[1] The appellant, Begum Samuels Farina, accepted a sentence indication given by Judge Gibson on 11 September 2020. Ms Farina pleaded guilty to one charge of theft in a special relationship1 and one charge of obtaining by deception.2 On 29 January 2021, in the District Court at Auckland, the Judge sentenced her to 10 months’ home detention,3 100 hours of community work and ordered her to pay
$21,034.51 in reparation, being the total amount of loss attributed to the offending.

[2] Ms Farina now appeals that sentence on the grounds it is manifestly excessive. Ms Farina submits the starting point adopted by the District Court Judge was too high, and that the final sentence combined with the reparation order was excessive in the circumstances.

Facts

[3] Between June and November 2016 Ms Farina worked at Horizon Radiology, Parnell as an accounts clerk. Her role included accessing the company’s online banking with ANZ Bank to load client payments and refunds.

[4] On several occasions during the course of her employment, Ms Farina entered client refunds using her personal bank account number instead of the client’s. This resulted in the refund being processed into her own bank account on 20 separate occasions between 9 September and 7 November 2016.

[5] Ms Farina resigned from her position on 11 November 2016. A new accounts clerk was employed and on three occasions between 25 November 2016 and 27 January 2017 refund money was transferred to Ms Farina instead of to clients as Ms Farina’s personal bank account details had remained in the system.

[6]Ms Farina stole a total of $21,034.51 from Horizon Radiology in this way.

1      Crimes Act 1961, ss 220 and 223(a). Maximum penalty seven years’ imprisonment.
2      Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty seven years’ imprisonment.
3      R v Farina [2021] NZDC 2150.

District Court decision

[7] Judge Gibson considered Ms Farina’s previous convictions for dishonesty- based offending but noted the last conviction had been entered some time ago in 2008. He described her as a “fundamentally…dishonest person” and found that her apology ought to be taken “with a grain of salt”. 4 The Judge noted the lack of a tariff decision for this kind of offending. He considered the offending to be planned and deliberate, emphasising the effect Ms Farina’s offending had on her employer and co-workers.

[8] In those circumstances, Judge Gibson disagreed with the sentence of community detention and reparation recommended in the pre-sentence report.

[9] With an oblique…

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 Farina v The Queen

Details

AGLC: Farina v The Queen [2021] NZHC 811
Case: [2021] NZHC 811
Decision Date: 15 April 2021

CaseChat Overview and Summary

Begum Samuels Farina appealed her sentence of 10 months' home detention, 100 hours of community work, and a reparation order of $21,034.51, which she submitted was manifestly excessive. The appellant was convicted of one charge of theft in a special relationship and one charge of obtaining by deception. Between June and November 2016, Ms Farina worked as an accounts clerk at Horizon Radiology, Parnell. In that role, she accessed the company’s online banking with ANZ Bank to load client payments and refunds. On several occasions, Ms Farina entered client refunds using her personal bank account number instead of the client’s. This resulted in the refund being processed into her own bank account on 20 separate occasions between 9 September and 7 November 2016. Ms Farina stole a total of $21,034.51 from Horizon Radiology in this way. Ms Farina’s appeal was allowed in part. The appeal against the sentence of 10 months' home detention and the reparation order was dismissed. The order for 100 hours' community work was quashed. The appeal against sentence was allowed in part only because the order for community work was not properly considered as part of the sentence. The court found that the sentence of home detention was not manifestly excessive, but the additional requirement for community work could not stand.

Orders