RACHEAL GRAY aka RACHEAL ARMSTRONG AND THE KING

[2024] NZHC 2746

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-78

[2024] NZHC 2746

BETWEEN

RACHEAL GRAY aka RACHEAL ARMSTRONG
Appellant

AND

THE KING

Respondent

Hearing:	17 September 2024 (by VMR)
Counsel:	J Howell on instructions from S Mills for Appellant P Patanasiri for Respondent
Judgment:	23 September 2024

JUDGMENT OF VENNING J

[on appeal against sentence]

This judgment was delivered by me on 23 September 2024 at 2.30 pm.

Registrar/Deputy Registrar

Date……………

Solicitors:           Lance Lawson Ltd, Rotorua

Gordon Pilditch, Rotorua

GRAY v R [2024] NZHC 2746 [23 September 2024]

[1]    Ms Gray pleaded guilty in the District Court to a number of charges involving dishonesty offending. On 14  June  2024,  Judge  G  C  Hollister-Jones  sentenced Ms Gray to three years, 10 months imprisonment.1 The Judge also made an order under s 86(2) of the Sentencing Act 2002 (the Act) requiring Ms Gray to serve one half of her sentence before being eligible to apply for parole.2 Ms Gray appeals against both the sentence imposed upon her and the order that the Judge made requiring her to serve a minimum term of imprisonment (MPI).

The offending

[2]    Ms Gray offended against no fewer than six separate victims. In each case she befriended and gained the trust of the victim before asking the victim to lend or provide her with money. This resulted in Ms Gray pleading guilty to 12 charges of causing loss by deception, three charges of dishonestly using or taking a document and one charge of theft of an amount over $1,000.

Victim A (six charges)

[3]    Ms Gray met victim A who is a 65-year-old female, whilst she and the victim were receiving treatment at a mental health facility. After they were both released, Ms Gray contacted the victim and told her she had nowhere to live. She also said that she had terminal cancer. Not surprisingly, the victim felt sorry for Ms Gray and offered to let her live at her house. Ms Gray then lived with the victim for approximately one month in February 2022.

[4]    Whilst Ms Gray was living with the victim, she obtained loans from her totalling $8,663 to buy a motor vehicle and accessories. She also obtained a loan of

$260 to purchase a mountain bike. In order to persuade the victim to make the loans, Ms Gray told the victim she had a substantial quantity of money with an overseas bank. She provided the victim with a forged copy of a bank statement in the name of that bank.

1      R v Armstrong [2024] NZDC 13865.

2 At [49].

[5]    At some stage between 1 February and 22 April 2022, Ms Gray also took the victim’s driver’s licence without her permission. She used the licence to enter into a cell phone contract with a major provider.

Victim B

[6]    Ms Gray met victim B through a mutual friend. She told this victim that she was a specialist trauma doctor and that she had a terminal illness and that she had approximately six months to live. She told victim B that she owned two properties in Auckland, one of which she was selling for the sum of $3.4 million. The information she gave to victim B was obviously false because she was not a doctor, she did not have a terminal illness and did not own any properties in Auckland.

[7]    Between 26 December 2021 and 2 January 2022, victim B was deceived into buying clothing to the value of $5,675.49 for Ms Gray. In addition, Ms Gray persuaded her to pay the sum of $5,167 for rental accommodation because Ms Gray told her she needed somewhere to stay whilst her tenants were moving out. In addition, Ms Gray persuaded victim B to pay parking tickets she had accumulated in a total sum of $815.50.

Victim C

[8]    Ms Gray met victim C through the dating application Tinder and quickly entered into a relationship with him. She told victim C she was a locum doctor working out of several hospitals in the upper North Island. She also told victim C she was dying of cancer. She told him she had always dreamed of being married and he agreed to marry her.

[9]    Ms Gray moved into victim C’s address. A short time later she told him she wanted to buy a vehicle and that she would pay for the vehicle from a bank account held with an overseas bank. She went to a motor vehicle dealership where she bought a Ford Ranger motor vehicle for the sum of $65,990. She used victim C’s email address and deceived the dealership into sending emails to her via a hidden folder in victim C’s email account. She then sent an email to the dealership purporting to be a confirmation from the overseas bank that the necessary funds to purchase the vehicle

had been paid into the dealership’s account. When the money failed to arrive, the dealership contacted the bank who advised that the documentation Ms Gray had shown it was false. Fortunately, the dealership had not parted with possession of the vehicle before it discovered what Ms Gray had done.

