Murdoch v Police
[2019] NZHC 3446
•19 December 2019
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 the full amounts received by Ms Murdoch in respect of each incident of receipt. The total reparation amount was therefore $12,319.
Principles on appeal
[8] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.4
Submissions
Appellant’s submissions
[9] Mr Ross for Ms Murdoch submits the Judge erred, first, in overstating Ms Murdoch’s culpability and, secondly, in failing to consider her meagre financial capabilities when imposing reparation orders. He suggests a three month community detention period should be imposed as well as a nominal reparation amount of $1,000 divided equally between the two victims.
[10] Mr Ross submits the Judge erred by considering Ms Murdoch’s culpability on the basis of the primary offence, not simply on the basis of the reckless receipt that she pleaded guilty to. He says the primary offender was the person who intercepted the emails, altered the invoices and forwarded them on to the victims. Ms Murdoch, as the secondary offender, the recipient of the unlawfully obtained monies, cannot be penalised for the primary offending. Mr Ross also notes that an analysis of the relevant transfers in and out of Ms Murdoch’s accounts shows that she experienced a net loss
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
4 Skipper v R [2011] NZCA 250 at [28].
of $58.79. She received a total of $12,319.756 and transferred a total of $12,378.54 to an unknown recipient in Malaysia.
[11] Mr Ross says the Judge attributed the initial deception, which was obviously sophisticated, to Ms Murdoch when she simply received the funds. He explains that the offending occurred in the context of Ms Murdoch beginning an online relationship with a person who used Ms Murdoch’s accounts (and her) to funnel funds to an offshore account. He admits she was reckless as to the source of the funds but says she was not the mastermind of the operation.
[12] Mr Ross submits a sentence of no more than three months’ community detention would be appropriate. He says the six month term imposed by the Judge, together with the 84 hour per week confinement period, was excessive in relation to Ms Murdoch’s culpability and was the maximum that could be imposed.
[13] As to the issue of reparation, Mr Ross submits the Judge erred in failing to consider Ms Murdoch’s financial capacity when making orders of full reparation. This consideration is mandatory under s 35 Sentencing Act 2002. He notes the amount ordered to be repaid should be “realistic” given the financial resources of the offender.5 A sentencing judge must also have a “reasonable measure of confidence” that the reparation payment is able to be made.6 He cites a number of cases that state that, where there is no realistic prospect of payment being made within a reasonable time, an order should not be made for the full amount.7 Mr Ross also cites cases where the reparation amount was reduced to ensure they were such that a court would have a realistic measure of confidence that the orders would be complied with.8
[14] In this case, Mr Ross says the Judge erred in not accounting for Ms Murdoch’s ability to pay in imposing full reparation. He notes the Judge said, “[t]here is little chance of reparation but I am going to order it nonetheless.” The Judge did not have
5 R v Bailey CA306/03, 10 May 2004 at [25].
6 R v Creek CA199/06, 17 August 2006 at [12]; and R v Pender [2007] NZCA 465 at [15].
7 Rihari v Department of Social Welfare (1991) 7 CRNZ 586 (HC) at 590; Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 156; Ghulami v Police [2013] NZHC 1055 at [22].
8 See for example Scanlon v R [2013] NZCA 502 at [9]–[15]; and Kennett v Police [2014] NZHC 231 at [16]–[20].
a reparation report or statement of financial means from Ms Murdoch at the time of sentencing.
[15] Mr Ross points to an affidavit of Ms Murdoch filed with the Court dated 4 December 2019 which outlines her financial means at the time of sentencing and currently. In her affidavit, Ms Murdoch deposes that, while at the time of sentencing she was employed at minimum wage as a cleaner with a total supplemented weekly income of between about $360 and $400 per week, she is now unemployed and relies solely on a benefit at about $340 per week. Her weekly expenses were previously
$350 per week but her rent has since increased and her total expenses appear to be about $370 per week. By her own evidence, it appears she is at a shortfall of $30 per week, yet she says she would be able to meet a reparation payment of no more than
$5 per week.
