Tither v Police - [2014] NZHC 904

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000390 [2014] NZHC 904

BETWEEN
NORAH LAURENCE TITHER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 May 2014

Appearances:

R Chambers for Appellant
M Hammer for Respondent

Judgment:

5 May 2014

ORAL JUDGMENT OF VENNING J

Solicitors: S R Anderson, Auckland
Meredith Connell, Auckland

Copy to: R Chambers, Auckland

TITHER v NZ POLICE [2014] NZHC 904 [5 May 2014]

[1] Mrs Tither pleaded guilty to three charges of theft. Judge Bouchier sentenced

her to three years’ imprisonment and ordered her to make reparation of $220,000.1

Mrs Tither, who is 71 years old, appeals against the sentence.

[2] The summary of facts discloses that Mrs Tither was employed by Horton Media Limited in September 1998 in the role of office manager. In April 2000 she was promoted to the role of general manager. Horton operates a commercial printing business and is also a majority shareholder of Waiuku Publishing Limited. Mrs Tither’s role included Horton’s day-to-day commercial affairs. She was responsible for Horton’s payroll system, which included staff payments and the maintenance of accurate payroll records. She was authorised to enter into transactions on behalf of Horton through its internet banking account and was a signatory to the account.

[3] She was also responsible for paying Waiuku’s creditors and was authorised to enter into transactions on behalf of Waiuku through its bank account. She paid Waiuku’ creditors using the bank’s DirectLink Online Batch banking system.

[4] Between January 2000 and March 2012, a period in excess of 12 years, Mrs Tither made 298 payments to the value of $436,242 by creating false expenses and transferring funds from Waiuku’s account to her accounts.

[5] In addition Mrs Tither made a number of unauthorised lieu day payments to herself in relation to her employment by Horton. There was no practice for salaried employees such as Mrs Tither to accumulate time in lieu if they worked overtime and there was no practice of allowing it to be paid out. Despite that, between April
2004 and March 2012 Mrs Tither made 150 unauthorised lieu day payments to herself to the value of $210,264. She concealed the payments to her by not disclosing them in any of the budgetary information provided to the company’s chief executive officer and by coding them in the company’s payroll system and accounting systems to other departments, other than her own. By those means she was able to cover up her offending. As a further consequence she also received in excess of $50,000 of additional statutory entitlements and just under $3,000 in
employer Kiwisaver contributions.

1 R v Tither DC Manukau CRI-2013-092-006959, 22 November 2013.

[6] When spoken to Mrs Tither admitted the Waiuku thefts and said she did not know why she did it. She admitted receiving the Horton lieu day payments but denied ill intent, suggesting there had been an agreement entitling her to receive them. There were proceedings between the parties and the Employment Relations Authority which has led to…

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 Tither v Police

Details

AGLC: Tither v Police [2014] NZHC 904
Case: [2014] NZHC 904
Decision Date: 5 May 2014

CaseChat Overview and Summary

Mrs Tither appealed against her sentence for theft, which was imposed by the District Court. The sentencing judge ordered a term of three years’ imprisonment and made an order for reparation of $220,000. Mrs Tither submitted that the term of imprisonment was manifestly excessive, as the Judge did not give sufficient weight to the reparation payment, which was voluntary and demonstrated remorse. Counsel for Mrs Tither also submitted that the Judge failed to give sufficient credit for the remorse that Mrs Tither had expressed. The Court found that the Judge did take the reparation payment into account, and that the sentence was not manifestly excessive. The appeal was dismissed.

The appeal raised questions about the appropriate weight to be given to a voluntary reparation payment in sentencing, and whether the sentencing judge was required to make explicit findings about the extent to which she had taken the reparation payment into account. The Court found that the Judge did take the reparation payment into account, and that the sentence was not manifestly excessive. The Court noted that the test on an appeal against sentence was whether the end sentence itself can be said to be manifestly excessive, and that the focus of the Court on appeal should be on that end sentence, not the process followed to arrive at the end sentence. The Court also noted that the Judge was entitled to reject any further credit for remorse, as the probation officer had assessed Mrs Tither as having a low level of remorse and victim empathy.

Orders