Anderton v Police - [2018] NZHC 437

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-3

[2018] NZHC 437

BETWEEN
JOSHUA KENNETH ANDERTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 March 2018

Appearances:

G Prentice for Appellant M Dillon for Respondent

Judgment:

14 March 2018

JUDGMENT OF TOOGOOD J

Anderton v New Zealand Police [2018] NZHC 437 [14 March 2018]

Introduction

[1] Joshua Kenneth Anderton, aged 23, pleaded guilty to 34 dishonesty related charges including causing loss by deception (involving over $1,000),1 causing loss by deception (involving $500 to $1,000),2 obtaining by deception (involving $500 to
$1,000),3 obtaining by deception (involving over $1,000),4 accessing a computer system for a dishonest purpose,5 and making a false statement to police.6

[2] Mr Anderton was sentenced by Judge T R Ingram in the Hamilton District Court to 18 months’ imprisonment.7 He now appeals against the Judge’s refusal to convert the prison sentence to one of home detention.

The offending

[3] The events giving rise to the charges extended to well over a year. The nature of the offending is apparent from the charges which speak, somewhat eloquently, of Mr Anderton’s lying and deceptive behaviour. Most of the charges arise out of transactions on TradeMe or other online trading platforms. Mr Anderton advertised items for sale using a number of different accounts and bank accounts. On one occasion, he accessed and changed his mother’s TradeMe password and began fraudulently trading from her account. In each case, he received payment but provided no goods to any of the buyers. The total amount fraudulently obtained by Mr Anderton is $48,405.

District Court decision

[4] Judge Ingram listed a number of aggravating features of the offending, including the prolonged period of time over which the offending occurred; the multiple victims; the serious breach of trust and the substantial amount involved in the fraud. A particularly aggravating factor was that “a good half” of the offences occurred while

1      Crimes Act 1961, ss 240(1)(d) and 241(a): maximum penalty of seven years’ imprisonment.
2      Sections 240(1)(d) and 241(b): maximum penalty of one year imprisonment.
3      Sections 240(1)(a) and 241(b): maximum penalty of one year imprisonment.
4      Sections 240(1)(a) and 241(a): maximum penalty of seven years’ imprisonment.
5      Section 249(1): maximum penalty of seven years’ imprisonment.
6      Summary Offences Act 1981, s 24: maximum penalty of three months’ imprisonment.
7      New Zealand Police v Anderton [2017] NZDC 27546.

Mr Anderton was on bail for the first set of dishonesty offences. The District Court Judge described the offending as “a pretty determined and reasonably sophisticated effort to hoodwink people and take their money”. Altogether, the Judge adopted a starting point of two-and-a-half years’ imprisonment.8 On behalf of Mr Anderton, Mr Prentice takes no issue with the starting point. That is not surprising, because it could have been longer.

[5] In terms of personal mitigating features, Judge Ingram reduced the sentence by six months for Mr Anderton’s guilty pleas and a further six months to account for his youth,…

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.

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Details

Case: [2018] NZHC 437
Decision Date: 14 March 2018

CaseChat Overview and Summary

Joshua Kenneth Anderton appealed against the Hamilton District Court’s refusal to convert his 18-month prison sentence to one of home detention. Anderton had pleaded guilty to 34 charges of dishonesty, including fraud, deception and obtaining by deception. The total amount fraudulently obtained was $48,405. The offending was carried out over a period of over a year using online trading platforms, and included accessing and changing his mother’s TradeMe password to commit fraud. Judge T R Ingram listed a number of aggravating features of the offending, including the prolonged period of time over which the offending occurred, the multiple victims, the serious breach of trust and the substantial amount involved in the fraud. A particularly aggravating factor was that half of the offences occurred while Anderton was on bail for the first set of dishonesty offences. The Judge adopted a starting point of two-and-a-half years’ imprisonment. The Judge reduced the sentence by six months for Anderton’s guilty pleas and a further six months to account for his youth, relatively good record and an offer to pay reparation. The Judge declined to order home detention in lieu of imprisonment given the nature of the offending and the fact that Anderton continued to defraud while on bail.

The appeal hinged on whether the District Court Judge made an error in not properly considering whether the purposes and principles of sentencing might be met by a sentence of home detention. Anderton’s lawyer argued that the Judge focused entirely on the need to denounce Anderton’s offending because he had offended on bail. However, the High Court found that the Judge had properly turned his mind to other factors in considering whether or not home detention was appropriate. Even if there was an error, the Court found that it did not give rise to a miscarriage of justice because the offending warranted a deterrent approach to sentencing.

The High Court dismissed the appeal. The Court found that the sentence was appropriate and that the District Court Judge had properly considered the purposes and principles of sentencing. The Court considered that the offending was sophisticated, carefully planned and repetitive, and that a sentence of home detention would not have adequately reflected the need for deterrence. The Court found that a term of imprisonment was called for and that any error in the District Court’s approach did not give rise to a miscarriage of justice.

Orders