[16] Mr Ross submits the reparation order was unrealistic and the sentencing Judge was fully cognisant of that. He submits the orders should be quashed and replaced by orders for reparation totalling $1,000 divided equally between the two victims.
Respondent’s submissions
[17] For the Police, Ms Woodward submits that the starting point of eight months’ imprisonment was within range and could be considered lenient when regard is had to three cases she cites:
(a)In Proctor v Police, the appellant received $5,000 worth of jewellery that had been stolen from the victim’s home, he then sold it for $1,160 to a secondhand dealer that day. 9 He pleaded guilty on the basis of recklessness. A starting point of 15 months’ imprisonment was upheld on appeal.
(b)In R v Singh, the appellant pleaded guilty to receiving eight stolen laptops and miscellaneous computer equipment.10 The Court of Appeal upheld his end sentence of six months’ imprisonment and noted, while
9 Proctor v Police [2018] NZHC 763.
10 R v Singh CA17/05, 19 May 2005.
the District Court Judge did not specify a starting point, it was likely to have been in the order of seven or eight months given his late guilty plea.11
(c)In Nikau v R, the appellant received $6,940 worth of televisions, jewellery and other items that had been taken from a house the previous day.12 A starting point of 12 months for that offending was upheld by this Court.
[18] Counsel agrees the reparation orders should be quashed and reparation set at a more realistic level.
Analysis
Starting point
[19] While Ms Murdoch was not criminally responsible for the original deception, she pleaded guilty on the basis that she was reckless as to whether the monies had been obtained as a result of some imprisonable offence. In New Zealand, recklessness requires the conscious taking of an unreasonable risk.13 Relevantly, for the present case, the Supreme Court has recently said recklessness requires that the defendant must have “recognised that there was a real possibility that…the proscribed circumstances existed; and…having regard to that risk those actions were unreasonable.”14 In light of the way Ms Murdoch accepted, through her guilty pleas, she had the relevant mens rea and was consciously reckless, the Judge was entitled to infer that she knew there was a real possibility that the funds had been obtained through fraud or deception.15
[20] On the basis of her guilty pleas, Ms Murdoch was clearly not expecting payments in these amounts from the accounts that made the payments. She would not have recognised the names of the payers in her bank accounts’ transaction records.
11 At [9].
12 Nikau v R [2017] NZHC 1366.
13 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [73].
14 Cameron v R, above n 13, at [73]; and at [68] citing R v G [2003] UKHL 50, [2004] 1 AC 1034 at
[41] per Lord Bingham.
15 Sentencing Act 2002, s 24(1)(b).
After the funds arrived, she deliberately transferred large sums to overseas accounts almost immediately. There would however appear to have been an attempted further deception and concealment of what was happening in that the amounts transferred to the Malaysia account did not immediately match up with the amounts received. She also did not explain to the Police how she had become involved in these frauds when she was first questioned about them by the Police.
[21] The Judge was entitled to infer from the conduct she pleaded guilty to that she was fully aware there was a real possibility the funds had been obtained as a result of a sophisticated fraud. While she is not to be held criminally responsible for that fraud, her actions and her recklessness were necessary and essential components of the fraud being carried out. I find the Judge was cognisant of those matters and his comments as to the deception carried out in this offending were background facts that inform the matters which Ms Murdoch was reckless as to. He did not sentence her on the basis that she had actually carried out the original deception.
[22] In light of that, I find a starting point of eight months’ imprisonment to have been appropriate. As the cases cited by Ms McKenzie show, offending involving stolen or unlawfully obtained goods with values less than seen in the present case have attracted higher starting points than eight months. In particular, I note that, in Proctor, a starting point of 15 months was endorsed by this Court for the reckless receipt of them worth $5,000 (stolen from the victim’s home).16 Then, in Singh, a starting point of 12 months was also endorsed by this Court in relation to the receipt of $6,940 worth of goods stolen from the victim’s home.
