Wilton v Police [2015] NZHC 427 (13 March 2015)

Last Updated: 28 April 2015

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CRI-2014-435-12 [2015] NZHC 427

BETWEEN	FIONA MARGARET WILTON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 March 2014 (Heard at Wellington)
Appearances:	V Pearson for appellant S C Carter for respondent
Judgment:	13 March 2015

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Fiona Wilton, pleaded guilty to two representative charges of theft by a person in a special relationship and one charge of dishonestly using a document to obtain a pecuniary advantage. Ms Wilton was sentenced by Judge Mill on 23 October 2014 to two years and three months’ imprisonment.¹ Ms Wilton now appeals that sentence on the grounds that it is manifestly excessive.

Facts

[2] Ms Wilton is the daughter of the elderly complainant, Mr Wilton. Mr Wilton was diagnosed with Parkinson’s disease in 2009. In 2011, Ms Wilton began to care for him on a day-to-day basis as his health had deteriorated. She had access to his

_{bank accounts and eftpos card. In May 2012, by which time Ms Wilton was living at}

¹ _{Police v Wilton HC Masterton CRI-2014-035-000589, 23 October 2014.}

WILTON v POLICE [2015] NZHC 427 [13 March 2015]

her father’s home, she and her brother were given power of attorney over their

father’s affairs. Shortly after that Mr Wilton moved into a residential home. [3] Ms Wilton had the responsibility of paying her father’s bills.

[4] Towards the end of 2013, Ms Wilton’s brother noticed that there was a substantial amount of money missing from his father’s accounts, and that there were outstanding bills from his residential home.

[5] It was then established that between October 2012² and December 2013, Ms Wilton had on 63 occasions transferred a total of $62,528 from her father’s accounts to her own. She had also used his eftpos card on 112 occasions to withdraw

$21,000 cash from ATM machines in or near hotels that operated TAB betting and gambling machines. In July 2013, she requested a bonus bond redemption drawdown of $7,490 be paid from her father’s account into her own. Ms Wilton took a total of $91,148 from her father. She spent most of the money gambling. She also purchased a car, for approximately $5,000.

[6] Ms Wilton’s brother noted in his victim impact statement that he had had to spend $3,000 of his own money to help sort his father’s finances out. He had also had to sell his father’s house, which Ms Wilton was still living in, in February 2014 to pay outstanding residential care bills, and to provide for those bills in the future. Ms Wilton’s brother thinks there is enough money for that purpose, but not to meet “extras”, like operations.

[7] When spoken to by the Police, Ms Wilton admitted her offending and was cooperative.

[8] In 2011 Ms Wilton had been sentenced to six months’ community detention and 100 hours’ community work for benefit fraud, involving a false claim to a solo parent’s benefit, which began in 2006. She, together with her partner at the time,

_{fraudulently obtained some $110,000 over that five year period.}

² But see comments at [45].

The Judge’s decision

[9] The Judge adopted a three and half year starting point on the basis of relevant principles from the Sentencing Act 2002 and an assessment of the criminality of Ms Wilton’s offending by reference to a number of aggravating factors. Those aggravating factors were:

(a) the significant amount of money taken;

(b) the number of times, and implicitly the period of time during which, Ms Wilton stole from her father, evidencing – in the Judge’s assessment – premeditation;

(c) the serious breach of trust involved, given the fact that Ms Wilton stole from her father, a vulnerable elderly man who had given her his power of attorney and who trusted her implicitly;

(d) the effect of the offending on her father, involving as it did the theft of his life savings; and

(e) that Ms Wilton had previous convictions for benefit fraud.

[10] Having fixed that starting point, the Judge then took account of matters personal to Ms Wilton. The Judge had before him a pre-sentence report and a report from a private addiction service which recorded a provisional diagnosis of pathological gambling. Moreover, Ms Wilton had a 13 year old daughter from whom she would be separated if imprisoned. The Judge reduced the starting point sentence by three months to take into account her personal circumstances, including her gambling problem, the steps she had taken to address that and her personal family circumstances.

[11] The Judge then allowed a further discount of 25 per cent on account of Ms Wilton’s early guilty plea. At that point, the end sentence would have been one of two years and five months.

[12] Finally, the Judge took account of Ms Wilton’s clear remorse, which he said had to be balanced against her inability to make any meaningful reparation payments. A further two months’ discount was allowed on that account, producing the end sentence of two years and three months imposed. Noting that home detention was not available, the Judge said he would not have imposed it even if it had been.

