Kerwin v Police - [2014] NZHC 2415

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-10 [2014] NZHC 2415

BETWEEN
HAYDEN JAMES KERWIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 October 2014

Counsel:

R Harrison for Appellant
E Riddell for Respondent

Judgment:

2 October 2014

INTERIM JUDGMENT OF GODDARD J

Solicitors:
Inangahua Chambers, Blenheim for Appellant
Crown Solicitor, Nelson for Respondent

KERWIN v NEW ZEALAND POLICE [2014] NZHC 2415 [2 October 2014]

Introduction

[1] This is an appeal against sentence.

[2] Following a plea of guilty, the appellant was convicted in the District Court on one charge of theft by a person in a special relationship and sentenced by Judge Russell to a term of imprisonment of two years, three months’.1 He was ordered to pay $50,000 in reparation.

[3] The appellant must satisfy the Court that there is an error in the sentence imposed and that a different sentence should be imposed.

Facts

[4] The appellant was employed by Wadsco Commercial Vehicle Centre Ltd (the Company) between July 2007 and December 2013. He was described as a model employee for the first four years of his employment. However, in 2011 he began stealing from the Company in order to support a methamphetamine addiction. In the
course of 141 transactions the appellant stole a total of $90,637.20.2

[5] The method of defalcation had a level of sophistication. The appellant would sell parts owned by the Company and list the parts as stock in the computer system. He would also book parts to jobs that were in the workshop while selling the same parts to other companies and to individuals. He also altered the Company’s computer system on a number of occasions in order to conceal his offending.

[6] The appellant has no previous convictions.

First ground of appeal: loss suffered by the Company

[7] In assessing the relevant aggravating factors, the Judge quantified the loss to the Company as $122,183.20. That figure included the total amount stolen, as well
as further costs incurred by the Company directly related to the offending.

1 Crimes Act 1961, ss 220 and 223. The maximum penalty for this offending is seven years’
imprisonment.
2 This figure was agreed upon between the parties after some dispute.

[8] Mr Harrison initially submitted that the Judge should only have taken the agreed reparation sum between the parties into consideration. That clearly cannot be correct. The general approach to sentencing for fraudulent offending requires an assessment of culpability by reference to the amounts involved and to the losses suffered.3 It is the total impact of the offending on the victim that is relevant. To focus solely on the amount of reparation agreed is artificial.

Second ground of appeal: starting point

[9] The second ground of appeal is that the starting point was too high.

[10] The general approach to sentencing for fraudulent offending was outlined by the Court of Appeal in R v Varjan:

[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of…

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 Kerwin v Police

Details

AGLC: Kerwin v Police [2014] NZHC 2415
Case: [2014] NZHC 2415
Decision Date: 2 October 2014

CaseChat Overview and Summary

Hayden James Kerwin appeals his sentence of two years, three months’ imprisonment, and a reparation payment of $50,000, imposed by the District Court following a guilty plea to theft by a person in a special relationship. Kerwin was employed by Wadsco Commercial Vehicle Centre Ltd from July 2007 to December 2013. Initially, he was a model employee, but from 2011, he began stealing from the company to support a methamphetamine addiction, committing 141 transactions resulting in a total theft of $90,637.20. The court had to decide on the proper starting point for the sentence, the appropriate consideration of losses, the relevance of Kerwin's mental health issues to his sentence, and the adequacy of the discount for remorse and participation in restorative justice.

The court found that the starting point of three years and three months’ imprisonment was too high and should have been three years. Regarding the losses, the court rejected the argument that only the agreed reparation sum should be considered, emphasizing that the total impact on the victim is relevant. The court also rejected the argument for a discount for mental health issues, stating that while these issues might explain the offending, they do not exonerate it. The court found the discount for remorse and participation in restorative justice insufficient and decided to adjourn the appeal to allow for further information on Kerwin's employment, health, and reparation payments.

The court granted Kerwin continuation of bail with specific conditions and directed the District Court to pay $14,215.00 to Wadsco Commercial Vehicle Centre Limited from Kerwin's account. The sentence will be adjusted based on the reduced starting point, with further reconsideration of the discount for remorse and restorative justice to occur on 28 November 2014.

Orders