Wright v Police [2015] NZHC 3016 (1 December 2015)

Last Updated: 11 December 2015

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000037 [2015] NZHC 3016

BETWEEN	JACOB ANDREW WRIGHT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 November 2015
Appearances:	A C Leonard for the Appellant R P Bates for the Respondent
Judgment:	1 December 2015

_{JUDGMENT OF NATION J}

Introduction

[1] Between 18 January 2014 and 12 November 2014, Mr Wright dishonestly took $5,926.43 from his employer. On the two charges he faced in relation to this dishonesty, he was sentenced to 10 months’ imprisonment with supervision on special conditions to apply for six months at the end of that sentence. He appeals against that sentence as manifestly excessive.

[2] When he was originally sentenced, he sought a sentence of home detention. That submission was not made by his counsel on this appeal. Ms Leonard submitted that the end sentence should have been six months’ imprisonment.

[3] Sections 250(2) and (3) of the Criminal Procedure Act 2011 apply here and provide:

250 First appeal court to determine appeal

_...

WRIGHT v POLICE [2015] NZHC 3016 [1 December 2015]

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[4] As was said by Toogood J:¹

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[5] Judge Crosbie adopted a starting point for the offending of 15 to 18 months before a credit for remorse and guilty pleas.

[6] Ms Leonard submitted that the starting point was too high and out of step with sentences for similar offending.² She referred to three cases in particular. I considered those cases.

[7] Mr Wright faced two charges:

• one charge of theft by a person in a special relationship (representative), ss 220 and 223(a) Crimes Act 1961 – maximum penalty seven years’ imprisonment;

• one charge of obtaining by deception, s 240(1)(a) Crimes Act 1961, value $880 – maximum penalty one year imprisonment.

[8] Mr Wright worked for a Dunedin company involved with property management for some eight years. He initially worked as a property manager before being promoted to an operations manager role in 2013. He oversaw the management

_{of over 600 properties and was responsible for eight staff. Part of his role was to}

1. Larkin v Ministry of Social Development [2015] NZHC 680 citing Ripia v R [2011] NZCA 101 at [15], adopted by Gendall J in Affleck v R [2015] NZHC 1741.
2. Thomson v Police HC Christchurch CRI-2006-409-134, 17 August 2006; Nathan v Police HC Rotorua CRI-2005-463-56, 17 August 2005; Dry v Police HC Christchurch AP271/90, 16

October 1990.

manage the financial incomings and outgoings, including the lodgement and refunding of bonds held for those properties.

[9] Between 28 January 2014 and 12 November 2014, on four different occasions Mr Wright transferred money directly from his employer’s company account into his own account. The amounts varied from $400 on 28 January 2014 to

$1751.43 on 12 November 2014 and totalled $3,821.43.

[10] On 11 February 2014, Mr Wright wrote out a cheque for $1,225 as if it was a payment for the benefit of a client of the company. It was payment for his own benefit.

[11] The charge of obtaining by deception arose out of his first making a payment to the Ministry of Housing Building Innovation Employment for $1,840 from his employer’s cheque account. He completed two bond lodgement forms showing this cheque as relating firstly to a bond lodgement for $960 for one property. This was legitimate. The other form was for $880 and was fictitious. On this second bond lodgement form he listed himself as the landlord using his own address as the rented property and making up tenant details. On 25 July 2014, Mr Wright completed a bond refund form using the same details as the bond lodgement form, allowing him to withdraw $880 from MBIE into his own account.

[12] The offending was premeditated. It was sophisticated in the sense that, not only did Mr Wright take money he was not entitled to, he attempted to cover it up with false documentation so it would be hard for his employer to discover.

[13] Judge Crosbie considered the aggravating and mitigating features of the offending. He noted the amount involved was “not insignificant”. The offending was over several months. It involved a breach of trust. The offending had caused problems for the employer, other staff and customers. Although amounts taken had been repaid, the employer had estimated that the cost of the offending, the cost of investigating and then dealing with the consequences of the offending had been some

$19,000.

[14] Those observations were all appropriate. The breach of trust was significant. Ms Leonard suggested that the breach is inherent in the charge of theft through failing to account in a special relationship. While that is true, the particular circumstances of the relationship and the degree of trust were significant factors in assessing the seriousness of the offending. Mr Wright had been promoted within this company to a position of considerable responsibility where any dishonesty on his part could have a significant impact on the reputation of his employer and the business. Any dishonesty could make the work of the staff who he managed more difficult. It could cause anxiety to the clients whose properties they looked after.