[13] The Judge also ordered reparation of $5,000: $2,500 to be paid from the sale of the car Ms Wilton had bought with her father’s money, with the balance to be paid at $10 a week starting when Ms Wilton was released from prison.

Appeal – submissions

[14] For Ms Wilton, Ms Pearson submitted that a starting point in the vicinity of three years would have been appropriate so that, with a greater discount for personal circumstances to recognise Ms Wilton’s gambling addiction and the fact that she was responsible for the care of her 13 year old daughter, an end sentence of 24 months or less would be arrived at. In that circumstance, home detention would be the appropriate outcome.

[15] In their sentencing report the Probation Service had confirmed that

Ms Wilton’s home address was an appropriate address for that purpose.

[16] Ms Pearson submitted that the Judge had erred in a number of ways:

(a) He had been wrong in principle to adopt a starting point of half the maximum penalty without reference to authority and, when doing so, considering aggravating features of the offending. In Ms Pearson’s submission, they should have been considered after the adoption of a starting point.

(b) The Judge had been wrong to consider that an aggravating feature of Ms Wilton’s offending was the “special relationship” between Ms Wilton and her father and the “serious” breach of trust involved in her offending. Those considerations were, Ms Pearson submitted, inherent to a charge of theft by a person in a special relationship.

(c) There was no evidential basis for the Judge’s conclusion that Ms Wilton’s offending was “clearly premeditated”. Rather, given that she had a pathological gambling addiction, the logical inference was her offending was opportunistic.

(d) Given her gambling addiction, it was arguable Ms Wilton had diminished intellectual capacity or understanding at the time of her offending, in terms of s 9(2)(e) of the Sentencing Act 2002. Moreover, insufficient recognition had been given to the causative impact of Ms Wilton’s pathological addiction to gambling on her offending.

(e) Although the Judge clearly regarded Ms Wilton’s previous convictions as aggravating, he had not, as he should have, identified the uplift he applied. Hence it was not apparent he had taken account of the circumstances which, Ms Pearson submitted, had contributed to that offending, namely domestic violence problems.

(f) The Judge had incorrectly balanced the personal mitigating factors he identified against Ms Wilton’s personal financial situation and her inability to contribute more towards reparation. The Judge was, in effect, penalising Ms Wilton on account of her limited financial means.

[17] Taken overall, Ms Pearson’s submission was that the Judge had gone wrong by failing to distinguish between the culpability of someone who stole for pleasure or gain with someone who, as was the case with Ms Wilton, was driven by a psychological compulsion. Ms Pearson referred me to a number of decisions of the Court of Appeal and the High Court which, she submitted, evidenced that there was a marked disparity between the sentence imposed by the Judge on Ms Wilton and

_{sentences imposed in relation to other, similar, offending.}³

³ Harford v Police [2014] NZHC 1886; Kerwin v Police [2014] NZHC 3106; Mackley v Police [2014] NZHC 1561; Bowles v Police [2014] NZHC 184; R v Garnett [2010] NZCA 173; R v Findlay [2007] NZCA 553; R v Varjan CA97/03, 26 June 2003; Cole v Police [2001] 2 NZLR

139; Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC).

[18] The Crown submitted that the starting point of three years and six months was appropriate. Whilst not spelt out, it was likely that it was broken down into three years for the current offending, with a six month uplift for previous convictions. A three year starting point was supportable on the authorities, including Kerwin v Police. An uplift of up to six months could be justified by reference to Ms Wilton’s previous offending. The various discounts the Judge gave (which totalled 35 per cent) could not be challenged and were, if anything, generous. It was not a mitigating feature that Ms Wilton had a gambling addiction. Ms Wilton’s inability to pay reparation had not resulted in a higher sentence than might otherwise have been the case.

Analysis

[19] Central to this appeal is the question of whether the sentence the Judge imposed was appropriate given Ms Wilton’s offending and her culpability. The answer to that question is not determined by whether or not the Judge adopted a correct sentencing methodology. Having said that, and given the way this appeal was argued, I will first consider each of Ms Pearson’s specific submissions and then her more general “disparity” proposition.

[20] A judge does not need to justify a starting point by explicit reference to authority. As Taueki makes clear, a consideration of aggravating features of the offending is required to fix a starting point.⁴

[21] Inherent to the charge of theft in a special relationship is, clearly, the existence of a special relationship. That is not to say, however, that the particular characteristics of the special relationship in question will not affect the criminality of the offending. Mr Wilton was not only Ms Wilton’s father, he had also trusted her with his power of attorney. The breach of trust involved in Ms Wilton’s offending was, as the Judge recognised, an aggravating feature of that offending.

