Tainsh v Police - [2023] NZHC 2768

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-59

[2023] NZHC 2768

BETWEEN
SUSAN ELIZABETH TAINSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 September 2023

Appearances:

A J Bailey for Appellant R P Bates for Respondent

Judgment:

3 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 October 2023 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

TAINSH v NEW ZEALAND POLICE [2023] NZHC 2768 [3 October 2023]

Introduction

[1] On 22 June 2023, Susan Tainsh was sentenced in the District Court to 26 months’ imprisonment and ordered to pay $15,000 in reparations1 on a single charge of theft by failing to account.2

Background facts

[2] Mrs Tainsh met the 69-year-old male victim (who passed away in July 2021) through her work installing medical alarms. On 7 August 2019, the victim granted Mrs Tainsh an enduring power of attorney (EPOA) in relation to his property.3 That power was subject to conditions, including that Mrs Tainsh would not benefit herself from the victim’s monies or property, nor would she make charitable donations or celebratory gifts on his behalf.

[3] On 9 January 2021, a will was drafted in which the victim left his estate to his daughter and grandson. Mrs Tainsh witnessed the execution of that will. Soon after, on 14 January 2021, a psychiatrist assessed the victim as incapable of making decisions for himself, thus activating the ability to exercise the EPOA.

[4] Between January and July 2021, using the EPOA, Mrs Tainsh accessed the bank account of the victim and transferred $243,310 to herself. Mrs Tainsh accounted for $13,000 of this with receipts, the rest of the spending went on personal expenses, including $88,468 on gambling. Mrs Tainsh gave a false account to police when initially questioned, claiming the victim gifted her the money. The victim passed away on 12 July 2021.

District Court decision

[5] After outlining the facts of the offending the Judge referred to the victim impact statement given by Ms Nally, the victim’s daughter. He said her distress and emotion were tangible. The opportunity to provide her son with a solid foundation in the form of payment of tertiary study fees or a house deposit was lost by Mrs Tainsh’s actions.

1      Police v Tainsh [2023] NZDC 12933.
2      Crimes Act 1961, s 220 & 223(a); maximum penalty seven years’ imprisonment.
3      Protection of Personal and Property Rights Act 1988, s 94A.

The family will be left to forever wonder what might have been. The Judge noted the prospect of meaningful reparation to be “very slim” when considering that $230,310 was sought.

[6] As part of determining the appropriate sentence, the Judge considered a pre- sentence report as well as a s 27 cultural report, noting from these that Mrs Tainsh suffered from a gambling addiction and was raised in a dysfunctional, violent home. The Judge observed, however, that much of the report…

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 Tainsh v Police

Details

AGLC: Tainsh v Police [2023] NZHC 2768
Case: [2023] NZHC 2768
Decision Date: 3 October 2023

CaseChat Overview and Summary

The High Court of New Zealand, Dunedin Registry, considered an appeal by Susan Elizabeth Tainsh against her sentence imposed by the District Court for theft by failing to account. Tainsh had been sentenced to 26 months' imprisonment and ordered to pay $15,000 in reparations. Tainsh met her 69-year-old victim through her work installing medical alarms. The victim had granted her an enduring power of attorney (EPOA) in August 2019, with conditions prohibiting her from benefiting herself from his monies or property. Despite these conditions, Tainsh accessed the victim's bank account and transferred $243,310 to herself over a period of six months, using the money for personal expenses, including gambling. The victim passed away in July 2021, shortly after being assessed as incapable of making decisions for himself.

The legal issues in the case were whether the starting point for sentencing was excessive and if the sentence imposed by the District Court should be altered. Tainsh's counsel argued that the starting point of four years was too high, and the discounts granted did not sufficiently reduce the sentence. The Crown argued that the starting point was appropriate given the serious nature of the offending and the substantial loss to the victim. The court found that the starting point was within the appropriate range, considering the abuse of an EPOA, the vulnerability of the victim, and the significant breach of trust. The court also noted that the discounts provided were generous, taking into account Tainsh's background, her guilty plea, and her limited reparation offer.

The court concluded that the starting point and the overall sentence were appropriate and not manifestly excessive. The appeal was dismissed, and the original sentence of 26 months' imprisonment and the reparation order of $15,000 were upheld.

Orders