HICKS v NZ POLICE [2022] NZHC 312

HICKS v NZ POLICE [2022] NZHC 312 [28 February 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-163[2022] NZHC 312BETWEEN REBEKAH HICKSAppellantAND NEW ZEALAND POLICERespondentHearing: 24 February 2022Appearances: A C Gordon for the Appellant S R D D Bicknell for the RespondentJudgment: 28 February 2022JUDGMENT OF OSBORNE JThis judgment was delivered by me on 28 February 2022at 4.15 pmRegistrar/Deputy RegistrarDate:Introduction[1] Rebekah Hicks (also known as Rebecca Harris) was sentenced 1 in the Christchurch District Court by Judge Crosbie to two years and two months' imprisonment on four charges of theft by a person in a special relationship. 2 She was ordered to pay reparation of $4,700.20 to the second business affected by her theft.[2] Ms Hicks appeals against that sentence on the basis it is manifestly excessive because the Judge applied credit incorrectly and gave insufficient credit for Ms Hicks' personal circumstances.Facts[3] I will refer to the two businesses which were the victims of Ms Hicks' current thefts as Company A and Company B.[4] On 8 March 2016, Ms Hicks commenced employment with Company A. Her role with the company was to deal with and process cash transactions and to maintain the finances. In May 2020, Company A became aware that there were inaccuracies in its accounting records and commenced an internal investigation.[5] Previously, on 20 January 2020, a customer placed an order for sandblasting and silver zinc coating. Ms Hicks recorded the work required on a job sheet numbered 31935. The work was priced at $120 including GST. When an employee of the customer uplifted the parts, the cash for the sale was handed to another employee who passed it onto Ms Hicks for receipting. At the end of the week an invoice was created on the basis of a cash sale for $120. However, this invoice was cancelled in February and the $120 was never receipted or accounted for. Through the investigation into the discrepancies, a further 20 transactions were identified where invoices for cash sales had been generated, cash paid to Ms Hicks, and the invoice later cancelled with the cash retained by Ms Hicks.1 Police v Hicks [2021] NZDC 21987.2 Crimes Act 1961, ss 220 and 223(a) – maximum penalty of seven years' imprisonment.[6] At a meeting on 20 May 2020, Ms Hicks' employer questioned her about her involvement in the missing funds. Ms Hicks replied in writing that she admitted to taking the cash instead of banking it. She claimed the total amount outstanding was a sum of $400 and that she intended to repay the money.[7] Due to this admission the company initiated further investigations into discrepancies arising during the time of Ms Hicks' employment and uncovered a significant number of thefts. Some of the offending involved Ms Hicks having her personal vehicle serviced on the company accounts, something she was neither entitled nor given the ability to do. The value of this theft was $5,005.81.[8] Also identified were a number of personal transactions from Company A into Kiwibank accounts operated by Ms Hicks. Ms Hicks fraudulently transferred a total of $20,318.11 from Company A into her personal bank account. A further bank account was identified as owned and operated by Ms Hicks during her time working for Company A into which she transferred money from Company A totalling $53,596.34 without any explanation. The total money Ms Hicks fraudulently transferred into these two personal bank accounts was $73,977.45. To put that in perspective, Ms Hicks was stealing her employer's money at the average rate of over $300 per week.[9] On 25 September 2020, Company A served Ms Hicks with a notice of termination of employment to which she replied: "I have received your email and letter. I have taken time to reflect and it is something I think about on a daily basis. I am absolutely disgusted in my actions." On 19 October 2020, she completed an affidavit in which she acknowledged she fraudulently took the sum of at least $73,700 from Company A by directing funds to be paid to her personal bank accounts, which was spent on general living and clothing expenses. Ms Hicks then resigned from Company A. One charge arose from her offending at that company.[10] Shortly thereafter, Ms Hicks was employed by Company B from November 2020 until 2 February 2021. She had an administrative role which involved dealing with and processing cash transactions and maintaining the finances.[11] On 25 November, Ms Hicks created a fictitious invoice for payment to a customer for the amount of $2,231.65. Ms Hicks used her employer's accounting software to 'pay' this invoice but diverted funds from her employer's bank account into her personal account. On 12 January 2021, Ms Hicks repeated these actions in relation to another customer for the sum of $1,763.25, and on 2 February 2021 in relation to the same named business in the sum of $705.30. The three transactions totalled $4700.20 and amounted to three charges under s 220 of the Crimes Act 1961. Reparation was sought for the sum of $4700.20 payable to Company B. To again put that in perspective, Ms Hicks' average theft of her employer's money was over $350 per week.District Court decision[12] The three Company B charges were laid during Ms Hicks' initial remand without plea on the Company A charge. At the next call of the matter on 12 May 2021, Ms