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Shepherd v Police

Shepherd v Police

Case [2019] NZHC 3460 20 December 2019

Unconscionable Conduct

Restitution

Sentencing

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-31

[2019] NZHC 3460

BETWEEN
TODDY SHEPHERD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2019

Appearances:

R Samuel for the Appellant

JMM Johnson-Aufa’i for the Respondent

Judgment:

20 December 2019

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 20 December 2019 at 11.00 am.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
R Samuel, Barrister, Newmarket, Auckland
JMM Johnson-Aufa’i, Marsden Wood Inskip Smith, Whangarei

SHEPHERD v NEW ZEALAND POLICE [2019] NZHC 3460 [20 December 2019]

Introduction

[1] In a reserved decision of Judge D J Orchard (sitting as Judge alone) dated 6 June 2019, 1 Ms Shepherd was found guilty in respect of one charge of obtaining by deception2 and six representative charges of theft by a person in a special relationship.3

[2] She was sentenced to three years’ imprisonment and ordered to pay reparation of $111,577.67.4

[3]She appeals her conviction and sentence.

Background

[4] In 2012 Ms Shepherd was employed by CCS Disability Action (CCSDA) to act as a regional manager for the central North Island area.

[5] When appointed to the position, the defendant listed a Hastings address as her home and asked to be based in the Napier office. CCSDA was, however, aware that her family at that stage still resided in Kaitaia. Initially it was intended that the family would move to the Hawkes Bay but this did not eventuate and ultimately Ms Shepherd’s remuneration package was supplemented by additional amounts (increased annually) to allow her to return periodically to Kaitaia.

[6] Soon after commencing employment, she acquired a company credit card. It was alleged that she did so dishonestly, giving rise to the charge of obtaining by deception. It was further alleged that she misused the card for unauthorised personal expenditure between 2012 and 2015. This was the basis for the charges of theft by a person in a special relationship.

1      R v Shepherd [2019] NZDC 10606 [Conviction Decision].
2      Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty seven years’ imprisonment (Charge 1).
3      Crimes Act 1961, ss 220 and 223(a). Maximum penalty seven years’ imprisonment (Charges 2- 7).
4      R v Shepherd [2019] NZDC 19871 [Sentencing Decision].

The District Court decisions

Conviction

[7] Judge Orchard found that Ms Shepherd acquired the credit card by falsely representing to the ANZ Bank that CCSDA’s Chief Executive Officer, Mr David Matthews, had authorised her to have one.

[8] The Judge further found that, over the next three years, Ms Shepherd used the card extensively for both work and personal purposes, the latter being unauthorised and known by Ms Shepherd to be such. The unauthorised expenditure was identified as having occurred in six separate categories – accommodation, cash withdrawals, miscellaneous personal expenses, flights, rental car hire and petrol station charges. These categories formed the basis of the six representative charges of theft. The Judge accepted that the Serious Fraud Office’s Accountant, Ms Reed, had been “conservative” in…

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 Shepherd v Police

Details

AGLC: Shepherd v Police [2019] NZHC 3460
Case: [2019] NZHC 3460
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Shepherd v Police [2019] NZHC 3460 involves the appeal of Ms Shepherd against her conviction and sentence by the District Court. Ms Shepherd was convicted of obtaining by deception and six charges of theft by a person in a special relationship. The High Court was required to decide whether the District Court erred in its assessment of the evidence leading to a miscarriage of justice and whether the sentence was excessive. The court found that there was insufficient evidence to establish the necessary causal connection between the deception and the issuance of the credit card, leading to the quashing of the conviction on Charge 1. However, the appeal against the other charges was dismissed as there was no material risk of a miscarriage of justice arising from the mode of trial. The court also reduced the sentence to two years and six months’ imprisonment, considering the enhanced offer of reparation made by Ms Shepherd. The reparation order was deemed not to impose undue hardship.

In summary, the High Court allowed the appeal in respect of Charge 1 and quashed the conviction, while dismissing the appeal against the other charges. The sentence was reduced to two years and six months’ imprisonment, and the reparation order was maintained.

Orders