McHugh v The Queen - [2020] NZCA 456

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA281/2020
[2020] NZCA 456

BETWEEN	HEATHER COLLEEN MCHUGH Appellant
AND	THE QUEEN Respondent

Hearing:	25 August 2020
Court:	Courtney, Wylie and Muir JJ
Counsel:	M J Taylor-Cyphers for the Appellant B Tantrum and J T Parry for the Respondent
Judgment:	29 September 2020 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)

Introduction

Ms McHugh appeals her conviction in respect of one of 11 charges of false accounting[1] of which she was found guilty following a jury trial. Simultaneously she was convicted of 24 charges of theft by a person in a special relationship.[2] She also appeals the sentence of two years and nine months’ imprisonment imposed in respect of all convictions.[3]

Background

[1]Crimes Act 1961, s 260(a).

[2]Section 220.

[3]R v McHugh [2020] NZDC 8119 [Sentencing decision].

Ms McHugh was employed by the complainant Vertech Limited in an office manager role in December 2015. The role included administrative and human resource functions, budgetary management, processing payments to creditors and staff of the business, purchasing goods for the business and managing the payroll. To facilitate these functions, she was given access to the complainant’s bank account (to make authorised payments to the complainant’s credit card), iPayroll and Xero accounts and its online accounts with Countdown and Warehouse Stationery.
Between January 2016 and June 2017, Ms McHugh fraudulently misappropriated company funds by accessing the complainant’s accounting platforms and making unauthorised payments and purchases, including payments to her personal bank account and a creditor. Her dishonesty included falsely claiming 620.95 hours in overtime, adding 48 non-taxable allowances to her salary and paying a total of $5,864.40 to her son (who had previously worked for the company), after his cessation of employment.
The total value of her defalcation was $53,743.92. In addition, the complainant incurred investigatory costs of $12,191.89. Its overall loss was therefore $65,935.81. None of this sum has been recovered.

The conviction appeal

Preliminaries

Ms McHugh appeals her conviction on Charge 10.[4] This was in terms:
That Heather Colleen McHugh on or around 26 May 2017, at Auckland, with intent to deceive Vertech Limited, made a false entry in the Xero accounting system, the electronic ledger system for Vertech Limited.
Particulars: By creating an invoice, and coded a payment as Fuji Xerox.
[4]So identified in the Charge List. The charge is Charge 5 in the Crown Charge Notice.
The charge was under s 260(a) of the Crimes Act 1961 which provides:
260 False accounting
Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to deceive or cause loss to any other person,—
(a)makes or causes to be made, or concurs in the making of, any false entry in any book or account…

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 McHugh v The Queen

Details

AGLC: McHugh v The Queen [2020] NZCA 456
Case: [2020] NZCA 456
Decision Date: 29 September 2020 at 10 am

CaseChat Overview and Summary

Ms Heather Colleen McHugh appeals against her conviction and sentence. The Court of Appeal dismissed both the conviction and sentence appeals. The appeal against conviction centred on Charge 10, which alleged that McHugh made a false entry in the Xero accounting system with intent to deceive Vertech Limited. McHugh argued that the Crown did not establish that she created the relevant invoice and coded a payment as Fuji Xerox. The Court found that the jury could reasonably conclude that McHugh was responsible for the false entry, as she admitted to being the person who carried out all the transactions and entered the coding. The appeal against sentence argued that the District Court's sentence of two years and nine months' imprisonment was manifestly excessive. McHugh submitted that the starting point was too high, the sentence was inconsistent with other cases involving larger losses, and insufficient consideration was given to her personal circumstances and offer of reparation. The Court of Appeal found that the District Court's starting point was within range and that no discrete discount was appropriate in respect of McHugh's son's circumstances or her offer of reparation. As a result, both the appeal against conviction and sentence were dismissed.

Orders