Marriner v Police

[2012] NZHC 43

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-050 [2012] NZHC 43

BETWEEN  JAMES BRUCE MARRINER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 February 2012

Counsel:         P Keegan for Appellant

S A Law for Respondent

Judgment:      3 February 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 February 2012 at 11:45 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

Paul Keegan (New Plymouth) for Appellant

MARRINER V POLICE HC NWP CRI-2011-443-050 3 February 2012

C & M Legal (New Plymouth) for Respondent

Introduction

[1]      Mr Marriner  pleaded  guilty  to  15  indictably  laid  informations  alleging various species of fraud.  He was sentenced in the District Court at New Plymouth on 9 December 2011 by Judge AC Roberts to 20 months’ imprisonment.  In addition, he was ordered to pay reparation of $53,491.   He appeals the sentence of imprisonment and the order to pay reparation.

The offending

[2]      The victim of the appellant’s frauds was a company which he joined as an employee in 1989.  In 1991 the appellant was made administration manager.  In 2004 he began using his position to defraud his employer.  His frauds used a number of techniques.   One method, which he used frequently, was to create cheque request vouchers which resulted in payments into his bank account.   He employed this method over a period of six years ending in July 2011.

[3]      The appellant also pleaded guilty to four representative charges of accessing a computer for dishonest purposes.  In this way, on five occasions, he manipulated the company’s payroll system to increase his wages payments.  On four occasions he used  the  computer  system  to  create  fictitious  commission  payment  entitlements which he deposited in his own account.

[4]      The frauds were discovered following an audit.  The appellant pleaded guilty at the first available opportunity to the charges.  He was 48 years of age and without previous convictions.

[5]      The amount taken by the appellant was $74,235.95.  $5,387 was recovered through the appellant waiving severance and holiday pay.

[6]      The District Court Judge, in determining the period of imprisonment, took into account the following factors:

(a)       The  extent  of  the  overall  loss.    That  was  “within  the  realms”  of

$70,000;

(b)      The breach of trust involved;

(c)      The  vulnerability  of  the  appellant’s  employer.     The  employer’s business was in difficulty and this was known to the appellant.   He was a trusted employee and the principal of the business had told him that the principal would have to forego drawing a wage and that he and his wife would live off the wife’s income.   Nevertheless, the appellant continued to systematically take money;

(d)Premeditation.   The fraudulent activity occurred many times over a period of six years.  More than one method was used to defraud the employer;

(e)      The impact of the offending on the victim.  The status of victim, of course, was extended to the principals of the company.  The impact on them   of   the   offending,   both   financially   and   personally,   was significant.

[7]      Having considered various authorities, the District Court Judge adopted a

starting point of two years and six months’ imprisonment.  He then reduced that term

by 25% to 22-and-a-half months to take account of the early pleas of guilty.[1]

[1] This is as per Hessell v R [2011] 1 NZLR 607; (2010) 24 CRNZ 966 (SCNZ). The District Court Judge applied the discount before taking into account mitigating factors personal to the appellant. The law is that the discount for a plea of guilty should be the last discount applied. However, in the context of this case, nothing turns on the point.

[8]     The District Court Judge deducted a further two-and-a-half months’ imprisonment  in  recognition  of  the  mitigating  factors  personal  to  the  appellant. These included his lack of previous convictions and the waiver of unpaid wages and entitlements.

Home Detention

[9]      Mr Keegan, on behalf of the appellant, accepts that the starting point adopted by Judge Roberts was within the range available to him.  He also accepts that, no matter how he got there, the final period of imprisonment of 20 months was also within the available range.   The point advanced on appeal, however, is that the District Court Judge should have exercised his discretion to impose a period of home detention rather than a period of imprisonment.  There was a suitable address and the pre-sentence report considered the appellant to be suitable for electronically monitored sentences.

[10]     In rejecting the sentence of home detention, the District Court Judge said:[2]

Your offending was serious.   This consideration accommodates the aggravating factors that I have already referred to.  Secondly, a deterrent message and a deterrent penalty must ultimately be reflected in the process.  Employers are not there literally to be fleeced at will.  Thirdly, reinstatement  for  the  moment  is  but  a  vague  hope.    As  it  stands, something in the upper regions of the $70,000 mark, I cannot see it ever eventuating.  Finally, there do not appear to be any rehabilitative needs that might be properly addressed during that sentence.

[2] R v Marriner DC New Plymouth CRI-2011-043-2852 9 December 2011 at [33].

[11]     Mr Keegan submitted that in making his decision the District Court Judge failed to give sufficient weight to the personal mitigating factors of the appellant.  He submitted also that the District Court Judge had placed too heavy a weight on the magnitude of the offending.    He submitted that  the appellant,  really,  had  taken approximately $10,000 a year over a six-and-a-half year period and this level of offending  is  actually  modest  compared  to  the  depredations  of  other  fraudsters. Mr Keegan also emphasised the previous unblemished record of the appellant, his mature  age  and  the  voluntary  charitable  work  he  had  undertaken  between  his

apprehension and the sentencing.

[12]     I have reviewed the authorities cited by the District Court Judge and those referred  to  by  counsel.    I  am  satisfied  that  the  final  sentence  of  20 months’ imprisonment was within the range available to the District Court Judge.   I might have arrived at a slightly different sentence, and by a somewhat different route. However, I am satisfied that the sentence is not manifestly excessive.

[13]     So far as home detention is concerned, it is not the case that where a short term of imprisonment would otherwise be imposed home detention should be the preferred outcome.   Home detention is a less serious form of sanction than imprisonment.   But in cases which call for deterrence and denunciation to be emphasised, a sentencing Judge is justified in refusing home detention.  In my view this was such a case.

[14]     I concur with the District Court Judge that the factors of multiple offending over  more  than  six  years  by  a  senior  employee  in  a  trusted  position  call  for deterrence and denunciation to be emphasised.  I also agree that there is nothing in the appellant’s background or personal circumstances that make home detention a more appropriate sentence than imprisonment. This ground of appeal is dismissed.

Reparation

[15]     Ms  Law  for  the  Crown  accepts  that  the  appellant  is  impecunious.    The District Court Judge himself, in the passage quoted above, described reinstatement as “a vague hope” which he could not see ever eventuating.  Indeed, he took this into account in his decision not to grant home detention.  The sum of $53,491 ordered for reparation is taken from a schedule to the summary of facts.  It is the amount that the company was out of pocket following a payment by its insurer.

[16]     Reparation is supposed to be a means by which a person who has suffered financially as the result of criminal activity can speedily and easily recover his loss from the offender.  However, reparation should not be ordered if it is unrealistic to expect the offender to pay it. There has to be a realistic basis for payment.

[17]     In this case, it is common ground that the appellant has no assets.   Upon release from prison he might well seek employment.  Given the background to his incarceration, it would be futile to suppose that he would obtain well paid employment.

[18]     In  these circumstances  I am  satisfied  that reparation  was  not  a sentence available to the District Court Judge.  This does not mean that his employer has no remedy.  The appellant, like any offender, is still liable to compensate his victim for the financial loss he caused.  If the employer thought that the time and expense was justified it could take civil action against the appellant.  My decision simply reflects the fact that it is not appropriate for the Court to make a reparation order where there is no realistic possibility that it can be complied with.

Outcome

[19]     I summarise the outcomes of this appeal as follows:

(a)       The appeal against the sentence of imprisonment is dismissed;

(b)The appeal against the sentence of reparation is allowed.  The order that reparation be paid is quashed.

Brewer J