Police v Neutze
[2018] NZHC 1510
•22 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-093
[2018] NZHC 1510
BETWEEN NEW ZEALAND POLICE
Applicant
AND
NICHOLAS JAMES CLAPSHAW NEUTZE
Respondent
Hearing: 18 June 2018 Counsel:
N J Small for Applicant
P F Wicks QC and C E Joy for Respondent
Judgment:
22 June 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 22 June 2018 at 3:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell (Auckland) for Applicant Brookfields (Auckland) for Respondent
POLICE v NEUTZE [2018] NZHC 1510 [22 June 2018]
Introduction
[1] Mr Neutze pleaded guilty to one charge of accessing a computer system for a dishonest purpose.1 Judge N Mathers discharged him without conviction.2 The Police wish to appeal that outcome.
Procedure
[2] The ability of a prosecutor to appeal a discharge without conviction is governed by s 296 of the Criminal Procedure Act 2011.3 The appeal is limited to a question of law and the leave of the Court is required. Leave will generally be granted if, on the face of it, there is an arguable question of law identified.
[3] Mr Wicks QC, for Mr Neutze, submits the Court should not grant leave to appeal. He submits there is no arguable question of law identified and, even if there is, a discharge without conviction was an outcome available to Judge Mathers in all the circumstances.
Background
[4] Mr Neutze is 27 years old. He has a law degree and has completed the professional prerequisites for applying for admittance to the bar as a barrister and solicitor. That is not, however, his present intention.
[5] From 9 June 2014 to 27 February 2017, Mr Neutze was employed at ANZ Bank as a Relationship Services Manager. As such, he had authority to access and operate various banking systems. He was prohibited from doing so in relation to his own account. However, from 9 December 2016 to 17 February 2017, he dishonestly used his authority to access his personal account to increase his overdraft limit. He did this on 10 separate occasions, incrementally increasing his overdraft limit from
$2,000 to $100,000. He drew money on the overdraft, and as at 10 March 2017 owed
$89,190.75.
1 Crimes Act 1961, s 249. The maximum penalty is seven years’ imprisonment.
2 Police v Neutze [2018] NZDC 3951.
3 R v Smyth [2017] NZCA 530 at [7].
Question of law
[6] Ms Small for the Police misapprehended the statutory basis for bringing the appeal. Ms Small thought leave was needed but, if granted, the appeal would proceed as a general appeal under s 246 of the Criminal Procedure Act 2011.
[7] Having been informed by Mr Wicks of the actual position, Ms Small told me at the hearing that the question of law for which leave to appeal is sought is: did the Judge err in her assessment of the gravity of the offending?
[8] Ms Small submits the Judge overlooked two matters. The first is the impact of the offending on the victim and the second is the details of a charge of driving with excess breath alcohol which is alleged to have occurred on 25 January 2018.
Discussion
[9] The Court of Appeal in Brown v R confirmed there are three standard errors classified by modern authorities as creating a question of law:4
(a)A misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);5
(b)Oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)A factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[10] A Judge deciding whether to discharge a defendant without conviction must carry out a three-step analysis mandated by s 107 of the Sentencing Act 2002. First, the gravity of the offending must be assessed. Second, the direct and indirect consequences to the defendant of a conviction must be identified. Third, an evaluation
4 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
5 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.
must be made as to whether the consequences are out of all proportion to the gravity of the offending. The application in this case, therefore, relates only to the first step.
[11] The Court of Appeal in R v Malu considered a Crown appeal against a discharge without conviction where the first of the three questions of law for which leave to appeal was sought was the same as Ms Small’s question.6 The other two were similar but addressed the second and third steps. The Court commented that the questions are more suitable for consideration in the context of a general appeal.7 It granted leave to appeal because inside the general questions were arguable questions of law.
[12] I will adopt the same approach. Within the general question posed by Ms Small are arguable questions of law – namely, to use the language of Brown v R – oversight of relevant matters. I grant leave to appeal and will now consider them.
Did the Judge err by failing to assess the impact of the offending on the victim?
[13] Judge Mathers determined the offending was at a reasonably serious level. Ms Small submits the gravity of the offending was more than that, it was serious offending.
[14] The first error advanced by Ms Small is that the Judge failed to appreciate the effects on ANZ Bank went beyond the taking of the money (which was repaid) and extended to the bank’s reputation.
[15] The Judge does not mention the victim impact statement in her decision. There is no formal requirement for a Judge to refer to a victim impact statement, although, in sentencing or otherwise dealing with an offender, the Court must take into account any information provided to the Court concerning the effect of the offending on the victim.8
6 R v Malu [2017] NZCA 546.
7 At [11].
8 Sentencing Act 2002, s 8(f).
[16] The victim impact statement was prepared on behalf of ANZ Bank by its Investigations Manager. I set out the relevant portions of the statement in full:
Nicholas Neutze was employed by ANZ from June 2014 to February 2017.
