The Queen v Carolyn Ann Harvey

[2000] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND CA349/00

THE QUEEN

V

CAROLYN ANN HARVEY

Coram:	Thomas J Keith J McGrath J
Judgment (On the papers):	7 December 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

1. On 6 September 2000 the appellant, Ms Harvey, pleaded guilty to 29 counts of fraudulently using a document for pecuniary advantage, two counts of forgery and one count of theft.  She was sentenced the following day in the Auckland District Court to two years three months imprisonment.  This sentence was imposed globally in respect of Ms Harvey’s total offending.

2. Ms Harvey now appeals against her sentence on the ground that it is manifestly excessive in all the circumstances.  On 18 September 2000, Ms Harvey applied for legal aid to conduct her appeal.  On 12 October 2000 the Registrar declined this request in accordance with s15 of the Legal Services Act 1991, following the necessary consultation process.  Ms Harvey then applied, on 25 October 2000, to review the decision.  A Court of Appeal Judge duly reviewed the file and, on 27 October 2000, confirmed the decision of the Registrar to refuse aid.  This appeal has been conducted on the basis of written submissions filed by the appellant and her husband.

The facts

1. In November 1997 Ms Harvey was employed as the caregiver of the victim, a tetraplegic requiring full-time care.  Ms Harvey’s duties included nursing care, giving the victim his medication and his meals, and performing minor cleaning duties.  Ms Harvey also had some limited responsibility for the victim’s finances.  She was in charge of paying the wages of other staff employed by the victim and would also prepare cheques for the victim to sign

2. On 12 January 1998 Ms Harvey made a visit to the victim’s bank branch in Onehunga and obtained an authority form to operate the victim’s bank account.  She completed the form, naming herself as an authorised signatory, and forged his signature at the bottom.  This act is the basis for the first forgery charge.  Using this form, Ms Harvey redirected the victim’s bank statements to her home address and had his phone number diverted to her house also.  She also obtained a cashflow card over the account in her name.  Needless to say, none of these steps was authorised by the victim.

3. On 8 May 1998, the Accident Compensation Corporation deposited $187,950.00 into the victim’s bank account.  This was the lump-sum payment he had sought since being incapacitated in a motor accident in 1990.  Between 14 January and 7 December 1998, Ms Harvey withdrew a total of $135,000.00 from the victim’s account.  These withdrawals form the basis for the 29 charges of fraudulently using a document for pecuniary advantage.

4. On 21 September 1998 Ms Harvey obtained a Tenancy Agreement Form nominating the victim as the landlord of a property resided in by an associate of Ms Harvey.  Again, Ms Harvey forged the victim’s signature.  This act is the basis for the second forgery charge.  She then instructed her associate to present the form to Work and Income New Zealand with a view to obtaining a $900.00 bond payment.  WINZ approved the application and deposited the bond money in the victim’s bank account.

5. On 3 December 1998 the victim was admitted to hospital.  On 4 December he dismissed Ms Harvey from his employment after receiving medical advice questioning her capabilities in caring for him.  That same day Ms Harvey entered the victim’s house and stole a Seiko watch together with a number of business documents.  This is the act alleged in the theft charge.  Ms Harvey then left  with her immediate family to live in Porirua.

6. The victim was distraught when he discovered the fact and scale of Ms Harvey’s dishonesty.  In his victim impact statement he states that this process of discovery took place over several months and left him “devastated”.  He was forced to hire a private investigator at a cost of $36,000 in an attempt to unravel the threads of evidence left behind.  Unsurprisingly, he now finds it difficult to trust any of his caregivers.  He suggests that dishonesty on this scale to a fully mobile and able-bodied person is “bad enough, but to do this to a disabled person is beyond reproach”.   He points out that his life was already severely restricted.  Ms Harvey’s actions have only compounded his feelings of helplessness.  Finally, the victim had also been deprived of a significant part of the income paid to support him for the rest of his life.  The National Bank agreed to compensate him for the money Mr Harvey had stolen.  As the sentencing Judge said, it is to be commended for that.

7. Ms Harvey pleaded guilty to all charges following depositions.  This relatively late plea was reflected by the sentencing Judge in a nine-month discount.  In an interview conducted for the purposes of a pre-sentence report, however, Ms Harvey sought to minimise her offending maintaining that she pleaded guilty “only on the instructions of counsel”.  Nor did Ms Harvey appear to show any genuine remorse, a point noted by the sentencing Judge.

Submissions

1. Both Ms Harvey and her husband have filed submissions in support of Ms Harvey’s appeal against sentence.  The two points they make can be summarised as follows.  First, they mention various health problems, including a blood disease, angina, liver complaints, recently discovered breast lumps and tumours on her right lung.  Documents provided by Ms Harvey indicate medical treatment she had received during the year.  It is suggested that she would be far more likely to receive appropriate medical treatment if she were on home detention.

2. Second, Ms Harvey and her husband submit that she is needed at home to care for her three teenage children, including her son who suffers from a form of attention deficit disorder.

3. On the basis of these points, Ms Harvey seeks a reduction in her sentence to two years or less, thereby giving her the option of applying for home detention, provided she is also able to obtain leave.  It is suggested that, in the circumstances - particularly the fragile nature of her health - it would be just to allow Ms Harvey to serve her sentence at home.

Conclusion

1. We do not propose to allow this appeal.  The principal reason is that we do not consider it even arguable that the total sentence of two years three months imprisonment was manifestly excessive in the circumstances.  The offending involved an entire year of systematic and serious fraud perpetuated on a victim wholly reliant on Ms Harvey.  It was a gross breach of trust.  The emotional effect on the victim has been severe.  Although Ms Harvey pleaded guilty if at a late stage, and this was properly taken into account by the sentencing Judge, she stated that she was merely following legal advice.  She did not show any real remorse and so could not receive credit for this.  We are not persuaded that Ms Harvey has any real appreciation of the hurt and damage she has caused.

2. Given the gravity of the offending, we are of the view that “special circumstances” clearly exist for the purposes of s6 of the Criminal Justice Act rendering any sentence other than a full-time custodial sentence clearly inappropriate.   The length of the sentence imposed appears to us to be entirely appropriate.

3. We would add that, as with suspended sentences, it is not legitimate to seek to determine an appropriate sentence by reference to whether, in the result, the offender will be eligible for home detention under s21D of the Criminal Justice Act 1985;  see Tema v Police HC, Wellington, 11 April 2000, AP 39/00, and Solicitor-General v Lam (1997) 15 CRNZ 18, 24.

4. For these reasons we dismiss the appeal.