Rasmussen v Police - [2016] NZHC 2648

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-29 [2016] NZHC 2648

BETWEEN
PAULINE RASMUSSEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 November 2016

Counsel:

D Kerr for Appellant
M Mitchell for Respondent

Judgment:

7 November 2016

JUDGMENT OF WILLIAMS J

Introduction

[1] Ms Rasmussen pled guilty to a representative charge of theft by a person in a special relationship. The quantum of the theft was settled at around $51,000 during a disputed facts hearing. She was sentenced to one year and nine months’ imprisonment and ordered to pay $50,000 in reparations, at a rate of $40 per week.

[2] She appeals against the quantum of the reparation order.

Facts

[3] Ms Rasmussen was employed as an office manager. She stole from her employer over several years. She did this in two ways. First, by stealing from the till and writing a cheque to avoid detection; and second, by stealing from licensing sales by not depositing the cash into the bank account used for that purpose. As a result, the business was struggling financially. The owners spent $20,000 on a business mentor to try to work out where the funds were going and also brought in
someone from another franchise to try to work out the problem.

RASMUSSEN v NEW ZEALAND POLICE [2016] NZHC 2648 [7 November 2016]

[4] There was a disputed facts hearing. The prosecution alleged that she had stolen over $80,000, while she initially accepted that she had taken $32,566.40. The police alleged that there were three categories of offending comprised of 197 separate instances. During the hearing, the parties settled on the quantum of
$51,442.90.

District Court decision

[5] The Judge noted the aggravating features: the amount taken, the period of time over which it was taken, the breach of trust, the deliberate nature of the offending, the repetition, and the damage caused. In particular, Ms Rasmussen was aware that the business was going downhill and she watched the owners struggle while continuing to steal. He imposed a starting point of two years six months, and discounted by three months for lack of previous convictions and six months for the guilty plea. The Judge declined to impose home detention because it would not be adequate denunciation and deterrence, and nor would it adequately reflect her culpability.

[6] The Judge also imposed $50,000 reparations to be paid at $40 per week starting two months after release.

Appellant’s submissions

[7] Mr Jefferson submits that the Judge failed to take into account

Ms Rasmussen’s ability to pay the sum and that the sum was manifestly excessive.

[8] The Judge referred to Ms Rasmussen’s undertaking to pay reparations. She had said to the Court that she would endeavour to meet payments of $50 per week, although the Probation Officer considered she could only afford $20 per week, which was the figure in the pre-sentence report. The Judge also had a budget advice worksheet which showed an income deficit of $291 per week and debts of $20,587. The order…

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 Rasmussen v Police

Details

AGLC: Rasmussen v Police [2016] NZHC 2648
Case: [2016] NZHC 2648
Decision Date: 7 November 2016

CaseChat Overview and Summary

In Rasmussen v Police, the High Court of New Zealand considered an appeal against the quantum of a reparation order imposed by the District Court. Ms Rasmussen, the appellant, had been sentenced to one year and nine months’ imprisonment and ordered to pay $50,000 in reparations for theft by a person in a special relationship. She appealed the reparation order, arguing that it was manifestly excessive and would cause her undue hardship. The key legal issue was whether the reparation order was appropriate given the appellant’s financial circumstances and future earning prospects.

The court found that the reparation order was not realistic given the appellant's financial situation. The District Court had imposed a reparation order of $40 per week, to be paid over 12 years, totalling $50,000. The court noted that the appellant had a weekly deficit of $291 and debts of $20,587. The Crown argued for a reduction in the duration of the repayment period to five years but maintained the weekly repayment of $40. The appellant’s counsel submitted that the weekly repayment should be reduced to $20 over five years, totalling $5,200.

The High Court agreed with the appellant’s counsel. The court held that the reparation order should be realistic, taking into account the appellant’s financial resources and future earning capacity. The court found that the original reparation order was excessive and would cause undue hardship, particularly as it would take 24 years to pay. The court quashed the original reparation order and substituted an order for $5,200 to be paid in weekly instalments of $20 over five years.

This decision highlights the importance of ensuring that reparation orders are realistic and take into account the financial circumstances of the offender. The court balanced the need for appropriate reparation with the need to avoid causing undue hardship, ultimately finding that the lesser reparation amount was appropriate given the appellant’s financial situation.

Orders