McMahon v Police - [2017] NZHC 78

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000003 [2017] NZHC 78

BETWEEN
JUDITH GAIL MCMAHON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2017

Appearances:

S A Saunderson-Warner for Appellant
R P Bates for Respondent

Judgment:

3 February 2017

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Ms McMahon, pleaded guilty to three charges of theft. These offences were committed against members of her family it seems in order to fuel a gambling addiction. She was sentenced on 26 January 2017 in the District Court to two years’ imprisonment.

[2] She appeals against the sentence on the basis that it is manifestly excessive, that the starting point adopted was too high and that the sentence of imprisonment should have been commuted to impose home detention.

Background

[3] Turning to the background facts in this matter, the appellant, to a degree, provided care for her elderly father and her intellectually disabled brother. Her role included looking after their financial affairs and handling their day to day living
expenses.

MCMAHON v NZ POLICE [2017] NZHC 78 [3 February 2017]

[4] Between September 2007 and June 2011, the appellant took $13,250 from her brother’s NZ Mortgage Income Trust fund for her own use.

[5] Between January 2013 and July 2015 the appellant took $29,300 of her

father’s money from his account for her own personal use.

[6] Between January 2013 and July 2015, the appellant took $22,560 from her

brother’s account, again for her own personal use.

[7] In each case none of the withdrawal and use of these funds were authorised or proper. The total theft amounted to $65,110.

District Court Sentencing

[8] In giving his decision in the District Court Judge Crosbie was guided by the Court of Appeal’s decision in R v Varjan, which identified the aggravating factors relating to fraud and dishonesty convictions.1 These factors include the circumstances of the offending, its magnitude, the type and number of victims, the motivation, the amounts and period involved, the seriousness of any breach of trust, and the impact on the victims. Judge Crosbie held that the most relevant aggravating factors in the current circumstance were the amounts, the length of time involved, the type and number of victims, the breach of trust, and premeditation.

[9] In referring to a number of authorities, including Wilton v Police,2 R v Jones,3

Moule v Police,4 Police v Duke5 and McCreath v R,6 Judge Crosbie arrived at a

starting point of three years’ imprisonment.

[10] Credits were then applied for the appellant’s guilty plea, her attempts at rehabilitation, personal health issues and a “limited offer” to make amends, reducing
the sentence by a third to 24 months’ imprisonment.

1      R v Varjan CA97/03, 26 June 2003.
2      Wilton v Police [2015] NZHC 427.
3      R v Jones [2016] NZHC 1660.
4      Moule v Police HC Whangarei CIV-2008-488-35, 8 July 2008.
5      Police v Duke DC Nelson CRI-2009-042-000824, 12 May 2009.
6      McCreath v R

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 McMahon v Police

Details

AGLC: McMahon v Police [2017] NZHC 78
Case: [2017] NZHC 78
Decision Date: 3 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Judith Gail McMahon appealed against her two-year imprisonment sentence for theft. McMahon had stolen a total of $65,110 from her family members, including her father and her intellectually disabled brother, over a period of several years. She pleaded guilty to the charges and appealed on the basis that the sentence was manifestly excessive and that it should have been commuted to home detention. The District Court Judge had considered the aggravating factors, including the amount stolen, the duration of the theft, the number and type of victims, the breach of trust, and premeditation, and had arrived at a starting point of three years' imprisonment. Credits were then applied for McMahon's guilty plea, her attempts at rehabilitation, personal health issues, and a limited offer to make amends, reducing the sentence by a third to 24 months' imprisonment. The District Court Judge had considered whether to convert the sentence to home detention and ultimately decided that a sentence of imprisonment was required.

The legal issues in this case were whether the starting point was too high and whether the Judge had erred in refusing to impose home detention. The Court found that the starting point was within the range of the Judge's discretion, and that the refusal to impose home detention was an exercise of discretion. The Court was not convinced that the Judge had erred in law by refusing to impose home detention, as the appellant's previous convictions, the significant breach of trust, and the need for denunciation and deterrence warranted a sentence of imprisonment.

The appeal was dismissed, and the two-year imprisonment sentence was upheld. The Court noted that the culpability of the appellant was of such an extent that it must attract a high level of denunciation and deterrence. Refusing to impose home detention was therefore available at the Judge's discretion, and the Court was satisfied that it was appropriate in this case.

Orders