Hicks sought a sentence indication on all four charges. On 14 July, Judge Crosbie gave a sentence indication in which he adopted a starting point of three years with an uplift of three months for personal aggravating features. The Judge stated that full credit of 25 per cent would be given if Ms Hicks entered guilty pleas following the indication. This made for a sentence of two years and five months' imprisonment. The Judge noted that further credit could be available for personal mitigating factors that may bring the end sentence to about two years if a verified causal nexus between any mental health condition and the offending could be established, as well as evidence of reparation and the results of restorative justice. His Honour stated he was prepared to keep an open mind regarding the availability of an electronically monitored sentence.[13] Ms Hicks accepted that sentence indication and entered guilty pleas to all charges on 21 July. For sentencing on 9 November, Judge Crosbie was provided with a lengthy psychological report prepared by a consultant psychiatrist, Dr Dominic Lim, and a pre-sentence report.[14] The Judge began by articulating the high degree of trust inherent in the relationship between employer and employee that Ms Hicks abused by stealing fromher employers over a considerable period of time. His Honour referred to the victim impact statements read in Court, including that of the owner of Company A who the Judge described as having incurred huge financial and emotional cost as a result of Ms Hicks' actions. The Judge noted Company A had supported Ms Hicks while she arranged medical treatment for herself and that her breach of such trust had caused enormous stress and trauma. He also referred to the victim impact statement of the owner and manager of Company B. The Judge considered this offending "strikes at the heart of a hardworking business" and described it as callous, premeditated, destructive and deceptive.[15] Judge Crosbie then assessed the discounts that could be applied for Ms Hicks' personal mitigating factors. His Honour noted it was incongruous that Ms Hicks' offending did not appear to have occurred because of an addiction or financial difficulties. The Judge acknowledged the medical issues Ms Hicks had recently experienced and the traumatising effect this had on her but stated the nexus between these issues and her offending was not immediately apparent. After reviewing the evidence in Dr Lim's psychiatric report in some detail, the Judge determined a causal nexus between Ms Hicks' mental condition and her offending was not established — in his view Ms Hicks' health conditions did not stop her functioning at a very high level, including having the ability to hold down a job making business and financial decisions.[16] The Judge nonetheless applied a discount for personal circumstances of three months which, on his calculation, brought the end sentence on each of the charges to two years and two months' imprisonment. A reparation order was made in favour of Company B for $4,700.20. No order was sought or made in favour of Company A in relation to its much greater loss.Principles on appeal[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence shouldbe imposed. 3 As the Court of Appeal recorded in Tutakangahau v R quoting the lower court's decision, a "court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles". 4 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is "manifestly excessive" and not justified by the relevant sentencing principles. 5SubmissionsAppellant's submissions[18] Counsel for Ms Hicks, Ms Gordon, submitted the Judge erred in applying a discount to the sentence for personal circumstances after the sentence had been discounted for her guilty pleas rather than applying it to the starting point. Ms Gordon argued this amounted to a third step in the sentencing process that did not comply with the global discount mandated in Moses v R. 6 She calculated that the three month credit provided is approximately 10 per cent of the starting point minus the guilty plea discount (that is, two years and five months). She submitted the 10 per cent within the Judge's contemplation should have been deducted from the starting point of three years and three months' imprisonment together with the 25 per cent credit for guilty pleas, resulting in a deduction of 35 per cent and an end sentence of 25 months' imprisonment.[19] Ms Gordon further submitted the Judge erred by providing an insufficient discount for Ms Hicks' personal circumstances and mental health. It was submitted the Judge made a number of adverse factual findings in relation to Ms Hicks' personal circumstances that were not open to him and that had the effect of increasing her culpability. Ms Gordon submitted the Judge erroneously concluded Ms Hicks was employed at a much higher level than she in fact was — the Judge referring to Ms Hicks making business and financial decisions — and that some of the funds she stole were used to finance an investment property rather than the house she lived in (to which her mother held the title). She maintained the Judge considered Dr Lim's report3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].6 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.against that mistaken background and consequently was unable to establish a causal nexus between her personal circumstances and her offending.