Scanlon v R - [2013] NZCA 502

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/2013
[2013] NZCA 502

BETWEEN	LINDA DOREEN SCANLON Appellant
AND	THE QUEEN Respondent

Hearing:	14 October 2013
Court:	White, Venning and Andrews JJ
Counsel:	S G Vidal for Appellant H W Ebersohn for Respondent
Judgment:	18 October 2013 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe reparation order is quashed and replaced by an order that the appellant pay reparation of $13,000 at $50 a week, as from the appellant’s release from prison.

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REASONS OF THE COURT

(Given by Andrews J)

Introduction

On 18 March 2013 the appellant was sentenced by Judge J A Farish in the District Court at Invercargill, after pleading guilty to 330 counts of dishonestly using a document.[1] The appellant was sentenced to two years, three months’ imprisonment and ordered to pay reparation of $138,172.77 at $50 a week, as from her release (“the reparation order”).
[1]R v Scanlon DC Invercargill CRI-2011-025-2319, 18 March 2013.
The appellant has appealed against the reparation order, on the grounds that it will result in undue hardship for her, and that the Judge failed to take her financial circumstances into account when making the order. The appellant seeks an order quashing the reparation order.

Facts

In late 2005, the victim (“V”) asked the appellant to assist him to complete paperwork for a loan application, which she did. Later, V asked her to help him complete tax returns for his business. The appellant agreed to do this, and was given authorisation to deal with V’s bank accounts and internet banking facilities. The appellant later obtained a cheque book for one of V’s accounts, without his knowledge.
Between December 2006 and June 2010, the appellant obtained $138,172.77 from V’s accounts, by using internet banking transactions or cheques to transfer money into her own account.

The reparation order

The Judge observed, on the basis of a budget set out in the pre-sentence report, that the appellant’s ability to repay V was “very limited”, in that after payment of loans and certain personal costs, the appellant had “no other money left over in terms of that income”. The Judge considered, however, that “some money needs to go back to [V]”, who had not only lost the amounts taken by the appellant, but had also become liable for penalties and interest payable because of unpaid tax.[2] The Judge acknowledged that it was unlikely that the reparation order would be paid in full,[3] but ordered that the appellant pay reparation of $138,172.77 at $50 a week as from her release from prison. The Judge further ordered that the reparation order was to be reviewed six months after the appellant’s release, to see whether payments could be increased.[4]

Appeal submissions

[2]At [9].

[3]At [14].

[4]At [21].

We record that in his submissions for the Crown filed in advance of the hearing, Mr Ebersohn acknowledged that the reparation order, which required, in effect, a payment period of 53 years, was inappropriate and…

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 Scanlon v R

Details

AGLC: Scanlon v R [2013] NZCA 502
Case: [2013] NZCA 502
Decision Date: 18 October 2013 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal in the matter of Linda Doreen Scanlon, the appellant, against The Queen, the respondent. Scanlon was sentenced to two years and three months' imprisonment and ordered to pay reparation of $138,172.77 at $50 per week after release, following her guilty plea to 330 counts of dishonestly using a document. Scanlon appealed against the reparation order, arguing that it would cause undue hardship and that the sentencing judge failed to consider her financial circumstances. The appeal focused on whether the reparation order was appropriate given Scanlon's financial situation and potential employment prospects post-release.

The court considered the provisions of the Sentencing Act 2002, particularly sections 12 and 35, which require the court to order reparation unless it would result in undue hardship and allow for reparation to be ordered in lesser amounts or by instalments if the offender has insufficient means. The court examined whether Scanlon's ability to obtain employment and her spending habits would result in undue hardship if required to pay $50 per week for five years. The court acknowledged the speculative nature of this assessment but concluded that Scanlon's potential to find work, supported by references and letters presented at sentencing, made it unlikely that the reparation order would cause undue hardship.

The court accepted the Crown's submission that an order for Scanlon to pay $50 per week for five years was appropriate and not uncommon in similar circumstances. The court also noted that if Scanlon could not sustain the payments, she could apply to the court to review the order under section 38A of the Sentencing Act. Consequently, the appeal was allowed, and the reparation order was quashed and replaced with an order for Scanlon to pay $13,000 at $50 per week, as from her release from prison.

Orders