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R v Davis

R v Davis

Case [2009] NZCA 26 20 February 2009

Breach of Trust

Aggravated & Exemplary Damages

Sentencing

Appeal

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA658/2008
[2009] NZCA 26
THE QUEEN
v
JULIA CATHERINE DAVIS
Hearing:10 February 2008

Court:Robertson, Hugh Williams and Miller JJ
Counsel:K Clews for Appellant

K A L Bicknell for Crown

Judgment:20 February 2009 at 10 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

REASONS OF THE COURT
(Given by Hugh Williams J)
Introduction
[1]       On 24 July 2008 Ms Davis, the appellant, pleaded guilty to five counts, three of theft as a servant from a company called Sealcoat Central Limited between 2000‑2003 and, following amendments to the law, two of dealing with Sealcoat property between 2003‑2005 other than in accordance with requirements of its directors.
[2]       On 1 October 2008 Judge Wolff sentenced her to three years imprisonment on each count.
[3]       She appeals on the basis the sentence was, in all the circumstances, manifestly excessive and she should have been sentenced to home detention.
Facts
[4]       The agreed statement of facts showed Ms Davis worked for Sealcoat from 2000‑2005 as its office manager. She had a high degree of autonomy. She was trusted by the husband and wife proprietors with administration of the company’s accounts and with access to their Visa accounts. She set up moderately sophisticated systems which resulted in some $277,826.99 being taken by her from Sealcoat by payments to camouflaged accounts set up in her name, payments by Sealcoat ostensibly to its creditors but in fact to meet personal expenses for Ms Davis and her family and disguised payments to third parties for household items. Additionally, she overpaid herself $14,460.
[5]       Following a Police investigation, she repaid $87,991.18, but described it as a “goodwill” payment without admission of liability. An offer to pay a further sum was on conditions which were unacceptable to Sealcoat’s proprietors.
[6]       The audit of Sealcoat’s affairs which followed Ms Davis’ detection cost the company over $30,000.
Sentencing Remarks
[7]       After recounting the facts, the Judge commented on the sophistication of the systems set up by the appellant to disguise the payments to her or on her behalf and the impact on the proprietors and their family following her detection.
[8]       He referred to reports from psychologists and psychiatrists diagnosing the appellant as suffering from depression, but concluded nothing in the material before him suggested any significant remorse for the victims.
[9]       After referring to counsel’s submissions and the principles and purposes of the Sentencing Act 2002 (which codified the sentencing principles applicable for offending before the Act came into force), the Judge noted over $200,000 remained outstanding and there was a disinclination on the appellant’s part to pay anything further, despite having interests in property from which funds might have been derived.
[10]     The Judge regarded as a significant aggravating feature the abuse of trust and authority in the course of 142 dishonest transactions over five years and the premeditation involved in the setting up of the sophisticated system and its operation over that time. He noted the pleas were entered…

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 R v Davis

Details

AGLC: R v Davis [2009] NZCA 26
Case: [2009] NZCA 26
Decision Date: 20 February 2009

CaseChat Overview and Summary

In the New Zealand Court of Appeal case of R v Davis, the appellant, Julia Catherine Davis, pleaded guilty to multiple counts of theft and dealing with property contrary to the requirements of her employer, Sealcoat Central Limited. The appellant was sentenced to three years imprisonment for each count, totaling nine years, and appealed the severity of the sentence, arguing it was excessive and that she should have been sentenced to home detention instead. The appeal focused on the balance between the seriousness of the appellant's actions, which involved setting up sophisticated systems to embezzle over $277,000 over five years, and mitigating factors such as her lack of previous convictions, her personal circumstances, and her mental health issues.

The court examined the principles of sentencing under the Sentencing Act 2002, particularly the need to reflect the seriousness of the offending and to deter similar conduct. The appellant's deception, abuse of trust, and the extensive planning involved in her actions were highlighted as significant aggravating factors. The court also noted the substantial impact on the victims, including the financial loss and the emotional toll of discovering the betrayal by a trusted employee. Despite the appellant's plea of guilty, which was entered late in the legal process, the court considered the discount for her plea to be insufficient given the nature and duration of the offending.

The Court of Appeal ultimately found that the sentence imposed by the lower court was appropriate and not manifestly excessive. The court rejected the argument that home detention would be a suitable alternative, emphasizing the gravity of the breach of trust and the significant loss to the victims. The appeal against the sentence was dismissed, affirming the lower court's decision.

Orders