Harrison v Police

[2013] NZHC 3224

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000263 [2013] NZHC 3224

BETWEEN  GUY WILLIAM HARRISON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   3 December 2013

Appearances:           Appellant in person

J Pridgeon for Respondent

Judgment:                3 December 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors:

Meredith Connell, Auckland

Copy to: Appellant

HARRISON v NEW ZEALAND POLICE [2013] NZHC 3224 [3 December 2013]

Introduction

[1]      On 18 April 2013, the appellant pleaded guilty before Judge C S Blackie in the District Court at Manukau to five representative charges of obtaining money by deception.   The appellant’s guilty pleas followed a sentence indication given by Judge Blackie earlier the same day, in the District Court at Papakura.   The appellant was sentenced by Judge Blackie in the District Court at Manukau on 3 July 2013, to nine months home detention.  He was also ordered to pay reparation of $32,000, at

$50 a week.1

[2]      The  appellant  appealed  against  conviction  and  sentence.    He  no  longer pursues the appeal against conviction but pursues the sentence appeal in respect of the order to pay reparation.  The appellant says that the amount ordered is manifestly excessive.

Facts

[3]      The charges arose from offending while the appellant was a factory manager at Hellers Tasty Ltd (“Hellers”) in Wiri.  While so employed, the appellant created five new employee profiles and then used the false profiles to defraud his employer by paying wages to each of the fake employees.  Over the course of three years, 242 fraudulent transactions were made, totalling gross wage payments of $117,969.50. In relation to 65 of these transactions, the appellant was assisted by a Mr Marurai.

[4]      At the sentence indication hearing, Judge Blackie indicated that the appellant would be sentenced to home detention.   Before the appellant was asked to plead Judge Blackie also noted that there could be a combination of community-based sentences, and that the question of reparation would have to be considered and a report obtained.  When the appellant advised the Judge that he would plead guilty to the five charges of obtaining money by deception, the Judge advised him that once the plea was recorded and a conviction entered, it would be difficult for the appellant to have it set aside.  The appellant replied that he understood that.  The charges were then put to the appellant and he entered his guilty pleas.

[5]      Later the same day, the Judge issued a minute directing that a pre-sentence report be prepared.   The Judge directed the report writer to consider the issue of reparation.  The report subsequently provided to the Court noted that the appellant was not willing to pay reparation.

District Court judgment

[6]      At  sentencing  the  Judge  had  before  him  the  pre-sentence  report  and  a reparation report prepared by the police. That report noted that the total loss suffered by Hellers covering the direct transactions to the false employees, private investigation costs, senior management costs, and travel, amounted to $219,459.52. The report went on to deduct from that the appellant’s accrued leave entitlements net of  PAYE  ($27,798.59),  an  insurance  settlement  received  from  Hellers’ insurers ($72,634) and reparation ordered to be paid by Mr Marurai of $32,263.  The total net reparation sought against the appellant was $86,763.93.

[7]      At  sentencing the Judge  recorded  that  the proceedings  before  the Court, commenced in November 2011, had been delayed for a number of reasons.   The appellant’s guilty plea had been entered shortly before a five day fixture for his trial was due to begin.  The starting point for the appellant’s sentencing was a term of imprisonment for two years.  The Judge noted that the appellant’s guilty plea had been entered “very much at the last minute”.  However, the Judge also noted that the appellant did not have a significant record of previous offending, and had, by and large, been a reliable employee.

[8]      As to reparation, the Judge said:2

[10]     ... I am, however, going to impose an additional penalty by way of reparation.  I can see that the issue relating reparations is not entirely clear and that there may be matters that could be disputed or matters which could be found in your favour.  I am therefore going to impose a sentence in relation to reparations which should be manageable as far as you are concerned, although it is going to take you a number of years to pay the debt all told.

[11]     The  figure  I  adopt  for  reparation  purposes  and  for  sentencing purposes  is  not  a  precise  figure  and  it  may  well  be  that  if  your  former

employee feels that a greater figure is to be sought, then they will be entitled

to take separate action against you in the Court’s civil jurisdiction.

[12]      You are working and have a reasonably responsible job and it would seem that the reparations that I order will be appropriate.  I am also cognisant of the fact that on home detention you should be able to make arrangements with the Department of Corrections so that you can continue with your work during daylight hours.

…

[18]      The only remaining aspect of the sentence I impose is the question of reparations.  I consider it appropriate, bearing in mind the challenge that you have to the upper ranges of the reparation sought, to make an order from the  point  of view  of  sentence, that  you  pay the same  sum as  your  co- offender, that is $32,000, by way of reparations to Heller Tasty Limited. You pay that at the rate of $50 per week, the first payment to be made by 10 July

2013, that is a week today.  All payments are to be made to the Court.  Do not make the payments to the company directly.  The Court will then keep the appropriate records and will forward the money to the company in due course.

