Godfrey Lado v R
| Jurisdiction | New Zealand |
| Judge | Brewer J |
| Judgment Date | 13 December 2019 |
| Neutral Citation | [2019] NZCA 646 |
| Court | Court of Appeal |
| Docket Number | CA633/2018 |
| Date | 13 December 2019 |
[2019] NZCA 646
Courtney, Brewer and Gendall JJ
CA633/2018
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Sentencing — appeal against refusal to grant a discharge with conviction — dishonestly using a document — breach of trust with employer — effect on future employment — Sentencing Act 2002
S K Green for Appellant
E J Hoskin for Respondent
The appeal is dismissed.
(Given by Brewer J)
Ms Godfrey Lado was found guilty by a jury on two charges of dishonestly using a document, one of which was a representative charge. 1 At sentencing, Judge Ronayne refused Ms Godfrey Lado's application to be discharged without conviction. 2 He sentenced her on both charges to six months' community detention
Ms Godfrey Lado now appeals the refusal to discharge her without conviction. 4
Ms Godfrey Lado's case is that the Judge regarded her unfairly which led to a sentence which is manifestly excessive, but that if all the circumstances are properly considered a discharge without conviction is the appropriate sentencing outcome.
We will first consider whether the sentence is manifestly excessive before deciding whether Ms Godfrey Lado should have been discharged without conviction.
A sentence which is manifestly excessive is one imposed in error for which a different sentence should be imposed. 5 If we find the Judge's sentence is manifestly excessive then we must allow the appeal and set aside or vary the sentence, or remit the matter back to the lower Court for resentencing. 6
As to discharge without conviction, the law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. 7 The test is set out in s 107 of the Sentencing Act 2002:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
The threshold under s 107 is high. It is not enough to satisfy the court that the consequences of a conviction would be disproportionate to the gravity of
To apply the test properly, the court must (as did Judge Ronayne) conduct a three-step analysis: 8
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(a) First, assess the gravity of the offence. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.
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(b) Second, determine the direct and indirect consequences of a conviction for the offender. There must be a “real and appreciable” risk that any given consequence will happen. 9
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(c) Third, determine whether those consequences are out of all proportion to the gravity of the offending.
The two charges of using a document for pecuniary advantage which the jury found proved related to Ms Godfrey Lado's employment.
In brief, Ms Godfrey Lado was employed in August 2015 as an office administrator for a company. Part of her role involved ordering office and kitchen supplies and ensuring proper stocks were maintained. Ms Godfrey Lado's employer, for that purpose only, gave her access and authority to use a company credit card. Within a short time, Ms Godfrey Lado started to use the company credit card to purchase items for herself.
An audit undertaken by the managing director of Ms Godfrey Lado's employer found Ms Godfrey Lado had used the company credit card to purchase items for
On 27 January 2016 Ms Godfrey Lado ordered a laptop valued at just over $2,000. The laptop was delivered, and Ms Godfrey Lado kept it for herself at her home. Ms Godfrey Lado forged the managing director's signature on purchase documentation. Ms Godfrey Lado denied to her employer that she had possession of the laptop. However, it was found on 25 June 2017 when police executed a search warrant at her home.
At trial Ms Godfrey Lado denied using the company credit card for personal purposes. She gave evidence attempting to justify each item of expenditure. As to the laptop, Ms Godfrey Lado conceded she had lied to her employer about having it but claimed she had an honest belief she was entitled to acquire and keep the laptop. The jury rejected her evidence, and it is apparent the Judge concurred with the jury.
The Judge found the following aggravating features of the offending:
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(a) The offending involved a breach of trust. 10 Ms Godfrey Lado was trusted by her employer to use the company's credit card honestly in the course of her employment.
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(b) The offending was “planned, premeditated and repetitive”. 11 It spanned a course of months.
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(c) The offending in relation to the laptop extended to Ms Godfrey Lado forging the signature of the managing director. 12
The Judge did not accept Ms Godfrey Lado displayed remorse or any real insight into her offending. 13 He accepted the pre-sentence report assessment that Ms Godfrey Lado's risk of future harm was low but queried the assessment she was at low risk of reoffending. 14
The Judge adopted a starting point of 12 months' imprisonment. 15 He reduced the starting point by one month to reflect Ms Godfrey Lado's prior good character (she had no previous convictions). 16
The Judge considered whether he should commute the sentence to one of home detention but decided that would be inappropriate because a sentence of home detention would prevent Ms Godfrey Lado from working. 17 It was on that basis the Judge commuted the sentence of 11 months' imprisonment to one of six months' community detention, 12 months' supervision and 80 hours' community work. 18
Ms Green for Ms Godfrey Lado submits the sentence is manifestly excessive because:
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(a) Ms Godfrey Lado was a first offender.
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(b) The monetary value of the offending was relatively low.
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(c) Ms Godfrey Lado repaid her employer the $654 and the employer also gained possession of the laptop.
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(d) Ms Godfrey Lado had a difficult and vulnerable childhood. She came to the country as a child refugee. Her mother had mental health difficulties which led to her being incarcerated, forcing Ms Godfrey Lado to leave school to look after her siblings.
In Ms Green's submission, the starting point should have been one of community detention leading to an end sentence of community work. Ms Green's submission is also that the Judge was influenced in reaching his sentence by the way he unfairly regarded Ms Godfrey Lado.
We will discuss Ms Green's criticism of the Judge's attitude towards Ms Godfrey Lado when we consider whether Ms Godfrey Lado should have been discharged without conviction. On a sentence appeal, the decisive inquiry is whether the sentence is manifestly excessive.
We accept the aggravating features identified by the Judge. On that basis the starting point of 12 months' imprisonment was appropriate. It is consistent with Rako v R, in which this Court upheld an 18 month starting point for 11 charges of using a document to obtain approximately $1,800 from a tourist Mr Rako had befriended. 19 The Court recognised: 20
… a starting point in a range from 12 to 18 months' imprisonment has been applied where credit or debit cards are unlawfully used on multiple occasions resulting in losses of the order of $2,000 to $6,000…
The Judge was entitled to decline a discount for remorse. The comments made by Ms Godfrey Lado to the writer of the pre-sentence report and the affidavit she filed make it clear she does not accept her culpability.
The offending took place over a period of about 10 months. Ms Godfrey Lado dishonestly used the credit card on multiple occasions over that time. Nevertheless, the Judge discounted the starting point by one month to recognise Ms Godfrey Lado's prior good character. This was appropriate.
We accept that although the Judge referred to Ms Godfrey Lado having repaid the value of the items she acquired dishonestly and to the laptop having been
In our view, the Judge properly decided that in all the circumstances a sentence of home detention would have been excessive. The Judge took into account the importance of Ms Godfrey Lado being able to keep working and so ended with a sentence of community detention plus supervision and a moderate amount of community work. The end sentence is not manifestly excessive. This was moderately serious offending and the charges carried maximum terms of imprisonment of seven years. To go below community detention and settle on a sentence of community work, as Ms Green submits the Judge should have done, would be to fail to recognise the seriousness of the offending. This is particularly so given Ms Godfrey Lado's refusal to accept responsibility for her offending and to blame, in part, her employer's managing director.
It follows that the sentence imposed was not manifestly excessive.
As we have said, Ms Green submits that the Judge, through his comments at sentencing, treated Ms Godfrey Lado unfairly. That is to say, he took an...
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