Elmiger v The Queen
[2019] NZHC 1238
•4 June 2019
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 correct a sentence that is within range (for example, where there has been an arithmetical error).8 In any other case, the Court must dismiss the appeal.9
Grounds of appeal against conviction
[11]The two grounds advanced with regard to conviction are:
(a)Change of election under duress.
(b)Misinterpretation and therefore misdirection regarding s 220(1) of the Act.
Duress
[12]The trial was originally scheduled to commence with 435 charges before a jury.
3 Criminal Procedure Act 2011, s 250(2).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
5 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].
6 Tutakangahau v R, at [36].
7 At [36].
8 At [36].
9 Criminal Procedure Act 2011, s 250(3).
[13] Mr Temm submits that the defendant was placed under duress or unfair pressure as a result of a very strong indication from the trial Judge on the morning of the trial that the number of charges was oppressive and overwhelming for a jury and the trial could not proceed on that basis. The Judge also strongly indicated the trial would need to be broken into portions. Mr Temm says that left his client with no choice but to change her election from trial by jury to trial by Judge alone. He submits that was a breach of s 25 of New Zealand Bill of Rights Act 1990, which speaks of a fair trial by an independent and impartial Court. That then led to procedural unfairness, which resulted in a miscarriage of justice.
[14] It was unclear to me whether Mr Temm was contending that the Judge had made a ruling that the trial would not proceed by jury with the full set of charges. However, Mr Temm clarified that he did not contend there was a ruling. Rather, he says the Judge gave a strong indication he intended to make such a ruling. I agree with that assessment. There is therefore no separate question of any appeal against a ruling made, or whether the Judge was correct or not in his assessment of the relevant authorities.
[15] On the material before me, while I agree the defendant was placed in a difficult position, I do not consider there was duress or unfair pressure. The Judge’s Minute dated 6 August 2018 expressly records that the Judge was “at pains to emphasise to [Mr Temm] that he could have as much time as he liked as the trial would not commence today”. Mr Temm is a competent and experienced counsel, and after advice from him, the decision was made to change the election so that the trial could proceed in full, but before the Judge alone. That seems an entirely understandable decision.
[16] Perhaps more importantly, I have read Judge Snell’s Verdict Judgment and consider it is thorough and careful. Over half of the charges were dismissed. There is nothing to suggest there was a miscarriage of justice because of duress or unfair pressure.
[17]I therefore reject this ground of appeal.
Section 220(1) of the Crimes Act 1961
[18] The charges were all laid under s 220(1) of the Act. This section relates to the charge of theft by a person in a special relationship.
[19] Section 220(1) applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person – (a) to account to any other person for the property or for any proceeds arising from the property; or (b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
[20] Mr Temm submits that the trial Judge conflated (a) and (b), did not make a distinction in law as required, and that some of the circumstances do not give rise to an obligation requiring an accounting. He says it was correct for the Judge to refer only to “dealing with the property” where the charge related to assets other than money, for example, charge 435 relating to effective writing-off of a Ford Utility motor vehicle, but the majority of the charges related to monetary sums and should have been both charged and considered under (a), in terms of whether the defendant had an obligation to account to any other person.
[21] The charges are all framed under s 220(1)(b), that is “dealing with” property. Further, it seems clear that the charges were properly framed, as the distinction between (a) and (b) is not between a charge relating to a monetary sum and a charge relating to some other asset type, but rather it is a distinction between receiving monies or other assets for which you were required to account to another party and dealing with money or assets that were already held by that party. All of the charges related to the latter and therefore fell under s 220(1)(b). The Judge therefore only had to refer to that provision and the requirements under it.
[22]Mr Temm properly conceded that he could not take that point any further.
[23] As a second part of his submission under s 220 of the Act, Mr Temm said that, in terms of s 220(4), the Judge had to address with regard to each charge whether the circumstances required the defendant to act in accordance with any requirements of another person. He points to the Judge recording at [2](b) that this point had to be
proven. He then submits that nowhere in the judgment does the Judge turn his mind to whether the defendant had an obligation to follow the requirements of another person.
[24] It is correct that the Judge does not make an express finding in this regard. He records that Ms Elmiger was an employee of the Central Motor Group Ltd. It would follow as a matter of law that she had an obligation to follow requirements of her employer and therefore could not do anything for which she did not have authority, whether express or implied. For each category of charges, the Judge then correctly considers whether Ms Elmiger had authority. If she did not have authority, then it followed she had “an obligation to follow the requirements of another person”.
[25] Mr Temm accepts that, in the early period covered by the charges, when the appellant was working as an accounts clerk, Ms Elmiger would have had an obligation to follow the employer’s requirements. He submits however that she later became the business manager and then general manager and she had implied authority to act in some circumstances and in those instances she was not required to act “in accordance with the requirements of any other person”.
[26] The only example to which Mr Temm refers expressly is the charge relating to the Ford Utility. He says in relation to dealing with that motor vehicle, Ms Elmiger was not required to report to anyone. She had authority to dispose of it in terms of implied authority arising out of her position as, either business manager or general manager, whichever she then was. However, the Judge expressly says at [171] that Ms Elmiger did exceed her authority. Also, it was not so much a matter of Ms Elmiger not being required to report to anyone that she had disposed of the vehicle, but rather that she did not have authority to then write the vehicle off in the books, which is effectively what happened.
[27] As I say, that was the only example given by Mr Temm with regard to this submission. He said that I did not need to work through the judgment to look at each of the charges to see whether his submission was borne out on each.
