McKelvy v The Queen

[2005] NZCA 209

IN THE COURT OF APPEAL OF NEW ZEALAND

CA107/05

THE QUEEN

v

MILES JOHN MCKELVY

Hearing:16 August 2005

Court:Anderson  P, Randerson and Williams JJ

Counsel:P J Kaye for Appellant

M T Davies for Crown

Judgment:17 August 2005 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Anderson P)

[1]       This is an appeal against a sentence of 18 months imprisonment imposed, following the appellant’s conviction on trial before District Court Judge Maze and a jury, in respect of six counts of using a document with intent to defraud (Crimes Act s 229A(b)) and one count of making to a Police officer a statement that would amount to perjury if made on oath in a judicial proceeding (Crimes Act s 111).

[2]       The appellant shared a business office with Mr R W Stirling whose activities included being the receiver of a private company.  Mr Stirling was not a chartered accountant but held himself out as a mortgage broker.  He had been appointed the receiver pursuant to a debenture which secured a private loan to the company by the parents of one of its directors.

[3]       The appellant and Mr Stirling decided to milk the receivership bank account.  The counts on which the appellant was convicted relate to the drawing of cheques on that account, for the appellant’s private purposes.  The total of the amounts drawn was $32,600.  But all the cheques were dishonoured because, in the meantime, the company gone into liquidation.  Mr Stirling helped himself to the company’s funds to the extent of  $11,056.

[4]       The appellant’s criminally false statement was made in the course of Police inquiries into Mr Stirling’s defalcations.  At the time it was made the Police were unaware of the appellant’s own offending.  He had been interviewed by a constable on several occasions and was presented by the Police with a brief of evidence reflecting information given at the interviews.  The brief was prepared for the purposes of prosecuting Mr Stirling.  In the event, Mr Stirling pleaded guilty to a single representative charge of fraud.  He was sentenced to 300 hours community service and a reparation order was made against him.

[5]       The appellant is no stranger to fraud.  In 1996 he was sentenced to 15 months imprisonment for altering documents with intent to defraud.  In 1998 he was sentenced to nine months imprisonment for forgery and uttering.  Those sentences of imprisonment were suspended but he received four months periodic detention.  In 2001 he was convicted of fraudulently using a document.  For that he was fined $10,000, sentenced to ten months periodic detention and two years supervision.  The false statement offence in the appeal now before this Court occurred during that period of supervision.

Reasons for sentence

[6]       Judge Maze identified the aggravating factors of premeditation and repetition.  She considered the debenture holders to be vulnerable victims whom the appellant would have known as being desperate to protect their position.  The Judge considered the previous offending as significant and aggravating.  Another aggravating factor was the offending during the currency of a previous sentence.

[7]       The Judge was aware of the sentence imposed on Mr Stirling.  She distinguished his position from that of the appellant.  Judge Spear’s sentencing remarks in relation to Mr Stirling had recorded that offender as being under the present appellant’s influence in ways which made him less culpable than the appellant’s.  Judge Maze distinguished between the two men in this way:

In my view the distinguishing factors must be your previous convictions, the fact that this matter went to trial, the amount that you intended to gain from your offending (in your case significantly more than was recorded in the sentencing notes in respect of Mr Stirling), the extent of your dishonesty and the efforts that you made not only to deprive the victims of their money, but also to avoid detection.  It would appear Mr Stirling fronted up to his charge, pleaded guilty and made expressions of remorse and offers to make amends.

[8]       Judge Maze considered that a sentence of 18 months imprisonment was, in the circumstances, the least restrictive outcome available.  This was because of a need for a sentence which held the appellant accountable, deterred him from reoffending, provided some protection to the community and denounced his criminality.  She recorded that no request for home detention had been made.  In any event she would not have been prepared to grant leave to apply, having regard to the gravity of the offending and the circumstances as a whole.

Grounds of appeal

[9]       Mr Kaye’s written submissions in support of the appeal rested on two propositions.  We note that when arguing the appeal orally he indicated difficulty in developing the first.  We think it appropriate, however, to record the nature of both grounds.

[10]     First, that the sentence of 18 months imprisonment is, of itself, manifestly excessive.  Second, that there is an unjust disparity between the sentence imposed on this appellant and that imposed on Mr Stirling.

[11]     As to the first proposition, Mr Kaye submitted that although sentences in the range of 18 months and two years imprisonment have been imposed on persons convicted of fraud, usually the amounts involved are greater than in this case, and they often take account of a particular feature of  responsibility or breach of trust.  For example, in R v Harlen CA76/01, 12 April 2001, a sentence of 15 months imprisonment related to the fraudulent obtaining of benefits amounting, in aggregate, to over $120,000.  An example of the latter category is R v Clayton CA324/98, 10 December 1998, where a sentence of two years imprisonment was imposed following trial on fraudulent use of a document.  In that case, cheques were drawn for a total of $40,000, but Mr Clayton was in a particular position of trust and responsibility as an employee of the Department of Inland Revenue. 

