R v Du-Plessis [2017] NZDC 3994 (28 February 2017)

Last Updated: 27 June 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT WELLINGTON

CRI-2014-085-014617 [2017] NZDC 3994

THE QUEEN

v

_{ANDREW DU-PLESSIS}

Hearing:	28 February 2017
Appearances:	H Goodhew for the Crown P Knowsley for the Defendant
Judgment:	28 February 2017

_{NOTES OF JUDGE W K HASTINGS ON SENTENCING}

[1] Andrew Du-Plessis, you appear for sentence on one representative charge of theft by a person in a special relationship under s 221(b) Crimes Act 1961. The maximum penalty for that offence is seven years’ imprisonment.

[2] I will tell you now that there will be no surprises. At the sentence indication hearing I indicated your sentence. You have pleaded guilty to that charge and we will proceed on that basis.

[3] On 1 April 2010 you and the victim entered into a business relationship. You and he set up a company called “Enviroad”. You were both directors and 50 percent shareholders. Between 1 April 2010 and 26 August 2010 the victim deposited

$140,000 into the joint business account to cover costs you described as business expenses, including what you described as legal costs, accountancy costs, and

_{warehouse costs.}

R v ANDREW DU-PLESSIS [2017] NZDC 3994 [28 February 2017]

[4] Between 31 January 2011 and 22 February 2011 the victim deposited another

$60,000 into your personal account for what you described as legal and accountancy costs, tax bills, supplier bills, and other expenses. The victim says the money he paid was earmarked for the specific purposes of leasing and improving business premises and the purchase of stock, trucks, and other equipment. You were unable to provide any evidence to the victim or to the police, that this money was used for business expenditure. The Enviroad business account only shows personal expenditure.

[5] A letter from your accountant, dated 3 November 2016, describes your business practices. He writes:

His prior accounting practices and record-keeping was almost non-existent and he did not fully comprehend the importance of proper accounting and banking practices. He did not distinguish the proper actions when using personal and/or company monies that would normally be accepted as good business practice.

[6] Your sentence must denounce your conduct, it must deter you and others from the same and similar offending, and it must hold you accountable for the loss you have caused the victim. It must also be the least restrictive sentence that is appropriate in the circumstances.

[7] There is no tariff for this type of offending. The leading authority is

R v Varjan 1where the Court of Appeal said:

Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication, the type, circumstances, and number of victims, the motivation for the offending, the amounts involved, the losses, the period over which the offending occurred the seriousness of breaches of trust involved and the impact on victims.

[8] A starting point of three and a half years’ imprisonment was upheld for dishonesty offending in Blackmore v R2 which involved 17 victims and an initial loss of $62,000 which was reduced to $16,000. A starting point of three and a half years

_{was upheld in R v Hii}3 _{in which $127,000 was taken and in Mamfredos v R}4 _{in which}

1 _{R v Varjan CA97/03, 26 June 2003; R v Varjan (No 2) CA97/03, 1 July 2003}

2 _{Blackmore v R [2014] NZCA 109}

3 R v Hii CA 99-05, 10 April 2006

$660,000 was taken. A starting point of three and a half years was upheld in Mackley v Police5 which involved $173,000. A starting point of four years was upheld in R v Davis 6which involved $277,000 and in Thomas v Police which involved $312,000. On the other hand a starting point of three years was upheld in Niwha v Police which involved $346,000.

[9] I identify the following aggravating features of your offending.

(a) It involved premeditation. You set up a company and a business account. You persuaded, having established the company and the business account, the victim, to part with $200,000. You said it was for business expenditure when it was for personal expenditure. When the first $140,000 was gone you did it again, misusing the next

$60,000.

(b) Your offending went on for 10 months. (c) It involved $200,000.

(d) Your motivation was personal gain. You essentially treated the money as your salary rather than put it to the particular purposes the police say were agreed with the victim.

[10] Your offending has caused more than financial loss to the victim. He writes, and I will quote three excerpts from the victim impact statement:

During my dealings with Andrew Du-Plessis I was misled and lied to in order to deposit a total of NZ$200,000 into our business account and into his personal account. I have worked hard and sacrificed a lot in order to save this money, the bulk of which was saved while working as [occupation deleted] for four years.

_{[11] In the next excerpt he writes:}

4 _{Manfredos v R [2010] NZCA 524}

5 _{Mackley v Police [2014] NZHC 1561}

6 R v Davis [2009] NZCA 26

His lies cost me $200,000 cash and my job. I was unable to find work in New Zealand during 2011 and had to turn to family to loan money from in order to pay rent and live. I am still paying off these debts, and the stress of the situation has had a massive toll on my life, ending a relationship I was in at the time and leading to other personal issues.

[12] The third excerpt is as follows:

I am now [age deleted] and I am financially crippled because of my dealings with him. He has robbed me of my chance to return to my own country and cost me everything he takes for granted in his own life; i.e. owning a house and car, marriage, and having a family. I live with daily stress of this great loss and have its financial implications hanging over me. I hope that I may one day get my money back. The thought of losing it for good with no chance of reparation makes matters even more stressful.

[13] These excerpts from the victim impact statement emphasise the sixth aggravating feature of your offending, which is the significant breach of trust.

[14] Taking all of these matters into account I consider a starting point of three

years and four months’ imprisonment to be appropriate.

[15] I turn now to personal mitigating factors:

(a) Mr Knowsley has confirmed this morning that the following mitigating factors have in fact been achieved. You have repaid

$11,000. Your family has now contributed a further $104,000 which leaves you owing $85,000. That entitles you to a discount of six months.

(b) You are 39 years old and have no previous convictions. Your previous good character entitles you to a further discount of four months.

(c) You are entitled to a discount for your guilty plea of 20 percent. That is equivalent to six months which brings me to an end point of two years’ imprisonment. That is the point at which I am able to consider home detention.

[16] Her Honour Potter J for the Court of Appeal in R v Iosefa stated:

The sentence of home detention introduced by the 2007 amendment provides a real alternative to imprisonment. It carries with it in considerable measure the principles of deterrence and denunciation. It is clear parliamentary policy that for short term sentences and those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.

[17] She went on to say, “A sentence of home detention will, in conjunction with one of community work, adequately respond to the sentencing goals of accountability, denunciation and deterrence.” Those were the three purposes of your sentence which I identified at the beginning of these comments.

[18] Since giving you the sentence indication I have received a pre-sentence report. In that pre-sentence report Probation recommends against home detention because of the impact such a sentence would have on your family. I am not inclined to depart from my sentence indication, notwithstanding that recommendation, simply because I do not think a sentence of community detention adequately reflects your culpability.

[19] Your sentence, therefore, will be 11 months’ home detention with the addition of 200 hours’ community work. That means you will be able to get out of the house during that period of home detention.

[20] In my sentence indication I indicated that I would make a reparation order subject, of course, to the content of a reparation report. Having heard from Mr Knowsley this morning and having read the content of that reparation report, I am of the view that reparation of the remaining $85,000 is just simply not going to be a realistic order to make. So in those circumstances, I will make no reparation order for the remaining $85,000, but will make a reparation order in the amount of

$104,000 to be paid to the victim.

[21] The home detention sentence will be served at[address deleted], commencing today.

W K Hastings

District Court Judge