STEPHANIE ANN ELMIGER v R [2019] NZHC 1238

STEPHANIE ANN ELMIGER v R [2019] NZHC 1238IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-000030[2019] NZHC 1238BETWEEN STEPHANIE ANN ELMIGERAppellantAND THE QUEENRespondentHearing: 2 May 2019Appearances: J P Temm for the AppellantA McConachy for the RespondentJudgment: 4 June 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 4 June 2019 at 10.00 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/SolicitorsJ P Temm, Barrister, RotoruaGordon Pilditch, Rotorua[1] This is an appeal against conviction and sentence.[2] The appellant, Stephanie Elmiger, was found guilty, following a Judge-alonetrial before Judge Snell, of 211 charges of theft by a person in a special relationshipunder s 220 of the Crimes Act 1961 (the Act). The total amount found to have beenstolen between 12 November 2013 and 29 June 2016 amounted to $140,654.42.[3] The appellant was sentenced to two years, eight months' imprisonment. TheJudge also ordered reparation of $190,594.17, being the full amount taken of$140,654.42 plus the costs relating to forensic accounting services paid for by thevictim company. Judge Snell declined to order reparation in terms of interest chargesof $23,718.00.[4] Ms Elmiger raises two grounds of appeal against conviction and four groundsof appeal against sentence. A third ground on the conviction appeal (that the trialJudge gave undue weight to Crown evidence, diminished the defence evidence, andshowed impartiality), was not pursued further.Legal principlesAppeal against conviction[5] An appeal against conviction must be allowed if the Court is satisfied that:1(a) the Judge erred in his or her assessment of the evidence to such anextent that a miscarriage of justice has occurred; or(b) in any case, a miscarriage of justice has occurred for any reason.[6] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that has created a real risk that the outcome of the trialwas affected or has resulted in an unfair trial or a trial that was a nullity.21 Criminal Procedure Act 2011, ss 232(2)(b) and (c).2 Section 232(4).Appeal against sentence[7] On an appeal against sentence, the Court must allow the appeal if satisfied thatfor any reason there is an error in the sentence imposed on conviction, and that adifferent sentence should be imposed.3[8] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.4 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.5[9] The Court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles.6 The focus is on theend result, rather than the process by which the sentence was reached.7[10] In exceptional cases, it may nonetheless be necessary to correct a sentence thatis within range (for example, where there has been an arithmetical error).8 In any othercase, the Court must dismiss the appeal.9Grounds of appeal against conviction[11] The two grounds advanced with regard to conviction are:(a) Change of election under duress.(b) Misinterpretation and therefore misdirection regarding s 220(1) of theAct.Duress[12] The trial was originally scheduled to commence with 435 charges before a jury.3 Criminal Procedure Act 2011, s 250(2).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].5 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].6 Tutakangahau v R, at [36].7 At [36].8 At [36].9 Criminal Procedure Act 2011, s 250(3).[13] Mr Temm submits that the defendant was placed under duress or unfairpressure as a result of a very strong indication from the trial Judge on the morning ofthe trial that the number of charges was oppressive and overwhelming for a jury andthe trial could not proceed on that basis. The Judge also strongly indicated the trialwould need to be broken into portions. Mr Temm says that left his client with nochoice but to change her election from trial by jury to trial by Judge alone. He submitsthat was a breach of s 25 of New Zealand Bill of Rights Act 1990, which speaks of afair trial by an independent and impartial Court. That then led to proceduralunfairness, which resulted in a miscarriage of justice.[14] It was unclear to me whether Mr Temm was contending that the Judge hadmade a ruling that the trial would not proceed by jury with the full set of charges.However, Mr Temm clarified that he did not contend there was a ruling. Rather, hesays the Judge gave a strong indication he intended to make such a ruling. I agreewith that assessment. There is therefore no separate question of any appeal against aruling made, or whether the Judge was correct or not in his assessment of the relevantauthorities.[15] On the material before me, while I agree the defendant was placed in a difficultposition, I do not consider there was duress or unfair pressure. The Judge's Minutedated 6 August 2018 expressly records that the Judge was "at pains to emphasise to[Mr Temm] that he could have as much time as he liked as the trial would notcommence today". Mr Temm is a competent and experienced counsel, and afteradvice from him, the decision was made to change the election so that the trial couldproceed in full, but before the Judge alone. That seems an entirely understandabledecision.[16] Perhaps more importantly, I have read Judge Snell's Verdict Judgment andconsider it is thorough and careful. Over half of the charges were dismissed. There isnothing to suggest there was a miscarriage of justice because of duress or unfairpressure.[17] I therefore reject this ground of appeal.Section 220(1) of the Crimes Act 1961[18] The charges were all laid under s 220(1) of the Act. This section relates to thecharge of theft by a person in a special relationship.[19] Section 220(1) applies to any person who has received or is in possession of,or has control over, any property on terms or in circumstances that the person knowsrequire the person – (a) to account to any other person for the property or for anyproceeds arising from the property; or (b) to deal with the property, or any proceedsarising from the property, in accordance with the requirements of any other person.