Richards v Police

[2018] NZHC 2288

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2018-406-000005

[2018] NZHC 2288

BETWEEN

QUENTIN KYLE RICHARDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	31 August 2018 (via AVL at Wellington)
Counsel:	R A Harrison for Appellant S J Revell for Respondent
Judgment:	31 August 2018

JUDGMENT OF COLLINS J

Introduction

[1]                   Mr Richards was sentenced to 17 months’ imprisonment for theft in a special relationship1 on 30 April 2018 by Judge Zohrab at the District Court at Blenheim.2 Mr Richards appeals against his sentence on the grounds that an inadequate discount was made for reparation payments offered by Mr Richards. A lump sum reparation of

$48,000 has now been offered.

Background

[2]                   Mr Richards was previously employed as a sales manager by a firm in Christchurch (the business) that makes benchtop furniture. Between December 2015 and February 2017, Mr Richards regularly commissioned marble benchtop furniture

1      Crimes Act 1961, s 220(1)(a) and 223(a); maximum penalty seven years’ imprisonment.

2      Police v Richards [2018] NZDC 8395.

RICHARDS v NEW ZEALAND POLICE [2018] NZHC 2288 [31 August 2018]

without authorisation and sold it for personal gain. He also doctored paperwork to cover up his offending.

[3]                   In February 2017, the owner of the business discovered that Mr Richards had altered some paperwork in relation to one of these transactions, worth $2,000. He confronted Mr Richards, who initially denied the offending. However, after the business owner presented Mr Richards with video footage of him stealing the benchtop,  he  confessed,  but  he  said  it  had  only  happened  on  one  occasion.  Mr Richards explained his offending by reference to debts that he supposedly owed. However, when the business owner requested documentation confirming this story, Mr Richards came up with various excuses why he could not present the documents. Mr Richards even staged a break-in to his own vehicle to support a story that the documents had been stolen.

[4]                   This aroused the suspicions of the business owner, so he carried out the laborious task of checking through historical documentation and video footage, and checking with past clients, to establish whether or not there had been further instances of theft. The total amount discovered to be involved was approximately $50,000, although the business owner was only able to search back about one year (Mr Richards had been employed at the firm for seven years).

[5]                   The business employs seven staff, and can properly be described as a small enterprise. The loss of this amount of money, along with the substantial time investments spent investigating Mr Richards’ theft, has had a significant impact on the business.

District Court decision

[6]                   Judge Zohrab adopted a starting point of 20 months’ imprisonment, based on the amount stolen, the significance of the financial loss to the business, the scale of the offending and the breach of trust involved. Judge Zohrab uplifted the starting point by three months to reflect Mr Richards’ previous conviction for theft in a special relationship.

[7]                   Judge Zohrab then referred to Mr Richards’ offer to pay $150 to $200 per week by way of reparation. He noted the absence of a lump sum offer of reparation, but recognised that a discount was required. He gave two months. Judge Zohrab then gave a four-month discount for the guilty plea, which was just under 20 per cent. This resulted in an end sentence of 17 months’ imprisonment.

[8]                   Judge Zohrab considered home detention, and referred to all the relevant sentencing principles, but decided that a  custodial  sentence  was  appropriate  for Mr Richards’ offending. The sum of $48,000 by way of reparation was sought ($2,000 having already been paid). Judge Zohrab recognised that imprisonment would make reparation payments more difficult. He therefore fixed reparation at $30,000.

Appeal against sentence

[9]                   Section 250 of the Criminal Procedure Act 2011 requires me to allow the appeal if:

(1)for any reason, there is an error in the sentence imposed on conviction; and

(2)a different sentence should be imposed.

[10]               The Court of Appeal has explained that whether a sentence is “manifestly excessive” continues to be an important guide to finding an error.3 The Court of Appeal has also explained:4

The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.

[11]               If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error in the process of reaching that end sentence.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

4      At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].

Ground of appeal

[12]               Mr Richards advances two related grounds of appeal. First, that Judge Zohrab was not made aware that a further sum of $2,000 had been available to contribute to reparation (as defence counsel in the District Court was not aware of this due to a miscommunication). Second, that the end sentence was manifestly excessive because inadequate discount was given for reparation. Ultimately, Mr Richards seeks to have his prison sentence replaced with a sentence of community detention.

