The Queen v Birch

[2009] NZCA 538

IN THE COURT OF APPEAL OF NEW ZEALAND

CA498/2009
[2009] NZCA 538

THE QUEEN

v

MARY REGINA BIRCH

Hearing:11 November 2009

Court:Robertson, Rodney Hansen and Courtney JJ

Counsel:W T Nabney for Appellant

M D Downs for Crown

Judgment:16 November 2009 at 3 p.m.

JUDGMENT OF THE COURT

A            THE APPEAL IS ALLOWED.

BThe sentence of three years and four months’ imprisonment on the count relating to the $85,000 is quashed and substituted with a sentence of two years and ten months’ imprisonment.  The remaining concurrent sentences are confirmed.

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REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]        Ms Birch appeals against an effective sentence of three years and four months’ imprisonment imposed on her by Judge Rollo in respect of 48 charges of fraudulent use of a document to obtain money or goods, and one charge of money laundering.

Factual circumstances

[2]        The Judge described the factual situation in this way:

[6]         …  In early March 2008, you had recently shifted to Tauranga …

[7]         … you were working as a prostitute and it is through that profession that you came in contact with the complainant.  He was a 72 year old man who had recently separated from his wife.  They had resolved their matrimonial property and he had shifted to this area, presumably to enjoy his retirement.  He initially engaged you on two occasions as a prostitute.  You then contacted him directly claiming to have suffered damage to your car and as a result of that contact, you gained the use of his car to attend, not only to your ongoing work as a prostitute, but also to travel to Auckland, perhaps related to an Employment Court dispute that you were then involved in.

[8]         You then shifted into his address as a live-in companion.  You described that as being in a relationship with him.  You continued to reside in his house through to early July 2008 when the last of the offending took place.  You provided household services, cooking, cleaning, matters of that kind and generally cared for and assisted him in his daily living.  That involved you transporting him around in his car, helping him with shopping and on some occasions, with his permission, using his eftpos card to buy household necessaries.

[9]         I also accept, as the Crown obviously has, that he allowed you from time to time to use the card, having given you the pin number, to buy certain items for yourself, clothing and cosmetics, matters of that kind.

[10]       What then happened is that over the period, from on or about 8 March through to about 20 March, you used the eftpos card of this man to make 46 unauthorised transactions, totalling $17,354.19.  On or about 21 March 2008, he challenged you about money missing from his account and you told him at that stage you were expecting to receive $30,000 damages from the employment case you were involved in and that you would pay him back.

[11]       You dispute that figure, saying that the figure you referred to was in the region of $8,000-$10,000 only.  You also say that, as a result of discussions that took place between he and you at that time, he essentially forgave you for taking the money that you had taken.  You refer to subsequent consensual activities, meals out, socialising and the like, which took place thereafter, which you say support that view of yours.

[12]       What the summary of facts and certainly the deposition evidence confirms, is that thereafter he cancelled his then bankcard and obtained a replacement card presumably with a different pin number.  He kept his card, his wallet, keys and other precious items in an electronic safe so that you would not be able to take more money from him.  That included a cheque book, but it seems that on or about 17 May 2008, he has inadvertently left the cheque book out and you have used a cheque on his account for $1,500, which you have paid into your own bank account without his knowledge or permission.  The allegation in the summary of facts is that you forged his signature.

[13]       You subsequently moved your two children into his house, despite what the complainant says in his depositions, were his objection to that occurring.  He has assisted you it seems, to obtain a different sort of job as a worker at a gym and the suggestion was made, you say, by yourself, that when you were receiving regular income, you would obtain your own place.

[14]       The Crown summary says, that in the intervening period of time, the complainant has resorted to hiding food and his valuables in the house so that you or your children would not use them or take them, that he was concerned at your continuing to live in his house, and that a dispute arose over your shifting out which he resolved by paying for your removal truck costs.

[15]       It would seem that at or about that time, you have used another cheque on the account of the complainant for $85,000, which you have paid into your bank account.  You have then removed the money from that bank account by shifting it through a number of other accounts in other persons’ names and ultimately paying some of that money into your children’s accounts.  It is those actions which constitute the facts of the money laundering charge.

[16]       As a result of your actions over that period of some four months, $105,402 was taken unlawfully from the complainant’s bank account by you for your own purposes.  That included your buying a motor car valued at $16,000.  I acknowledge that the complainant had bought you a $4,000 vehicle at an earlier stage. Your offending also included your equipping the home into which you shifted with virtually brand new furniture, whiteware and electrical appliances.  You also had a substantial wardrobe of new clothes and shoes, including some jewellery items.  Much of that property has been recovered by the estate of the complainant, who tragically took his own life in February 2009.

[3]        Judge Rollo had regard to a number of previous decisions and concluded the appropriate starting point, including aggravating circumstances, was four years and three months’ imprisonment.  There was an uplift of six months to take into account previous criminal history.