[15] In R v Varjan, the Court of Appeal provided the following general guidance

when assessing a defendant’s culpability in fraud cases:³

[22] 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 the 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.

[23] It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.

[16] The Court of Appeal’s discussion of the particular circumstances in that case

and in other cases which the Court considered to be relevant is instructive.

[17] Mr Varjan was a mobile mortgage manager for the bank. On some 15 occasions, he assisted a mortgage broker to obtain loans from the bank for the mortgage broker’s clients with false documentation. In at least some instances, the bank provided loans on the basis of false higher prices for the property. The loss to the financial institutions from the activities in which Mr Varjan was involved was just over $546,000. Innocent borrowers were vulnerable and badly affected by what had happened. The mortgage broker benefitted to the extent of approximately $2

_{million. Mr Varjan’s financial benefit amounted to approximately $5,000.}

³ R v Varjan CA97/03, 26 June 2003.

[18] The Court of Appeal took into account that Mr Varjan was a longstanding bank employee with a good record in his work and his community activities. They acknowledged that he had engaged in the processing of false loan applications, knowing the documents were false but for very little personal gain. They accepted as credible his explanation for doing this was stress and depression, contributed to by his employer’s performance targets. He was entitled to “substantial credit” for his plea of guilty, his cooperation with the Serious Fraud Office and his personal circumstances. The Court of Appeal acknowledged that he had lost his standing as an honest and respected bank officer. A significant factor for the Court of Appeal was the position of trust misused to perpetrate the frauds.

[19] In those circumstances, the Court of Appeal considered a starting point in the vicinity of three years would have been appropriate. They allowed the appeal, reducing the original sentence of imprisonment of two years and eight months, to two years and granted leave to apply for home detention.

[20] In R v Varjan, the Court of Appeal referred to its earlier judgment in Nandan.⁴ That case involved an appeal against a sentence of 12 months’ imprisonment after a late guilty plea to seven counts of fraudulent use of a document and three counts of conspiracy to defraud. The facts involved schemes to defraud lending institutions by inflating purchase prices of properties. The personal gain to the appellant was some $17,000 net. The sentence was reduced to eight months

because of the disparity with a sentence imposed on a co-offender, a solicitor. The Court of Appeal said that, but for the disparity, the end sentence of 12 months’ imprisonment, based on a starting point of 18 months before credit for guilty pleas, could be regarded as relatively lenient. Relevant to Mr Wright’s case, the Court of Appeal accepted a community-based sentence was clearly inadequate and inappropriate, having regard to the totality of his offending and the significant factor of the appellant’s continuing fraudulent activity despite having received a community-based sentence for similar offending.

[21] In a judgment just released by the Court of Appeal in Costello v R, the Court of Appeal had to consider what the starting point should have been on an obtaining

⁴ R v Nandan CA136/98, 2 September 1998.

by deception charge.⁵ Nicholas Costello had provided false information about his income to a finance company to enable him to receive $9,845 to purchase a second- hand car from a motor vehicle dealer. The Court of Appeal noted this was a one-off event. They described the loss as being comparatively low and the victim as not being particularly vulnerable. They said there was no obvious breach of trust involved in the offending. The maximum penalty on that deception charge was seven years. In that sense, the charge was comparable to the theft charges which Mr Wright faced. The Court of Appeal considered that the appropriate starting point for Mr Costello’s offending was 18 months’ imprisonment.

[22] The Judge in this case did not adopt a starting point for the offending taking into account all aggravating and mitigating features of the offending. It would have been appropriate for him to do so applying the Taueki approach.⁶ Instead, he proceeded to consider whether there should be any uplift or discount because of the personal circumstances of the Mr Wright.

[23] These personal circumstances were, however, significant to the Judge because Mr Wright had previously been convicted on 11 charges of theft as a servant and 19 charges of using a document for pecuniary advantage. Those offences had been committed in January 2001 and April 2002. On all charges, Mr Wright was sentenced to nine months’ imprisonment but was granted leave to apply for home detention. The Judge in the present case considered that, given the number of charges and the sentence imposed, this earlier offending must have been serious. He said it was unusual for a person to be appearing before the Court on a second occasion for offending of this sort. With his experience, he was well qualified to make that observation, although I note that, in a number of instances where the High Court or Court of Appeal have been asked to consider appeals against sentences for this sort of offending, the offender has previously offended. The previous offending was significant in that it explains, justifiably, why the Judge regarded the need for

_{deterrence and accountability to be major factors in fixing the appropriate sentence.}

⁵ _{Costello v R [2015] NZCA 512.}

⁶ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[24] For someone who is in a position of responsibility within a business, there would normally be considerable shame and embarrassment at becoming the subject of a criminal prosecution and having to acknowledge criminal offending in Court. The loss of liberty and everything else associated with a sentence of imprisonment would normally be traumatic for such an offender. Consistent with the Judge’s observations in this case, those consequences would often be a sufficient and significant deterrent against further offending. Mr Wright’s reoffending would have indicated to the Judge that those consequences had not been sufficient to prevent a recurrence of similar criminal conduct. With that background, it was appropriate for the Judge to focus on deterrence and accountability in arriving at the end sentence. The Judge adopted a starting point of 15 to 18 months.

