Grogan v The Queen

[2018] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-13

[2018] NZHC 856

BETWEEN

CHARMAINE DELORES GROGAN

Appellant

AND

THE QUEEN

Respondent

Hearing:

30 April 2018

(Heard at ROTORUA)

Appearances:

G R Tomlinson for Appellant S J P Davison for Respondent

Judgment:

30 April 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

GROGAN v R [2018] NZHC 856 [30 April 2018]

[1]                   Ms Grogan pleaded guilty in the District Court at Tauranga to three charges relating to the dishonest use of cheques. On 26 January 2018 Judge Mabey QC sentenced Ms Grogan to concurrent sentences of two years imprisonment.1 She appeals against sentence on the basis that the Judge erred in principle in imposing the sentence of imprisonment. This has resulted in an end sentence that is manifestly excessive.

Background

[2]                   In order to understand the issues the appeal raises it is necessary to have regard to the factual background.

[3]                   The charges on which the Judge sentenced Ms Grogan relate to offending that occurred between January 2010 and February 2011. During this period Ms Grogan was a trustee of a registered Maori land trust with 480 beneficiaries. The trust leased farm property and distributed the net rental income to the beneficiaries of the trust.

[4]                   Ms Grogan was also the treasurer of the trust and in that capacity had the ability to sign cheques on the trust’s behalf. Between 8 January 2010 and 21 February 2011 she forged cheques and created unauthorised details on cheque records. This enabled her to obtain funds amounting to $99,000 from the trust’s bank account. None of that loss was recovered.

[5]                   The complicating factor in the present appeal arises from the fact that in June 2016 Ms Grogan was sentenced for other similar offending that post-dated the fraudulent activity giving rise to the present charges. On that occasion Ms Grogan was again acting on behalf of a trust. She fraudulently used cheques and thereby deprived the trust’s beneficiaries of funds amounting to approximately $80,000. That offending occurred between April 2008 and 31 March 2012. On 29 June 2016, Judge Bidois sentenced Ms Grogan to 11 months home detention on the charges laid in relation to that offending.2

1      R v Grogan [2018] NZDC 1328.

2      New Zealand Police v Grogan [2016] NZDC 12130.

The Judge’s decision

[6]                   Judge Mabey was clearly aware of the sentence imposed by Judge Bidois in 2016. He referred to the facts underpinning that offending during the course of his sentencing remarks. He also referred to the sentence Judge Bidois had imposed.3 The Judge considered, however, that no issue of totality arose because Ms Grogan had already completed the sentence of home detention imposed upon her by Judge Bidois.4 He took the earlier offending as amounting to an aggravating factor for which the starting point needed to be increased.

[7]                   The Judge selected a starting point of two years six months imprisonment. He applied an uplift of three months to reflect the earlier offending and then reduced the sentence by 15 per cent to reflect mitigating factors including remorse and the fact that Ms Grogan had been prepared to attend a restorative justice conference. The Judge then applied a further discount of 15 per cent to produce the end sentence of two years imprisonment. In doing so he then rejected a submission by counsel for Ms Grogan that a further sentence of home detention should be imposed. He therefore sentenced Ms Grogan to two years imprisonment.

The appeal

[8]                   For Ms Grogan, Mr Tomlinson’s first submission is the same as that advanced in the District Court, namely that a sentence of home detention should have been imposed. He points out that Ms Grogan had completed the earlier sentence of home detention without incident. The present sentence was one of two years or less, so the Judge had the ability to impose home detention. Mr Tomlinson submits that the Judge erred in principle by imposing a sentence of imprisonment instead.

[9]                   As argument developed during the hearing several other issues arose. First, counsel agreed that the Judge erred in applying an uplift of three months to reflect the earlier offending. An uplift may be applied to reflect the fact that an offender has failed to learn from sentences imposed in respect of similar offending in the past. In

3      R v Grogan, above n 1, at [10]-[11].

4 At [12].

the present case, however, that principle could not apply because Ms Grogan had not been sentenced on the earlier charges when she committed the present offences.

[10]               A more fundamental issue arises, however, in relation to the issue of totality. The Judge correctly noted that, strictly speaking, these issues did not arise because Ms Grogan had completed the earlier sentence. Section 85(2) of the Sentencing Act 2002 only requires totality to be taken into account when the Court imposes cumulative sentences on two or more charges.

[11]               In the present case, however, I consider that several factors brought the issue of totality into play. The first is that the present charges relate to offending between January 2010 and February 2011. The earlier charges related to offending that overlaps that period. Secondly, the offending was very similar in kind because, in both cases, it involved the fraudulent use of cheques in circumstances where Ms Grogan was in a position of trust for the beneficial owners of the funds that she converted to her own use.

[12]               The real problem in the present case has arisen as a result of the timing of the pleas that Ms Grogan has entered. Mr Tomlinson explains that the present charges were only laid after Ms Grogan had pleaded guilty in February 2016 to the charges dealt with by Judge Bidois in June 2016. She initially sought to defend those charges, but by the time she elected to enter guilty pleas, she had already served the sentence of home detention imposed in respect of the later offending.

[13]               I detect from the sentencing notes of both Judges in the District Court indications that they held a concern that Ms Grogan was “gaming” the system in order to ensure she did not receive a sentence of imprisonment. It is common ground that, had Ms Grogan been sentenced on all charges together, a custodial sentence would certainly have been imposed. As Judge Mabey remarked, however, the Court cannot take into account the reasons underlying the timing of a guilty plea. Those issues call into play the advice given by counsel and other matters to which the Court is not privy. I consider, however, that it was important in the present case for the ultimate sentence to reflect Ms Grogan’s overall culpability given the fact that the offending occurred during an overlapping period and was of a very similar nature.

[14]               Had Ms Grogan been sentenced on all charges at the same time, I consider an overall starting point of three and a half to four years imprisonment would have been imposed. An overall starting point of five years imprisonment, as was ultimately selected by the two Judges in the present case, would have been too great having regard to totality principles. Assuming a starting point of three years nine months imprisonment, a discount of 15 per cent would have been available to reflect the mitigating factors both Judges identified other than the guilty pleas. This would reduce the sentence to three years three months imprisonment before taking into account guilty pleas.

[15]               Guilty pleas on the present charges were not entered until a comparatively late stage whereas a full discount of 25 per cent was given in respect of the earlier charges. Applying an overall discount of 20 per cent to all charges, the sentence would reduce by eight months to two years seven months imprisonment.

[16]               The issue for present purposes is whether, and to what extent, the sentence of home detention that Ms Grogan has already served should be taken into account when selecting the end sentence. The end sentence for the present charges must be one of imprisonment as a matter of principle to reflect the overall culpability of Ms Grogan’s offending. Ordinarily, and as a working rule, the courts equate a sentence of one month’s home detention to two months’ imprisonment. This reflects the fact that a sentence of two years imprisonment or less leads to automatic release after the offender has served one-half of a sentence. An offender sentenced to home detention must, however, serve the full sentence. That is a rule of thumb, and cannot be regarded as being an absolute rule. It must yield to circumstances.

[17]               In the present case I consider a sentence of 11 months home detention, coupled with a sentence of 11 months imprisonment, to be an appropriate response to the overall culpability of Ms Grogan’s offending.

Result

[18]               I therefore allow the appeal. I quash the sentences of two years imprisonment on all charges. In their place I impose concurrent sentences of 11 months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Tauranga W T Nabney, Tauranga