PRICE v NEW ZEALAND POLICE [2017] NZHC 2523

PRICE v NEW ZEALAND POLICE [2017] NZHC 2523 [16 October 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000316[2017] NZHC 2523BETWEEN MARTIN PRICEAppellantAND NEW ZEALAND POLICERespondentHearing: 16 October 2017Appearances: L O Smith for AppellantS McDaid for RespondentJudgment: 16 October 2017ORAL JUDGMENT OF VENNING JSolicitors: Meredith Connell, AucklandCopy to: L O Smith, Auckland[1] Martin Price pleaded guilty to five charges of dishonestly using a document toobtain a pecuniary advantage1 and two charges of obtaining by deception.2 On 8September 2017 in the Auckland District Court Judge Ronayne declined Mr Price'sapplication for discharge and name suppression and sentenced him to two years andfive months' imprisonment.3[2] Mr Price appeals against the sentence of imprisonment. He does not appealthe refusal to grant a discharge without conviction or the refusal to grant namesuppression.Facts[3] Mr Price's dishonesty occurred over a period of approximately 18 months from9 January 2012 until 26 July 2013. During this time he was the General Manager ofProperty and Retail Development for Foodstuffs Wellington and a member of thesenior management team. Together with two co-defendants, Mr Price defraudedFoodstuffs to the value of $155,595. The police quantified the reparation due fromMr Price personally at $86,594.[4] In summary the offending involved the following. Foodstuffs owned a car parkin Wellington, and on 7 May 2012 Mr Price emailed Wilson Parking from his workemail with an invoice attached, requesting $26,220 for the leasing of the car park.When Wilson Parking queried the payment to a bank account in the name of OruiPartners Limited rather than Foodstuffs, Mr Price forwarded a letter allegedly signedby an employee of Foodstuffs, Ms Sharpe, stating the commission payment to Oruihad been authorised. Mr Price was the sole director and shareholder of Orui and thesole signatory for its bank account. Foodstuffs have given no authority for thepayment to be made to that company.1 Crimes Act 1961, s 228; maximum penalty seven years' imprisonment.2 Crimes Act, ss 240(1)(a) and 241(a); maximum penalty seven years' imprisonment.3 Police v Price [2017] NZDC 20325.[5] On 24 January 2013 Foodstuffs paid a company and a trust operated by MrPrice with the assistance of Mr Brown $36,800. That payment, which was invoicedfor "lease negotiations Tamatea Development" was not authorised by Foodstuffs.Another payment had been made on 6 November 2012 for $23,000 from Foodstuffsto the Lambton Property Trust. Mr Price was not authorised to be charging forconsulting services while employed by Foodstuffs.[6] The third offender, Mr Evans, was the General Manager of Five StarConstruction, a Wellington based construction company which carried out work forFoodstuffs on two sites. Three invoices were supplied to Foodstuffs by Mr Evans. Allthree were authorised and paid by Foodstuffs. The second invoice, for $17,250, wasentirely fictitious and came about as a result of collusion between the three co-offenders, including Mr Price. On 18 February 2013, Mr Evans made three paymentstotalling $17,250 into Lambton Property Trust's account. A Lambton Property TrustLimited invoice to Foodstuffs claimed to be for "remedial work – consultancy fee" forthe $17,250.[7] Foodstuffs owned vacant land at Rugby Street in Mount Cook, Wellington.Stratum Management Limited, through Mt Price, had arranged to lease this land fromFoodstuffs from 25 October 2012 through to May 2013. Mr Price was involved in theprocess of invoicing Stratum Management. Two invoices obtained from StratumManagement for the lease are "Lambton Property Trust Limited" invoices for $6,900and $5,175, the moneys from which were paid into Lambton Property Trust's bankaccount. Foodstuffs did not receive any payment in relation to the leasing of the land,and did not authorise Lambton Property Trust or Mr Price to receive the fees.[8] Foodstuffs also owned a site on Tasman Street. Groundworks Limited, adrainage contractor made enquires about whether this was available for lease. Theproperty management team at Foodstuffs, including Mr Price and Mr Brown, agreeda fee. Mr Brown supplied Groundsworks with an invoice for the leasing, which wasa Lambton Property Trust Limited invoice for $40,250, to be paid into the trust's bankaccount. On 23 April Groundworks paid this sum into Lambton Property Trusts' bankaccount. Foodstuffs did not give Mr Price or Lambton Property Trust Limitedauthority to receive the fees for leasing the site.[9] Mr Price has admitted the facts of the offending. He blamed a marriagebreakup and financial woes as the reasons motivating the offending. He has noprevious convictions.District Court sentence[10] In sentencing Mr Price, District Court Judge Ronayne identified theaggravating features of the high value of the loss, the serious abuse of a position oftrust as a senior manager at Foodstuffs, the sophisticated and premeditated offendingwhich involved a degree of conspiracy, and the duration and repetition of theoffending.