Drever v Police
[2022] NZHC 3179
•30 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-318
[2022] NZHC 3179
BETWEEN AARON CARL DREVER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 November 2022 Appearances:
J Olsen for Appellant
W N Fotherby and J L Gibson for Respondent
Judgment:
30 November 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 30 November 2022 at 3pm
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
DREVER v POLICE [2022] NZHC 3179 [30 November 2022]
Introduction
[1] Aaron Drever (the appellant) appeals against the decision of Judge EM Thomas delivered on 12 August 2022 sentencing him to two years and two months’ imprisonment and ordering him to pay reparation of $75,000 on charges of fraud related offending. The grounds of appeal allege that the sentence imposed is manifestly excessive. The appellant says that while the Judge allowed him appropriate discounts for remorse and personal circumstances, he failed to allow a discount for his previous good character and prospects of rehabilitation. The appellant says that had such a discount been allowed, the purposes of sentencing could have been adequately met by a sentence of home detention, and he seeks an order setting the sentence aside and for a sentence of home detention to be substituted in its place.
Background
The charges
[2]The appellant pleaded guilty to the following charges:
(a)making a false document (x 2);1
(b)dishonestly using a document (x 2); 2 and
(c)obtaining by deception.3
The offending
[3]Judge Thomas conveniently summarised the offending as follows:4
[11] On 16 December 2016 you were a suspended real estate agent. You arranged to sell a portion of land then belonging to the Avondale Bowling Club. Unbeknown to the club, you set up a company with which you were associated to buy the land. You also set up an immediate on-sale of that property.
1 Crimes Act 1961, s 256(1): carrying a maximum penalty of 10 years’ imprisonment.
2 Section 259(1)(a): carrying a maximum penalty of 10 years’ imprisonment.
3 Sections 240(1)(a) and 241(a): carrying a maximum penalty of seven years’ imprisonment.
4 New Zealand Police v Drever [2022] NZDC 15363.
[12] You convinced the Bowling Club to sell the land for $330,000. Your company bought it for that price. You immediately on-sold it as you had agreed with the purchaser for $825,000. You did not disclose your association with any of the parties to any of the others. That way, you illegally obtained
$466,000, give or take.
[13] In September 2019, you approached those involved with putting on speedway events at Western Springs. You asked to assist. You convinced them that you should. They agreed. Between October and December 2019 you submitted 10 invoices to them under the name Billboard Solutions. Those invoices were false. All you had manufactured, all were paid, and that way you illegally obtained $86,000. You also did the same in respect of two invoices under the name Toy and Model Collectors Market Limited. That is a fictitious company. You created two fictitious invoices. You submitted them, they were paid. You received, give or take, $15,000 on those invoices.
The Judge’s decision
[4] In his sentencing decision the Judge adopted a starting point of four years’ imprisonment. He identified the following aggravating features of the offending:
(a)breach of trust;
(b)premeditation;
(c)planning and preparation;
(d)repeated offending; and
(e)the extent of the loss and associated harm.
[5]The Judge said:
[2] I told you that your offending was serious enough to warrant a starting point of four years’ imprisonment. We looked, closely, at your personal circumstances, your mental health issues. I incorporated what we knew of that then, including your ADHD diagnosis and the effects of that into any reduction I would give you. I included a maximum allowance for a guilty plea because at the time, it had come early, despite what has happened since then. I also incorporated recognition of your remorse. I told you that that would result in an end sentence of two years and five months’ imprisonment.
[3] You have sought and obtained adjournments since then to be able to put additional material before me. It also allowed you to go through the restorative justice process. I make some allowance for you having gone through that process, but not a significant amount, given:
(a)I recognised your remorse in the original sentence indication and attending restorative justice is really nothing more than the minimum demonstration of that remorse, and
(b)the undertakings or promises that you gave regarding reparation at those restorative justice conferences you are simply not in a position, it seems, to ever meet. The losses are extremely real for those you stole from. The effects of those losses are extremely real for those people you stole from.
[4] I have an additional, full report regarding your mental health. It confirms many of the things that we spoke about at your sentence indication hearing. Because I gave you an allowance for that in advance of receiving that confirmation, there is no further allowance I can give you today for what is contained in that report. It confirms that you need rehabilitation. You have begun it. It is not very far advanced, but there may be all sorts of reasons for that, including COVID of course, over the last 12 months or so. Your continued rehabilitation is going to have to form part of your priorities upon completion of your sentence.
