Visser v Police
[2015] NZHC 3275
•17 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-00344
CRI-2014-004-11959 [2015] NZHC 3275
MARIUS VISSER
v
NEW ZEALAND POLICE
Hearing: 14 December 2015 Appearances:
S Withers for the Appellant
S Mead for the Respondentudgment:
17 December 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 17 December 2015 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Vulcan Chambers, Auckland. Meredith Connell, Auckland.
VISSER v NEW ZEALAND POLICE [2015] NZHC 3275 [17 December 2015]
Introduction
[1] Mr Visser was sentenced to two years and two months’ imprisonment for 18 charges of obtaining by deception.1 He appeals against the sentence on the grounds it is manifestly excessive.
Background
[2] Mr Visser was a self-employed financial adviser who sold insurance policies to individuals on behalf of, and as an agent for, insurance companies. He submitted
18 fraudulent policies to two companies on behalf of applicants who did not exist. In return, he received commissions totalling $270,063.21.
[3] The offending occurred between 20 May 2014 and 11 September 2014. The applications were either typed or handwritten and contained personal details which were invented by Mr Visser to deceive the insurance companies. Many included invented signatures. Mr Visser was paid a commission for each fraudulent application. To receive the commissions, Mr Visser initially paid the premiums due on the fraudulent policies using commissions received on subsequent policies.
[4] On 25 September 2014, a private investigator for one of the companies spoke to Mr Visser in relation to his false policies. He declined to comment. On the same day, he withdrew $30,000 from his bank account and purchased four return tickets to South Africa, departing on 29 September and returning on 3 November. Mr Visser, his wife and his two sons went to South Africa. In South Africa, Mr Visser changed the return date to 19 November. On 20 November, he was arrested upon his return to New Zealand. He then cooperated with the police. The total outstanding amount is
$239,812.13. It is unlikely that this will be recovered.
1 Crimes Act 1961, ss 240(1)(a) and 241(a). The maximum penalty for each charge is seven
years’ imprisonment.
The District Court decision
[5] The Judge noted that the offending took place in the context of Mr Vitter’s employment relationship with insurance companies.2 The Judge found that his offending involved deliberate and dishonest conduct occurring over a period of four months, and included multiple acts of deception. It involved a high degree of premeditation. The total amount received was significant. The Judge also noted the impact of the offending, particularly its general effect on premiums for all people
with insurance policies. There were no mitigating factors of the offending, and
Mr Visser was not in a position to provide reparation.
[6] The Judge adopted the Crown’s starting point of between three and four years’ imprisonment. In the sentencing notes, the Judge said that his assessment used a starting point of four years’. This appears to be an error. The end sentence reached suggests that the Judge actually used a starting point of three years and six months’ imprisonment. Either that or he miscalculated the discounts he applied.
[7] Turning to personal factors, the Judge took into account the difficulties Mr Visser had in adjusting to life in New Zealand, particularly financial pressures from failed work opportunities. He also noted family illnesses. The Judge accepted that, as a man without previous convictions, Mr Visser was entitled to a discount for previous good character. However, this was “tempered slightly” by the fact that the offending took place over a four month period and, during that period, his offending was intense. The Judge gave him a 10 per cent discount for previous good character and a five per cent discount for remorse. The Judge reached an end sentence of two years and two months’ imprisonment.
[8] The Judge allowed a 25 per cent discount, despite the guilty plea not coming at the earliest opportunity, because Mr Visser had cooperated with the authorities, provided them with information, and assisted them in formulating charges against
him.
2 Police v Visser [2015] NZDC 22891.
Submissions
[9] Mr Withers, for Mr Visser, submits that a three-year starting point should have been adopted. He acknowledges, however, that the discounts given were generous. This presumably refers to the discrepancy, referred to above, between the starting point, the discounts the Judge purported to impose and the end sentence. Mr Withers submits that Mr Visser cooperated fully with investigators and alerted the police to the full scope of his offending, eliminating the need for significant investigation. He refers to the fact Mr Visser returned to New Zealand from South Africa, explaining that he did so in order to provide an example to his children.
[10] Mr Withers highlights that the offending was characterised by a complete lack of sophistication and reflected that he was a man in over his head. Mr Withers submits that it was wrong for the Judge to place his offending in the context of an employment relationship because Mr Visser was actually an independent contractor. The breach of trust was not of the same magnitude. Mr Withers also reminds the Court that inflation must be taken into account in comparing the amount stolen in this offending with older cases. He submits that a sentence of home detention would be appropriate.
[11] Ms Meade, for the respondent, considers that the Judge intended to take a starting point of four years and that the end result was in fact lower than could have been warranted because the Judge made a mathematical error. She submits that a starting point of four years was at the top of the range because the victims were insurance companies who could spread risk. However, the discounts were generous. While the respondent accepts that Mr Visser was not in an “employment relationship” as that term is commonly understood, there was nevertheless a significant breach of trust regardless of how the relationship is classified. Ms Meade submits that the employment characterisation did not particularly impact the starting point. The sentence was not manifestly excessive, Ms Meade says.
Approach to appeal
[12] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence
should be imposed.3 The principles behind the law were not changed by the Criminal Procedure Act 2011.4 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.5
[13] The Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.6
Was the starting point too high?
[14] There is no tariff decision for dishonesty offending. Culpability is assessed according to a combination of the particular factors applying to the particular case.7
[15] In this case, it is unclear whether the Judge intended to take a starting point of three years, six months or whether he incorrectly calculated the end sentence after applying the discounts. Whichever is the case, the focus is on the effective end sentence. I approach the case on the basis that the Judge, in fact, intended a starting point of three years and six months’ imprisonment. In my view, after considering the
cases raised by counsel8 and other relevant cases,9 the starting point of three years’
3 Sentencing Act 2002, s 250.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
5 At [33] and [35].
6 Ripia v R [2011] NZCA 101 at [15].
7 R v Varjan CA97/03, 26 June 2003 at [22]-[23]; and Thomson v Police [2014] NZHC 2332 at
[29].
