Gilbert v The Queen

[2010] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND

CA745/2009
[2010] NZCA 158

BETWEENBRENT DAVID GILBERT

Appellant

ANDTHE QUEEN

Respondent

Hearing:13 April 2010

Court:Hammond, Chisholm and Priestley JJ

Counsel:P F Gorringe for Appellant

K Raftery for Respondent

Judgment:30 April 2010 at 2.30 pm

JUDGMENT OF THE COURT

A            An extension of time to file the appeal is granted.

B            The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeal

[1]        The appellant stood trial in May 2009 in the Tauranga District Court.  He faced a total of 12 counts laid variously under ss 219, 220, 228, and 229A of the Crimes Act 1961 involving dishonesty.  The jury found him guilty on all 12 counts.

[2]        Judge Rollo, who had presided over the trial, sentenced the appellant to concurrent terms of imprisonment.  The lead sentence, imposed on nine of the 12 counts, was four years imprisonment. 

[3]        The appellant challenges that sentence contending it is manifestly excessive.

Background

[4]        The offending took place over a period of approximately 22 months between May 2003 and March 2005.  The victim, at the time of sentencing, was an 88 year old woman.  She was a friend of the appellant’s grandmother.  The appellant had known her for most of his life.

[5]        In early 2003 the appellant and his partner moved in to live with the victim and her then seriously ill husband.  At the time the appellant was an undischarged bankrupt.

[6]        The appellant befriended the elderly couple to the extent that they were both persuaded to sign enduring powers of attorney in his favour.  The victim’s dying husband took that step in May 2008 shortly before his death.  The next month, shortly after her husband’s death, the victim did likewise.  As a bankrupt the appellant did not qualify to be a donee under a power of attorney. 

[7]        It is unnecessary to describe the offending in any detail.  Monies were transferred from the accounts of the victim’s husband into the victim’s account with another bank.  The appellant then arranged for the victim to open bank accounts with other banks in respect of which he was a signatory.

[8]        After various inter-account transfers, a bank cheque, drawn on one of the victim’s accounts for $64,996, was paid to the appellant’s father.  A few days later two further bank cheques for $87,000 each were withdrawn and deposited by the appellant into a solicitor’s trust account.  The $174,000 involved in those two transactions was used to purchase a residential property in Tauranga, initially in the name of a company controlled by the appellant, and subsequently in the name of the appellant’s partner.

[9]        The appellant transferred a further $5,000 from his victim’s account to his company in March 2005.  That transaction, however, was detected by the victim and her bankers.  The sum was repaid.

[10]       Some time before sentencing the Tauranga property was sold.  From its sale proceeds the victim was reimbursed $140,000.  However, to achieve that result she had to embark on litigation.  The litigation was compromised ($140,000 being what she received of the total misappropriated sum of $174,000 which had found its way into the property).  To achieve that result the victim had to incur $46,000 investigation and legal costs.  Not only was the victim out of pocket in respect of the $174,000.  She never recovered the initial $64,996 that was stolen from her in September 2003. 

[11]       Judge Rollo had a probation report.  The appellant at that stage was aged 34.  He had no assets.  A reparation sentence was impossible.  Although, as is clear from him going to trial, the appellant had denied his offending, he was, by the time he was interviewed by the probation officer, prepared to accept his wrongdoing.  Whether he showed any genuine remorse for his victim, however, was a matter the probation officer found difficult to determine.

[12]       The appellant produced a number of references at his sentencing from family and friends who spoke highly of him, particularly in his caring for children.  He and his partner are the parents of three young children, all of preschool age.

[13]       The appellant had prior convictions for assault and possession of cannabis dealt with by way of a fine.  He also had a shoplifting conviction, the value involved being over $1,000.  The shoplifting took place after the offending for which he was convicted.

[14]       The Judge had a detailed and moving victim impact statement.  The victim described the effect on her of the loss of a substantial sum of money.  She rightly considered advantage had been taken of her at a vulnerable stage of her life.  Like many elderly people she sometimes has difficulty sleeping, but during those hours when she is awake at night she finds her mind turning to what the appellant did to her.

Sentencing

[15]       The Judge’s sentencing notes are lengthy and comprehensive.  He clearly and justifiably was not impressed by the appellant’s conduct.  In outlining the background to the offending the Judge occasionally referred to fraudulent transactions in which the victim and her late husband had been caught up but which were not before the Court.  However, there is no suggestion that these references contaminated the sentencing process, nor did Mr Gorringe submit to that effect.