[5] The more problematic issue for me today is reparation. I am going to make a reparation award. You will be limited by your means and if the last 18 months is anything to go by, we have no idea whether you are going to be able to pay or will pay what you say that you will pay. I can make the order, but I do not have a lot of confidence in it. Because of the sentence I am going to impose, you will not be a in position to pay $500 a week.
[6] You will be starting again when your sentence is done so I have assessed reparation based on $300 a week for a period of five years. What that means is that I make an order for reparation of $25,000 to Auckland Speedway, payable at $150 a week. I make another award of reparation of
$50,000 to the New Lynn Bowling Club, also payable at $150 a week. Those payments will begin a month after the completion of your sentence.
[7] From the two years five months that I signalled to you, I can make allowances for those reparation awards. I can make the minor allowance that I said I could for your engagement or preparedness to at least go to restorative justice. None of that gets you to the point where you can avoid prison for what you did.
Submissions
The appellant
[6] Mr Olsen for the appellant acknowledges that the starting point of four years’ imprisonment adopted by the Judge is in range, and takes no issue with the Judge’s starting point.
[7] Mr Olsen notes that the Judge allowed discounts of 25 per cent for the appellant’s guilty pleas and a total of 15 per cent for remorse and personal factors. The Judge then allowed a further three month discount to produce the end sentence of two years and two months. That further discount was allowed to take account of the reparation orders by which the Judge ordered the appellant to pay a total of $75,000 to the Auckland Speedway and New Lynn Bowling Club, alongside the appellant’s preparedness to go to restorative justice.
[8] Mr Olsen submits that while the Judge allowed appropriate discounts for those factors, he ought also to have allowed a further discount of 15 per cent to recognise the appellant’s previous good character. Counsel refers to several authorities in support of his submission that where there is potential for rehabilitation, previous good character can demonstrate a reduced probability of re-offending, and persons who have shown themselves to be generally law-abiding citizens of good character are usually entitled to recognition of their good character when they come before the courts.5
[9] Mr Olsen says that although the appellant had a history of two prior periods of offending in 2016 and 2019, he was otherwise a person of good character. At sentencing he showed that he had good prospects of rehabilitation notwithstanding that he had not yet completed the rehabilitation counselling programme he was undertaking. Mr Olsen says that it is not clear from the Judge’s sentencing notes whether he considered or allowed any discount for the appellant’s good character. He says that the Judge certainly considered the appellant’s rehabilitative prospects, but applied no discrete discount for that factor.
[10] Mr Olsen accordingly submits that the appellant was entitled to a discount of 15 per cent to reflect his previous good character, efforts at rehabilitation prior to sentencing, and his prospects of rehabilitation following sentencing. And he submits that the Judge erred by failing to allow that discount.
5 See R v Howe [1982] 1 NZLR 618 (CA) at 629; R v Findlay [2007] NZCA 553 at [91]; and
Fangupo v R [2020] NZCA 484.
[11] Mr Olsen submits that had the Judge allowed a 15 per cent discount for the appellant’s previous good character and rehabilitation efforts and prospects, the end sentence would be in the range where it could be commuted to a sentence of home detention. He says that once the appellant has served his sentence he will not be able to return to working as a real estate agent, and he also notes that the appellant has been in custody serving his prison sentence since 12 August 2022 when it was imposed by the District Court Judge.
[12] Mr Olsen further says that the time already spent by the appellant in prison has emphasised his fall from grace and is itself a salutary lesson and punishment. Counsel also refers to the report by the Clinical and Forensic psychologist, Mr Gregory Woodcock as confirming that the appellant has good prospects of rehabilitation and has a low prospect of re-offending.
The respondent
[13] Mr Fotherby for the respondent submits that the sentence imposed by the Judge is not manifestly excessive. The respondent refers to several cases involving broadly similar offending and submits that the comparison with those cases demonstrates that the end sentence imposed on the appellant is not manifestly excessive.6
[14] Mr Fotherby says that the appellant’s complaints regarding the sentence imposed on him are predominantly directed at the weighting the Judge gave to particular factors for which he allowed discounts, and he submits that they are not errors and do not amount to grounds for a successful appeal.
