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Garnett v R

Garnett v R

Case [2010] NZCA 173 7 May 2010

Breach of Trust

Repudiation & Termination

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA187/2009
[2010] NZCA 173
BETWEENEMMA JANE GARNETT

Appellant

ANDTHE QUEEN

Respondent

Hearing:4 November 2009 and 5 March 2010

Court:William Young P, Chisholm and Priestley JJ
Counsel:B J Hart, G J King, and A J Haskett for the Appellant

N P Chisnall and H R B Stallard for Respondent

Judgment:7 May 2010 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of three years imprisonment imposed on the appellant in the Auckland District Court on 6 April 2009 is quashed.
CA sentence of 11 months home detention and 300 hours community work is substituted.
DThe sentence of home detention is to commence at 9.00am on Monday 10 May 2010 with the appellant to be then at 17 Altair Place, Mairangi Bay, which is to be the home detention residence where she is to await the arrival of a probation officer and security officer. The sentence is subject to the following conditions:
(a)The appellant is to undertake psychiatric treatment or psychological counselling to the satisfaction of the Probation Officer;
(b)During the term of the sentence she is to abstain from alcohol and drugs;
(c)At the end of the sentence she is to be subject to the standard post-detention conditions for a period of six months.

____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeal
[1]        The appellant, who was formerly a solicitor, pleaded guilty in February 2009 to five charges laid under s 260 of the Crimes Act 1961 of obtaining a pecuniary advantage by deception; and three charges laid under ss 228, 229A, and 253 of dishonestly using documents or making false trust account entries.
[2]        On all those counts Judge Kiernan sentenced the appellant to concurrent terms of three years imprisonment. The Judge rejected the appellant’s submission that home detention was an appropriate penalty. This appeal challenges that outcome.
Background facts
[3]        Two firms of solicitors and their clients were involved. The names of the victims have been permanently suppressed.
[4]        Between 2002 and 2007 the appellant was employed as a solicitor in two established Auckland law firms. During the five years from March 2002 with her first employer, the appellant by a variety of means involving the requisition and deposit of various firm cheques, fraudulently deposited approximately $188,500 into the ledger accounts of an entity and client which she controlled. These monies she then used for personal purposes.
[5]        In 2007 the appellant became a salaried partner in another law firm. In two transactions involving $6,000 the appellant similarly misappropriated clients’ money for her own purposes.
[6]        Both law firms incurred investigation and other costs attributable to the appellant’s dishonesty. The appellant accepted in the District Court that the first firm’s total loss was in excess of $241,000 and the second firm’s loss approximately $33,500. A global reparation figure was agreed at $275,138.29.
[7]        The appellant’s offending was deliberate, sustained, and in clear breach of her professional obligations.
The presentencing phase
[8]        The appellant’s…

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 Garnett v R

Details

AGLC: Garnett v R [2010] NZCA 173
Case: [2010] NZCA 173
Decision Date: 7 May 2010

CaseChat Overview and Summary

Emma Jane Garnett was appealing against a three-year imprisonment sentence imposed by the Auckland District Court for obtaining a pecuniary advantage by deception and dishonestly using documents or making false trust account entries. The Court of Appeal of New Zealand heard the appeal and allowed the appeal, substituting a sentence of 11 months home detention and 300 hours of community work. The Court found that the original sentence was too long considering Garnett's difficult family circumstances, particularly the impact on her two young children. The Court took into account Garnett's personal circumstances, including her mental health and the stress associated with her marriage, but did not consider her mental health as a mitigating factor that constituted diminished capacity or understanding. The substituted sentence is subject to conditions, including psychiatric treatment or psychological counselling and abstaining from alcohol and drugs.

The Court of Appeal considered the legal issues of whether the starting point of four years imprisonment was reasonable, if the 25 per cent discount for mitigating factors was appropriate, and if home detention was an appropriate sentence. The Court found that the starting point was reasonable, but the five to ten per cent allowance for personal considerations was not sufficient in light of Garnett's family circumstances. The Court also found that home detention was an appropriate sentence under the transitional provisions of the Sentencing Amendment Act 2007 and the Hill approach.

Orders