R v Grant
[2020] NZHC 98
•7 February 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2018-063-1325
[2020] NZHC 98
THE QUEEN v
DONNA MARIANA GRANT
Hearing: 7 February 2020 Appearances:
S Bonnar QC and S Allen for Crown P Wicks QC for Defendant
Judgment:
7 February 2020
SENTENCING REMARKS OF LANG J
R v GRANT [2020] NZHC 98 [7 February 2020]
[1] Mrs Grant, you appear for sentence today having pleaded guilty in December 2019 to three charges of dishonestly using a document to obtain a pecuniary advantage1 and one charge of obtaining a pecuniary advantage by deception.2 Each of those charges carries a maximum penalty of seven years imprisonment.
The facts
[2] The facts on which you are to be sentenced are contained in a summary of facts. This sets out in detail the factual basis on which you have pleaded guilty to the charges.
[3] The summary records that you are a respected member of the Te Arawa Iwi. You also have an extensive background in educational affairs and are highly regarded throughout New Zealand as a leader in Kapa Haka.
[4] Between 2010 and 2014 you held numerous prominent positions in both charitable organisations and the education sector generally. In particular, you were a trustee of the Te Arawa Kapa Charitable Trust (the Kapa Trust), a member of the Board of Trustees for the New Zealand Warriors Foundation and the Executive Director of a private training establishment called the Manaakitanga Aotearoa Trust (Manaakitanga).
[5] All of these charges relate to your involvement in these organisations and, more specifically, the manner in which you fraudulently obtained funding for them.
Charge 1
[6] Te Matatini is a well recognised national Kapa Haka competition that is held every two years. It is managed by a national committee comprising representatives of the 13 affiliated regions in New Zealand. In 2012, the committee chose the Te Arawa region to host the Te Matatini festival that was to take place in February 2013. This meant the Kapa Trust needed to raise funds to organise and host the event.
1 Crimes Act 1961, s 228(1)(b).
2 Crimes Act 1961, ss 240(1)(a) and 241(1)(a).
[7] On 17 September 2012, after Te Arawa had been chosen to host the 2013 competition, the trustees of the Kapa Trust met to discuss the question of fundraising to meet the cost of the festival. During this meeting you raised the possibility that funding may be available through a programme known as Hei Manaaki (Maori Tourism). This was offered by the Te Whare Wānanga o Awanuiarāngi (the Wānanga). The Wānanga is a tertiary education provider based in Whakatāne. It receives funding from the Tertiary Education Commission (the Commission), a Crown agency that leads the Government’s relationship with the tertiary education sector. Between 2012 and 2014 you were the programme coordinator for the degree programme offered by the Wānanga in Maori performing arts.
[8] The Wānanga also offers a certification programme in Hei Manaaki (Tourism Maori). These are offered to NZQA levels 3 and 4.
[9] In order to obtain NZQA certification, students are required to complete at least 400 notional learning hours at each level. These include direct contact time with teachers and trainers, as well as time spent studying, doing assignments and undertaking practical tasks and assessments. The Wānanga’s requirements for certification were even more onerous than this. They required students to complete 600 notional learning hours over an 18 week period.
[10] The delivery of the certification courses in Hei Manaaki involves the use of independent external contractors. This means courses are delivered away from the Wānanga’s campus at different locations around New Zealand. The performance of independent contractors was overseen by the Provost Academic of the Wānanga, Mr Wiremu Doherty. He was also the person who signed contracts on behalf of the Wānanga with the independent contractors who were to deliver the certification courses.
[11] Following the meeting of trustees on 17 September 2012 you contacted the programme coordinator for Hei Manaaki at the Wānanga. You obtained, and arranged for the completion of, documentation under which the Kapa Trust was to deliver certification courses leading to NZQA Level 3 and Level 4 qualifications from the Wānanga. The contract required the Kapa Trust to deliver a conjoint course, that
means a contemporaneous course, for Level 3 and Level 4 students between 23 July and 23 November 2012. Twenty-five of these students were based in Hamilton with the remainder were based in Rotorua. In addition, the contract required the Kapa Trust to provide a minimum of one three hour tutorial per area per week, together with a one day workshop at the commencement of each module of the programme. As the Level 3 and 4 certification courses were being delivered at the same time, the contract required the Kapa Trust to hold separate classes for each level of the programme each week.
[12] You were aware when this contract was signed that the Kapa Trust could not perform it. This was because the contract specified the delivery of an 18 week course to start on 23 July 2012, some eight weeks before you had first raised the idea with your co-trustees.
