Price v Police
[2017] NZHC 2523
•16 October 2017
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 RespondentJudgment:
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 came about as a result of collusion between the three co- offenders, including Mr Price. On 18 February 2013, Mr Evans made three payments totalling $17,250 into Lambton Property Trust’s account. A Lambton Property Trust Limited invoice to Foodstuffs claimed to be for “remedial work – consultancy fee” for the $17,250.
[7] Foodstuffs owned vacant land at Rugby Street in Mount Cook, Wellington. Stratum Management Limited, through Mt Price, had arranged to lease this land from Foodstuffs from 25 October 2012 through to May 2013. Mr Price was involved in the process of invoicing Stratum Management. Two invoices obtained from Stratum Management for the lease are “Lambton Property Trust Limited” invoices for $6,900 and $5,175, the moneys from which were paid into Lambton Property Trust’s bank account. Foodstuffs did not receive any payment in relation to the leasing of the land, and did not authorise Lambton Property Trust or Mr Price to receive the fees.
[8] Foodstuffs also owned a site on Tasman Street. Groundworks Limited, a drainage contractor made enquires about whether this was available for lease. The property management team at Foodstuffs, including Mr Price and Mr Brown, agreed a fee. Mr Brown supplied Groundsworks with an invoice for the leasing, which was a Lambton Property Trust Limited invoice for $40,250, to be paid into the trust’s bank account. On 23 April Groundworks paid this sum into Lambton Property Trusts’ bank account. Foodstuffs did not give Mr Price or Lambton Property Trust Limited authority to receive the fees for leasing the site.
[9] Mr Price has admitted the facts of the offending. He blamed a marriage breakup and financial woes as the reasons motivating the offending. He has no previous convictions.
District Court sentence
[10] In sentencing Mr Price, District Court Judge Ronayne identified the aggravating features of the high value of the loss, the serious abuse of a position of trust as a senior manager at Foodstuffs, the sophisticated and premeditated offending which involved a degree of conspiracy, and the duration and repetition of the offending.
[11] The Judge took a starting point for sentence of three years, six months’
imprisonment.
[12] The Judge noted Mr Price did not have any previous convictions and that he had paid approximately $3,490 in reparation to date and had made an offer of ongoing reparation. For personal mitigating factors the Judge applied an overall discount of four months’ imprisonment before applying a credit for the guilty plea of approximately 24 per cent which left an end sentence of two years, five months’ imprisonment.
Grounds of appeal
[13] In support of the appeal Mrs Smith submits the sentence was manifestly excessive and in error because the Judge:
(a) adopted a starting point that was too high;
(b)failed to recognise the offer for reparation as a separate mitigating feature;
(c) gave insufficient discount for remorse and lack of previous criminal convictions; and
(d) did not consider home detention as the least restrictive outcome.
[14] Mrs Smith also raises the matter of Mr Price’s offer of assistance to the police, which was not before the sentencing Judge.
Approach on appeal
[15] The present appeal against sentence is governed by s 250(2) of the Criminal
Procedure Act 2011. The Court must allow the appeal if:
(a) for any reason, there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
[16] An error includes a manifestly excessive sentence.4
[17] As Mr McDaid submitted the focus is on whether the ultimate sentence was within the available range, rather than the process by which it was reached.5
Discussion
[18] Mrs Smith correctly noted there was no tariff case. She referred to a number of cases, including the authority of Campbell v Police which involved 104 offences and a total of $261,205 being taken.6 In that case the District Court Judge took a starting point of three years, nine months’ imprisonment. That was upheld on appeal. There was also a significant reparation order of $37,000.
[19] Counsel also referred to a number of other authorities which I have considered.7 She made the point that in a number of cases where three years plus was taken as the starting point for fraudulent offending the victims had been vulnerable or
elderly.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
5 Ripia v R [2011] NZCA 101 at [15].
6 Campbell v Police [2013] NZHC 838.
7 Aupouri v Ministry of Social Development [2013] NZHC 1224; and Wilson v Ministry of Social
Development HC New Plymouth CRI-2011-443-37, 2 November 2011.
[20] I have had regard to those authorities and also to the additional authorities referred to by the respondent. While other cases are of assistance, the Court of Appeal has set out the principles to apply to fraud related offending in R v Varjan and Helsby- Knight v R.8
[21] Having regard to the authorities cited by counsel and the principles established by the Court of Appeal the particularly relevant factors in my judgment in the present case are the significant premeditation and planning involved in these acts of fraud, the sophisticated nature of the offending, the abuse of trust of Mr Price’s senior position and the loss of a significant sum of $155,595. Taking those factors into account a starting point in the range of three years, three months to three years, nine months was open to the Judge. The Judge’s starting point of three years, six months was in the middle of that range and was open to him.