In his role as a Relationship Services Manager he had access to a number of transactional bank systems to complete his tasks. He had a good understood (sic) of these bank systems, processes and policies and as a result was trusted implicitly by his manager, colleagues and customers to use his knowledge and skills to help our customers and proudly represent the ANZ brand.
Instead, he used his knowledge to abuse his position and access funds that he was not entitled to.
It is acknowledged that all unauthorised funds have since been reimbursed.
The financial impact does not include staff investigation time and management of this matter, which is difficult to quantify.
The risk of fraud is a key concern to ANZ and the wider financial industry.
ANZ relies heavily on customer trust and confidence through its integrity and credibility. This dishonest activity can undermine the banks (sic) reputation by negatively impacting upon customer trust and confidence.
[17] Judge Mathers emphasised the breach of trust, the position Mr Neutze held and noted the money had been repaid. It is the last paragraph upon which Ms Small relies. However, no aspect of customer trust and confidence arises. Mr Neutze’s dishonest activity related only to his own account. Further, the victim impact statement does not allege there was any negative impact on customer trust and confidence.
[18] I conclude that Judge Mathers did not overlook, in this regard, a relevant matter that should have been accounted for in assessing the gravity of the offending.
Did the Judge err by overlooking the details of the charge of driving with excess breath alcohol alleged to have occurred on 25 January 2018?
[19] Judge Mathers noted that Mr Neutze had previously obtained a discharge without conviction on an excess breath alcohol charge. The Judge only learned that through the prosecutor’s submissions and was understandably perturbed that no mention had been made of it by or on behalf of Mr Neutze. Her Honour went on to say:
[8] … When I requested background information as to the previous s 106, and in the course of that disclosure, I was advised that you had also been charged with a second excess breath alcohol offence just prior to when sentencing was due to take place earlier this year. I wish to make it very clear that a previous, successful s 106 discharge may not be a bar to another one but the circumstances are still relevant in the three-step process. The same applies to a pending charge.
[20]Later, while still considering the gravity of the offending, the Judge said:
[10] … You have through your counsel confirmed that no s 106 application will be made in the event of a finding of guilty or guilty plea on the most recent excess breath alcohol charge. I should tell you that I was singularly unimpressed by the fact of the second breath alcohol charge, whatever its outcome.
[21] Ms Small submits Mr Neutze’s rehabilitative actions post-offending are undermined in their significance by this further charge of driving with excess breath alcohol (the 25 January 2018 charge). Apparently, there has been also a subsequent charge since sentencing and both charges remain unresolved. Ms Small relies on this subsequent charge also to support her submissions.
[22] Ms Small refers to an affidavit of Mr Neutze sworn on 19 September 2017 which was before Judge Mathers. She submits its contents are made less credible by the previous discharge without conviction and by the 25 January 2018 charge. The affidavit I have seen was concerned with Mr Neutze’s gambling addiction which underlay the offending involving ANZ Bank. I see no relevance to the drink driving charges.
[23] I see that on 20 February 2018, Mr Neutze swore a further affidavit. It was also before Judge Mathers. This addressed the request referred to by Judge Mathers for background information about his prior discharge without conviction for driving with excess breath alcohol and the 25 January 2018 charge. In the affidavit, Mr Neutze sets out the circumstances leading to both charges. At the time of swearing the affidavit, Mr Neutze had been remanded without plea on the 25 January 2018 charge to 1 March 2018. Mr Neutze went on to give the Judge information about steps he was taking to gain insight into healthy levels of drinking and how the body processes alcohol. He said:
I undertake to the Court that I will be ensuring in every way possible that in the future I will not find myself facing any criminal prosecution of any kind whatsoever.
[24] Judge Mathers clearly took into account, and was unimpressed by, the fact that, had she not made inquiry following reading the prosecutor’s submissions, she would not have known about the excess breath alcohol charge upon which Mr Neutze had been discharged, nor that he was facing the 25 January 2018 charge. The Judge did not, however, assign any particular weight to the drink driving charges when assessing the gravity of the offending against ANZ Bank. In my view, that was entirely appropriate.
[25] The offending against ANZ Bank had nothing to do with driving with excess breath alcohol.
[26] The fact that Mr Neutze had previously been discharged without conviction on the excess breath alcohol charge could have some small relevance to the assessment of Mr Neutze’s personal circumstances when looking at the gravity of his offending. The fact he had been charged again on 25 January 2018 could have almost no relevance because of the presumption of innocence, and then only because of the details given by Mr Neutze in his affidavit. The latest charge was post-sentencing and is of no relevance.
[27] Judge Mathers clearly took into account as part of Mr Neutze’s personal circumstances his history of driving with excess breath alcohol. I am not surprised she did not ascribe it particular weight. I conclude that Judge Mathers did not overlook, in this regard, a relevant matter that should have been accounted for in assessing the gravity of the offending.
Decision
[28] No error of law has been raised in respect of the assessments by the Judge in the second and third steps. I will not, therefore, consider them.
[29] I have found no error of law by the Judge on the ground of appeal identified by the appellant. The appeal is dismissed accordingly.
Brewer J
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