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  by another company that was a supplier of PowerCo.

[6]      Ms James then ceased processing purchase orders for the first entity.   She then completed a new supplier form for a second entity that was recorded as a creditor of PowerCo, and used the same modus operandi to create false invoices and thereby receive payments.

[7]      Some of the 26 purchase orders were for sums over Ms James’ delegated authority ($2,000).  She obtained the PIN of her supervisor by searching his desk. She then used that PIN to authorise those payments.

[8]      Ms  James  was  charged  in  September  2016.    She  requested  a  sentence indication on 11 October 2016, but pleaded guilty on 13 January 2017 before the sentencing indication took place.

The Judge’s starting point

[9]      Judge Sygrove acknowledged that there is no tariff case for this type of offending and reviewed a range of cases that were relied on respectively by the Crown and defence counsel to contend for starting points of five or four years’ imprisonment.    The  comparative  sentencings  or  appeal  decisions  included  R  v Staples where a loss of $656,000 in somewhat similar offending led initially to a

sentence of five years’ imprisonment, reduced to four years on appeal.2    In Tither v

Police a starting point of four years’ imprisonment was imposed on a 71 year old offender.3   In McGregor v R a sentence of three years and 10 months for somewhat similar offending involving $472,000 was upheld on appeal.4

[10]     The Judge was inclined to treat the decision in R v Down, cited by defence counsel, as something of an outlier.  There a sentence of one year and 11 months’ imprisonment was imposed for four charges relating to fraudulent loans raised from a finance company which created a loss of $850,000.5

[11]     The Judge was plainly correct to treat the present offending as involving a very  serious  breach  of  trust.    It  was  apparent  from  victim  impact  statements completed by the supervisor whose PIN she appropriated and other co-workers that her offending had very serious adverse effects on the morale and trust that was important to the group of PowerCo employees with whom she worked. Although the

offending did not persist for as long as it did in some of the comparative cases, it was

2      R v Staples CA 215/04, 30 August 2004.

3      Tither v Police [2014] NZHC 904.

4      McGregor v R [2015] NZCA 565.

5      R v Down DC Auckland CRI 2009-004-7739, 16 July 2010; upheld on appeal Down v R [2011] NZCA 138.

substantial in scale, premeditated, and of some complexity.  The Judge saw the range of starting points as being between four and a half and five years’ imprisonment and settled on four years nine months.

[12]     That starting point was arguably towards the top of the appropriate range that reflects the seriousness of the offending.  Any modest overstatement in the starting point, however, does not necessarily translate into the end sentence being wrong, but it is a factor.

Personal circumstances of the offender

[13]     Ms James had no previous convictions and a significant number of glowing testimonials from friends and family provided on sentencing which attested to her good character.   She had demonstrated real remorse in seeking counselling for a gambling addiction that was blamed as a cause of the offending, and was committed to a significant measure of reparation.  She had pursued the prospect of a restorative justice meeting but her co-workers who would have attended as victims were unwilling to participate.

[14]     Ms James has three children, all of whom were born by caesarean section. Her older two are from her first marriage.   Their biological father had little to do with them from the time the marriage broke up until Ms James met and married her current husband who is now the caregiver of all the children.

[15]     Ms James and her husband have one child together, born in 2014.  That birth

was  described  as  “very  traumatic”.    In  a  reporting  letter  dated  6  March  2017

Ms James’   obstetrician,   Dr   Edward   Williams,   described   the   very   serious complications that arose in the surgery involved in her third birth, due to the poor healing of an internal scar from an earlier caesarean section. The doctor noted that in

2014 he strongly recommended Ms James should avoid further pregnancies, but acknowledged her then desire to have more babies.

[16]     Ms James suffered a miscarriage in March 2015.   In her affidavit sworn in support of her appeal,6  she states that she and her husband have been trying to get pregnant for several years.  She sought the advice of Dr Williams.  She claims that she thought she was unable to conceive, but also said that although she may be able to conceive she was very unlikely to carry a baby to term.

[17]     Ms James became pregnant near the end of 2016, after she was interviewed by Police in September 2016. Although Dr Williams does not explicitly describe her pregnancy as high risk it is implicit from his letter that, given Ms James’ history, the risk  of  complications  is  serious.     Ms  James’  general  practitioner,  Dr  Janita Terblanche, wrote a letter dated 8 March 2017 outlining the problems, and describing Ms James’ status during this pregnancy as “high risk”.  The medical reports justify a real  concern  that  her  uterus  will  rupture  and  she  will  need  emergency  surgery. Dr Terblanche states this is a life threatening situation, and Ms James would need to be treated within 36 minutes should it come to pass.

[18]     Ms  James  states  in  her  affidavit  that  in  a  recent  consultation  with  an obstetrician, that doctor expressed concerns and asked whether Ms James wanted to continue with the pregnancy. 7   Ms James states that although she is pro-choice, she is not prepared to terminate the pregnancy.

