Jooste v Police HC Auckland CRI 2010-404-318

[2010] NZHC 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-318

HENDRICK PITER JOOSTE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 November 2010

Counsel:         R Mansfield for Appellant

K Mills for Respondent

Judgment:      16 November 2010

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Between 2005 and 2008 Mr Jooste was working as a leasing Officer at the Auckland City Council when he misappropriated approximately $350,000.  After he left the employment of the Auckland City Council this misappropriation was discovered.  He faced one charge, a representative charge, which reflected all of his offending.     He  pleaded  guilty  and  he  received  a  sentence  of  three  years’

imprisonment in the District Court.

HENDRICK PITER JOOSTE V NEW ZEALAND POLICE HC AK CRI 2010-404-318  16 November 2010

[2]      Mr Jooste says the sentence was manifestly excessive and a sentence of home detention should have been imposed.  In particular the start sentence at four and a half years was too high and the mitigation deducted at 35% too modest.

Background facts

[3]      As the summary of facts records:

As leasing Officer, the defendant was in a position of some autonomy and trust as he was required to interact directly with tenants on all aspects of their tenancy as well as commercial leasing agents to assist in advertising and vetting tenants.

The role was also responsible to ensure that records were correct within the Auckland City Council’s systems so that leases were accurately recorded to form the basis of rental and tenancy records.

[4]      The appellant set up a company by the name of Property Rental Solutions Limited.  He then arranged for the payment of rent from residential and commercial properties owned by the Council to be made direct to this company.  The appellant went to considerable trouble to disguise his fraudulent scheme.  For example:

a)       he manipulated the start dates of tenancies on Council records and diverted the earlier rental to his company;

b)he noted on the City Council records that particular properties were vacant when they were tenanted with the rent paid directly to his company;

c)       when the rent from a Council property was paid to his company he paid part of it to the Auckland City Council;

d)       he manipulated the termination dates of tenancies;

e)       cash payments for tenancies were retained by him.

[5]      When confronted by the police the appellant refused to make a statement.  He later co-operated with the police.   The appellant was first charged on 6 May 2009 and ultimately pleaded guilty on 5 August 2009 but identified some disputed facts. This was resolved and eventually the appellant was sentenced in June 2010.   The resolution did reduce the claimed amount misappropriated from over $400,000 to

$350,000.

District Court Decision

[6]      In the District Court the Judge at sentencing identified the relevant facts.  By the sentencing date the amount identified having been stolen was $349,694.97.  As a result of civil proceedings taken by the Council the appellant had repaid somewhat over $100,000.

[7]      The Judge noted that this was pre-meditated offending to enjoy a lifestyle that the appellant could not afford but wanted.   There was no suggestion that the appellant had stolen for need although the appellant’s wife had required extensive specialist treatment.

[8]      The Judge took into account that the appellant had no previous convictions and was otherwise of good character and of low risk of re-offending.  He took into account his plea of guilty and ultimate co-operation together with reparation made, although that was made only after the City Council issued civil proceedings and obtained a judgment.

[9]      The Judge did not think the appellant was especially remorseful primarily focussing on the effect of his offending on himself rather than the victim.  The Judge rejected a submission by counsel for the appellant of a starting point of three and half to four years with a 40–50% reduction for mitigation.  The Judge considered that the proper starting point was four and a half years’ imprisonment.   He deducted 35% which took into account all mitigating factors and sentenced the appellant to three years’ imprisonment.

Discussion

Traditional analysis

[10]     The appellant submits that the Judge did not adopt the traditional R v Taueki[1] approach to sentencing by identifying a fact based starting point and then consider personal matters in aggravation and mitigation.   Thus he says I should effectively resentence.

[1] R v Taueki (2005) 3 NZLR 372.

[11]     I am satisfied the Judge did adopt a start sentence based on the facts albeit expressed  slightly unclearly.    After  reviewing  the  facts,  the  offender’s  personal circumstances, together with the relevant submissions the Judge said:

[18]     Having looked at the matter carefully, bearing in mind the amount involved in excess of $350,000, bearing in mind the period over which the offending occurred, and the other factors which I have already referred to by way of aggravation, it is clear that the aggravating matters clearly outweigh the mitigating ones, and it is my view that the appropriate starting point for sentencing as far as you are concerned, is a term of imprisonment of four and a half years.  I give you such credit as I can, in the vicinity of 35 percent, which takes into account some of the factors that I have already referred to. Having made that adjustment, I consider that the appropriate sentence is one of three years’ imprisonment.  You are sentenced to that today.

[12]     Clearly the Judge was referring to a fact based start sentence of four and a half years’ imprisonment.  He then deducted 35% for the personal mitigating factors which he had previously identified as the early guilty plea, some remorse and good character.  I therefore reject this ground of appeal.

Was the starting point too high?

[13]     This was very serious offending involving the theft of a large amount of money over three years with a moderately sophisticated plan to disguise the offending.  The total amount taken was over $350,000.  After the $100,000 payment of reparation there is no prospect of further payment being made.  I note the Council

had to issue civil proceedings to recover the money.   The net loss is therefore

$250,000.  This was also a serious breach of trust by a “trusted” employee.

[14]     I am satisfied a start sentence of four and a half years’ was well within the range available for such serious offending.  It had all the major aggravating features of a very serious dishonesty crime;  a significant amount stolen; pre-meditation; careful disguise; full reparation not possible; breach of trust; offending over a significant period.

Was the 35% discount in mitigation adequate?

[15]     The appellant’s submission is that he should have received a total of 40% in mitigation for a combination of factors including:

a)        his early guilty plea at or near the maximum of 33%;

b)        his co-operation with the Council in identifying his offending;

c)        payment of reparation of more than $100,000 prior to his sentencing;

d)       his lack of previous convictions.

[16]     As to personal circumstances it is proper to acknowledge that the appellant was under some considerable stress for a part but certainly not all of the period of offending.   His wife had a very difficult pregnancy requiring significant and experienced specialist treatment.  However, the offending occurred over a period of three years well beyond the appellant’s wife’s pregnancy.

[17]     It cannot be said that the appellant first revealed his offending, although it is suggested that he knew the offending would be identified and investigated when he resigned from the Council.   The fact is he made no effort himself to confess his offending.  It was only after enquiries by a tenant that an investigation revealed the dishonesty.  I accept he then co-operated with the Council in detailing his offending.

[18]     A reduction for the appellant’s guilty plea was justified but a full 33% could not be justified.  This was not a plea at the earliest possible opportunity but a plea some four months after charge and after this sixth appearance.   A discount of no more than 30% was appropriate.[2]

[2] R v Hessell (2009) NZCA 450.

[19]     There was assistance provided by the appellant to the authorities although after his offending was discovered.   However there was no suggestion this was exceptional in any way and only came after the discovery of the crime.   Some reduction is appropriate for that help and the fact that the appellant has no previous convictions.  However very little can be made of this claim given the appellant has been offending for over three years.   Finally some further reduction of the start sentence is appropriate for the payment of less than one third of the loss.  A discount, however, overall of 35% was also well within the range available to the Judge and has not been shown to be wrong.

[20]     I am therefore satisfied that the sentence of three years’ imprisonment cannot be said to have been manifestly excessive.

Ronald Young J

Solicitors:

R Mansfield, Barrister, PO Box 2674, Shortland Street, Auckland 1140

email:  ron[email protected]

K Mills, Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140 email:  ka[email protected]