[1] The appellant, Fiona Wilton, pleaded guilty to two representative charges of theft by a person in a special relationship and one charge of dishonestly using a document to obtain a pecuniary advantage. Ms Wilton was sentenced by Judge Mill on 23 October 2014 to two years and three months’ imprisonment.1 Ms Wilton now appeals that sentence on the grounds that it is manifestly excessive.

Facts

[2] Ms Wilton is the daughter of the elderly complainant, Mr Wilton. Mr Wilton was diagnosed with Parkinson’s disease in 2009. In 2011, Ms Wilton began to care for him on a day-to-day basis as his health had deteriorated. She had access to his
bank accounts and eftpos card. In May 2012, by which time Ms Wilton was living at

1 Police v Wilton HC Masterton CRI-2014-035-000589, 23 October 2014.

WILTON v POLICE [2015] NZHC 427 [13 March 2015]

her father’s home, she and her brother were given power of attorney over their

father’s affairs. Shortly after that Mr Wilton moved into a residential home. [3] Ms Wilton had the responsibility of paying her father’s bills.
[4] Towards the end of 2013, Ms Wilton’s brother noticed that there was a substantial amount of money missing from his father’s accounts, and that there were outstanding bills from his residential home.

[5] It was then established that between October 20122 and December 2013, Ms Wilton had on 63 occasions transferred a total of $62,528 from her father’s accounts to her own. She had also used his eftpos card on 112 occasions to withdraw
$21,000 cash from ATM machines in or near hotels that operated TAB betting and gambling machines. In July 2013, she requested a bonus bond redemption drawdown of $7,490 be paid from her father’s account into her own. Ms Wilton took a total of $91,148 from her father. She spent most of the money gambling. She also purchased a car, for approximately $5,000.

[6] Ms Wilton’s brother noted in his victim impact statement that he had had to spend $3,000 of his own money to help sort his father’s finances out. He had also had to sell his father’s house, which Ms Wilton was still living in, in February 2014 to pay outstanding residential care bills, and to provide for those bills in the future. Ms Wilton’s brother thinks there is enough money for that purpose, but not to meet “extras”, like operations.

[7] When spoken to by the Police, Ms Wilton admitted her offending and was cooperative.

[8] In 2011 Ms Wilton had been sentenced to six months’ community detention and 100 hours’ community work for benefit fraud, involving a false claim to a solo parent’s benefit, which began in 2006. She, together with…

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 Wilton v Police

Details

AGLC: Wilton v Police [2015] NZHC 427
Case: [2015] NZHC 427
Decision Date: 13 March 2015

CaseChat Overview and Summary

Fiona Wilton appeals against a two years and three months imprisonment sentence imposed on her for theft by a person in a special relationship and dishonestly using a document to obtain a pecuniary advantage. Ms Wilton stole from her father, a vulnerable elderly man who had given her his power of attorney. The appeal is against the sentence being manifestly excessive. The appeal was heard by Clifford J. The appeal was allowed, the sentence was quashed, and a sentence of one year and 10 months’ imprisonment was substituted in its place. Clifford J found the starting point sentence of three and a half years was manifestly excessive. By reference to the authorities considered, the appropriate starting point range for Ms Wilton’s offending was two years six months to three years. Clifford J would have set a starting point sentence of two years and nine months’ imprisonment. Clifford J was not persuaded an uplift was required for Ms Wilton’s previous offending. A 25 per cent guilty plea discount was allowed, along with a three month discount for personal circumstances. Clifford J arrived at a sentence of imprisonment for Ms Wilton of one year and 10 months. Clifford J declined to sentence Ms Wilton to home detention.

Orders