The Queen v Thomson [2006] NZCA 18 (2 March 2006)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA406/05

THE QUEEN



v



DANICA CHELSEA THOMSON

Hearing: 14 February 2006

Court: William Young P, Potter and Rodney Hansen JJ

Counsel: P T R Heaslip for Appellant
J M Jelas for Crown

Judgment: 2 March 2006

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS

(Given by Rodney Hansen J)

Introduction

[1]	After a trial by Judge AE Kiernan and jury, the appellant was convicted of 39 counts of fraud. She was sentenced to two years imprisonment with leave granted to apply for home detention. She appeals against conviction and sentence.

Background

[2]	The appellant was recruited as a front person to help carry out a scheme to systematically defraud banks. It involved opening bank accounts under false names using forged means of identification. Stolen altered cheques would be deposited into the accounts and drawn on. Stolen credit cards were also used to obtain cash advances or unauthorised purchases.
[3]	Over the period March – September 2003 the appellant helped to perpetrate the frauds in visits to numerous banks in the Auckland, Waikato and Coromandel areas. Her fraudulent activities involved a total of $246,684 and resulted in losses of $128,098.
[4]	When apprehended the appellant admitted the offending. She claimed she had been pressured into participation as a result of written threats to harm her children. At trial, in support of the defence of compulsion, she said she received a series of letters stating that if she wanted to continue having or seeing her children, she should comply with the demands made on her. After the third such threat she met with the organisers. After that she acted on their instructions fearful, so she said, that her children would be harmed if she did not. By their verdict the jury rejected the defence.

Conviction appeal

Submissions

[5]

The appeal against conviction was advanced on the ground that the prosecution failed to disclose information in advance of trial which would have been likely to assist the defence. In particular, the appellant complains that the Crown should have disclosed information concerning prosecutions brought against other front persons involved in the same criminal enterprise. It is contended that information would or might have assisted the appellant in her defence of compulsion. The denial of such materials is said to have rendered the trial unfair and in breach of the Bill of Rights Act 1990. A new trial is sought as was granted in Re Appelgren [1991] 1 NZLR 431 when further material in the hands of the prosecution did not come to light until after trial.

[6]

In opposing the appeal, Ms Jelas for the Crown says there was no obligation to disclose material relating to other offenders whose activities were unconnected to those of the appellant; counsel for the appellant was aware of the existence of the co-offenders and did not seek disclosure; and information relating to other offenders would not, in any event, have assisted the appellant’s defence. An affidavit by the officer in charge of the investigation, Detective Geoffrey Garrett, was filed in support of the Crown’s position.

Discussion

[7]	The Crown’s obligation of disclosure extends to material evidence: R v Mason [1976] 2 NZLR 122 (CA); R v Quinn [1991] 3 NZLR 146 (CA). Detective Garrett deposes that information relating to the offending of other front persons was not material to the appellant’s offending and the police had no reason to think it was. He says there was nothing to suggest any connection between individual offenders. It has not even been established that the principal offenders (who remain unidentified) were the same in each case.
[8]	In light of this unchallenged evidence, we accept there was no obligation on the Crown to disclose the information now complained of. Before trial Mr Heaslip was aware there were other offenders. The identity of all known relevant offenders was disclosed by Detective Garrett in cross-examination by Mr Heaslip. Mr Heaslip engaged in extensive correspondence with the Crown regarding other aspects of discovery. He could have specifically sought further information about other offenders but chose not to.
[9]	The available evidence suggests that any information held by the police in relation to the other offenders would, in any event, have been of no assistance to the appellant. One, who did not make a statement, suggested to the sentencing Judge that he was "forced to do it", but the Judge would have none of it. The motivation in all other cases appears to have been personal gain. Only the appellant sought to advance a defence of compulsion. The circumstances relied on were unique to her. We cannot see how she would have been assisted by further discovery in relation to other offending.
[10]	In the event, there is no basis for the contention the appellant did not have a fair trial. Her appeal against conviction must fail.

Sentence appeal

Sentencing decision

[11]

In her careful and comprehensive sentencing remarks (occupying 12 pages of typescript), Judge Kiernan referred to the sentence imposed on four other offenders, all of whom pleaded guilty. Two were of community work. The others were prison terms of six months and 18 months. The Judge accepted a Crown submission that the offending of one who had been sentenced to community work was unrelated to that of the appellant and the other three offenders.

[12]

The Judge identified as aggravating features the extent of the loss, the length of time over which the offending occurred and the sheer number of fraudulent transactions involved. In mitigation she referred to the appellant’s previous good character and to her secondary role in the offending. These factors warranted a reduction of six months from a starting point of two and a half years.

Submissions

[13]

Mr Heaslip submitted the sentence was excessive having regard to the appellant’s role and the sentences imposed on other offenders for similar offending. He referred in particular to the sentence of 400 hours community work and nine months supervision imposed on one offender who was responsible for losses of $122,000. He said the sentence was also out of line with 18 months imprisonment imposed on an offender who had previous convictions for serious offences and who, unlike the appellant who did not benefit from the offending, derived gains which she used to feed her drug habit.

[14]

Ms Jelas acknowledged that the offender who received the sentence of community work was treated leniently, as the losses he caused were comparable to those resulting from the appellant’s offending. She submitted that did not warrant a reduction in the appellant’s sentence, which was in line with sentencing levels sanctioned by this Court for similar offending. She referred to R v Ather CA379/97 19 November 1997, which also concerned the use of stolen cheques to steal from bank accounts. The 17-year-old offender pleaded guilty to 87 charges causing losses of $152,893. This Court adopted a starting point of four years, reducing her sentence to two and a half years to take account of her guilty plea and her youth.

Discussion

[15]	Offending of dishonesty on a large scale will invariably justify a sentence of imprisonment. As this Court said in R v Varjan CA97/03 26 June 2003 – one of the authorities considered by the sentencing Judge:

The authorities clearly indicate that in cases of major defalcations, schemes dishonestly to obtain money or property or where recidivism indicates the need to protect the community, prison is appropriate. (at [25])

[16]	The starting point adopted by the Judge was appropriate to the scale of the offending and supported by authorities such as Ather and Varjan. Appropriate allowance was made for mitigating factors.
[17]	The final sentence is in keeping with the prison sentences imposed on others involved in the scheme. The sentence of six months was imposed on an offender who had previous convictions but faced only four charges involving the sum of $3,513. It is true, as Mr Heaslip said, that the woman who was sentenced to 18 months imprisonment had significant previous convictions and benefited personally from the offending. On the other hand, the loss resulting from her offending - $46,000 – was substantially less. The sentence of community work was undoubtedly merciful. However, as Judge Kiernan noted, the age of the offender (20 years) and an offer to make full reparation, had a major impact on the final sentence.
[18]	We consider the sentences imposed on other offenders were appropriately recognised and distinguished by Judge Kiernan. In all other respects her approach and the final sentence were in accordance with sentencing principles and authorities.

Result

[19]	The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington