|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 14 May 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA187/2009[2010] NZCA 173
BETWEEN EMMA JANE GARNETT
Appellant
Hearing: 4 November 2009 and 5 March 2010
Court: William Young P, Chisholm and Priestley JJ
Counsel: B J Hart, G J King, and A J Haskett for the
Appellant
N P Chisnall and H R B Stallard for
Respondent
Judgment: 7 May 2010 at 2.30 pm
|
JUDGMENT OF THE COURT
|
(a) The appellant is to undertake psychiatric treatment or psychological counselling to the satisfaction of the Probation Officer;
(b) During the term of the sentence she is to abstain from alcohol and drugs;
(c) At the end of the sentence she is to be subject to the standard
post-detention conditions for a period of six
months.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeal
[1] The appellant, who was formerly a solicitor, pleaded guilty in February 2009 to five charges laid under s 260 of the Crimes Act 1961 of obtaining a pecuniary advantage by deception; and three charges laid under ss 228, 229A, and 253 of dishonestly using documents or making false trust account entries.
[2] On all those counts Judge Kiernan sentenced the appellant to concurrent terms of three years imprisonment. The Judge rejected the appellant’s submission that home detention was an appropriate penalty. This appeal challenges that outcome.
Background facts
[3] Two firms of solicitors and their clients were involved. The names of the victims have been permanently suppressed.
[4] Between 2002 and 2007 the appellant was employed as a solicitor in two established Auckland law firms. During the five years from March 2002 with her first employer, the appellant by a variety of means involving the requisition and deposit of various firm cheques, fraudulently deposited approximately $188,500 into the ledger accounts of an entity and client which she controlled. These monies she then used for personal purposes.
[5] In 2007 the appellant became a salaried partner in another law firm. In two transactions involving $6,000 the appellant similarly misappropriated clients’ money for her own purposes.
[6] Both law firms incurred investigation and other costs attributable to the appellant’s dishonesty. The appellant accepted in the District Court that the first firm’s total loss was in excess of $241,000 and the second firm’s loss approximately $33,500. A global reparation figure was agreed at $275,138.29.
[7] The appellant’s offending was deliberate, sustained, and in clear breach of her professional obligations.
The presentencing phase
[8] The appellant’s guilty pleas did not come early. After a police investigation, she was charged in August 2007, a few weeks after her last offence. There was a depositions hearing in March 2008. Her current counsel (Mr Hart) sought a sentence indication which was set in August 2008 but the appellant then changed her counsel. The sentence indication was eventually given by Judge Kiernan in December 2008, by which stage an August 2009 trial date had been set. Guilty pleas were entered on 4 February 2009. Sentence was passed, two months later, on 6 April 2009.[1]
[9] Although the appellant’s counsel had indicated at various stages in the District Court that a significant reparation sum might be payable from family loans, for reasons which are not relevant, this did not eventuate.
The appellant’s personal circumstances
[10] The appellant is now 36 years of age and an only child. Her father (who is now dead) was much older than her mother. Until she was 16 she lived with her expatriate parents in a number of countries. Her upbringing was affluent but not without difficulties. Her family was at times the subject of terrorist threats. According to what she has told report writers, she felt isolated and lonely. When she was 17 (and back in New Zealand) she was the victim of a serious offence albeit that the offender was acquitted at trial.
[11] What happened to the appellant when she was 17 had a profound effect on her psychological well being. She is married, although the underlying relationship is (and for a long time has been) tenuous.
[12] She is the mother of two boys who are now approximately two and a half years old, and eight months old respectively. The older boy suffers from chronic ill health and has had numerous admissions to Starship Hospital. He is especially prone to ear infections, pneumonia, croup and bronchitis and is (or at least was late last year) being investigated for an immune system disorder. His health difficulties have impeded his speech development. He is heavily, and probably overly, dependent on his mother. The younger boy is healthier than his older sibling but suffers from gastric reflux and has been hospitalised with whooping cough.
Sentencing materials
[13] A number of reports were placed before the Judge by the appellant to which we briefly refer. The appellant, of course, was a solicitor. (She surrendered her practising certificate and has presumably been struck off as a result of her offending). She had no previous convictions. The pre-sentence report assessed the appellant as having a low risk of re-offending but indicated the risk needed to be managed by undertaking psychiatric treatment or psychological counselling. The report writer regarded imprisonment as the appropriate sentence.
