[1] The appellant was sentenced on 28 May 2014 by Judge Garland in the District Court at Christchurch to a term of two years, four months imprisonment on a charge of theft by a person in a special relationship. This charge carries a maximum sentence of seven years imprisonment.

[2] The appellant now appeals against this sentence on grounds specified in her notice of appeal that the sentence is manifestly unjust or excessive.

[3] This appeal against sentence is governed by the provisions of the Criminal

Procedure Act 2011 under which the appellant must satisfy the Court that:

(a) For any reason, there is an error in the sentence imposed on conviction; and

(b) A different sentence should be imposed.

MACKLEY v NEW ZEALAND POLICE [2014] NZHC 1561 [4 July 2014]

Background facts

[4] The appellant is a 28 year old woman who according to her counsel had the full time care responsibility for her two children.

[5] She was employed as an export sea freight clerk by Anglo Pacific International Limited but also assisted in the accounts department during the course of her employment. During 2013 she illicitly wrote out 86 cheques on her employer’s bank account in favour of herself, her friends or to other businesses for products she had purchased. Thus, during that period, she obtained from her employer wrongly the sum of $173,318.95. In the District Court Judge Garland found that she had no permission to issue the cheques to herself, her friends or third parties and that she knew what she was doing was wrong. When asked initially, it seems she declined to provide any explanation as to what she had done or why. A small portion of the money taken was recovered but the sum of $168,108.65 is still outstanding.

[6] The money taken was apparently used to support the appellant’s lifestyle, including what her counsel has described as an “addiction” with food and online shopping. It also included payments for two trips to Australia.

[7] Her probation report indicates that the appellant has no previous convictions and that her offending was as a result of poor and impulsive decision-making with little consideration for the impact of that offending on others. Letters of apology have been written.

[8] In his decision at paragraph [13] Judge Garland described this case as one with a “high degree of pre-mediation” and he said the offending was not spontaneous given that it had occurred over a period of about 10 months. On this aspect, Mr Stringer counsel for the appellant initially contended that the offending was not so much premeditated as being simply opportunistic although he then went on to acknowledge that it extended over that 10 months period and reflected the…

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 Mackley v Police

Details

AGLC: Mackley v Police [2014] NZHC 1561
Case: [2014] NZHC 1561
Decision Date: 4 July 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Kelly Jane Mackley against her sentence for theft by a person in a special relationship. The appellant had been sentenced to two years and four months imprisonment by Judge Garland in the Christchurch District Court. The appeal was based on the contention that the sentence was manifestly unjust or excessive. The appeal hinged on whether the District Court had erred in imposing the sentence and whether a different sentence should be imposed.

The court examined whether the sentence was appropriate given the appellant's culpability, the nature of the offence, and the mitigating factors considered. The appellant had stolen a substantial sum of money over a period of ten months through illicit cheques issued to herself and others. Despite the appellant's claims of mental health issues and an addiction to online shopping, the court found no causative link between these factors and the offending. The court also considered the appellant's guilty plea and the impact of the theft on her employer and staff.

The court concluded that the starting point of three and a half years imprisonment was appropriate and that the District Court had correctly applied discounts for the guilty plea and personal mitigating factors. The final sentence of two years and four months was deemed to be within the appropriate range for the offence. The appeal was dismissed as the sentence was not found to be manifestly unjust or excessive.

The court ordered that the appeal against sentence be dismissed.

Orders