Price v Police - [2017] NZHC 2523

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000316 [2017] NZHC 2523

BETWEEN
MARTIN PRICE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 October 2017

Appearances:

L O Smith for Appellant
S McDaid for Respondent

Judgment:

16 October 2017

ORAL JUDGMENT OF VENNING J

Solicitors: Meredith Connell, Auckland

PRICE v NEW ZEALAND POLICE [2017] NZHC 2523 [16 October 2017]

Copy to: L O Smith, Auckland

[1] Martin Price pleaded guilty to five charges of dishonestly using a document to obtain a pecuniary advantage1 and two charges of obtaining by deception.2 On 8
September 2017 in the Auckland District Court Judge Ronayne declined Mr Price’s application for discharge and name suppression and sentenced him to two years and five months’ imprisonment.3

[2] Mr Price appeals against the sentence of imprisonment. He does not appeal the refusal to grant a discharge without conviction or the refusal to grant name suppression.

Facts

[3] Mr Price’s dishonesty occurred over a period of approximately 18 months from

9 January 2012 until 26 July 2013. During this time he was the General Manager of Property and Retail Development for Foodstuffs Wellington and a member of the senior management team. Together with two co-defendants, Mr Price defrauded Foodstuffs to the value of $155,595. The police quantified the reparation due from Mr Price personally at $86,594.

[4] In summary the offending involved the following. Foodstuffs owned a car park in Wellington, and on 7 May 2012 Mr Price emailed Wilson Parking from his work email with an invoice attached, requesting $26,220 for the leasing of the car park. When Wilson Parking queried the payment to a bank account in the name of Orui Partners Limited rather than Foodstuffs, Mr Price forwarded a letter allegedly signed by an employee of Foodstuffs, Ms Sharpe, stating the commission payment to Orui had been authorised. Mr Price was the sole director and shareholder of Orui and the sole signatory for its bank account. Foodstuffs have given no authority for the
payment to be made to that company.

1      Crimes Act 1961, s 228; maximum penalty seven years’ imprisonment.
2      Crimes Act, ss 240(1)(a) and 241(a); maximum penalty seven years’ imprisonment.
3      Police v Price [2017] NZDC 20325.

[5] On 24 January 2013 Foodstuffs paid a company and a trust operated by Mr Price with the assistance of Mr Brown $36,800. That payment, which was invoiced for “lease negotiations Tamatea Development” was not authorised by Foodstuffs. Another payment had been made on 6 November 2012 for $23,000 from Foodstuffs to the Lambton Property Trust. Mr Price was not authorised to be charging for consulting services while employed by Foodstuffs.

[6] The third offender, Mr Evans, was the General Manager of Five Star Construction, a Wellington based construction company which carried out work for Foodstuffs on two sites. Three invoices were supplied to Foodstuffs by Mr Evans. All three were authorised and paid by Foodstuffs. The second invoice, for $17,250, was entirely fictitious and…

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.

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Details

Case: [2017] NZHC 2523
Decision Date: 16 October 2017

CaseChat Overview and Summary

Martin Price appeals against his sentence of two years and five months' imprisonment for multiple charges of dishonestly using a document to obtain a pecuniary advantage and obtaining by deception. The offending occurred over 18 months while he was the General Manager of Property and Retail Development for Foodstuffs Wellington. Price defrauded Foodstuffs to the value of $155,595. The Auckland District Court Judge Ronayne had identified several aggravating factors, including the high value of the loss, the serious abuse of a position of trust, the sophisticated and premeditated nature of the offending, and its duration and repetition. He took a starting point of three years, six months' imprisonment and arrived at the sentence after applying discounts for personal mitigating factors and a guilty plea.

Price's appeal against the sentence argues that the starting point was too high, the offer for reparation was not properly recognised as a mitigating factor, insufficient discount was given for remorse and lack of previous convictions, and home detention was not considered as the least restrictive outcome. The Court of Appeal considered whether there was an error in the sentence and whether a different sentence should be imposed. The Court noted that a starting point within the range of three years, three months to three years, nine months was open to the Judge, and the starting point of three years, six months was within that range. The Court held that while the Judge was aware of and took into account the offer of reparation, there was insufficient information before him to be satisfied the offer was realistic. As for remorse, the Court found that the remorse expressed by Price was not in the category of genuine remorse warranting a further and distinct credit. Finally, the Court acknowledged that home detention was not an option as the Judge arrived at a sentence of more than two years.

The Court allowed the appeal, replacing the sentence with two years, two months' imprisonment, and a modest reduction of three months for Price's offer of assistance to the police.

Orders