Mackley v Police

[2014] NZHC 1561

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000051 [2014] NZHC 1561

BETWEEN

KELLY JANE MACKLEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 July 2014
Appearances:	DJH Stringer for Appellant K B Bell for Respondent
Judgment:	4 July 2014

JUDGMENT OF GENDALL J

Introduction

[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 appellant’s addiction not only to online shopping but to the offending itself.

The sentence

[9]      In the District Court Judge Garland adopted a starting point here of three and a half years.   In my view this is in line with the authorities that were before the District Court and in particular R v Davis.1    And, before me in any event no issue was taken with this starting point.  This is not surprising given that in his written submissions on sentencing to the District Court dated 17 March 2014, Mr Stringer suggested that a higher starting point of four years imprisonment was appropriate with a small uplift for aggravating factors of three months.  Notwithstanding this, the Judge  in  my view  correctly,  identified  that  there  were  no  aggravating  personal

factors and he did identify the following matters as potentially available mitigating factors:

(a)      The appellant had no previous history of offending – although this is in reality the absence of an aggravating factor as opposed to being a mitigating factor.

(b)The appellant’s mental health – Judge Garland noted that her health did  not  contribute  materially to  the  offending,  there  was  a  report before the Court that confirmed this, and accordingly he gave no credit for this factor.

(c)      An offer to pay reparation at $50 per week was made.   On this the Court ordered reparation of $30,000 to be paid in instalments of $50 per week which equates to 18% of what was owing.

(d)As to remorse, Judge Garland noted that he had serious reservations about just how genuine the appellant’s claim to remorse was.   It is noted also that from victim impact statements the genuine nature of this remorse is doubted.

[10]     In addition the appellant pleaded guilty at an early opportunity and it appears

Judge Garland gave her a full 25% discount for this.   In total, the appellant was

given a global discount in the District Court amounting to 33%.  Structuring this in the manner suggested in R v Clifford2  means that an approximate 10% discount for personal mitigating factors and the further 25% discount for the guilty plea were afforded by the District Court here.

[11]     From the starting point of three and a half years Judge Garland therefore reduced the sentence by 14 months for mitigating factors including the guilty plea to arrive at his final sentence of two years, four months imprisonment.

This appeal

[12]     In advancing this appeal the appellant raises the following arguments:

(a)      In terms of s 7(1)(h) Sentencing Act 2002 the Court is to consider rehabilitation and reintegration of an offender and on this basis a final sentence allowing home detention to be considered should have been chosen.

(b)Also, in terms of s 8(g) Sentencing Act the Court “must impose the least  restrictive  outcome  that  is  appropriate  in  the  circumstances” when imposing a sentence.

(c)      Given these matters, the appellant submits that Judge Garland did not provide sufficient discount for mitigating factors and as a result the sentence was either unjust or excessive.

(d)On these aspects the appellant entered a guilty plea at the earliest possible opportunity, was co-operative with police and her employer and is entirely remorseful.

(e)       She has no prior convictions.

(f)      She  has  written  letters  of  apology  to  the  victims  and  has  sought medical help and other help in the form of counselling.

(g)She has been diagnosed with Unipolar Depression and also she says she has obsessive compulsive disorder.  This has led to an “addiction” with food and online shopping which has been where a large part of the money misappropriated has gone.

[13]     Before  me,  Mr  Stringer  for  the  appellant  placed  some  stress  upon  his contention that the appellant suffers from obsessive compulsive disorder which he says has driven her offending in this case and he complains that Judge Garland did not give sufficient weight to this in his sentencing.  Further, Mr Stringer contended that as was noted in Francis v R,3 the position of the appellant’s children for whom she has primary responsibility should have been taken into account to a greater extent than might have been addressed by Judge Garland in this case.