Victim D

[10]   In November 2022, Ms Gray advertised a motor vehicle for sale on Facebook. Victim D contacted her to view the vehicle and met with victim D at a motel in Rotorua on 17 November 2022. She then persuaded him to loan her the sum of $1,500 because she had to go to hospital and her husband had frozen her bank accounts. Victim D gave her $1,000 in cash on the date that he met her at the motel. Four days later, on 21 November 2022, victim D gave Ms Gray the further sum of $1,500 because he felt sorry for her.

Victim E

[11]   Ms Gray commenced a relationship with victim E in October 2022. She told him she was a doctor at Rotorua Hospital and that she owned property in Auckland to the value of $9 million. She also said she had $3.9 million in offshore bank accounts.

[12]   On 30 November 2022, Ms Gray asked victim E if she could borrow the sum of $2,080 from him on the basis that she would repay the money in a few weeks. He agreed and gave Ms Gray a credit card. She used this at a motel in Rotorua for payments totalling $2,080 which she never repaid. On 20 December 2022, she used the card to obtain benefits for $4,000 at the same motel. When victim E confronted Ms Gray about these transactions, she denied knowing anything about them. He then contacted the motel and was advised that Ms Gray had used a different name when entering into the transactions than he knew her by. He then made enquiries on the internet about the name Ms Gray had given the motel. This led him to contact the police. In the meantime, Ms Gray had stolen the sum of $5,000 in cash from him by taking that sum from a cupboard in his house.

Victim F

[13]   Ms Gray was living with victim F in September 2022. When he told her he was looking to purchase an apartment, she said she was a property investor and could help him out. He then paid the sum of $42,500 to Ms Gray’s bank account in the belief that it would be used as a deposit to purchase a property through Ms Gray. That never occurred.

District Court decision

[14]   After setting out the facts, the Judge referred to the effects the offending had on Ms Gray’s victims, four of whom had provided victim impact statements. These expressed significant anger and feelings of betrayal. It is clear that the offending has had long-standing effects on several of the victims. They and those around them cannot believe their lack of judgment in being duped by Ms Gray and thereby losing significant sums of money.

[15]   Ms Gray had agreed to undergo restorative justice but only one victim attended. Although Ms Gray apologised to this victim she was not prepared to accept the apology. Further, the writer of the pre-sentence report considered that Ms Gray displayed little in the way of remorse and appeared to justify her offending on grounds that she provided benefits to the victim. In some cases she continued to deny the offending completely.

[16]   The Judge considered the offending displayed several aggravating features. These included the magnitude and sophistication of the offending. In all but one of the cases, Ms Gray had entered into a significant friendship or interpersonal relationship with the victim in a way that she knew would gain the victim’s sympathy and trust. The attempted purchase of the motor vehicle involved the creation of a sophisticated email scam.

[17]   The Judge also considered the number of victims to be relevant. Ms Gray defrauded one business entity and five individual victims, two of whom where vulnerable due to health issues. Two of the other victims were emotionally vulnerable because they sought to enter into a relationship with Ms Gray.

[18]   The offending also involved significant financial loss to all but one of the victims. The losses totalled more than $73,000 whilst, had the attempt to obtain the motor vehicle been successful, Ms Gray would have received a benefit worth more than $65,000. In each case the Judge found that the offending was motivated by greed as well as complex and grandiose behaviours on Ms Gray’s part.

[19]   In the case of four of the victims, the offending involved a significant degree of breach of trust because Ms Gray had exploited her emotional relationships with those victims to get money. This had resulted in significant emotional and financial impact for the individual victims. Taking these factors into account, the Judge selected a starting point of four years’ imprisonment.

