R v Phipps HC Christchurch Cri-2006-009-7912

[2007] NZHC 2075

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-009-007912

REGINA

v

ANDREA VIRGINIA PHIPPS

Hearing:         30 August 2007

Appearances: PHB Hall for Prisoner

G H Nation & Z R Johnston for Crown

Judgment:      30 August 2007

SENTENCE OF HON. JUSTICE JOHN HANSEN

[1]      Ms Phipps, you have pleaded guilty to 70 charges of dishonesty.  The plea was entered after depositions, but before trial.   Counts 1 to 43, and 44 to 68 are counts of using a document; count 69 is a count of accessing a computer system for a dishonest purpose; the final count is one of forgery.

[2]      The complainant in this offending is a Christchurch-based, family-owned manufacturing firm.  You were employed as the office manager in July 2004.  You were  required  to  deal  with  wages,  invoicing,  accounts  receivable  and  payable, general   administration   and   reception   duties.      The   position,   expectedly   and

understandably, held a high level of trust.   Company cheques which required two

R V PHIPPS HC CHCH CRI-2006-009-007912  30 August 2007

signatures were often pre-signed by one authorised party to allow easy access to cheques – a practice that would hardly meet with best practice.

[3]      Counts 1 to 43 relate to the period between 1 August 2005 and 10 May 2006. You used 43 cheques from the company, forging the second signing authority to obtain goods and services to the value of just in excess of $68,000.  Counts 44 to 68 relate to the payment of wages.  Between September 2005 and April 2006 you filled out weekly timecards recording hours actually worked.  You would then leave the weekly paid hours at the default setting of 40 hours on the computerised wages program.   The wages were paid in accordance with the calculations.   As a consequence you obtained $1700 more than you actually earned.

[4]       In February 2006 you arranged to purchase blinds and drapes, which were subsequently installed in your home.  You entered the firm’s computer accounting program and reversed the transaction involving that purchase.

[5]      Finally, you created a letter, purportedly from your doctor, by photocopying an original letter and using the letterhead as a template.  You then created another body text on your computer, and photocopied it onto the letterhead.  You sent the letter by Courier Post to the employment lawyer for your employer.

[6]      In terms of the Sentencing Act it is necessary for this Court to take into account the matters set out in s7, in particular accountability for the harm done to both the victim and the wider community; to promote a sense of responsibility for, and acknowledgement of, that harm; to provide for the interests of the victim; reparation; denunciation; deterrence, protection of the community; and rehabilitation.

[7]      Under s8 the following principles of sentence are relevant.  The gravity of the offending and the degree of culpability.  It is serious offending of its sort, and your culpability is high.  The seriousness of the type of offence in comparison with other types of offences.  I would place this in the mid-range, or a lot lower, as this does not come to be compared with some multi-million dollar cases that come before the Courts.  The desirability of consistency with appropriate sentencing levels; the effect on the victim, which are well documented before this Court in the statements made

to it; the lease restrictive outcome appropriate to take into account your personal family and background in imposing sentence.

[8]      You are aged 34 years.  You are married.  You have family responsibilities. You  have  four  previous  convictions.    They  are  not  all  that  old.    In  2002,  for offending that occurred in April 2001, you were sentenced for attempting to murder, wilful damage, forging a cheque, and theft as a servant.   The first two of those offences appear to have related to attempts to cover up your offending in some way. It is also suggested it may have had other motives.

[9]      There are a number of cases of assistance, although there are no tariff cases for offending of this sort.  There is of course the Court of Appeal decision of R v Singh CA336/02 13 March 2003, referred to by your counsel, that gives a range of sentencing up to three years.  R v Hayes CA197/06 30 August 2006, a case involving

91 charges of accessing a computer system, and 23 charges of using a document. The person concerned obtained just on $40,000.  There was reparation of $16,000, and a sentence of two years and 11 months’ imprisonment was imposed.

[10]     In Le’au’anae v Police HC AK A92/02 16 August 2002, a sentence of 18 months’ imprisonment was upheld on 20 charges of using a document for pecuniary advantage with intent to defraud.  The total sum involved was in excess of $60,000. In R v Harvey CA349/00 7 December 2000, a sentence of two years and three months’ imprisonment was upheld.   A starting point of three years’ imprisonment was approved.   The sum involved was $135,000.   A nine-month deduction was allowed for a guilty plea given after depositions.  Finally, in R v Beech CA314/01 6

December 2001, a sentence of 15 months’ imprisonment was upheld for offending totalling $87,000.

[11]     In  this  case  the  Crown  have  highlighted  the  aggravating  features,  your previous offending, and submit that taking all of those factors into account a starting point of between four and four and a half years’ imprisonment would be appropriate. The Crown accept that full reparation has now been made, but say the guilty plea was not particularly early, and the Court is entitled to be cynical about your claims of remorse, and your claims to blame this offending on others.

