Crosland v Police [2012] NZHC 1929 (2 August 2012)

Last Updated: 15 August 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-61 [2012] NZHC 1929

NARISSA BERYL CROSLAND

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 31 July 2012

Counsel: M Robinson for Appellant

A Ewing for Respondent

Judgment: 2 August 2012

_{JUDGMENT OF MALLON J}

Contents

Introduction ....................................................................................................................................... [1] The offending ..................................................................................................................................... [3] The reparation order ........................................................................................................................ [7] My assessment ................................................................................................................................... [8]

_{Result ................................................................................................................................................ [15]}

CROSLAND v NEW ZEALAND POLICE HC WN CRI 2012-485-61 [2 August 2012]

Introduction

[1] Ms Crosland appeals against an order that she pay reparation of $48,772.18 on the grounds that it is manifestly excessive in light of her financial circumstances.

[2] The reparation was ordered by the District Court when Ms Crosland was sentenced on two charges of using a document for pecuniary advantage and one charge of using a bank card for pecuniary advantage.[1] Ms Crosland entered guilty pleas to those charges and was sentenced to four months’ community detention, 200 hours community work and ordered to pay reparation. The appeal is in respect of the reparation order only.

The offending

[3] Ms Crosland was employed as an accounts manager for her employer. As part of her role, she was responsible for sending invoices to clients and ordering products for clients’ projects. The business had a Social Club, which had a bank account. Ms Crosland had signatory rights to that bank account and was also entrusted with the bank card to the account.

[4] Between 13 August 2009 and 8 August 2011 Ms Crosland made unauthorised withdrawals from the Social Club bank account on 244 separate occasions. The total value of these withdrawals was $46,372.18. She also wrote out two cheques, for a total amount of $2,400, using the Social Club cheque book.

[5] During the same period, Ms Crosland also made a number of deposits into the Social Club account. She billed a client and put the incorrect number on the invoice, or she would have the cheques sent directly to her and she would take those cheques to the bank and deposit them in the account. She made 19 deposits in total

_{which amounted to $50,715.95.}

[6] When spoken to the police about her offending, Ms Crosland said that she was living outside her means. She said that she had incurred debts and needed money to pay these back.

The reparation order

[7] The sentencing notes of the District Court Judge in relation to reparation was in these terms:

Also as a result of what you did in fact the ANZ National Bank, because it repaid – if I could use that word – the monies is now owed reparation of

$46,276.77 and there is now apparently $2495.17 owed to your former

employer.

I am not sure, in fact, that that is the total amount but that seems to be the amount that perhaps people apart from those with whom you worked are satisfied with.

I understand that presently you are on a benefit. I have heard from your lawyer about your difficulties within the family. You have limited means. You have a child. You have had a relationship breakup. These things tend to have ever increasing circles.

...

Reparation of $46,276.77 to the ANZ National Bank, $2495.17 to your employer ... at $50 per week. That is in respect of each of the charges.

My assessment

[8] The payment of reparation is governed by s 12 and ss 32 to 38 of the Sentencing Act 2002. In short, the Court must impose the order unless it would result in undue hardship to the offender, or there are other special circumstances that would make it inappropriate. If an offender has insufficient means to pay the total loss the Court may order reparation for a lesser amount and that it be paid in instalments. It is well established that the amount to be repaid should be realistic

given the financial resources of the offender[2] and that it should not involve bonding

_{the offender for very long periods.}[3]

[9] Ms Crosland is currently on the Domestic Purposes Benefit and has a young child at home. She advised the Community Probation Service through counsel at the time of her sentencing that she could pay $50 per week in reparation. On this appeal counsel for Ms Crosland says that this is an “arguably ambitious rate” in her circumstances. Counsel further submits that her financial situation has worsened since the time of her sentencing. She has had to move out of her address because of relationship issues, and now pays $20 more in rent per week. Counsel provided me with updated information about Ms Crosland’s financial position. She receives

$414.86 a week. From that she pays out $330 a week. She also has to pay for petrol, food and power. She says it does not leave much and the $50 a week “is hurting a lot especially with baby to take care of”. Counsel for Ms Crosland says that if the instalment rate was reduced to $30 per week, it would take her 31 years to satisfy the order. He says that this is unduly onerous.

[10] Subject to one issue, counsel for the police accepts that the total sum of reparation ordered is manifestly excessive. At a rate of $50 a week it would take approximately 19 years to satisfy the order. (I am told that upon hearing the order, counsel for Ms Crosland attempted to point this out to the District Court Judge but the Judge indicated that Ms Crosland could appeal his order.) The one issue relates to whether Ms Crosland has equity in her house. Counsel for the police seek an order that a further report be obtained about this.

[11] The information about Ms Crosland’s house is set out in a reparation report that was before the District Court Judge. Ms Crosland and her former partner own a house in Upper Hutt. The report sets out that the property’s rateable value as at August 2010 is $390,000 and that the mortgage has a current balance of just over

$329,235. Counsel for the police submit that this suggests there is equity in the house of $60,000, of which Ms Crosland would be entitled to a half share.

[12] Ms Crosland’s counsel submits that the 2010 rateable value is likely to overstate the market value. His instructions are that Ms Crosland and her former partner would like to sell the house but that an appraiser has advised them there is zero equity in the house. His instructions are also that the house needs work before

it is fit for sale. He says that Ms Crosland has not obtained a formal valuation because she does not have the $700 to pay for it.

[13] I agree that it is appropriate in these circumstances to obtain a further reparation report in relation to Ms Crosland’s likely equity (if any) in the house. It is pointless to ask Ms Crosland to spend $700 on a valuation when she is struggling to meet her other outgoings and has reparation to pay for her offending. The report writer may be able to obtain information from the appraiser Ms Crosland has referred to, so as to confirm or otherwise the information Ms Crosland has conveyed through counsel (as set out in [12] above).

[14] Subject to this issue, I intend to make a reparation order for a total sum that can be paid off by instalments of $30 a week over five years. On the information before me, instalments of $30 a week is more realistic than instalments of $50 a week which Ms Crosland initially thought she could make. I refer to my judgment

in Leighton v New Zealand Police[4] delivered today setting out my reasons for a five

year period. The only remaining issue is whether I include in the total order an allowance for a lump sum payable from Ms Crosland’s house.

Result

[15] I direct that a reparation report be obtained as discussed in [13] above. The determination of the appeal against sentence is adjourned pending receipt of the report.

Mallon J

Solicitors:

Public Defender’s Office, Wellington for the Appellant

Crown Solicitor’s Office, Wellington for the Respondent

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[1] Section 228 of the Crimes Act 1961.
[2] _{For example, R v Bailey CA306/03, 10 May 2004}

[3] R v Bailey CA306/03, 10 May 2004 at [25]; Ruka v Department of Social Welfare [1997] 1

NZLR 154 (CA) at 201; R v Vallily CA251/04, 10 November 2004 at [73]; Rihari v Department of Social Welfare (1991) 7 CRNZ 586 (HC) at 590.

[4] Leighton v New Zealand Police [2012] NZHC 1925.