[14]     On these aspects, in his decision Judge Garland appeared to take the view that no discount for mental health factors was appropriate here.  Leaving this to one side, what is clear to me in this case is that if mental health factors do exist, in any event there needs to be a causative link between the offending and those mental

health issues. This is clear from decisions such as E v R4 and R v FM.5

[15]     Submissions advanced before me by Ms Bell for the Crown on this appeal emphasise that there is a lack of evidence in this case as to any causative link between the appellant’s alleged mental health issues and her offending.   On this, Ms Bell noted that reports before the Court indicated quite clearly that the first occasion on which the appellant illicitly wrote out a cheque for herself occurred when she was behind in her house rent and the act was seen as purely an impulsive one.  On her own admission it seems that some time was allowed to go by when the appellant was worried as to whether this defalcation would be picked up or not.  As she had escaped detection, the appellant began to write out additional cheques for increased amounts on the basis that she had avoided discovery at the outset.  Ms Bell contended that, as a result, none of this could be seen as a one-off incident.   The appellant had deliberately waited to see if her defalcation was to be detected after the

first cheque was written and then once safe on this, her offending increased.

3      Francis v R [2011] NZCA 353 (CA) at [13].

4      E v R [2010] NZCA 13.

5      R v FM [2008] NZCA 148.

[16]     As a result the Crown position is that Judge Garland was quite correct not to allow any credit in this case for what were alleged to be mental health factors.

[17]     On balance, I accept this submission.  This was major offending perpetrated over a reasonably lengthy period of time involving a substantial breach of trust.  I do not disregard the potential mental impairment under which the appellant may have suffered here.  However the obsessive compulsive disorder from which it is said the appellant suffered which might manifest itself in ongoing dishonesty of the type seen here might well to an extent in any event require something of a deterrent sentence

rather than a mitigated response – see R v FM.6   But I leave that aspect to one side.

[18]     At the time of sentencing in the District Court, Judge Garland had before him a psychiatric report dated 22 May 2014 from Dr Helen Austin, a consultant forensic psychiatrist.  In her conclusions at page 8 of the report, Dr Austin stated in part:

Whilst it is possible that her mood disorder and obsessive/compulsive tendencies  may  have  contributed  to  some  degree,  Ms     nevertheless understood that her actions were wrong.  However, she continued offending over a prolonged period of time and she chose not to seek help or to disclose her offending.

[19]     And, in the pre-sentence report which Judge Garland had before him it was noted:

She (Ms Mackley) said that she continued to offend as “it was just too easy” and acknowledged she had felt a sense of entitlement and had achieved an “adrenaline   rush”   which   acted   to   support   her   continued   offending. Ms Mackley referred to using the proceeds of her offending to support the lifestyle she developed which involved a preoccupation (“addiction”) with food, and with online shopping, plus two trips to Australia.  She confirmed the proceeds from the offending had all been spent.  In hindsight, Ms  stated that she understood she had not been entitled to take the money and acknowledged the betrayal involved with the offending.

[20]     As to possible mental health difficulties the appellant was labouring under, in his  decision  Judge  Garland  referred  to  these  but  noted  that  she  had  been appropriately medicated at the time of her offending and that her health condition did not contribute directly to this offending.   In my view this was an appropriate conclusion to reach, and I do not take issue with Judge Garland’s decision to make

no further allowance on account of the appellant’s suggested mental health difficulties.   In addition as I understand it, the appellant’s children are now being cared for by grandparents which is a satisfactory situation in terms of the comments noted in Francis v R referred to at [13] above. In my view Judge Garland did not err with regard to the position of the appellant’s children in his sentencing decision.

[21]     Finally, I come to the conclusion here that Judge Garland’s sentence was not manifestly unjust or excessive, taking into account all the circumstances here including the appellant’s culpability (on this see R v Varjan7). Although it is difficult to establish a benchmark for serious dishonesty offending given that the circumstances of and culpability in such offences of dishonesty vary widely, in this case  I  am  satisfied  that  the  appellant’s  culpability  was  reasonably  high.    The offending was planned and not spontaneous.  It involved what in the end was a large

amount of money little of which has been recovered.  It involved a gross breach of trust  and  lastly the offending has  had  a significant  impact  upon  the appellant’s employer company, its owner manager and other staff members and as I understand the position, it has placed the future of the company in jeopardy.

[22]     In  summary  I  am  satisfied  here  that  the  starting  point  adopted  by Judge Garland of three and a half years imprisonment was appropriate, the discounts given for the guilty plea and for personal mitigating factors were ones that were available to the District Court and the final sentence of two years, four months imprisonment was one that was within the appropriate range available to that Court.

[23]     On this basis the appeal against sentence is dismissed.

...................................................

Gendall J

Solicitors:

David Stringer, Christchurch

Raymond Donnelly & Co, Christchurch