[13] Notwithstanding this fact you advised the Wānanga on 9 November 2012 that all of the course work had been completed. You then sent an invoice for the conjoint delivery of Level 3 and 4 courses to 50 students. Significantly, you also responded to subsequent queries from members of the Wānanga’s administrative staff regarding aspects of the invoices you had rendered. Based on your assurances, the Wānanga ultimately paid the sum of approximately $66,000 for the services allegedly provided by the Kapa Trust under this contract even though many of them had never been provided.
Charge 2
[14] In late 2012 you told the Wānanga you were going to deliver another Hei Manaaki programme, this time to persons who had volunteered to assist in the organisation and running of the Te Matatini festival in February 2013. You then obtained 100 enrolment forms for potential students.
[15] The volunteers that you identified comprised a varied group of people, many of whom had no direct connection with you other than being from the Te Arawa region. Some of these persons had little or no background in Māori culture or language. All, however, were asked to attend a training day on 12 January 2013 between 10 am and
2 pm. There was no mention in communications to the volunteers that they were going to be enrolled into a programme of study.
[16] On Saturday 12 January 2013 a large number of volunteers attended a training session held at a Marae in Rotorua. There they completed Wānanga enrolment forms for the Hei Manaaki programme. They were then divided into groups and over the course of the day they completed the Level 3 Hei Manaaki unit standards in group sessions led by you and your associates. The summary records that each group was “walked through” the material provided to them, with the assessments being completed in groups and with the assistance of the team leader. Each group was essentially provided the answers required to reach Level 3 unit standards. There was no requirement for any student to individually show understanding of the material or to undergo an assessment.
[17] Some volunteers were unable to attend this session. You therefore arranged a second session to be held on the evening of 25 January 2013 between 5 and 7 pm. This followed the same format as the earlier session at the Marae but was even more truncated because it was held over a period of just two hours.
[18] None of the volunteers was aware of the true nature of the enrolment forms they were asked to complete or the unit standards they filled out as a group. In particular, they did not know they were enrolling in what should have been an 18 week course. Nor did they know they would subsequently receive an NZQA Level 3 qualification from the Wānanga as a consequence. You subsequently added the delivery of a Level 4 course to each of the volunteers who had enrolled for the Level 3 course without them being aware that this was happening, and without any further forms being completed by them for this component.
[19] After the Te Matatini festival had successfully been held in February 2013, you facilitated the signing of a further contract between the Wānanga and the Kapa Trust for the delivery of another conjoint Level 3 and Level 4 Hei Manaaki course. This required the course to be delivered between 11 February and 14 June 2013 for a maximum of 100 students. It contained the same tutorial and workshop requirements
as the first and second contracts. By this time of course you were aware that the Kapa Trust had not delivered either course as stipulated by the contracts.
[20]As a result of these contracts the Wānanga paid the Kapa Trust a total sum of
$131,640.85. The Kapa Trust used these funds to meet catering and uniform costs incurred in hosting the Te Matatini event.
Charge 3
[21] The company that owns the New Zealand Warriors rugby league franchise is governed by a board of directors. In May 2012, Sir Owen Glenn, one of the shareholders in the company, appointed you to be his representative on the board.
[22] One of the initiatives that stemmed from your appointment was the development of the New Zealand Warriors Foundation (the Foundation). This was a charitable organisation formed to provide financial and other assistance to players who had been recruited by the club but were unable to make the transition to professional sport. The board of the Foundation relied on your expertise to apply for funding to enable the Foundation to carry out its functions.
[23] In November 2012, you told the Wānanga you were going to provide a further Hei Manaaki programme for persons associated with the Foundation. You then arranged for the Wānanga and the Foundation to sign a contract under which the Foundation agreed to deliver an 18 week Level 3 Hei Manaaki course to persons associated with the club. Both the Wānanga and the Foundation signed the contract on the basis of your advice, and were fully reliant on you to ensure the terms of the contract were fulfilled. The Foundation for its part understood the contract to represent a grant of funds to it. It was not aware that the contract required it to deliver an 18 week educational course to students.
[24] The contract required the Foundation to provide the same course components as the earlier contracts entered into by the Kapa Trust. The course was initially for a Level 3 component only and was for a maximum of 100 students. These students were to undertake tuition between 11 February and 14 June 2013.
[25] The Foundation later signed an amended contract requiring it also to deliver a Level 4 component. The Foundation signed the contract on the basis of assurances that you provided to Warriors management that the Foundation had fulfilled its contractual obligations to the Wānanga.
