THE QUEEN v BARRY RAYMOND WHITELAW [2002] NZCA 24 (21 February 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca392/01

THE QUEEN

V

BARRY RAYMOND WHITELAW

Hearing:	18 February 2002
Coram:	Anderson J Williams J Baragwanath J
Appearances:	H E Juran for the Appellant N M Crutchley for the Crown
Judgment:	21 February 2002

judgment of the court DELIVERED BY williams J

[1] On 9 November 2001 Sharp DCJ sentenced the appellant, Mr Whitelaw, to 18 months' imprisonment on four counts each of false pretences and obtaining credit by fraud and one count of using a document to obtain a pecuniary advantage.The learned District Court Judge was not prepared to suspend Mr Whitelaw's sentence of imprisonment, nor was she prepared to grant him leave to apply for home detention.It is against those two refusals that he appeals to this Court.

[2] The background is that during a period of some ten months' employment from November 1998 to August 1999 Mr Whitelaw ordered goods or services for his personal use from various suppliers on the basis that his employer would pay for them.He did this despite having been told when he commenced employment that he had no authority to charge anything to his employer without consent. The total monetary amount of the offending was $4079.50.

[3] It appears that these offences came to light in about August 1999, the police were informed and Mr Whitelaw's employment was terminated.

[4] Prior to mid-2001, Mr Whitelaw had unsucessfully applied for severance, a discharge under the Crimes Act 1961 s 347 and had opposed orders regarding admissibility of the Crown's evidence.His first trial began on 5 June 2001 but was brought to an end prematurely for reasons unassociated with Mr Whitelaw.A second trial was scheduled to begin on 8 November 2001 but he pleaded guilty on the morning of trial to the nine counts mentioned.The Crown offered no evidence on two other charges of false pretence and a charge of burglary and Mr Whitelaw was accordingly discharged on those counts under s 347.

[5] In her remarks on sentencing, the Judge described the aggravating features of Mr Whitelaw's offending as including his abuse of his employer's trust, damage to the suppliers who remained out of pocket and Mr Whitelaw having in excess of eighty prior convictions, most of which were for fraud type offences. She noted the mitigating features of Mr Whitelaw's special personal circumstances and the guilty plea at the commencement of the second trial which, when coupled with the lack of any attempt to pay reparation, reduced the credit on sentence otherwise allowable for the guilty pleas.She then held that there were special circumstances in his offending as required by the Criminal Justice Act 1985 s 6 leading her to conclude that imprisonment was the appropriate course for her to follow and that the appropriate length of that imprisonment was eighteen months.

[6] She noted counsel's submissions that reparation could be made by way of instalments payable over a period, something which counsel submitted would not be open were the term of imprisonment not to be suspended.

[7] In relation to suspension, the Judge directed herself that she would need to find "special circumstances" to suspend Mr Whitelaw's term of imprisonment under s 21A.That finding was criticised on appeal because a finding of "special circumstances" is not a statutory prerequisite to suspension.

[8] After taking account of Mr Whitelaw's personal circumstances and notingan earlier suspension of a term of imprisonment to which he had been sentenced and some disagreement about whether his employer at the time of the offending might have owed him some money which he could have utilised in paying the suppliers, the Judge held that the case was not one where suspension of the term of imprisonment was appropriate.

[9] She turned to the application for Mr Whitelaw to be granted leave to apply for home detention and noted his personal health and other circumstances before concluding leave should be declined on the basis that Mr Whitelaw "has not shown himself to be a particularly reliable person and his dishonesty which is endemic in most of his offending going right back to 1980" supported that view. She made an order remitting Mr Whitelaw's outstanding fines of $3947.00 but not existing reparation orders for earlier offending totalling $688.00.

[10] The matter was advanced in this Court on the same grounds as in the District Court, namely that the Judge should have suspended Mr Whitelaw's imprisonment or should have granted him leave to apply for home detention principally to encourage his rehabilitation and to enable him to earn enough to pay reparation to those defrauded by his actions.

