Tither v Police [2014] NZHC 904 (5 May 2014)

Last Updated: 14 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000390 [2014] NZHC 904

BETWEEN	NORAH LAURENCE TITHER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 May 2014
Appearances:	R Chambers for Appellant M Hammer for Respondent
Judgment:	5 May 2014

_{ORAL JUDGMENT OF VENNING J}

Solicitors: S R Anderson, Auckland

Meredith Connell, Auckland

Copy to: R Chambers, Auckland

TITHER v NZ POLICE [2014] NZHC 904 [5 May 2014]

[1] Mrs Tither pleaded guilty to three charges of theft. Judge Bouchier sentenced

her to three years’ imprisonment and ordered her to make reparation of $220,000.¹

Mrs Tither, who is 71 years old, appeals against the sentence.

[2] The summary of facts discloses that Mrs Tither was employed by Horton Media Limited in September 1998 in the role of office manager. In April 2000 she was promoted to the role of general manager. Horton operates a commercial printing business and is also a majority shareholder of Waiuku Publishing Limited. Mrs Tither’s role included Horton’s day-to-day commercial affairs. She was responsible for Horton’s payroll system, which included staff payments and the maintenance of accurate payroll records. She was authorised to enter into transactions on behalf of Horton through its internet banking account and was a signatory to the account.

[3] She was also responsible for paying Waiuku’s creditors and was authorised to enter into transactions on behalf of Waiuku through its bank account. She paid Waiuku’ creditors using the bank’s DirectLink Online Batch banking system.

[4] Between January 2000 and March 2012, a period in excess of 12 years, Mrs Tither made 298 payments to the value of $436,242 by creating false expenses and transferring funds from Waiuku’s account to her accounts.

[5] In addition Mrs Tither made a number of unauthorised lieu day payments to herself in relation to her employment by Horton. There was no practice for salaried employees such as Mrs Tither to accumulate time in lieu if they worked overtime and there was no practice of allowing it to be paid out. Despite that, between April

2004 and March 2012 Mrs Tither made 150 unauthorised lieu day payments to herself to the value of $210,264. She concealed the payments to her by not disclosing them in any of the budgetary information provided to the company’s chief executive officer and by coding them in the company’s payroll system and accounting systems to other departments, other than her own. By those means she was able to cover up her offending. As a further consequence she also received in excess of $50,000 of additional statutory entitlements and just under $3,000 in

_{employer Kiwisaver contributions.}

¹ R v Tither DC Manukau CRI-2013-092-006959, 22 November 2013.

[6] When spoken to Mrs Tither admitted the Waiuku thefts and said she did not know why she did it. She admitted receiving the Horton lieu day payments but denied ill intent, suggesting there had been an agreement entitling her to receive them. There were proceedings between the parties and the Employment Relations Authority which has led to a judgment against Mrs Tither in excess of $700,000.

[7] In sentencing Mrs Tither the District Court Judge noted that the complainant had obtained the judgment against her in the Employment Relations Authority for a sum in excess of $700,000 but that the only sum available for reparation was

$220,000 (which was immediately available).

[8] The Judge discussed a number of relevant authorities before identifying the particularly aggravating features of the offending in this case as:

(a) the length of the offending, namely 12 years; (b) the significant amount taken;

(c) the sophistication and premeditation of the offending; (d) the breach of trust; and

(e) the substantial loss and harm caused to the victims of the offending.

[9] The Judge then went on to say:

[34] Now considering a start point here. Having made those relevant findings, I am of the view that there should be a start point of four years' imprisonment.

She then applied a 25 per cent discount for the guilty plea, which was made at the earliest stage, which led to the end sentence of three years’ imprisonment together with the order for reparation of $220,000.

[10] In support of the appeal Mr Chambers accepts, as I would expect of counsel of his experience, that realistically he could not quibble that imprisonment was the

appropriate sentence. However he submitted that the term of the sentence of three years was manifestly excessive because the Judge gave insufficient weight and allowance for the reparation payment of $220,000.

[11] There was also a suggestion in his written submissions that the Judge failed to give sufficient credit for the remorse that Mrs Tither had expressed to and through counsel.

[12] In his submissions Mr Chambers said that the Judge had failed to give proper recognition for the reparation as was required and that the reparation of $220,000 demonstrated remorse, noting the comments of the Court of Appeal in the cases of R v Patterson and R v Thacker.² In Patterson in the passage Mr Chambers referred to the Court of Appeal had said:

[42] “Voluntary” reparation is quite different. Where an offender exhibits genuine remorse and has done his or her best to atone financially for the fraud, whether by selling assets or borrowing or promising to make recompense by instalments from future earnings, credit is appropriate as a mitigating factor. The reparation is material evidence of remorse, a factor recognised in s 9(2)(f) of the Sentencing Act.

[13] And similarly in Thacker the Court confirmed that reparation was an important factor in determining the nature and term of any sentence.

[14] I accept that the Judge was required to consider the issue of remorse and reparation in this case. Section 9(2)(f) of the Sentencing Act 2002 directs that the Court must take into account any remorse shown by the offender or anything as described in s 10. Then s 10 itself provides that the Court must take into account any offer of amends, whether financial or otherwise made by the offender to the victim.

