Grant v The Queen - [2018] NZCA 452

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA617/2017
[2018] NZCA 452

BETWEEN	TESSA FIONA GRANT Appellant
AND	THE QUEEN Respondent

Hearing:	28 August 2018
Court:	Miller, Mallon and Gendall JJ
Counsel:	N P Chisnall for Appellant J A Eng for Respondent JEM Lethbridge for SkyCity Entertainment Ltd, intervening with leave
Judgment:	25 October 2018 at 2.00 pm

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is granted.
B The appeal is allowed. The sentences are quashed. Concurrent sentences of six years’ imprisonment are substituted. The sentences remain subject to a minimum period of imprisonment of 50 per cent.
CThe suppression order made in this Court on 15 June 2018 is discharged.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Tessa Grant stole over $2.75 million from her two employers, SkyCity Entertainment Group Ltd and Waikato Diocesan School for Girls. She pleaded guilty to the charges brought against her.[1] She was sentenced in the District Court by Judge Connell to seven years and eight months’ imprisonment with a 50 per cent minimum period of imprisonment.[2] She appeals her sentence.
[1]Against SkyCity she pleaded guilty to a representative charge of dishonestly using a document with intent to obtain a pecuniary advantage (Crimes Act 1961, s 228(1)(b)); a representative charge of theft in a special relationship (ss 220 and 223(a)); and a charge of accessing a computer system dishonestly and without claim of right (s 249(1)). Against Waikato Diocesan School she pleaded guilty to three charges of using a forged document (s 257(1)(a)) and four charges of dishonestly using the document (ss 228(1)(b) and 257(1)(a)).
[2]R v Grant [2017] NZDC 20420 [Sentencing notes].
Ms Grant contends her sentence should have been reduced to take into account the substantial recovery by SkyCity and the full recovery by the school of its direct financial losses. She says that, because information about a settlement with SkyCity was treated as confidential, it was not made available to the District Court Judge, and this meant he was unaware Ms Grant had made substantial reparation to SkyCity. She also contends she received an inadequate reduction for her guilty pleas.
If her sentence is reduced for these matters, Ms Grant also seeks a reduction in the percentage of her minimum period of imprisonment.

Circumstances of the offending

The SkyCity offending took place between 22 December 2008 and 24 February 2014 when Ms Grant was the finance manager and on occasions the general manager at SkyCity’s Hamilton operation. Her fraudulent activity involved issuing cheques drawn on a SkyCity account to pay personal expenses, falsifying invoices and withdrawing unauthorised petty cash, and dishonestly accessing the computer. The amount fraudulently taken was $1,980,922.01. Ms Grant used some of the misappropriated funds to construct a horse arena at her property ($425,456.91), pay equestrian-related expenses ($476,715.72), and operate her credit card.
Ms Grant’s offending remained undiscovered when she left SkyCity in July 2014. At this time she commenced employment at Waikato…

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 Grant v The Queen

Details

AGLC: Grant v The Queen [2018] NZCA 452
Case: [2018] NZCA 452
Decision Date: 25 October 2018 at 2.00 pm

CaseChat Overview and Summary

Tessa Fiona Grant appeals against her sentence for defrauding her employers, SkyCity Entertainment Group Ltd and Waikato Diocesan School for Girls, of over $2.75 million. The District Court Judge sentenced her to seven years and eight months’ imprisonment with a 50 per cent minimum period of imprisonment. Ms Grant contends that her sentence should be reduced to take into account the substantial recovery by SkyCity and full recovery by the school of their direct financial losses. She also argues that she received an inadequate reduction for her guilty pleas. The Court of Appeal agreed with Ms Grant that the District Court should have taken into account the substantial recovery made by SkyCity and the full recovery made by the school of their financial losses. However, the Court found no error in the District Court Judge’s decision not to allow a credit for remorse as there was no tangible expression of remorse by Ms Grant. The Court also found that the guilty plea discount given by the District Court was inadequate and that a global discount of 20 per cent from the starting point more appropriately reflected the timing and significance of the guilty pleas on the two sets of charges. The Court of Appeal substituted concurrent sentences of six years’ imprisonment for Ms Grant’s offending. The sentences remain subject to a minimum period of imprisonment of 50 per cent.

Orders