[20]   The Judge then applied an uplift of six months’ imprisonment to reflect the fact that Ms Gray has several previous convictions for similar offending. She received a sentence of 18 months’ imprisonment on 4 August 2010 for offending of a similar type and she received a sentence of seven months’ home detention on 9 December 2016 on a charge of obtaining more than $1,000 by way of deception. Then, on 6 November 2019, Ms Gray received a sentence of 17 months’ imprisonment for offending that had very similar features to the present. The 2015 offending (for which she was sentenced in December 2016) occurred after Ms Gray met a male victim through a dating website. She told him she had cancer and needed money for her treatment and medication overseas. She met one of the victims of the 2018 offending (for which she was sentenced in November 2019) on an on-line dating site and then used fraudulent means to persuade him to pay money to her.

[21]   The Judge also applied an uplift of two months to reflect the fact that after being granted bail on the earlier charges, Ms Gray went on to commit the offences against victim E.

[22]   Turning to mitigating factors, the Judge applied a discount of 15 per cent to reflect her guilty pleas. This reflected the fact that Ms Gray had pleaded not guilty to the charges in early 2023 and did not enter guilty pleas until April 2024. She did so in the face of a very strong Crown case.

[23]   The Judge had the benefit of a report prepared by a registered clinical psychologist, Mr Laven. This detailed some hardships from which Ms Gray had suffered during her upbringing and concluded that Ms Gray suffers from generalised anxiety disorder and avoidant personality disorder.  The report writer  stated that   Ms Gray sought to allay her anxiety by seeking out people with whom she could depend. She also sought to test their emotional safety liability by convincing them to feel sorry for her and to give her benefits such as money. The Judge considered the disorders referred to by the psychologist did not provide a convincing explanation for her complex and deceitful practices. However, he allowed a discount of five per cent to reflect the difficulties faced by Ms Gray during her upbringing.

[24]   Applying the discounts of 20 per cent to the starting point of four years, eight months’ imprisonment, the Judge rounded it up to the end sentence of three years, 10 months’ imprisonment. He then made the order requiring Ms Gray to serve one half of the sentence because of the need to denounce her conduct, to deter her and to protect the community.

Appeal

[25]   Ms Gray appeals against the length of the sentence and the imposition of the MPI. In short, Mr Howell submitted on behalf of Ms Gray that the Judge erred in his sentencing decision by:

(a)adopting a starting point of four years’ imprisonment on all the charges;

(b)placing insignificant weight on Ms Gray’s mental health and background factors, and in imposing the MPI of 50 per cent.

As a result Ms Gray says the sentence was manifestly excessive.

[26]   In principle counsel accepted that it was open to the Judge to include uplifts for Ms Gray’s previous recent history and offending whilst on bail. No issue was taken with the guilty plea discount of 15 per cent. The focus of the appeal was on the starting point and the allowance of only five per cent for the contents of the psychological report and also with the imposition of the MPI.

[27]   While accepting generally that a global starting point of four years for all charges may not on its own have resulted in a manifestly excessive sentence, when taken with other errors counsel submitted that the result was an overall sentence that was manifestly excessive.

[28]   Mr Howell submitted that in this case, while the appellant Ms Gray had gone to significant lengths to deceive, the offending was not particularly sophisticated. It could easily be attributed to her and she was destined to be uncovered. Next, while accepting there were a number of victims, the appellant had a clear motivation to adopt a persona of a wealthy person and medical specialist in some cases which could be attributed to the deep need she had to convince people and herself that she was an adequate competent person, all of which stemmed from her childhood. Mr Howell argued this answered the Judge’s assessment of Ms Gray as being driven by greed. While also accepting there were breaches of trust in the relationships it was submitted that the relationships formed were different between the various victims.

[29]   Mr Howell then referred to the decisions of Beaumont v Police, Rapana v R, and Visser v Police.3 In his submission the above authorities have many similarities with the current offending. There was similar behaviour which led to victims investing or passing over money on the basis of misrepresentations by the offenders. The common thread was that the victims put their trust in the offenders after being told a fictitious story. He suggested that the current case was analogous to that of Beaumont where Mr Beaumont had manufactured emotive stories to gain the victim’s trust. A starting point of three years, nine months’ imprisonment was accepted as appropriate on appeal. He submitted that the District Court Judge was wrong to assess Beaumont to be less serious than the current case. In Beaumont there were 39 charges of dishonesty in comparison to just 16 in the current case and 39 victims as opposed to the six in the current case. While the Judge had noted the current case had emotional manipulation which made it more serious than Beaumont, Mr Howell submitted that similar emotional manipulation was present in Beaumont.