[14] The appellant produced a report from Dr T Rudegeair, a consultant psychiatrist. Dr Rudegeair provided a further report for the appellant’s counsel which was presented to this Court. Dr Rudegeair’s opinion to the District Court was the appellant had manifested symptoms of a dissociative intrapsychic organisation. He had no direct evidence that the appellant laboured under a specific dissociative identity disorder. He recommended that further tests be administered to clarify the dissociative disorder he suspected was present. He also opined that the appellant’s “mastery of her dissociative vulnerability” would be assisted by allowing her to continue in her parenting role whilst undergoing treatment. The necessary treatment would be unavailable to her in jail.
[15] A short report was also placed before the Judge from a clinical psychologist, Dr L Holford. This report referred to severe signs of stress when the appellant’s older son was separated from his mother and indicated concerns, including possible emotional collapse and suicidal tendencies, should the appellant be imprisoned.
The sentence
[16] The Judge dealt fairly and comprehensively with all relevant factors including the reports before her. She was alert to the appellant’s overall culpability and to the sentencing option advocated by her counsel of home detention.
[17] The Judge dealt fully with the appellant’s health and family difficulties. She referred to the appellant’s expressions of remorse. The Judge accepted that the appellant might well have mental health issues.[2] She correctly addressed the psychiatric dimension as a possible mitigating factor:
[103] The extent to which mental health issues of any type may have been operating at the time of your offending is unclear. Was your mental capacity such that it affected your offending? Was there in terms of the Sentencing Act diminished intellectual capacity or understanding? From the material before me, Ms Garnett, it is clear that you functioned efficiently as a solicitor, you were promoted, and you were trusted.
[104] There is no evidence of any diminished intellectual capacity at the time of this offending, apart from the suggestion in the recent reports from the psychiatrist and the psychologist that you may have had a dissociative disorder at the time, and loss of memory which you claim of various traumatic events in your life may have been part of that.
[18] She concluded that on the basis of the material before her she was not “... able to take into account, in terms of the Sentencing Act, that [the appellant] had diminished intellectual capacity or understanding at the time of this offending”.[3]
[19] At the time of sentence being passed the appellant was six months pregnant with her second son. This did not impress the Judge:
[105] It is obvious that you are pregnant and your child is due in July. I have to say to you, Ms Garnett, I view it as entirely irresponsible to say the least that you have chosen to become pregnant at a time when it is inevitable that because of this offending you would have difficulty in caring for another child.
On appeal we were told the appellant’s pregnancy was the result of contraceptive failure rather than some deliberate or wilful act.
[20] The Judge correctly described the appellant’s offending as theft for personal gain which had been lengthy, systematic, and motivated by greed. She adopted a start point of four years imprisonment, this being a figure given at the earlier sentencing indication. To that the Judge applied a 25 per cent discount for mitigating factors, being a 15-20 per cent credit for the guilty pleas and a 5-10 per cent additional discount for personal factors.
[21] The Judge rejected home detention as an option and concluded:
[132] I remain of the view, Ms Garnett, that home detention is not an appropriate sentence in your case. It simply would not satisfy the principles and purposes of sentencing, which I have now set out in some detail. Many pregnant women are sent to prison, many with medical and psychiatric issues are sent to prison. The prison provides medical and psychiatric and psychological assistance, and certainly provides assistance for those who are pregnant.
Materials presented on appeal
[22] This Court, on an appeal heard two days after sentencing, granted the appellant bail pending determination of an appeal.[4] On the first day of the appeal hearing, 4 November 2009, we were presented with some disturbing material. This included a lengthy report prepared in September 2009 by a prominent clinical psychologist, Dr Gail Ratcliffe. The report focused on the predicament of the appellant’s two sons and was the result of a number of interviews.
[23] Without detailing in full Dr Ratcliffe’s conclusions, her report pointed to problematic attachment between the elder son and his father; the difficulties which Mr Garnett might have in managing his stress/depression and alcoholism; rupturing of the attachment between the appellant and both her sons; an increase in the separation anxiety of the elder boy; and the difficulties of developing a secure relationship between the appellant and her younger son once he had been removed from being with his mother in prison at the approximate age of nine months (a reference to infants staying with their mothers in prison).