[12]     On the other hand, submitted Mr Kaye, sentences of community service have been imposed for offences involving reasonably significant sums.  For example, in R v Rikys CA428/01, 3 July 2002, a sentence of 200 hours community service was ordered after trial on eight counts of using a document involving, in aggregate, more than $17,000.  In R v Bailey CA306/03, 10 May 2004, a sentence of 400 hours community work was imposed following a guilty plea on one count of using a document relating to almost $18,000.

[13]     As to the question of unjust disparity between sentences for co-offenders, Mr Kaye pointed to the often cited judgment of this Court in R v Lawson [1982] 2 NZLR 219. There, at 223, the Court articulated the relevant test as whether a reasonably minded independent observer, aware of the all the circumstances of the offence and of the offenders, would think that something had gone wrong with the administration of justice.

[14]     The essence of Mr Kaye’s submissions in relation to unjust disparity by reference to Mr Stirling are that Judge Spear under estimated that offender’s involvement and over estimated this appellant’s involvement; and that Judge Maze was wrongly influenced by Judge Spear’s perception. 

[15]     Judge Spear had, in his sentencing notes, referred to the present appellant as “a man well known to this Court as a con man and as a fraudster with a significant conviction record”.  On the other hand, Judge Spear regarded Mr Stirling as “simply a bit player” and as someone who had been taken advantage of, used, manipulated and managed.

[16]     Judge Maze adverted to the sentencing remarks in relation to Mr Stirling, in the following terms:

I turn to the sentencing remarks of His Honour Judge Spear in dealing with Mr Stirling.  I do not know what material was before him.  I must assume that he had a basis for the points that he made.  He recorded Mr Stirling as being under your influence in a range of ways, and he concluded that Mr Stirling’s role was a lesser one.  In addition, in the case of Mr Stirling, there were a number of factors at work, which pointed to a non-custodial sentence.  Mr Stirling faced a single representative charge which he entered a guilty plea very early in the piece.

[17]     Mr Kaye submitted that although the appellant’s previous offending had to be acknowledged, it was not at the highest end of the scale.  The sentencing outcome of, on the one hand, 300 hours community service and on the other hand, 18 months imprisonment was, in counsel’s submission, sufficiently disparate to meet the Lawson test.

Submissions for the Crown

[18]     The Crown had submitted in writing that by reference to the leading case of R v Clutterbuck  CA372/99, 17 November 1999, a sentence in the range of 18 months to three years was justified for the false statement count on its own.  Clutterbuck had a sentence of 12 months imprisonment for unlawfully attempting to pervert the course of justice.  That was a threat to the offender’s former partner to withdraw an application for a protection order.  This Court remarked that a sentence of even 18 months may have been appropriate in that case.  But on the hearing of this appeal the Crown indicated a need to modify that submission by pointing out the three year maximum sentence under s 111.

[19]     The Crown’s submission as to the other offences, was that the sentence was in a range fairly available to the Judge.

Discussion

[20]     In this Court’s view, Mr Stirling may have been fortunate not to receive a firmer sentence.  A receiver is in a position of trust towards a company and its creditors, and will often be acting in circumstances of economic anxiety and stress on the part of those interested in the company.  Plainly, however, Judge Spear was influenced, not just by his perception of the present appellant’s culpability.   Mr Stirling’s guilty plea, his offer to make amends by way of reparation, his indicated willingness to assist the prosecution of this appellant, were also taken into account.

[21]     In our view Judge Maze’s references to Judge Spear’s sentencing notes do not show that her own perception of this appellant’s culpability was affected by those notes.  Her references were to show why Judge Spear had imposed on Mr Stirling the sentence he did; it was because he took the view that Mr Stirling had been influenced by the appellant.  It does not appear to us that this appellant’s sentence was in any way affected by Judge Spear’s view.

[22]     If Mr Stirling’s sentence had been unacceptably lenient, this Court would have been faced with the difficulty it confronted in R v Thompson and Pullen-Burry CA245/98, CA267/98, 22 December 1998.  However, we see no such problem here.

[23] Judge Maze identified points of distinction between Mr Stirling and this appellant, including those mentioned in [7]. One difference is, on the one hand, a plea of guilty, and on the other, a defended trial. Another obvious distinction is this appellant’s record of criminal dishonesty, which previous sentences, including a palpable term of 15 months imprisonment, had failed to deter him from repeating. Further, this appellant was convicted of the offence under s 111 Crimes Act. The appellant’s sentence could just as well have been 12 months on the other fraud charges and six months cumulative for the s 111 charge.

[24]     There is, in short, no basis for thinking that a reasonably minded independent observer aware of all the circumstances and of the offender would think that something had gone wrong with the administration of justice.

[25]     Nor is the term itself manifestly excessive.  All of the aggravating features identified by Judge Maze are manifest and incontrovertible.  Issues of personal deterrence of the appellant and protection of the public from future depredations leave us unable, on any principled basis, to interfere with the 18 month term.

Result

[26]     For these reasons the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington