Whangapirita v Police
[2012] NZHC 308
•28 February 2012
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 end sentence of two years and three months’ imprisonment.
Ground of appeal
[8] The appellant appeals her sentence on the ground that the sentence is manifestly excessive. First, she contends that the starting point is too high. Secondly, she contends that the Judge failed to give sufficient weight, or gave no weight at all to her remorse, her previous good character, and the fact that the offending was self-reporting. It was also said that there was insufficient weight given to credit for co-operating and assisting with identifying the fraudulent transactions. It is true that the appellant has no previous convictions.
Relevant law
Application for leave to appeal out of time
[9] This case requires an application for leave to appeal out of time. Under s 116 of the Summary Proceedings Act 1957, the appellant must file a notice of appeal in writing within 28 days after the sentence. The Judge on appeal has a broad discretion to grant an extension under s 123(1).
[10] In the present case, I have been advised that the appeal was filed in time but with the wrong court, namely the Court of Appeal. The erroneous choice of court was not detected until the time limit had expired. I am satisfied in the circumstances of this case with the explanation that is given. Accordingly, leave to appeal out of time is granted.
[11] Although the appeal also seems to suggest it was against conviction, I was informed today that there was no appeal against conviction, and the appeal is only against sentence.
Appeal against sentence: approach
[12] An appeal against sentence is a general appeal, which is by way of re- hearing. Section 121(3)(b) of the Summary Proceedings Act provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.
[13] The approach to be taken in appeals under s 121(3)(b) were set out in Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010 where the Court said at [13]-[15]:
a)There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.
b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
[14] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Appeal against sentence: substantive
[15] In Varjan v R CA97/03, 26 June 2003 at [21], the Court of Appeal noted that “the circumstances of, and culpability in, offences of dishonesty vary widely. They must be assessed in light of the guidance to be found in previous decisions”. The Court at [22] goes on to consider factors that might be relevant in considering culpability in dishonesty offences:
Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[16] In Francis v R [2011] NZCA 353, the offender used a relatively unsophisticated scheme to steal money from her employer, resulting in a loss totalling just over $63,000 within a year. The sentencing Judge considered the gravity and lengthy period of her offending, the lack of remorse and, in particular, the effect of the offending on her employer, which was a small business set back several years by the offending. The Judge also took into account Ms Francis’ reluctance to pay reparation beyond the $5,000 that she had offered.
[17] The Judge accordingly set a starting point sentence of two and a half years’ imprisonment and ultimately reduced her sentence to one year, eight months’ imprisonment. The Court of Appeal confirmed the sentence, rejecting home detention as sufficient to meet the principles of denunciation and deterrence.
[18] In Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2008, Ms Thomas was employed as an account manager for the victim company. Very soon after she was employed, she went into the system, changed creditors’ bank account numbers to her own and had payments transferred to her account. The offending occurred on no less than 68 separate occasions over a three year period. In that period she misappropriated funds in the sum of just over $300,000.
[19] In the District Court, the Judge considered the gross breach of trust as an aggravating factor. Although Ms Thomas had already paid back $150,000 in reparation, such offending was still seen to merit a starting point of four years’ imprisonment. The Judge allowed a discount of 37 per cent for reparation and a guilty plea. The end sentence was reduced to two and a half years’ imprisonment. Home detention was considered but rejected, because this was a “pernicious kind of offending where deterrence both specifically and generally was a guiding principle” (at [19]). The sentence was upheld on appeal.
[20] In Prewett v Police HC New Plymouth CRI-2007-443-6, 13 June 2007, Ms Prewett stole money from her employers totalling $83,100 within a year and a half. Her direct victims were the employers who had looked on the appellant as a trusted employee, but also as a friend. Taking into account the duration of the offence, the amounts involved and the breach of trust, the District Court Judge imposed a starting point of two and a half years’ imprisonment. This was reduced to one year, four months’ imprisonment, taking into account the offer of full reparation, the impact of the sentence on family life and the guilty plea.
[21] Ms Prewett appealed to the High Court on the ground that the Judge should have granted leave to apply for home detention. On appeal, the Court remarked that the District Court Judge was generous with his sentence (at [6]). However, the High Court allowed Ms Prewett to apply for home detention as Cooper J saw that full reparation had been made and the need for deterrence was not great, given that she had to sell her home to make reparation.
Analysis
[22] On an analysis of the Varjan factors, in all of the above cases, the nature of the offending, the type of victim, the motivation for the offending, and breach of trust are similar. The distinguishing features between these cases are the extent of the loss and the offer to pay reparation.
[23] In terms of the extent of the loss, this case is slightly higher than Prewett, but substantially higher than Francis. So the starting point should be set at a similar
level with a slight uplift. Another striking difference between this case and those of Francis and Prewett is that the offending here went on for three years, as opposed to one; in this respect, the appellant’s offending is more similar to Thomas. As a lengthy period of fraud has been seen as an aggravating factor relating to the offending, the starting point should be higher than in Francis and Prewett to reflect this. This is supported by the fact that the High Court in Prewett at [6] suggested that the sentence Judge was generous with his sentence.
[24] All of these factors point to a starting point here of higher than two and a half years’ imprisonment. In this case, the offending involved calculated dishonesty over a period of three years. There is a significant breach of trust, given that the appellant had worked for the victim for 14 years. There is also the more egregious breach of trust resulting from the resumed offending following the revelation of the first set of offending. These factors clearly influenced the sentencing Judge in his choice of starting point. At [11] of the sentencing notes, he expressed sound reasons for the choice of a starting point of three years’ imprisonment. This was based on his recognition that the appellant was given a chance to stop her offending. She was given a chance to redeem herself. She did not do so. The Judge described the appellant’s employers as placing blind trust in her to do the right thing after she had admitted the earlier thefts. Instead, the Judge considered she had “squandered that opportunity and committed more thefts”. This to me is ample reason to support the Judge’s choice of a starting point of three years’ imprisonment.
[25] In terms of reduction for mitigating factors, this case is different to all the above cases, as the appellant here did not offer to make reparation. As a result, she does not deserve as much of a discount for mitigating factors as the others received. In fact, there are no factors indicating that she should receive a significantly higher discount for mitigating factors beyond her early guilty plea: prior good character is negated by the fact that the offending went on for three years, so it can hardly be considered as a first offence. In addition, I would note that here, because there is a lack of previous convictions, there has been no uplift to the starting point to reflect criminal history as an aggravating feature of the offender. The lack of previous convictions here is a neutral factor.
[26] According to the pre-sentence report, there is no exceptional remorse justifying a further discount either, especially since the appellant was given the chance to pay back the money on the first occasion, but instead took more. The Judge had already given her the maximum possible for an early guilty plea, 25 per cent. Even if previous good character and remorse were to be taken into account here, I think, realistically, they would deserve no more than a five per cent discount.
[27] It has also been said that the appellant co-operated in the discovery of the offending. But, in fact, the facts show that on both occasions, it was the employer who approached her and interviewed her and it was during the interview that she admitted the thefts. This was not a matter where she voluntarily told an employer, who had no idea that money was being stolen from it, that that was what she had been doing.
[28] Even assuming an additional five per cent for remorse and the lack of previous convictions, that would result in a discount of 30 per cent, in which case the end sentence would have been two years and one month’s imprisonment; that is still over the home detention threshold. Given that the suggested end sentence is only two months away from the actual sentence, when the two are compared, I do not consider that the original sentence is outside the range of possible sentences the Judge could have imposed. The difference is not so great as to make the end sentence that was reached one that is manifestly excessive.
[29] It is also important that sentences that do come close to the two year qualification for home detention are not artificially tailored to fall within the range of sentences simply to make an offender eligible for home detention: see R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [35].
[30] Here, on a proper approach under the Sentencing Act 2002, the appellant, even if given a further five per cent recognition for previous good character and remorse and assisting in identifying the offending, cannot reach the qualifying threshold for consideration for home detention. It would be wrong to manipulate the available discounts simply to place her on the right side of the threshold.
[31] When I stand back and look at the matter overall, I am satisfied that the sentence that was imposed was not one that was manifestly excessive. It follows that the sentence imposed in the District Court must stand. The appeal is dismissed.
Duffy J