Francis v R
[2011] NZCA 353
•28 July 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA102/2011 [2011] NZCA 353 |
| BETWEEN NICOLA MAREE FRANCIS |
| AND THE QUEEN |
| Hearing: 29 June 2011 |
| Court: Wild, Rodney Hansen and MacKenzie JJ |
| Counsel: G J King for Appellant |
| Judgment: 28 July 2011 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
The appellant was sentenced on 25 February 2011 by Judge Garland in the District Court at Palmerston North to a term of 20 months imprisonment following pleas of guilty to 15 counts of dishonesty offending. She appeals against the sentence imposed on the grounds that the Judge erred in not granting home detention.
Facts
The appellant was employed by a veterinary practice in Pahiatua. Initially she was a receptionist, but in May 2008 she successfully applied for the accounts manager’s position. In that position, she was the sole staff member in charge of cash and banking and related financial aspects. Her offending came to light in June 2009 and she was dismissed on 3 July 2009. The subsequent investigation led to two groups of charges.
The first group of 11 charges comprised three counts of obtaining or causing loss by deception, one count of dishonestly using a document, four counts of forgery, and three counts of theft. The appellant used her personal account with the firm to obtain services for herself and a family member, then falsified the account to make it appear that it had been paid, a total value of some $2,700. She directed cheques and debit payments intended for the company into her personal accounts by means including altering cheques and forging signatures, to a total of some $26,700. She used the firm’s account to buy items for herself from two suppliers to a value of $4,200.
The second group comprised four representative counts of theft by a person in a special relationship. These involved numerous occasions where the appellant took cash totalling $29,839.70 from the firm’s banking and concealed that by four different methods of falsifying the firm’s banking records.
The total amount dishonestly obtained by the offending, for which reparation was sought, was $63,723.81.
The Judge’s sentence
In sentencing, the Judge noted two probation reports that had been prepared following pleas of guilty to the first group of charges in April 2010 and to the second group of charges in September 2010. In the first report the appellant was assessed as being unsuitable for an electronically monitored sentence and the recommendation was for a sentence of imprisonment with release conditions. In the second report, the probation officer reported that an electronically monitored sentence was now available and the recommendation was for a sentence of home detention with post detention conditions and reparation. The Judge also referred to a psychiatric report and a report from a counsellor. The Judge took into account as aggravating factors the sheer number of offences, the extent of loss and harm, that the offending involved a gross breach of trust, and that the offending involved a high degree of premeditation. In mitigation, the Judge gave credit for the guilty pleas. He acknowledged that the appellant had no prior convictions but considered that, as the appellant was appearing for sentence on multiple offences committed over a period of a year or more, it was not really apt to describe her as a first time offender.
The Judge noted that there is no tariff case and considered a number of decisions referred to by counsel. He noted the Crown submission that a starting point of two and a half years would be appropriate and that a sentence of home detention would be inappropriate as being insufficient to meet the needs of denunciation and deterrence. He noted counsel for the appellant’s submission that while imprisonment is clearly a starting point, home detention would be sufficient to meet the purposes of sentencing. The Judge enumerated as factors favouring a sentence of home detention that these were the appellant’s first convictions for criminal offending; that she is said to be at low risk of further offending; the probation officer’s view that she had taken responsibility for addressing issues that have contributed to the offending; and an offer of a $5,000 reparation. As factors weighing against a sentence of home detention the Judge enumerated the following: the offending involved a very serious and gross breach of trust; it involved a high degree of premeditation and deceit over a period of 12 months; it was motivated by greed not need; the impact of the offending on the victims has been severe; and the appellant had admitted responsibility for the offending reluctantly, as the Judge saw it.
The Judge was concerned that the appellant had not demonstrated significant remorse. He noted in particular that when the appellant had first appeared for sentencing on the first group of charges she made no effort to make substantial reparation payments. The appellant had said she was not in a position to offer more than $5,000 by way of lump sum payment yet she and her husband jointly owned a house with an equity between $55,000 and $60,000. The Judge said:
Your stance, in that regard, confirms the impression I have had of you throughout. While you are clearly very distressed and sad with respect to your current predicament, it is my impression that you are very reluctant to take full responsibility for your offending and to demonstrate true remorse by making every effort to pay reparation to the victims.
The Judge adopted a starting point of two and a half years imprisonment. He allowed a reduction of nine months on account of the guilty pleas and a further one month on account of the $5,000 reparation, to arrive at an end sentence of 20 months imprisonment. He declined to impose home detention.
