Bourton v The Queen - [2014] NZCA 151

IN THE COURT OF APPEAL OF NEW ZEALAND

CA474/2012
[2014] NZCA 151

BETWEEN	SUSAN ANN BOURTON Appellant
AND	THE QUEEN Respondent

Hearing:	13 February 2014 (further submissions received 1 April 2014)
Court:	Harrison, Asher and Dobson JJ
Counsel:	R A A Weir for Appellant J N Foster for Respondent
Judgment:	16 April 2014 at 3 pm

JUDGMENT OF THE COURT

A The application for an extension of time is granted.

B The appeal against conviction is dismissed.

C The appeal against sentence is dismissed.
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REASONS OF THE COURT

(Given by Asher J)

Introduction

On 4 November 2011 the appellant Susan Bourton was arraigned on 81 counts of fraudulent offending over a nine and a half year period. Ms Bourton had worked first as an insurance broker and consultant and later as a business banking manager at Westpac Bank. In the course of this she had been involved in a number of transactions that gave rise to the various charges. A useful summary of the facts relating to the offending can be found at [9] to [37] of the trial Judge’s sentencing notes,[1] and a more extended version in his reasons for verdicts.[2]
[1]R v Bourton DC Hamilton CRI-2009-019-6496, 28 June 2012 at [9]–[37].
[2]R v Bourton DC Hamilton CRI-2011-019-3476, 27 April 2012.
Without notice Ms Bourton entered a number of guilty pleas on arraignment on the first day of trial before Judge Connell sitting alone. She was found guilty and convicted of the remaining charges. The counts can be summarised as follows:
(a)accessing a computer system and thereby dishonestly or by deception, and without claim of right, obtaining either a benefit, service or pecuniary advantage, or causing loss (x 42);
(b)theft in a special relationship (x 2);
(c)theft of property valued over $1,000;
(d)using a document to obtain a pecuniary advantage (x 9);
(e)using an altered document to obtain a pecuniary advantage; and
(f)using a forged document as if it were genuine.
Ms Bourton was sentenced to seven and a half years’ imprisonment for all the offending with a minimum period of imprisonment of three years. She has appealed her convictions and sentence.

Decision on conviction appeal

Mr Weir, who appeared as counsel on the appeal but had not appeared at the trial, raised three grounds on the conviction appeal. The first ground related to the denial of a right to trial before a jury. However, when certain further uncontested facts were revealed at the outset of the hearing of the appeal, Mr Weir elected not to pursue that ground of appeal.

(a) Propensity evidence

The first of the remaining two grounds of appeal before us was that the Judge erred in placing undue weight on propensity evidence which was led in determining the issues at trial. Mr Weir, after having made some general submissions on the correct approach, argued in effect that there should have been separate trials for the different transactions. Mr Weir submitted that the Judge should not have taken into account the evidence…

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 Bourton v The Queen

Details

AGLC: Bourton v The Queen [2014] NZCA 151
Case: [2014] NZCA 151
Decision Date: 16 April 2014 at 3 pm

CaseChat Overview and Summary

Susan Bourton was convicted and sentenced to seven and a half years' imprisonment for multiple fraudulent offences over a nine and a half year period. She appealed both her convictions and sentence. The Court of Appeal considered two grounds of appeal regarding the convictions: the use of propensity evidence and disclosure of documents. The Court found that the propensity evidence was properly admitted and relevant, and there was no significant non-disclosure of documents. The Court of Appeal also considered the sentence appeal. The Court found that the sentence of seven and a half years was within the appropriate range for such serious breaches of trust and high culpability offending. The Court noted that Ms Bourton had provided a letter of remorse which she later denied, however, the Court decided not to increase the sentence as the Crown did not seek to cross-appeal the sentence. The Court dismissed both the conviction and sentence appeals and extended the time for filing the appeal.

Orders