[11] Looking first at the legal issues raised by this appeal, the Court has already noted that the Judge applied a prerequisite to the question of suspension which does not appear in s 21A.As was emphasised by the decision of this Court in R v Peterson [1994] 2 NZLR 533, 537, suspension of a term of imprisonment is by statute entirely a matter of discretion with the principal purpose being to "encourage rehabilitation and provide the Courts with an effective means of achieving that end by holding a prison sentence over the offender's head".By describing the test for suspension as one requiring the demonstration of "special circumstances" the Judge was, with respect, in error but a perusal of her judgment shows clearly that she was concerned with the possibility of his rehabilitation and in the end concluded that other factors in the case outweighed that consideration.

[12] As far as leave to apply for home detention is concerned, Mr Juran accepted that the decision of this Court in R v Barton [2000] 2 NZLR 459, 463 shows that whether leave is to be granted is a matter of judicial discretion and one not lightly to be interfered with on appeal.Mr Juran nonetheless submitted that the Judge had exercised her discretion on wrong principles and failed to give sufficient weight to the appellant's personal circumstances.

[13] Mr Whitelaw's previous convictions bulk large in a consideration of the points raised on his behalf and whether reparation would be likely to result were suspension or home detention permitted.

[14] As the Judge noted, Mr Whitelaw has over eighty convictions from 1980 onwards of which about sixty are for offences involving dishonesty.He has been imprisoned on a number of occasions over the years and, importantly, had a two year term of imprisonment suspended on 12 February 1997 on two charges of using a document to obtain a pecuniary advantage.Although his record does not suggest he offended during that two year period, on 20 March 2000 he was convicted of uttering and forgery - two charges arising out of the same employment as gave rise to the matters before this Court - those offences having occurred on 6 August 1999.The leniency of having his term of imprisonment suspended in February 1997 plainly did not dissuade Mr Whitelaw from committing other offences of dishonesty shortly after the period expired. Further, a nine month term of imprisonment imposed on him on 20 March 2000 for those two offences was also suspended for one year.So Mr Whitelaw has been the recipient of leniency in the form of suspension of terms of imprisonment on two occasions previously but he committed two offences not involving dishonesty between 20 March 2000 and the offences before this Court.Any efforts which he may have made at rehabilitation in the years since the first suspension of imprisonment in February 1997 have plainly been ineffectual.

[15] The next matter to be noted is that the pre-sentence report made it clear that once Mr Whitelaw had been dismissed by his employer he was self-employed as a builder for eighteen months but then took employment as a truck driver in April 2001 and was still in that employment when he was sentenced on 9 November 2001.

[16] There is no suggestion that he paid anything to reimburse the complainants in this matter or arranged payment during that period of over two years. Indeed, the evidence before this Court is that complainants were assiduous in endeavouring to obtain payment during that period but were unsuccessful.There may have been some dispute between Mr Whitelaw and his former employer as to money which he claimed was owed to him and which, Mr Juran submitted, Mr Whitelaw thought would be utilised in repaying the complainants, but that misunderstands the legal nature of wages and in any event there was no suggestion in the evidence that Mr Whitelaw ever issued any direction to his former employer in that regard.

[17] Further again, the pre-sentence report described Mr Whitelaw as having "very poor financial management skills" and having been declared bankrupt in about August 1999.His long-term partner manages the couple's finances.Even so, he still had $3947.00 in outstanding fines and $688.00 reparation owing at the time he was sentenced and a time payment arrangement initiated in August 2001 was terminated the following month.

[18] Following on from that, if Mr Whitelaw is genuine in his wish to see the complainants repaid, he can of course still do that on his release from prison.

[19] A third, though less important, issue is that if Mr Whitelaw's term of imprisonment were suspended or if he were granted leave to apply for home detention and home detention were permitted, he would have access to a telephone.The facts in this matter indicate that most of the offences involved in this appeal were committed over the telephone and some involved housing materials.

[20] In all those circumstances, this Court reaches the view that the Judge was not in error in holding that Mr Whitelaw's sentence of imprisonment should not be suspended to assist in his rehabilitation.Similarly the Court upholds her decision that, in the exercise of her discretion, he ought not to be granted leave to apply for home detention.

[21] The appeal is dismissed.

Solicitors

Crown Law Office, Wellington