Brooks v The Queen - [2017] NZHC 851

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000011 [2017] NZHC 851

BETWEEN
PETER GRAHAM BROOKS

Appellant

AND

THE QUEEN Respondent

Hearing: 26 April 2017

Appearances:

B P Kilkelly for Appellant
R Thomson for Crown

Judgment:

2 May 2017

JUDGMENT OF DUNNINGHAM J

[1] On 13 February 2017, the appellant was sentenced to three years and one month imprisonment on two charges of dishonestly using a document, and one charge of theft by a person in a special relationship.1 Mr Brooks appeals on the basis that:

(a) the starting pointed adopted was too high;

(b)the six month uplift for the theft charge did not properly reflect the totality principle;

(c) some discount should have been given for the guilty pleas and remorse.

[2] Taking these errors into account, the end sentence is said to have been manifestly excessive.

1 R v Brooks [2017] NZDC 2802.

BROOKS v THE QUEEN [2017] NZHC 851 [2 May 2017]

Background

[3] In late 2011, the appellant, who was then in his early sixties, met and befriended the victim, another man of similar age, when both were living in a motor camp in South Otago. The victim was unwell at the time and needed help buying his everyday provisions. The appellant offered to help the victim, so the victim gave the appellant his bank card and PIN number. Over a period of two months between mid-August 2012 to mid-October 2012, the appellant made 76 unauthorised withdrawals on the card, totalling $34,503.

[4] The victim also asked the appellant to sell a caravan he owned on his behalf. In return, the appellant would receive a commission. It was agreed that the asking price for the caravan would be $10,000. The appellant sold the caravan for $5,800 and retained the sale proceeds without telling the victim the caravan was sold. By the time the offending was discovered, the appellant had moved elsewhere.

[5] The appellant initially pleaded not guilty when charges were laid in February 2014. After twice failing to appear for a case review hearing, a warrant was issued for the appellant’s arrest on 6 June 2014. A few days later the appellant voluntarily appeared and not guilty pleas were entered to the charges on
24 June 2014. The matter was scheduled for trial on 18 May 2015. However, the appellant absconded and a warrant for his arrest was issued. Approximately
18 months later, the appellant made a voluntary appearance in the Greymouth District Court and pleaded guilty to the charges on 20 December 2016. He was then sentenced in February 2017. Had he not pleaded guilty, counsel agree that a hearing of some four to five days would have been required, and would not have occurred until sometime later in 2017.

District Court decision

[6] The Judge highlighted the serious impact that the offending had had on the victim. He felt betrayed by someone he considered a friend and whom he had trusted while grieving the death of his sister. He was ill and…

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 Brooks v The Queen

Details

AGLC: Brooks v The Queen [2017] NZHC 851
Case: [2017] NZHC 851
Decision Date: 2 May 2017

CaseChat Overview and Summary

The appellant, Peter Graham Brooks, appeals his sentence for charges of dishonestly using a document and theft by a person in a special relationship. The appellant argues that the starting point was too high, the uplift for the theft charge did not properly reflect the totality principle, and some discount should have been given for the guilty pleas and remorse. The appeal was heard in the High Court of New Zealand.

The legal issues before the Court were whether the starting point for the sentence was too high, whether the six month uplift for the theft charge was appropriate, and whether a discount should have been given for the guilty pleas. The Court had to determine whether the starting point was within range given the seriousness of the offending, whether the six month uplift was appropriate, and whether a discount should have been given for the guilty pleas.

The Court found that the starting point of two years and nine months was within range given the seriousness of the offending. The Court accepted that the charge of theft by a person in a special relationship was a serious offence and the six month uplift was not inappropriate. The Court considered it appropriate to recognise that the appellant did, in the end, voluntarily present himself to police and enter a guilty plea. A discount of five per cent would have been sufficient to reflect the policy considerations at play. The end sentence of three years and one month imprisonment on the two charges of dishonestly using a document is quashed. A sentence of two years and eleven months is substituted. In all other respects the sentencing decision is upheld.

The final orders are that the end sentence of three years and one month imprisonment on the two charges of dishonestly using a document is quashed. A sentence of two years and eleven months is substituted. In all other respects the sentencing decision is upheld.

Orders