(Given by White J)
[1] Janine Mears pleaded guilty in the District Court at Dunedin to three charges of theft by a person in a special relationship, one charge of dishonestly using a document with intention to obtain pecuniary advantage and one charge of forgery. She was sentenced by Judge MacAskill to a total of four years and three months imprisonment with a minimum period of imprisonment of two years.[1]
[2] Mrs Mears appeals on the grounds that the sentence for the most serious theft charge of four years imprisonment was manifestly excessive and that the Court should not have imposed a minimum period of imprisonment. She does not challenge the cumulative sentence of three months imprisonment for the forgery charge. Concurrent sentences of nine months, six months and two years imprisonment were imposed on the other theft charges.
[3] Over a six year period, Mrs Mears fraudulently stole $380,000 from a small business where she was employed as credit controller. She used four methods: on 490 separate occasions she changed the payee on cheques payable to her employer to her own name; on 41 occasions she arranged for customers who used internet banking to pay into her own bank account; on 26 occasions she stapled customers eftpos receipts onto accounts that were in her familys name, thereby avoiding paying for debts incurred in relation to her family; and she failed to account for numerous sums of cash given to her by customers. These four methods gave rise to three charges of theft by a person in a special relationship and the charge of dishonestly using a document with intention to obtain pecuniary advantage, which related to the misuse of eftpos receipts.
[4] As a result of the thefts, Mrs Mears employers lost their business and their financial security. Other employees also lost their jobs.
[5] While the theft charges were under investigation, Mrs Mears bank froze one of her accounts. Shortly before her sentencing, she forged a letter and signatures on Public Defence Service letterhead advising that the criminal matter had been resolved and the frozen funds could be released. This led to the forgery charge, to which Mrs Mears pleaded guilty on the day of the sentencing.
[6] In sentencing Mrs Mears, Judge MacAskill took into account the devastating effects of the offending on the family who owned the small business and their employees. The Judge also noted that Mrs Mears knew her actions were causing serious financial difficulties, describing her thieving as œcalculated and callous?.[2]
[7] Judge MacAskill did not consider Mrs Mears could expect any consideration for her personal circumstances in view of the nature of her offending. The ill-health of her husband was no doubt caused or contributed to by her offending.
[8] In setting a starting point of four years, six months on the lead charge (the cheque offending), the Judge took into account the period of the offending, the number of transactions, the continuing premeditation, the extent of loss and the fact that it was unrecoverable, the abuse of trust and authority, the absence of any explanation by Mrs Mears, and the impact of the offending on the victims.
[9] A six month (11 per cent) discount was allowed for very late guilty pleas in respect of the four earlier charges, entered shortly before the scheduled five day trial was to commence. The Judge noted that guilty verdicts were inevitable and that no remorse had been shown by Mrs Mears.
[10] Judge MacAskill imposed the minimum period of imprisonment of two years to reflect the harm done and to denounce Mrs Mears conduct and deter her from committing the same or similar offences. The Judge also took into account that the forgery offence was committed while Mrs Mears was awaiting sentence.
[11] Ms Saunderson-Warner submits that the starting point of four years, six months imprisonment was manifestly excessive because the Judge was wrong to take into account the absence of any explanation from Mrs Mears and that relevant authorities required a starting point of no more than four years.[3]
[12] As Ms Saunderson-Warner recognises, however, there is no guideline judgment for fraud sentencing. The correct approach is set out in this Courts decision in R v Varjan:[4]
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 the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[13] The authorities relied on by Ms Saunderson-Warner confirm that culpability in cases of this nature will depend on their particular circumstances. We agree with Ms Cooke that here some guidance may be obtained from the decision of this Court in R v Davis where a starting point of four years imprisonment was upheld as within range.[5] In Davis a trusted office manager with a degree of autonomy and access to accounts stole $277,826.99 over five years through dishonest transactions and also overpaid herself $14,460. Ms Davis, unlike Mrs Mears, was suffering from depression and was able to repay $87,991.18.
[14] Here we are satisfied that the starting point of four years, six months imprisonment adopted by Judge MacAskill was also within range, taking into account in particular the amount stolen, the number and range of dishonest transactions, the serious breaches of trust involved and the devastating impact on the victims. The absence of any explanation from Mrs Mears was relevant because it confirmed that her motivation appeared entirely personal.
[15] The absence of any relevant personal mitigating circumstances and any remorse on the part of Mrs Mears meant that the only relevant discount was the six months for her guilty pleas. Bearing in mind the strength of the Crown case, the lateness of the guilty pleas, and the absence of any remorse on the part of Mrs Mears, the 11 per cent discount might be viewed as generous in this case, since credit given for guilty pleas should reflect the circumstances in which a plea is entered and what they indicate about acceptance of responsibility for offending.[6] Mrs Mears persistent dishonesty over a period of six years precluded any credit for good character.[7]
[16] We are therefore satisfied that the final sentence of four years, three months imprisonment was not manifestly excessive.
[17] We are also satisfied that there is no reason to set aside the minimum period of imprisonment imposed by Judge MacAskill. We agree with Ms Cooke that the level of Mrs Mears culpability was sufficiently high to come within the scope of s 86 of the Sentencing Act 2002. The absence of any remorse or reparation and the commission of the forgery offence while awaiting sentence confirmed the need for a sentence of deterrence in this case.
[18] Mrs Mears appeal against sentence is dismissed.
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[1] R v Mears DC Dunedin CRI-2012-012-866, 27 September 2013.
[2] R v Mears, above n 1, at [14].
[3] R v Davis [2009] NZCA 26; Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2009; R v ODowda DC Dunedin CRI-2009-012-6707, 19 February 2010; R v Scott DC Invercargill CRI-2009-025-2673, 24 September 2009; Police v Bullen DC Tauranga CRI2008-070-9461, 10 March 2009; Sahib v Police [2012] NZHC 3324; Mitha v Police HC Auckland CRI-2006-404-266, 28 September 2006; Bayly v R [2013] NZCA 520; R v Prestney CA204/02, 1 October 2002; and DVillers v R [2010] NZCA 85.
[4] R v Varjan CA97/03, 26 June 2003 at [22].
[5] R v Davis, above n 3.
[6] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [65] and [73]“[74].
[7] Alison v R [2013] NZCA 244 at [51].