The Queen v Dorothy Schulz
[2000] NZCA 133
•19 July 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA174/00 CA176/00 |
THE QUEEN
V
DOROTHY SCHULZ
DENISE MORRIS
| Hearing: | 18 July 2000 |
| Coram: | Tipping J John Hansen J Baragwanath J |
| Appearances: | M J McKenzie for Appellant Schulz M L Knowler for Appellant Morris J M Jelas for Crown |
| Judgment: | 19 July 2000 |
| JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J |
The appellants were convicted following trial on one joint count of theft as a servant in the sum of $35,345.30.
The next day they were sentenced to 15 months imprisonment, and each ordered to pay reparation in the sum of $17,672.65. Leave to apply for home detention was granted.
They appeal against the order for reparation.
Both appellants were granted leave to adduce fresh evidence on the appeal, and their affidavits set out their financial position.
Morris was employed in 1995 to manage the Windsor Bottle Store for the Invercargill Licensing Trust. She hired her sister, the co-accused Schulz, as a shop assistant. Over a 20 month period, the appellants siphoned money from the employer’s business.
In relation to the appellant Schulz, the probation officer recommended no reparation be ordered. There was no material as to her means before the Court.
In relation to the defendant Morris, there was limited information relating to means, and the probation officer advised that due to financial difficulties Morris would be unable to pay reparation.
The learned District Court Judge stated at page 2 of his sentencing remarks.
“Reparation is described and indeed counsel submit on your behalf as being impracticable to impose. It may indeed be difficult, but I do know that you both have property and there is no reason why that should not be realised to help assist in recovery of the money you stole.
It is true enough that the victim in this case is probably better placed than most to absorb the loss it has sustained, but it would be inappropriate for me not to impose reparation and I do so. There will be orders for reparation for each of you to pay the sum of $17,672.65.”
The learned District Court Judge went on to consider the question of punishment and imposed the 15 months sentence mentioned previously. He did not state that the sentence had been reduced because of the order relating to reparation, but we accept that such was likely to have been part of the sentencing process.
The grounds for the appeal against the reparation orders are the same for both appellants, being that neither has the income nor assets from which the reparation order could be met.
The fresh evidence admitted in relation to the appellant Schulz shows that she has only a small equity in the jointly owned matrimonial home, and no independent income.
In relation to the appellant Morris, the equity in the matrimonial home is greater, but it is in her husband’s sole name. She owns a vacant section of minimal value that has been on the market for sale for the last two years. There is another property in her name, but the beneficial owner is her daughter who is responsible for mortgage payments. In any event there is no equity in this property. Her husband has a very modest income and she is totally dependent upon this:
The statutory basis for making orders of reparation is s.22 of the Criminal Justice Act, 1985. Sub-section (2) allows the Court to make such an order after giving an offender an opportunity to be heard without making further inquiries. This is obviously what occurred here, because the material before the sentencing Judge relating to means was quite limited. We were told from the Bar, and accept, that submissions dealing with reparation were very brief.
On the new material before the Court, it is clear that neither of the appellants has the means to pay reparation. While an inquiry as to means is clearly not mandatory, it is preferable, if circumstances allow, that a report be obtained pursuant to s22(3).
This Court considered the relevant sections in R v Jarvis (CA306/86 2 March 1987). At page 4 this Court stated:
“It is clear from these sections that the offender’s means, his obligations and the maximum amount that he is likely to be able to pay are important considerations in ordering reparation.
The Court went on to say:
“One simply cannot get blood out of a stone. The Court cannot justifiably make an order for payment, enforceable by further penal sanctions, against an offender who faces a long prison sentence and who must be accepted as having neither assets nor tangible financial prospects. ”
In the sentencing remarks there is nothing explicitly linking the length of the custodial sentence with the reparation order. However, it must be taken that the sentencing Judge would have had this in mind. This is relevant, because where a reparation order is quashed the Court needs to consider whether the remaining custodial sentence should stand or be increased. In R v Hooker (CA88/90 6 August 19990) this Court stated:
“On the quashing of the reparation order, being part of the sentence, this Court must then consider whether the remaining part of the sentence, 6 months periodic detention, should stand or be increased. The applicant has sought to have the sentence varied only to the extent of the reparation order being quashed but this Court, if it grants leave and allows the appeal, must consider whether a different sentence than that imposed should have been passed. ”
Further in R v Gill (CA265/92 2 November 1992) this Court stated:
“It has been said more than once in this Court that a sentencer is entitled to take into account in the assessment of the other sanctions the fact that an offer of reparation has been made. In this instance we have no doubt that the substantial reparation offered by the offender and required to be made by the order must have played a part in determining the nature and extent of other sanctions contemporaneously imposed. We have, therefore, considered whether or not, if reparation is limited to $3000 this blatant and quite substantial fraud warranted a custodial sentence. We have in the finish concluded that such a result would not be warranted. On the other hand we do not believe that an increase in the period of periodic detention imposed from six months to 9 months would be appropriate.”
Counsel for both appellants argued that the sentence of 15 months imprisonment should not be increased.
Counsel for the appellants submitted that the range available to the learned District Court Judge was between 12 and 18 months. Counsel for the Crown accepted this range, which means that the 15 month sentence is in the middle of the available range.
Counsel for the appellants argued that if an allowance had been made by the sentencing Judge because of the order for reparation, he must have started at the top end of the range available.
However, as the Crown submitted, and the sentencing Judge noted, there were a number of aggravating features. These included the deliberate, calculated and sustained theft of a large amount of money over a considerable period. It is also apparent that there were considerable efforts taken to conceal this offending. This included obtaining money from the appellants’ mother’s modest savings in a bid to help to conceal the thefts.
Since, while there is no explicit reference linking the length of the custodial sentence with the reparation order, we are satisfied that the Judge was likely to have taken this factor into account. It is, therefore, appropriate to increase the sentence of imprisonment. We consider the modest increase of one month suggested by the Crown is an appropriate increase in all the circumstances.
Accordingly, in relation to both appellants, the reparation order is quashed, and the sentence of imprisonment for each appellant is increased from 15 months to 16 months.
Solicitors
Hewat Galt, Invercargill, for Appellant Schulz
McKenzie Associates, Invercargill, for Appellant Morris
Crown Law Office, Wellington
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