R v Povey [2017] NZDC 15573 (17 July 2017)

Last Updated: 22 November 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT HAMILTON

CRI-2017-019-001258 [2017] NZDC 15573

THE QUEEN

v

_{LOIS JEAN POVEY}

Hearing:	17 July 2017
Appearances:	C Ure for the Crown H Carson for the Defendant
Judgment:	17 July 2017

_{NOTES OF JUDGE P R CONNELL ON SENTENCING}

[1] Ms Povey, you have pleaded guilty to two charges, a charge of false accounting described by the Crown as a representative charge, in other words one charge covering a number of offences over a lengthy period of time and a further similar type charge, a representative charge of being a person in a special relationship you in essence abused the trust of that relationship to steal money. Those charges respectively have a 10 year and seven year term of imprisonment attached to them so you will understand that they are indeed very serious and I have no doubt that your counsel has advised you of that.

[2] You were employed as a personal assistant and an office manager by the [victim company] and in 2010 you became the sole charge office employee which left you collating and receiving invoices. It was only in 2015 when another person

_{was employed did those discrepancies that you are now in trouble for appear in your}

R v LOIS JEAN POVEY [2017] NZDC 15573 [17 July 2017]

work and I have looked at the circumstances outlined in the summary of facts of how it was that your offending was after this five year term finally discovered.

[3] The offending involved you assembling invoices for payment. You would create a dummy invoice you would add to a list that was then put in front of your employer for approval for payment and of course in that list of payments there was one of these dummy invoices with the monies then being paid to your own bank account. The investigation from 10 June 2010 to 21 December 2015 showed a total of $203,508 taken by you over 76 fraudulent transactions. The largest transaction involved the sum of $7625.49.

[4] Your explanation for this offending was two-fold. One, you considered that you were only borrowing the money and you had an intention of putting it back but of course you know the sum became so large that that was not an intention that was either realistic nor could it be fulfilled and I think it is of importance to note that, despite your stated intention, it was not something you ever did in terms of repaying anything until you finally lost your job and part of your pay was put towards the loss suffered by the company employed by you. That was a very small sum of money as I understand it in relation to the total of $203,508 that you took.

[5] The issue is one which is your breach of trust to me that is probably the most aggravating feature of it. I have read the victim impact statement in this case. You caused a great deal of trouble for your boss. He had to at some point let experienced staff go because of what he thought was the poor performance of his business and in fact it was your taking of the money that caused that loss. He also had to take on business loans to cover the shortfall and at times he himself did not take any drawings from the company, went unpaid in order to simply keep its head above water. Those were things that not just only affected you but affected him, no doubt his family and affected those people who lost jobs and so on. The consequence of what you have done is indeed serious in my view.

[6] I have read with some care your probation officer’s report obtained for the purpose of this sentence. You are assessed as having a medium risk of re-offending and of being a medium risk of harm to others. That report has suggested that a

sentence of imprisonment is warranted. The report writer recommended rehabilitative counselling for gambling for you. That was part of the reason that you took this money. I do not accept that that is the full explanation by any means. There was money simply used to pay what might be described as domestic-related bills. But you yourself considered it unnecessary to accept any counselling or gambling because you have said that you yourself have got yourself away from gambling, that you do not want to return to it, you do not want to engage in it. So you did not see a need for counselling but you would accept you said anything the Court might order in that regard.

[7] The probation officer took issue with the fact that your claim was that the theft of these monies was just to support a gambling addiction, the probation officer pointing out that some of this money was used for purposes. I note as an example in there you were paying your daughter’s mechanic’s account to obtain a warrant of fitness and that is simply one example of what the Probation Service say were in effect another use of the money other than simply for gambling purposes.

[8] I have referred to the victim. That statement made by the victim certainly points out the hardship to him, as I have mentioned it, and he is indeed a person who says to some degree you have benefited from what you have done. He points to your interest in a house owned with your daughter and son-in-law and he points to the fact that you have had the benefit of this by paying monies into your KiwiSaver. You have endeavoured as a matter of trying to make some payment of reparation to withdraw those funds but the circumstances are such that the Westpac Bank will not allow you to withdraw the funds for the purpose of paying reparation. I accept and some credit might be given to you for trying to do so but at this point in time counsel has acknowledged and the Crown have pointed out you have not paid any reparation because you simply cannot, you are not in a position to do so, but as I read the victim impact statement he is a little upset that you still retain an interest in a property and the fact that you still receive the benefit of your KiwiSaver despite owing money to him.

[9] I have had to consider the assessment of culpability and compare it to other cases that have been determined by higher Courts than this one and you might

understand through dealing with your counsel that I am bound to follow the guidance given by the senior Courts in this country around issues like this. The first thing that has to be said is that there is no guideline judgment for this type of offending. I have reviewed the cases provided both by your counsel and by the Crown.

[10] I look at R v Davis1. This was a case where $277,000 was paid from the business account to the defendant. She overpaid herself by increasing her own salary. She repaid some of the money but there was still some $200,000 owed. It was in that case a breach of trust and premeditation to set up a sophisticated system to steal money. The starting point in that case for a term of imprisonment was one of four years before any deductions were made. Notable to me is that this case of yours involves a degree of sophistication around how you were able to get money from the company for such a very long period of time. There was the comment made that it could not even be picked up by audit because of the way you went about stealing the money that you did and setting up a fairly sophisticated system within the computer system of the company.

