Baker v Police - [2012] NZHC 2355

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-000038 [2012] NZHC 2355

BETWEEN CLAYTON TERRY BAKER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 12 September 2012

Counsel: S A Saunderson-Warner and D J Matthews for Appellant
R D Smith for Respondent

Judgment: 13 September 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 13th day of September 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] Mr Baker was sentenced to 18 months’ imprisonment in the Dunedin District

Court on 17 July 2012. This sentence was imposed after Mr Baker pleaded guilty to

23 charges concerning dishonesty offending.

[2] Mr Baker appeals against his sentence on the basis that it is manifestly excessive.

BAKER V NEW ZEALAND POLICE HC DUN CRI-2012-412-000038 [13 September 2012]

The offending

[3] Ms Saunderson-Warner, counsel for Mr Baker has very conveniently analysed the 23 instances of dishonesty to which Mr Baker pleaded guilty. She divides the offending into five categories:

(1)The first set of offending occurred when Mr Baker was living with a former flatmate in Mangere, Auckland. This offending occurred between December 2010 and January 2011. Mr Baker’s flatmate agreed to lend Mr Baker their credit card so that he could buy a mobile phone on TradeMe. Mr Baker retained the credit card details and over the following month used the card a further nine times without his flatmate’s authority. The transactions he made totalled
$684.83. As a consequence, Mr Baker was charged with nine offences of using a document to obtain a pecuniary advantage contrary to s 228 of the Crimes Act 1961.

(2) The second group of offences occurred between 15 April 2011 and

16 September 2011. On these occasions Mr Baker listed four separate items for auction on TradeMe. Purchasers availed themselves of the “Buy Now” function to purchase the items and transferred the required funds to Mr Baker’s bank account. Mr Baker never sent the items to the purchasers. This resulted in Mr Baker facing four charges of obtaining by deception contrary to ss 240(1)(a) and 241(b) of the Crimes Act 1961.

(3)The third set of offences occurred on 5 November 2011 when Mr Baker was working at a restaurant in Auckland. When a customer paid, Mr Baker wrote down the customer’s credit card details and used them to order a television and laptop on the internet. However, the bank recognised the fraudulent nature of the transaction and cancelled the payments. This resulted in Mr Baker facing two charges of using a document for a pecuniary advantage contrary to s 228 of the Crimes Act 1961.

(4)The fourth instance of offending occurred on 24 January 2012 when Mr Baker entered an agreement with a family friend to purchase their motor vehicle. He handed the victim’s partner an envelope containing internet banking printouts which showed he had transferred $2,500 to the victim’s bank account. However, the victim never received this money. Two charges of obtaining by deception contrary to…

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 Baker v Police

Details

AGLC: Baker v Police [2012] NZHC 2355
Case: [2012] NZHC 2355
Decision Date: 13 September 2012

CaseChat Overview and Summary

Clayton Terry Baker, the appellant, was sentenced to 18 months’ imprisonment by the Dunedin District Court following his guilty plea to 23 charges of dishonesty. The offences involved the misuse of credit card information and deception to obtain financial gain, spanning from December 2010 to January 2012. Baker appealed the sentence, arguing it was manifestly excessive. The primary legal issue was whether the District Court Judge's imposition of an 18-month starting point for the sentence was appropriate, considering the nature and extent of the offending and the mitigating factors presented.

The court considered the submissions from both parties, including the precedents provided. Counsel for Baker argued that the starting point was too high, referencing cases where similar offending resulted in lower starting points. Conversely, the Crown argued that the starting point was justified given Baker's extensive criminal history and the significant financial losses caused by his actions. The court reviewed several cases to determine if the starting point was within the reasonable range. Ultimately, the court found that the District Court Judge's decision to set an 18-month starting point was appropriate, considering the period over which the offences occurred, the breach of trust, premeditation, and the financial loss to the victims. However, the court did acknowledge that Baker's efforts to reform, such as attending rehabilitation courses and refraining from further offending since, warranted some reduction in sentence. Consequently, the appeal was partially allowed, reducing the sentence from 18 months to 15 months’ imprisonment, while upholding all other orders of the District Court.

Orders