[20] By contrast, Ms Gordon submitted Dr Lim's report establishes a casual connection between her offending and the deterioration of her mental health. She argued there is clear medical evidence that Ms Hicks' choice was impaired and her culpability diminished by the stress and PTSD symptoms she experienced at the beginning of the offending as well as the psychological compartmentalisation and alcohol and drug dependence that clouded her judgement. Ms Gordon stated this connection is reinforced by the fact her previous conviction for dishonesty offending may be viewed as part of the same spate of offending that coincided with her worsening health. It was submitted credit of at least 15 per cent would be appropriate for these personal circumstances, which would bring the end sentence just below 24 months' imprisonment. In those circumstances, Ms Gordon argued the sentence should be converted to one of home detention so that the rehabilitative and treatment steps outlined in Dr Lim's report could be undertaken. In this regard, it was noted Ms Hicks has currently spent three months in Christchurch Women's Prison.Respondent's submissions[21] For the Crown, Ms Bicknell submitted the Judge clearly intended to give the appellant three months' credit for personal circumstances. She argued it strains credulity and is inconsistent with the Judge's reasons to suggest the three months he imposed was a result of incorrect calculation and he actually intended to provide a 10 per cent discount.[22] Ms Bicknell accepted mental health issues may diminish the offender's culpability so as to justify a discount but that this will depend on the evidence that any such condition causally contributed to the offending. She accepted there is evidence here of a link to justify some credit but emphasised that the offending must be viewed in context. Despite her complex mental health difficulties Ms Hicks was, in the way the Judge analysed Dr Lim's report, able to function at a relatively high level at work and to engage in offending that was relatively complex (involving cancelling and creating fictitious invoices, and funnelling personal transactions through workaccounts), deliberate and sustained (occurring over some four years). Ms Bicknell submitted the three months' credit afforded took into account Ms Hicks' personal circumstances and was within range.Analysis[23] No issue was taken with the three-year starting point adopted by the Judge, nor the 25 per cent credit for early guilty pleas. They were clearly appropriate. Ms Hicks has one previous conviction in 2016 for a representative charge of theft by a person in a special relationship in the sum of $3,468. No issue is taken with the three-month uplift imposed for this history. Instead this appeal centres on whether the Judge erred in applying a three-month discount for the mitigating feature of Ms Hicks' personal circumstances.Discount applied following application of credit for guilty plea[24] In Moses v R, the Court of Appeal introduced a general two-step approach to sentencing, in which any guilty plea discount is fixed at the second step, replacing the previous three-step methodology.7 After calculating the starting point at the first step (incorporating the aggravating and mitigating features of the offence), the second step involves adjusting that starting point to incorporate the aggravating and mitigating factors personal to the offender, including any guilty plea discount, to reach the end sentence. The Court specified that "the court fixes all second-step uplifts and discounts by reference to the adjusted starting point" calculated at the first step. 8[25] In the District Court, the Judge deducted three months' credit for Ms Hicks' personal circumstances from the sentence that resulted after the 25 per cent guilty plea discount was applied to the starting point, that is as a third step. As the appellant identified, this approach was not consistent with the two-step methodology outlined in Moses but amounted to a third step in the sentencing process. Ideally, the Judge should instead have combined the discount he sought to apply for Ms Hicks' personal circumstances to the 25 per cent for guilty pleas to arrive at a global discount to be7 Moses v R, above n 6.8 At [47].deducted from the starting point. However, it is understandable why such an error would arise where the Judge was sentencing an appellant on the discrete grounds of her personal mitigating factors following a sentence indication which had been accepted.[26] In any event I do not find this to amount to a material error because the Judge here expressed the discount in terms of months rather than a percentage. The three months discount was clearly within range when expressed as three months or as eight per cent. It would be inappropriate to simply convert the three month discount imposed into percentage terms by reference to the starting point with the effect of increasing the discount provided. The Judge did not consider a causal nexus was established between Ms Hicks' mental and medical issues and her offending. On the basis of the Judge's assessment of the available evidence (which the appellant impugns as her second ground of appeal), it was arguably generous to provide a three-month discount for Ms Hicks' personal circumstances.Insufficient credit for appellant's personal circumstances[27] In submitting the Judge should have provided a larger (15%) discount for Ms Hicks' mental health, Ms Gordon relied on Dr Lim's psychiatric report.