Watson v R - [2012] NZCA 17

IN THE COURT OF APPEAL OF NEW ZEALAND

CA426/2011
[2012] NZCA 17

BETWEEN RICHARD ARTHUR WATSON
Appellant

AND THE QUEEN
Respondent

Hearing: 13 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: S Tait and H Kim for Appellant
J M Jelas for Respondent

Judgment: 20 February 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence including the minimum period of imprisonment is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

The appellant, Mr Watson, pleaded guilty to two counts of theft: one count of theft by a person in a special relationship (Crimes Act 1961, s 220), and the other count theft pursuant to s 219 of the Crimes Act. He was sentenced to six and a half years imprisonment with a minimum period of imprisonment of 50 per cent of that sentence by Judge Blackie in the District Court.[1]
[1] R v Watson DC Manukau CRI‑2010‑092‑12755, 27 May 2011.
The appellant, in appealing against sentence, says that the sentence is manifestly excessive because the Judge failed to give proper recognition to mitigating factors. Secondly, the appellant says the imposition of any minimum period of imprisonment was unjust in the circumstances.

The facts

Mr Watson was at the time of his offending the General Manager, Financial Controller/Adviser and Head Accountant of the Ross Group of Companies. He commenced working for the Ross Group in 1978. The Ross Group consists of 26 private companies and four trusts. The appellant had access to all Ross Group bank accounts.
Between October 2000 and February 2009 he stole $5,495,217 from the Ross Group.
The thefts occurred by the appellant either transferring money to a business called Premier Insulation (of which he was a shareholder) and then to his personal account or by transferring the money from a Ross Group Company directly to his personal bank account. The appellant said that most of the stolen money had been spent on slot machines at the Auckland Casino.
The offending came to light when in March 2010 the Ross family decided that there should be an audit of the group accounts. Three months later in June 2010 the appellant confessed his offending, initially to his wife who in turn contacted Mr Ian Ross, one of the Ross family to alert him to the offending.
The appellant initially admitted to having taken some $2.5 million. An audit was undertaken which revealed the theft was almost $5.5 million. Eventually the offending was reported to the police. The appellant first appeared in court in August 2010. The charges were laid indictably and proceeded through the committal process to committal. The appellant finally pleaded guilty at the first trial callover.

The decision appealed from

The Judge at sentencing began by detailing the victim impact. He noted that it was substantial. The appellant had apparently told the shareholders that because of financial pressures on the Ross Group they had to inject shareholders’ funds. Some of the shareholders mortgaged their own homes to inject…

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 Watson v R

Details

AGLC: Watson v R [2012] NZCA 17
Case: [2012] NZCA 17
Decision Date: 20 February 2012

CaseChat Overview and Summary

In the case of Watson v R, the appellant, Mr Richard Arthur Watson, appealed against the sentence imposed by Judge Blackie in the District Court, which included a minimum period of imprisonment. Mr Watson had pleaded guilty to two counts of theft, one of which was theft by a person in a special relationship and the other theft pursuant to section 219 of the Crimes Act. Mr Watson was sentenced to six and a half years imprisonment with a minimum period of imprisonment of 50 per cent of that sentence. The appellant argued that the sentence was manifestly excessive because the Judge failed to give proper recognition to mitigating factors and that the imposition of any minimum period of imprisonment was unjust in the circumstances.

The court examined the appellant's arguments and found that the 20 per cent discount the Judge gave for all mitigation was appropriate. Other than the guilty plea, there was little justification for any further discount. The court also found that the Judge was entitled to impose a minimum period of imprisonment and that he made no error in doing so. The imposition of the minimum period of imprisonment took into account the need to hold the appellant accountable for the harm done, the denunciation of the conduct and deterrence. The court was satisfied that the sentence of six and a half years' imprisonment was not manifestly excessive, and despite the jurisdictional error, the minimum period of imprisonment was appropriate.

In conclusion, the appeal against the sentence, including the minimum period of imprisonment, was dismissed. The court found that the sentence imposed was justified, and the minimum period of imprisonment was appropriate in the circumstances. The court also corrected the jurisdictional error by quashing the order for a minimum period of imprisonment with regard to count one.

Orders