3      Beaumont v Police [2022] NZHC 472; Rapana v R [2018] NZHC 1829; and Visser v Police [2015] NZHC 3275.

[30]   Counsel also suggested Rapana had many similarities to the current offending. Both had represented themselves as something they were not for personal gain.

[31]   In Visser v Police,4 Mr Visser submitted 18 fraudulent policies on behalf of two non-existent entities and received over $270,000 in commission. The Judge took a starting point of three years, six months’ imprisonment.

[32]   Both Rapana and Visser used their employment and special information to deceive their employers, contractors and customers. Having regard to the above authorities Mr Howell submitted that a start point of three years, six months’ imprisonment was appropriate in Mr Gray’s case.

[33]   Next, counsel referred to the psychologist’s report and submitted that having regard to the comments of the Supreme Court in Berkland v R,5 a consideration of Ms Gray’s background was essential to imposing an appropriate sentence. He noted the Supreme Court favoured the approach of a “causative contribution” which captures the background factors that can be drivers of in some cases intergenerational sources of offending. As to mental health, the Court had said:

… where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing.

[34]   Mr Howell referred to aspects of the psychologist’s report which compared Ms Gray’s offending to addiction. He then used that as a springboard to suggest that the comments of the Court of Appeal in Zhang v R,6 as to the effect of a pre-existing state of addiction might be a relevant mitigating factor. While the addiction referred to in Zhang and Berkland was attributed to drugs, counsel submitted that the same principles applied in the present case. He argued for a discount of 15 per cent as appropriate.

[35]   Finally, Mr Howell argued that an MPI was not necessary in this case and will deter Ms Gray’s rehabilitation. In counsel’s experience a person serving an MPI other

4      Visser v Police, above n 3.

5      Berkland v R [2022] NZSC 143.

6      Zhang v R [2019] NZCA 507.

than the standard would effectively go to the back of the queue for courses as intervention will only be actioned once the minimum period of imprisonment has passed. Mr Howell argued that the interests of the public generally would be better served by Ms Gray having help sooner rather than later.

[36]   For the above reasons it was submitted that the Judge erred and the end sentence of three years, 10 months, combined with the MPI of 50 per cent resulted in a manifestly excessive sentence.

Crown response

[37]   The Crown’s response is there was no error in the global starting point of four years’ imprisonment adopted by the Judge. The uplifts applied could be seen as generous to Ms Gray in the circumstances, as the Judge could have adopted higher uplifts for both aggravating factors of her past history and offending while on bail. Mr Patanasiri suggested that the 15 per cent discount for the guilty plea was “generous” given that Ms Gray first appeared on the charges in August 2022 and only pleaded in April 2024. Also, for a period she was in breach of her bail conditions.

[38]   Mr Patanasiri submitted that the allowance of five per cent for Ms Gray’s mental health and personal issues identified in the psychological report was an appropriate allowance. He submitted it was not appropriate to treat the link between the appellant’s penchant for offending in the way she does with a drug addiction as suggested. Having regard to the contents of the psychological report, when read in full, and when taken with the appellant’s comments in the PAC report itself, an allowance of five per cent for her personal circumstances was again sufficient if not generous.

[39]   Finally the Crown submitted that this was a case where s 86 of the Act was engaged and it was necessary to impose an MPI longer than the usual amount to denounce the conduct, deter the offender, and particularly, to protect the community from Ms Gray. Given the Judge could have imposed an MPI of 66 per cent, the MPI of 50 per cent could not be criticised.

Approach to the appeal

[40]   In Tutakangahau v R the Court of Appeal confirmed that on appeal the appellant must show there was an error “whether intrinsically or as a result of additional material submitted” on appeal.7 If an error is established, the appellate court will then form its own view of the appropriate sentence. The error must be material. Further, the concept of a manifestly excessive sentence is longstanding and should continue to be utilised when considering whether there was an error and if a different sentence should be imposed. Finally, the focus of the sentence remains on whether the end sentence is within range rather than the process by which it was reached.