Submissions
Counsel for the appellant submits that the core issue on the appeal is whether a sentence of home detention should have been imposed instead of imprisonment. He submits that the appellant had a suitable address and supportive family relationships. Home detention was the considered recommendation of the author of the most recent pre-sentence report. The appellant had no previous convictions and a diagnosed long-standing anxiety disorder. Counsel refers to a psychiatric report supporting that diagnosis and submits that the psychiatrist’s opinion is supported by the appellant’s continuous claim to have little recollection of the offending and by the totally unsophisticated nature of the offending. He submits that the Judge erred in characterising the offending as motivated by greed not need and involving a high degree of premeditation and deceit, and in not accepting the appellant’s sworn claim of not remembering the offending. Counsel submits that the psychiatrist’s report places the offending in a quite different context, so that the level of culpability was ameliorated to a degree by her impaired psychological functioning. Counsel also refers to several other factors which he submits should have received greater weight. These are: the need for rehabilitation, her diminished intellectual capacity or understanding, a recognition that imprisonment would be especially difficult or disproportionately severe, and the requirement to impose the least restrictive outcome that is appropriate in the circumstances. Counsel submits that the unwillingness of the appellant to agree to sell her family home in an effort to meet reparation should not have counted against her on the issue of home detention, and while that may have been the absence of a mitigating factor, it should not be viewed as an aggravating factor.
The appellant was refused bail by this Court pending the hearing of this appeal. Accordingly the appellant has now served more than four months. Counsel submits that this should be taken into account and if the balance of the sentence were to be served by way of home detention the “clang of the prison gates” effect will remain operative.
Counsel for the appellant notes, as comparable cases in which a sentence of home detention has been considered as a standalone sentence, the decisions of this Court in R vIosefa[1] and R v Garnett.[2]
[1] R v Iosefa [2008] NZCA 453.
[2] R v Garnett [2010] NZCA 173.
Counsel for the Crown submits that this was serious offending with serious consequences, both in terms of financial loss and personal distress for the victims, who are the owners and staff of a small business. Counsel notes the decision of this Court in R v D[3] to the effect that where offending is on the cusp of imprisonment and home detention it is generally appropriate to defer to the sentencing Judge. Counsel submits that the Judge did not view the failure to pay more reparation as an aggravating feature, but as demonstrating an absence of remorse and relevant to the harm experienced by the victims. It was those factors which he thought relevant to whether or not home detention was appropriate. Counsel notes the decision of this Court in R v Otufangavalu[4] which is authority for the proposition that the failure to pay reparation can be relevant to the availability of home detention if it shows an absence of remorse. Counsel submits that where home detention has been imposed in other fraud cases they have generally involved features not present in this case. In R v Garnett and R v Ransom[5] the position of children for whom the offender had responsibilities had to be taken into account and in R v Iosefa there was reparation, both already paid and further ordered, of the full amount. Counsel submits that, as the psychiatrist met with the appellant over six months after the offending was discovered and considered that her mental health had been severely exacerbated by the pending Court proceedings, it is difficult to use his report to determine her state of mind at the time of offending so as to reduce her culpability. Counsel submits that this was a case of ongoing premeditated fraud on a small business by a trusted employee and that the appellant’s mental health difficulties did not outweigh the need for a sentence that appropriately denounced her conduct. She submits that the sentence was not manifestly excessive.
Discussion
[3] R v D (CA253/2008), [2008] NZCA 267 at [66].
[4] R v Otufangavalu [2010] NZCA 585 at [12].
[5] R v Ransom [2010] NZCA 390.
This was serious offending over an extended period of time. Its relatively unsophisticated nature does not detract from the appellant’s culpability. It was sufficiently well executed to escape detection for over a year, in a small business where the level of misappropriation was relatively quite large.
The psychiatric report refers to a long-standing anxiety state, and to a severe chronic anxiety disorder with the experience of panic attacks. It also refers to a number of unresolved issues in the appellant’s life. Her psychiatric state had, at the date of the report, been severely exacerbated by her Court circumstances. We find nothing in the report which would lead us to the conclusion that, at the time of her offending, there were psychiatric issues which might have reduced her culpability to a level which would make imprisonment inappropriate.
A factor of particular relevance in this case was the effect of the offending on the victims. The veterinary practice had five veterinarian shareholder/directors. The victim impact statements show that the offences have had a significant effect on the victims. Several victims describe it as having set the business back by several years. One contrasts the financial position of the practice with what the appellant had told him, over the period of the offending, of substantial personal purchases which she had made. Also, the breach of trust has clearly had a deep impact on this small and close-knit firm.
We do not consider that the Judge has placed undue weight on the limited extent of the reparation which the appellant offered. Mr King submits that the family home could not readily, if at all, have been sold so as to achieve the equity discussed by the Judge. He further submits that the possibility of borrowing to make further reparation was explored, but was not achievable. We consider that there is some force in those submissions. We consider too that the needs of the appellant’s family must be taken into account. We are however of the view that the Judge was entitled to regard the appellant’s lack of any offer of additional reparation beyond the $5,000 offered, after sentencing had been adjourned specifically for that purpose, as indicating a reluctance to accept full responsibility, and to demonstrate true remorse. The Judge was in our view right to regard this as a significant factor weighing against home detention.
There were in this case no personal circumstances arising from family responsibilities which would weigh strongly in favour of such a sentence. We consider that the Judge was right to regard this as a case where home detention would be insufficient to meet the principles of denunciation and deterrence.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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