Abbott v The Queen - [2015] NZCA 181

IN THE COURT OF APPEAL OF NEW ZEALAND

CA154/2015
[2015] NZCA 181

BETWEEN	KARL JOHN ABBOTT Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	J A Westgate for Appellant Z R Hamill for Respondent
Judgment:	19 May 2015 at 2:30pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

Mr Abbott is a mechanic. His method of fixing the complainant’s automatic transmission was to leave the faulty one in place, say he had replaced it with a reconditioned unit, and bill the complainant (and his insurer) $966.
Unsurprisingly, the mechanical problem persisted. Unsurprisingly also, the complainant took the vehicle back to Mr Abbott. The problem continued. The complainant then took a claim to the Disputes Tribunal. But Mr Abbott won. In part, that was because he proved the replacement transmission by presenting the referee with a letter purporting to show purchase of a reconditioned unit from a third party. The letter was a concoction by Mr Abbott.
The frustrated complainant took the car to a new mechanic. He discovered the transmission numbers matched the vehicle. If a reconditioned transmission had been installed, match they would not. Mr Abbott’s fraud unravelled.
Mr Abbott was charged with two counts of dishonestly using a document, and one of attempting to pervert the course of justice. The former related to the invoice that he had presented to the complainant and his insurer; the latter to the concocted letter produced to the referee at the Disputes Tribunal.
Part way through a District Court jury trial before Judge Turner, Mr Abbott pleaded guilty to these charges and was sentenced to seven months’ home detention.[1]
[1]R v Abbott [2015] NZDC 4415.
He now appeals against that sentence.

Sentencing decision

Judge Turner took, as the lead offence, the charge of attempting to pervert the course of justice. He took the view that the starting point range for that offence should be between ten and 15 months’ imprisonment. The Judge opted for 12 months as his starting point. He uplifted that by four months for the two other charges of dishonestly using a document. He uplifted the sentence again by two months, because of Mr Abbott’s large number of prior convictions for dishonesty. At this stage, then, 18 months. Mr Abbott had offered to pay reparation of $3,000 for emotional harm to the victim, and to repay the insurer $766. The Judge accepted, contrary to the pre-sentence report, that some remorse was exhibited. The lateness of the guilty pleas enabled a discount of only five per cent for that. Taken together, a discount of three months was given. The net result was an end sentence of 15 months’ imprisonment. The Judge then commuted that to a sentence of home detention of seven months.

Appeal

Mr Westgate, appearing for Mr Abbott, did not contest the choice of lead offence, or the starting point of 12 months adopted for it. However he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v The Queen

Details

AGLC: Abbott v The Queen [2015] NZCA 181
Case: [2015] NZCA 181
Decision Date: 19 May 2015 at 2:30pm

CaseChat Overview and Summary

The case of Abbott v The Queen involves an appeal by Karl John Abbott against his sentence for charges of dishonestly using a document and attempting to pervert the course of justice. Abbott, a mechanic, had defrauded a customer by replacing a faulty transmission with another faulty one and charging for a replacement. When the fraud was discovered, Abbott had attempted to deceive a Disputes Tribunal referee with a fabricated letter. After a guilty plea, Abbott was sentenced to seven months' home detention. The Court of Appeal found no basis to alter the sentence. The starting point for the charge of attempting to pervert the course of justice was considered lenient, and the uplift for the other charges and for prior dishonesty was deemed appropriate. The discount for the guilty plea and remorse was considered generous.

The legal issues in this appeal centred on the appropriateness of the sentence imposed by the District Court. The appellant argued that the uplift for the additional charges and prior convictions was excessive, and that the discount for the guilty plea and remorse was insufficient. The Crown maintained that the sentence was fair and appropriate given the gravity of the offences. The Court of Appeal considered whether the starting point, the uplifts, and the discounts were correctly applied by the sentencing Judge.

The Court of Appeal held that the starting point of 12 months for the charge of attempting to pervert the course of justice was lenient, and that a starting point of 18 months would have been more appropriate. The Court also found that the uplifts for the other charges and prior convictions were orthodox and appropriate. The discount for the guilty plea and remorse was considered generous, but the Court found that the ultimate sentence of seven months' home detention was appropriate. The Court emphasised that appeals against community-based sentences should not be encouraged.

The appeal against sentence is dismissed. The sentence of seven months' home detention remains in place.

Orders