GROGAN v R [2018] NZHC 856

GROGAN v R [2018] NZHC 856 [30 April 2018]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-13[2018] NZHC 856BETWEEN CHARMAINE DELORES GROGANAppellantAND THE QUEENRespondentHearing: 30 April 2018(Heard at ROTORUA)Appearances: G R Tomlinson for AppellantS J P Davison for RespondentJudgment: 30 April 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Ms Grogan pleaded guilty in the District Court at Tauranga to three chargesrelating to the dishonest use of cheques. On 26 January 2018 Judge Mabey QCsentenced Ms Grogan to concurrent sentences of two years imprisonment.1 Sheappeals against sentence on the basis that the Judge erred in principle in imposing thesentence of imprisonment. This has resulted in an end sentence that is manifestlyexcessive.Background[2] In order to understand the issues the appeal raises it is necessary to have regardto the factual background.[3] The charges on which the Judge sentenced Ms Grogan relate to offending thatoccurred between January 2010 and February 2011. During this period Ms Groganwas a trustee of a registered Maori land trust with 480 beneficiaries. The trust leasedfarm property and distributed the net rental income to the beneficiaries of the trust.[4] Ms Grogan was also the treasurer of the trust and in that capacity had the abilityto sign cheques on the trust's behalf. Between 8 January 2010 and 21 February 2011she forged cheques and created unauthorised details on cheque records. This enabledher to obtain funds amounting to $99,000 from the trust's bank account. None of thatloss was recovered.[5] The complicating factor in the present appeal arises from the fact that in June2016 Ms Grogan was sentenced for other similar offending that post-dated thefraudulent activity giving rise to the present charges. On that occasion Ms Groganwas again acting on behalf of a trust. She fraudulently used cheques and therebydeprived the trust's beneficiaries of funds amounting to approximately $80,000. Thatoffending occurred between April 2008 and 31 March 2012. On 29 June 2016, JudgeBidois sentenced Ms Grogan to 11 months home detention on the charges laid inrelation to that offending.21 R v Grogan [2018] NZDC 1328.2 New Zealand Police v Grogan [2016] NZDC 12130.The Judge's decision[6] Judge Mabey was clearly aware of the sentence imposed by Judge Bidois in2016. He referred to the facts underpinning that offending during the course of hissentencing remarks. He also referred to the sentence Judge Bidois had imposed.3 TheJudge considered, however, that no issue of totality arose because Ms Grogan hadalready completed the sentence of home detention imposed upon her by Judge Bidois.4He took the earlier offending as amounting to an aggravating factor for which thestarting point needed to be increased.[7] The Judge selected a starting point of two years six months imprisonment. Heapplied an uplift of three months to reflect the earlier offending and then reduced thesentence by 15 per cent to reflect mitigating factors including remorse and the fact thatMs Grogan had been prepared to attend a restorative justice conference. The Judgethen applied a further discount of 15 per cent to produce the end sentence of two yearsimprisonment. In doing so he then rejected a submission by counsel for Ms Groganthat a further sentence of home detention should be imposed. He therefore sentencedMs Grogan to two years imprisonment.The appeal[8] For Ms Grogan, Mr Tomlinson's first submission is the same as that advancedin the District Court, namely that a sentence of home detention should have beenimposed. He points out that Ms Grogan had completed the earlier sentence of homedetention without incident. The present sentence was one of two years or less, so theJudge had the ability to impose home detention. Mr Tomlinson submits that the Judgeerred in principle by imposing a sentence of imprisonment instead.[9] As argument developed during the hearing several other issues arose. First,counsel agreed that the Judge erred in applying an uplift of three months to reflect theearlier offending. An uplift may be applied to reflect the fact that an offender hasfailed to learn from sentences imposed in respect of similar offending in the past. In3 R v Grogan, above n 1, at [10]-[11].4 At [12].the present case, however, that principle could not apply because Ms Grogan had notbeen sentenced on the earlier charges when she committed the present offences.[10] A more fundamental issue arises, however, in relation to the issue of totality.The Judge correctly noted that, strictly speaking, these issues did not arise becauseMs Grogan had completed the earlier sentence. Section 85(2) of the Sentencing Act2002 only requires totality to be taken into account when the Court imposescumulative sentences on two or more charges.[11] In the present case, however, I consider that several factors brought the issueof totality into play. The first is that the present charges relate to offending betweenJanuary 2010 and February 2011. The earlier charges related to offending thatoverlaps that period. Secondly, the offending was very similar in kind because, in bothcases, it involved the fraudulent use of cheques in circumstances where Ms Groganwas in a position of trust for the beneficial owners of the funds that she converted toher own use.[12] The real problem in the present case has arisen as a result of the timing of thepleas that Ms Grogan has entered. Mr Tomlinson explains that the present chargeswere only laid after Ms Grogan had pleaded guilty in February 2016 to the chargesdealt with by Judge Bidois in June 2016. She initially sought to defend those charges,but by the time she elected to enter guilty pleas, she had already served the sentenceof home detention imposed in respect of the later offending.[13] I detect from the sentencing notes of both Judges in the District Courtindications that they held a concern that Ms Grogan was "gaming" the system in orderto ensure she did not receive a sentence of imprisonment. It is common ground that,had Ms Grogan been sentenced on all charges together, a custodial sentence wouldcertainly have been imposed. As Judge Mabey remarked, however, the Court cannottake into account the reasons underlying the timing of a guilty plea. Those issues callinto play the advice given by counsel and other matters to which the Court is not privy.I consider, however, that it was important in the present case for the ultimate sentenceto reflect Ms Grogan's overall culpability given the fact that the offending occurredduring an overlapping period and was of a very similar nature.[14] Had Ms Grogan been sentenced on all charges at the same time, I consider anoverall starting point of three and a half to four years imprisonment would have beenimposed. An overall starting point of five years imprisonment, as was ultimatelyselected by the two Judges in the present case, would have been too great havingregard to totality principles. Assuming a starting point of three years nine monthsimprisonment, a discount of 15 per cent would have been available to reflect themitigating factors both Judges identified other than the guilty pleas. This wouldreduce the sentence to three years three months imprisonment before taking intoaccount guilty pleas.[15] Guilty pleas on the present charges were not entered until a comparatively latestage whereas a full discount of 25 per cent was given in respect of the earlier charges.Applying an overall discount of 20 per cent to all charges, the sentence would reduceby eight months to two years seven months imprisonment.[16] The issue for present purposes is whether, and to what extent, the sentence ofhome detention that Ms Grogan has already served should be taken into account whenselecting the end sentence. The end sentence for the present charges must be one ofimprisonment as a matter of principle to reflect the overall culpability of Ms Grogan'soffending. Ordinarily, and as a working rule, the courts equate a sentence of onemonth's home detention to two months' imprisonment. This reflects the fact that asentence of two years imprisonment or less leads to automatic release after theoffender has served one-half of a sentence. An offender sentenced to home detentionmust, however, serve the full sentence. That is a rule of thumb, and cannot be regardedas being an absolute rule. It must yield to circumstances.[17] In the present case I consider a sentence of 11 months home detention, coupledwith a sentence of 11 months imprisonment, to be an appropriate response to theoverall culpability of Ms Grogan's offending.Result[18] I therefore allow the appeal. I quash the sentences of two years imprisonmenton all charges. In their place I impose concurrent sentences of 11 monthsimprisonment.Lang JSolicitors:Crown Solicitor, TaurangaW T Nabney, Tauranga