[20] Mr Temm submits that the trial Judge conflated (a) and (b), did not make adistinction in law as required, and that some of the circumstances do not give rise toan obligation requiring an accounting. He says it was correct for the Judge to referonly to "dealing with the property" where the charge related to assets other thanmoney, for example, charge 435 relating to effective writing-off of a Ford Utility motorvehicle, but the majority of the charges related to monetary sums and should have beenboth charged and considered under (a), in terms of whether the defendant had anobligation to account to any other person.[21] The charges are all framed under s 220(1)(b), that is "dealing with" property.Further, it seems clear that the charges were properly framed, as the distinctionbetween (a) and (b) is not between a charge relating to a monetary sum and a chargerelating to some other asset type, but rather it is a distinction between receiving moniesor other assets for which you were required to account to another party and dealingwith money or assets that were already held by that party. All of the charges relatedto the latter and therefore fell under s 220(1)(b). The Judge therefore only had to referto that provision and the requirements under it.[22] Mr Temm properly conceded that he could not take that point any further.[23] As a second part of his submission under s 220 of the Act, Mr Temm said that,in terms of s 220(4), the Judge had to address with regard to each charge whether thecircumstances required the defendant to act in accordance with any requirements ofanother person. He points to the Judge recording at [2](b) that this point had to beproven. He then submits that nowhere in the judgment does the Judge turn his mindto whether the defendant had an obligation to follow the requirements of anotherperson.[24] It is correct that the Judge does not make an express finding in this regard. Herecords that Ms Elmiger was an employee of the Central Motor Group Ltd. It wouldfollow as a matter of law that she had an obligation to follow requirements of heremployer and therefore could not do anything for which she did not have authority,whether express or implied. For each category of charges, the Judge then correctlyconsiders whether Ms Elmiger had authority. If she did not have authority, then itfollowed she had "an obligation to follow the requirements of another person".[25] Mr Temm accepts that, in the early period covered by the charges, when theappellant was working as an accounts clerk, Ms Elmiger would have had an obligationto follow the employer's requirements. He submits however that she later became thebusiness manager and then general manager and she had implied authority to act insome circumstances and in those instances she was not required to act "in accordancewith the requirements of any other person".[26] The only example to which Mr Temm refers expressly is the charge relating tothe Ford Utility. He says in relation to dealing with that motor vehicle, Ms Elmigerwas not required to report to anyone. She had authority to dispose of it in terms ofimplied authority arising out of her position as, either business manager or generalmanager, whichever she then was. However, the Judge expressly says at [171] thatMs Elmiger did exceed her authority. Also, it was not so much a matter of Ms Elmigernot being required to report to anyone that she had disposed of the vehicle, but ratherthat she did not have authority to then write the vehicle off in the books, which iseffectively what happened.[27] As I say, that was the only example given by Mr Temm with regard to thissubmission. He said that I did not need to work through the judgment to look at eachof the charges to see whether his submission was borne out on each.[28] The Crown submits that the Judge did not overlook the question of whether theappellant had implied or inherent authority in some circumstances, noting that theJudge dismissed several of the charges for that reason. The Crown points to [69] ofthe Verdict Judgment where, under the heading, "Did Ms Elmiger have inherentauthority by definition of her position within the company and was not required toaccount", the trial Judge found that, as a matter of fact, the appellant was given a widerange of power to run the company in Mr Blakeney-Williams' absence. He consideredthat, for some of the charges, she had either implied authority by reason of her position,and/or at the very least she would have had a reasonable belief that she had thatauthority. The trial Judge therefore dismissed a number of the charges for that reason,finding that the Crown had not proved that certain transactions amounted to theft by aperson required to account.[29] As such, in his decision, the trial Judge clearly did take into accountMs Elmiger's position of authority and considered that in relation to certaintransactions, she had implied authority as a result of her position. This was in the faceof evidence from Mr Blakeney-Williams that he did not give her permission to spendthe money that she did. It seems clear therefore that the Judge expressly consideredwhether and in what circumstances the appellant had implied authority.[30] I therefore also reject the second ground of appeal against conviction.Appeal against sentence[31] The four grounds of appeal are:(a) The starting point of three years and two months' imprisonment wastoo high.(b) The deduction of 16 per cent for personal mitigating factors was toolow.(c) The order by way of reparation that Ms Elmiger pay the victimcompany's private forensic accounting fee was wrong in principle andin law.