Harford v Police

[2014] NZHC 1886

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-95 [2014] NZHC 1886

BETWEEN

CAROL JOAN HARFORD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 August 2014
Counsel:	PJ Davey for Appellant MJ Hammer and SR Jacobs for Respondent
Judgment:	11 August 2014

JUDGMENT OF BREWER J

Solicitors/Counsel:  Peter Davey (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

HARFORD v POLICE [2014] NZHC 1886 [11 August 2014]

Introduction

[1]      Ms Harford began work as office manager for a rental car company on 1 May

2009.  She was solely responsible for banking the cash paid by customers.  Within three weeks of her employment she began to steal some of the cash.   She also directed electronic bankings of funds to her personal accounts.  This went on until

18 October 2011 when an audit revealed her.

[2]      Eventually, Ms Harford pleaded guilty to one representative charge of theft by a person in a special relationship1  and 14 charges of accessing a computer for a dishonest purpose.2    On 18 March 2014, Judge BA Gibson in the District Court at Auckland sentenced Ms Harford to four years’ imprisonment.3   Ms Harford submits that this sentence is manifestly excessive, and she appeals against it.

Issues

[3]      Although Ms Harford pleaded guilty to the charges, she did not accept that the amount of money she stole was anywhere near the (approximately) $280,000 that the Crown said had been taken.  Accordingly, there was a disputed facts hearing, following which Judge Gibson found proven that Ms Harford stole $276,324.59. Ms Harford, on the morning of the hearing, raised the amount she accepted she took to $69,135.

[4]      The first issue is whether the Judge was wrong in finding that Ms Harford stole $276,324.59 because he misdirected himself as to Ms Harford’s credibility and was wrong to conclude that there was no reasonable possibility that someone else was stealing cash.

[5]      The second issue is whether the Judge’s starting point of four-and-a-half years’ imprisonment was too high.  Obviously, this depends in large part on whether he was right in his assessment of the amount of money Ms Harford stole.   But,

regardless, Ms Harford says that four-and-a-half years is too long.

1      Crimes Act 1961, s 220(1)(b).

2      Section 249(1).

3      R v Harford DC Auckland CRI-2012-004-8697, 18 March 2014.

[6]      The third issue is the discount for other factors.  The Judge gave a discount for Ms Harford’s guilty pleas of 10 per cent.   Ms Harford says that taking into account her remorse and any other uncounted factors, she was entitled to 25 per cent discount.

[7]      The fourth issue is whether, all matters considered in their totality, the final sentence was clearly excessive.

Ms Harford’s case

[8]      Ms Harford gave evidence at the disputed facts hearing that she had not stolen the amount assessed by the Crown.  She raised the possibility that someone else might have taken the money.  The undisputed evidence of Jessica Gregory was that another employee, Mr Chand, knew the safe combination and Ms Gregory had seen him often opening the safe.  Mr Chand left his employment in December 2011, subsequently left the country and has not been the subject of any enquiries.

[9]      Ms Harford’s evidence was that all the cash she stole was deposited into her bank accounts.  There was no evidence called by the Crown of any asset purchases or excessive spending that could explain what happened to the remaining cash shortfall of over $200,000.

[10]     The Judge did not find Ms Harford to be a credible witness.  However, part of his analysis was that Ms Harford changed her position twice on the amount of money she had stolen.   When first confronted by her employer, she admitted to stealing just over $14,000 when she knew that the actual amount was much higher. Later she accepted that she had stolen $49,355 and the Judge noted that on the morning of the hearing the admitted sum was increased to $69,315.   Ms Harford argues, however, that this last change should not have been held against her.   A memorandum of her lawyer filed in September 2013 stated that the quantum “at this stage appears to be in the range of $63,000” and this shows that further analysis was to be undertaken.  To be fair, as Mr Davey acknowledges, the estimate of $63,000 included the $13,000 approximately of redirected electronic banking funds.

[11]     When an appeal against sentence includes submissions that the Judge erred in his or her findings of fact, it is for the appellate Judge to review the evidence and make his or her own findings.

[12]     As to Ms Harford’s credibility, the Judge had the advantage of seeing and hearing her give evidence.  But, putting that aside, I also would find that Ms Harford had no inherent credibility.   In other words, objectively, she could not expect her testimony to be given credibility in the absence of corroboration.  That is because of her record of dishonesty.   On 16 February 1998, she was convicted of using a document for pecuniary advantage.   In 2007, she was convicted of accessing a computer for a dishonest purpose.  On 2 June 2010, she was convicted on one charge of theft and one charge of using a document for pecuniary advantage.  While serving a community-based sentence for those latter charges, she continued to offend against the rental car company employing her.

[13]     I accept that the Judge placed perhaps too much weight on the morning of the hearing admission that the cash stolen was $69,315.   But that is neither here nor there given Ms Harford’s record of offending.

[14]     The point as to quantum comes down to whether the evidence establishes a reasonable possibility that Mr Chand could have been a thief as well.   There is certainly a possibility, because the evidence is that he had access to the safe and was seen to open the safe.