[12]     However Mr Hall, on  your behalf, submits  the payment  of  reparation  is extremely significant.  He submitted, correctly in my view, that it is rare for sums of this sort to be repaid in full, and noted the burden that that has placed not only on you, but also on others.  He stresses your remorse is genuine, and he also submitted that you have ongoing mental health issues that have contributed to this offending, which given your family background he says is totally out of character.

[13]     The pre-sentence report reveals that you are in partnership with your husband in a cleaning business.  You agree with the summary of facts, but claim to be unable to remember any aspect of the offending.  I find that almost impossible to believe. Offending of this sort, on multiple occasions over a period of time cannot be simply pushed out of the mind.  There is simply nothing in the psychiatric report to suggest that this would be the case.

[14]   Your explanations to the pre-sentence report writer stress your mental difficulties, but again tend to shift the focus of the offending away from you and onto others.   The report writer understandably notes that that may be a barrier to you addressing your offending, and also places you at a reasonably high risk of reoffending.   The report writer notes you wish to apologise and make reparation, which I have already dealt with.

[15]     The Crown point to a number of aggravating features which are not really in issue in this case.  The extent of the financial loss to a small manufacturing business, which was in excess of $70,000.  There are a very large number of deliberate acts of dishonesty.  That is a relevant factor in sentencing (see Hogan v Ministry of Social Development HC NAP CRN 2005-441-24 22 July 2005).

[16]     There were different types of dishonesty, which I outlined when I dealt with the facts of this offending.  It was spread over a ten-month period.  There was abuse of trust and the authority that you were given in your position as office manager.

[17]     There is, on the mitigating side, a late guilty plea.  Some allowance must be made for that.  This Court, and the Court of Appeal, have regularly approved periods from 10 per cent up to 33 per cent as an allowance for a guilty plea, but it is clear the

later the plea, the less allowance that is made.   It is often suggested that people facing criminal charges are entitled to explore possible defences, whether they be legal ones, factual ones, challenges to the admissibility of evidence, or as here, psychiatric ones.  That is perfectly true – everyone facing criminal charges has that right.  But to allow substantial discounts for pleas of guilty is only going to happen in cases where there is full and early acknowledgement of the offending.  The most recent authority of that can be found in decisions such as R v Fonotia [2007] NZCA

188; R v Kite [2007] NZCA 385; and R v Latifi [2007] NZCA 372. If people coming before the Courts, and those advising them, are labouring under some misapprehension that if they properly explore their rights and therefore delay a guilty plea they remain eligible for a full allowance, they should be disabused.

[18]     There is your remorse, which has been questioned by the report writer, but I agree with Mr Hall that the payment of reparation is a singular and significant mitigating factor in this case.  In terms of remorse, actions speak much louder than words.

[19]     From the cases I have referred to, the terms of imprisonment inevitably are wide-ranging.  The lead offending in this case is clearly the 68 charges of using a document, because that was the dominant offending which generated the most financial gain to you.  The other charges could be said to be separate and unrelated, but  I  do  not  consider  this  an  appropriate  case  to  consider  the  imposition  of cumulative  sentences.     Rather,  it  is  a  case  of  ongoing  dishonest  behaviour culminating in the last offence which was a dishonest attempt to cover up your offending.

[20]     It seems to me on the authorities the starting point is one somewhat lower than that contended for by the Crown.  I consider an appropriate starting point in this case, on the authorities that I have referred to, is one of three years’ imprisonment. That takes into account the aggravating features that I have referred to.

[21]     I turn then to the aggravating features particular to you.   I have mentioned them – in particular the previous offending – and there are the mitigating features, the reparation being the most significant.  There can be only a small allowance for

the plea of guilty which I would place at three months.  However, the full payment of reparation (it is given significance in the Sentencing Act) in my view warrants an additional allowance of nine months.  That gives a total allowance of one year.  On each of these charges you are sentenced to two years’ imprisonment, concurrent.

[22]     I turn now to the question of granting leave to apply for home detention.  I leave aside for a moment your family situation.  There is nothing other than that, in my view,  that  would  warrant  this  Court  granting  you  leave  to  apply for  home detention.   You have reoffended in a similar way within a very short time.   It is serious and ongoing offending.  There have been attempts, at least until you fronted up and pleaded guilty and paid reparation, to divert blame to others.  There appears to be little insight into your offending, and you seem all too prepared to put blame onto all sorts of things other than your own actions.

[23]     However, the situation of your husband and family is significant.  There is a teenager living at home who has presented the Court with a moving testimony. There are two younger children who stay on a regular basis.   In the light of that family situation, I grant you leave to apply for home detention.  It will, of course, be a matter for the parole board what they make of the matters that I have referred to.

[24]     The standard conditions of release will be imposed.

Solicitors:

Crown Solicitors Office, Christchurch

PHB Hall, Christchurch