Reparation
[22] Mrs Smith submitted the Judge had fallen into error by failing to recognise the offer to make reparation as a separate mitigating factor. Although at [14] of his sentencing notes the Judge said it was not a mitigating factor because it was “not mitigating to repay money that is not yours, money you stole”, that was in the context of his rejection of the application for discharge and at a stage where the Judge was assessing the gravity of the offending for those purposes.
[23] Importantly later, when the Judge turned to the issue of the ultimate sentence he said:
[24] … Insofar as mitigation is concerned, you had no previous convictions. I have already noted that you are of otherwise previous good character but that aspect of the matter has to be tempered by the duration of your offending and the fact that it was exactly that good character and clean record that enabled you to get the job that enabled you to offend and breach trust.
[25] I note that there is some possibility of reparation and that you are making payments. However while I have your weekly budget and a note that you are making payments, I know nothing in any verified way about your net worth. From the starting point of three years and six months I deduct four months for your personal mitigating factors. …
[24] Read in context I accept that the Judge did take into account the reparation that Mr Price had made and the offer put forward. Although the record does not show it Mrs Smith said that after sentencing Mr Price was called back and that the Judge imposed an order for reparation of $86,000. I accept Mrs Smith’s advice to the Court but there remains a problem for the appellant with this issue of reparation, even if such an order was made.
[25] Importantly, in considering whether and to what extent reparation should be taken into account the Court is required to take into account whether the offer is genuine and significantly in this case, capable of fulfilment. There was insufficient information before the Court for the Judge to be satisfied the offer of reparation was realistic. That is borne out by the application for legal aid for the purposes of the appeal in which the appellant has said “I will probably be filing for bankruptcy as I have no money and I have outstanding debts”.
[26] I am not satisfied that the Judge has fallen into the error as suggested by Mrs Smith. The Judge was aware of and took into account the offer of reparation but in my judgment correctly had reservations as to the likelihood of the payments, given the lack of information before him. The further information before this Court at this time does not provide this Court with any confidence at all that the offer and any order made is realistic.
Remorse
[27] Next, Mrs Smith submitted that the Judge failed to include any discount for remorse. She submitted the appellant had said in his affidavit in support of a discharge without conviction he was truly sorry and remorseful for the harm caused and that the offending was out of character. There was also a restorative justice report which in counsel’s submission “oozed remorse” and there was also acceptance by Foodstuffs to the extent that Foodstuffs did not want Mr Price to be sent to jail.
[28] As the Supreme Court have confirmed in R v Hessell an additional and separate discount for genuine remorse may be available.9
[29] Having reviewed the file I am not satisfied that the remorse stated by the appellant in this case is in the category of genuine remorse as contemplated by the Supreme Court in Hessell, which warrants a further and distinct credit. Mr Price no doubt regrets the position he is in and may at a certain level regret his offending. However, there are a number of indicators which count against the suggestion the remorse is genuine. In the pre-sentence report the probation officer noted that while there were elements of remorse and guilt witnessed during the interview, they were countered by Mr Price’s actions which were for his personal greed and for material gain. In addition as the Judge correctly pointed out in dealing with the application for discharge without conviction it is of concern that Mr Price, even after accepting responsibility, sought to categorise his offending as an error of judgment. This was no error of judgment. It was sophisticated and planned offending over an extended period of time. It involved offending in relation to a number of separate transactions. It was not an error of judgment but rather was deliberate criminal offending.
[30] In Campbell as referred to and discussed earlier, I note that the Judge gave five months credit for remorse, age and lack of previous convictions.10 I am not satisfied that the Judge in the present case fell into error in the assessments he made and the deduction he gave for personal circumstances, including the lack of previous convictions and any minor remorse credit. The reduction of four months for those personal mitigating factors was within range.
Home detention
[31] Mrs Smith submitted the least restrictive outcome in the present case was home detention but home detention was only an option if the Judge arrived at a sentence of two years or less. It was not open to him in the circumstances.
Assistance
[32] The remaining issue is the issue of assistance which has now been raised for the first time at this appeal level. Mrs Smith submits and the Crown accept that the appellant has provided two statements to the police and has indicated an agreement to
give evidence against a co-defendant. He has been summonsed to appear at the trial of the co-defendant. That was not a matter that was before Judge Ronayne at sentencing.
[33] It would have been better if the matter had been before the sentencing Judge in accordance with the practice established by R v Hadfield.11
[34] Nevertheless, I accept it is in the interest of justice to regard this as fresh evidence which should be admitted. In assessing credit to be given for such assistance the Court must take into account the personal risk assumed and also the value of the assistance. In this case the criminal fraudulent offending will be made out largely on the basis of the documentation. The appellant may or may not be required to be called as a witness even though he has been summonsed.
[35] However, I still accept that in the circumstances a further reduction ought to be given for that offer of assistance but it must be modest. No more than three months is required to recognise that assistance in the present case.
Result
[36] The appeal is allowed. The sentence of two years, five months’ imprisonment is quashed. It is replaced with a sentence of two years, two months’ imprisonment.
Venning J
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