Wynyard v The Queen
[2016] NZCA 135
•8 April 2016 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA219/2015 [2016] NZCA 135 |
| BETWEEN | GLENDA MARY WYNYARD |
| AND | THE QUEEN |
| Hearing: | 8 April 2016 |
Court: | Randerson, Lang and Clifford JJ |
Counsel: | M P Reed QC and R S Reed for Appellant |
Judgment: | 8 April 2016 at 10 am |
Reasons: | 15 April 2016 |
FINAL JUDGMENT OF THE COURT
AThe appeal against sentence on counts 1, 11, 12 and 13 is allowed.
BThe sentences of home detention imposed in the District Court on those charges are quashed.
C A total fine of $10,000 is imposed on counts 1, 11, 12 and 13.
DThe fine must be paid to the District Court no later than 15 April 2016.
EBail is continued until payment of the fine is made in full on these terms:
(i)The appellant must surrender her passport to the Registrar of this Court by 2pm today [8 April 2016].
(ii)The passport will be returned to the appellant upon the Registrar being satisfied by appropriate documentary evidence that the fine has been paid in full.
(iii)The appellant will then be released from bail and may return to Australia.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Ms Wynyard stood trial in the District Court on 13 charges laid under the Crimes Act 1961. She was found guilty on 11 of those charges and sentenced to eight months home detention.[1] In an interim judgment delivered on 17 December 2015, this Court allowed her appeal against conviction on seven charges.[2] The convictions in respect of those charges were set aside and the sentences imposed in respect of them were quashed.
[1]R v Wynyard [2015] NZDC 7240 [sentencing notes].
[2]Wynyard v R [2015] NZCA 610 [interim judgment].
The Court was then required to determine the appeal against sentence in relation to the remaining charges, being counts 1, 11, 12 and 13. Each of those charges alleged that Ms Wynyard dishonestly used documents to obtain a pecuniary advantage. Following a further hearing on 8 April 2016 we quashed the sentences of home detention imposed on those charges and substituted a fine of $10,000.[3] We also imposed bail conditions designed to ensure the fine was paid before Ms Wynyard returned to Australia. The fine has now been paid in full.
[3]Wynyard v R [2016] NZCA 112 [results judgment on sentence appeal].
We indicated on 8 April 2016 that our reasons would follow. These are our reasons.
Factual background
The general background to Ms Wynyard’s offending is to be found in our interim judgment and we do not propose to repeat it.[4] Instead, we propose to briefly outline the factual basis for each of the charges in respect of which we were required to reconsider the issue of sentence. In doing so we largely adopt the narrative provided by Mr La Hood for the Crown. We did not take counsel for Ms Wynyard to dispute the summaries contained in the Crown’s submissions.
Count 1
[4]Above n 2, at [3]-[14].
This charge relates to an “application for accreditation form” that Ms Wynyard submitted to the Print Media Accreditation Authority (the PMAA) on behalf of her company, The Media Counsel Ltd (TMC), on 1 September 2008. The form sought media accreditation for the company, and was accompanied by the company’s financial statements for the year ended 31 March 2008.
Ms Wynyard certified in the application form that TMC had and would maintain a minimum ratio of $1.25 of tangible assets for every dollar of liabilities. The financial statements showed that the company met this ratio as at 31 March 2008 because it had total tangible assets of $2.062 million and liabilities of $1.598 million. Included in TMC’s assets was the sum of $1.3 million that another of Ms Wynyard’s companies had deposited into the company’s bank account on 31 March 2008. That company was able to make the payment because Ms Wynyard had arranged for it to obtain an overnight overdraft facility from a bank. On 1 April 2008 Ms Wynyard transferred the funds out of TMC’s account and back into the account of the other company.
Ms Wynyard used the application form dishonestly when she submitted it to the PMAA knowing that the certificate she gave was false. The certificate was false because TMC was never going to retain the funds that it had obtained from Ms Wynyard’s other company. As a result, TMC was never going to be able to maintain the required ratio after 1 April 2008.
Count 11
The background to this charge is fully explained in the Court’s interim judgment.[5] In short, Ms Wynyard led Aegis Media New Zealand Limited (Aegis) to believe that it would receive the benefit of a payment made to TMC by one of its debtors. Instead of paying the funds to Aegis, however, Ms Wynyard used them to reduce the debt owing by TMC to Marac Finance Limited. The dishonesty underpinning this charge was Ms Wynyard’s use of the cheque to repay Marac after having represented to Aegis that she would pay the funds to it.
Counts 12 and 13
[5]Above n 2, at [41]-[42].
These charges were laid after Ms Wynyard provided Aegis with two cheques that were later dishonoured. The first cheque was dated 19 January 2010 and was for the sum of $139,151.75. The second was dated 25 January 2010 and was for the sum of $1,548,257.97. TMC did not have sufficient funds in its account to meet either cheque. Ms Wynyard’s dishonesty in relation to these charges arose from the fact that she attempted to use cheques to meet her obligations to Aegis in circumstances where she knew that they could never be honoured.