[24] To investigate further the submission of counsel that the appellant’s alleged dissociative disorder might have been a potent mitigating factor (she claimed not to have any recall of her systematic offending) this Court ordered a report from an assessor with expertise in the psychiatric field under s 389(e) of the Crimes Act. This report was obtained from Dr M Duff and covered:
- (a) whether between March 2002 and July 2007, when the appellant was practising as a solicitor in Auckland, she was suffering under a dissociative disorder (specifically a dissociative disorder not otherwise specified);
- (b) whether such disorder (or any related psychiatric disorder), if existing, would have had the effect of the appellant having a diminished intellectual capacity or understanding during the period of her offending; and
- (c) whether such disorder, if existing, would result in the appellant having no recall of her sustained offending.
[25] Dr Duff’s report was comprehensive, she having interviewed the appellant and reviewed her history. She considered it was unlikely that a dissociative disorder was operating at the time of her offending although she accepted that the appellant self-reported a number of consistent symptoms with a dissociative disorder diagnosis. In particular there was an absence of any apparent episodes of amnesic or fugue states.
[26] On the specific questions posed by this Court Dr Duff’s conclusions were:
- (a) The appellant may not have suffered from a dissociative identity disorder during the period in question or currently. It was unlikely that such a disorder would have been a presenting problem during her five years of offending.
- (b) If the appellant was indeed suffering from some dissociative disorder this could have resulted in periods of diminished intellectual capacity or understanding. However, the spontaneous resolution of the disorder, so far as the appellant was concerned, whilst she was remaining at the high levels of stress, undermined the possibility.
- (c) The absence of any evidence of ongoing dissociative switching over the past two years despite high levels of stress, undermined the likelihood that a dissociative disorder accounted for the appellant’s stated lack of recall of her offending.
[27] Dr Duff made a number of recommendations which included:
- (a) therapy, once her “legal issues” have been resolved, it being clinically helpful for this Court to arrive at a decision as soon as possible;
- (b) referring the appellant to prison mental health services and placing her on a suicide watch within a special needs unit pending a formal mental health assessment;
- (c) consideration to assessment for suitable placement of the appellant’s children by CYFS if the appellant was placed in custody; and
- (d) that the offence committed against her when she was 17, her current circumstances as a mother with young dependent children, and the lack of a clear risk to the public may be considered in mitigation by the Court and allow consideration of a non-custodial sentence.
Discussion
[28] We need not traverse counsel’s submissions at length.
[29] Mr Chisnall submitted that the Judge’s start point of four years was unassailable and that the 25 per cent discount for mitigating factors, including the appellant’s personal circumstances, resulted in an end sentence well within range.
[30] Mr Chisnall submitted that the Judge was correct not to regard the appellant’s mental health as a mitigating factor which constituted diminished capacity or understanding. Dr Duff’s report justified the Judge’s approach.
[31] The Judge was aware that the appellant was covered by the transitional provisions of s 15 of the Sentencing Amendment Act 2007. As held by this Court in R v Hill,[5] the restriction in section 15A of the Sentencing Act 2002, that the sentence which would otherwise be imposed be a short-term sentence of imprisonment (two years or less), does not apply. There was thus jurisdiction to impose a sentence of home detention. However, as observed by this Court in R v Hessell, the higher the prison sentence would have been above two years, the less likely it is that home detention would be an appropriate alternative sentence.[6] In that regard, submitted Mr Chisnall, the Judge’s approach to home detention was impeccable.
[32] Although the Judge’s starting point was reasonably stern, it was within the range available, particularly given the 2003 increase in the relevant maximum penalty from seven years to ten years for false accounting.[7] Nor are we concerned about the allowance for the pleas of guilty. Of more concern is the five to ten per cent allowance for personal considerations.
[33] The Judge was plainly not persuaded that the appellant suffered from a dissociative personality disorder, an approach which we think was well open to her on the evidence available in the District Court. On the rather more extensive evidence before us, we have reached the same conclusion. In doing so we are influenced by the sophistication and duration of the offending, the absence of objective evidence independent of the appellant which would support the diagnosis and the reasons given by Dr Duff. On this point we note that the onus of proof was on the appellant, see s 24(2)(d) of the Sentencing Act 2002.