[15]     I find, like the Judge, that that was not a reasonable possibility:

(a)      Ms Harford was solely responsible for accounting for the cash paid into the office.   If she was taking small amounts of cash then she would have noticed that large amounts of cash were missing.   She does not say she did.  In her evidence she hints at it, saying that she was  not  inclined  to  investigate  because  of  her  own  dishonest behaviour.  But here we are not talking about a small discrepancy.

(b)Ms Harford’s evidence that all the cash she stole went into her bank accounts  is  refuted  by  the  evidence  of  the  forensic  accountant, Ms Beehre.  Between May and November 2009, the cash deposited by Ms Harford  into  her  account  was  $7,125.77.    But  the  total  cash misappropriated in that period was over $44,000.  Mr Chand did not start working at the rental car company until November 2009.   The inference to be drawn is that Ms Harford took approximately $37,000 in cash during the period before Mr Chand was employed without depositing it in her bank accounts.  This is simply consistent with the discrepancy between the sums deposited subsequently to her accounts and the total of missing cash.

[16]     The Judge was right to find proven beyond reasonable doubt that the total amount stolen by Ms Harford was $276,324.59.

Was the starting point of four-and-a-half years’ imprisonment too high?

[17]     There  is  no  tariff  decision  in  this  area.     Sentences  depend  upon  the combination of all of the factors applying to the particular case.   Obviously, the amount stolen plays a large part.  When it comes to an appeal against the level of sentence, the appellate Court looks to see whether there was a relevant error made by the sentencing Judge.  If there is no relevant error then the appellate Court will not interfere with the exercise of the sentencing Judge’s discretion by sentencing afresh.

[18]     I have considered the cases put forward by counsel for Ms Harford and by counsel for the respondent.  In my view, a starting point of four years’ imprisonment was within the range available to the Judge considering the following factors:

(a)       The amount stolen, $276,324.59.

(b)The offending started within three weeks of Ms Harford being given employment and continued for over two years until she was caught.

(c)      The breach of trust as office manager with the job of taking care of the cash on behalf of her employer.

(d)The offending commenced while Ms Harford was awaiting sentence on a charge of dishonesty, and continued while she was serving the sentence for that dishonesty.

[19]     I consider  also  that  the  Judge  had  to  increase  the  starting  point  to  take account of the previous record of dishonesty offending.  Taking care that there was no double counting for the aggravating factor of offending while serving a sentence, the six months adopted by the Judge is within the range available to him.

[20]     I find that there was no error in the Judge reaching a final starting point of four-and-a-half years’ imprisonment.

Was an adequate discount given for other factors?

[21]     Ms Harford points to a report by Dr Hemopo and says that it shows her previous physical and sexual abuse from a young age through to her subsequent emotional and physical abuse by her former partner were contributing factors to the offending.   Mr Davey submits that it was not open to the Judge to do other than accept the report because it was not challenged.

[22]     Ms Harford is in her early 60s.  The Judge felt that this was not a situation where a person’s background of abuse could be said fairly to be a contributing factor to her offending.  He was sceptical about a report which was largely repeating what Ms Harford herself had said.  It was open to the Judge to evaluate the report against the evidence of the offending and the nature of the report.

[23]     I agree with the Judge’s approach.  It would have been different if this were the first instance of dishonest offending, if it were relevantly proximate to abusive experiences and if there was direct linking by a mental health professional of the two.   None of this applies here.   Instead, there is a history of dishonest offending over many years, with the latest offending being a clear abuse of trust by a woman of mature age.

[24]     It is said by Mr Davey that only now for the first time is the appellant being counselled and that this is a positive event which should be encouraged.  It might be

that it is a positive event.  But it is not, at this stage in the history of Ms Harford’s

offending, something worthy of a discrete discount.

[25]     Ms Harford submits that she should have been given a discount of more than

10 per cent for her pleas of guilty.  I would agree if the disputed facts hearing had been resolved largely in her favour.   A discount for a plea of guilty is given for practical reasons, as well as acknowledging the taking of responsibility by the offender for the offending.  I accept that at the time that Ms Harford pleaded guilty to the offences for which she was eventually sentenced, a discount of 20 per cent was available  to   her.     However,   the  disputed  facts   hearing,   with   its   outcome, demonstrated that Ms Harford was not taking responsibility for her offending and most of the practical considerations, including sparing witnesses the ordeal of giving evidence, were negated.

[26]     I agree with Mr Davey that because of the way in which the pleas of guilty influenced the evidence called at the disputed facts hearing, not all the benefits of the guilty pleas were lost.  But, in my view, that means simply that the Judge was about right in allowing a discount of 10 per cent.4

[27]     Ms Harford submits also that remorse should be taken into account.  Remorse has to be real.  I cannot say that the Judge was wrong to find that there was no real remorse here.

Was the final sentence clearly excessive?

[28]     I accept that the sentence of four years’ imprisonment imposed by the Judge was towards the top of the range available to him.   He could have given a lesser sentence, and still have been within the range of his discretion.   But the range of three to three-and-a-half years, submitted as appropriate by Mr Davey, would in my

view be beneath the range of the Judge’s discretion.

4      Mathematically, the discount is 11 per cent.

[29]     In a situation where no reparation can be made, and reflecting on the quality of the aggravating features set out above, I cannot say that the Judge’s final sentence was clearly excessive.

Decision

[30]     The appeal is dismissed.

Brewer J