[28] Dr Lim recorded that Ms Hicks' offending coincided with a sudden deterioration in her health from 2015 to 2020. During this period, hospital records show she was admitted to hospital on numerous occasions for at least five different surgeries for various recurrent gastrointestinal conditions, including admission to intensive care. Ms Hicks reported feeling traumatised and stressed to the point of her brain being "fogged up". Throughout her outpatient treatment, she was prescribed Tramadol on which she became dependent. From 2015, Ms Hicks also reported engaging in heavy drinking. Ms Hicks said she stopped taking Tramadol in April 2020 but soon relapsed when she was hospitalised in 2021. She experienced chronic pains.[29] Ms Hicks reported to Dr Lim that since her major surgery she had developed depression and anxiety. She said her mood deteriorated further in late 2020 after her colleagues were made aware of her offending and she experienced abuse on social media. During this time, Ms Hicks also reported experiencing a re-emergence of post-traumatic stress symptoms (not to the extent of a disorder) derived from an incident of physical abuse at school. Ms Hicks reported that her father was a violent alcoholic and that he separated from her mother when Ms Hicks was aged nine. She said he left her feeling emotionally abused and neglected. However, her mother (67 years of age) is described as always emotionally attuned to her.[30] In explanation for her offending, Ms Hicks told Dr Lim she was under significant stress and financial pressure and used the stolen money for general living expenses. She said she realised her behaviour was wrong but she did not know how to stop.[31] Dr Lim opined it is clear Ms Hicks had been clinically depressed since 2016 and was experiencing chronic stress reaction from a number of personal events. Dr Lim concluded Ms Hicks was ignorant of her increasing dependence on Tramadol which, when used in combination with alcohol, potentially clouded her judgement. Dr Lim summarised his findings as follows:100. There is likely a genetic/familial pre-disposition to compulsivity and impulsivity. This contributed to [Ms Hicks'] quick descent into alcohol and tramadol dependency, somewhat beyond her control in the context of overwhelming stresses. As well there is a compulsive-obsessive element to her personality; and an addictive personality pattern. These traits similarly were accentuated in the context of stress such that she could not rationally stop her offending.101. The circumstances surrounding [Ms Hicks'] offending were no doubt complex. Essentially, she was under a tremendous amount of psychological stress, in significant physical pain, was clinically depressed, had her PTSD symptoms triggered; and was under financial pressure from having to pay for the household expenses, her mother's insurance and house mortgage. Her judgement was clouded by pain, psychological compartmentalisation and disconnection; and alcohol and tramadol dependence.[32] After thoroughly reviewing Dr Lim's report, the Judge arrived at the following conclusions:[33] What is incongruous about your offending is that it does not appear to have occurred because of an addiction. To say that you were in a fog and not in the right mind does not necessarily explain to me why you did this. To say that you were "just trying to live" also falls on deaf ears really. You were paid a salary. You had a good job. All of this appeared to go on extras.[43] I do not make light of that but what I am really struggling with in this report is to make a nexus between underlying psychological, if not, psychiatric conditions and your offending. The report is very full but it is largely on a medical basis. What you have in terms of depression, anxiety, and reference to PTSD, does not stop you functioning at a very high level. It does not stop you having the ability to hold down a very good job making business decisions and financial decisions. I really am struggling to see how this provides a causal nexus.[44] The report does lead me to understand something about your psyche and your make up but I do not understand it to be as resolute as many reports that I have read about the causes of the offending and the causal nexus. Having said that, you are entitled to a discount for those issues that occurred that may be relevant. On that basis, the discount I am prepared to give you is in the order of three months [33] Ms Gordon submitted the Judge reached these conclusions on the basis of adverse factual findings to Ms Hicks that were not open to him. She submitted the Judge erroneously concluded Ms Hicks was employed at a much higher level than was the case, and was in a position of sufficient privilege to use the funds she stole to finance an investment property. The latter finding was raised in relation to the Judge's remarks that "All of [the funds she stole] appeared to go on extras", 9 and "You and your husband were paying the house mortgage for a house that you and your mother had bought. So again, financing something not directly linked to your house." 