Cavanagh v Police - [2013] NZHC 2232

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000019 [2013] NZHC 2232

NATHAN JOHN DE SEYMOUR

v

NEW ZEALAND POLICE

Hearing: 29 August 2013

Counsel: A Dawson for Appellant
R D Smith for the Crown

Judgment: 29 August 2013

JUDGMENT OF PANCKHURST J

[1] The appellant Mr De Seymour was sentenced to two years and three months imprisonment for dishonesty offending on 16 July 2013. This end sentence has been challenged by Mr Dawson on the basis that the starting points adopted by the learned Judge were too high, and that the prospect of payment of reparations was discounted on an unreasonable basis.

[2] The appellant faced four charges. The first was termed historic since it had occurred in November 2008, being an offence of unlawful taking of a motorbike. Curiously there was no summary of facts available in the District Court, nor in this Court. However, a victim impact statement is on file. It reveals that the appellant borrowed a motorcycle worth about $650 from someone he knew. He did not return it and it has not been seen since.

[3] In the event the Judge did not impose a separate penalty in relation to this matter, rather dealt with it on what he termed a totality basis, which I take it to mean

SEYMOUR v NEW ZEALAND POLICE [2013] NZHC 2232 [29 August 2013]

that it was covered by the sentences imposed for the two matters I am about to refer to.

[4] The first of those is another unlawful taking which occurred in December 2011. The appellant persuaded the owner of a vehicle that was for sale to take it for a test drive. It was a car worth about $12,000. The appellant did not return it. It was stored for a time in Christchurch and then transported or driven to Queenstown. There, the appellant set about spray painting the vehicle a different colour, but also removed any identifying plates on the motor and the like as well, as the registration plates. In the course of this operation, however, the police located the vehicle and the appellant was charged with unlawful taking. The vehicle was in such a state that the reparation sought in the District Court was a sum of $11,000, almost the full value of the vehicle.

[5] As Mr Smith, for the Crown, pointed out this morning, the appellant was granted bail in relation to that offence, but did not answer to it. Instead he disappeared and the next offence was the one committed in May 2012.

[6] This was somewhat more sophisticated offending. The appellant advertised a portable sawmill for sale on Trade Me. The winning bid was one of $8,000. The appellant persuaded the bidder to pay into his bank account the full purchase price. He then gave instructions that the purchaser should uplift the portable sawmill from an address in Hawarden, North Canterbury for which he provided an address, telephone number and other details. Needless to say, these were false…

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 Cavanagh v Police

Details

AGLC: Cavanagh v Police [2013] NZHC 2232
Case: [2013] NZHC 2232
Decision Date: 29 August 2013

CaseChat Overview and Summary

The appellant, Nathan John De Seymour, challenged his sentence for dishonesty offences against the New Zealand Police. The sentence in question was two years and three months imprisonment, which was imposed by Judge Crosbie. The appellant's counsel argued that the starting points adopted by the Judge were too high and that the prospect of payment of reparations was discounted on an unreasonable basis.

The primary legal issue was whether the starting points and the reduction applied to the appellant's sentence were appropriate. The appellant's counsel argued that the starting points for the main offences were not supported by precedents and were beyond the available range for offences of this kind. Furthermore, the counsel contended that the 18-month reduction applied to the indicated sentence of three years and nine months was unprincipled and did not bear scrutiny.

The Court reviewed the submissions of both counsel and agreed that the 45 percent discount applied to the indicated sentence was unprincipled and discredited the sentencing exercise as a whole. The Court decided to approach the sentencing exercise afresh and determined that the appropriate starting points for the lead offences were 12 months and nine months, respectively. The Court also agreed that a 15 percent reduction was appropriate for the late pleas of guilty and the offer of reparation. This resulted in an end sentence of 20 months imprisonment.

The Court also ordered that the appellant be convicted, but discharged, in relation to the other charges of unlawful taking and breach of bail.

Orders