[11] The Judge took a starting point for sentence of three years, six months'imprisonment.[12] The Judge noted Mr Price did not have any previous convictions and that hehad paid approximately $3,490 in reparation to date and had made an offer of ongoingreparation. For personal mitigating factors the Judge applied an overall discount offour months' imprisonment before applying a credit for the guilty plea ofapproximately 24 per cent which left an end sentence of two years, five months'imprisonment.Grounds of appeal[13] In support of the appeal Mrs Smith submits the sentence was manifestlyexcessive and in error because the Judge:(a) adopted a starting point that was too high;(b) failed to recognise the offer for reparation as a separate mitigatingfeature;(c) gave insufficient discount for remorse and lack of previous criminalconvictions; and(d) did not consider home detention as the least restrictive outcome.[14] Mrs Smith also raises the matter of Mr Price's offer of assistance to the police,which was not before the sentencing Judge.Approach on appeal[15] The present appeal against sentence is governed by s 250(2) of the CriminalProcedure Act 2011. The Court must allow the appeal if:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[16] An error includes a manifestly excessive sentence.4[17] As Mr McDaid submitted the focus is on whether the ultimate sentence waswithin the available range, rather than the process by which it was reached.5Discussion[18] Mrs Smith correctly noted there was no tariff case. She referred to a numberof cases, including the authority of Campbell v Police which involved 104 offencesand a total of $261,205 being taken.6 In that case the District Court Judge took astarting point of three years, nine months' imprisonment. That was upheld on appeal.There was also a significant reparation order of $37,000.[19] Counsel also referred to a number of other authorities which I haveconsidered.7 She made the point that in a number of cases where three years plus wastaken as the starting point for fraudulent offending the victims had been vulnerable orelderly.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].5 Ripia v R [2011] NZCA 101 at [15].6 Campbell v Police [2013] NZHC 838.7 Aupouri v Ministry of Social Development [2013] NZHC 1224; and Wilson v Ministry of SocialDevelopment HC New Plymouth CRI-2011-443-37, 2 November 2011.[20] I have had regard to those authorities and also to the additional authoritiesreferred to by the respondent. While other cases are of assistance, the Court of Appealhas set out the principles to apply to fraud related offending in R v Varjan and Helsby-Knight v R.8[21] Having regard to the authorities cited by counsel and the principles establishedby the Court of Appeal the particularly relevant factors in my judgment in the presentcase are the significant premeditation and planning involved in these acts of fraud, thesophisticated nature of the offending, the abuse of trust of Mr Price's senior positionand the loss of a significant sum of $155,595. Taking those factors into account astarting point in the range of three years, three months to three years, nine months wasopen to the Judge. The Judge's starting point of three years, six months was in themiddle of that range and was open to him.Reparation[22] Mrs Smith submitted the Judge had fallen into error by failing to recognise theoffer to make reparation as a separate mitigating factor. Although at [14] of hissentencing notes the Judge said it was not a mitigating factor because it was "notmitigating to repay money that is not yours, money you stole", that was in the contextof his rejection of the application for discharge and at a stage where the Judge wasassessing the gravity of the offending for those purposes.[23] Importantly later, when the Judge turned to the issue of the ultimate sentencehe said:[24] Insofar as mitigation is concerned, you had no previousconvictions. I have already noted that you are of otherwise previous goodcharacter but that aspect of the matter has to be tempered by the duration ofyour offending and the fact that it was exactly that good character and cleanrecord that enabled you to get the job that enabled you to offend and breachtrust.[25] I note that there is some possibility of reparation and that you aremaking payments. However while I have your weekly budget and a note thatyou are making payments, I know nothing in any verified way about your networth. From the starting point of three years and six months I deduct fourmonths for your personal mitigating factors. 8 R v Varjan CA97/03, 26 June 2003; and Helsby-Knight v R [2015] NZCA 315.[24] Read in context I accept that the Judge did take into account the reparation thatMr Price had made and the offer put forward. Although the record does not show itMrs Smith said that after sentencing Mr Price was called back and that the Judgeimposed an order for reparation of $86,000. I accept Mrs Smith's advice to the Courtbut there remains a problem for the appellant with this issue of reparation, even if suchan order was made.