[26] The New Zealand Warriors Rugby League Club subsequently announced to its players and staff that they would be required to attend a cultural day at the Auckland University Marae on 21 January 2013. Many members and staff of the Club attended on that day, including the Chief Executive Officer, the Chief Financial Officer, administrative staff and other players. At the beginning of the day the attendees were required to complete Wānanga enrolment forms. You then led the group through Marae protocols and you gave a taiaha demonstration. Thereafter, the attendees were split into small groups and led through the unit standards of the Hei Manaaki programme. They then completed the required assessments as a group with the assistance of your staff. None of the attendees were aware they had enrolled in an educational programme.
[27] As a result of this programme the Wananga paid the sum of $83,336.02 to the Foundation on 27 May 2013. In July 2013 you rendered a further invoice from the Foundation for the delivery of the course from May to June 2013. The Wānanga paid the sum of $65,776.69 based on this invoice.
[28] The total amount the Wananga paid the Foundation for the facilitation of the Level 3 and Level 4 courses was therefore approximately $149,000. The Foundation used these funds to pay its operating costs.
[29] The Wānanga was subsequently audited by the accounting firm Deloitte. During the audit you told the auditors on several occasions that the Foundation had completed the courses as required under the contract. You also submitted falsified attendance sheets showing that some of the students attended all of the sessions required by the course. In addition, you contacted members and management of the Foundation. You provided them with false attendance records as well as resource booklets. You also attempted to convince them to mislead the auditors that they had
completed an 18 week course. Fortunately, however, nobody was prepared to follow your instructions.
Charge 6
[30] The Manaakitanga Aotearoa Trust (Manaakitanga), is a private training entity based in Rotorua. It is a registered charitable trust that was incorporated in 2000. You were the Chief Executive Officer and operational manager of the trust between 2010 and 2014.
[31] The Trust obtained funding during that period from the Commission. In this context the Commission agrees in advance to fund a specific number of full time students for accredited programmes run by a provider. Funding is provided by the Commission throughout the year based on the expected numbers of students who will be attending the courses offered by the provider. At the end of the year the funding is adjusted to match actual delivery by the provider to students.
[32] Prior to each school year Manaakitanga would submit an investment plan to the Commission. The plan set out the training it would offer to students and explained how this aligned with the Commission’s goals. If the Commission approved the investment plan it would grant funding for that calendar year.
[33] The investment plan put forward by Manaakitanga related to the delivery of two specific programmes, a Level 4 qualification in the National Certificate of Māori Performing Arts and a Level 6 qualification in the Diploma of Māori Performing Arts. The Commission agreed to provide funding for those programmes solely on the basis that the funds were to be used to implement the approved investment plan and the activities outlined therein.
[34] Manaakitanga obtained funding from the Commission for these programmes between 2010 and 2014. During this time, you were required to provide reports three times a year to the Commission. These were designed to enable the Commission to monitor actual performance against the objectives contained in the investment plan so as to enable the Commission to make any adjustments that were required at the end of the year.
[35] You reported that 113 students had completed the two courses between 2010 and 2014 when that was not the case. The 113 students that you said had completed the two courses were fictitious. You simply added their names to the list submitted to the Commission in order to obtain or justify further funding. As a result, Manaakitanga obtained an overpayment from the Commission in the sum of $970,278 over the four year period.
[36] Manaakitanga used the funds it thereby received to finance the delivery of other programmes that it offered as well as to meet its general organisational goals.
Starting point
[37] The first stage in the sentencing process is to fix a starting point for the sentence to be imposed on you. This represents the sentence that is appropriate to reflect all relevant aspects of your offending but putting to one side any factors that are personal to you.
[38] As can readily be appreciated, offending of this type occurs in many different ways. For that reason there is no guideline or definitive judgment of our Court of Appeal setting out the sentences to be imposed for offending of this type. Instead, the Court must look at a wide range of factors to determine the starting point that is appropriate.3
[39] First, it must look at the nature of the activity that has occurred. It must look then at the duration over which it has lasted. It must consider how much money or other property was lost, stolen or diverted as a result of the activity and it must look at the effect that the offending has had on victims.
