Ayton v Police - [2012] NZHC 3541

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000108

CRI-2012-485-000109 [2012] NZHC 3541

BETWEEN BRENT RICHARD AYTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 18 December 2012

Counsel: J Murdoch for Appellant
E M Light for Respondent

Judgment: 19 December 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 19th day of December 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] On 20 September 2012 Mr Ayton pleaded guilty to: (1) 32 charges of dishonestly using a document; (2) seven charges of theft; and
(3) two charges of receiving.

These charges had been laid in early October 2011.

AYTON V NEW ZEALAND POLICE HC WN CRI-2012-485-000108 [19 December 2012]

[2] On 14 November 2012 Mr Ayton was sentenced by Judge S E Thomas to

21 months’ imprisonment. Mr Ayton appeals the sentence that was imposed. He submits that he should have been sentenced to home detention rather than imprisonment.

[3] The appeal is governed by s 121(3)(b) of the Summary Proceedings Act 1957 and therefore the appeal should only be allowed if I am satisfied that the sentence imposed by the District Court Judge was “clearly excessive or inadequate or inappropriate” or if I am satisfied that substantial facts relating to the offence or Mr Ayton were not before the District Court Judge.

The offending

[4] Mr Ayton’s offending relates to:

(1)a period when he was the building manager of a large apartment complex in Wellington; and

(2)the period after he was dismissed from his position as the apartment complex manager.

Offending when apartment complex manager

[5] When employed as an apartment complex manager Mr Ayton:

(1) created a fictional maintenance company called AA Electrical. From

11 August 2009 to 13 July 2010 he paid out over $84,000 of the apartment complex’s money for work said to have been done to an account purported to be operated by AA Electrical. The account was in fact owned by Mr Ayton’s partner, although she had no knowledge of his fraud. The management committee at the apartment complex eventually fired Mr Ayton and conducted a review of his spending. The review found that only a very small proportion of the work

charged was actually done. Approximately $36,751 worth of work was definitely not undertaken. The rest was unable to be verified.

(2) misused an account dedicated for the apartment complex’s purchases of plumbing supplies. In November 2009 Mr Ayton went to a hardware outlet where he purchased a six piece toolkit worth
$2,137.50 on credit with the apartment complex’s account. He then pawned off the toolkit at Superloans for $500. He failed to repay that loan which in turn caused Superloans to sell the toolkit. Mr Ayton then failed to pay the hardware outlet for the original purchase price causing the company to sue the guarantors of the apartment complex’s account for the balance. The apartment complex manager sought $2,306.72 reparation.

(3)failed to report two burglaries at the apartments. The…

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 Ayton v Police

Details

AGLC: Ayton v Police [2012] NZHC 3541
Case: [2012] NZHC 3541
Decision Date: 19 December 2012

CaseChat Overview and Summary

The appeal against sentence was brought by Brent Richard Ayton, who had been sentenced to 21 months’ imprisonment by the District Court for a range of dishonesty offences. Ayton argued that the sentence was inappropriate and should have been home detention rather than imprisonment. The appeal was governed by section 121(3)(b) of the Summary Proceedings Act 1957, meaning the High Court could only interfere if the sentence was clearly excessive or inadequate or inappropriate, or if there were substantial facts not before the District Court. The court considered various factors, including the nature and extent of Ayton’s offending, his premeditation, and the impact on the victims. The High Court found that the District Court Judge had properly considered the relevant factors and did not err in imposing a sentence of imprisonment instead of home detention. The court was satisfied that the sentence appropriately addressed the purposes and principles of sentencing and was not excessive, inadequate, or inappropriate. The appeal was dismissed, and the original sentence was upheld.

Orders