Fitzmaurice v Police - [2013] NZHC 494

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-000016 [2013] NZHC 494

JOHN FITZMAURICE
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 14 March 2013

Counsel: J Eaton for Appellant
B Hawes for Respondent

Judgment: 14 March 2013

JUDGMENT OF PANCKHURST J

Introduction

[1] This is an appeal against a sentence of two years, three months imprisonment imposed in the District Court on 27 February 2013 by Judge MacDonald. The essential complaint is that the sentence was clearly excessive and that the appropriate and least restrictive outcome was a sentence of home detention.

[2] The facts of the case are all important. The appellant John Fitzmaurice was a Roman Catholic parish priest. His offending spanned a period of about five and a half years from the beginning of 2006 to August 2011. Over that period he stole a sum of $149,260. Various modes of offending were involved including the use of
cheques, cash withdrawals from ATM machines and automatic payments into a

FITZMAURICE V NEW ZEALAND POLICE HC CHCH CRI 2013-409-000016 [14 March 2013]

personal account. In all the number of dishonest transactions was of the order of

735. In the result money which was available to meet parish purposes, including the support of the appellant as the parish priest, was diverted into his hands, or accounts, and subsequently spent on gambling. Without doubt this was a systematic, prolonged and serious course of dishonesty.

[3] Eight charges were laid, six of using a document, one of obtaining by deception and one of illegally accessing a computer. This spread of charges reflected the various methods employed, as I have already outlined. Although the appellant was effectively apprehended in August 2011, charges were not laid until December 2012, after which following a first appearance, he entered pleas of guilty at the second appearance, and therefore, at the first reasonable opportunity for him to do so.

The District Court sentencing

[4] In outline, the District Court Judge, a very experienced one, adopted a starting point of three years and six months for sentencing, allowed a discount of six months for personal mitigating factors to arrive at three years imprisonment, before a further discount for the pleas of guilty was allowed to arrive at the effective sentence: two years and three months.

[5] I note the appellant is 57 years of age. He entered the seminary aged 17 years and became a priest aged 23 years. He remained so until August 2011 when he was suspended from his ministry by the Catholic Bishop of Christchurch.

The grounds of appeal

[6] The grounds of appeal are effectively four-fold. The first is that the starting point of three and a half years was too high and, being higher than either side had contended for, that reasons were required in explanation of it. Secondly, the period of the offending, five and a half years (reflected also in the instances of offending), was treated as both an aggravating factor in fixing the starting point and then as

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 Fitzmaurice v Police

Details

AGLC: Fitzmaurice v Police [2013] NZHC 494
Case: [2013] NZHC 494
Decision Date: 14 March 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Fitzmaurice v Police saw John Fitzmaurice appeal against a sentence of two years and three months imprisonment imposed in the District Court. The central complaint was that the sentence was excessive and that a sentence of home detention would have been more appropriate. The appellant, a Roman Catholic priest, had engaged in a prolonged period of theft spanning over five years, totaling approximately $149,260. Various methods, including the use of cheques, cash withdrawals, and automatic payments, were used to facilitate the theft. The District Court judge, Judge MacDonald, set a starting point of three years and six months for sentencing, subsequently reducing this to two years and three months after considering mitigating factors and the appellant's guilty pleas.

The legal issues the court was required to decide were primarily focused on the appropriateness of the starting point for sentencing, whether the duration and incidence of the offending were appropriately considered without double counting, the extent to which the appellant’s depressive illness and pathological gambling disorder should have been taken into account, and whether the appellant’s remorse warranted further recognition. The court found that the starting point of three and a half years was too high and lacked sufficient explanation. Additionally, the court found that the duration of the offending was double counted when considering both as an aggravating factor and as cancelling out any credit for previous good character. Furthermore, the court found that the judge did not adequately consider the appellant’s depressive illness and pathological gambling disorder, which were relevant to the final sentencing decision. Finally, the court determined that the appellant's remorse, although genuine, did not warrant additional recognition beyond what was given for his guilty pleas.

The court concluded that a starting point of three years was more appropriate, and after considering mitigating factors and remorse, a reduction of nine months was necessary. The 25% reduction for the pleas of guilty resulted in a sentence of 20 months imprisonment. However, given the nature of the offending and the appellant’s efforts towards rehabilitation, the court found that home detention was the most appropriate sentence. The court ordered a sentence of 10 months home detention, with special conditions including remaining at a specified address, undergoing treatment and counselling, and undertaking approved employment. Additionally, the appellant was ordered to perform 300 hours of community work.

Orders