Elmiger v The Queen - [2019] NZHC 1238

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-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…

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 Elmiger v The Queen

Details

AGLC: Elmiger v The Queen [2019] NZHC 1238
Case: [2019] NZHC 1238
Decision Date: 4 June 2019

CaseChat Overview and Summary

In this case, Stephanie Elmiger appealed her conviction and sentence following a judge-alone trial. Elmiger was found guilty of 211 charges of theft by a person in a special relationship under the Crimes Act 1961, and was sentenced to two years and eight months’ imprisonment. Elmiger raised two grounds of appeal against her conviction and four against her sentence. The court considered whether there was any error in the trial that resulted in a miscarriage of justice, and whether there was an error in the sentence imposed. Regarding the conviction, the court rejected the claims that there was duress in changing the election from trial by jury to trial by judge alone, and that the trial judge misinterpreted the relevant provisions of the Act. The court found that the trial judge’s verdict judgment was thorough and careful and dismissed this ground of appeal. Regarding the sentence, the court considered whether the starting point was too high, the discount for personal mitigating factors was too low, the order for reparation was wrong in principle and in law, and whether the judge had rejected a recommendation of home detention. The court found that the starting point should have taken into account the full reparation paid, and the discount for mitigating factors was appropriate. The reparation order was found to be lawful and appropriate, and the court allowed the appeal against sentence, reducing the sentence to two years and four months’ imprisonment.

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