[22] I acknowledge that Ms Wilton was diagnosed by an addictions practitioner as having become addicted to gambling in 2005, having starting gambling regularly in

_{1994. The addictions practitioner said that a combination of circumstances}

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

(unemployment, solo parenthood and associated financial stresses) “altered the nature of her gambling and she became addicted”. I accept, on the basis of that advice, that Ms Wilton clearly has a “gambling problem”. It is less clear, in terms of the careful approach taken to assessments of mental health when considering responsibility for criminal offending, what significance I should give to that report.⁵

I have no information as to the qualifications or methodology which underpin that

expression of opinion. Moreover, there is Court of Appeal authority that the fact that offending has been committed in order to feed a self-induced addiction, for example to alcohol, cannabis or gambling, is not a mitigating factor.⁶ I do not think, therefore, the Judge can be criticised for the approach he took to Ms Wilton’s gambling addiction. Ms Wilton had already offended, and been sentenced, for benefit fraud where the stolen money was used to gamble. Ms Wilton quite deliberately stole from her father on numerous occasions. I do not think the logical inference is, as Ms Pearson submitted, that her offending was opportunistic.

[23] Ms Pearson correctly pointed out that the Judge did not identify a specific uplift for Ms Wilton’s previous offending. An uplift for previous offending takes account not of the criminality of the offending being sentenced, but rather of that personal circumstance and its implications – particularly as regards the need to denounce and deter the individual offender, and protect the public from further offending. As Taueki makes clear, such an uplift should be separately identified, and it should be identified at the second stage of the sentencing exercise, once the starting point sentence has been determined. Ms Pearson’s criticism of the Judge including “aggravating features” in his starting point is therefore apt. The question remains, however, whether the starting point sentence of three and a half years’ imprisonment is within range.

[24] Finally, there is the question of the Judge’s apparent reduction of credit for Ms Wilton’s remorse by reason of her inability to pay reparation. It is fair to say that, for quite valid reasons, taking account of reparation for sentencing purposes is not straightforward. On the one hand, courts have been careful to avoid the

_{suggestion that affluent offenders can purchase discounts that are not available to}

⁵ _{E v R [2010] NZCA 13.}

⁶ R v Brooking CA419/04, 7 March 2005 at [11].

offenders without equivalent means by paying reparation.⁷ The general principle is that reparation should not be seen as part of the total penalty and used to proportionately reduce the quantum of other penalties imposed.⁸ On the other hand, it is accepted that where an offer or agreement to make amends reflects the acceptance of responsibility, and a genuine expression of contrition, it may be appropriate to recognise that reparation by way of a sentencing discount.⁹

[25] To the extent that he did, the Judge was in my view wrong to discount the significance of Ms Wilton’s remorse by reference to her inability to pay reparation. An inability to pay reparation is the absence of a mitigating factor, not the presence of an aggravating one which can in some way reduce a discount for remorse. As Ms Wilton’s father in his measured victim impact statement acknowledged, whilst he had trusted his daughter to do the right thing for him, and she had not, nevertheless he thought she had learned from what she had done. As he mercifully concluded: “Life is too short to be angry with people, and we must move forward”. Again, however, the determinative question is whether the end sentence arrived at is within range.

[26] I therefore turn to assess Ms Pearson’s more general submission that the sentence imposed on Ms Wilton was out of line with sentences for equivalent offending to such an extent as to be manifestly excessive. The failure of the Judge to identify either a pre-personal circumstances starting point, or an uplift for the aggravating personal circumstance of previous convictions, has implications for how I assess that submission. Because of that, whilst it is possible the Judge reasoned as the Crown suggested, I have no idea whether he did or not. I therefore need to identify the starting point sentence which responds to the criminality of the offending for which Ms Wilton was sentenced, and then the appropriate uplift for her previous convictions. I will then also need to consider mitigating personal factors and, finally, the guilty plea discount.

[27] There is no tariff judgment for this type of offending. As noted in

_{R v Varjan,}¹⁰ _{the circumstances of, and culpability in, offences of dishonesty vary}

⁷ _{Zhao v Police HC Hamilton AP32/03, 6 June 2003 at [39].}

⁸ _{Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed) at [SA32.04].}

⁹ _{Adams, above n 8, at [SA10.02].}

¹⁰ R v Varjan, above n 3.

widely. 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 serious of breaches of trust involved; and the impact on victims. Comparison with other cases

is helpful in assessing culpability.¹¹

[28] As can be seen, the Judge’s identification of relevant aggravating factors was very much in line with the Varjan approach. To that extent, the Judge’s approach cannot be challenged.

