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

cancelling out any credit for previous good character.  The issue raised is whether this amounted to double counting.

[7]      The third matter is whether any, or sufficient, allowance was made for a depressive illness and a pathological gambling disorder in relation to which there was expert advice provided to the District Court.   The fourth matter concerned remorse, whether it existed over and above that shown by the pleas of guilty and to the point where it required to be separately brought to account.

[8]      I shall deal with these four main aspects, for there were other matters raised by Mr Eaton as well, in sequence.

The starting point

[9]        The written submissions filed in the District Court on each side advocated a starting point of three years imprisonment.  Mr Eaton has informed me this morning that the Judge was concerned about this, spoke to counsel prior to the sentencing and indicated that he did not necessarily accept that viewpoint.   Hence he provided opportunity for counsel to make submissions about the matter before he reached a final view.

[10]     That view was expressed in this way. The Judge said:

I remind myself that in terms of the Sentencing Act I must impose the least restrictive outcome.   I must also endeavour to impose sentences that are consistent with other similar cases.  That is important and I have considered a large number of cases.  I am not going to repeat them now because they mean nothing to you but I have considered those in light of the submissions of counsel to try and reach an appropriate starting point for the offending.

These observations appear at [30] of the sentencing remarks and a short time later the Judge announced the starting point being three and a half years imprisonment.

[11]     Whilst I agree that a recitation of case names and starting points would have meant nothing to the appellant, it was I think incumbent upon the Judge to explain the basis upon which he reached the starting point of three and a half years.   It provides  in  effect  the  lynchpin  for  the  sentencing  analysis.    Particularly  where

counsel on both sides had arrived at a similar view, something more was required by

way of explanation of the Judge’s thinking.

[12]     Having considered the cases cited on appeal, the fact is that there is no settled tariff or checklist of guidance factors in relation to theft.  Clearly, in my view, the most influential factor is the amount stolen.  This is not only an objective and readily discernible  indicator,  but  also  measures  the  loss  to  the  victim  and  hence  the culpability of the offender in a graphic manner.

[13]     In these circumstances where there is no adequate explanation as to why the Judge arrived at three and a half years, I consider that I should examine the issue afresh.   The Crown, Mr Hawes, has referred to the 2003 Court of Appeal case of R v Varjan,1 and Mr Eaton to a recent decision in Sahib v Police2 an appeal heard by Justice Asher  in  December  2012.    Both  contain  reference  to  other  cases  and  a discussion of the tariff for theft, such as it is.

[14]     Without doubt the appellant was in a position of trust, as was Mr Sahib in relation to a religious organisation.  The figures in his case were larger than those in the present case, and in my view the two authorities to which I have specifically referred, and others, suggest that three and a half years was above the appropriate range.   I think counsel were right in submitting three years was the appropriate starting point in this case.

Was the duration and incidence of the offending double counted?

[15]     The sentencing method mandated under the Sentencing Act 2002 recognises the need to first establish the seriousness, or culpability, of the subject offending. The Judge did this at an early point.   In doing so he accepted that a number of aggravating factors existed, being the duration of the offending, the gross breach of trust, the large number of transactions, the premeditated nature of the offending, and

the extent of the loss with little or no prospect of reparation to the Catholic Church.

1       R v Varjan CA97/03, 26 June 2003.

2      HC Auckland CRI-2012-404-271, 10 December 2012.

[16]     No issue has been taken in relation to this list of aggravating factors.  For my part, I have some reservations.  For example, theft by somebody in a position of trust of an amount of this magnitude must always be premeditated.   Should this factor, therefore, be identified as aggravating or regarded as inherent in the offending itself? But that is not the thrust of counsel’s complaint on appeal.   It is clear from the sentencing remarks that the Judge was influenced by the duration and transactional numbers in fixing culpability and therefore the starting point.