(d) The Judge "did not reflect positive aspects of a pre-sentence report andrejected a recommendation in the pre-sentence report of homedetention".Starting point[32] Both counsel agree in terms of the starting point that Mackley v Police,10 a casewhich the District Court Judge himself located and referred to, is the most comparableof the cited cases. That was a decision of this Court on appeal. The Court adopted astarting point of three years, six months. The sum of money at issue was greater inMackley ($173,318 compared to $140,654), but the other factors viewed overallindicated a similar level of culpability to here. On that basis it would be difficult toargue with the starting point the Judge adopted here of three years, two months.[33] However, after considering the cases referred to me by counsel, I have decidedthat the fact there has been full reparation should be taken into account in the startingpoint. The reparation was involuntary, granted, but it still reduces the harm sufferedby the victim, which is a material factor in the overall seriousness of the offending.11In R v Patterson, the Court of Appeal commented, "fraud offending where no recoveryis achieved is 'more serious' than fraud offending with complete recovery, if onlybecause in the latter case the victims' loss is transitory and not permanent".12[34] The Court of Appeal also wrote that involuntary reparation, as is the case here,should most logically be taken into account when setting the starting point, not as amitigating factor, the latter being the Judge's approach here.13 Although the Judge didset the starting point here at four months less than Mackley, I consider a moreappropriate starting point would have been two years and 10 months to adequatelyreflect the fact the victim suffered significantly less financial harm than the sum of$140,654. That full amount will be repaid, as will the full forensic fee, which I referto subsequently. The victim still suffers loss because of the effect on the business of10 Mackley v Police [2014] NZHC 1561.11 Sentencing Act 2002, s 9(d).12 R v Patterson [2008] NZCA 75 [41].13 At [41].money being taken over time and no interest has been ordered, but there is neverthelesssignificant reparation.Discount for mitigation[35] By way of mitigation, the Judge took into account that the appellant was a firstoffender; had spent 18 months on bail with no breach; had paid full reparation; therewere personal character references of some moment; there were personal familyimpact matters and the appellant had, in any event, suffered an overall "fall fromgrace". I would add that over half of the charges the appellant faced were dismissedduring the trial or she was found not guilty.[36] Mr Temm submits the discount was too low.[37] I would have agreed that the discount was too low given the number of factorsto be taken into account, all of which the Judge accepted were relevant.[38] However, with reparation not taken into account as a mitigating factor, andinstead reflected in the starting point, I consider the discount is at about the right level.[39] So, taking the adjusted starting point of two years and 10 months, with adiscount of 16 per cent, the sentence comes to two years and four months'imprisonment.[40] This is a difference of four months from Judge Snell's sentence of two yearsand eight months. I consider this is sufficient of a difference to conclude that thesentence is manifestly excessive. I would therefore allow the appeal in this respect.[41] This still does not, however, lead to the sentence being reduced to the two yearsthat Mr Temm submits it should be so that home detention could be considered.Reparation[42] I turn to the matter of reparation in terms of the private forensic accounting fee.[43] Under s 32(1)(c) of the Sentencing Act 2002, the Court can order reparationfor loss consequential on emotional harm, if the offender has caused the victim tosuffer.[44] While that does not enable the Court to order payment of a forensic accountingfee that might have been paid by the Crown, it does enable the Court to orderpayment of a forensic accounting fee incurred by the victim. The victim here wasMr Blakeney-Williams/his company. The company incurred the fee.[45] The order made was therefore available as a matter of law which answers partof Mr Temm's submission.[46] In terms of principle, Mr Temm submitted that, even if the reparation order forthe accounting fee could be made, it should be as to something less than 50 per centof that fee, as something less than 50 per cent of the charges laid were ultimately thesubject of convictions.[47] However, once cause for suspicion was raised, which clearly occurred inrespect of the matter of the charge relating to the car, it was a reasonable next step toconduct a forensic investigation to see what other matters there might be. Thatrequires an investigation across the board. Without that, it would be a pointlessexercise. Even to identify and succeed on the number of charges the Crown did, a fullinvestigation was required.[48] I would see some force in Mr Temm's argument if only a small percentage ofthe charges laid were proven, or if the investigation were found to be faulty in materialrespects, but neither of those applies here.[49] In those circumstances, I do not agree that the fee should only be reimbursedas to 50 per cent and consider the reparation order should stand. The reparation orderis also a factor I have taken into account in my decision to allow the sentence appeal.Conclusion[50] The appeal against conviction is dismissed.[51] The appeal against sentence is allowed, and the sentence is reduced totwo years and four months' imprisonment.[52] The reparation and associated orders stand.-----------------------------------------------------------Hinton J