8 Particularly, Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2008; and R v Davis [2009] NZCA 26. In Thomas, the appellant was an accounts manager. The offending occurred on 68 occasions over a three year period. $312,467.27 was misappropriated (between 2004 and
2007). The appellant repaid $150,000 before sentencing, leaving an outstanding sum of
$162,467.27. The Court upheld a starting point of four years’ imprisonment. In Davis, the offender was an employee entrusted with her employer’s accounts. She set up a moderately sophisticated system resulting in $277,826.99 being taken from the company accounts to camouflaged accounts set up in her name. She also overpaid herself $14,460. The offending took place over five years. Following a police investigation she repaid $87,991.18 but without admitting liability. The audit of the company’s affairs following detection of the offending cost the company $30,000. The starting point of four years imprisonment was considered within range.
9 In Mears v R [2014] NZCA 30, Mrs Mears stole $380,000 from a small business where she was employed as credit controller. Once under investigation her bank froze one of her accounts. Mrs Mears forged a letter and signatures on Public Defence Service letterhead advising that the criminal matter had been resolved and frozen funds could be released. A starting point of four years and six months’ was upheld on appeal. In Harford v Police [2014] NZHC 1886, Ms
and six months’ imprisonment was well within the range available to the Judge. The following factors are relevant to that assessment:
(a) The amount stolen was significant, being $270,063.21. The outstanding amount is $239,812.13. It will not be recovered.
(b)The offending occurred over a period of just under four months. This is not a significant period in itself, but Mr Visser offended on 18 separate occasions within those four months.
(c) The breach of trust as a contractor entrusted with selling insurance policies. While Mr Visser was not an employee, I consider his role to be analogous to that of an employee – he was trusted, and paid, to sell products for a company.
(d)The offending was not particularly sophisticated, but it was nonetheless a persistent and dishonest series of events with considerable premeditation.
(e) The victims were two insurance companies. They were not vulnerable, and the impact of the offending is unlikely to be significant. However, as the Judge noted, this kind of offending has a
broader impact in that it contributes to increased premiums generally.
Harford was an office manager for a rental car company. She was solely responsible for banking the cash paid by customers. She offended for over two years. She stole $276,324.59. A starting of four years imprisonment was considered within range. In R v Robertson CA 424/02, 4 March
2003, a starting point of four years’ imprisonment was considered excessive, especially because
it was unclear whether the amounts stolen were as high as the sentencing judge indicated -
$164,200. In R v Hii CA99/05, 10 April 2006, Mr Hii was a Mobile Mortgage Manager for the Bank of New Zealand. The total withdrawn was $127,000 (in 2002). The offending took place over a five month period. A starting point of three years and six months imprisonment was upheld on appeal. In Mitha v Police HC Auckland CRI-2006-404-266, 28 September 2006, the appellant systemically stole $346,672.00 from his company. The four year starting point was quashed on appeal because the offender retained all of the money and was able to immediately provide reparation. The Judge found that the money was taken and kept in order to provide a fund to pay for his father’s medical expenses. A starting point of three years’ imprisonment was adopted.
Was an adequate discount given for personal mitigating factors?
[16] It appears that the Judge reached the end sentence by first giving Mr Visser a discount of 15 per cent for previous good character and remorse, then applying a 25 per cent discount for the guilty plea and the assistance given to authorities, and then rounding down to two years and two months’ imprisonment.
[17] The 10 per cent discount for previous good character was appropriate. Mr Visser is 43 years of age and has no previous convictions. He offended in circumstances of financial distress. His likelihood of reoffending is low. He is supported by his wife of 20 years, two children and his church community. However, given Mr Visser breached a position of trust and offended repeatedly in a premeditated fashion over a sustained four month period, any justifiable credit is, realistically, limited.
[18] The five per cent discount for remorse was appropriate. It appears that Mr Visser immediately admitted his offending to the Police. Mr Visser accepted responsibility for his actions and displayed insight into his own behaviour. He indicated a wish to refund all parties involved, though currently that does not appear to be possible.
[19] A reduction for a guilty plea is usually considered as a discrete factor, but where the offender has also provided assistance to authorities, the credit for the two factors can be amalgamated.10 The Judge treated the 25 per cent discount as the “full discount” in the circumstances. Twenty five per cent is only the maximum discount when the guilty plea is considered in isolation, and discounts for a guilty plea and assistance combined often exceed 25 per cent by some margin. In any case, I am satisfied that the discount here was appropriate. Mr Visser did not plead guilty at the earliest opportunity. It appears as though he admitted his offending immediately and
alerted the police to the full scope of his offending. Mr Visser’s willingness to assist is also tempered by the fact that, when confronted by an insurance company’s private investigator, he immediately withdrew $30,000 (which presumably could have been
used in reparation) and took his family to South Africa for just under two months.
10 A (CA853/12) v R [2013] NZCA 225 at [13]; and R v Hessell [2009] NZCA 450, [2010] 2 NZLR
298 at [23].
When the 25 per cent, plus five per cent for remorse, is taken into account, I consider the Judge was generous in the discounts he applied.
Was the final sentence manifestly excessive?
[20] I am not satisfied that the sentence was manifestly excessive, having regard to the seriousness of the offending and the culpability of Mr Visser. The end sentence was within the available range.
Decision
[21] The appeal is dismissed.
Thomas J
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