[11] Campbell v Police2 there was in that case 104 occasions over 21 months where the defendant used falsified entries to overpay herself to the total of $261,000. In that case a starting point of three years and nine months’ imprisonment was adopted. Bayly’s case, Bayly v R3, that involved 59 incidents of the defendant defrauding a company he was a director of for a total of $317,000 and in that case there was a starting point of three years’ imprisonment adopted. The circumstances of his offending were somewhat different to this and in effect he was a director of the company that he had an interest in.

[12] The case of Fitzmaurice v Police4 is one that is relied upon by your counsel, Ms Carson, as an illustration as to why home detention is something that could be imposed in this case and that was a case where a priest stole $149,000 from his church. He had in that case a starting point of three years but special circumstances

_{that were allowed by the Court of Appeal were then bringing the sentence down to a}

1 R v Davis [2017] NZCA 226

2 Campbell v Police [2013] NZHC 838

3 Bayly v R [2013] NZCA 520

4 Fitzmaurice v Police [2013] NZHC 494

two year term and where it was appropriate then for home detention to be imposed but what I do not see is the similar circumstances that might warrant such a deduction in this case. Garnett v R5, in that case Ms Garnett pleaded guilty to eight charges of fraud spanning offences she committed against two law firms she worked for. Her offending totalled $275,000. The Court considered in that case a starting point of four years’ imprisonment was stern but ultimately within range.

[13] The Crown in this case submits the following aggravating factors present in this offending. The first is the issue of premeditation. You would have had to have premeditated this to have committed the offending. The value of the loss here is a significant figure, no question of that. The sum in this case was $203,508. The breach of trust is another aggravating feature brought to the attention of the Court. I have made comment about that. Then the victim impact statement and what it says to the Court shows that this was offending that caused considerable trouble for the complainant company and its owner. One matter that I do think is of some importance and certainly an aggravating feature is the five year period of time over which this offending persisted and it was multiple offending. You have been charged with representative charges but it was multiple offending here and that is something that is taken into account in my assessment of culpability.

[14] The Crown submits here a starting point of three years and nine months to four years’ imprisonment as being an appropriate sentence. It acknowledges that you do not have any previous convictions and acknowledge too that you are entitled to a credit in the range of some 20 to 25 percent for your guilty pleas. Ms Carson on your behalf submits a starting point of two years and six months to three years and six months. That is the range in which she says the sentence should fall. She has pointed out that this was a gambling addiction that had you spent this money, that you have made efforts to get away from gambling, you no longer do so and that simply explains your response to the Probation Service. I do not place any great weight on that. It may be that you have completely got yourself away from any

_{addiction for gambling, good on you if that has happened.}

5 Garnett v R [2010] NZCA 173

[15] But in mitigation Ms Carson says you are entitled to a full discount of

25 percent for your guilty plea, that you are a person of previous good character. You know the Crown took some issue with that saying well that is so up until the year 2010 but that is when you started offending and you cannot make any claim for good character post that. You have no previous convictions as I have said. You are genuinely remorseful Ms Carson has submitted before me and with that the submission of the defence is that with appropriate deductions you might reach a sentence of two years’ imprisonment in which case that could trigger a sentence of home detention and Ms Carson’s submission is that it is the most appropriate option in this case for you. She also submits that in terms of the Sentencing Act 2002 it is the least restrictive sentence that could be imposed.

[16] I have had regard to the starting point first of all. In my view looking at charge 1 and determining that there should be a concurrent approach to sentencing, the starting point, particularly having regard to those previous authorities that I have mentioned, should be one of three years and three months’ imprisonment. I give you a credit for your guilty plea of 10 months. Now you will understand from that that the sentence is reduced then to two years and five months. I make a credit again as best as I can in these circumstances for your good character up to at least 2010 but that credit must necessarily be a limited one. The credit I am going to give you in respect of that together with the remorse that you suffer will be a three month credit. That takes you to a two year, two month term of imprisonment.

[17] There is nothing that I can consider further to reduce that to a two year term. I have said to your counsel that I do accept that you would probably be a good candidate for a sentence of home detention. It is the seriousness of the offending that has really brought about the fact that I cannot impose home detention. I cannot reduce the sentence that I have determined to a two year term just for the sake of then qualifying for home detention. I have to say against home detention being imposed is the seriousness of the offending. It is not just based on the amount that was taken but the circumstances of it and the time over which the offending occurred. That five years was a lengthy period of time to be committing these offences. It involved a serious breach of trust and there does need to be in the

sentence that I impose a reflection of the purpose which is to denounce and deter others from committing this type of offence.

[18] In respect of charge 2 I simply impose the same sentence, two years and three months, but that will run concurrently with the sentence imposed on charge 1. I do not make any order for reparation. I do not consider that you are in a position to meet reparation. I think your health and age may preclude you in the future from work meaning you would not be able to make reparation. To me that is a sad outcome for the victim who would be entitled to have repayment of everything you took but you cannot afford to do that.

[19] Two years and two months is the total sentence.

P R Connell

District Court Judge