[15] He submits that the appellant’s offending against the New Lynn Bowling Club involved sophisticated planning and deception of the Club and a substantial breach of trust. The offending against Auckland Speedway was similar.
[16] Mr Fotherby says that the breach of trust involved in the appellant’s offending against the New Lynn Bowling Club is well described in the victim impact statement by the President of the Club at the time of the offending. The former President says
6 R v Varjan CA97/03, 26 June 2003; Blackmore v R [2014] NZCA 109; and Lester v R [2012] NZCA 47.
that the appellant was a member of the Club and he proposed a solution to the Club’s financial difficulties by offering to arrange a sale of part of the Club property. The appellant arranged a ‘purchaser’ for the land at $330,000, and unknown to the Club onsold it to make a considerable profit for himself. The former President says that as a result of the appellant’s actions he was investigated by the Serious Fraud Office, and he says that his reputation within the bowling community has been ruined as a result and the appellant’s actions have had a long lasting effect on him.
[17] Regarding the breach of trust involved in the appellant’s offending against Auckland Speedway, Mr Fotherby notes the victim impact statement by one of the board members in which the board member explains that because the appellant’s late father had been his best friend, he had looked after the appellant since he was a boy and the appellant had treated him like his father. The board member said that after the appellant had been declared bankrupt, with the prior approval of the Speedway Board, he had arranged employment for him working as a manager at the Speedway. Despite reassuring the other Speedway board members that the appellant could be trusted, the appellant proceeded to steal $101,990 from him. The victim says that his own contract with Auckland Speedway has not been renewed and he believes that was because of his connection with the appellant, and the appellant’s offending.
[18] In response to the appellant’s submission that the Judge ought to have allowed him a discount for previous good character, Mr Fotherby acknowledges that persons who have shown themselves to be generally law abiding citizens of good character are usually permitted to invoke their previous good record in mitigation of their offending. He submits however that the appellant does not qualify for a good character discount. He says that the appellant does not have an unblemished record as he had his real estate agent’s licence cancelled following multiple charges of misconduct in 2016. He notes that since 2011 the appellant had been charged with misconduct or unsatisfactory conduct as a licenced real estate agent on eight occasions. Mr Fotherby says that although these were not criminal convictions, their existence demonstrates that the appellant is not a person of previous good character, particularly as those matters relate to his actions as a real estate agent, and his offending against the Bowling Club involved him using knowledge he acquired in that role.
Approach on appeal
[19] Section 250(2) of the Criminal Procedure Act 2011 provides that the court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[20]In any other case, the court must dismiss the appeal.7
[21] The appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which that sentence is reached.8
Discussion
[22] I begin by noting that the Court of Appeal in R v Varjan observed that there is no tariff for this type of offending.9 The Court commented that the circumstances and culpability of dishonesty offending vary widely, and said:
[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[23] It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.
[23] The appellant’s offending against the Bowling Club and Auckland Speedway in each case involved an egregious breach of trust. As a member of the Bowling Club
7 Criminal Procedure Act 2011, s 250(3).
8 Ripia v R [2011] NZCA 101 at [15].
9 R v Varjan, above n 6.
with a background of experience as a real estate agent he was trusted and relied on to give the Club honest and well-informed advice regarding the sale of part of its land. He devised a scheme to purchase the property himself at a significant undervalue, and then sell it on for a substantial profit. To achieve this dishonest objective he established and utilised a fictitious entity to purchase the land from the Club. In the case of Auckland Speedway, the appellant breached the trust of the man who had become his father figure and who had vouched for him to secure employment at Auckland Speedway. He then stole from his employer by creating a series of false invoices.
[24] In each case the offending was calculated and premeditated. It was in each case carried out over an extended period. The offending resulted in the appellant obtaining approximately $567,000 in total. Apart from the financial losses caused by the appellant’s fraudulent offending, it also caused significant damage and prejudice to the victims. The appellant’s offending was motivated by greed and financial gain. It was clearly very serious offending of its kind.