[19]     I apprehend that the relatively acute nature of the risk facing Ms James as her pregnancy progresses may now be put in somewhat starker terms by the medical opinions available on the appeal than was the case before the sentencing Judge. Undoubtedly however, the risks caused by her previous pregnancies and the medical advice not to fall pregnant again were known at sentencing. The Judge commented:8

… pregnancy in the 21st  century is a question of choice and you must have known when you were interviewed about this major fraud in September

2016 prior to your pregnancy that you would be more than likely to go to

jail.   So the responsibility for your pregnancy and your baby’s welfare is

entirely yours and although I have concern for the unborn child that is a matter for you to deal with, not for me or this Court.

6      Affidavit of Victoria Rose James (22 May 2017) at [5]–[6].

7      Affidavit of Victoria Rose James (22 May 2017) at [12]–[13].

8      R v James [2017] NZDC 7049.

[20]     The  Judge  identified  as  material  mitigating  circumstances  Ms  James’ remorse, the fact it was her first offending, her ability to pay reparation and “to some extent taking into  account” the pregnancy.   These were treated as  cumulatively justifying a reduction of 13 months (which I calculate to be some 22 per cent) producing an end sentence of 44 months. From that, a further discount of 25 per cent was deducted for her early guilty pleas, producing the end sentence of 33 months’ imprisonment.

[21]     It was indicated for Ms James that she had the capacity to pay reparation up to a maximum of $70,000.   In addition to the term of imprisonment, the Judge ordered that she pay that amount comprising $57,500 to be paid to PowerCo for its uninsured component of the loss suffered and $12,500 to be paid also to PowerCo so that they could compensate the co-workers that were directly affected by her offending, in a manner that was at PowerCo’s discretion.

Relevance of her high risk pregnancy

[22]     In arguing the appeal, Ms Woodcock urged that the Judge had given too little credit for each of the mitigating factors recognised.   However, the principal focus was on the disproportionately severe impact on her of a prison sentence given the high risk nature of her pregnancy.

[23]     In opposing the appeal, the Crown filed an affidavit from Monika Williams, who is the team leader of health services at Arohata Women’s Prison.  That affidavit annexes a health status form used to convey her health condition to all those supervising Ms James at the prison.   It acknowledges that she is in a high risk pregnancy with an estimated delivery date of 23 September 2017 and that Ms James “is at severe risk of life threatening complications during this pregnancy”.   Those supervising Ms James are urged to look out for a range of symptoms and not to delay in calling an ambulance even if health staff are on site.

[24]     Ms Williams’ affidavit also details the extent of health services available at Arohata Prison, which involves medical staff being on site from 6:30 am to 9:00 pm Monday to Friday and 6:30 am to 7:30 pm during the weekend.

[25]     The affidavit was relied on by Ms Thomson in responding to the appeal, to argue that an adequate level of care, comparable to that which would be available in the community, was available at Arohata.  More generally, Ms Thomson submitted that the Corrections Department is equipped to deal with patients with a range of serious physical and mental health problems.  The state of Ms James’ pregnancy was not so much more risky than normal for the medical services available to be treated as inadequate to the extent that serving the sentence would be disproportionately severe on her.

[26]     Regrettably Ms James’ experience in the 36 hours before the appeal was

argued raises graphically the issue of whether such assurances can be relied on.

[27]     At an unusually early hour on the morning of the day before the hearing of the appeal, Ms James was woken and advised that she was shortly to leave Arohata to be transported to New Plymouth for the hearing of the appeal.  The transporting of defendants in custody for court appearances is controlled by the Court Registry, and ought only to occur on the issue of an Order to Produce (OTP) the defendant at the nominated court at the nominated time.  No such order had been issued in Ms James’ case.  I was advised by Ms Woodcock that she had discussed with Ms James whether it was appropriate to request that an OTP be issued so that she might attend, and they agreed  that no  such request would be made.    I am satisfied none of the usual procedures under the control of the Court Registry were initiated.  Had the issue of Ms James’ attendance at the appeal hearing been raised with the Court, consideration would have been given to having her attend in Wellington (where I conducted the hearing, partly by AVL), which would have limited Ms James’ journey to some

20 minutes.

[28]     In any event, as reported by Ms Woodcock from the bar, Ms James’ repeated requests  to  contact  her  counsel  to  discuss  the unexpected move  before she left Arohata were all declined. Apparently over protests that it could harm her condition, she was handcuffed and placed in a small cage in the rear of a prison van where she remained  until  the  van  stopped  at  Whanganui.    According  to  Ms  Woodcock, Ms James again requested permission to contact her counsel to question why she was being  transported,  and  again  that  request  was  declined.    She  was  taken  from

Whanganui to New Plymouth by car and was placed in the remand facility in New

Plymouth where she remained whilst the appeal was argued.

[29]     The  source  and  reason  for  directing  personnel  at  Arohata  to  transport Ms James to New Plymouth remains unclear.  Apart from accepting the plain fact of the transporting of Ms James from Arohata to New Plymouth in circumstances not unauthorised by the Court, Ms Thomson had no instructions at the time of argument of the appeal as to any explanation for it.