[25] Mr Bates submitted their starting point, with due regard to further discounts and his ultimate sentence, seemed to have been reached by adopting a starting point of 12 months for the offending with an uplift of three months on account of the earlier offending. I accept the starting point adopted by the Judge can be rationalised in this way. On that basis, it was within an appropriate range available for the offending.

[26] The Judge then considered whether Mr Wright should be given credit for remorse. He accepted that there was remorse and that it had been demonstrated prior to sentencing. The offending had been discovered by his employer by January 2015 at the latest. Mr Wright sent an email/letter of apology on 7 January 2015. The charges were filed on 27 May 2015. At that time, Mr Wright had repaid $3,821.43 of the amount taken. The victim impact report stated that the employer had been repaid some initial money back shortly after Mr Wright was dismissed but the remaining amount was not repaid until the day after he pleaded guilty. This would have been on 6 August 2015. Mr Wright told Corrections that he had sold his house to pay reparation. The payment of reparation in this way did show that in a tangible way Mr Wright was taking responsibility for what he had done.

[27] On the other hand, it was clear from the victim impact report that Mr Wright had not been honest with his employer when first confronted with his offending. When asked about the initial transaction which his employer considered dubious, Mr

Wright said it was a one-off and there was no more. His employer then found three more similar transactions which Mr Wright then acknowledged. Again, he said there was no more offending. Over several months, the employer found two additional instances of offending which were more serious and more complex than those Mr Wright had initially admitted to when confronted with the transactions they were concerned about.

[28] Mr Wright did send the email/letter of 7 January 2015. The letter was expressed as an apology. Mixed in with the letter were statements as to the consequences he would face with regard to the loss of his house and the relationship with his children and a plea for his employer not to take any further legal steps over what had happened. He did say to his employer that he had let them, his family and himself down due to “complete stupidity and greed”.

[29] The Judge said the discount for remorse could be 10 to 15 per cent. He was not in error in doing so.

[30] The Judge said the discount for guilty pleas would be in the order of 15 to 20 per cent although he combined this with the discount for remorse to allow a discount of one third for both.

[31] Ms Leonard submitted that the discount for guilty pleas should have been the full 25 per cent.

[32] The Court record shows that Mr Wright first appeared on 5 June 2015. He was remanded to a Registrar’s list on 26 June 2015. He appeared on 26 June 2015 and entered pleas of not guilty; he pleaded guilty after a case management meeting with the prosecution. Ms Leonard submitted that the delay in pleading guilty was reasonable because Mr Wright needed time for counsel to negotiate with the prosecution to have the charge amended from five theft charges to one representative charge. While the police were willing to do that to have matters resolved through a guilty plea, I do not consider the delay in pleading guilty was necessary in that sense. Had the matter been dealt with on the basis of five separate charges, the offending for which Mr Wright had to be sentenced would have remained the same. Through

acceptance of the summary of facts, he was accepting there had been theft on five separate occasions. Given the basis on which he seeks credit for remorse, it was also not necessary for matters to be delayed for further disclosure to be obtained. Mr Wright knew what he had done and had admitted most of it to his employer. He had no defence to the charges that had been brought. The Judge, applying Hessell v R

principles, did not have to allow a discount for guilty pleas of a full 25 per cent.⁷

[33] The ultimate sentence of 10 months for the thefts and three months’ imprisonment concurrent for the obtaining by deception was, on the basis of the Judge’s approach, including an uplift for previous offending, consistent with a starting point of 15 months’ imprisonment. There was no error in a total discount against that of five months for remorse and guilty pleas. The end sentence of ten months was within the range of what was available for this offending and this offender in all circumstances which the Judge had to deal with. The extended period of supervision was also appropriate given Mr Wright’s previous offending and the advice in the pre-sentence report. Three blood/breath alcohol convictions also suggest there are some underlying problems which put him at risk of further offending.

[34] Mr Wright’s appeal is dismissed.

Solicitors:

A C Leonard, Barrister, Dunedin

R P Bates, Solicitor, Dunedin.

⁷ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.