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…

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 Grogan v The Queen

Details

AGLC: Grogan v The Queen [2018] NZHC 856
Case: [2018] NZHC 856
Decision Date: 30 April 2018

CaseChat Overview and Summary

Charmaine Delores Grogan appeals against a sentence imposed by the District Court at Tauranga. She had pleaded guilty to three charges of dishonest use of cheques and was sentenced to two years imprisonment. The appeal focuses on the contention that the sentence imposed was manifestly excessive. The appellant argues that the court erred in principle by imposing a sentence of imprisonment instead of home detention. The appeal raises several legal issues, including whether the sentence imposed was erroneous in principle, whether the sentence reflects the appellant's overall culpability, and whether the sentence of home detention she had previously served should be taken into account.

The court found that the District Court judge erred in applying an uplift of three months to reflect the earlier offending, as the appellant had not been sentenced on the earlier charges when she committed the present offences. The court also found that the issue of totality should have been considered, despite the appellant having already served the sentence of home detention imposed for the earlier charges. The court considered that the overlapping nature of the offending and the similarity in kind meant that the issue of totality did come into play. The court found that had the appellant been sentenced on all charges together, a custodial sentence would certainly have been imposed, but the ultimate sentence should reflect the appellant's overall culpability. The court found that the sentence of two years imprisonment was too great having regard to totality principles and imposed concurrent sentences of 11 months imprisonment instead.

The court quashed the sentences of two years imprisonment on all charges and imposed concurrent sentences of 11 months imprisonment. The court also noted that a sentence of 11 months home detention, coupled with a sentence of 11 months imprisonment, would have been an appropriate response to the overall culpability of the appellant's offending.

Orders