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Mears v R

Mears v R

Case [2014] NZCA 30 24 February 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA722/2013
[2014] NZCA 30

BETWEEN	JANINE MEARS Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	S A Saunderson-Warner for Appellant M H Cooke for Respondent
Judgment:	24 February 2014 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Janine Mears pleaded guilty in the District Court at Dunedin to three charges of theft by a person in a special relationship, one charge of dishonestly using a document with intention to obtain pecuniary advantage and one charge of forgery. She was sentenced by Judge MacAskill to a total of four years and three months’ imprisonment with a minimum period of imprisonment of two years.[1]
[1]R v Mears DC Dunedin CRI-2012-012-866, 27 September 2013.
Mrs Mears appeals on the grounds that the sentence for the most serious theft charge of four years’ imprisonment was manifestly excessive and that the Court should not have imposed a minimum period of imprisonment. She does not challenge the cumulative sentence of three months’ imprisonment for the forgery charge. Concurrent sentences of nine months’, six months’ and two years’ imprisonment were imposed on the other theft charges.
Over a six year period, Mrs Mears fraudulently stole $380,000 from a small business where she was employed as credit controller. She used four methods: on 490 separate occasions she changed the payee on cheques payable to her employer to her own name; on 41 occasions she arranged for customers who used internet banking to pay into her own bank account; on 26 occasions she stapled customers’ eftpos receipts onto accounts that were in her family’s name, thereby avoiding paying for debts incurred in relation to her family; and she failed to account for numerous sums of cash given to her by customers. These four methods gave rise to three charges of theft by a person in a special relationship and the charge of dishonestly using a document with intention to obtain pecuniary advantage, which related to the misuse of eftpos receipts.
As a result of the thefts, Mrs Mears’ employers lost their business and their financial security. Other employees also lost their jobs.
While the theft charges were under investigation, Mrs Mears’ bank froze one of her accounts. Shortly before her sentencing, she forged a letter and signatures on Public Defence Service letterhead advising that the criminal matter had been resolved and the frozen funds could be released. This led to the forgery charge, to which Mrs Mears pleaded guilty on the day of the sentencing.
In sentencing Mrs Mears, Judge MacAskill took into account the devastating effects of the offending on the family who owned the small business and their employees. The Judge also noted that Mrs Mears knew her actions were causing serious financial difficulties, describing her thieving as “calculated and callous”.[2]
[2]R v Mears, above n 1, at [14].
Judge MacAskill did not consider…

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 Mears v R

Details

AGLC: Mears v R [2014] NZCA 30
Case: [2014] NZCA 30
Decision Date: 24 February 2014 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Janine Mears against her sentence. Mears had pleaded guilty to multiple charges, including theft by a person in a special relationship, dishonestly using a document with intention to obtain pecuniary advantage, and forgery. The District Court had sentenced Mears to a total of four years and three months’ imprisonment, with a minimum period of two years. Mears argued that the sentence for the most serious theft charge was excessive and that the Court should not have imposed a minimum period of imprisonment.

The Court examined the nature of Mears’ offending, which involved stealing $380,000 over six years from her employer, a small business, through various fraudulent methods. The Court considered the absence of remorse, the significant impact on the victims, and the absence of any relevant personal mitigating circumstances. The Court found that the starting point of four years and six months was appropriate given the circumstances, and the discount for the late guilty pleas was also justified. The Court further concluded that the minimum period of imprisonment was necessary to reflect the harm done and to deter Mears from future offending.

The appeal against sentence was dismissed, and the original sentence was upheld. The Court found no basis to set aside the sentence imposed by the District Court, noting the high level of culpability and the absence of any remorse or reparation by Mears.

Orders