Calder v Police - [2017] NZHC 1430

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000107

[2017] NZHC 1430

IN THE MATTER OF an appeal against sentence

BETWEEN

NATHAN PETER CALDER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 June 2017

Counsel:

N Soondram for the Appellant A D Luck for the Respondent

Judgment:

26 June 2017

(ORAL) JUDGMENT OF EDWARDS J

Solicitors: Ministry of Justice (Public Defence Service), Auckland Meredith Connell, Auckland

CALDER v POLICE [2017] NZHC 1430 [26 June 2017]

[1] Mr Calder was sentenced to 25 months’ imprisonment and ordered to pay reparation in the sum of $17,200.1 This followed guilty pleas to the following charges:

(a)Two charges of obtaining by deception (over $1,000);2

(b)One charge of obtaining a document for pecuniary advantage;3

(c)One charge of attempting to obtain a document for pecuniary advantage;4 and

(d)One charge of using a document for pecuniary advantage.5

[2] Mr Calder appeals that sentence on the grounds that the starting point adopted by the District Court Judge was too high and resulted in a manifestly excessive sentence. He submits that a community-based electronically monitored sentence was appropriate in all the circumstances.

The offending

[3] In late 2015, Mr Calder accessed a public internet website looking for details of people who were born in New Zealand but who had died overseas. He found the biographical details for Mr Kless and Mr Rohdes. The appellant used those details to support false applications for New Zealand passports.

[4] An application for a passport in the name of Mr Rohdes was completed on 5 October 2015. That passport was issued on 16 October 2015. In between that date, and January 2016, Mr Calder used that passport to obtain a cheque account and obtain personal loans in Mr Rohdes’ name totalling $17,200.

1      Police v Calder [2017] NZDC 4653.
2      Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty seven years’ imprisonment.
3      Crimes Act, s 228(1)(a). Maximum penalty seven years’ imprisonment.
4      Crimes Act, ss 72 and 228(1)(a). Maximum penalty three and a half years’ imprisonment.
5      Crimes Act, s 228(1)(b). Maximum penalty seven years’ imprisonment.

[5] On 30 September 2016, Mr Calder applied for another passport in the name of Mr Kless. The Department of Internal Affairs became aware that the application was false and informed the Auckland Police.

Personal circumstances

[6] At the time of the offending, Mr Calder was 22 years of age and a university student. He has eight prior convictions: a drink driving offence committed in 2011, six other fraud related charges from 2013 and 2014, and a conviction for failing to answer District Court bail in 2015.

[7] The pre-sentence report assessed Mr Calder’s risk of reoffending as low. Substance abuse and an unstructured lifestyle were identified as contributing factors to his offending.

[8] As recorded in the report, Mr Calder had already made considerable efforts at rehabilitation. Those included engaging in focused casework sessions with the probation officer and enrolling in a CADS course. He did not complete that course as he did…

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 Calder v Police

Details

AGLC: Calder v Police [2017] NZHC 1430
Case: [2017] NZHC 1430
Decision Date: 26 June 2017

CaseChat Overview and Summary

Nathan Peter Calder appeals against the sentence imposed on him by the District Court for various charges of deception and fraud. Calder was sentenced to 25 months' imprisonment and ordered to pay reparation of $17,200. Calder argues that the starting point for his sentence was too high, resulting in a manifestly excessive sentence, and that a community-based electronically monitored sentence was more appropriate. The legal issues before the court were whether the starting point was too high and if the sentence imposed was manifestly excessive. The court found that the starting point adopted by the District Court was too high, resulting in a sentence that was outside the applicable range. The court also found that the District Court was generous in its adjustments for mitigating factors and the guilty plea. The court substituted the sentence with 14 months' imprisonment and reserved leave for Calder to apply for home detention if a suitable address could be identified. The reparation order remains the same.

Orders