Appeal issue

[9]      The sole issue on appeal now is whether the reparation order is excessive.  In respect of the appeal against reparation this is an appeal against sentence and as such an appeal against the exercise of a discretion.  The approach to be taken to appeals against  sentence  has  been  set  out  in  the  judgment  of  the  Court  of  Appeal  in

R v Shipton.3      First  there  must  be  an  error  vitiating  the  lower  Court’s  original

sentencing discretion, that is, the appeal must proceed on an error of principle.  To establish an error in sentencing it must be shown that the Judge in the lower Court made an error, whether intrinsically or as a result of additional material submitted to the appeal court, and it is only if an error of that character is involved that the appeal court  should  re-exercise  the  sentencing  discretion.    The  appeal  court  will  not intervene when the sentence is within a justifiable range on accepted sentencing principles. An appeal is not generally a “second shot” at sentencing.

[10]     Section 12 of the Sentencing Act 2002 provides for an order for reparation. Section 12 provides that if a Court is entitled to impose an order for reparation it must do so unless it is satisfied that the sentence or order would result in undue

hardship for the offender or dependents of the offender, or that any other special circumstances would make in inappropriate.

[11]     There is no question that the Judge was lawfully entitled to impose a sentence or order of reparation.  Accordingly, the Court was required to impose an order for reparation  unless  the  Judge  was  satisfied  that  an  order  would  result  in  undue hardship for the appellant.  Undue hardship, of course, requires something more than hardship.  The Court of Appeal in R v Pender noted that it will almost invariably be the case that there is some hardship for those ordered to pay reparation, as there is almost invariably hardship for those who are victims of the offending that gives rise

to the financial loss in respect of which reparation is required.4

[12]     In reliance on paragraph [18] of the Judge’s sentencing notes the appellant submitted that the Judge should have imposed the same reparation for him, as was imposed for Mr Marurai.  However, the appellant says, the effect of the reparation order made is that he is required to pay considerably more than Mr Marurai.  This is because Mr Marurai did not have the benefit of any outstanding leave payments, whereas leave payments owing to the appellant had been deducted.

[13]     To deal with this issue requires considering the meaning of paragraph [18] of the Judge’s sentencing.  The Judge said that he would order “that you pay the same sum as your co-offender, that is, $32,000”.  I am not able to read that as meaning that the appellant was to pay $32,000 and to be entitled to receive his outstanding leave entitlements.  It is clear from the reparation report, to which I have already referred, that the appellant’s leave entitlements had already been deducted from the claim made against him.   The effect of the reparation order is therefore that the Judge intended that the appellant was to pay the same by way of reparation in cash terms as the co-offender had been ordered.   Accordingly, I do not accept the appellant’s argument in this respect.

[14]     That comment also applies to the appellant’s next argument which is that

holiday pay owing to him has not been taken into account.  It is clear that holiday

pay owing to him was taken into account and was deducted from Heller’s claim for

reparation.

[15]     The  appellant  also  claimed  that  he  was  entitled  to  receive  a  manager’s allowance of some $11,825 together with a “minimum half bonus” of $5,000.  It is stated clearly in the reparation report that was before the Judge that Hellers did not accept that any such allowance, or bonus, was payable to the appellant.  That was before the Judge at sentencing and known to the appellant.

[16]     The appellant also raised the matter of plant and equipment said to have been left at the premises.  I have been referred to a handwritten note of items uplifted by the appellant at some stage.   Those appear to be, in the main, personal items that might have been located in his office.   They do not appear to relate to plant and equipment.

[17]     However, plant and equipment was discussed at the sentencing hearing in that the appellant said to the Judge that there was $10,000 worth of plant and equipment which was left behind.  That was certainly known to the Judge and it was open to him to reject it, or not.  There appears to have been no evidence as to what that plant and equipment was, or where it might be.  I am not persuaded that the Judge was in any error in respect of plant and equipment.

[18]     As to the actual sum awarded against the appellant, I am not satisfied that it was manifestly excessive when it is seen against the amount taken in the offending and the overall loss to the appellant’s employer.

[19]     As to hardship, there was no evidence of any undue hardship at the time of sentencing.   In fact, the evidence before the Court was that the appellant was employed and he accepted that he could pay reparation at $50 a week.  The appellant has submitted, today, that there are matters that have arisen since his sentencing which have left him in a position of undue hardship.  He says that a property has been sold with a shortfall of $290,000 which is increasing, and that he is also in the position of owing mortgage and rates payments.  The appellant has not investigated the possibility of seeking to have the reparation order reviewed.

[20]     I do not consider I am in the position to give consideration to matters that have arisen since the hearing.  First, I have no evidence of it and secondly, it may be that the appropriate course for the appellant to seek to have the reparation order reviewed in the District Court upon presentation of appropriate evidence.

Result

[21]     In any event, the upshot is that the appeal is dismissed.

Andrews  J