Analysis

[41]   In R v Varjan the Court of Appeal noted there was no tariff case for dishonesty related offending because of the wide range of circumstances in which it can occur.8 The Court then identified the relevant factors when assessing a defendant’s culpability in fraud cases:

[22]      Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

[23]      It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.

[42]   In addition to the cases cited on behalf of the appellant, the Crown refers to Krishnan v Police where on 14 charges of fraud, dishonesty and perjury, the Judge took a starting point of five years’ imprisonment for the 14 fraud and dishonesty charges.9 Mr Krishnan forged and altered letters, practising certificates and other documents in order to obtain employment at a hospital as a medical officer. The potential harm to the public was obvious. Woolford J noted the offending involved careful planning and a high degree of sophistication, a breach of trust and vulnerable

7      Tutakangahau v R [2014] NZCA 279.

8      R v Varjan CA97/03, 26 June 2003.

9      Krishnan v Police [2023] NZHC 3326.

victims, and the length of the offending over a period of 22 months. The offending was a real threat to the integrity of the health system and the justice system. Krishnan is a more serious case because of the circumstances and given the potential for physical harm to members of the community.

[43]   In Blackmore v R,10 Mr Blackmore had taken money from victims purporting to fix or repair their vehicles . There were 17 victims with losses of under $17,000. The starting point was three years, six months.

[44]   In the present case the particularly relevant factors are the six victims who the appellant took time to befriend and manipulate before exploiting their trust. Ms Gray formed relationships with all of them, actually lived with at least three of them and even convinced one to marry her. The impact on the four victims who filed victim impact statements clearly made an impression on the Judge. Reference was made to extensive fallout as a result of the betrayal, the effect on the family dynamics and relationships. One victim felt violated, angry, hurt and used and the victim who agreed to marry Ms Gray says he was very distraught and finding it difficult to trust people which was affecting his ability to form other relationships. Next, the unrecoverable losses in the present case is in excess of $73,000 as opposed to under $17,000 in Blackmore v R,11 and $65,000 in Beaumont.12

[45]   Having regard to the features identified by the Court of Appeal in Varjan,13 I reject the submission that Ms Gray’s offending lacks sophistication because Ms Gray was always going to be apprehended. It generally involved her cultivating her victims over a long period of time and exploiting their vulnerability. The motivation for the offending appears, even from the psychologist’s report to have included clear personal gain. As noted, the amounts involved were significant and the offending involved serious breaches of trust. I have already referred to the effect on the victims.

[46]   I also agree with the Crown’s submission that the present case is a serious one in that it featured premeditation of a higher degree and a more significant breach of

10     Blackmore v R [2014] NZCA 109.

11     Blackmore v R, above n 10.

12     Beaumont v Police, above n 3.

13     R v Varjan, above n 4.

trust than Rapana v R.14 While Mr Visser’s offending involved $270,000 the offending was over a short period of time and involved him submitting fraudulent policies. Recently this Court upheld a starting point of three years, nine months’ imprisonment in the case of Maddren v Police.15 Mr Maddren pleaded guilty to 12 charges of fraud involving approximately $180,000.

[47]   In the circumstances, a starting point of between three years, nine months and four years was appropriate. The starting point of four years taken by the Judge, while perhaps towards the top of the available range, was open to the Judge. It cannot be said that the starting point of four years was outside the range available to the Judge.

[48]   The appellant also challenges the application of five per cent for Ms Gray’s personal circumstances referred to in the psychologist’s report. As a start I reject the appellant’s submission that her recidivism and repeated offending in this way is akin to a drug or alcohol addiction and that should be regarded as a mitigating factor in light of the Court of Appeal decision in Zhang v R.16

[49]   It appears from the report that while Ms Gray was driven to offend by her desire for social acceptance it was also driven at least in part by her self-interest. Indeed the psychologist’s report expressly referred to that:

While I had no doubt that the psychological processes described above contributed significantly to Ms Gray's offending, clearly it was also motivated by fully conscious self-interest and based on the criminal skills she had become good at. Her offending history sometimes appeared to involve victims from whom the offending sought evidence of their caring and friendship, while for other victims it appeared to be simply planned and callous. She currently maintained cognitive distortions that facilitated the offending, such as denying self-gain as a motivation and rationalising it as necessary for her survival. Ironically and in a cascade of causes, her offending will have been reinforced by the sense of competence (in this case at deceiving people and achieving gain) that was a deep need.