[29] In terms of comparison with other cases, Varjan involved bank fraud based on inflated property valuations. The offender was a mobile mortgage manager with the defrauded bank. The total loss to the financial institutions involved was

$546,000. Mr Varjan personally benefited only to the extent of some $5,000. His co-offender, however, obtained approximately $1.3 million. The co-offender had worked with a second valuer in a separate series of frauds.

[30] In the District Court a starting point of four to five years was adopted and an end sentence of two years and eight months imposed. The appeal was, as here, directed at having the appellant’s sentence reduced to two years or less, so that he might be eligible for home detention.

[31] The Court of Appeal noted that starting points, and after trial, end sentences in that vicinity occurred in cases of white collar fraud involving amounts between

$400,000 and $1,000,000.¹²

[32] It also noted that in Nandan,¹³ an 18 month starting point for similar fraud involving personal gain of $17,000 net was described as lenient. The Court concluded that the four to five year starting point was too high, but 18 months was too low. Referring to the significant factor of breach of trust, the Court concluded a

_{three year starting point was called for. The Court accepted that a credible}

¹¹ _{At [22].}

¹² Citing R v Clark CA364/99, 23 November 1999; Cole v Police [2001] 2 NZLR 139 and

_{R v O’Brien and McMahon CA39/97, 27 August 1997.}

¹³ R v Nandan CA136/98, 2 September 1998.

explanation for Mr Varjan – a long-standing bank employee with a good record – having offended as he did was the stress and depression contributed to by his employer’s performance targets. Reflecting that consideration, Mr Varjan’s guilty plea and his cooperation, a one year discount was allowed. Mr Varjan was given leave to apply for home detention. Of particular significance is the three year starting point adopted with reference to the breach of trust.

[33] In Garnett,¹⁴ the breach of trust was that of a solicitor who, over a period of five years, stole some $275,000 from law firms for which she worked. The Court of Appeal described the offending as “deliberate, sustained, and in clear breach of her professional obligations”.¹⁵ From a starting point of four years, a sentence of three years’ imprisonment was imposed in the District Court.

[34] Garnett was an unusual appeal. The Court of Appeal first heard argument two days after sentencing. Significant personal circumstances (the solicitor had a young son of 14 months and was six months pregnant), and the disturbing contents of a clinical psychologist’s report, resulted in bail being granted pending determination of the appeal. A further report was ordered. The Court ultimately concluded that, whilst the four year starting point was appropriate, a further discount should have been allowed to recognise the offender’s personal circumstances. The Court added a further six months and, on the basis of the law at the time, granted leave to apply for home detention.

[35] Of more direct relevance are a number of recent High Court decisions that I

was referred to. In Bowles,¹⁶ there was no challenge to a starting point sentence of

12 months for the theft of some $25,000 by a 52 year old woman from her elderly uncle. In Kerwin,¹⁷ the special relationship was that of employer and employee. For offending involving a theft of $90,000, and total losses of $122,000, the High Court substituted a starting point sentence of three years in place of that of the District Court of three years and three months. It did so without direct reference to any

_{cases, the Crown having accepted three years was the appropriate period.}

¹⁴ _{R v Garnett, above n 3 at [7].}

¹⁵ _{At [7].}

¹⁶ _{Bowles v Police, above n 3.}

¹⁷ Kerwin v Police, above n 3.

[36] In Harford,¹⁸ the High Court upheld a sentence of four years where an office manager had stolen $280,000 from her employer. In the District Court the starting point sentence had been set at four years, with an uplift of six months to take account of previous offending and a six month discount for the guilty plea. Finally, in Mackley,¹⁹ a 28 year old mother of two stole some $170,000 from her employer. The Judge identified a starting point sentence of three and a half years, which Gendall J saw as being in line with authority. In reaching that conclusion, he referred to the Court of Appeal decision in R v Davis.²⁰ There a starting point sentence of four years’ imprisonment for theft by a servant of over a quarter of a million dollars was, the Court of Appeal found, “plainly not out of the available range for offending of that order”.²¹

[37] I consider the serious aggravating factors here to be the abuse of trust (a vulnerable elderly father; a trusted daughter); the reasonably large amount of money involved (approximately $100,000); and the impact on Ms Wilton’s victims (she stole her father’s life savings; his house had to be sold – although I acknowledge that may well have been required at some point in the future in any event – and he now faces financial pressures that would not otherwise have arisen). Ms Wilton’s brother is also a victim. He has already had personally to meet $3,000 worth of his father’s expenses and, I infer, may have to do so again in the future.

