Murdoch v Police - [2019] NZHC 3446

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-000028

[2019] NZHC 3446

BETWEEN
SANDRA GAY MURDOCH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 December 2019

Appearances:

J A T Ross for the Appellant

S N McKenzie for the Respondent

Judgment:

19 December 2019

JUDGMENT OF NATION J

Introduction

[1] On 24 July 2019 Judge Callaghan sentenced Sandra Murdoch to six months’ community detention on two charges of receiving monies. She appeals her sentence.

[2] The appeal was filed out of time by a modest margin. The delay has been explained by her present counsel, who was not her counsel at the time of sentencing. The Crown has responded to the appeal on the merits. Leave is accordingly granted.

Facts

[3] On 11 September 2017, the first victim, a 54 year old man unknown to Ms Murdoch, received an invoice for $7,319.75. He believed it to be legitimate. However, the invoice had been intercepted by persons unknown and had been altered to show Ms Murdoch’s bank account number as the account to make payment to. On

MURDOCH v POLICE [2019] NZHC 3446 [19 December 2019]

12 September 2017, the first victim paid the amount in full to the account advised. On 13 September 2017, Ms Murdoch withdrew $5,511.50 from her bank account and then transferred $5,300 to Malaysia via Western Union. On 14 September 2017, she withdrew $2,871.50 from her bank account and transferred $2,750 to Malaysia via Western Union.

[4] On 9 October 2017, the second victim, Pukerua Racing Ltd, asked a horse owner to email his account details to it so he could be paid. That email was intercepted by persons unknown and had been altered to show another of Ms Murdoch’s bank accounts as the account to make payment to. The second victim paid $5,000 to that account that day. On 10 October 2017, Ms Murdoch withdrew $4,500 from that bank account and transferred $4,328.54 to Malaysia via Western Union.

District Court decision

[5] Judge Callaghan found that the offending was serious because it involved interception of legitimate emails and then the using of those emails to obtain funds. The Judge said, while it is impossible to know how Ms Murdoch came into possession of the accounts and emails, she was “savvy enough” to forward them to the recipients and receive money from them. The Judge emphasised the substantial financial strain the offending had placed on each of the victims. He highlighted the need for the victims to be compensated.

[6] The Judge adopted a starting point of eight months’ imprisonment. He appears to have made a global discount of three months for Ms Murdoch’s guilty pleas and her previous good character. Thus, the end sentence would be “somewhere in the region of five months imprisonment.” The Judge ultimately found a six month term of community detention was the appropriate sentence in light of the nominal end sentence of imprisonment.

[7] The Judge also made reparation orders for…

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 Murdoch v Police

Details

AGLC: Murdoch v Police [2019] NZHC 3446
Case: [2019] NZHC 3446
Decision Date: 19 December 2019

CaseChat Overview and Summary

Sandra Murdoch appealed against her sentence for two charges of receiving monies, which was imposed by Judge Callaghan and resulted in six months’ community detention and reparation orders. The appeal was filed out of time, but leave was granted after the Crown responded on the merits. The primary legal issues were whether the starting point of eight months' imprisonment was appropriate and whether the full reparation orders were justified. The appellant argued that the Judge erred by overstating her culpability and failing to consider her financial capabilities when imposing reparation orders. The Crown maintained that the starting point and sentence were within range and appropriate, and that full reparation orders were justified. The court found that the starting point of eight months was appropriate, as Ms Murdoch’s recklessness played an essential role in the fraud. However, the full reparation orders were quashed as they were excessive and not realistically achievable given Ms Murdoch’s financial situation. The appeal against the sentence was dismissed, but the appeal against the reparation orders was allowed.

The court concluded that while the starting point was appropriate, the reparation orders were excessive and not realistically achievable given Ms Murdoch’s financial situation. The appeal against the sentence was dismissed, but the appeal against the reparation orders was allowed, and the reparation orders were quashed.

Orders