The original sentence
The Judge did not identify the starting point he proposed to apply in respect of individual charges or sets of charges. It is clear from the sentencing notes, however, that he viewed the charges in respect of which the convictions have now been quashed as being the most serious. The Judge noted that the facts of the case were unusual, and that it was different in some respects to other cases in which the director of an ailing company had diverted funds from other sources in an attempt to save the company.[6]
[6]R v Wynyard, above n 1, at [2].
The Judge took a starting point of two years imprisonment to reflect Ms Wynyard’s culpability on all charges. After giving Ms Wynyard credit of 20 per cent for previous good character, the Judge converted the end sentence of 21 months imprisonment to concurrent sentences of four months home detention on one charge and eight months home detention on all remaining charges.
Submissions
For Ms Wynyard, Mr Reed QC submitted that conviction and discharge was appropriate given the relatively low culpability of Ms Wynyard’s offending coupled with mitigating factors, including in particular her previous good character.
For the Crown, Mr La Hood submitted that the starting point the Judge adopted in relation to the charges on which Ms Wynyard was originally convicted was unduly lenient, and that a sentence of home detention remained the appropriate sentence.
Analysis
We consider the most serious aspect of the offending is that the conduct giving rise to each of the charges involved actual dishonesty on Ms Wynyard’s part in a commercial setting.
The offending giving rise to Count 1 is the most serious because it resulted in TMC obtaining valuable media accreditation in circumstances where that would not have occurred if Ms Wynyard had advised the PMAA of the company’s true financial position. Ms Wynyard was prepared to sign a formal certificate confirming that TMC would maintain its asset/debt ratios when she knew that this would not be possible.
We do not accept the submission for Ms Wynyard that the culpability of this aspect of her offending is lessened by the fact that other entities in the media industry may also have acted in a similar manner. Ms Wynyard was the only person who gave evidence to this effect, and the Judge rightly rejected it in his reasons judgment. We do not consider that this factor, even if correct, lessened Ms Wynyard’s culpability at all. We accept, however, that there is no evidence to suggest that the PMAA suffered loss as a result of Ms Wynyard’s dishonesty.
The conduct giving rise to the remaining charges occurred at a time when TMC was in serious financial difficulty, and largely reflected misguided efforts by Ms Wynyard to placate Aegis whilst she paid off the debt owing to Marac. We also accept that Ms Wynyard did not derive any personal benefit from the offending. Furthermore, Aegis did not suffer any loss as a result of this offending. So far as Count 11 is concerned, Marac was always entitled to be paid in priority to Aegis because it owned the debt from which the payment was to be made. So far as the remaining charges are concerned, TMC was never in a position to honour the cheques that Ms Wynyard gave to Aegis.
Decision
We did not accept that conviction and discharge is the appropriate outcome for offending involving multiple instances of dishonesty in a commercial context. Nor did we accept the Crown’s submission that home detention is appropriate because we did not consider that the offending warrants a starting point of a sentence of imprisonment.
We considered that the appropriate sentence would ordinarily have been one of community work. The appropriateness of that sentence is called into question by the fact that Ms Wynyard now lives in Australia, where she has re-established her life and appears to be doing well. She is employed in a successful business, and her employer speaks very highly of her. She has also suffered considerable stigma and embarrassment as a result of the convictions, the most serious of which have now been quashed. Given those facts we did not consider it appropriate to require Ms Wynyard to remain in New Zealand whilst she serves a sentence of community work.
Prior to the hearing, and at the request of the Court, Ms Wynyard provided details of her present financial position. She advised the Court that, if it were minded to impose a monetary penalty, she could pay a fine of up to $10,000 by borrowing that sum from her employer.
We considered that a fine in the sum of $10,000 was a sufficient penalty having regard to all of the circumstances of the case.
Result
At the conclusion of the hearing on 8 April 2016 we made the following orders in the results judgment:[7]
[7]Above n 3.
AThe appeal against sentence on counts 1, 11, 12 and 13 is allowed.
BThe sentences of home detention imposed in the District Court on those charges are quashed.
CA total fine of $10,000 is imposed on counts 1, 11, 12 and 13.
DThe fine must be paid to the District Court no later than 15 April 2016.
EBail is continued until payment of the fine is made in full on the following terms:
(i)The appellant must surrender her passport to the Registrar of this Court by 2pm today [8 April 2016].
(ii)The passport will be returned upon the Registrar being satisfied by appropriate documentary evidence that the fine has been paid in full.
(iii)The appellant will then be released from bail and may return to Australia.
Solicitors:
Crown Solicitor, Wellington for Respondent
2
0