[30]     I accept Ms Woodcock’s submission that the unexplained transporting of Ms James from Arohata to New Plymouth is so inconsistent with assurances that those supervising Ms James’ custody at Arohata appreciate her condition and can adequately care for her that such assurances cannot be accepted as reliable.  It seems unlikely that those responsible for Ms James’ care at Arohata initiated moving her. However, allowing for it being directed from elsewhere and even if this is treated as an isolated incident, it demonstrates that whatever system is in place is prone to mistakes.  Given the urgent need for surgical intervention if the feared complications with Ms James’ pregnancy occur, requiring her to accept that risk renders a prison sentence disproportionately severe in her circumstances.

[31]     Ms  Thomson  responsibly  accepted  that  if  the  Court  finds  Ms  James’ predicament with her high risk pregnancy does make it disproportionately severe for her to serve a prison sentence, then the circumstances in which she became pregnant cannot be held against her to disqualify her from the benefit of such a finding. Therefore as her circumstances are presented now, a materially different evaluation to that confronting the sentencing Judge is required to ensure there is not an error. With respect to the sentencing Judge, I am satisfied that a different outcome is now required.

A fresh look

[32]     In undertaking the calculation of an appropriate sentence afresh, a starting point of four years and six months appears appropriate, but the Judge’s starting point of four years and nine months cannot be criticised.  I therefore adopt a four year and nine month starting point.

[33]     Ms James’ lack of previous convictions and the thorough endorsements of her good character are in part offset by the length of time during which the offending occurred, although other instances of such offending have often continued for materially longer.

[34]     I agree with the Judge that she has shown genuine remorse and the magnitude of that is emphasised by the extent to which she has committed to paying reparation. It is also supported by her preparedness to undertake restorative justice initiatives. Dealing with all of these mitigating circumstances and before coming to the predicament of Ms James’ health, I would recognise a discount of 25 per cent.

[35]     The disproportionately severe consequences of serving a prison sentence do not of themselves warrant a recalculation to bring the length of sentence within the range in which home detention would be an appropriate alternative.  However, on any view I consider the acute health risk arising from Ms James’ condition whilst pregnant justifies a 20 per cent reduction of what would otherwise be the appropriate sentence.

[36]     Accordingly  those  two  combined  deductions  of  45  per  cent  that  is,

25.5 months would take the Judge’s original starting point of 57 months to 31.5 months.

[37]     Thereafter  there  can  be  no  argument  about  granting  a  final  25  per  cent discount on account of early guilty pleas.  That reduces the appropriate sentence to

23.5 months, which qualifies Ms James for consideration of a sentence of home detention as an alternative to that reduced length of prison sentence.

[38]     I am satisfied that home detention is an appropriate option.  Imposing such a sentence at the moment is not possible given the advice from Ms Woodcock that the consent provided by Ms James’ husband at the time the PAC report was completed has  now  been  withdrawn.    My result  judgment  directed  that  an  updated  report addressing the suitability and other relevant conditions for an alternative address proposed on behalf of Ms James be prepared.

[39]     If that report were to confirm the suitability and availability of an alternative address by, say, 14 June 2017, then Ms James will have served some two and a half months  of  her  original  prison  sentence.    The  appropriate  starting  point  for  a substitute sentence of home detention would be of 12 months’ duration, but I would reduce that by three months to take account of the period of imprisonment already served.   Accordingly the final substituted sentence would be one of nine months’ home detention.  Ms Thomson filed a helpful memorandum after the hearing, noting the restrictions on imposing a sentence of home detention when an approved address had not been confirmed.   I intend this indication to conform with those statutory requirements.

Reparation

[40]     Ms  Woodcock  submitted  that  the  Judge  erred  in  ordering  an  extent  of reparation  beyond  the  uninsured  loss  suffered  by  PowerCo.    As  Ms Thomson acknowledged,  s  32(2)  of  the  Sentencing Act  2002  excludes  the  prospect  of  a sentence of reparation in respect of emotional harm or loss or damage consequent on emotional harm unless the person suffering the emotional harm comes within the

definition (of “victim”) in that Act.9   Ms James’ co-workers do not come within that

definition.

[41]     Ms Thomson also submitted that the amount of reparation ordered could not be criticised as excessive when the total of $70,000 was the amount Ms James volunteered to pay.  However, the indication on her behalf of her preparedness to pay an amount up to $70,000 cannot validate the part of that order that is intended for persons who are not victims.  Accordingly, I also quash the terms of the reparation order made and substitute for it the order that Ms James pay reparation of $57,500 to PowerCo.

Summary

[42]     I  allow  the  appeal  against  sentence  and  quash  the  sentence  originally

imposed.  In substitution, I impose a sentence of 23.5 months’ imprisonment.  If the

further report I have directed to be prepared confirms the availability of a suitable

9      Sentencing Act 2002, s 4(1) definition of “victim”.

address for Ms James to serve a sentence of home detention, then under s 80I of the Sentencing Act 2002, I will cancel the sentence of imprisonment I am imposing on appeal and substitute for it a sentence of nine months’ home detention.  The Judge’s order for reparation is varied by reducing it to the sum of $57,500.

Dobson J

Solicitors:

JM Woodcock, New Plymouth

Crown Law, Wellington