Francis v R - [2011] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND

CA102/2011
[2011] NZCA 353

BETWEEN NICOLA MAREE FRANCIS
Appellant

AND THE QUEEN
Respondent

Hearing: 29 June 2011

Court: Wild, Rodney Hansen and MacKenzie JJ

Counsel: G J King for Appellant
K Laurenson for Respondent

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…

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 Francis v R

Details

AGLC: Francis v R [2011] NZCA 353
Case: [2011] NZCA 353
Decision Date: 28 July 2011

CaseChat Overview and Summary

Nicola Maree Francis appealed against her sentence in the Court of Appeal of New Zealand, following her conviction for multiple counts of dishonesty offences. The appellant, previously employed as an accounts manager at a veterinary practice, engaged in various fraudulent activities over a period of time, resulting in significant financial loss. The sentencing judge, Garland, imposed a sentence of 20 months imprisonment, which the appellant contested, arguing that she should have been sentenced to home detention instead.

The central legal issue was whether the sentencing judge erred in not granting home detention, despite the appellant's lack of prior convictions, her supportive family environment, and the availability of an electronically monitored sentence. The appellant's counsel argued that the nature of the offending did not warrant a sentence of imprisonment and that her psychiatric condition and lack of recollection of the offences should have been considered as mitigating factors.

The Court of Appeal considered the arguments presented by both parties, including the severity of the offences, the breach of trust, and the appellant's limited offer of reparation. The court found that the sentencing judge was entitled to consider the appellant's reluctance to accept full responsibility and demonstrate true remorse, and that the sentence imposed was not manifestly excessive. The appeal was ultimately dismissed.

The Court of Appeal concluded that the judge's decision to impose a sentence of imprisonment was justified, taking into account the gravity of the offences and the need to denounce and deter such conduct. The court found that home detention would not have been sufficient to meet the purposes of sentencing in this case.

Orders