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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA518/2013 [2014] NZCA 329 |
| BETWEEN | JONATHAN DIXON |
| AND | THE QUEEN |
| Hearing: | 27 February 2014 (further submissions received 13 March 2014) |
Court: | Harrison, Wild and French JJ |
Counsel: | D J More and A J More for Appellant |
Judgment: | 17 July 2014 at 10.00 am |
JUDGMENT OF THE COURT
AThe conviction is quashed and replaced with a conviction under s 249(1)(a) of the Crimes Act 1961 on the following terms:
That Jonathan Dixon on the 13th day of September 2011 at Queenstown accessed a computer system and thereby dishonestly and without claim of right obtained a benefit.
BThe appeal against sentence is dismissed. Mr Dixon must report to the Community Probation Service by 10.00 am on 21 July 2014 to resume his community work sentence. The sentence of community detention will also resume on 21 July 2014.
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REASONS OF THE COURT
(Given by French J)
Introduction
Following trial, a District Court jury found Mr Dixon guilty of accessing a computer system for a dishonest purpose contrary to s 249(1)(a) of the Crimes Act 1961. He was convicted and sentenced by Judge Phillips to four months’ community detention and 300 hours’ community work.[1]
[1]R v Dixon DC Invercargill CRI-2011-059-1122, 2 August 2013.
Mr Dixon now appeals both his conviction and his sentence.
The key issues raised by the appeal are:
(a)Does digital footage fall within the statutory definition of “property” contained in s 2 of the Crimes Act?
(b)If digital footage does not fall within the statutory definition of “property”, should Mr Dixon’s conviction for obtaining property under s 249(1)(a) be quashed and replaced with a conviction for obtaining a benefit?
(c)Did the Judge overstate the seriousness of the offending and as a result impose a sentence that was manifestly excessive?
Factual background
Mr Dixon was employed by a Queenstown security firm as a bouncer. One of the firm’s clients was Base Ltd, which operates Altitude Bar in Queenstown. Base had installed a closed circuit television (CCTV) in the bar.
In September 2011, the English rugby team was touring New Zealand as part of the Rugby World Cup. The captain of the team was Mr Tindall. Mr Tindall had recently married the Queen’s granddaughter. On 11 September, Mr Tindall and several other team members visited Altitude Bar. During the evening there was an incident involving Mr Tindall and a female patron, which was recorded on Base’s CCTV.
Mr Dixon found out about the existence of the footage of Mr Tindall and asked one of Base’s receptionists to download it onto the computer she used at work. She agreed, being under the impression that Mr Dixon required it for legitimate work purposes. The receptionist located the footage and saved it onto her desktop computer in the reception area. Mr Dixon subsequently accessed that computer, located the relevant file and transferred it onto a USB stick belonging…
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- AGLC
- Dixon v R [2014] NZCA 329
- Case
- [2014] NZCA 329
- Decision Date
CaseChat Overview and Summary
The Court of Appeal concluded that digital footage does not constitute property under the Crimes Act. The Court noted that the statutory definition of "property" in s 2 includes real and personal property, money, electricity, and any other right or interest, but does not specifically mention digital data or information. The Court found that the orthodox position in law is that information, including digital data, is not property. The Court reasoned that while digital footage may have value and be capable of being sold, it is essentially a stored sequence of bytes and therefore indistinguishable from pure information. The Court rejected the argument that Parliament intended to include digital data within the definition of property when it amended the Crimes Act, noting the absence of any specific reference to digital files in the statutory definition.
Given that digital footage is not property, the Court considered whether Dixon's conviction should be quashed and replaced with a conviction for obtaining a benefit. The Court held that this was an appropriate case for the Court to exercise its powers under s 386(2) of the Crimes Act to substitute the conviction. The Court concluded that Dixon had obtained a benefit by having the opportunity to sell the footage, and therefore replaced the conviction under s 249(1)(a) with a conviction for obtaining a benefit. The Court also dismissed Dixon's appeal against sentence, finding that the sentence imposed was within range and appropriate given the breach of trust and the impact of Dixon's actions on his employer and the bar.
Orders
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Background
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Evidence
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Decision
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