D v Police HC Rotorua CRI-2010-463-29

[2010] NZHC 790

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-29

BETWEEN  D

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 May 2010

Counsel:         R A A Weir for the appellant

L Owen for the respondent

Judgment:      31 May 2010

(ORAL) JUDGMENT OF POTTER J

Solicitors:           Crown Solicitor, P O Box 740, Rotorua 3040

Copy to:            R A A Weir, P O Box 46-281, Herne Bay, Auckland 1147

D V NEW ZEALAND POLICE HC ROT CRI-2010-463-29  31 May 2010

Introduction

[1]      The appellant D   appeals against a judgment of Judge McGuire1 which convicted and discharged him on three charges brought under s 249(1)(a) and s 66 Crimes Act 1961.  Mr D   seeks on appeal that he be discharged without conviction under s 106 of the Sentencing Act 2002.

[2]      The relevant statutory provisions are s 106 and s 107.   In R v Hughes2  the Court of Appeal described the requirements of s 107 as a “gateway”.   The requirements of that section must be satisfied before the Court can exercise a discretion under s 106 to discharge without conviction.   Section 107 provides the Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  If, and only if, the Court is so satisfied has the Court a discretion under s 106 to discharge the offender without conviction.

[3]      In the District Court, Judge McGuire, having analysed the direct and indirect consequences of a conviction for the appellant and the gravity of the offending, found  himself  not  satisfied  in  terms  of  the  disproportionality test  in  s107.    He therefore declined to exercise the discretion under s 106.

Background

[4]      The appellant entered guilty pleas to three charges of accessing a computer system for a dishonest purpose and two charges of using a document for a dishonest purpose.  The charges arose out of events on a single day, 23 December 2008, when Mr D   accessed a computer system, namely an internet banking site, and obtained a pecuniary advantage, namely a cash value of $4672.64.  The bank was left in debit for this amount.   Also on that date, with intent to obtain a pecuniary advantage dishonestly and without claim of right, he used a document, namely a

1      New Zealand Police v D   DC Rotorua CRI-2009-063-002833 19 April 2010.

2      R v Hughes [2008] NZCA 546.

direct debit bank card on two occasions.  The net amount he obtained was $1557. That amount was paid back by way of a bank cheque to the Court on 6 October

2009.

[5]      Mr D   participated in a scam whereby a credit of funds was placed in the recipient’s account, with those making the credit knowing that the credit would be dishonoured.   Within the banking system for the banks involved, there was a small window of opportunity for the recipient to withdraw cash before the bank dishonoured the deposits.   That is what occurred on 23 December 2008 when the appellant made four withdrawals within 57minutes of the money being deposited, and before the deposits were dishonoured.   He was paid $800 for his part in the scam.

[6]      Mr D   was spoken to by the Police on 6 April 2009.   He admitted providing bank account details to an associate.  He stated that the transactions were “dodgy” but he used the cash anyway.

Judgment appealed

[7]      Judge McGuire noted that the appellant had no previous convictions at the time of sentencing and he was 20 years old.  He noted the favourable pre-sentence report.   The Judge accepted that there were “bigger fish” involved in this sort of scam and the appellant was somewhat on the periphery.  He noted the appellant was repentant and remorseful for his involvement and that he would have nothing further to do with the associates.

[8]      The Judge noted that the $1557 by which the appellant benefited had been paid back and the appellant had completed 70 hours community work with the Rodney District Council Community Centre.

[9]      Turning to the question of the s 106 discharge, the Judge referred to the requirements of s 107.  In considering the gravity of the offence, he noted there were three offences committed on the one occasion and that they did require some forethought.    They  required  the  scam  being  explained  to  the  appellant  and  his

providing details of his bank account and his PIN to the associates who would make the false payments into the account; then his account being used four times in the space of 57 minutes to withdraw the money.  The Judge said:3

I infer from that sort of narrative that there was time throughout this for the defendant to think about what he was doing.  He took the risk and then he repented, which does him credit, but it does not wipe away completely the criminality of what went on.

[10]     He  then  turned  to  consider  the  direct  and  indirect  consequences  of  a conviction for the appellant.  The only matter advanced for the appellant on that side of the equation, and the only matter referred to in submissions today by Mr Weir is an affidavit by a Mr Michael Wilson Rainey at Whakatane who says he has been involved in the insurance industry for the past twenty years in the Bay of Plenty and that persons with certain criminal convictions, especially fraud, will have “some difficulty getting fire and general insurance”.   Mr Weir emphasised this is of particular concern for Mr D   who is employed in the building industry.

[11]     Judge McGuire referred to the possibility that Mr D   might have what he called “a franchise” on his policy for some time, and he said that was no different from people who have had, in the road traffic insurance context, prior accidents.  He said he preferred the affidavit evidence which described the appellant having some difficulty getting fire and general insurance to the submissions made on his behalf that he might be or would be, unable to get insurance.

Submissions and discussion

[12]     Mr Weir in submissions today responsibly accepts that he can put it no higher than put by Mr Rainey in his affidavit, that the appellant may have some difficulty in getting insurance.

[13]     Ms Owen for the Crown pointed out there is no suggestion that the appellant will have difficulty in obtaining or maintaining employment.   Indeed, the pre- sentence report records his employer’s support for him.  So the only consequence of

3 At [9].

conviction is that advanced before Judge McGuire and again before me today, that the appellant may have some difficulty in obtaining fire and general insurance.

[14]     Mr Weir endeavoured to make something of the Judge’s use of the term “franchise”, saying it was ambiguous.   He was critical of the Judge’s comparison with people who have insurance consequences as the result of road traffic accidents.

[15]     I  do  not  consider  that  amounts  to  much.    I  would  have  used  the  word “excess” rather than “franchise” to describe the situation where, if the record of a proposed insured has an unsatisfactory aspect, an insurance company may, instead of declining insurance, require payment of an excess.  This in effect results in a higher premium for the cover the potential insured seeks.

[16]     Mr Weir also submitted that the Judge failed to take into account the early guilty pleas of the appellant.  I agree the Judge did not specifically refer to the guilty pleas but he referred to the appellant’s acknowledgment of his wrongdoing, his remorse and his repentance.  He referred to the money having been paid back and to his voluntary service of 70 hours community work.

[17]     I do not consider the Judge took into account any irrelevant circumstances and he considered all the relevant matters that had been placed before him.  I cannot disagree with the Judge that in the circumstances of this case, the direct and indirect consequences of a conviction would not be disproportionate to the gravity of the offending.  The offending, while arising out of a single set of incidents on the same day, was premeditated.  As Judge McGuire observed, this type of offending is very difficult to detect even after the event.  It is impossible to detect it ahead of time.  It can only therefore be regarded as fairly serious offending.

Result

[18]     The appeal is dismissed.