R v Price - [2009] NZCA 600

IN THE COURT OF APPEAL OF NEW ZEALAND
CA540/2009
[2009] NZCA 600
THE QUEEN
v
DENNIS ALAN PRICE
Hearing:26 November 2009

Court:Arnold, Potter and Heath JJ
Counsel:P B McMenamin for Appellant

T Epati for Crown

Judgment:16 December 2009 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is allowed in part.
B The sentences imposed on counts 2, 6, 7, 8, 27 and 57 are quashed and concurrent sentences of three months imprisonment are substituted.
CThe effective sentence of six months imprisonment imposed in the District Court remains.

REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] The appellant entered guilty pleas to 60 charges of obtaining by deception. Judge Farish sentenced him to six months imprisonment and ordered that he pay reparation of $40,039.80: DC CHCH CRI 2007-009-01796 3 September 2009. The appellant appeals against his sentence on the basis that it is manifestly excessive, particularly in light of his personal circumstances. He argues that a non-custodial sentence should have been imposed.
Background facts
[2] The appellant was employed by a travel company as a travel consultant. He was paid by way of commission. The commission arrangement was that:
(a)The appellant would receive 40 per cent of the net profit on any customer files that he organised, with the remaining 60 per cent going to the company.
(b)The appellant was to be liable for 100 per cent of the loss on any customer file which was in deficit, although there was no evidence that the company had ever enforced that aspect of the arrangement.

Over a period of slightly more than two years, the appellant transferred money from customer accounts which were in profit to customer accounts in which there was a deficit. By “smoothing” the customer accounts in this way, he avoided incurring any liability for losses.
[3]        These transfers were not effected by direct transfer from profit-making to loss-making customer accounts. Rather, they were effected by numerous transfers for relatively small amounts, usually described in the company’s records as customer refunds. Further, the transfers were not made directly from one customer account to another, but rather through bank accounts operated by the appellant or his then partner. In particular, between 12 July 2004 and 31 July 2006 the appellant transferred $72,240 from customer accounts to his personal credit card account, by way of 55 fictitious transactions. He also transferred $6,731 from customer accounts to his partner’s personal Visa card account. Before the appellant left his employment, most of the $78,971 was repaid into the accounts of various other customers.
[4]        The transactions were not discovered until after the appellant had left the company and started his own travel agency. Owing to the complexity of the transactions, it took over 500 hours for another of the company’s employees to work out precisely what had happened.
[5]        The appellant was originally charged with theft. However, five days prior to trial, the Crown laid substituted charges of obtaining by deception (s 240 of the Crimes Act 1961), whereupon…

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 Price

Details

AGLC: R v Price [2009] NZCA 600
Case: [2009] NZCA 600
Decision Date: 16 December 2009

CaseChat Overview and Summary

In the appeal of R v Price, the appellant Dennis Alan Price contests his six-month imprisonment sentence for 60 counts of obtaining by deception. Price, a former travel consultant, had engaged in fraudulent activities by transferring funds from profitable customer accounts to deficit accounts, effectively "smoothing" the accounts and avoiding personal financial liability. Although most of the funds were repaid before the deception was discovered, the appellant's actions constituted a significant breach of trust and abuse of his professional position. The court was required to determine whether the sentence imposed was manifestly excessive and whether a non-custodial sentence should have been considered.

The Court of Appeal concluded that the original sentence, while not manifestly excessive overall, required correction for certain counts where the maximum penalty was incorrectly identified. The court acknowledged the appellant's personal circumstances, including his good character and the late amendment of charges, but emphasized the gravity of the offences. The appellant's actions were premeditated, sophisticated, and resulted in a substantial breach of trust, justifying a sentence of imprisonment. The Court of Appeal allowed the appeal in part, substituting concurrent three-month sentences for specific counts while maintaining the overall six-month imprisonment term.

Orders