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 would accordingly, at the time of sentencing, cause undue hardship to Ms Rasmussen.

[9]      Further,  now  that  she  was  been  sentenced  to  imprisonment,  her  earning prospects are further limited.  The current order will take 24 years to pay.  And there is no certainty of her having the means to pay at that rate.  Accordingly, the order was not realistic at the time and is less so today.

[10]     Mr  Jefferson  accordingly  submits  that  the  order  should  be  quashed  and replaced by an order for reparations of $5,200, being $20 per week over five years.

Crown submissions

[11]     Ms Mitchell, for the Crown, accepts that the order was not capable of being fulfilled and it is necessary to determine a more appropriate quantum.

[12]     Counsel submits that until the point of her incarceration, Ms Rasmussen attested to having the full support of her employers, and they provided a character reference for sentencing purposes. Accordingly, her ability to find employment as an accounts and office manager has not been significantly compromised by the offending.  And her earning capacity should be taken into account in determining appropriate reparation.

[13]     Ms Mitchell submits that the hardship in the present order lies in its length rather than the level of weekly repayments.  Accordingly, an order giving effect to the current amount of $40 per week, but over five years would be appropriate.  This would amount to $10,400.  This would result in some degree of hardship, but not undue hardship – particularly given that she is  likely to regain employment on release and that she had volunteered to assume a more significant burden. And if she is unable to find employment on release, then there is provision in s 38A(2) of the Sentencing Act 2002 to apply for cancellation or variation of the order.

Discussion

[14]     When, under the Sentencing Act, a court is entitled to impose reparations, it must  do  so  unless  such an  order would  result  in  undue hardship,  or  would  be

inappropriate because of special circumstances.1   If an offender cannot pay the total

1      Sentencing Act, s 12(1).

value of the loss, the court may impose reparations for an amount less than the value of the loss, or payment of the amount by instalments, or both.2

[15]     The  reparation  should  be  realistic  given  the  financial  resources  of  the offender,3  and the Judge should have “a realistic measure of confidence” that the payment is able to be made.4    Future earning capacity can be taken into account as part of this determination.5

[16]     Reparation orders which require payment over a period of more than five years are generally regarded as causing undue hardship.   In Guiness v Police, Woodhouse J summarised a number of cases to illustrate this.6   He noted two Court of Appeal decisions, R v Vallily7 and R v Creek,8 where reparations over eight years and  nine  and  a  half  years  respectively  were  upheld  by  the  Court  of  Appeal.

However, in Vallily the Court expressed reservations about the length of time it would take the reparations to be paid, but upheld the reparation order because it had been agreed to.9     In Creek, the Court of Appeal said that the appeal may have succeeded were it a general appeal, but as there was no error of law, it could not intervene.10

[17]     The Court in Creek also noted that a defendant facing imprisonment but hoping for a lesser alternative “has every motive to make an unrealistic reparation offer”.  Common sense suggests, the Court said, that such offers, and the implication that their terms could be achieved in practice, should be “taken with a grain of salt”.11

[18]     In the present case, counsel are agreed that the order should have a duration of five years.  I agree.  The District Court would have locked the appellant into a 24-

2      Section 35(1).

3      R v Bailey CA306/03, 10 May 2004 at [25].

4      R v Pender [2007] NZCA 465 at [15].

5      R v Brown CA267/92, 26 November 1992 at 5; Taua v Police HC New Plymouth

CRI-2009-043-22, 22 September 2009 at [7].

6      Guiness v Police [2015] NZHC 883 at [17]-[18].

7      R v Vallily CA251/04, 10 November 2004.

8      R v Creek CA199/06, 17 August 2006.

9      Vallily, above n 7 at [75]-[76]. The order was however reduced from $87,000 (at $100 per week)

to $40,000 ($5,000 per year over eight years).

10     Creek, above n 8 at [11].

11 At [11].

year repayment regime which was plainly excessive.  The only question is the rate of payments.   Should it be $20 per week totalling $5,200 or $40 per week totalling

$10,400?

[19]     The appellant’s domestic budget was provided to the Court.  It records that the appellant has a weekly income of $924.38 and weekly expenses of $1,216.16: a deficit of $291.78.  This included income from two part-time jobs that she held prior to her incarceration ($256.55 and $67.52 each).   There is no suggestion that the budget misstates the appellant’s circumstances.   It is difficult to see how she will afford $20 per week, let alone $40.  And, while she seems to have been regarded highly in her employment immediately prior to her imprisonment,  it still seems unrealistic to assume that she will find it easy to obtain employment in positions of trust for which she is best qualified when she is released given the serious nature of her conviction.

[20]     Finally, like the Court in Creek, I consider that the offer to pay $50 to the probation officer and repeated in the appellant’s letter to the Judge cannot be taken as realistic.

[21]     Weighing these factors up, and especially issues of affordability, it is plain to me that the lesser figure is the appropriate one.  Accordingly, the appeal is allowed, the reparation order is quashed and an order for $5,200 reparations to be paid in weekly instalments of $20 is substituted.

Williams J

Solicitors:

D Kerr, Barrister, Napier

Crown Solicitor’s Office, Napier