IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-000030 [2019] NZHC 1238
BETWEEN STEPHANIE ANN ELMIGER
Appellant
AND
THE QUEEN
Respondent
Hearing: 2 May 2019 Appearances:
J P Temm for the Appellant
A McConachy for the Respondent
Judgment:
4 June 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 4 June 2019 at 10.00 am pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors
J P Temm, Barrister, Rotorua Gordon Pilditch, Rotorua
STEPHANIE ANN ELMIGER v R [2019] NZHC 1238
[1]This is an appeal against conviction and sentence.
[2] The appellant, Stephanie Elmiger, was found guilty, following a Judge-alone trial before Judge Snell, of 211 charges of theft by a person in a special relationship under s 220 of the Crimes Act 1961 (the Act). The total amount found to have been stolen between 12 November 2013 and 29 June 2016 amounted to $140,654.42.
[3] The appellant was sentenced to two years, eight months’ imprisonment. The Judge also ordered reparation of $190,594.17, being the full amount taken of
$140,654.42 plus the costs relating to forensic accounting services paid for by the victim company. Judge Snell declined to order reparation in terms of interest charges of $23,718.00.
[4] Ms Elmiger raises two grounds of appeal against conviction and four grounds of appeal against sentence. A third ground on the conviction appeal (that the trial Judge gave undue weight to Crown evidence, diminished the defence evidence, and showed impartiality), was not pursued further.
Legal principles
Appeal against conviction
[5]An appeal against conviction must be allowed if the Court is satisfied that:1
(a)the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)in any case, a miscarriage of justice has occurred for any reason.
[6] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.2
1 Criminal Procedure Act 2011, ss 232(2)(b) and (c).
2 Section 232(4).
Appeal against sentence
[7] On an appeal against sentence, the Court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.3
[8] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.4 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.5
[9] The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.6 The focus is on the end result, rather than the process by which the sentence was reached.7
[10] In exceptional cases, it may nonetheless be necessary to…
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- AGLC
- Elmiger v The Queen [2019] NZHC 1238
- Case
- [2019] NZHC 1238
- Decision Date
CaseChat Overview and Summary
The appeal against conviction was dismissed, and the appeal against sentence was allowed, reducing the sentence to two years and four months’ imprisonment. The reparation and associated orders were upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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