Whangapirita v Police - [2012] NZHC 308

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000098 [2012] NZHC 308

BETWEEN LESLEY ANN WHANGAPIRITA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 28 February 2012

Counsel: F C K Wood for the Appellant
S T Simmers for the Respondent

Judgment: 28 February 2012

(ORAL) JUDGMENT OF DUFFY J

Solicitors: Davys Burton P O Box 248 (DX JP30001) Rotorua 3040 for the Appellant
Gordon Pilditch P O Box 740 Rotorua 3040 for the Respondent

WHANGAPIRITA v POLICE HC ROT CRI-2011-463-000098 [28 February 2012]

[1] The appellant, Lesley Whangapirita, appeals against her conviction and sentence for accessing a computer system for the purposes of stealing company funds. She has filed her notice of appeal outside the 28 day time limit and so requires leave of this Court to bring the appeal.

Background

[2] The appellant was employed by the complainant for 14 years as the administration manager. She had access to the company’s internet banking accounts. Between 4 June 2007 and 11 June 2010, the appellant carried out 65 fraudulent transactions from the company’s bank account to a number of the appellant’s personal bank accounts. These transactions came to a total of $97,331.24. The appellant disguised these transactions by using regular references as payees of the payments.

[3] On 6 May 2009, the appellant was interviewed at work and confessed to removing funds for personal use since 2006. At that time, she was given a chance and no steps were taken against her. She continued in her employment.

[4] On 16 June 2010, the company had another meeting with the appellant, who again admitted stealing funds from the company. She stated that she had tried to stop but it was like an addiction.

District Court decision

[5] In the District Court, the appellant pleaded guilty and was sentenced to two years and three months’ imprisonment on the following charge:

(i)Accesses computer system for dishonest purposes, s 249(1)(a), Crimes Act 1961, maximum penalty seven years’ imprisonment.

[6] In his sentencing notes, the Judge referred to both the victim impact

statement and the pre-sentence report. He noted that the appellant’s offending has caused the victim much stress and a large amount of time and money spent investigating the matter. The Judge also considered that the appellant showed an attitude of risk-taking, entitlement and little remorse, and gambling and use of alcohol also contributed to the offending. The Judge noted that there was little prospect of reparation and that in the year between the initial confession and the subsequent one, she did not pay any money back but continued to steal.

[7] The Judge fixed a starting point sentence of three years’ imprisonment to reflect the seriousness of the offence, as well as the fact that although her employers had given her a chance to stop, she committed more thefts. The Judge gave a 25 per cent discount for the early guilty plea, but did not consider that there was such exceptional remorse as to warrant a further discount. Thus, he imposed an…

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.

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Details

Case: [2012] NZHC 308
Decision Date: 28 February 2012

CaseChat Overview and Summary

Lesley Whangapirita appeals against her conviction and sentence for accessing a computer system for the purposes of stealing company funds. Whangapirita had been employed by the complainant for 14 years and had access to the company’s internet banking accounts. She carried out 65 fraudulent transactions from the company’s bank account to her personal accounts, amounting to $97,331.24. In the District Court, Whangapirita pleaded guilty and was sentenced to two years and three months’ imprisonment. She appeals the sentence on the ground that it is manifestly excessive, arguing that the starting point is too high and that insufficient weight was given to her remorse and good character. The legal issues in this case are whether the appeal was filed out of time, and if the sentence imposed was manifestly excessive.

The court granted leave to appeal out of time as the appeal was filed with the wrong court and the error was not detected until the time limit had expired. Regarding the appeal against sentence, the court must determine if the sentence is manifestly excessive, inadequate, or inappropriate. The court will only intervene where there is an error vitiating the lower Court’s original sentencing discretion. The court found that the starting point of three years’ imprisonment was justified based on the seriousness of the offence, breach of trust, and the fact that Whangapirita was given a chance to stop her offending. The court also found that the appellant did not deserve a significantly higher discount for mitigating factors as she did not offer to make reparation. The sentence imposed was not manifestly excessive and the appeal is dismissed.

Orders