[23] I accept there is no element of home invasion in the origin of the unlawful taking of the goods in this case.
[24] There is also a distinction in that it does not appear Ms Murdoch received the monies with the intention of profiting from the stolen monies financially. The summary of facts said that, when spoken to by Police, Ms Murdoch acknowledged receiving the money but offered no explanation for where it went. The pre-sentence report however provided an explanation for the offending. Ms Murdoch stated that
16 Proctor v Police, above n 9.
she had been “scammed” and “used”. Information in the report suggested Ms Murdoch is relatively socially isolated in her life in Gore but has overseas friendships and relationships through the internet. It seems likely that someone overseas identified Ms Murdoch as a person they could use and exploit to assist with a sophisticated fraud that has caused a substantial loss and financial strain on the two victims. The total value of $12,319 is a substantial amount of money. Ms Murdoch was willing to participate and assist with that fraud through whatever benefits she thought she was going to obtain from the relationship she had with the overseas person.
[25] In agreeing to assist in this way, Ms Murdoch chose to participate in and assist with a fraud that has caused significant harm to the victims of her offending. I consider a starting point of eight months was appropriately arrived at by the Judge, especially so when Ms Murdoch was not in a position to make meaningful reparation.
Reparation orders
[26] Counsel agree that full reparation orders are not appropriate in light of Ms Murdoch’s financial situation. It is enough to say that, when the Judge made the orders, it was clear to him that there was no realistic prospect that Ms Murdoch would be able to meet them. The making of those orders was therefore an error of law.17
[27] Ms Murdoch filed an affidavit with her appeal providing details of her financial situation at the time she was sentenced in July 2019 and now. In July 2019, she had casual work as a cleaner and a Work and Income benefit. She was receiving about
$360 to $400 per week. Her detailed expenses included rent of $185 per week and a phone and the internet of $20 a week. It is use of the internet which brought about this offending. It also puts Ms Murdoch at risk of further offending.
[28] Ms Murdoch says she no longer has casual work as a cleaner and solely relies on the benefit, receiving about $340 per week. She lives alone in a rented flat. In October, her weekly rent increased by $20.
17 See for example R v Pender, above n 6, at [15].
[29] Ms Murdoch previously had a slightly higher income through having work as a casual cleaner. Included in the pre-sentence is information which suggests Ms Murdoch may have difficulty interacting socially with others. Her offending-related factors were identified as including relationships and attitudes. It said Ms Murdoch displayed limited insight into her offending, placing all the blame on her co-offender and denying any wrongdoing. It also said she was “unable to understand her involvement was an integral part of the offending and very limited remorse was shown towards the victims”. At times, when discussing the offending and the possible sentencing outcomes, Ms Murdoch became agitated and aggressive towards the writer and was reminded about appropriate behaviour.
[30] Realistically, there would appear to be little prospect of Ms Murdoch paying reparation in the sums ordered in the District Court. If she were to make payments on a weekly basis, the payments would be at such a low level, they would be of little assistance to the victims who lost substantial sums through her offending. Although it will not compensate her victims and will bring little solace to them, I consider the most appropriate way to hold Ms Murdoch accountable for her offending, and the harm it caused, is through the particular sentence of community detention which was imposed in the District Court.
Conclusion
[31] A starting point of eight months’ imprisonment was appropriate and the end sentence of six months’ community detention was within range. The appeal against that sentence is dismissed. However, the reparation orders were excessive. Any order that might be made for reparation would be of negligible value to the victims of your offending. The appeal against the making of those orders is allowed and the reparation orders are quashed.
Solicitors:
J R Ross, Barrister, Invercargill Crown Solicitor, Invercargill.
This judgment was delivered by me on 19 December 2019 at 4.00 pm Registrar / Deputy Registrar
Date: 19 December 2019
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