[16]       The Judge categorised the appellant, who formerly was a radio broadcaster, as a person who saw words as “shiny baubles, mere trinkets perhaps of no lasting value or worth [used] to impress, dazzle, and often overwhelm those around you”.  During the trial Judge Rollo may well have gained that impression although whether the appellant’s former occupation was a relevant factor is problematic.

[17]       The Judge referred to the loss of the elderly couple’s life savings and to the civil proceedings the victim had to take to recover some of her money.

[18]       Senior counsel, who had represented the appellant at trial, had urged a four year start point.  The Crown sought a start point between four and a half and five years.  The Judge seems to have accepted trial counsel’s submission that a modest discount was justified to reflect the defence’s co-operation over the production of documents and bank records during the running of the trial.

[19]       After reviewing various authorities cited to him the Judge identified (correctly) aggravating features.  These included the premeditation, breach of trust, the vulnerability of the victim, the duration of the offending, and the flouting by the appellant of the restrictions placed on him by the Insolvency Act.

[20]       The Judge did not precisely follow the R v Taueki[1] methodology.  He adopted a start point, which reflected both culpability and aggravating features, of four years and nine months imprisonment.  He then factored in a nine month discount which he considered “[erred] on the generous side” for the mitigating factors he had identified being co-operation at trial, the appellant’s previous record, and a late expression of remorse.

Submissions on appeal.

[1]       R v Taueki [2005] 3 NZLR 372 (CA).

[21]       Mr Gorringe submitted that the Judge’s start point of four years and nine months was too high by a band of three to six months.  (His written submissions had suggested an appropriate start point of being between three and a half years to three years nine months.)

[22]       Counsel further submitted that the nine month reduction for mitigating factors was insufficient and that a 15 month reduction was appropriate.  Finally, counsel submitted that the Judge had given insufficient credit for the sum the victim had recovered and had instead predicated his sentence on the basis of an overall loss of $244,000.

[23]       With the exception of the March 2005 transaction of $5,000 all the defalcations had taken place in September 2003.  The counts, properly laid, identified the various components of what essentially amounted to four transactions.

[24]       Counsel referred to various sentencing authorities to buttress his argument that the starting point was too high.  These included this Court’s judgment in R v Staples[2] and R v Harvey.[3]In Staples this Court reduced a start point from five and a half years to five years, in respect of 421 convictions of using a document with intent to defraud, following the trial of an office administrator who had taken $656,000 from an employer, which loss contributed substantially to a business failure.  In Harvey the victim was a tetraplegic whose caregiver had stolen $135,900.  The end sentence, after credit for guilty pleas, was two years and three months imprisonment.

[2]           R v Staples CA215/04, 30 August 2004.

[3]           R v Harvey CA349/00, 7 December 2000.

[25]       We were also referred to R v Marsters.[4]This Court upheld a sentence of three and a half years imprisonment from a four year start point imposed in respect of 48 counts of using a document with intent to defraud in respect of falsified or false GST returns resulting in wrong refunds of $341,000.

[4]           R v Marsters (2005) 22 NZTC 19, 649 (CA).

[26]       Mr Raftery for the Crown submitted the Judge’s start point was well within range.  He further submitted that a discount for remorse was, since R v Hessell,[5] inappropriate.

Discussion

[5]           R v Hessell (2009) NZCA 450 at [24]-[28].

[27]       The Judge was faced with serious offending.  The appellant’s strategems relied on the trust of a vulnerable and recently bereaved victim.  The defalcations were premeditated and carefully planned. 

[28]       There is force in Mr Raftery’s submission that the appellant embarked on the scheme to bleed the victim dry and that he did nothing on his own initiative to reimburse her.  Comparison with the sums in the cases cited obscures somewhat the real culpability here which is the victim’s extreme vulnerability, particularly having regard to her age, and the breach of trust towards a family friend.

[29]       Far from acknowledging guilt at an early stage the appellant (as is his right) forced the victim through a criminal trial.  The monies which the victim was able to reclaim were not paid to her voluntarily.  Instead she was forced to incur the delay and expense of a civil proceeding.

[30]       In those circumstances we consider the Judge was correct, to factor into his culpability assessment the total $244,000 loss rather than the net loss.

[31]       We consider the Judge’s start point was at the top end of the available range having regard to overall culpability and aggravating circumstances.  The appellant, in any event, has had the benefit of a discount which the Judge, correctly in our view, described as generous.

[32]       Any adjustments to the components of the end sentence on our part would be mere tinkering which we decline to do.

[33]       Accordingly the appeal against sentence must be dismissed.

Result

[34]       An extension of time to file the appeal is granted but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington, for the Respondent