Esau v The Queen - [2014] NZHC 997

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000025 [2014] NZHC 997

BETWEEN
TINA EMMA ESAU

Appellant

AND

THE QUEEN Respondent

Hearing: 1 May 2014

Appearances:

A J McKenzie for Appellant
K Kasire for Respondent

Judgment:

14 May 2014

JUDGMENT OF GENDALL J

Introduction

[1] The appellant appeals the sentence imposed upon her in the District Court by His Honour Judge Callaghan on 12 March 2014 following her conviction on five charges of theft by a person in a special relationship, contrary to ss 220 and
223 Crimes Act 1961. A sentence of four years three months imprisonment was imposed on 12 March 2014 with an order for $100,000 in reparation suspended while she was in prison. The incidents in question involved $1,142,280.34 which she stole from her employer at the time over a period between 2009 and 2013.

District Court Judgment

[2] In sentencing Miss Esau in the District Court, Judge Callaghan set out details of the offending. This was basically that she was under a trust obligation to account to her employer for business funds that were given to the business to pay onto people who were entitled to tax refunds. Ms Esau stole the funds for her own benefit and
explained this as being mainly due to a gambling addiction she had.

ESAU v R [2014] NZHC 997 [14 May 2014]

[3] The pre-sentence report noted that 60% of the money stolen by Ms Esau had been spent on gambling with the rest being used for holidays overseas for herself and her family. The victim, a small family company involving the Hegarty family it seems could not understand how Ms Esau their friend and employee could afford to be living at such a high level when it was a style of life that they did not have access to.

[4] Ms Esau was a first time offender and said that she was sorry and wished to apologise to the Hegarty family. The Judge questioned however why it had not been done earlier.

[5] Counsel had referred a number of decisions to the Court. Judge Callaghan decided the most useful case for sentencing here was the High Court decision in Singh v Serious Fraud Office.1 In this case theft from Fonterra consisting of
$1,348,000 was involved plus about $90,000 of offending in respect of benefit fraud. The District Court in that case had decided on a starting point of six years imprisonment. On appeal to this Court, Andrews J, having considered all the circumstances, came to the view that neither this nor the end sentence of four and a half years could be considered excessive.

[6] Judge Callaghan noted that the offending in Singh, although somewhat different, was in many ways similar to the offending in the instant case. In Singh, there were 84 instances where accounting software had been manipulated to enable the offender to steal the $1,348,000. Judge Callaghan noted that in the present case, far more events occurred being 488 occasions…

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 Esau v The Queen

Details

AGLC: Esau v The Queen [2014] NZHC 997
Case: [2014] NZHC 997
Decision Date: 14 May 2014

CaseChat Overview and Summary

Tina Emma Esau appeals against the sentence imposed by the District Court, which sentenced her to four years and three months imprisonment for theft by a person in a special relationship. The appeal was heard in the High Court of New Zealand. Esau stole $1,142,280.34 from her employer over a four-year period between 2009 and 2013. The District Court found the theft to be a breach of the trust relationship between Esau and her employer, who had been friends.

The primary legal issue in this appeal was whether the District Court erred in its sentencing of Esau. The appeal hinged on whether the starting point of six and a half years was appropriate and whether the final sentence of four years and three months was too severe. The court considered various factors, including the number of transactions involved, the length of time over which the offending occurred, the effect on the victim, and the breach of trust.

The High Court found that the District Court had correctly applied the law and appropriately considered all relevant factors in determining the sentence. The starting point of six and a half years, though at the higher end of the scale, was deemed appropriate due to the significant number of transactions, the extended period of offending, and the serious impact on the victims. The court also noted that, unlike the comparator case of Singh v Serious Fraud Office, there was no money recovered in this case to permit any reparation. The court further found that a generous discount was applied to the starting point, taking into account Esau's cooperation with the police and her status as a first-time offender. The 25% discount for the guilty plea was the maximum available, and the suspended $100,000 reparation order was also appropriate in the circumstances.

The High Court dismissed the appeal, finding no error in the District Court's sentencing of Esau. The final sentence of four years and three months imprisonment was considered appropriate for the offending.

Orders