[40] In the present case, as your counsel readily accepts, the offending must be regarded as serious because of several factors. First, it was obviously premeditated. All of these schemes required you to know how the funding systems worked. You also needed to know how to obtain access to funding and the type of information the funders would require before they would provide funding. So you used the knowledge
3 R v Varjan CA97/03, 26 June 2003 at [22].
you had gained in your various capacities in both the educational fields and in the field of Kapa Haka. You then arranged for contractual arrangements to be put in place between the various providers and the persons who were to be providing these courses. So although this was not a sophisticated scheme, it nevertheless contained several components and it required specialist knowledge by you in order to be able to complete the offending.
[41] Secondly, the offending went on over a very considerable period of time. It occurred at various stages between 2010 and 2014. It is therefore very different from a single transaction in which a person fraudulently obtains funds or property by a singular means. Thirdly, it involved a significant sum of money. In total approximately $1.3 million was provided by way of funding to entities that were not entitled to receive that funding.
[42] It also involved an element of breach of trust. I say this, in particular, in relation to discussions that you held with members of the funders’ staff once you were challenged about invoices. When you were challenged about invoices you were able to persuade those persons that your invoices should be accepted, albeit in some cases on a reduced basis. I have no doubt that those persons accepted your advice because they knew you were a person of integrity whose word could be trusted on important matters such as that. However, there is another very important aspect to your offending that needs to be weighed into the mix.
[43] Usually offending of this type occurs in order to enable the offender to line his or her own pockets. That cannot be said of your actions. You did not undertake any of this offending for your own purposes. Rather, you set about these schemes because you wished to provide funding for activities and projects that you and your community considered to be worthwhile and indeed that is how the funds were spent. They were spent in most, if not all cases, on activities that most, if not all in the community, would regard as worthwhile. The problem of course was that the funding was not available for that purpose, and you used fraudulent means to allow these providers to obtain funding to which they were not otherwise entitled. In doing so you effectively duped many of the persons who were involved in the schemes. These included the volunteers at the Te Matatini festival and those at the Foundation, all of whom thought they were
simply playing a role in obtaining funding for their organisations. That was not the case of course because they were involved in an activity that was quite different.
[44] I consider that, had your offending been for personal gain, the starting point would be similar to that selected in R v Love.4 In that case the chairman of a trust had diverted approximately $1.5 million of funds belonging to the trust for his own purposes. The sentencing Court said a starting point of five and a half years imprisonment would ordinarily be appropriate, but that because of the influence of another person on the offender, this should be reduced to four years nine months.5 On appeal, the Court of Appeal said a starting point of five and a half years was generous.6
[45] Your starting point cannot be in that region because none of your offending was done for personal gain. Rather, it was done to achieve the objectives of others whose aims and activities you viewed as being worthwhile.
[46] The Crown acknowledges this fact and says that a starting point of around four to five years of imprisonment is appropriate. Your counsel says a starting point of three years six months imprisonment is appropriate. I consider, taking into account all of the factors to which I have referred, that a starting point of four years imprisonment reflects the overall culpability of your offending in the manner I have described.
Aggravating factors
[47] The next step in the sentencing process is to ascertain whether the starting point should be increased to reflect aggravating factors personal to you. There are no such factors present in your case, however, because you have never appeared before the courts before. There is therefore no need to uplift the starting point to reflect aggravating factors.
4 R v Love [2016] NZHC 2394.
5 At [40]–[41] at [81].
6 Love v R [2017] NZCA 265.
Mitigating factors
[48] The next stage in the process is to take into account mitigating factors personal to you that reduce the starting point.
[49] The Crown acknowledges several significant mitigating factors exist. The first, and in many ways the most important, is that at 61 years of age you appear before the Court for the first time. You have hitherto led a blameless life. You have been a leader in both the fields of education and Māoridom. You have been a tireless campaigner for the people of this region in the field of the performing arts and other areas. In addition, the cultural report that has been provided to me makes it clear that you have achieved all this despite what many would describe as a difficult start in life.
[50] You are the daughter of Sir Howard Morrison, the famed and respected entertainer who sadly recently died. That fact created special pressures and challenges for your family because it meant you had media pressure that most families would not have. You also had demands placed on the family that other families did not have, and your father was required to be absent from the home for much of the time. Your mother was a retiring person and did not wish to deal with many of the issues that arose as a consequence of your father’s fame and celebrity. It fell to you at a very early stage to guide the family’s affairs, to be the spokesman for your family in outside matters and to provide a leadership role within your family.