[25] I am satisfied that the sentence of two years and two months imposed on the appellant is within range for this offending. I consider that the appellant’s offending was more serious than the offending in Blackmore v R where the offending involved property or cash being obtained totalling $16,395.00.10 Mr Blackmore had 18 dishonesty charges compared to the appellant’s five charges, and the total amount involved in the appellant’s offending was considerably greater. The Court of Appeal in Blackmore observed that:11
In cases where significantly larger sums are taken over a period of time by a person in a position of trust starting points of around three and a half years’ imprisonment are common.
[26] The cases referred to by the Court of Appeal also included several where starting points of four years’ imprisonment were adopted where the amounts involved were significant.12 And here as I have noted, Mr Olsen for the appellant acknowledges
10 Blackmore v R, above n 6.
11 At [11] (footnote omitted).
12 R v Davis [2009] NZCA 26 ($277,826.99 taken, starting point of four years’ imprisonment); Sahib v New Zealand Police [2012] NZHC 3324 ($272,000 taken, starting point of four years’
that the starting point of four years’ imprisonment adopted by the Judge is in range, and takes no issue with it.
[27] Furthermore, the appellant does not take issue with the discounts allowed by the Judge, and the sole ground of the appeal is that the Judge erred by failing to also allow the appellant a discount of around 15 per cent to reflect his previous good character; his efforts at rehabilitation prior to sentencing; and his prospects of rehabilitation following sentencing.
[28] It is clear from the decision of the Real Estate Agent’s Disciplinary Tribunal (the Tribunal) that the appellant has an extensive history of professional misconduct in his role as a licensed real estate agent. The particulars of the misconduct are set out in a schedule annexed to the decision of the Tribunal and they include: acting for parties in a conflict of interest situation; holding advertising money in his own personal account rather than depositing it in his agency’s account; and pressurising purchasers to sign a variation to a sale and purchase agreement. For that professional misconduct substantial fines were imposed upon him.
[29] On 8 August 2016 the appellant admitted charges of misconduct under s 73(c) of the Real Estate Agents Act 2008 (the Act) in relation to three complainants. The complaints were similar in each case and involved the appellant failing to provide written appraisals, and written marketing plans. The charges alleged the appellant was guilty of reckless contraventions of the Act, involving repeated breaches of an agent’s fundamental obligations to ensure that clients understood the process and cost of selling their houses. On 4 November 2016 the Tribunal cancelled his licence as a real estate agent. From the appellant’s history of professional misconduct as summarised in the Tribunal’s decision it is clear that the appellant cannot be described as being a person of good character. He was shown to be unreliable, inaccurate and reckless in his dealings with members of the public in relation to the selling of real estate.
[30] While these are matters of professional discipline and do not involve criminal offending, they relate to conduct which informs an assessment of his character. It is
imprisonment); and Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2009 ($312,467.27 taken, starting point of four years’ imprisonment).
also relevant to note that the offence of obtaining by deception relating to the fraud on the Bowling Club was committed in November to December 2016, and the fraud on Auckland Speedway was committed between October to December 2019. It therefore appears that the appellant had acted dishonestly in his dealings with the Bowling Club well before he offended against Auckland Speedway.
[31] Accordingly, when he came before the District Court for sentence on 12 August 2022, he could not be regarded as being someone of previous good character, and there is no basis on which a good character discount could be given to him.
[32] The appellant’s efforts at rehabilitation prior to sentencing and his prospects of rehabilitation following sentencing were matters which the District Court Judge took into account in allowing him a discount with reference to his personal circumstances and the matters covered in the psychologist’s report prepared by Mr Woodcock. The Judge specifically referred to the appellant having commenced rehabilitative counselling and commented that his continued rehabilitation would have to be one of his priorities on completion of his sentence.13 It is therefore clear that the Judge considered the issue of the appellant’s commencement of rehabilitation before sentencing and his intention to pursue rehabilitation following his sentence.
[33] The Judge also allowed the appellant a three month discount from the initial sentence indicated of two years and five months’ imprisonment to take account of the reparation orders totalling $75,000 he made and the appellant’s willingness to engage in restorative justice, to reach the final sentence of two years and two months’ imprisonment.
[34] I am accordingly satisfied that the Judge did not err in the course of determining the sentence of two years and two months’ imprisonment he imposed on the appellant, and I further find that he did not err by failing to allow the appellant a good character discount.
13 At [4].
Result
[35]The appeal is dismissed.
Paul Davison J
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