[28] The Crown submits that the Judge did not overlook the question of whether the appellant had implied or inherent authority in some circumstances, noting that the Judge dismissed several of the charges for that reason. The Crown points to [69] of the Verdict Judgment where, under the heading, “Did Ms Elmiger have inherent authority by definition of her position within the company and was not required to account”, the trial Judge found that, as a matter of fact, the appellant was given a wide range of power to run the company in Mr Blakeney-Williams’ absence. He considered that, for some of the charges, she had either implied authority by reason of her position, and/or at the very least she would have had a reasonable belief that she had that authority. The trial Judge therefore dismissed a number of the charges for that reason, finding that the Crown had not proved that certain transactions amounted to theft by a person required to account.
[29] As such, in his decision, the trial Judge clearly did take into account Ms Elmiger’s position of authority and considered that in relation to certain transactions, she had implied authority as a result of her position. This was in the face of evidence from Mr Blakeney-Williams that he did not give her permission to spend the money that she did. It seems clear therefore that the Judge expressly considered whether and in what circumstances the appellant had implied authority.
[30]I therefore also reject the second ground of appeal against conviction.
Appeal against sentence
[31]The four grounds of appeal are:
(a)The starting point of three years and two months’ imprisonment was too high.
(b)The deduction of 16 per cent for personal mitigating factors was too low.
(c)The order by way of reparation that Ms Elmiger pay the victim company’s private forensic accounting fee was wrong in principle and in law.
(d)The Judge “did not reflect positive aspects of a pre-sentence report and rejected a recommendation in the pre-sentence report of home detention”.
Starting point
[32] Both counsel agree in terms of the starting point that Mackley v Police,10 a case which the District Court Judge himself located and referred to, is the most comparable of the cited cases. That was a decision of this Court on appeal. The Court adopted a starting point of three years, six months. The sum of money at issue was greater in Mackley ($173,318 compared to $140,654), but the other factors viewed overall indicated a similar level of culpability to here. On that basis it would be difficult to argue with the starting point the Judge adopted here of three years, two months.
[33] However, after considering the cases referred to me by counsel, I have decided that the fact there has been full reparation should be taken into account in the starting point. The reparation was involuntary, granted, but it still reduces the harm suffered by the victim, which is a material factor in the overall seriousness of the offending.11 In R v Patterson, the Court of Appeal commented, “fraud offending where no recovery is achieved is ‘more serious’ than fraud offending with complete recovery, if only because in the latter case the victims’ loss is transitory and not permanent”.12
[34] The Court of Appeal also wrote that involuntary reparation, as is the case here, should most logically be taken into account when setting the starting point, not as a mitigating factor, the latter being the Judge’s approach here.13 Although the Judge did set the starting point here at four months less than Mackley, I consider a more appropriate starting point would have been two years and 10 months to adequately reflect the fact the victim suffered significantly less financial harm than the sum of
$140,654. That full amount will be repaid, as will the full forensic fee, which I refer to subsequently. The victim still suffers loss because of the effect on the business of
10 Mackley v Police [2014] NZHC 1561.
11 Sentencing Act 2002, s 9(d).
12 R v Patterson [2008] NZCA 75 [41].
13 At [41].
money being taken over time and no interest has been ordered, but there is nevertheless significant reparation.
Discount for mitigation
[35] By way of mitigation, the Judge took into account that the appellant was a first offender; had spent 18 months on bail with no breach; had paid full reparation; there were personal character references of some moment; there were personal family impact matters and the appellant had, in any event, suffered an overall “fall from grace”. I would add that over half of the charges the appellant faced were dismissed during the trial or she was found not guilty.
[36]Mr Temm submits the discount was too low.
[37] I would have agreed that the discount was too low given the number of factors to be taken into account, all of which the Judge accepted were relevant.
[38] However, with reparation not taken into account as a mitigating factor, and instead reflected in the starting point, I consider the discount is at about the right level.
[39] So, taking the adjusted starting point of two years and 10 months, with a discount of 16 per cent, the sentence comes to two years and four months’ imprisonment.
[40] This is a difference of four months from Judge Snell’s sentence of two years and eight months. I consider this is sufficient of a difference to conclude that the sentence is manifestly excessive. I would therefore allow the appeal in this respect.
[41] This still does not, however, lead to the sentence being reduced to the two years that Mr Temm submits it should be so that home detention could be considered.
Reparation
[42]I turn to the matter of reparation in terms of the private forensic accounting fee.
[43] Under s 32(1)(c) of the Sentencing Act 2002, the Court can order reparation for loss consequential on emotional harm, if the offender has caused the victim to suffer.
[44] While that does not enable the Court to order payment of a forensic accounting fee that might have been paid by the Crown, it does enable the Court to order payment of a forensic accounting fee incurred by the victim. The victim here was Mr Blakeney-Williams/his company. The company incurred the fee.
[45] The order made was therefore available as a matter of law which answers part of Mr Temm’s submission.
[46] In terms of principle, Mr Temm submitted that, even if the reparation order for the accounting fee could be made, it should be as to something less than 50 per cent of that fee, as something less than 50 per cent of the charges laid were ultimately the subject of convictions.
[47] However, once cause for suspicion was raised, which clearly occurred in respect of the matter of the charge relating to the car, it was a reasonable next step to conduct a forensic investigation to see what other matters there might be. That requires an investigation across the board. Without that, it would be a pointless exercise. Even to identify and succeed on the number of charges the Crown did, a full investigation was required.
[48] I would see some force in Mr Temm’s argument if only a small percentage of the charges laid were proven, or if the investigation were found to be faulty in material respects, but neither of those applies here.
[49] In those circumstances, I do not agree that the fee should only be reimbursed as to 50 per cent and consider the reparation order should stand. The reparation order is also a factor I have taken into account in my decision to allow the sentence appeal.
Conclusion
[50]The appeal against conviction is dismissed.
[51] The appeal against sentence is allowed, and the sentence is reduced to two years and four months’ imprisonment.
[52]The reparation and associated orders stand.
Hinton J
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