[17]     He said this:

There is the fact of the large number of separate acts of dishonesty and I in fact place particular weight on this.  Seven hundred and thirty five acts of dishonesty.   I accept Mr Eaton’s submission that many of them were for small amounts, but what it does represent is that each time you have acted in a dishonest way.

Hence, it is apparent that these aspects were significant in fixing the starting point.

[18]     The Judge then noted that there were no mitigating factors in relation to the offending and turned to personal factors relevant to the appellant.  Four factors were advanced, namely that there was remorse demonstrated worthy of separate recognition,  that  there  was  diminished  responsibility  on  account  of  a  major depressive disorder and a pathological gambling addiction, also previous good character, and participation in both a restorative justice initiative and voluntary community work in the period following the appellant’s suspension as a priest.

[19]     Focusing upon evidence of previous good character, this was weighty.  The appellant  had  the  support  of  numerous  people,  including  former  parishioners, siblings, professional people with whom he had had dealings while in the priesthood and members of the clergy from both New Zealand and overseas.  All had written letters of support, many of them containing a plea for leniency given the appellant’s impressive record in the priesthood over an extended period.  There was also a letter from the Bishop of the Christchurch Diocese to whom the appellant had made a personal face to face apology.  His letter ended on this note:

I have great compassion for this priest and I do not want to see him sent to prison.

[20]     Judge MacDonald described the letters as ‘quite compelling’.  I agree.  Many I note are from persons of high standing in the community.  There can, I think be no doubt that the appellant was of good character, indeed that he had an exemplary record of service to the community over a period of more than 25 years before the offending began.

[21]     How then was this previous good character recognised?  The learned Judge said this:

[36]     As to your previous good character it may seem somewhat heartless, but I am inclined to accept Mr Zintl’s submission that any credit here has to be limited because it was very much cancelled out by the five and a half years of your offending.

[22]     With respect this was to belittle compelling evidence of good character.   In common with all offenders and regardless of the height of his fall from grace and suspension from the priesthood, the appellant’s past character demanded recognition. Section 9(2)(g) of the Act says as much.  Moreover it was not appropriate to cancel out any credit on this score because of the prolonged offending.  That had already been brought to account as an aggravating factor in assessing culpability.   In the result the duration of the offending, as an aggravating feature, was double counted in the course of the sentencing exercise.

Allowance for depression and a gambling addiction?

[23]     The Judge also expressly considered this aspect and concluded:

Mr Eaton submits that there is some diminished responsibility with reference to this major depressive disorder.  I am a little unclear as to the link between that and your offending.  Everyone with a major depressive disorder does not necessarily act in a dishonest way, in the way you have.  Similarly with a pathological gambling addiction, while that explains why you might have acted as you did, it is not an excuse and like addictions to such things as alcohol and drugs, I do not see that it necessarily has to be reflected in some reduction.

[24]      In  the main,  I agree with these observations.   Section 9(2)(e) refers to

‘diminished  intellectual  capacity  or  understanding’  as  factors  which  mitigate

criminal offending.  Where this is present, and there is a causative link between it and the offending, such diminished capacity or understanding may be a positive mitigating factor.

[25]     But it is debatable whether disorders of the kind from which the appellant suffered can be brought within the terms of the subsection.  That said, I am satisfied that both of the conditions existed during the period of the offending.  Expert reports were provided in the District Court from two clinical psychologists and also from a problem gambling centre, run by the Salvation Army.   These, without going into detail,  supported  the  conclusions  that  the  appellant  suffered  from  a  gambling addiction against the background of a major depressive episode at the relevant time. While I agree with the District Court Judge that these aspects do not mitigate the offending, they were at least relevant to the final disposition of the case, particularly if a choice needed to be made between competing sentencing options.

Did remorse require recognition?