[38] By my assessment, by reference to the authorities I have considered, and applying the Varjan principles, the appropriate starting point range for Ms Wilton’s offending was two years six months to three years. For my part, I would have set a starting point sentence of two years and nine months’ imprisonment.

[39] I turn to consider aggravating factors. The Crown submitted a six month uplift was justified. Uplifts in the range of six months are generally used to reflect more serious dishonesty offending than is the case here. For example, in Ropiha v Police,²² the appellant’s previous history was described as “very prolific indeed”. It

_{comprised 76 dishonesty convictions which included a previous sentence of}

¹⁸ _{Harford v Police, above n 3.}

¹⁹ _{Mackley v Police, above n 3.}

²⁰ _{R v Davis [2009] NZCA 26.}

²¹ _{At [16].}

²² Ropiha v Police HC Rotorua CRI-2004-463-74, 22 July 2004.

18 months’ imprisonment. Justice Keane concluded that the longest uplift that could be imposed was six months.²³

[40] I am satisfied that a six month uplift would be excessive. Indeed, I am not persuaded an uplift was required. In O’Connor v R the Court observed:²⁴

It is important that uplifts not be imposed as a matter of course but rather are a considered response to specific aspects of an offender’s previous criminal history.

[41] Ms Wilton’s previous benefit fraud is relevant offending. But she has not before been sentenced to imprisonment. The imposition of an uplift can act as an indication of character and of culpability, of the need for a greater deterrent response for the offender and to address an increased risk for the community of reoffending. In my view, those needs are met here by the sentence of imprisonment itself, and therefore an uplift is not required.

[42] The Judge allowed, in total, some five months’ discount for remorse and

personal circumstances.

[43] If the Judge had applied that discount before the discount for Ms Wilton’s guilty plea, as Hessell suggests,²⁵ it would have represented a discount of approximately 10 per cent. Taking the same approach, although recognising its generosity, I allow a three month discount for personal circumstances. Hence, before the recognition of a 25 per cent discount for her guilty plea, Ms Wilton’s notional starting point sentence is two years and six months.

[44] A 25 per cent guilty plea discount is, rounded, eight months. I therefore arrive at a sentence of imprisonment for Ms Wilton of one year and 10 months. On that basis, and for the reasons outlined, I conclude that the sentence of two years and three months imposed by the Judge was manifestly excessive.

_{[45] In these circumstances, the question of home detention arises.}

²³ _{At [28].}

²⁴ _{O’Connor v R [2014] NZCA 328 at [41].}

²⁵ Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 (SC).

[46] Whilst the Judge acknowledged the steps Ms Wilton had taken to address her gambling problem, he was not inclined to order home detention, pointing to the serious breach of trust involved and the need for deterrence.

[47] Neither am I. I acknowledge the deterrent effect of a sentence of home detention, as has been recognised by the Court of Appeal in many cases.²⁶ I also acknowledge that, in making my assessment, I am not to focus only on the purpose of deterrence but I am to consider all relevant considerations. In terms of Ms Wilton personally, and favouring home detention, is the opportunity that would provide for Ms Wilton to address her gambling addiction and, at the same time, to continue the care of her daughter. More generally, there is the general policy behind the introduction of the sentence of home detention of reducing the incidence of the

imposition of sentences of imprisonment.

[48] But, as I have already discussed when considering whether an uplift for Ms Wilton’s previous offending is required, I recognise here a particular need for deterrence and community protection. I do not think, in these circumstances, that those needs would be met by a sentence of home detention. Ms Wilton’s offending against her father occurred not long after she had been convicted for that benefit fraud and sentenced to six months’ community detention and 100 hours’ community work. Just how long after is a little unclear. The statement of facts to which Ms Wilton pleaded guilty records that her offending started in October 2011. The Judge’s sentencing notes refer to October 2012. Taking the position most favourable to Ms Wilton, that is still not a long time.

[49] By way of outcome, I therefore allow Ms Wilton’s appeal, quash the sentence of two years and three months’ imprisonment imposed on her and substitute a sentence of one year and 10 months’ imprisonment in its place. I decline to sentence her to home detention.

_{“Clifford J”}

²⁶ For example, R v Iosefa [2008] NZCA 453; Byrne v R [2014] NZCA 32.

Solicitors:

WCM Legal, Carterton for appellant.

Crown Solicitor, Wellington for respondent.