[4]        In mitigation, he allowed seven months for expressions of remorse and a 20 per cent deduction for guilty pleas, leaving an effective sentence of three years and four months’ imprisonment.

The appeal

[5]        It is the appellant’s contention that the starting point was too high. Mr Nabney submitted that the Judge wrongly took into account the complainant’s suicide which had not been proven to have resulted from the offending and failed to properly take into account Ms Birch’s co-operation in relation to the recovery of a substantial portion of the money.

[6]        Mr Nabney also stressed that the cases to which the Judge had referred were mainly breach of trust cases, and that was not a proper classification of the relationship in this present appeal.

Discussion

[7]        We are not satisfied that there is substance in the suggestion that the Judge placed any significant emphasis on the inter-relationship between the offending and the death.  He said:

[27]       The effect on the victim was obviously significant.  The loss of his life savings at that time of his life, in his circumstances, would be devastating enough.  No doubt the shame, which he felt at being duped by you, in such circumstances, was also a significant contributing factor.

[28]       I accept, Ms Birch, that it cannot be said that you alone are responsible for the victim taking his own life, but what is abundantly clear from the background facts of this case, is that your actions would have been a significant contributing factor, as part of the factors that determined him to take such a tragic step.

[8]        In our view that is a neutral and appropriate assessment of what occurred and cannot be cavilled at.

[9]        The question of reparation is more difficult, particularly the Judge’s reference in [27] to “the loss of his life savings”.

[10]       The total amount involved, in all the offending, was $105,402.  The agreed information now before us is that, at the time of sentencing, the actual loss which was attributable to the offending was $38,826.77.

[11]       Nowhere does the Judge indicate an appreciation of the fact that substantial recoveries had occurred.  He noted that it was not possible to make a reparation order, but whether he contemplated that the amount outstanding was under $40,000 or in excess of $100,000 is not apparent.  Although not determinative, the scale of the loss, which results from criminal offending of this type, is a relevant factor.

[12]       We are not persuaded that there is any particular substance in the breach of trust issue.  The Judge said:

[26]       These represented a significant breach of trust.  The scale of the offending is large, given the number of offences that took place, the amounts involved are significant, as was the frequency of the offending.  There was some sophistication with the fraud and of course the money laundering offending, which was an endeavour to hide the receipt of the $85,000 that you fraudulently took from his account.

[13]       Whether there was a trust relationship in a traditional legal sense is rather beside the point.  Ms Birch clearly took advantage of, and exploited, the trusting relationship which was created and maintained, to her pecuniary advantage.

[14]       Judge Rollo had particular regard to the decision of this Court in R v Harvey CA349/00 7 December 2000 where this Court did not interfere with a starting point of three years in a case which involved a not dissimilar sum obtained by that appellant in her position as a caregiver to a tetraplegic.  Mr Nabney also stressed the decision in R v Singh (2003) 20 CRNZ 158 (CA) which reviewed a number of decisions and concluded that an effective sentence of 18 months’ imprisonment was sufficient as opposed to the two years which had been imposed.  The issue of reparation was significant in that case.

[15]       Mr Downs, for the Crown, stressed that although it was appropriate for the means by which a decision is reached to be apparent, it was the overall effective sentence which is of critical importance.

Conclusion

[16]       It is not clear whether the Judge appreciated that the net loss after recoveries was significantly less than the sums misappropriated.  In the circumstances, it is appropriate that we revisit the sentencing exercise, while paying due regard to the Judge’s asessment.

[17]       The money laundering count must be seen as the primary offending and, in respect of that, we are satisfied that a proper starting point would have been three years’ imprisonment.  There needs to be an uplift to recognise the additional offences and Ms Birch’s previous convictions while accepting that there had been a substantial period of stability in her life. 

[18]       We reach a gross sentence of three years and nine months’ imprisonment.  The Judge made an allowance of seven months for remorse in addition to 20 per cent for a late plea of guilty.  In terms of R v Hessell [2009] NZCA 450 which post dates this sentencing, that is a very generous response and unlikely to be repeated, but to avoid any perception of unfairness to Ms Birch because of the transitional situation, we allow a total discount of about 25 per cent overall and reduce what would have been the sentence by 11 months. The effective sentence is therefore two years and ten months’ imprisonment.

[19]       We are conscious that a variation of that magnitude could be viewed as tinkering, but the lack of clarity as to the losses taken into account by the Judge requires that we should retrace that exercise.

Result

[20]       The appeal is allowed.  The sentence, on the count relating to the $85,000, of three years and four months’ imprisonment is quashed and substituted with a sentence of two years and ten months’ imprisonment.  Concurrent sentences of 12 months’ imprisonment on all other counts are confirmed.

Solicitors:

Crown Law Office, Wellington