[50]   Mr Howell relied upon the psychologist’s comment that punishment “will have little impact on her future offending risk. In fact, to the extent that it further ingrains her self-beliefs of inadequacy in human society, it will increase her future offending

14     Rapana v R, above n 3.

15     Maddren v Police [2024] NZHC 2599.

16     Zhang v R [2019] NZCA 507.

risk”. Nevertheless, when imposing sentence the District Court Judge was required to have regard to a number of considerations under the Act (as is this Court required to do on appeal). In this case the protection of the community, denunciation and deterrence, were all particularly relevant considerations. While personal deterrence may not be a particularly driver in this case, deterrence of others is important. But the overriding consideration in this case is the protection of the community from Ms Gray given her past offending. In the circumstances, again while another Judge may have given an allowance of more than five per cent for her personal factors, I am not able to say that five per cent was not available to the Judge.

[51]   At the end of the day, as the Court of Appeal have confirmed on a number of occasions, the issue is whether the end sentence is manifestly excessive, not how it is achieved.

[52]   The matter can be tested in the following way. A starting point of three years, nine months could have been taken instead of the four years taken by the Judge. Given Ms Gray’s past history of offending six months’ imprisonment at least was required as uplift. Further the uplift for offending on bail (and subject to the special conditions of sentence) could have been between another four and six months. No issue is taken with the allowance of 15 per cent for the guilty plea. Ms Gray first appeared in respect of the majority of the offending on 31 August 2022. She had her first appearance in relation to the offending against victim E on 16 March 2023. There were then various callovers including one scheduled for 13 December 2023 for a trial date to be allocated. However, Ms Gray removed her EM bracelet and absconded from the EM bail address. Four months later, on 29 March 2024, she handed herself in and then on 11 April 2024 pleaded guilty to all charges. Given the strength of the Crown case and the background to the appearances, no more than 15 per cent would have been available to the Judge. Indeed 12½ per cent might have been regarded as appropriate. While Ms Gray entered guilty pleas I note that in the Provision of Active to Courts (PAC) report she was recorded as saying:

Ms Armstrong presented with an inflated sense of entitlement, she minimised her offending and the impact it has had on her victims. Ms Armstrong displayed a preoccupation with wanting to be perceived as successful, a lack of empathy and a certain level of manipulation.

Indeed, Ms Gray at times denied planning the offending and denied stealing. She said she would appeal some of the convictions.

[53]   Taking a three year, nine months’ starting point, uplifting it by six months for previous offending, and applying a further uplift of between four and six months for offending while on bail and subject to a sentence for similar offending, and applying the discounts of 20 per cent being the full 15 per cent discount for guilty plea and five for personal circumstances, (or 12½ per cent discount for guilty plea and seven and a half for personal circumstances), leads to an end sentence of between three years, eight months and just over three years, nine months. In the circumstances, the end sentence of three years, 10 months cannot be described as manifestly excessive.

Minimum period of imprisonment

[54]   As noted, Mr Howell submitted that an MPI was not necessary in the present case and may in fact deter rehabilitation of the appellant. As the report noted, psychotherapy is a necessary component of rehabilitation which may be postponed if an MPI is imposed.

[55]   However, s 86 of the Act was engaged in this case. The Judge directed himself to the appropriate considerations under s 86. In particular he referred to the need to denounce Ms Gray’s conduct and to deter her and most importantly to protect the community. The protection of the community in this case is an important consideration given the recidivist nature of Ms Gray’s offending in this way and the impact her offending has had on several victims, not just the ones associated with the current offending. The harm to the community is obvious from her offending in the past as well.

[56]   It was open to the Judge to impose a minimum period of imprisonment having regard to the considerations under s 86 of the Act and Ms Gray’s offending in this case. In this case Ms Gray’s personal circumstances and interests must be a secondary consideration to the need to protect the community.

[57]   On the basis that an MPI greater than the one-third was available no issue can be taken with an MPI of 50 per cent.

Result

[58]The appeal is dismissed.

Venning J