[26]     As to this aspect, the learned Judge said:

Mr Eaton raises remorse and submits that you are extremely remorseful and that this should be recognised by way of a reduction.  For my part I accept that it is genuine, but I have some difficulty in applying some deduction when I take into account the period over which this offending took place and the scale of the offending overall.    Of course, I also need to bear in mind that some of the way that you feel at the moment may well be because of the predicament you are in.  I am not persuaded that your remorse needs to be recognised beyond the credit to be given for your guilty pleas.

[27]     I note that aside from its non recognition there are also hints in this paragraph that aggravating features, already taken account of, were again brought to account in dismissing a potential mitigating factor.  But the essential point raised by Mr Eaton was based on the observations of the Supreme Court in Hessell v R3 that if following a “proper and robust evaluation of all the circumstances”, genuine remorse exists, some allowance for it will be appropriate.  Counsel submitted that the remorse in this

case was profound.  There was the face to face apology, the actions after the event, including community work  at  a inter-denominational  centre,  the commitment  to

personal rehabilitation demonstrated in the expert reports, the appellant’s co- operation throughout the investigation in that he spent a prolonged period going through every transaction and making admissions where he could not posit a legitimate reason for expenditure.   I would add to that, the letter he wrote to the Court setting out his own personal assessment of his fall from grace and his remorse for his actions.

[28]     Reparation was about the only other thing which could possibly have been done, but that was not possible in this case on account of the appellant’s work and his low remuneration. Again, with respect to the Judge, in my view this was a factor which could not be put aside and required at least some limited recognition.

Conclusion

[29]     In  the  end  result,  and  for  the  reasons  I  have  endeavoured  to  explain,  I consider the sentencing exercise itself requires some revision.   I adopt three years imprisonment as the appropriate starting point.  In my view, giving proper weight to good character and some even limited recognition for remorse, a reduction of nine months is required in relation to personal mitigating factors.  There can then be no doubt that the 25% reduction for the pleas of guilty was appropriate, which produces an end sentence of say, 20 months imprisonment, a short term sentence requiring that commuting it to home detention must be considered.

Home detention

[30]     That aspect is not covered in the Judge’s sentencing remarks for obvious reasons.  In fact, the Crown in both the District Court and Mr Hawes in this Court, adopted a neutral stance.   Mr Hawes acknowledged that home detention was an option and helpfully referred me to the transitional provisions which in the event, I need not concern myself with.  He also referred to R v Iosefa4 which is authority for the proposition that serious offending of this nature can nonetheless be visited with a sentence of home detention, rather than imprisonment.

[31]     It is here to my mind where the depressive disorder and addiction from which the appellant undoubtedly suffered is of most moment.  He suffered from these and then waited for a very prolonged period before charges were eventually laid.   No doubt that was an ordeal, but he made good use of the time by taking positive steps towards his rehabilitation.  This signifies to me that home detention is undoubtedly the appropriate sentencing option in this case.  It is the least restrictive outcome and given all of the matters I have discussed the appellant, John Fitzmaurice, was a suitable candidate for this sentence.  The home detention appendix was obtained and the Church had continued its compassionate approach and proffered a presbytery in Auckland as an address for such a sentence to be served.

[32]     In my view, 10 months home detention is the appropriate term and I am in agreement  with  the  recommended  special  conditions  in  the  pre-sentence  report. These are that the appellant is to remain at the address of 6 Beatrice Road, Remuera, Auckland subject to the terms of a home detention sentence.   Secondly, he is to undertake and complete appropriate treatment/counselling to the satisfaction of the programme provider and a probation officer.   Thirdly, that he is to undertake employment that has been approved by the probation officer.  I also defer the start of home detention for 48 hours to enable Mr Fitzmaurice to make arrangements for his departure from Christchurch and travel to Auckland.

[33]     I  also  consider  that  a  sentence  of  community  work  should  be  included, largely because it is appropriate in itself and it has demonstrated worth given the appellant’s actions during the period he was awaiting his fate.  I therefore order that he is to perform 300 hours of community work.

Solicitors:

J Eaton:  [email protected]

B Hawes:  [email protected]