[25] Importantly, in considering whether and to what extent reparation should betaken into account the Court is required to take into account whether the offer isgenuine and significantly in this case, capable of fulfilment. There was insufficientinformation before the Court for the Judge to be satisfied the offer of reparation wasrealistic. That is borne out by the application for legal aid for the purposes of theappeal in which the appellant has said "I will probably be filing for bankruptcy as Ihave no money and I have outstanding debts".[26] I am not satisfied that the Judge has fallen into the error as suggested by MrsSmith. The Judge was aware of and took into account the offer of reparation but inmy judgment correctly had reservations as to the likelihood of the payments, given thelack of information before him. The further information before this Court at this timedoes not provide this Court with any confidence at all that the offer and any ordermade is realistic.Remorse[27] Next, Mrs Smith submitted that the Judge failed to include any discount forremorse. She submitted the appellant had said in his affidavit in support of a dischargewithout conviction he was truly sorry and remorseful for the harm caused and that theoffending was out of character. There was also a restorative justice report which incounsel's submission "oozed remorse" and there was also acceptance by Foodstuffs tothe extent that Foodstuffs did not want Mr Price to be sent to jail.[28] As the Supreme Court have confirmed in R v Hessell an additional and separatediscount for genuine remorse may be available.99 R v Hessell [2010] NZSC 135.[29] Having reviewed the file I am not satisfied that the remorse stated by theappellant in this case is in the category of genuine remorse as contemplated by theSupreme Court in Hessell, which warrants a further and distinct credit. Mr Price nodoubt regrets the position he is in and may at a certain level regret his offending.However, there are a number of indicators which count against the suggestion theremorse is genuine. In the pre-sentence report the probation officer noted that whilethere were elements of remorse and guilt witnessed during the interview, they werecountered by Mr Price's actions which were for his personal greed and for materialgain. In addition as the Judge correctly pointed out in dealing with the application fordischarge without conviction it is of concern that Mr Price, even after acceptingresponsibility, sought to categorise his offending as an error of judgment. This was noerror of judgment. It was sophisticated and planned offending over an extended periodof time. It involved offending in relation to a number of separate transactions. It wasnot an error of judgment but rather was deliberate criminal offending.[30] In Campbell as referred to and discussed earlier, I note that the Judge gave fivemonths credit for remorse, age and lack of previous convictions.10 I am not satisfiedthat the Judge in the present case fell into error in the assessments he made and thededuction he gave for personal circumstances, including the lack of previousconvictions and any minor remorse credit. The reduction of four months for thosepersonal mitigating factors was within range.Home detention[31] Mrs Smith submitted the least restrictive outcome in the present case was homedetention but home detention was only an option if the Judge arrived at a sentence oftwo years or less. It was not open to him in the circumstances.Assistance[32] The remaining issue is the issue of assistance which has now been raised forthe first time at this appeal level. Mrs Smith submits and the Crown accept that theappellant has provided two statements to the police and has indicated an agreement to10 Campbell v Police, above n 6.give evidence against a co-defendant. He has been summonsed to appear at the trialof the co-defendant. That was not a matter that was before Judge Ronayne atsentencing.[33] It would have been better if the matter had been before the sentencing Judge inaccordance with the practice established by R v Hadfield.11[34] Nevertheless, I accept it is in the interest of justice to regard this as freshevidence which should be admitted. In assessing credit to be given for such assistancethe Court must take into account the personal risk assumed and also the value of theassistance. In this case the criminal fraudulent offending will be made out largely onthe basis of the documentation. The appellant may or may not be required to be calledas a witness even though he has been summonsed.[35] However, I still accept that in the circumstances a further reduction ought to begiven for that offer of assistance but it must be modest. No more than three months isrequired to recognise that assistance in the present case.Result[36] The appeal is allowed. The sentence of two years, five months' imprisonmentis quashed. It is replaced with a sentence of two years, two months' imprisonment.__________________________Venning J11 R v Hadfield CA337/06, 14 December 2006.