[13]               A sum of $10,000 was paid into Court pending this appeal, which was adjourned on 10 July 2018 to enable Mr Richards to explore the possibility of withdrawing further funds from his Kiwisaver account. Since that time, Mr Richards has been able to withdraw $38,000 from his Kiwisaver account, and he is now also willing to pay that amount as a lump sum to the business. Thus, as at today, $48,000 is available in addition to the $2,000 that has already been paid by way of reparation.

Analysis

[14]               The sole issue on appeal is whether or not the offer to make a lump sum reparation payment of $48,000 renders it necessary to change the sentence of imprisonment imposed by Judge Zohrab. Mr Richards does not take issue with any other aspect of Judge Zohrab’s sentencing approach.

[15]               I accept there can now be said to be an error in the sentence imposed by Judge Zohrab and that a different sentence should be imposed. This is not because the sentence arrived at by Judge Zohrab was outside the acceptable range, but because Judge Zohrab was not at the time made aware of the offer to make a lump sum reparation payment, and he could not have been aware of the quantum of the offer that has now been made. That offer also means that a larger discount is warranted to recognise Mr Richards’ reparation payments. The question then is whether a different sentence should be imposed, and what that sentence should be.

[16]               A lump sum reparation payment of $48,000 is very substantial in the context of this case. It represents the balance of the total amount stolen by Mr Richards. The amount is also greater than the total order for reparation made by Judge Zohrab, and

the business would have the advantage of that amount being paid forthwith. This is a real benefit in that it gives certainty to the business, and it allows it immediate access to funds that it would otherwise have to wait several years to receive.

[17]               It is also pertinent to note the views of the business owner in this regard.     Mr Revell, counsel for the Crown, confirms that the business owner has no objection to a non-custodial sentence if Mr Richards pays back the full amount. Accordingly, the Crown does not oppose the appeal, but submits that home detention is the appropriate sentence rather than community detention. Mr Revell submits that while it is commendable for Mr Richards to repay the amount stolen, it should be kept in mind that this only puts the business back in the same position it would have been in but for the offending. Mr Revell also submits that a deterrence element is necessary as part of the sentence because of the recidivist nature of Mr Richards’ offending.

[18]               I agree with those submissions. The offer to make full reparation of the stolen amount is commendable and deserves to be recognised by an appropriate discount. It also means that a sentence less than imprisonment is appropriate to reflect the fact that Mr Richards has clearly made an attempt to make amends for his crime. However, community detention is simply not appropriate given the scale of the offending and the fact this is the second time Mr Richards has committed this type of offence.

[19]               Mr Richards served a sentence of home detention after his first instance of offending of this nature. It would be quite inappropriate in those circumstances for him to serve a more lenient sentence on this occasion, despite his repayment of the amount he stole. While home detention also has a significant deterrent aspect, and is a real alternative to a sentence of imprisonment,5 that cannot be said to the same degree with respect to community detention, which involves a much lesser degree of restriction. None of the other factors relating to Mr Richards’ personal circumstances, referred to by Mr Harrison in his submissions, detract from this conclusion.

[20]               I consider that a discount of six months is appropriate to reflect the full reparation paid by Mr Richards. Applying Judge Zohrab’s approximate discount of

5      R v Iosefa [2008] NZCA 453 at [41].

20 per cent for the guilty plea, that results in an end sentence of 13 months’ imprisonment.

[21]               I convert that sentence to one of six and a half months’ home detention. The home detention is to be served at the address recorded in the PAC Report. The standard conditions of a sentence of home detention applies. I make it a condition however of Mr Richards’ sentence that he be permitted to continue to work for his current employer, NCTIR based in Kaikōura. The sentence of home detention commences at 12 noon on 4 September 2018.

Result

[22]The appeal against sentence is allowed.

[23]               The sentence of 17 months’ imprisonment is quashed and substituted with a sentence of six and a half months’ home detention.

[24]               The order to pay $30,000 in reparation over five years is quashed and substituted with an order to immediately pay $48,000 by way of reparation.

D B Collins J

Solicitors:

Crown Solicitor, Nelson for Respondent