James v The Queen - [2017] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2017-443-009 [2017] NZHC 1186

UNDER THE Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence pursuant to
Section 244 of the Criminal Procedure Act
2011

BETWEEN

VIRGINIA ROSE JAMES Appellant

AND

THE QUEEN Respondent

Hearing: 30 May 2017

Appearances:

J M Woodcock for the Appellant (via AVL from New Plymouth) R K Thomson for the Respondent

Judgment:

1 June 2017

JUDGMENT OF DOBSON J

[1] This is an appeal from a sentence of two years and nine months’ imprisonment imposed in the District Court at New Plymouth by Judge C D Sygrove on 31 March 2017. The sentence was imposed for convictions on two counts of forgery and one count of obtaining by deception which related to Ms James creating false documents that obtained for her some $705,000. The day after the hearing I delivered a result judgment indicating that the appeal was allowed, and directing that a further report be prepared as to the suitability of an alternative address at which a sentence of home detention could be served. I now provide my reasons.

[2] The appeal was brought on the basis that there was an error in the sentencing and that a different sentence should be imposed.1 Three criticisms of the sentencing

1 Section 250(2) Criminal Procedure Act 2011.

JAMES v THE QUEEN [2017] NZHC 1186 [1 June 2017]

were advanced: first, that the starting point adopted for the offending was too high; secondly, that the discounts provided to Ms James for personal mitigating features were too low; and thirdly, that the Judge was wrong in imposing reparation in excess of the uninsured loss suffered by Ms James’ employer.

[3] A regrettable feature of Ms James’ personal circumstances is the way in which she was treated in the period immediately before the hearing of the appeal, which is a matter that it would be quite wrong to ignore. I address that matter in considering the mitigating circumstances, appreciating that it was a matter not present on sentencing.

Circumstances of the offending

[4] From August 2013 to June 2016, Ms James was employed in administration support at PowerCo, a large electricity and gas distributor based in New Plymouth. A part of her role was to create purchase orders and receive invoices for accounts. Between April 2015 and June 2016, Ms James created forms for two false entities as suppliers of PowerCo. Those forms included her personal bank details and an authorising manager’s signature. She issued 26 purchase orders and submitted a total of 19 invoices to PowerCo’s accounts payable department in the names of these entities, and retained the payments deposited for her personal use. The total amount paid by PowerCo over this period was $705,104.12.

[5] In February 2016, PowerCo accountants emailed what they thought to be the first of the false entities, querying the GST status of the company. Ms James replied under the pseudonym “Brendon Smith” that the company had been bought…

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 James v The Queen

Details

AGLC: James v The Queen [2017] NZHC 1186
Case: [2017] NZHC 1186
Decision Date: 1 June 2017

CaseChat Overview and Summary

The case of James v The Queen involved an appeal against a sentence of two years and nine months' imprisonment imposed for convictions on forgery and obtaining by deception. The appellant, Virginia Rose James, created false documents that obtained approximately $705,000 for herself. The appeal was brought on the basis that there was an error in the sentencing and that a different sentence should be imposed. The appellant argued that the starting point adopted for the offending was too high, the discounts provided for personal mitigating features were too low, and the judge was wrong in imposing reparation in excess of the uninsured loss suffered by the employer. The court examined the circumstances of the offending, the judge's starting point, and the personal circumstances of the offender. The court concluded that the starting point was arguably towards the top of the appropriate range, but that any modest overstatement did not necessarily translate into the end sentence being wrong. The court considered the appellant's personal circumstances, including her good character, remorse, and commitment to reparation. The court also considered the high-risk nature of the appellant's pregnancy and the risk of complications that may arise during her pregnancy.

The court concluded that the appellant's high-risk pregnancy justified a 20% reduction of what would otherwise be the appropriate sentence. The court calculated the appropriate sentence to be 23.5 months' imprisonment, which qualified the appellant for consideration of a sentence of home detention as an alternative to that reduced length of prison sentence. However, the court was unable to impose a sentence of home detention immediately due to the withdrawal of consent from the appellant's husband. The court allowed the appeal against sentence and imposed a sentence of 23.5 months' imprisonment, with the possibility of substituting a sentence of nine months' home detention if a suitable address could be confirmed. The court also varied the order for reparation to reduce it to the sum of $57,500.

Orders