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Six years after a $12,000 theft from his then employer, 37-year-old Richard James Crooks has escaped conviction because of the disproportionate consequences for other people working for his present employer.
Counsel Sally McMillan told Judge Stephen Coyle in the Dunedin District Court yesterday a theft conviction would affect the defendant's ability to travel overseas.
If he could not travel, Crooks would automatically lose his job. He would then be unable to support his wife and child in Venezuela and could not go there to be with them.
A conviction would also mean the company for which he now worked would be unable to continue its international sales for which Crooks was responsible. The resulting loss of income would mean several other staff would also lose their jobs, Ms McMillan said.
Crooks pleaded guilty earlier this year to offending committed between June 23, 2006 and November 4 the following year when he sold 34 of 328 water blasters bought from a Chinese company.
He had used the business account of his Hastings employer, JB Holdings, to buy the water blasters then sold them on his own account on Trade Me for varying amounts.
He kept the $12,753.02 from the sales because he was "in deep financial difficulty".
When the director of JB Holdings contacted him, Crooks admitted what he had done, expressed his remorse and said he would repay the money. But he had made only four payments totalling $525 when he was charged, the court heard.
Ms McMillan said the balance of the money - $12,138.02 was available in her firm's trust account.
Judge Coyle took into account the wider interests of the community, the need for strong denunciation and deterrence and the ongoing abuse of a position of trust. But he said the case had to be considered on "its own merits and unique circumstances". A conviction would also have consequences for the defendant's wife and son, although that was often the case in such matters.
What tipped the matter for him was that fact that, if Crooks lost his job, so too would other members of staff.
"That, to me, is a disproportionate consequence," the judge said.
Crooks had been in a difficult financial situation at the time of the offending and tried to get out of it by taking property which was not his and selling it. Such behaviour had to be denounced.
But the judge accepted the defendant now had a good job, was supporting his wife and son and could pay reparation in full so the harm to the company could be reimbursed.
The director of the company had been understandably hurt by the breach of trust and was clearly disillusioned with the defendant's character. Crooks had promised to pay over time but did not start paying until he was charged. Had he repaid the money voluntarily, he probably would not be in the situation in which he found himself.
It would be a disproportionate consequence to the gravity of Crooks' offending for other innocent members of his present employer's staff to lose their jobs, Judge Coyle said.
He discharged Crooks without conviction, fined him $1000, court costs $132.89, and ordered reparation of $12,138.02 to be paid within seven days.