Anderson v R - [2017] NZCA 91

IN THE COURT OF APPEAL OF NEW ZEALAND

CA329/2016
[2017] NZCA 91

BETWEEN	PAUL CHARLES ANDERSON Appellant
AND	THE QUEEN Respondent

CA359/2016
BETWEEN	SHANE ANTHONY HARVEY Appellant
AND	THE QUEEN Respondent

Hearing:	23 February 2017
Court:	French, Mallon and Duffy JJ
Counsel:	P J Shamy for Appellant Anderson C D Eason for Appellant Harvey M L Wong for Respondent
Judgment:	28 March 2017 at 2.30 pm

JUDGMENT OF THE COURT

The appeals against sentence by both appellants are dismissed.

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REASONS OF THE COURT

(Given by Duffy J)

Messrs Anderson and Harvey were associates in an extensive car theft operation. Mr Anderson, who committed additional offending, received a total sentence of five years’ imprisonment and Mr Harvey was sentenced to two and a half years’ imprisonment.[1] Each now appeals against his sentence.

Facts

[1]R v Anderson [2016] NZDC 12086; and R v Harvey [2016] NZDC 12084.

This operation involved the theft of vehicles by Mr Anderson, Mr Harvey or both, and the provision by Mr Anderson of a market for the stolen vehicles and vehicle parts. Once the vehicles were obtained or received, they would remove and replace the vehicles’ identifiers with those from other vehicles. Distinctive features of the vehicles were removed or switched with those of other vehicles to disguise their identity. The offending involved premeditation. Sometimes the appellants would specifically target vehicles at the request of others.

The charges against Mr Anderson

Partway through a jury trial Mr Anderson pleaded guilty to three charges of theft. The theft charges concerned a 1994 Nissan Terrano, value $7,000; a 1997 Toyota Hilux, value $4,000; and a 1987 Toyota Hilux, value $3,500.[2] He also pleaded guilty to three charges of receiving stolen property. These charges concerned a 2001 Toyota Hilux, value $10,000; a 1990 Toyota Hilux, value $8,500; and a mobile cabin, which contained furniture and linen, total value $19,000.[3]
[2]Crimes Act 1961, ss 219 and 223(b). The maximum penalty for this category of theft (property worth over $1,000) is seven years’ imprisonment.
[3]Sections 246 and 247(a). The maximum penalty for this category of receiving stolen property (worth over $1,000) is seven years’ imprisonment.
Mr Anderson was also charged with arson as a result of him and an associate intentionally setting the Nissan Terrano alight to “get rid” of it, according to text messages obtained by police.[4] The burning vehicle was parked at the start of a driveway to a residential property near the place where many of the stolen vehicles were stored. Mr Anderson pleaded guilty to this charge.
[4]Section 267(1)(b). The maximum penalty for this category of arson is 14 years’ imprisonment.
Finally, there was a charge of obtaining by deception which arose out of a false insurance claim made by an associate of Mr Anderson.[5] Together, they had agreed that the associate would claim his vehicle had been stolen when in fact he was giving it to Mr Anderson. Police located the vehicle at Mr Anderson’s address, where its number plates had been removed and replaced…

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 Anderson v R

Details

AGLC: Anderson v R [2017] NZCA 91
Case: [2017] NZCA 91
Decision Date: 28 March 2017

CaseChat Overview and Summary

In this case, Paul Charles Anderson and Shane Anthony Harvey appeal against their respective sentences for their involvement in a large-scale car theft operation. Each appellant was found to have stolen vehicles and participated in the removal and replacement of vehicle identifiers to disguise their identity. Anderson and Harvey were convicted and sentenced to five and two-and-a-half years' imprisonment, respectively. The primary legal issue before the court was whether the sentences imposed were manifestly excessive. The court considered the nature and extent of the offending, the appellants' criminal history, and any mitigating factors. The court also considered the sentencing structure and whether the Judge had appropriately applied the principles of sentencing in New Zealand.

The Court of Appeal found that the Judge's methodology in sentencing Anderson was not ideal, as the theft and receiving charges should have been the lead offences, with the arson charge being an aggravating factor. However, the Court of Appeal concluded that the end sentence was not manifestly excessive, as the gravity of the offending warranted a starting point of three years' imprisonment, with uplifts of 12 months each for the arson and other dishonesty offences. The court found no merit in Anderson's argument that he deserved a discount for improved behaviour over the last 10 years, as his continued involvement in dishonesty offending negated any credit he might have received. In the case of Harvey, the Court of Appeal found that the Judge's starting point of two-and-a-half years' imprisonment was appropriate for the level of offending, and the uplift for criminal history was properly adjusted for totality and restrictive bail conditions. The court dismissed both appeals against sentence.

The final orders of the Court of Appeal were that the appeals against sentence by both appellants, Anderson and Harvey, are dismissed.

Orders