Hodgson v Police

[2012] NZHC 2822

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-38 [2012] NZHC 2822

BETWEEN  KAREN MARGARET HODGSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 October 2012

Appearances: Appellant in person

J J Rhodes for Respondent

Judgment:      26 October 2012

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Tauranga

Copy to:

Karen Hodgson

C/- Auckland Regional Womens Corrections Facility

KAREN MARGARET HODGSON V NEW ZEALAND POLICE HC TAU CRI 2012-470-38 [26 October 2012]

[1]      On  20 April  2012  Karen  Hodgson  was  sentenced  in  the  District  Court, Tauranga, to imprisonment for three and a half years for seven thefts from the company that had employed her, Mason Engineering, between October 2008 - July

2011, totalling $689,361.

[2]      Ms Hodgson appeals that sentence as manifestly excessive. She puts in issue the competence of her then counsel. She contends that the sentencing Judge, Judge I B Thomas, made errors of fact and law. The sentence imposed, the police contend by contrast, was both proportionate and correct in principle.

[3]      When I reviewed Ms Hodgson's grounds of appeal with her, she identified no error on sentence on the part of her counsel or the Judge. She told me instead that she had not committed two of the seven thefts to which she had pleaded guilty and that the amount she had stolen had been overstated by $230,000.

[4]      I then went through each charge with Ms Hodgson in turn and in doing so in this decision will rely on the amounts set out in the informations and the statements of fact, which total, by my count, $774,071.79, not $689,361. They must be regarded as indicative only.

[5]      Ms Hodgson did accept that she was responsible for the five thefts, involving transfers from two company bank accounts to her three personal bank accounts, totalling $551,272.79. She did not accept that she was responsible for the two thefts using two company credit cards in 110 transactions totalling $222,799. Others in the company, she said, had access to the cards and they were also used for company expenses.

[6]      Ms Hodgson in part attributed her plea to her counsel's assurance that all the transactions on which the case against her was founded were indisputable. She also suggested she might well not have understood fully what her position was. Yet she also said she was then in a fragile, if not unwell state, and had pleaded to the two thefts, knowing she had not committed them, to help everybody move on or because she was too frightened to speak up.

[7]      I explained to Ms Hodgson that, if she was unable to identify any error on sentence on the part of her counsel or the Judge, each of whom was entitled, indeed obliged, then to rely on her pleas to all seven offences and the undisputed statement of facts, her appeal against sentence would have to be dismissed. She accepted that to be so.

[8]      I said also that Ms Hodgson's only remedy might be to apply to vacate her pleas to the two thefts she now disputes and to have those convictions set aside. I have since found, however, that while Judges of this Court have inherent power before sentence to allow pleas to be withdrawn and to set aside convictions, they do

not have that  power  after sentence.[1]  That  is  so  also  in  the District  Court.[2]   Ms

Hodgson's only remedy then is an appeal against conviction.

[1] R v Le Page [2005] 2 NZLR 845 (CA) at [15]; Le Page v R [2005] 3 NZLR 145 (SC).

[2] Leeder v Christchurch District Court [2005] NZAR 18.

[9]      As to appeals against convictions after sentence, the Court of Appeal said in

Le Page:[3]

It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.

[3] R v Le Page at [16].

[10]     The Court went on to identify three situations in which there might be a miscarriage of justice, the first only applies. It is 'where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge'. In such a case the applicant must prove, the Court said, a 'genuine misunderstanding or mistake'; and, it said, where an accused is represented on plea that may well prove difficult. That will be the issue for Ms Hodgson on any such appeal.

[11]     I also told Ms Hodgson that, if she did wish to have her convictions set aside, she would have to be able to advance that plausibly on the company's records; and, if she wished to contend her counsel had been incompetent in her analysis of those

records, she would have to waive privilege. She could anticipate, I told her, that the

prosecution would wish to counter her denial by placing the company's records before the Court and calling her former counsel.

[12]     Ms Hodgson will have to consider whether she does wish to pursue an appeal against conviction. For the present, as she accepts, her appeal against sentence lacks

any basis and must be dismissed. It is dismissed accordingly.

P.J. Keane J