Crosland appeals against an order that she pay reparation of $48,772.18 on the grounds that it is manifestly excessive in light of her financial circumstances. The reparation was ordered by the District Court when Ms Crosland was sentenced on charges of using a document for pecuniary advantage and using a bank card for pecuniary advantage. Ms Crosland was employed as an accounts manager and had signatory rights to her employer's Social Club bank account. Between 13 August 2009 and 8 August 2011 Ms Crosland made unauthorised withdrawals from the Social Club bank account on 244 separate occasions. The total value of these withdrawals was $46,372.18. She also wrote out two cheques, for a total amount of $2,400, using the Social Club cheque book. When spoken to the police about her offending, Ms Crosland said that she was living outside her means and needed money to pay back debts she had incurred. The sentencing notes of the District Court Judge in relation to reparation ordered reparation of $46,276.77 to the ANZ National Bank and $2,495.17 to her employer at $50 per week. Ms Crosland advised the Community Probation Service that she could pay $50 per week in reparation. Counsel for Ms Crosland says that her financial situation has worsened since the time of her sentencing. She has had to move out of her address because of relationship issues, and now pays $20 more in rent per week. Counsel provided updated information about Ms Crosland’s financial position. She receives $414.86 a week. From that she pays out $330 a week. She also has to pay for petrol, food and power. Counsel for Ms Crosland says that it does not leave much and the $50 a week “is hurting a lot especially with baby to take care of”. Counsel for Ms Crosland says that if the instalment rate was reduced to $30 per week, it would take her 31 years to satisfy the order. Subject to one issue, counsel for the police accepts that the total sum of reparation ordered is manifestly excessive. The one issue relates to whether Ms Crosland has equity in her house. Counsel for Ms Crosland submits that the 2010 rateable value is likely to overstate the market value. He says that Ms Crosland and her former partner would like to sell the house but that an appraiser has advised them there is zero equity in the house. He says that Ms Crosland has not obtained a formal valuation because she does not have the $700 to pay for it. The Court intends to make a reparation order for a total sum that can be paid off by instalments of $30 a week over five years. The determination of the appeal against sentence is adjourned pending receipt of a reparation report.

Orders