10[34] The evidence discloses Ms Hicks was employed in an administrative capacity. The summary of facts records that Ms Hicks' role at Company A and Company B was to "deal with and process cash transactions" and to "maintain the company finances". The house Ms Hicks jointly bought with her mother is a residential rather than an investment property. The pre-sentence report states Ms Hicks, her husband and her children "had lived at their current address for around the last eight years, along with her mother, who is the owner of the property". Further, Dr Lim in his report referred to Ms Hicks and her husband paying a half share of the mortgage for the house.9 Police v Hicks, above n 1, at [33].10 At [40].[35] It is common ground that mental impairment can be a mitigating factor relevant to the offender's personal circumstances. As the Court of Appeal stated in E (CA689/10) v R: 11[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.[36] Further, in Shailer v R, the Court of Appeal held that: 12 mental health disorders may reduce offender culpability. As this Court noted in R v Nelson, sentencing has a moral base: "As such, mental disorder may mitigate moral fault and, accordingly, criminal culpability." Criminal legal responsibility is a juridical response to an offender's willed choice to offend. Mental health disorders diminishing that willed choice may also diminish the extent of the sentencing response. But a mental disorder without more cannot logically justify a reduction in the starting point of a sentence, based on diminished culpability, unless there is evidence of its causative impact on that culpability.[37] Therefore, mental health issues may mitigate offending by diminishing the offender's moral culpability, thereby diminishing deterrence, accountability and denunciation as sentencing concerns. But the weight to be given to that consideration will depend on evidence supporting the view that the condition contributed causally to the offending. 13[38] In the present case, it is clear Ms Hicks has experienced a significant deterioration in her mental and physical condition over the years including her offending. Her surgeries, complications and chronic pain led to her increasing dependence on Tramadol and alcohol which would likely have clouded her judgement. She was subject to emotional and financial stress that appears to have accentuated the compulsive and impulsive elements of her personality and re-triggered her PTSD11 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 (footnotes omitted), approved inFairbrother v R [2013] NZCA 340 at [33].12 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50] (footnotes omitted), referring to Nelson v R [2014] NZCA 121 at [22].13 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [46].symptoms. Certainly then, there is evidence of some link between Ms Hick's complex set of stressors and her offending to justify credit for her personal circumstances.[39] Nonetheless, in the circumstances of this case, I do not consider this evidence reaches the level of clearly establishing a causal impact to Ms Hicks' offending. The Judge's findings are cogent — despite the issues Ms Hicks was facing, she was able to consistently function in maintaining employment over a significant period and continuing to help care for her husband's children and manage the family finances. Her moves from one employer to the next were caused by the discovery of her thefts, not by her health (contrary to how she represented the situation to Company B). Although I accept the Judge may have overstated the level of responsibility of Ms Hicks' position at Company A by referring to her "making business decisions and financial decisions", this does not materially change the fact Ms Hicks chose to engage in relatively complex and sustained offending over a number of years, including at an entirely fresh employer's business about one month after completing an affidavit as to her frauds committed at Company A . The sophistication of Ms Hicks' offending is reflected in her decision to resign from Company A at a time when she was subject to a disciplinary process on account of her thefts, which enabled her to explain to her next employer (Company B) that she had an innocent reason for moving from Company A.[40] It does not appear to me the Judge placed any great weight on his erroneous reference to Ms Hicks spending the stolen money on an investment property in determining that no causal nexus was established.[41] I am satisfied the discount of three months (approximately 8 per cent) afforded for Ms Hicks' personal circumstances – where a causal nexus was not clearly established between her health circumstances and the offending – was appropriate and open to the Judge to adopt.A manifestly excessive sentence?[42] I remind myself that the focus on appeal is whether the end sentence imposed is manifestly excessive rather than the process by which the sentence is reached. 14 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. 15 Here, even if I had found the Judge had erred in his approach, I do not consider the end sentence reached of two years and two months' imprisonment was manifestly excessive or outside the range available to him in the exercise of his sentencing discretion.Order[43] I dismiss the appeal.Osborne JSolicitors:Public Defence Services, ChristchurchRaymond Donnelly & Co, Christchurch14 Ripia v R, above n 5, at [15]; and Tutakangahau v R, above n 4, at [36].15 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].