[34] The appellant’s more general mental health is, nonetheless, of some relevance. At the time of the offending, the appellant was still affected by what had happened to her when she was 17 and she was also subject to considerable stress associated with her marriage. The appellant also claims (but this cannot be independently verified) that during some of the time when she was stealing money, she was being stalked by the man who had offended against her when she was 17. One way or another, the appellant does appear to have been at least psychologically compromised at the time of her offending. As well her condition has been much exacerbated by anxiety associated with the stressful situation she has faced since her offending was detected and her anxiety about the consequences.
[35] The weight that can be attached to all of this is limited. While it may be the psychological stresses affected the appellant’s moral judgment at the time of her offending, similar considerations probably apply to much fraud offending. On the other hand, the reality undoubtedly is that, in her current state, imprisonment would be a far more severe sanction for her than for most people. All in all we consider that these considerations (and particularly the latter one) could be fairly regarded as addressed by the Judge’s five to ten per cent allowance, see [20].
[36] At the time of sentencing the appellant had one child, then around 14 months who was chronically ill. She was also six months pregnant with her second child. As noted, the Judge was not impressed by the fact that appellant had become pregnant at a time when she was facing the probability of a prison sentence. We have noted as well the appellant’s explanation for this. But whatever the rights and wrongs, the reality of her family circumstances must be addressed. Mothers of young children are not exempt from prison sentences but we nonetheless consider that some additional allowance – that is on top of the five to ten per cent allowance for personal circumstances made by the Judge – was appropriate.[8] To put this another way, we see the overall sentence of three years imprisonment as simply too long in the context of the appellant’s extraordinarily difficult family circumstances. In this respect we have paid particular regard to s 8(h) of the Sentencing Act which provides:
In sentencing or otherwise dealing with an offender the court—
...
(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe ... .
[37] The very real difficulties in relation to the children put this case very much in a category of its own. In our view an end sentence of two and a half years imprisonment was appropriate and the appeal must necessarily be allowed at least to that extent. This in turn requires us to readdress the question whether to impose a sentence of home detention (this given the then operative provisions of s 57 of the Sentencing Amendment Act and the Hill approach under which home detention could be imposed despite the otherwise appropriate prison sentence exceeding two years).
[38] In usual circumstances, a two and a half year sentence is not a prime candidate for commutation to home detention under Hill. These, however, are not usual circumstances. We say this particularly given the delays which have occurred and in the context of the appellant’s current family circumstances which point compellingly to the harshness of separating the appellant from her two children.
[39] In the circumstances we propose a sentence of 11 months home detention and 300 hours of community work.
[40] It is right that we should add that this end result is extremely lenient when viewed against the offending and the appellant’s culpability, factors which in more usual circumstances would easily warrant the sentence which was imposed. The situation in relation to the appellant’s children is well out of the ordinary. But even so, if this case had fallen to be dealt with under the current sentencing regime, there would have been no alternative to a sentence of imprisonment of around two and half years. So the appellant is extremely fortunate that her case must be addressed under the sentencing approach adopted in Hill.
Result
[41] The appeal is allowed.
[42] The sentence of three years imprisonment imposed on the appellant in the Auckland District Court on 6 April 2009 is quashed.
[43] A sentence of 11 months home detention and 300 hours community work is substituted.
[44] The sentence of home detention is to commence at 9.00am pm 10 May 2010 with the appellant to be then at 17 Altair Place, Mairangi, which is to be the home detention residence where she is to await the arrival of a probation officer and security officer. The sentence is subject to the following conditions:
(a) The appellant is to undertake psychiatric treatment or psychological counselling to the satisfaction of the Probation Officer;
(b) During the term of the sentence she is to abstain from alcohol and drugs;
(c) At the end of the sentence she is to be subject to the standard post-detention conditions for a period of six months.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Garnett DC Auckland CRI-2007-004-16470, 6 April 2009.
[2] At [102].
[3] At [106].
[4] R v Garnett [2009] NZCA 138.
[5] See also R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
[6] R v Hessell [2009] NZCA 450 at [102].
[7] Crimes Amendment Act 2003, s15.
[8] See R v Harlen (2001) 18 CRNZ 82 (CA) at [22].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/173.html