[51] As you became older you became involved in community and educational affairs. Not surprisingly, pressure was placed on you at an early stage to become involved in an organisational or leadership capacity in many of these areas. I have no doubt from reading the report that this placed significant pressure on you to perform to the very best of your ability to ensure the optimal outcome for all of the many persons who sought help from you. I am also satisfied that this is likely to have a connection with your present offending. You became involved with these entities and you believed their objectives were worthwhile. The one thing they needed was funding, and you were determined to help them get it. I accept, however, that the present offending may well be a culmination of all of the pressures that have been put on you in your role within the fields of education and Māoridom generally to provide
leadership and assistance to members not only of your whanau but the wider community.
[52] Any person with these attributes is entitled to call upon them in times of need. I have to bear in mind of course that this offending occurred over a four year period. To that extent I must limit somewhat the credit I can give you for these matters. Nevertheless, I consider that the role that you have played within both your family and your community to date requires a discount of 25 per cent, or 12 months. This takes into account also the fact that there is little or no prospect that you will ever reoffend again in any other way. This is demonstrated by the fact that since this offending occurred you have been able to hold down a job successfully. You remain well regarded within the educational field and Māoridom generally. This is amply demonstrated by the numerous letters of support and commendation I have received prior to sentencing today.
[53] The next factor for which I can give you credit is remorse. And remorse is required here because the effect of the offending on your victims has been significant. The Wānanga particularly suffered greatly as a result of your offending. First, it was the spotlight of a very public audit. This required it to expend significant sums conducting internal reviews and cooperating with the auditors. It also triggered repayment by the Wānanga of significant funds that it had received from the Commission. The real loser in financial terms was the Tertiary Education Commission. It provided funds in the belief that they were to be used for specific projects. The funds were not used for those projects and were diverted elsewhere. This means they could not be used for other worthy causes that the Commission could have identified had they not diverted the funds to you.
[54] The ripples of your offending go wider than that because they call into question the probity and value of the qualifications obtained by students who attended and received qualifications through courses operated or serviced through the Wānanga. In practical terms it means that both the Wānanga and the Tertiary Education Commission are likely to subject future schemes of this type to very real scrutiny. It means that other people who have worthy causes may find it much more difficult to obtain funding in the future.
[55] So, as I have said, remorse is required and you have shown it. You have shown it in several ways. First, you have written thoughtful and insightful letters of apology to the Commission and the Wānanga. Secondly, you have written a letter to the Court acknowledging responsibility for your offending. That letter shows, in my view, a significant degree of insight into your offending. I am satisfied it is appropriate to give you an additional discount for remorse and I fix that at five per cent, or three months.
[56] The final factor I can take into account is the entry of your guilty pleas. These occurred approximately six months before your trial, so they were not entered at the earliest stage. However, this was a complex case that required a significant degree of disclosure. As such, the final form of the case is unlikely to have been known to you until later than may usually be the case.
[57] Your counsel submits I should apply a discount of 25 per cent to reflect guilty pleas. I did not take the Crown to argue to the contrary. This means I am in a position to apply a discount of nine months to the sentence I have selected. This produces an end sentence of two years imprisonment. As a result, the sentencing option I now need to consider is that of home detention.
Home detention
[58] In determining whether or not to impose a sentence of home detention the Court must take into account a wide range of factors. Issues of deterrence and the need to hold the offender accountable are obviously important factors in offending such as this. On the other hand, the need to provide for the offender’s rehabilitation is also an important factor, as is the need to impose a sentence that is the least restriction outcome in the circumstances.
[59] By any standards this has been a spectacular fall from grace. From a respected and indeed, in some cases, revered person within the Māori community you stand here on the cusp of a sentence of imprisonment for offending involving significant dishonesty. I consider that very fact, together with the trauma that must have been associated with the Court proceedings and the publication of events that occurred within it, provides a significant deterrent effect both for you and others who might be
minded to act in a similar way in the future. It also denounces your conduct sufficiently and holds you accountable for what you have done. There is absolutely no need in the present case to be concerned about the protection of the community because I accept your counsel’s submission that this is the first and last time on which you will be before the courts.
[60] Finally, to me it makes absolutely no sense to send a 61 year old person to jail in circumstances where they have never offended in the past and are unlikely ever to come before the courts again. I have therefore reached the clear view that a sentence of home detention is the appropriate outcome in the present case.
Sentence
[61] On each of the charges to which you have entered guilty pleas, I sentence you to 12 months home detention. Those sentences are to be served concurrently. You are to serve those sentences on the conditions set out in the pre-sentence report, with the post detention conditions to be as per that report and to last for a period of 12 months following the expiry of your sentence.
Lang J