[15] However, as the Court of Appeal noted in the case of Patterson referred to by

Mr Chambers a distinction is to be made between “voluntary” and “involuntary”

_reparation.

² R v Patterson [2008] NZCA 75 and R v Thacker CA392/90, 22 March 1991.

[16] On the facts of that particular case the remorse was involuntary. The Court went on to note that in those circumstances no further discount was appropriate on the grounds of remorse or reparation.

[17] In the present case I accept that although the appellant, Mrs Tither, is subject to a judgment in excess of $700,000 the payment of $220,000 of reparation is properly characterised as voluntary to the extent that at least without further steps the creditors would not have been able to obtain or achieve the sum that was made available by her. I therefore accept that the payment of $220,000 was a factor the Court was required to take into account when imposing the end sentence.

[18] The issue is, whether as submitted by Mr Chambers, the Judge failed to take that into account or whether, as submitted by Ms Hammer, the Judge actually did take that into account.

[19] It is necessary to consider the Judge’s sentencing notes in context and overall. As I read the District Court Judge’s sentencing notes, taken overall, I consider that she did indeed take the reparation payment of $220,000 into account. As Mr Chambers conceded the Judge was clearly aware of and referred to the reparation of

$220,000. When referring to Mr Chambers’ submissions before her, the Judge noted

that:

[26] Remorse should be treated, ... as a separate mitigating factor and extreme remorse, it is submitted, has been expressed to her counsel. Plus of course there is the $220,000 which is a significant sum in the light of her current financial situation and her age. ...

[20] And then later, when returning to the issue of remorse and reparation the

Judge noted:

[32] ... What I do acknowledge, however, is the significant payment of

$220,000. Of course the two victims are still going to have to attempt to enforce the judgment that they got in the Employment Court for the balance of the monies outstanding.

before going onto the passage counsel referred to at [34]. In that paragraph the

Judge said:

[34] Now considering a start point here. Having made those relevant findings, I am of the view that there should be a start point of four years' imprisonment. The reason that I say that is, I take into account when assessing that, the factors of the aggravating and mitigating features of the offending, the mitigating features of the offender. I also take into account her age. ...

[21] As I read the Judge’s sentencing notes, although the Judge referred to the start point of four years, (which in terms of the Court of Appeal authority, is generally identified as the starting point for the offending without taking account of the personal aggravating or mitigating features of the offender), in taking that start point of four years’ imprisonment she has taken into account the personal mitigating factors of the offender, including the reparation which was, apart from the guilty plea, a major significant mitigating feature. In other words I consider that the start point of four years takes the $220,000 reparation figure into account.

[22] I test the matter this way. Having regard to the authorities discussed by the Judge and referred to by counsel³ for offending of this nature involving these sums over this period of time, a start point of five years was certainly available to and within range for the offending itself. The Judge may have fallen into error by not following the approach endorsed by the Court of Appeal and fixing the start point for the offending, including aggravating features of the offending, before going on to consider the personal aggravating and mitigating features of Mrs Tither. However those personal mitigating features of Mrs Tither, (there being no aggravating

personal features) namely her age, state of health and the reparation of $220,000 would have justified a reduction from that start point of five years of one year leading to the figure of four years before giving credit for the guilty plea, which is effectively the situation the Judge arrived at.

[23] As this Court and the Court of Appeal have stated on a number of occasions the test on an appeal against sentence, even where the Judge may not have followed

_{the process the Court of Appeal has endorsed, is whether the end sentence itself can}

³ R v Varjan CA97/03, 26 June 20013; R v Rose [1990] 2 NZLR 552 (CA); R v McKelvy [2007] NZCA 340; Singh v SFO HC Auckland CRI-2008-404-361, 4 March 2009; SFO v Ellis & Dam HC Auckland CRI-2005-404-15822 & 27, 18 July 2006; R v Davis [2009] NZCA 26; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

be said to be manifestly excessive. The focus of this Court on appeal should be on that end sentence, not the process followed to arrive at the end sentence.

[24] On my analysis of the information before the Court I am satisfied that the Judge was entitled, as I say, to take a start point of five years for the offending, then to allow a credit for Mrs Tither’s personal circumstances, including the reparation of

$220,000, which would reduce that by one year. Applying the discount for the guilty plea, again of one year, the end sentence of three years is that arrived at by the Judge.

[25] In terms of the issue of remorse, while as I have noted Mr Chambers referred to it and certainly addressed submissions to the Judge about it, I am satisfied that this is a case where there was no need nor indeed any basis for any further reduction for remorse. The Judge rejected the submission for an additional credit on the basis of remorse, relying on the observations of the probation officer who interviewed Mrs Tither. The probation officer recorded that Mrs Tither did not present as showing empathy for the victims of her offending, rather stated she was frustrated by their refusal to take money in reparation and settlement, preferring instead to pursue the matter through the civil Court. She claimed the victims had treated her very badly and claimed that throughout her fraudulent actions relating to the ‘in lieu’ payments she had no ill intent. The probation officer assessed Mrs Tither as having a low level of remorse and victim empathy. In those circumstances it was quite open to the Judge to reject any further credit for remorse. Likewise I reject any further credit.

[26] The end result is that the sentence of three years was clearly available to the

_{Judge. It was not manifestly excessive and the appeal must be dismissed.}

Venning J