The Queen v Mackey

[2008] NZCA 444

IN THE COURT OF APPEAL OF NEW ZEALAND

CA605/2008
[2008] NZCA 444

THE QUEEN

v

CHERIE ANNE MACKEY

Hearing:23 October 2008

Court:Baragwanath, Priestley and Venning JJ

Counsel:B J Hart and A J Haskett for Appellant

N P Chisnall and H C Walker for Crown

Judgment:23 October 2008 at 4.15pm

ORAL JUDGMENT OF THE COURT

A        The appeal against sentence is allowed by consent.

B        THE SENTENCE IMPOSED IN THE DISTRICT COURT IS QUASHED.

CSENTENCING IS REMITTED TO THE DISTRICT COURT WITH A DIRECTION THAT IT RE-SENTENCE HAVING REGARD TO THE APPELLANT’S PROPOSALS BY WAY OF AMENDS AND ANY OTHER MATERIAL CONSIDERATIONS.

DThe appellant is released on bail on the terms recorded in para [4] of the reasons.

____________________________________________________________________

REASONS

(Given by Baragwanath J)

[1]       This is an appeal against the sentence of two years imprisonment imposed by the District Court following a sentence indication and plea of guilty in relation to offences of dishonesty.  They were committed by the appellant over a period of four years during her employment with the complainant company.  By a series of transactions she obtained and disposed of a sum approaching $200,000.

[2]       It is undesirable that we embark upon any discussion of the merits of the appeal.  That is because Mr Hart has tendered substantially new material which he contends would result in a substantial diminution of the complainant’s loss.  He submits, and the Crown agree, that in the circumstances this Court should exercise the power conferred by s 385(3)(c) of the Crimes Act 1961 in force since 26 June 2008 which provides that the Court may:

(c)remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal.

[3]       The relevant paragraph is (b)(i):

… replace it with another sentence warranted in law (whether more or less severe …

[4]       We are satisfied that this is an appropriate case to remit to the District Court with a direction that, she be re-sentenced having regard to the appellant’s proposals by way of amends.  It may be that that Court will on re-sentence take also into account more particular evidence as to the welfare of the appellant’s child than has so far been furnished to the Courts.  For avoidance of doubt we record that the power of replacement by “another sentence warranted in law (whether more or less severe) must, in the present context, include the power to impose an identical sentence.  We make no comment as to what the new sentence should be.

[5]       The appellant is released on bail on the following terms:

(1)She is to reside at 34 Moss Place, Takanini

(2)Her passport having been surrendered she is not to apply for a replacement

(3)She is to report each Monday and Friday to the Papakura Police Station between the hours of noon and 4 pm

(4)She is to attend each Thursday at 11 am, or such other times as the counsellor for South Auckland may direct, at the Problem Gambling Foundation Clinic Centre, Chapel Road, Papakura.

Solicitors:

Crown Law Office, Wellington